Bench Bulletin-Issue 17

Thanks to all Our Partners
Kenya Law Reports
Bench Bulletin
NCLR Board Members
The Hon. Justice (Dr.) W.M. Mutunga, S.C. ,Chief Justice, President of the Supreme Court & Chairman, National Council for Law Reporting.
THE NATIONAL COUNCIL FOR LAW REPORTING THE BOARD OF THE COUNCIL The Hon. Dr. Justice W.M. Mutunga,S.C. 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
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
Attorney-Generals Representative
Mr. P. Sang
Goverment Printer's Representative

Mr. Evans Monari
Law Society of Kenya

Ms Florence Muoti Mwangangi
Law Society of Kenya

Mr. M.M. Murungi
Editor/C.E.O
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. Transforming Legal Information Issue15: April-June 2011 into Public Knowledge. Issue17: October - December 2011
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The Bench Bulletin

EDITOR Michael Murungi EDITORIAL ASSISTANT Monica Achode CONTRIBUTORS Michael Murungi Esther Nyaiyaki Anne Asugah Monica Achode Andrew Halonyere Njeri Githanga Kamau Petronella Mukaindo Emma Kinya Wambui Kamau Christian B. Ateka Nelson K. Tunoi Wanjala Sikuta Stanley Mutuma Oscar Muriithi Michael Mayaka Yvonne Kirina 17 19 16 13 11 7 1 3 4 5 6
Table of Contents
NCLR Board members Transition Citizen Jane What they Said Tribute to the Late Mr. Justice M. M. Ole Keiwua Progress Report on the Transformation of the Judiciary Remarks on the Inaugural Sitting of the Supreme Court NCLR Launches Law Blog and discussion Forum Introducing the KLR Case back Service NCLR upgrades Its Organizational Structure while establishing a Medical and Pension Scheme Editorial Department Information Communication Technology (ICT) Department Laws of Kenya Department Feature Case Supreme Court of Kenya Court of Appeal Cases High Court Cases Supreme Court of the UnitedKingdom Year in Review 2011 Notes
DESIGN AND LAYOUT Catherine Moni John Muriuki Geoffrey Andare PROOFREADERS Phoebe Ayaya Innocent Ngulu Contacts
National Council for Law Reporting, Milimani Commercial Courts, Ground Floor, 4 th Upper Hill Close, Ngong Road Email: info@kenyalaw.org, Tel: (+254) (020) 271 27 67, 271 92 31 Fax: (+254) (020) 2712694, Nairobi, Kenya, www.kenyalaw.org Facebook: Kenya Law Reports, Issue17: October - December 2011
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Transition
mber of our ague and friend, a me lle co r he ot an to n lum co ptember y heart, I dedicate this . Wilson joined us in Se 11 20 4, er mb ce nce again, with a heav De on d was taken u, whose death occurre December 3, 2011, he ay rd tu Sa On t. staff, Mr. Wilson Riung tan sis ng as a Front Office As the following day. this year and was servi bi, where he died on iro Na in l ita sp ho a at ill and was admitted
Mr.Wilson Riungu
Office Assistant, NCLR 86 Sunrise: April 15, 19 11 20 4, er mb Sunset: Dece of Mr. to terms with the death me co to n ga be t jus ly d on on October 9, 2011. at a time when we ha r, which had occurred Wilsons passing came ce Offi ng eti ark M d an Justin Muthee, a Sales e comfort mory of Wilson, for th me e th for e nc sile of ment not having a kind thought or a mo nya Law Reports who Ke e th at s ue ag lle co Please spare a prayer, of his ments in a ds and for the strength deal with two bereave to ve ha w no ff, sta of of his family and frien member ne of losing a serving months. suffered the misfortu space of less than two
st May Wilsons soul re
in peace.
Transforming Legal Information into Public Knowledge.
Issue17: October - December 2011
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What They Said
[T]he Judiciary will not change until those who serve in it and the public change their attitude and behaviour. When we say that judicial authority is derived from the people the implication is that the people should be law abiding make use of other fora of justice such as family, churches and mosques and other alternative dispute resolution mechanisms because court actions are, in their very nature, adversarial. Kenyans must see themselves as the change they wish to see in the Judiciary. The Hon. Justice (Dr.) W.M. Mutunga, Chief Justice, President of the Supreme Court and Chairman of the National Council for Law Reporting, in his Progress Report on the Transformation of the Judiciary: The First 120 Days address on November 19, 2011.
The Hon. Justice (Dr.) W.M. Mutunga, S.C. ,Chief Justice, President of the Supreme Court
The Hon. Lady Justice Mumbi Ngugi, j.
This process [of vetting of Judges] will help to underpin these values with respect to the judiciary and restore the judiciary to its respected place as the arbiter of justice in Kenya. We believe that rather than undermining judicial independence, the process, which is limited in time, will enable the judiciary operate with confidence in its central role of upholding the rule of law in Kenya, free from the shackles that have reduced it to a timid player in government due to the widespread perceptions of incompetence and corruption High Court Judges Mumbi Ngugi, DS Majanja & GV Odunga dismissing an application by an advocate seeking to halt the vetting of judges in Dennis Mogambi Mongare v Attorney General & 3 others [2011] eKLR, November 18, 2011.
We have no doubt the Court of Appeal sitting as the Supreme Court were able and could have delivered their considered decisions/ruling. However, before they could do that, this court was established. We see no fault whatsoever in the exercise of the said discretion considering all circumstances and the sensitive, weighty and serious issues of great national importance and interest that the Application for Advisory Opinion entailed. It is our view that it would be totally improper, irregular and unfair for this court to set aside all proceedings and record and to order the Applicant to file a fresh Application so that they could comply with the new Supreme Court Rules. Supreme Court Judges M.K. Ibrahim & Smokin Wanjala in In Re the matter of Commission for Implementation of the Constitution [2011] eKLR, November 2011, the historic first decision of the new Supreme Court of Kenya, in which the Court took over and continued a constitutional application previously filed and part-heard by the Court of Appeal sitting as the Supreme Court.
The Hon. Mr. Justice M. Ibrahim & The Hon. Justice (Dr.) S. Wanjala (SCJJ)
...[E]ntrapment is a complete defence and it does not matter that the evidence against the person is overwhelming or that his guilt was undisputed. The court must refuse to convict an entrapped person not because his conduct falls outside the proscription of the statute but because even if his guilt is admitted, the methods and manner employed on behalf of the State to bring about the evidence cannot be countenanced. High Court Judge M. Warsame in Mohamed Koriow Nur v The Attorney General [2011] eKLR, September 30, 2011, declaring that certain evidence obtained through entrapment was obtained in violation of the Bill of Rights and was inadmissible.
If the prosecution was forced to close its case, without calling the 2 witnesses, that would seriously prejudice the public interest in having all evidence laid before the court, so as to enable the court arrive at the just decision. In the result, I find that the decision to exclude video conferencing as the medium for receiving the testimony of the 2 witnesses was improper High Court Judge Fred. A. Ochieng in Livingstone Maina Ngare v Republic [2011] eKLR, July 28, 2011, in which the High Court allowed the taking of oral witness evidence by video-link via two video-confefrencing terminals, Nairobi and Washington DC.
The Hon. Mr. Justice F.A. Ochieng, j.
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Tribute to THE LATE MR. JUSTICE M.M. OLE KEIWUA

standards in their judicial career. Hard working and painstaking, he was a highly capable Judge who was quite at home in almost all the branches of the law. He never hesitated in taking an unpopular stand, if his conscience so dictated. Invincible independence, originality of thought, a firm belief in ideals and uniqueness expressed were a hallmark of his personality as a judge. He maintained the highest standards of judicial conduct and behaviour. He was one of those judges who displayed admiration, courage and independence when the Kenyan Judiciary was going through the difficult period during the so called radical surgery in 2003. finest Judges of the Court of Appeal. He was a perfect Judge in the Court and a perfect gentleman inside as well as outside the Court. Those who had the privilege of sharing either the Bench with him or appearing before him at the Bar, acknowledge the great impact which he created as a Judge of the Court of Appeal. He was a rare combination of patience, a Judge with gentleness, modesty, dignity, firmness and kindness.
wish, with profound sense of grief and sorrow to pay homage to the late Justice Ole Keiwua, a former illustrious Judge of the Kenya Judiciary who adorned the Bench of the Court of Appeal from 23rd December, 1999, until his demise on 8th October, 2011 when he left for his heavenly abode, having lived and fulfilled his life spread over 65 years. He joined the Government of Kenya on 12th March, 1973 with the Attorney Generals Chambers as a Trainee State Counsel. He was appointed a Puisne Judge of the High Court in 1993. On 23rd December, 1999, he was elevated to the Court of Appeal as an Appellate Judge a position he held until his demise on the 8th October, 2011.
The late Mr. Justice M.M. Ole Keiwua.
In 2001, the late Mr. Justice Ole Keiwua was appointed as a Judge and founder President of the East African Court of Justice based at Arusha. The late Judge had the confidence of the East African Heads of State and he served his full term as President of the East African Court of Justice from 2001 up to 2006 when he formerly retired. As a Judge of the Court of Appeal, and the President of the East African Court of Justice, Justice Ole Keiwua rendered a number of landmark judgments having far reaching implications in Kenya and in the wider East African Region. He was well known for his sound knowledge of law and legal acumen which he possessed in abundance. He was courageous, fearless, candid, uncompromising, firm and unbending when it came to upholding the rule of law and independence of the Judiciary. His firmness and disregard of all considerations except his principles and convictions were displayed in many cases. Justice Ole Keiwua belonged to that group of men who having downed the judicial mantle maintained highest 6
In the passing away of Justice Keiwua, we have lost one of the ablest Judges of this Court and a Jurist per excellence. Known for his unimpeccable integrity and sterling character, Justice Keiwua will be remembered for all times to come His suspension from the Judiciary for the services rendered by him to the in the year 2003 came as a shock to cause of justice and the independence many, particularly those who knew of the Judiciary in this Country. him as a person of integrity, justice and fairness. Nonetheless, Justice Ole Nothing can cover his high fame but heaven; Keiwua challenged the suspension and being the tenacious warrior he N o p y ra m i d s s e t o ff h i s memories was, in 2010, he was vindicated in a landmark judgment which declared his But the eternal substance of his greatness; suspension unconstitutional, illegal, unfair and without merit. In May, 2010, To which I leave him. the late Judge resumed his duties at The late Mr. Justice Ole Keiwua is the Court of Appeal and indeed the survived by four children (two boys and outcome of this judgment became the two girls), and his wife Peggy Keiwua. precedent at Law Courts, Law Schools, His Brother Judges of the Court of and it is cited on matters pertaining Appeal and the entire Judiciary wish to to Constitutional Law, Judicial Review, convey our deepest condolences to the Presidential Elections, Treatment of bereaved family and pray to the Almighty Judges, Tribunal procedures and much God to give them strength in this period more. The Kenya Law Report bears and to bear the irreparable loss with testimony to his judicial acumen and fortitude. versatility, his diligence and his fine understanding and exposition of legal May the Almighty God rest his Eternal principles. Soul in Peace. AMEN. The late Mr. Justice Ole Keiwua was M. K. K. SEREM patient and dignified. He never lost SENIOR PRINCIPAL DEPUTY REGISTRAR. his cool even in the face of unjustified provocation. He had a very pleasing personality and use of harsh words was unknown to him, always patient and courteous, the lawyers appearing before him felt at home and came out of Court with their best in the course of arguments. All those who had an opportunity of coming into close contact placed him in high esteem and regard because of simplicity, modesty and integrity. He was loved by the members of the Bar and the Judges alike as one of the
By Moses K. Serem, Snr. Dpty. Registrar, Court of Appeal, for and on behalf of Court of Appeal
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Progress Report on the TRANSFORMATION OF THE

better. In sad moments in our history, courts have failed to uphold the rule of law and to defend the rights of man and woman. This is why Kenyans fought for a new Constitution. It is the reason we are reforming the Judiciary. It is the reason we must succeed in creating an institution of justice that can secure our democracy and fulfil its rich promise. Today marks the 120th day since assuming the office of Chief Justice. I think it is opportune to give a review of our accomplishments so far, and, similarly, provide strategic direction for the future. My vision, as we move forward, is to transform the Judiciary to ensure equitable access to, and efficient and effective delivery of, justice. In leading this transformation agenda, I am guided by the constitutional principle that the people are the source of judicial authority. Those of us to whom this authority is delegated must exercise it only in their interest and for their benefit. This is the article of faith that I uphold as I execute my duties as the Chief Justice of the Republic of Kenya. For the past 20 years, no less than four internal reports on the Judiciary have been published. These fairly robust and honest self assessments identified long standing problems that plague our system of justice, and in their pages are some very progressive recommendations. Most of these have remained unimplemented. There was lack of will and support to implement the recommendations. What is new is that we have the collective will of the Kenyan people, and the leadership in the judiciary to implement these reforms. In designing my reform agenda, We have borrowed heavily from these reports, while reviewing and updating them to reflect the context and demands of the Constitution. Before I outline to the country the measures that we have taken and the strategic direction for the future, I think that it is important to briefly describe the Judiciary we found. We found an institution so frail in its
JUDICIARY By Dr Willy Mutunga, S.C., Chief Justice and President of the Supreme Court of Kenya.
structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a Judiciary that was designed to fail. The institutional structure was such that the Office of the Chief Justice operated as a judicial monarch supported by the Registrar of the High Court. Power and authority were highly centralised. Accountability mechanisms were weak and reporting requirements absent. When we put people on a pedestal it is based on negative power and authority. That is the old order. The new order for the 21st Century demands we move to equality and work from the basis it is not about the individuals achievement but what a group of people, indeed, a collective has the potential to accomplish. We are glad that the new Constitution has radically altered this ugly structure. We now have a decentralised Judiciary with the Supreme Court and the Court of Appeal having their own Presidents and the High Court having a Principal Judge at their respective helms. We must not take this dispersal of power for granted for the intoxicating nature of power can be true of the Judiciary as it is of the Executive. In order to strengthen this collective and accountable use of the power envisaged in our constitutional architecture, I have taken additional administrative decisions to give effect to the intentions of the Constitution. I have set up a Leadership Committee which will act as a management team for the entire Judiciary. Its composition from the Chief Justice as Chair, DCJ, President of Court of Appeal, Principal Judge of the High Court, as well as representatives from the magistracy and the paralegal fraternity permits all the voices of the Judiciary to be heard in the management of this important institution. The operationalisation of this committee will take effect once the vetting process is completed, new judges are on board, and elections held for each level of
THE FIRST HUNDRED AND TWENTY DAYS 19TH OCTOBER, 2011 Fellow country women, men and friends:
t is with great pleasure that I submit the Progress Report on the Transformation of the Judiciary in Kenya. The struggle to reform the Judiciary predates my rise to the Office of the Chief Justice. However, my assumption of office on June 20, 2011, following a rigorous vetting process where the institutions of the Executive, Legislature and the Judiciary, as well as the general public played significant roles, marked an important turning point. I want to thank all of them, and, in particular, the Judicial Service Commission (JSC) which, in many respects, has set the golden standard in the vetting of public officials. In making this Report, I have elected to issue it on the eve of Mashujaa Day, a day so emblematic of our struggle for justice and freedom that it should remind us how an oppressive system of government can easily use courts to perpetuate a miscarriage of justice. The existence of courts alone provides no guarantee of justice. Rather, it is the values and quality of the people who lead it; the aspirations and design of the Constitution that creates it; and the vigilance and civic consciousness of the people who continuously demand
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representation. The new team at the helm of the Judiciary brings with it the necessary political will to implement reforms that many had long identified. Some of these include excessive bureaucracy and silo mentality among organisational units and the court system; backlog of cases; endemic corruption; inefficient and ineffective case flow management; poor terms and conditions of service for judicial and administrative staff; poor infrastructure; absence of a clear transfer policy; understaffing; artificial workloads occasioned by unfilled approved vacant positions; remuneration imbalances due to haphazard salary grading and compensation structures where, for example, magistrates are poorly remunerated relative to other court officers; weak institutional and staff performance management sy s t e m s ; b l a t a n t d i s re ga rd fo r performance and financial audits; fragmented reform interventions; and inadequate implementation capacity of recommended institutional reforms by the various task forces. Our transformation agenda seeks to address all these composite defects. Since coming into office four months ago, I have listened keenly to the voice of the Kenyan people: unceasing and unequivocal in its invocation to the Judiciary: Clean Up, Now! This call is driven by the recognition that the transformation of the Judiciary constitutes the next most important stage in our democratic transition a recognition that a Judiciary that upholds the rule of law, dispenses justice fairly and efficiently, validates and protects rights is not just good for our stability but also our economy. These are basic settled facts that are not just evidenced in literature but also in the experience of societies that have matured in their governance. As leaders and as a people, we must embrace them. The ends of justice cannot be met when the Judiciary not only suffers an integrity deficit but is also perceived as the playground of the corrupt and the refuge of the inept. Corruption corrodes our humanity, undermines our institutions and sabotages our economy.
I pledged that never again should it be possible to speak about corruption and the Judiciary in the same breath. I meant it. One of the first actions I undertook was to appoint an Ombudsperson to receive and respond to complaints by staff and the public. In just three months, the office has received over 700 complaints of various categories! Of these, 229 have been finalized while another 275 are presently actively being processed. I invite the public to make use of this office which we shall strengthen so that it can effectively serve the public. Whereas I hasten to reassure my colleagues in the Judiciary that the Ombudsperson will not be used to conduct witch hunts, I appeal to the public not to hesitate to file any complaint against any judicial officer to this office. Even where no complaints are raised, I give you my pledge that we shall hold ourselves up to the highest ethical standards in the conduct of our affairs. So far, the JSC has released a Code of Ethics and Conduct for judicial officers, and established a standing committee to handle enforcement and discipline. Corruption in the Judiciary will, however, not be eliminated if we do not change the environment that incentivises it. Four months ago, when we took office, we found a Judiciary in which junior officers entrusted with paperwork in matters concerning billions of shillings lived lives that exposed them to influence-peddling and bribery. Many of the clerical staff, who ensure that the courts system works or does not work , and who are very critical in the administration of justice, earned an average of Ksh. 20,000 only. Staff morale was slow and career stagnation rampant. Many officers had been in one position for over 10 years. The disparities in pay between judges and magistrates, on one hand, and judicial officers and administrative staff, on the other, were acute.
have assented to the formation of an association to represent the interests of paralegal staff, and hope to have structured engagement with them. The Judiciary must be a place where the dignity of workers is respected and upheld. It is a place that must care for the welfare of its staff to take away any excuse to convert public goods and services into private gain. The Kenyan public has expressed its frustrations with the inefficiencies in the Judiciarys case management system, which has contributed to huge backlogs. When judicial officers report to work late, sit for very short periods and casually adjourn cases, it is not surprising that the Judiciary would be swamped by close to one million case backlog. An initial analysis of the case backlog lays bare the anatomy of the problem: close to two thirds of the cases are traffic-related. As an immediate response, I have appointed a Chief Magistrate to specifically deal with this issue in a comprehensive and speedy manner. Further, I will be writing to the Commissioner of Police asking him to indicate to us those cases he thinks his officers can no longer sustain so that we clear them out of our system. At the High Court alone, we found 2,015 pending criminal appeal cases. Some have been not been heard for as long as 20 years because their files are missing or the records are incomplete. It is a mockery of the oft-quoted legal adage that justice delayed is justice denied, and we have taken decisive steps to right the situation. Civil cases in the courts hold up a great amount of resources needed for economic growth. Clearing the backlog will not only serve the ends of justice but also free resources into the economy and deepen investor confidence. First, I am happy to report that the Judiciary has now completed digitising 60 million pages of cases for the High Court across Kenya. The Court of Appeal has digitised 10,000 records covering the years 1999 to 2010. Some 1,042 cases that should be progressing in the High Court are waiting arguments at the Court of Appeal while some 942 main appeals are yet to be heard. We have asked parties in the oldest cases, filed as far back as 2004, to take dates within
The JSC has reviewed the terms and conditions of judicial officers and its proposals are awaiting the approval of the Salaries and Remuneration Commission. The JSC approved the creation of additional posts in the magistracy and Kadhis establishment and now has before it a recommendation from my office to immediately promote In my inaugural address as Chief Justice, 278 magistrates and 12 Kadhis. We 8
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the month so that their matters can be disposed of. Within six months, I expect the Court of Appeal to be handling only fresh applications. I intend to reduce the waiting period for appeal cases from the current average of six years to less than a year. Further, my office and the ICT department are in the process of creating an electronic-based system for monitoring and tracking overdue judgments and rulings with a view to taking remedial action. It is the policy of the Judiciary that once proceedings begin, cases will be heard back-to-back on a first filed, first heard basis. Queuing of cases will take away the incentive for corruption. In the days to come, the public will be able to access case information by short text messages (SMS). We are also embarking on a major computerisation of the Judiciary that will ensure that proceedings are recorded electronically. As part of this programme, the Supreme Court will be established as a paperless Court. It is our intention to establish a modern e-library that can serve the interest of justice. Judges of the High Court and the Court of Appeal shall, from now henceforth, be empanelled automatically using computer software that removes the human hand from the choice of those who hear cases. In future, cause lists will not contain the name of the judge, to shield judges from undue influence or being hunted down by litigants. Kenyans have suggested extending the sitting time, having night courts. It is a proposal we are keen to consider operationalising as staff numbers in the Judiciary rise. I have also redeployed three other experienced Chief Magistrates to clear the backlog of cases in civil, criminal and commercial appeals courts. These magistrates will report to the judges who head their respective divisions on their specific mandate. Case backl ogs al so resul t from understaffing. In order to address this shortcoming, we have embarked on a major recruitment drive for the Judiciary. In the past 120 days, the Judiciary has hired 28 new High Court Judges, bringing the total number of to 80. We have advertised for 7 additional
Court of Appeal Judges and another 160 magistrates. An amendment to the Judicature Act makes the High Court judges not to be less than 120 and the Court of Appeal not to have less than 30 judges. In order to free judges to do what they are primarily mandated to do hearing and deciding cases we have completely separated the judicial function from the administrative. Judges will not be sitting on administrative committees for procurement and tendering; just as magistrates will no longer act as registrars in addition to hearing cases. We will have a policy that ensures judges and magistrates are in stations for specific periods. As work on a comprehensive transfer policy continues, we have ensured that judges and magistrates do not criss-cross stations to eliminate the problem of part-heard cases. Once we lay down the burden of the case backlog, the Judiciary is determined to prevent a recurrence of this phenomenon. I am instituting performance contracting in the Judiciary. Performance based management will be applied to both judicial and administrative staff. A fully fledged directorate of performance management is to be established and an advertisement has already gone out for the recruitment of its head. I intend to strictly enforce deadlines on writing of judgments and the hearing of cases. In the days to come, I intend to review the rules on deadlines with a view to further shortening this period as more staff more joins the Judiciary. The hiring of 129 researchers, whose positions have only recently been advertised, will ensure that each and every judge has a research assistant. We shall spare no effort or resource to ensure that judicial officers deliver quality justice in an efficient and timely manner. In order to promote sound management practices, we have also established the Judiciary Transformation Steering Committee chaired by the Deputy Chief Justice and where all stakeholders in the judicial system are represented. The Steering Committee, under the
strong and able leadership of the Deputy Chief Justice Hon. Nancy Baraza, has developed an Integrated Comprehensive and Institutional Transformation Framework. The Judicial Transformation Comprehensive Strategic Plan whose 10 clusters will be given to all of you today is a product of this Steering Committee. Further, I have moved to strengthen the office of the Chief Justice. Under the new Constitution, the canvass of responsibility for the Office of the Chief Justice has expanded considerably judicially, administratively and in terms of policy making. The CJ is a judge of the Supreme Court, and is expected to sit in court, hear cases and write judgements. He is also the president of that Court, which bestows managerial responsibilities. He is the head of the entire Judiciary, which has enormous administrative implications. He is the Chair of the Judicial Service Commission and the National Council for Administration of Justice. He also plays ceremonial duties and functions such as swearing in of Constitutional office holders and advocates. To deliver on this broad mandate the office needs executive competence. The office of the Chief Justice cannot operate as it does now with two secretaries and six bodyguards and still discharge its functions effectively as well as hold the other arms of government to account. This state of affairs imperil our democracy as the imperative of checks and balances effectively becomes inoperative when the balance of power is heavily tilted in disfavour of the judicial arm, as it is now. To remedy this problem, I have appointed a Chief of Staff to oversee the establishment of the Executive Office of the Chief Justice. Both the President of the Court of Appeal and the Principal Judge will also have to establish nimble but efficient executive offices to be able to perform their functions. We must modernise our Judiciary informed by known models and practices of 21stcentury management science. The reform of the administrative limb of the Judiciary is one that rarely receives sufficient public attention. The work that judicial officers do is determined to a large extent by the quality and efficiency of the support system that they have. However, this part of our human resource needs
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immediate attention. We have launched an accelerated professionalization programme of the administrative staff of the Judiciary. We have advertised for six positions of Directors for Finance, ICT, Procurement, Administration and Chief Accounts Controller and five Registrars, each to serve the Supreme Court, the Court of Appeal, the High Court, the subordinate courts and the Judicial Service Commission. I appeal to Kenyan professionals to make applications for these jobs as the cause of justice would only be better served if our countrys best and brightest offer to serve in its bastions. We have also launched the Sexual Harassment Policy to protect our own staff from predatory social behaviour that not only undermines our professionalism, violates staff rights but also creates artificial barriers to career growth and development. As part of efforts to reorganise the Judiciary and to optimise efficiency, the Supreme Court is now operational following the establishment of its registry and publication of its interim rules of procedure. Its courtroom is being restructured to make it modern with a view to launching it before the end of January. The Court of Appeal is to be decentralised to Garissa, Nyeri, Eldoret, Kisumu and Mombasa. The construction of some of these Courts are at an advanced stage. I have reorganised and reconstituted the divisions of the High Court in an attempt to honour and respect the spirit of the Constitution and the popular aspirations of our people as expressed through their sovereign will in the referendum. There are now divisions for Land and Environment, Judicial Review, Commercial and Admiralty, and Constitution and Human Rights. The Commercial and Admiralty division will accelerate the adjudication of commercial disputes and reduce the transaction costs of justice for the private sector. The Constitution and Human Rights division will be the court of first instance in constitutional cases; and will play a leading role in addressing the many issues around the interpretation and enforcement of our expanded Bill of Rights. The Land and Environment division will deal with the critical issues of 10
sustainable development and equitable distribution of resources. We intend to reinforce these divisions as the Judiciary recruits more staff. In the meantime, we are considering the modalities for fast-tracking certain matters relating to children, victims of sexual offences and older persons. We also recognise the need to fast track and conclude cases that have been in court for over three decades. In pursuing the important objective of bringing justice closer to the people, we are establishing 14 new courts in places where the Judiciary has never before had a footprint. Additionally, 8 mobiles courts have been set up and 38 new vehicles released to serve court stations in historically marginalised areas. For the first time in Kenyas history, a judge of the High Court of Kenya has been posted to Garissa. More court stations will be subsequently established in Lodwar, Isiolo and other marginal districts including Archers Post, Wamba, Kakuma, Lokitaung, Lokichoggio and Loitoktok, as a way to reduce the cost of justice for litigants. We wholeheartedly embrace the culture of continuous learning, vigorous debate and peer review. Until now, there has been no organised training for judicial officers. A curriculum is under development for the Judicial Training Institute and a full time Director has been appointed. Justice Paul Kariuki we have a well respected and innovative Director. The JTI will provide the intellectual anchor in making our Courts the home and hearth of a robust jurisprudence. It is pivotal to a successful Judiciary. It was never facilitated to meet the training needs of the courts. Going forward, the Institute will have its own conference and residential facilities and staff as it moves towards awarding degrees. The JTI must become our judicial think tank, an institute of excellence, the nerve centre of robust and rich intellectual exchange, where the interface between the judiciary and contemporary developments in society occurs. I see the institute hosting conferences on critical issues, attended by judges, magistrates, and paralegals where our collective intelligence can be harnessed for the benefit the country. An important component of the reform
of the Judiciary is the vetting of judges and magistrates as called for in the Constitution, and further provided for in the Vetting of Judges and Magistrates Act. Given the enormity of public interest in this matter and its direct bearing on the confidence of my judicial officers, I directed that the constitutional case filed on this matter be fast-tracked and a quick and fair determination made on it. A ruling on this matter is expected in November. When it does take place, the position of the Chief Justice and the JSC is that it should not be on the basis of witch hunt but must be fair and transparent and concluded in the most reasonable time possible. Should this process not be concluded within a reasonable time, the case backlog will become a Sisyphean boulder we keep pushing uphill only for it to roll back. I also urge the Executive to expedite the process of appointment of foreign members to the Vetting Board and do so in a consultative manner. Throughout what appear like tumultuous changes, I pay special tribute to the Judicial Service Commission that enjoys an expanded role under the new Constitution. It has stuck to the law and ensured that the hiring of officers of the Judiciary benefits from public participation. I look forward to its support as we execute our transformation programme. In conclusion, I would like to point out that the Judiciary will not change until those who serve in it and the public change their attitude and behaviour. When we say that judicial authority is derived from the people the implication is that the people should be law abiding make use of other fora of justice such as family, churches and mosques and other alternative dispute resolution mechanisms because court actions are, in their very nature, adversarial. Kenyans must see themselves as the change they wish to see in the Judiciary. Dear Kenyans, this is the judicial transformation journey I have embarked on. It is my hope that through this I have brought a future to the present. Please walk with me. Thank you. Hon. Dr. Willy Mutunga, SC Chief Justice/President of Supreme Court Republic of Kenya
Kenya Law Reports
Bench Bulletin
COURT By Dr Willy Mutunga, S.C., Chief Justice and President of the Supreme Court of Kenya.
Thank you to everyone and welcome to the Supreme Court of the Republic of Kenya. The Hon. Minister, the Hon. Attorney General, the Chair of the Law Society of Kenya, Senior Counsel, Counsel, litigants, Court Staff and the general public: Court, for legal professionals specifically to reflect on the way justice is delivered in our country and the reasons for which the people deemed it necessary to firstly create a new court in its apex and, secondly, for the assertion in the Constitution that Judicial Authority is derived from the people. My answer is the obvious one that the people of Kenya realized that the courts had been less than perfect in living up to their responsibilities. Yet, they also understood that ultimately the Judiciary must remain the bastion of justice and the rule of law. We need to understand that the Supreme Court is an additional constitutional device deemed necessary by the framers to protect our Constitution and secure our democracy. As Justices of this Bench, for now and in the future, we have an abiding obligation to build an institution that should and shall become an iconic monument to the rule of law.
Remarks on THE INAUGURAL SITTING OF THE SUPREME

towards any cause. This Court is ready to perform its role in providing leadership in legal interpretation; development of solid jurisprudence in view of our new Constitution; and stabilize precedents. To our colleagues at the Bar, we urge you to apply your knowledge and the processes of this Court and the Judiciary generally to advance substantive justice and the rule of law. We look forward to hearing from you refined presentations, well-researched arguments and, not least, fair actions in dealing with this Court and with all parties before this and all the Courts of Kenya. It is through thorough research and precise legal arguments that the Court will derive its ability to articulate and settle legal questions clearly. Good judicial decisions are watered by good and incisive arguments. To the other coordinate arms of government, my message is that the Supreme Court will observe and honor the doctrine of separation of powers even as it secures, protects and proclaims its independence. We shall not use our independence or interpret the doctrine of separation of powers in a manner that transgresses the domain of the Executive or the Legislature. But neither shall the Supreme Court flinch nor blink in defending its independence and in executing its judicial mandate with respect to inter-branch relations as proclaimed in the Constitution.
e are gathered here for a moment whose significance should not be lost on us. It is the first sitting of the Supreme Court of this great Republic, and an important step towards further realization of the hopes and ideals of our Constitution. This sitting therefore is progress on the road to a better Kenya of and in itself. This inaugural session is not the official launch of the Supreme Court. Rather it is a ceremonial event being hosted to symbolize the commencement of the operations of the Supreme Court, which has two matters before it. It is however truly a historic event in our nations history. A complete and formal launch of the Court will be held once we complete the construction of that Court and where all the three arms of government will be invited. Since its being sworn- in, and subsequent assumption of office, the Supreme Court has been as eager as the rest of the Kenyan public to commence operations. It is fitting to mention that the sitting here today was prefaced by the publication of the interim Supreme Court Rules, which will guide the operations of this Court in the execution of its mandate. In this public eagerness we detect an abiding hope and faith that the Supreme Court will not waver or favour in the pursuit of justice. These are aspirations firmly secured in our Constitution and solemnized by our Oath of office. Further, we also have an opportunity not only for the Judiciary but all of legal professionals to reflect on the functions and role of this Supreme Court. This Court must first be seen as an integral part of our Court system but it is more. In particular, I think it is opportune at this inaugural sitting of the Supreme
Thirdly, going by the responsibilities prescribed by the Constitution to this Court, I as its President, the Deputy President who is currently away on official duty and our colleagues, its associate Justices, are not numb to the expectations and seriousness of the matters that are prescribed in our jurisdiction. We appreciate that these will be issues of grave significance for the countrys social, political and economic concerns. For these historic and important roles, we pledge our intellectual preparation as Judges of the To the litigants and citizens of the country, we assure you that this Court Supreme Court. understands that as final arbiter, the In deliberating upon the cases and impact of its decisions will extend causes that will come before us, we beyond the parties in any case, and shall be steadfast to the responsibility will shape society and affect daily that Judges are servants of the law and lives. This is not an obligation that we not the converse. In accordance with shall approach lightly. It is not lost on our oath of office, we will treat every this Supreme Court that justice is the case with objectivity and undertake tolerable accommodation of conflicting fair analysis of the legal arguments. We interests in society; we can only assure will be open to the considered views you that this is a peoples Court and of each other on the bench and render that the public can count on the fidelity our judgments and decisions based of its decisions to justice and the rule upon the evidence subject to the rule of law. All persons, authorities and of law, without fear of any authority or figures must undertake to live by the favor of anyone or anything, devoid of rule of law and therefore abide by the ill-will towards any persons or affection decisions and judgments of this Court.
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It is only when people and authorities respect the law as and when enacted; and respect court decisions as and when delivered, that the rule of law thrives. It is indeed my hope that the public will explore alternative dispute resolution mechanisms so that all matters are not litigated through an adversarial system. There is no doubt that for this to happen, these alternative sites of justice must build and earn the public respect and confidence. But the realization of the rule of law must be assisted. It is for this reason that we shall have an open Supreme Court where members of the public will be invited to
be witnesses in the manner in which the wheels of justice turn. The design of the Supreme Court will be one that fortifies the doctrine of equality before the law; one that eschews artificial hierarchy so that the juices of justice can flow freely. We want a Supreme Court that is easy on its disposition and mien but rigorous in its jurisprudence a Court that earns respect not from its intimidating rituals and architectural poise but rather from the solidity and quality of its judgments. To enrich its jurisprudence, the Supreme Court must develop a natural affinity to academia. We will evolve a symbiotic relationship between the Court and
the academy so that judgments of the Court are cited in lecture theatres and writings of eminent jurists inform Court judgments. The Supreme Court is going to develop a robust Clerkship system which will form an important limb between the Court and the young academy. There is no doubt that for the development of the law to occur the classroom should find space in the courtroom and vice versa. Thank You. Hon. Dr. Willy Mutunga, S.C. Chief Justice, Republic of Kenya President, Supreme Court of Kenya 26th October 2011
From bottom left to right, the Judges of the Supreme Court of Kenya: The Hon. Justice (Prof.) Jackton Boma Ojwang', The Hon. Mr. Justice Philip Kiptoo Tunoi, The Hon. Justice Dr. Willy M. Mutunga, Chief Justice & President, Supreme Court of Kenya, The Hon. Lady Justice Susanna Njoki Ndung'u, the Hon. Mr. Justice Mohamed Khadhar Ibrahim and the Hon. (Dr.) Justice Smokin Wanjala at the inauguration of the Supreme Court of Kenya at the High Court, Nairobi. Absent from the photograph was the Hon. Lady Justice Nancy Makokha Baraza, Deputy Chief Justice, Supreme Court of Kenya.
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Kenya Law Reports
Bench Bulletin
NCLR Launches LAW BLOG AND DISCUSSION FORUM

By Michael M. Murungi / Editor, C.E.O
Wakilishare start getting used to that name because it is the biggest news now for the legal fraternity. WakiliShare is a forum and blog established by the National Council for Law Reporting. The name WakiliShare is a conjoined term involving three words: Wakili which is Swahili for lawyer or attorney, wakilisha, which is Swahili for to represent, and share, an English term meaning to jointly use, participate in, enjoy or receive.
support forum for users of the National Council for Law Reportings products and services. KenyaLaw Blog
akiliShare is the sum total of its constituent terms: it is a space where a member of the legal fraternity interacts with not only fellow members but also persons outside of the fraternity in jointly sharing his or her thoughts and ideas (representing oneself) on one aspect or other of Kenyas legal system and jointly participating in seeking and providing solutions and answers to questions, concerns and inquiries posted by other persons. WakiliShare is the leading online space for decent, fair, honest and meaningful commentary and discussions about Kenyas legal system. The space is as open to persons in the legal profession as it is to persons from other disciplines or indeed any other persons. Blog Discussion Forums Wakilishare features the Kenya Law blog and four distinct discussion forums uniquely tailored for differring user and subject matter profiles: Wakilsha, a lawyers discussion forum; Jumuika, an open citizen forum; Bambika a jobs, training, professional development and careers forum and Saidia, a technical
A blog a term formed from a fusion of the words web and log is a website or part of a website that is usually updated with new content from time to time. Blogs are usually maintained by an individual or an institution with regular entries of commentary, descriptions of events, or other material such as graphics or video Wikipedia. The KenyaLaw blog is a special web page on the www.kenyalaw.org portal featuring regularly updated postings of news and events from the legal fraternity in Kenya. KenyaLaw blog is interactive and enables users to post moderated comments about any particular subject. Wakilisha - Lawyers discussion legal profession in Kenya and even more importantly, post questions about and collaborate with learned or learning friends in finding solutions to emerging legal issues. Jumuika - Public discussion
Have your day in open court. For lawyers, law students and persons with specialized knowledge about the law, the legal system or a particular subject of legal practice in Kenya. Make commentary about the topical legal issue/development of the day; discuss Join the conversation. For the discerning general and particular issues about the civic-spirited individual. Share your
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thoughts and ideas about any aspect of the Kenyan legal system. Make general and particular commentary about the legal system or an aspect of it; post questions about and collaborate with other people in finding solutions to legal issues of public interest; e.t.c. citizen Bambika - Careers Discussion
reporting is NOT responsible for the content or accuracy of any of the information contained in forum postings or any loss that may be suffered by relying on an opinion or suggestion posted on Wakilishare. Users are advised to carefully consider any advice they give or receive on Wakilishare and to consult a lawyer or other professional for legal or any other professional advise. Use the right forum There are four different discussion forums on Wakilishare: Wakilisha; Jumuika; Bambika and Saidia. Each forum is tailored for a unique theme of discussions. Users are asked to familiarize themselves with the four discussions forums and to post their comments in the appropriate forum. Make sure that you use the right forum for your question or comment. If you post an appropriate message on an inappropriate forum, the Forum Moderator may move it to the appropriate forum. S ti c k t o t h e s u b j e c t WakiliShare is a forum for discussion and debate about Kenyas legal system. All postings should be appropriate, decent and relevant. Postings that deviate from the subject, or stray significantly from the original question may be locked or hidden by the Forum Moderator. Be fair and accurate - Postings must be accurate (where they state facts), and where they represent opinions, such opinions must be genuinely held and fairly expressed. Be Decenct - Users are required to be respectful towards other forum users, the Moderator and the staff of the Council. A user must not antagonize other users or post any information that could be considered defamatory, obscene, abusive, o ffe n s i v e , i n fl a m m a t o r y,
unlawful or creates a risk to a persons safety, wellbeing or health. A user must not engage in bullying, stalking, aggressive, discriminatory or nuisance behaviour or any other behaviour that is contrary to decency or violates the law. Dont get personal - Users may not use Wakilshare to post personalised attacks against individuals, groups or institutions. Any criticisms s h o u l d b e p o s i ti v e a n d expressed in a fair, decent and balanced manner. Creative ideas and suggestions Users understand that any ideas or suggestions included in the postings made on Wakilishare (including private messages) are made on a public domain and the National Council for Law Reporting and indeed any other person may take the idea and use it, whether for commercial purposes or not, without necessarily referring to the user and without owing any such user any legal right or obligation. Users who have ideas or suggestions which they intend to protect as their intellectual property are urged not to share them on Wakilishare. Respect copyright - WakiliShare shouldnt be used to post, exchange or download material protected by copyright law, unless the user has the permission of the copyright owner. A user must fully reference any extracts from copyrighted material. A user who breaches copyright laws or any other laws while on the forum agrees to indemnify the National Council for Law Reporting for any loss that it may suffer as a result. The Council reserves the right to remove any unreferenced copyrighted material. Sub-Judice - Discussion of pending legal proceedings is prohibited on Wakilishare.
Engage with the world. The connection for people on the supply and demand side of employment, career development, education and training opportunities in the legal sector in Kenya. Saidia NCLR Support Discussion
Be the solution. Share ideas, solutions, queries and compliments with fellow consumers and the National Council for Law Reporting on any of its products and services. The following rules form part of our terms of use for the forum and blog Children/Minors - For the protection and welfare of minors, WakiliShare is not open to persons under the age of 18 years. Disclaimer: Legal advise Disclaimer - Postings made by forum users are personal opinions and not those of the National Council for Law Reporting. Such opinions should not be taken to be necessarily true, factual, authoritative, legally binding or constituting proper legal advise. The National Council for law 14
Kenya Law Reports
Bench Bulletin
Appropriate use - The use of WakiliShare for any of the following or related purposes is strictly prohibited: posting spam, surveys, contests or chain letters organizing, carrying out or coordinating any actions that are contrary to the Laws of Kenya inciting hatred or disaffection against an individual, a group or an institution
your own PM inbox within WakiliShare, and you'll be alerted by email when Starting a topic is easy. Go to a forum you receive a new message (you can at the top of the page youll see a new unsubscribe from this on your profile topic button. Simply click on this to start page). your topic. Can I upload an avatar? How do I start a topic? Yes, just click on the Avatar tag at the top of your forum profile page and follow the Replying to a topic is easy. When youre instructions. in a topic youll see a post reply button at the top of the page. Simply click on Are WakiliShare users anonymous, this and type your reply in the dialogue or will I be able to tell who the other users are? box that appears. How do I reply to a topic? WakiliShare users will be anonymous. What's a profile page? A page dedicated to you! Here you have the option to add extra details about yourself, such as your real name, occupation or location. Your profile page also shows your last 10 postings. Can I add attachments to forum posts? No. You won't be able to attach documents to your posts. Can I have more than one screen name for WakiliShare? No. Our forum rules don't allow you to have more than one login. Are there any exceptions to the 'one login' rule?
Persons who post any content that violates these rules will be blacklisted Can I change my screen name? and their accounts will be suspended or terminated. Yes. Please email editor@kenyalaw.org and let them know what you want to The Moderator is king Users change it to (try to think of something are required to respect these that isn't already in use). rules and the decisions of the Forum Moderator, who may What if I forget my password or edit your postings in order to username? make them clearer or to bring them in conformity with these Click on the Forgot your password? Or rules. Forgot your user name? link and follow the instructions that you will be given. Have fun Take pleasure in indulging your imagination and What do I do if I'm registered but have your need to share with others forgotten my email address or no longer on Wakilishare. have access to it? WakiliShare FAQs What is WakiliShare? Please email editor@kenyalaw.org How do I search for a specific topic?
WakiliSharE is a forum and blog Click on the Search tab at the top of the established by the National Council for page. You can search all the WakiliShare Yes. Moderators are allowed to have Law Reporting (Kenya). more than one login. posts by topic, username or keyword. Is WakiliShare free to use? Do the WakiliShare have a 'quote' facility? Yes. WakiliShare are a free service, open Yes. Simply click on the Quote button to everyone. when you're in a topic. Will other forum users see my email How do I participate on WakiliShare? address? You can fully participate on WakiliShare if you are a registered member. If you are new to WakiliShare, you need to register by clicking on the Create an account link and follow ingthe instructions. If you already have an account on WakiliShare, enter your username and password in the dialogue boxes labeled user name and password and click on the login button. Once you are logged in, you can post a topic or add your comment to an existing topic. Will there be a spellchecker on the new WakiliShare, and can I edit my post after I've submitted it? There is a spellchecker on the forum but once you've submitted your post you won't be able to go back to edit it.
No. Your email address isn't visible to other users. To contact another user Can I put links into my forum postings? outside of WakiliShare, you'll need to Yes, as long as they're relevant and not send them a private message. pointing to indecent, shocking or other inappropriate content and are not What's private messaging? promoting any commercial activity. Private messaging (PM) lets you send messages to other users, all within the security of WakiliShare. It's safer than sending an email as you're not revealing your email address to anyone. You'll have
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Kenya Law Reports
Bench Bulletin
Introducing THE KLR CASEBACK SERVICE

By Michael M. Murungi / Editor, C.E.O
he KLR CaseBack Service is a service provided by the National Council for Law Reporting to Judicial Officers (Judges and Magistrates). CaseBack alerts a judicial officer when his or her decision has been considered by a court of higher jurisdiction. A judicial officer whose decision has been considered receives an email alert along
with the decision of the higher court their understanding and application of immediately that decision is received the principles of law. by the Council. If you are a Judicial Officer and would like The CaseBack service aims to contribute to know more about the service, please to the rule of law and the development contact Ms. Monica Achode or Mr. of jurisprudence by providing an Cornelius Lupao on Tel: 020-2712 767 information loop in which judicial officers continually develop and improve upon
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Strategic Planning Quality Assurance And Performance Department
ESTABLISHING A MEDICAL AND PENSION SCHEME
NCLR UP GRADES ITS ORGANIZATIONAL STRUCTURE WHILE
By Esther Nyaiyaki Onchana, Snr. Assistant Editor, Strategic Planning Quality Assurance and Performance Department.
rganizations require structure to achieve stated goals. The structure of an organization determines the method by which it performs business operations. To operate efficiently and systematically, the National Council for Law Reporting has upgraded its organizational structure. An organizational structure is defined as the way that an organization arranges people and jobs so that its work can be performed and its goals can be met. An efficient company structure can benefit the organization in several ways, including making it easier to delegate responsibility and effect change throughout the organization.
October 28 2011. The implementation of the new structure is through a process implementation rationalization and upgrading of current members of the Councils staff. The Boards decision followed recommendations of the Boards Human Resources Committee, comprised of three members of the Board, namely, Prof. Otieno-Odek (Dean University of Nairobi and Chairperson of the Committee), Mrs. Flora Mutua (Ministry of State for Public Affairs), and Mr. Christopher Ombega (Inspectorate of State Corporations). The committee consulted with the management of the Council for two months. The Councils management had prior to this involved employees from all levels of One of the Councils organizational the organization to gain deeper insight objectives is to To create an organizational into how to review the organizational framework that ensures the recruitment, structure. selection, management, remuneration, development and rewarding of our The decision to upgrade the structure human resources and an organizational wa s b a s ed o n va ri o u s rea s o n s . culture that optimizes productivity and Firstly the Council did not previously efficiency, encourages innovativeness have an organization structure that and creativity and fosters positive properly defined the full or optimum inter-personal relations and social staff establishment and the reporting responsibility. relationships for the Council. Secondly, in view of the adoption of a strategic plan It is on this basis that Board of the Council by the Council in 2010 and the projected resolved to approve the implementation growth in the mandate and staffing of of a new organizational structure for the Council there was need to come up National Council for Law Reporting on with an optimal organizational structure
of the Council. Thirdly there was need to do away with ambiguity and confusion caused by unclear reporting relationships in the Council, it was recommended that clear structures be established in the organizational chart. Further there was need for a more beneficial scheme of services to be prepared for the positions of driver, receptionist, office assistants, collection agents and data processors at the Council. Under the upgraded organizational structure the total composition of members of staff is lean in order to enhance the Councils efficiency and flexibility. The organizational structure shows the hierarchical levels of NCLRs management as being the Board of Directors (the apex of the NCLR organizational structure), the Editor (at level 1), the Snr Assistant Editor and the Secretary (at level 2) and the eight departmental management offices (at level 3). The eight departmental offices were comprised of the following departments: Editorial; Laws of Kenya; Research and Development; Strategy, Quality Assurance and Performance Evaluation; Finance; Human Resources and Administration; Sales, Marketing and Customer Care.
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Strategic Planning Quality Assurance And Performance Department
NCLR ORGANIZATIONAL STRUCTURE

NCLR BOARD OF DIRECTORS KLR 1 EDITOR / CEO (1)
KLR 2
SENIOR ASST EDITOR (1)
SECRETATY (1)
KLR 3
ASST. EDITOR, EDITORIAL DEPT (1)
ASST. EDITOR, LOK DEPT (1)
ASST. EDITOR, R&D DEPT (1)
MANAGER STRATEGY & QUALITY (1)
MANAGER FINANCE DEPT (1)
MANAGER, HR & ADMIN DEPT (1)
MANAGER, ICT DEPT (1)
MANAGER, SALES MARKETING & CUSTOMER SERVICE (1)
KLR 4
Senior Law Repoter I (1)
Publishing O cer (1)
Senior Law Repoter (1)
Publishing O cer (1)
Senior Law Reporter I (1)
Librarian (1)
Corporate A airs O cer (1)
Program O cer (1)
Accounts O cer I (1)
Procurement O cer (1)
HR and Admin O cer I (1)
Systems Analyst (1)
Sales, Marketing & Customer Care O cer (1)
The Council establishes a Medical Scheme and Pension Scheme
In bid to improve the terms and conditions for its employees the Council has established a medical scheme. Since July 2006, the employees of the National Council for Law Reporting were covered under the Judiciary Medical Scheme. The Judiciary medical scheme was extended to the Council due to the Councils budgetary constraints. The scheme will give the Councils employees access to affordable and comprehensive healthcare facilities. The Council will also establish a staff pension scheme based on a defined contribution plan. In the past employees on contractual terms were only eligible to gratuity payment at the end of the contractual period. The scheme will provide the Councils employees with a retirement income arrangement at the end of their career. 18
Issue17: October - December 2011 Transforming Legal Information into Public Knowledge.
Kenya Law Reports
Bench Bulletin
Editorial Department
INSTITUTE By Andrew Halonyere, Asst. Law Reporter, Editorial Department.

if the Judiciary is to enhance its capacity in service delivery. It goes on to note that the Judiciary has now embraced the role of training and continuous professional development of judicial officers and staff seriously. In November 2011 the National Council for law reporting pursuant to an invitation by the Judicial Training Institute took part in the Training of Newly appointed Magistrates. The training was conducted at the Institute udicial training is integral to the by Esther Nyaiyaki Deputy CEO, Ann improvement of performance in the Asugah Assistant Editor and Andrew institution. In many jurisdictions, Halonyere Assistant Reporter. judiciaries have over time embraced the culture of quality service and The training brought together about efficiency in order to meet increasing twenty six magistrates from various workload and expectations of the court stations throughout the country. consumers of their services. In this The Council under the leadership of regard, the Judiciary established Esther Nyaiyaki gave a presentation the Judicial Training Institute (JTI) in on the Role of the National Council for September 2008. The mandate of the Law Reporting in the Administration of JTI is to provide induction courses and Justice. continuous professional development for judicial officers and other staff. During the training the magistrates To this end the JTI has developed were informed about the councils training modules and courses which are latest products being the 1992, 1993, structured by way of content, duration 1994, 2006(2), 2007(2), 2008 and 2009 Kenya Law Reports Volumes as well and method of delivery. as three new volumes of the Election In the Final Report of the Task Force Petition Law Reports. The magistrates on Judicial Reforms presented in July were also informed about the Grey Book by the chairman, the Hon. Mr. Justice Laws of Kenya Volume which contains William Ouko it is noted that continuous a compilation of Acts of Parliament professional development of staff is vital governing the substantive and procedural
Training of MAGISTRATES AT THE JUDICIAL TRAINING

matters commonly arising in criminal and civil litigation in Kenya, The recently published land laws of Kenya Volume which comprises of twenty six selected statutes governing land in Kenya , the commercial Laws of Kenya volumes & 2, a selection of several statutes governing commercial transactions in Kenya, the public finance laws of Kenya, a volume containing statutes that currently regulate management of public finance and finally the Family and Gender Laws of Kenya volume a compilation of legislation governing family law and property. The magistrates were also trained on how to carry out research by using the newly revamped website. The website has been redesigned to bring it up to date to the existing technology and it has incorporated social networking features such as twitter, facebook and U Tube. To enable the Council to serve them better, the Magistrates were requested to timely send their cause list and also contribute articles to be published in the Kenya Law Review Journal. The National Council for Law Reporting supported the training by donating to the magistrates some its related publications i.e the Bench Bulletin, Two editions of the Kenya Law Monthly and two CD,s of the Grey Book Laws of Kenya and the Land Laws of Kenya.
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Information Communication Technology (Ict) Department
NCLR leaps towards CYBER SECURITY

By Michael Mayaka, Team Leader, ICT Department.
to perform this infiltration, and one of them was to use binaries digitally signed with the code signing certificates of two legitimate companies. Definitions of precisely what an APT is can vary, but can be summarized by their named requirements below:[3][4][5] Advanced Operators behind the threat have a full spectrum o f i nte l l i ge n c e - gat h e r i n g techniques at their disposal. These may include computer intrusion technologies and techniques, but also extend to conventional intelligencegathering techniques such as telephone-interception technologies and satellite imaging. While individual components of the attack may not be classed as particularly advanced (e.g. malware components generated from commonly available do-ityourself malware construction kits, or the use of easily procured exploit materials), their operators can typically access and develop more advanced tools as required. They often combine multiple targeting methods, tools, and techniques in order to reach and compromise their target and maintain access to it. Operators m ay a l s o d e m o n st rate a deliberate focus on operational security that differentiates them from "less advanced" threats. Persistent Operators give priority to a specific task, rather than opportunistically seeking information for financial or other gain. This distinction implies that the attackers are guided by external entities. The targeting is conducted through continuous monitoring and interaction in order to achieve the defined objectives. It does not mean a barrage of constant attacks and malware updates. In fact, a low-and-slow approach
is usually more successful. If the operator loses access to their target they usually will reattempt access, and most often, successfully. One of the operator's goals is to maintain long-term access to the target, in contrast to threats who only need access to execute a specific task. Threat APTs are a threat b e ca u s e t h e y h ave b o t h capability and intent. APT attacks are executed by coordinated human actions, rather than by mindless and automated pieces of code. The operators have a specific objective and are skilled, motivated, organized and well funded. Well, this said and done, NCLR ICT Team has aggressively dwelt on unleashing tighter measures to secure all the internally coded systems that have been deployed. This also include systems collaboratively deployed in other Government Organisations (Kenya ICT Board, Kenya National Assembly, The Judiciary). The First and most important step has been to implement Code Signing. This is a process that uses Public Key Infrastructure (PKI) technology to create a digital signature based on a private key and the contents of a program file, and packages that signature either with the file or in an associated catalog file. Users combine the file, the certificate and its associated public key to verify the identity of the file signer and the integrity of the file. This is being achieved mainly by using a blend of tools: The JDK (Java Development Kit) which comes with a suite of command line tools. With Java, once the certificate is installed into the Java keystore, the jarsigner tool is run, specifying the JAR file to sign and the certificate to use. The signature is added to the JAR file.
ith the advent of APT (Advance Persistent Attacks), virtually all organisations are moving to a Security World. First, let us get a glimpse of what APT actually means: Advanced persistent threat (APT) usually refers to a group, such as a foreign government, with both the capability and the intent to persistently and effectively target a specific entity. The term is commonly used to refer to cyber threats, in particular that of Internet-enabled espionage, but applies equally to other threats such as that of traditional espionage or attack. [1]Other recognised attack vectors include infected media, supply chain compromise, and social engineering. Individuals, such as an individual hacker, are not usually referred to as an APT as they rarely have the resources to be both advanced and persistent even if they are intent on gaining access to, or attacking, a specific target.[2] The security world is abuzz over Stuxnet, perhaps the most sophisticated malware attack ever. It appears to have targeted certain facilities in Iran, particularly nuclear facilities, and infiltrated networks one would think to be proactively secured. Stuxnet used many new and innovative tools 20
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Information Communication Technology (Ict) Department

e-Government, the Telecommunications Service Providers Association of Kenya (TESPOK), KENIC, academia, the local ISACA chapter, information security professionals, the banking sector, the other East Africa ICT regulators and representatives from the International National Computer Incident Response Cyber Centre at George Mason University (USA). Once the PKI framework is fully Teams (CIRT) implemented in Kenya, security of NCLR systems will be further enhanced to The Secure World NCLR as part of The NCLR, represented by the Editor/ CEO, moderated a lively session on ensure accurate delivery of Public Legal the KE-CIRT Team the second day of the workshop. The Information. NCLR ICT Team took part in a recent session focused on Cybersecurity and two-day capacity-building workshop on Law (Model laws, Conventions and References: National Computer Incident Response other legal collaboration frameworks). Teams (CIRT) opened in Nairobi hosted The presenters in this session included: 1. http://www.commandfive. by CCK in collaboration with the Ministry com/apt.html: "Are you being of Information and Communications and Communications Commission of targeted by an Advanced the George Mason University, USA. Kenya Persistent Threat?". Command National Police Service, Kenya Five Pty Ltd. The workshop discussed among others Head of Group Forensics cyber risk and defense, national cyber Services, Kenya Commercial 2. http://www.commandfive. security framework, the role of national Bank com/threats.html: "The and sector CIRTs, regional collaboration, changing threat environment...". cyber security awareness and public Delivering the keynote speech on Command Five Pty Ltd. key infrastructure. Country experiences behalf of the Minister for Information in relation to cyber security efforts and Communications, Information and 3. http://www.damballa.com/ were also shared during the workshop. Communications Permanent Secretary solutions/advanced-persistentRegional participants included Rwanda, Dr. Bitange Ndemo said there was urgent threats.php: "What's an APT? Burundi, Ugand and Tanzania. need to establish a frontline defense A Brief Definition". Damballa. to reduce current vulnerabilities and January 20, 2010. Attended by various stakeholders in prevent intrusions as well as shape both government and the private sector, the future environment by enhancing 4. http://www.commandfive. the workshop drew speakers from research, development and investing in com/apt.html: "Are you being law enforcement, the Directorate of relevant advanced technologies. targeted by an Advanced Apples code signing tools are part Persistent Threat?". Command graphical tool, part command line. Five Pty Ltd. There are graphical tools for generating 5. http://www.commandfive. certificates, but the code signing utility co m / t h re at s . ht m l : " T h e is a classic UNIX-style command line changing threat environment...". tool that performs signing as well as Command Five Pty Ltd. verification of files.
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Laws Of Kenya Department
Mitigating RISKS IN LEGAL PUBLISHING

By Anne Asugah, Team Leader, Laws of Kenya Department.
all business enterprises dealing with goods and services (legal information is a service) of copyright law. In Kenya, the Copyright Act makes provision for copyright in literary, musical and artistic works, audio-visual works, sound recordings and broadcasts. It enumerates instances when copyright is considered as having been infringed and provides for remedies that a court may grant resulting from the infringement. Training on the law relating to libelous and defamatory material The torts of libel and defamation are alive and well. The Penal Code Chapter 63 of the Laws of Kenya defines libel at s. 194 as follows;
Strengthening editorial processes in any publishing institution is a must. This includes anonymising private information that would defame persons or as required by law e.g. children under the Children Act. This includes a clear understanding of editorial workflows Scope An institution may consider to publish what is within its scope either as mandated by statute or license. For instance, the National Council for Law Reporting is governed by an Act of Parliament with clear mandate to publish judicial opinions of the superior courts of record and a delegated mandate of law revision from the Attorney General. It also has a further mandated to publish any other related legal information. This would ward off any unwarranted criticism/suits by publishing material that is outside the mandate of the organization
ve r y fa c et o f b u s i n e s s o r enterprise presents its own unique challenges with regards to liability and legal complexity. The nexus between rights and duty, obligation and liability in legal publishing is even more complex. In this era of freedom of information and access to large amounts of information, the claim to proprietary rights to the information becomes dilute as more people publish modified forms of information.
Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other To manage risks related to the person, is guilty of the misdemeanour publication of legal information, a termed libel. Professional indemnity publisher in such an area may take several steps to ensure that liability is The Act has extensive provisions on An institution may consider taking out minimized. The National Council for exceptions where published material professional indemnity insurance to Law Reporting being a core institution is absolutely privileged or qualified cover liability related to publication of in the business of legal publishing is privilege and therefore not libelous. material that may give rise to causes of developing a risk management policy actions and consequently protracted to ensure that information provided Defamation on the other hand is defined legal battles which may drain the through its portal www.kenyalaw.org in the Penal Code under section 195 as: organization financially and weakening though accurate does not give rise to its standing against its competitors. liability. Below is a short description Defamatory matter is matter likely to of what business enterprises can do to injure the reputation of any person by Getting necessary authority to publish minimize risks when publishing legal exposing him to hatred, contempt or information information. ridicule, or likely to damage any person in his profession or trade by an injury An Institution ought to obtain necessary Disclaimers to his reputation; and it is immaterial permissions to publish any information, whether at the time of the publication which is otherwise not within its scope A disclaimer according to Wikipedia of the defamatory matter the person of publications. is generally any statement intended concerning whom the matter is published to specify or delimit the scope of is living or dead. Clarity of services offered by having rights and obligations that may be service charters exercised and enforced by parties in These provisions and the defenses a legally recognized relationship. Its available should be made in a handbook The reason for existence of an like a waiver. Although necessary, a for all employees of an organization organization must be succinct. Its menu disclaimer may sometimes water down dealing with publishing to familiarize of services must be crystal clear. This can the credibility of the information so themselves with in order to mitigate be drawn from the mission and vision of published. risks. Even in institutions that have legal the organization. Hand in hand, there is advisors, a small lapse may cause serious need for a deliberate strategy of having Imparting knowledge on copyright law damage. the core values of the organization There is need to train employees of Strengthening Editorial processes placed at strategic locations to remind 22
Issue17: October - December 2011 Transforming Legal Information into Public Knowledge.
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all of what values drive the organization (a) their person, home or property in rendering of its services. searched; Privacy: (b) their possessions seized; The right to privacy is guaranteed by the Constitution of Kenya at Article 31, (c) information relating to their family or private affairs which states: unnecessarily required or Every person has the right to privacy, which includes the right not to have revealed; or (emphasis mine) (d) the privacy of their communications infringed. Institutions therefore ought to respect the privacy of persons as enshrined in the Constitution to avoid violating rights of both individuals and corporate persons.
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Development of the LAW RELATING TO CRIMINAL

By Petronella Mukaindo, Asst. Law Reporter, Laws of Kenya Department
CONFESSIONS' IN KENYA & THE TEST IN CRIMINAL BEGUILEMENT

from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.5 Confession vis a vis an Admission Under Article 50(2) of the Constitution of Kenya, an accused person not only has a right to remain silent but also the right to refuse to give self-incriminating evidence.
requently regarded as the most unequivocal evidence of guilt, a confession relieves doubts in the minds of judges and jurors more than any other evidence. In criminal law, the confession evidence is considered to be the most damaging form of evidence produced at a trial and a prosecutors most potent weapon-so potent that, in the words of one legal scholar, the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained. 1 For law enforcement officials, the purpose of interrogation is twofold: to obtain a full or partial confession and to elicit information on other evidence that is relevant to a case. 2 Confession defined Blacks Law Dictionary 3 , defines a confession as A criminal suspectss oral or written acknowledgement of guilt, often including details about the crime While according to Wigmore, a confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.4 According to the Evidence Act, a confession comprises words or conduct, or a combination of words and conduct,
Furthermore, under the Criminal Procedure Code,9 chapter 75 of the laws of Kenya, some of the rights of A confession is not to be confused an accused person include the right with an admission. An admission is a not being compelled to give selfstatement, oral or documentary, which incriminating evidence. suggests any inference as to a fact in issue or relevant fact, and which is made Crossing borders to the United States, by any of the persons and in [certain] the self -incrimination clause of the circumstances. 6 Fifth amendment to the United States The essential distinction between a confession and an admission is that, while a confession represents an acknowledgement of guilt, an admission does not refer to the whole offence but to a single fact or facts each of which the prosecution would otherwise be required to prove. Simply put admissions are not conclusive proof of the matters admitted, though they may operate as estoppels.7 Privilege against self incrimination It is a common law principle that no one should be compelled to give self incriminating evidence-the maxim nemo tenetur prodere seipsum in latin. Originally, at common law, evidence obtained by whatever means including torture was admissible. In the eighteenth century, common law in England provided that coerced confessions were inadmissible. constitution provides that , "no person shall be compelled in any criminal case to be a witness against himself". In India, Article 20(3) of the Constitution guards the right to silence while in Canada, section 11(c) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has a right not to be compelled to be a witness in proceedings against him in respect of an offence. Kenyan Law relating to confessions Prior to 2003, the law provided that confessions made by a person whilst in the custody of a police officer were inadmissible unless made in the immediate presence of a magistrate or a police officer of or above the rank of an inspector.
The year 2003 saw a number of key amendments to various aspects of the criminal justice system. It is not only the year that saw corporal punishment as a No person is bound to answer any form of sentence lifted from the Penal question in civil or criminal proceedings Code, it is also the time when committal if the answer thereto would in the proceedings were done away with. opinion of the judge have a tendency to expose him to any criminal charge, Raging debate on the capability of the penalty or forfeiture which the judge police to extract confessions without regards as reasonably likely to be resulting to means which would lead to gross miscarriage of justice and grave preferred or sued for.8 human rights violations prompted
5. Evidence Act (chapter 80) Laws of Kenya, s 25. 6. See Evidence Act (chapter 80) Laws of Kenya, s 17. 7. See Evidence Act (chapter 80) Laws of Kenya, s 24. 8 Goddard L.J. in Blunt v. Park Lane Hotel [1942] 2 K.B. 9 See Criminal Procedure Code (Chapter 75) Laws of Kenya, s. 137F(1).
1. Richard P. Conti, The Psychology of False Confessions The Journal of Credibility Assessment and Witness Psychology 1999, Vol. 2, No. 1. 2.Brandon, R., & Davies, C. (1973). Wrongful imprisonment. London, England: Allen and Unwin Brothers Ltd. As quoted by Richard P. Conti ibid 3.Blacks Law Dictionary, 8th edition, p 317. 4.John H. Wigmore, Evidence in Trials at common Law at 308.
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amendments to the law. Through Criminal Law (Amendment) Act (No.5 of 2003), section 28 of the Evidence Act was repealed and a new section 25A introduced which provided as follows: A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court. However, this provision tended to disregard extra-judicial confessions made in police stations where majority of confessions took place. It was also felt that restricting confessions to the courtroom reduced the judges to investigators as well. Furthermore, the word court was not definitive. Courts were later to define the parameters of courts involvement in recording of confessions. It has been ruled that the court can only take judicial confessions (or confessions made in the due course of judicial proceedings). In the case of R vs Maalim Komora Godana & Another[2006]eKLR, the court stated as follows: where the court is authorized by law to record statements of admission from accused persons, it is inconceivable for judges or magistrates to be involved in receiving extra-judicial confessions made otherwise than in proceedings before them. The court cannot abandon its constitutional mandate of an independent and impartial arbiter to descend in an arena where that independence and impartiality may be blurred. To ask magistrates to record confessions of suspects in matters yet to be taken to Court is to ask them to be part of the police investigation team. The inevitable consequence would not only create a clear conflict of roles but also be against public policy. In the year 2007 through Statute Law (Miscellaneous Amendments) Act 10 the section 25A was amended to allow for confessions made before a judge, a magistrate or before a police officer of a specified rank. The new section partly reads as follows: A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the persons choice.[Emphasis added] section provides as follows:No confession made to a police officer shall be proved against a person accused of any offence unless such police officer is (a) of or above the rank of, or a rank equivalent to, inspector; or (b) an administrative officer holding first or second class magisterial powers and acting in the capacity of a police officer.
The same amendment also saw the introduction of a subsection 2 which There is a need to amend the section to mandated the Attorney General to harmonize with other provisions of the develop rules to govern out of court Act and the Rules. confessions. 11 Admissibility of Confessions Two years later, through legal notice number 41 of 2009, the Attorney The admissibility of confession evidence General made Evidence (Out of Court is prefaced by the requirement that Confessions) Rules, 2009, which afforded the confession be proved voluntary. various rights to accused persons. Under The confession must be given freely the rules, the recording officer (a police and knowingly without physical or officer other than the investigating psychological coercion. officer who is not below the rank of Chief Inspector of Police) is required It has long been established as a to caution the accused person. Where positive rule of English criminal law that the confession session is prolonged, no statement by an accused is admissible the session should include rest and in evidence against him unless it is relaxation periods. Rule 4 of these shown by the prosecution to have been rules enumerates several rights of the a voluntary statement in the sense that accused person including the right not it has not been obtained from him either be subjected to any form of coercion, by fear of prejudice or hope of advantage threat, torture or any other form of exercised or held out by a person in cruel, inhuman or degrading treatment, authority or by oppression. 13 the right to have legal representation, and the right not to be deprived of food, Originally, at common law, even a confession obtained by torture was water or sleep. admissible. In the eighteenth century, Where the recording officer intends to common law in England provided that record the confession of an accused coerced confessions were inadmissible. person on an electronic recording media, he is required to notify the accused Under the Kenyan Evidence Act 14 , person of such recording and of his right a confession is not admissible in a to object. Such recording must also be criminal proceedings if the making of the confession appears to the court to in the open. 12 have been caused by any inducement, threat or promise proceeding from a Conflicting provisions person in authority and sufficient to It is notable however, that sections 25A give the accused person grounds which as amended and 29 of the Evidence Act would appear to him reasonable for are antithetical to each other. The latter supposing that by making it he would
10. Act No. 7 of 2007. 11. The subsection authorized the Attorney-General to make the rules in consultation with the Law Society of Kenya and the Kenya National Commission on Human Rights. 12. see Rule 6(2). 13. Phipson on Evidence, 15th edition at p 748. 14. Evidence Act (Chapter 80), Laws of Kenya, s 26.
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gain any advantage or avoid any evil of trying the question separately from the after considering all the material points a temporal nature in reference to the main trial of whether the statement is and surrounding circumstances that the proceedings against him. made voluntary or not. confession cannot be true. While a confession has been described as the most attractive way of solving crimes, courts across the various jurisdictions across the globe have had to grapple with the menace of increased false confessions and hence the increased need for determination as to their authenticity, legitimacy and reliability. In determining the admissibility of confession evidence, the courts have considered other factors that are short of physical violence such as mental abuse in addition to physical force and threats. Courts have for instance held that prolonged questioning or wear down technique was likely to elicit false confessions. In the case of Chambers v. Florida ( 309 U.S 227 (1940)the Supreme Court ruled that prolonged questioning and other factors that fell just short of physical violence elicited concerns that the confessions given by the defendants were in danger of being false. The defendants in this case were held for a period of about a week without being able to see a lawyer and were subject to questioning on a random basis, often alone in a room with up to ten police officers. Confession incriminating a co-accused "The fact that someone else has confessed to the offence is logically relevant to the issue of whether the defendant committed it or not: this is so whether the other person is a codefendant who gives evidence, a codefendant who exercises his right not to give evidence, a co-defendant who is tried separately, or a person who is never caught or never prosecuted." 18 Is it permissible for a defendant to adduce confession evidence against a co-defendant when the prosecution has not adduced that evidence? Would admission of such third party evidence offend the hearsay rule? Put another way, in a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence nevertheless admissible at the instigation of B in support of B's defence, or does such a confession in all circumstances offend the rule against hearsay? What about Cross examination by a co-accused? In Kenya, the law provides that evidence of an accused person incriminating a coaccused may be taken into consideration as against that other person as well.19 Similarly, in the UK, the Police and Criminal Evidence Act 1984 provides for admissibility of such evidence. Section 76A(1) provides thus: In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. Cases across various jurisdictions have however tended to apply special safeguards and tests when it comes to
In the United States for instance, the case of Brown v. Mississippi 15 was a landmark decision on the issue of confessions. The Supreme Court in this case set a precedent that a state court conviction resting upon a confession extorted by brutality and violence violated the accuseds general right to due process guaranteed by the Fourteenth Amendment. The Court ruled that evidence procured through physical torture and brutality must thus be excluded from trials. An investigation into the totality of the circumstances surrounding the Three decades after the Brown case confessions was thus crucial. was the landmark case of Miranda vs Arizona16 whereby the Supreme Court Retracted confessions held that a confession obtained from a suspect in custody during police Courts have reiterated the need for interrogation, was admissible only if it caution in deciding whether to admit was made voluntarily, not coercively, evidence based on retracted confessions. and only if the police had taken the In the case of Charles Muthee Kariuki appropriate steps to ensure protection vs. R [2006] eKLR the Court upheld the of the rights of the accused under the earlier holding in Tuwamoi Vs Uganda self-incrimination clause of the Fifth (1967) E.A. 84 in which it was stated Amendment.17 thus: .... a trial court should accept any confession which has been retracted The voluntariness of a confession is to or repudiated or both retracted and be determined in a trial within a trial repudiated with caution, and must or voir dire. In the case of Hunja vs before founding a conviction on such Republic (Crim Appeal 359 of 1990), a confession be fully satisfied in all the purpose of voir dire was clearly circumstances of the case that the set out thus: There is a proper time confession is true. The same standard of at which a magistrate may look at the proof is required in all cases and usually detail provided in the statement to a court will only act on the confession if see whether it is such that it must be corroborated in some material particular truebut it is quite clear that this is not by independent evidence accepted the thing to do during a trial within a by the court. But corroboration is not trial The trial within a trial procedure necessary in law and the court may act is established for the very purpose of on a confession alone if it is fully satisfied
15 297 U.S. 278, (1936). 16 384 U.S. 436 (1966). 17 Amendment V to the United States Constitution commonly referred to as the Fifth Amendment forms part of the Bill of Rights. The invocation of this privilege is colloquially referred to as "pleading the Fifth," "taking the Fifth," or "demanding the Fifth." 18 Evidence in Criminal Proceedings: Hearsay and Related Topics, UK, Law Commission consultation paper (1995), No.138, at para. 7.44 19 See Evidence Act(Chapter 80) Laws of Kenya, s. 32 20 [1996] 2 Cr.App.R. 335
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admissibility of such evidence. In R v. Myers 20, the Court of appeal embraced an earlier decision in Reg. v. Campbell and Williams [1993] Crim. L.R. 448 and stated as follows: A defendant is therefore entitled to lead admissible evidence which is relevant to the proof of the case against the co-defendant if in so doing the defendant is advancing his own case [To say] that the proof against one defendant that he has confessed to the crime with which a codefendant is also charged is not relevant to the case of the co-defendant in the same trial, that would, in our judgment, be contrary to common sense In this case, one of three defendants ("A") had recorded a conversation which clearly implicated him and another defendant ("B") but which supported the defence of a third defendant ("C"). to cross-examine a co-defendant on a statement incriminating the defendant which the judge had ruled inadmissible as part of the prosecution case because it was not made voluntarily. In this case, the Privy Council opined, "The only limit on the right of a co-accused to crossexamine another co-accused in these circumstances is, in their Lordships' opinion, relevancy. If one co-accused has given evidence incriminating another it must be relevant for the latter to show, if he can, that the former has on some other occasion given inconsistent evidence and thus is unworthy of belief." Lord Roskill further went on to state that the judge must warn the jury that they must not use the statement in any way as evidence in support of the prosecution's case and that its only relevance is to test the credibility of the evidence which the maker of the statement has given On appeal, the then House of Lords21 , against his co-accused. dismissed the appeal, holding in part that: A confession may be relevant both as Lord Bridge in Reg. v. Blastland [1986] to credibility and as to the facts in issue A.C. 41, 53 opined that a statement and it does not cease to be admissible by a third party not called as a witness because it does so. Indeed so long as could not be admitted. Lord Bridge was it is relevant to establish his defence worried that if confessions by third or to undermine the prosecution case parties were admitted it would only be against him, a defendant should in my too easy for fabricated confessions to view be allowed to cross-examine a produce unjustified acquittals. However, co-defendant as to his confession which in Perrie v. H.M. Advocate 1992 S.L.T. 651 goes to the facts in issue rather than the Court of Session in the opinion given only to the credibility of the maker of by the Lord Justice (Ross) Clerk accepted the statement. He should not less be the view of Lord Bridge but considered allowed to cross-examine the person that an exception to the hearsay rule to whom a statement is made as to the existed for statements by an accused terms of the confession even though, person, at p. 654: since the defendant has not given "This exception is allowed because an evidence, the question of credibility accused is a party to the proceedings has not arisen. and an admission is a statement against interest, and is thus more likely to be In Reg. v. Reid [1989] Crim.L.R. 719 it true than false . . . An accused is a party was held that it was proper for one to proceedings in a way in which an co-defendant to seek to undermine incriminee is not; he is entitled to the the appellant's defence insofar as that full protection which the law gives to consisted in blaming the co-defendant. accused persons." "The problem generally arises in connection with evidence tendered by the Crown, so that marginal cases can be dealt with by the exercise of discretion. 'When in doubt, exclude,' is a good working rule in such cases. But when the evidence is tendered by a co-accused, the test of relevance must be applied, and applied strictly, for if irrelevant, and therefore inadmissible evidence is admitted, the other accused is likely to be seriously prejudiced, and grave injustice may result."[Emphasis added] The Privy Council in Lobban vs. The Queen [1995] 1 W.L.R. 877, at p. 889 stated as follows: "The principled objection to the discretion envisaged by counsel" [i.e. of the judge at the request of one defendant to exclude evidence tending to support the defence of another defendant] "is that it conflicts with a defendant's absolute right, subject to considerations of relevance, to deploy his case asserting his evidence as he thinks fit." However some jurisdictions have recently found it necessary to define the extent and weight to be attached to a co-accuseds confessions. The Supreme court of India most recently held that Confessions of a co-accused cannot be the substantive piece of evidence and can only be used to confirm the conclusion drawn from other evidences in a criminal trial. It stated as follows:
In dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession In Lui Mei Lin v. The Queen [1989] 1 In Reg. v. Bracewell (1978) 68 Cr.App.R. in order to receive assurance to the A.C. 288, a defendant was not allowed 44 Ormrod L.J. enunciated this principle: conclusion of guilt which the judicial
21. [1997] 3 W.L.R. 552
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mind is about to reach on the said other world with entrapment now being considered a complete defence in many evidence. jurisdictions so long as it passes the test The Government Beguiled Me of admissibility: Closely related to the issue of confessions is entrapment. Entrapment can be defined as the act of government agents or officials that induces a person to commit a crime he or she is not previously disposed to commit. a). the subjective test of entrapment: the suspects predisposition (INS) agents, whom he knew to be INS agents and who led him to believe they were corrupt, to smuggle illegal Chinese immigrants into the country. The agents assured him that he would not be caught and convinced him of this by noting that he would have the assistance of INS agents interested in concealing the crime. Since it is unlikely that Woo Wai would have, in the ordinary course of things, encountered corrupt government agents in position to aid in both the smuggling of immigrants and the concealing of the crime, it was ruled that there was insufficient evidence to support the claim that the defendant had the predisposition to commit the crime. b). the objective test the conduct of law enforcers In this test, the defendant will successfully claim this defence if he can show that the state agents overstepped their bounds in providing him with a temptation to commit a crime. This test lays more emphasis on the nature of the impropriety of the conduct of government officials. Some authors have however still argued that even for the objective test to be plausible, it must focus on the defendants predisposition or lack thereof as well (the subjective test). 26 The conduct should be such that it creates a risk of ensnaring someone who was not predisposed to commit the crime in question. 27 Some authors have also argued that the entrapment defence should only be granted if the temptor has offered higher than market-level inducements to commit the crime. 28 The amount of pressure, persuasion and threats employed in the particular circumstances would thus be important determinants, and it would be up to the arbiter to determine what falls within the
Courts have held that entrapment does not include situations where law enforcement officials merely provided the opportunity for someone to commit a crime if the person was someone who It is worth noting that the defence of was likely to commit the crime, with or entrapment does not apply to private without the help of law enforcement. entrapment where private persons lure fellow citizens to commit an offence. The entrapment defense will thus fail The law in such case would deem the if it can be shown that the defendant inducers as accomplices to the crime was predisposed to commit the and indeed, as principal offenders22. crime; that even in the absence of The qualifier for an action to be called the law enforcement intervention, the entrapment therefore has been the crime would nevertheless have been involvement of state officials. Therefore, committed. legally speaking private citizens cannot entrap a person. Over the years, this Distinction has been drawn between has been subject of interesting debate what is predisposition and disposition. across various jurisdictions with authors The latter has to do with ones character interrogating the rationale for the because as some authors and rulings distinction between the two. But lets have explained, a person who commits shelve the debate for another day. a certain offence because of inducement generally speaking has in his nature/ In the very first case in which a U.S. court moral character the inclination to considered and rejected the entrapment commit the offence anyway. defence in 1864, the court applied a rather interesting reasoning in reaching The subjective test has been illustrated25 its findings. A New York court in the case thus: of Board of Commissioners v. Backus23 rejected entrapment as a defense on We can think of the subjective test for the grounds that God refused to excuse entrapment, then, as offering an account Eve when she opined, The serpent of predisposition. According to the test, beguiled me, and I did eat. If the excuse a defendant is predisposed just in case, of beguilement wasnt good enough when we subtract consideration of the for God, why should it be good enough governments actions, we find that the for the court? agent still would have either performed, In offering this justification for its action, or attempted to perform, an act of the the court chose to interpret the defense sort for which he is being tried. as claiming, generally, that beguiled defendants are not guilty, a claim it took In United States v. Woo Wai (223 F. to be false. 24 412 (1915 U. S. App.), the defendant was given an opportunity by actual Jurisprudence has however developed Immigration and Naturalisation Services across many jurisdictions around the
22. See section 20 of the Penal Code (Chapter 63) Laws of Kenya, on parties to offences. 23. 29 How. Pr. 33, 42 (1864), 24. Gideon Yaffe, The Government Beguiled Me: The Entrapment Defense and the Problem of Private Entrapment.(2005) 25. Ibid. 26. See Christopher D. Moore, The Elusive Foundation of the Entrapment Defense. 89 Nw. UL. Rev. 1151 27 Gideon Yaffe, The Government Beguiled Me: The Entrapment Defense and the Problem of Private Entrapment.(2005) p.16 28. Allen, Luttrell and Kreeger, Clarifying Entrapment 89J. Crim. L. & Criminology 407 (1999).
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precincts of normal police investigatory techniques (the market-level) and what is overboard(the higher than marketlevel). In the recent Kenyan case of Mohamed Koriow Nur vs the Attorney General [2011] eKLR, the High Court termed entrapment as a type of lawlessness by law enforcement officer, a substitute for skilful and scientific investigations and a short cut which made State agents lazy and un-enterprising. The court drew the line between what were acceptable investigatory techniques for an undercover agent and what amounted to incitement of persons to commit offence and ruled that it was improper for a police officer to induce a person to commit an offence in order that an offence may be detected by the same officer. This was a misuse of state power, and an abuse of the process of the Courts. The court seemed to largely apply the objective test-that is, the conduct of the State agent rather than the defendants character or intent. Hence, the amount of pressure or persuasion applied by the law enforcement agent to the suspect will be critical in such instances. The Court stated that unless the prosecution could prove that the applicant in this case would have committed the crime anyway without the intervention of KACC officials, then such evidence could not be countenanced by a court of law. Conclusion Although the law regarding confessions in Kenya is articulated in the statute books, it needs to be well harmonized and firmed up especially the contradictory provisions of the Evidence Act earlier mentioned. Moreover, since matters of entrapment are now here with us (at least prominently, stemming from the recent High Court ruling), we may as well consider establishing a solid platform in form of statute law on which such matters will be easily put to rest as entrapment promises to form and remain an interesting facet in criminal defence in the years to come.
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By Petronella Mukaindo, Asst. Law Reporter, Laws of Kenya Department
Bench Bulletin
CONSULTATIVE WORKSHOP TO REVIEW THE LAW RELATING TO APPOINTMENTS TO BOARDS OF STATE CORPORATIONS
By Petronella Mukaindo Asst. Law Reporter, Laws of Kenya Department.
Reforming State Corporations: A REPORT OF STAKEHOLDERS'
Background
"
tate-Owned Enterprises (SOE) still represent a substantial part of Gross Domestic Product (GDP), employment and market capitalisation. Moreover, State-Owned Enterprises are often prevalent in utilities and infrastructure industries, such as energy, transport and telecommunication, whose performance is of great importance to broad segments of the population and to other parts of the business sector. Consequently, the governance of SOEs will be critical to ensure their positive contribution to a countrys overall economic efficiency and competitiveness.1 State Corporations, also known as State Owned Enterprises (SOEs) and sometimes referred to as Parastatals contribute a significant share of the economy. In Kenya, we have over a hundred and eighty state corporations straddled in virtually all sectors of the economy from energy, to health, finance, education and many other key sectors. Many countries across the globe have recognized the great role that SOEs play in a countrys economy and have taken conscious measures geared towards entrenching good corporate governance in these institutions. The balance to be struck between a State's responsibility to actively exercise its ownership functions while at the same time refraining from imposing undue political interference in the management of the company has been a perennial challenge for many democracies the world over. Central to this debate has been the thorny issue of appointments to the heads and Boards of these public institutions.
In Kenya, state corporations are primarily governed by the State Corporations Act, chapter 446 of the laws of Kenya. There is however a plethora of other statutes that establish and seek to regulate the respective state corporations. As we shall see later, this has posed a major challenge in the governance, management and regulation of state corporations in Kenya where we have parallel provisions between the legislative regimes.
the management of a state corporation.3 One of the key principles of good corporate governance of SOEs according to the Organization for Economic CoOperation and Development (OECD)4 Guidelines is that of integrity and competence:
The boards of state-owned enterprises should have the necessary authority, competencies and objectivity to carry out their function of strategic guidance The State Corporations Act defines a and monitoring of management. They state corporation as a state corporation should act with integrity and be held established under section 3 of the Act, accountable for their actions. a bank or a financial institution whose shares or stocks are wholly or majorly The Constitution and State Officers controlled/owned by the Government, a subsidiary of a state corporation and Chapter Six of the Constitution of a body corporate by or under an Act of Kenya, 2010 clearly states that authority bestowed upon a State officer is a Parliament or other written law. public trust to be exercised in a manner It is worth noting that local authorities, that among other things promotes co-operative societies, building societies, public confidence in the integrity of the the Central Bank and companies office. Some of the guiding principles incorporated under the Companies of leadership and integrity include Act which are not wholly owned or selection on the basis of personal controlled by the Government do not integrity, competence and suitability, 5 however qualify as state corporations. 2 or election in free and fair elections. Under Article 73, the authority vests Section 3 of the State Corporations Act in the State officer the responsibility to gives the President power to establish serve the people, rather than the power 6 state corporations. The section provides to rule them. thus, (1) The President may, by order, establish a state corporation as a body A r ti c l e 2 3 2 o f t h e C o n sti t u ti o n corporate to perform the functions enunciates principles and values of the public service. Among the principles is specified in the order. fair competition and merit as the basis Under the Act the Board is key as it of appointments and promotions and performs management functions for the accountability for administrative acts. corporations: In Kenya, a number of controversies A Board shall be responsible for the and board room wrangles witnessed proper management of affairs of a state in various corporations can and have corporation and shall be accountable for been attributed to Board appointments the moneys, the financial business and to those corporations. The weekly Kenya
1. OECD Guidelines on Corporate Governance of State-Owned Enterprises (OECD, 2005) p9.

2. S. 2 State Corporations Act (Chapter 446) Laws of Kenya. 3 See s.15 State Corporations Act. 4 OECD is a forum where the governments of about 30 democracies that work together to address the economic, social and environmental challenges of globalization. 4 Allen, Luttrell and Kreeger, Clarifying Entrapment 89J. Crim. L. & Criminology 407 (1999). 5 See Article 73(2) of Constitution of Kenya, 2010. 6 Article 73(1) of Constitution of Kenya,2010.
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Gazette is a number of times awash with notices of appointments and reappointments of heads and Board members to key state corporations. The criteria and processes leading to the appointments however remains a mystery to the larger populace. The committee on delegated legislation The Committee on Delegated Legislation is a parliamentary Select committee established by Standing Order 197 of the Standing Orders of the National A s s e m b l y. T h e C o m m i tt e e w a s established in the year 2007 and is charged with the mandate of ensuring that statutory instruments are laid before the House as may be provided under any written law and to scrutinize such instruments to ensure that they are consistent with parent statutes.7 The committee is currently chaired by Hon. Amina Abdalla. Early this year, the committee and other stakeholders (including NCLR) concluded a consultative workshop that saw stakeholders recommendations on scrutiny of statutory instruments culminate into a draft Statutory Instruments Bill. The Bill was published mid October 2011 8 . The Bill seeks to streamline the process in which statutory instruments are made, the publication, operation and scrutiny of statutory instruments so as to foster transparency, accountability and public participation in the process. Stakeholders workshop It is against this backdrop that the Committee convened a workshop for stakeholders to discuss and interrogate the current practices and problems in board appointments, compare the practice with other jurisdictions on Board appointments and chart the way forward in streamlining the process. The workshop was scheduled between the 3rd to the 5th November, 2011 at Hotel La Mada Nairobi. The forum brought together representatives from the State Corporations Advisory Committee (SCAC) 9 , Law Reform Commission, Law Society of Kenya, National Council for Law Reporting (NCLR), Kenya National Assembly and members of the Committee on Delegated Legislation. Members of the committee present included the Hon. Ababu Namwamba (Vice-Chairperson to the Committee), Hon. Njoroge Baiya, Hon. Kiema Kilonzo and Hon. John Mututho. NCLR was represented by Ms Petronella Mukaindo at the forum. The Hon. Ababu Namwamba welcomed participants to the forum. The aim of the workshop was threefold namely: (i) t o r e v i e w t h e S t a t u t o r y Instruments Bill, 2011; and 70s. Soon after independence, through Sessional paper number 10 of 1965, the government sought to reengineer Parastatals into vehicles for the indigenization of the economy. The years 1965 to the late 1970s, saw rapid mushrooming of State Corporations with little or no Government regulation. However, in the year 1979, a Presidential Committee chaired by Philip Ndegwa was established to review Statutory Boards and chart a reform agenda towards reforming these institutions. The findings of the Committee revealed several problems, some of which have persisted to date. These included, lack of clear guidelines on establishment of SOEs leading to functional overlaps, inefficiency, poor management due to poor selection of directors and senior staff, unclear reporting procedures for the various Parastatals that operated under one ministry, absence of a coordinating authority, appointment procedures and terms and conditions of service amongst other challenges. Some of the recommendations made by the Ndegwa committee included the establishment of various regulatory agencies; that is, the Department of Government Investments and Public Enterprises (DGIPE) and Parastatal Advisory Committee (PAC) the precursor to SCAC. T h e N d e g w a c o m m i tt e e a l s o recommended the strengthening of the role of the Inspectorate of Statutory Boards as established in 1966. 10 On Governance, the committee made several recommendations including that chairmen be non-executive and be appointed by the President, that relevant ministers be responsible for appointment of directors in consultation with the Parastatal Advisory Committee, that no person should be appointed to more than one Board and that Board members must be competent to participate effectively in the Board business. The committee further recommended that Chief Executive Officers should be appointed by the
(ii) t o review and examine the loopholes or the weakness existing in the present system of appointment of Heads and Boards of State Corporations ; and Closely related to this mandate is the exercise of power of appointments to key public institutions delegated to (iii)to Propose amendments to the State Corporations Act and to the executive (either Ministers or the the law generally in view of the President) by the various enabling Acts inherent challenges of Parliament. It was noted that in order to check the exercise of this power and enhance transparency in the process, Current state of State Corporation there was a need for a re-examination Appointments in Kenya of the current law and practice of appointments to Board members of Many of the challenges facing our state corporations today are not new and state corporations. can be traced way back to the 1960S
7 See Standing Orders of the National Assembly, Order No. 197(2).
8 Kenya Gazette Supplement No. 134, Bill No 54 9 SCAC falls under the Office of the President and is established under section 26 of the State Corporations Act. It consists of a chairman, permanent secretary to the treasury, Director of personnel management, Inspector-General (Corporations) and eight other members appointed by the President. The Committees mandate includes advising on the matters and performing any functions it is required to perform under the Act including to review and investigate the affairs of state corporations and make such recommendations to the President as it may deem necessary, to advice the President on the establishment, reorganization or dissolution of state corporations amongst other functions. 10 This is the precursor to the current Inspectorate of State Corporations.
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relevant minister in consultation with and accountable manner, with the necessary degree of professionalism and the Parastatal Advisory Committee. effectiveness. 11 Later in 1982, the Government appointed a working group to review In Kenya, little is known about the Parastatals. The review revealed that m a n a g e m e n t a n d a p p o i n t m e n t many of the causes of inefficiencies in processes that are followed in relation Parastatals could be traced directly to to public sector Boards. Little or no their relationship and responsibilities to information is provided to the public the Government. Specifically, the review on the processes that are followed to fill positions on public boardsrevealed the following: from identifying vacancies through to choosing suitable candidates. This has i. P o l i ti c a l c o n s i d e r a ti o n s left the public appointments as avenues occasionally overrode merit, for cronyism at the expense of meritsuitability and experience in the based appointments. appointment of Board members and chief executives. Since the authority of state officers is a public trust bestowed upon the officers ii. Parastatals often received by the public, 12 the constitutional instructions from various spirit of public participation calls for sources within Government, greater transparency even in the way including parent ministries, appointments are made to these offices. Inspectorate of Statutory Transparency in the appointment Boards (now Inspectorate of processes not only enhances State Corporations), Parastatal accountability and performance of those Advisory Committee (now entrusted to manage the corporations, State Corporations Advisory members of the public are likely to have Committee), and the Treasury more confidence in the system as a which hampered effective result of having information on relevant management and efficient aspects of appointment processes. operations. Both the 1979 and 1982 reviews recommended enactment of a law for regulating the management of Pa ra stata l s . I n 1 9 8 6 , t h e S tate Corporations Act was enacted for the purpose of controlling and regulating state corporations. During the stakeholders workshop, the following were highlighted as some of the key problems facing management of State Corporations today: i) Lack of Transparency and accountability The State should act as an informed and active owner and establish a clear and consistent ownership policy, ensuring that the governance of state-owned enterprises is carried out in a transparent
12 See Article 73 of the Constitution of Kenya, 2010. 13 See s 5(3) State Corporations Act.
thereby negating the power given to the Board whereas under the State Corporations Act, the chief executive is appointed by the Board. 13 iii) L a c k o f C l e a r g u i d e l i n e s o n appointments There lacks clear guidelines on the qualifications, selection and appointment processes of members to these Boards. This ambiguity has created field for possible abuses in appointments based on political considerations at the expense of merit. iv) Lack of Independence: Under the State Corporations Act , the President has power to give directions of a general or specific nature to members of the Board. This is inconsistent with the principle of independence. For instance, section 7 of the Act provides thus: The President may give directions of a general or specific nature to a Board with regard to the better exercise and performance of the functions of the state corporation and the Board shall give effect to those directions.
W h a t i s t h e p ra c ti c e i n o t h e r ii) Multiplicity of legislation regulating Jurisdictions? state corporations All public appointments should be Although the principal statute governing governed by the overriding principle of the process of appointment of Heads and selection based on merit, by the wellBoards members of State Corporations informed choice of individuals who is the State Corporations Act (Cap. through their abilities, experience and 446), there exists a multitude of other qualities match the need of the public acts of parliament, orders, regulation, body in question.14 circulars that pronounce the manner of management and the process of In other jurisdictions around the world, appointment of Heads and Boards governments have recognized the members of various State entities. This need to enhance public confidence in has created loopholes which are easily the integrity of the political processes exploited by the appointing authorities around public sector appointments. They and sometimes even brought about have established transparent processes with a high degree of independence, and complexity in reporting procedures. emphasis has been given to merit-based For instance, in some of the statutes, appointments. appointments of Chief Executive Officers are left to the responsible minister In Canada for instance, the selection
11 OECD Guidelines, 2005 at p 13
14 Office of the Commissioner for Public Appointments, (UK) Code of Practice for Ministerial Appointments in Public Bodies, August 2005, p9
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criteria for board positions and CEOs is required to be made public and opportunities are required to be published in the Canada Gazette. Additionally, there is a procedure in the Standing Orders of the House of Commons for Order in Council that appointments be tabled in the House and referred to the appropriate standing committee for review. In some Provinces for instance British Columbia, appointments to boards of public agencies go through a specialized central agency which screens all applicants according to skills-based criteria determined in advance without ministerial involvement. The UK has a comprehensive appointment process that is relatively systematic and transparent, based on a set of comprehensive principles and a code of practice for public sector appointments. These principles include: openness and transparency, proportionality, probity, merit and independent scrutiny. 15 The system requires appointments to be advertised and a shortlist to be compiled by a panel that is overseen by an independent assessor. The Commissioner for Public Appointments is required to conduct regular annual audits on appointments that are made by organizations that fall within the remit of the Commission for Public Appointments in order to assess compliance with the Code of Practice. the corporations was crucial. There is also a Cabinet Appointments and Honours Committee that is consulted on the majority of appointments to public There is need to establish and codify clear guidelines sector boards. Ministerial involvement on the establishment of state in appointments is also set out such corporations and appointment that although ministers are involved in of heads and boards of SOEs. agreeing to the appointment criteria and the processes to be followed and can nominate candidates at the Transparent processes with a high degree of independence commencement of the process, they that ensures merit-based must take no further part in the process appointments. Establishing until the decision stage. They will be well structured and transparent limited to selecting from the candidates board nomination processes in put forward by the selection panel or fully or majority owned SOEs department who meet the criteria. was crucial. In Australia, there is express provision against appointment of public servants There was also need for greater accountability in the running to state corporations Boards, except in and management of affairs of exceptional circumstances. This is also state corporations including the case in Korea, where the state has exercise of ownership by state no direct representatives on SOE boards. corporations. The way forward? N e e d f o r p a r l i a m e n t a r y p a r ti c i p a ti o n a n d / o r There was a consensus that the independent party involvement multiplicity of laws regulating in the selection and nomination state corporations hampered processes. seamless management and running of these institutions The forum proposed that a working group and that an omnibus legislation led by SCAC and a wider net of other to consolidate and harmonize stakeholders from relevant disciplines the laws that currently regulate be set up to interrogate the possible the multitude of corporations alternatives and champion the much was desirable. needed reforms in the establishment, management and regulation of SOEs. Need for a central regulatory authority to oversee/regulate
15 UK Code of Conduct
Participants keenly follow session during the stakeholders consultative workshop held between the 4th & 5th November, 2011 at Hotel La Mada, Nairobi. The workshop convened by the Parliamentary Committee on delegated legislation sought to review current law and practice in appointments to state corporation Boards in Kenya & gather recommendations on the way forward.
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Mr. Stephen Kirogo; Secretary to the State Corporations Advisory Committee; makes his presentation.
Mr. Apollo Mboya; Secretary/CEO, Law Society of Kenya making his presentation during the workshop.
Above: NCLRs Ms Petronella Mukaindo presents a policy paper at the forum.
Above: Participants keenly follow discussions during the workshop. There is a need to streamline the current legislative framework and practise surrounding governance and appointments to SOEs.
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WORKSHOP HELD ON 6TH AND 7TH OCTOBER, 2011 AT THE LEISURE LODGE HOTEL, MOMBASA
By Wambui Kamau, Legal Researcher, Laws of Kenya Department.
Report on THE EQUALITY AND NON-DISCRMINATION LAWS
The two day training was divided into two sessions: the first session tackled the domestic legislative and practical framework while the second dealt with the international framework. Equality and Non-Discrimination: The Legislative Framework I n t r o d u c ti o n o n e q u a l i t y a n d discrimination was made with specific reference to the Kenyan Constitution as the main piece of legislation. This is because several provisions of the Constitution reflect a strong commitment to the principles of equality and nondiscrimination thereby representing a significant step forward in the level of protection from discrimination in Kenya. The focus of the conference was to examine these constitutional provisions and analyse them on an international and comparative perspective.
In the European jurisdiction, courts disregard provisions of national law which are inconsistent with the European Union Law. Chapter IV of the Constitution of Kenya, 2010 provides for the spinal provisions on the Bill of Rights. In addition to this chapter, Article 10 which provides for the National Values and Principles acts as a facilitating provision in the achievement of the implementation of the Bill of Rights. Hereunder, is a discussion on how these constitutional provisions have sought to entrench the principles of nondiscrimination and equality. The following provisions of the Constitution were the main focus points on matters non-discrimination and equality. Constitutional Provisions Article 10 acts as the overriding provision when it comes to constitutional interpretation and application. This is because it binds all State organs, State Officers, Public Officers and all persons in enacting or applying or interpreting any law or making or implementing public policy decisions.
Introduction
he Kenya Human Rights Commission, Nairobi together with Equal Rights Trust (ERT) which is based in the United Kingdom organized a workshop for identified groups of people on the key principles of anti-discrimination law. The emphasis was on how to promote these principles under the Constitution of Kenya, 2010. The Conference was conducted by one Dr. Sarah Kinyanjui- the Co-ordinator of the School of Law- University of Nairobi, The main purpose of using the Mombasa and Dr. Declan ODempsey- Constitution as a case in point is because of the principle of constitutional an international expert in Equality. supremacy where a principle of The National Council for Law Reporting subservient law being in conflict with was represented by Emma Kinya- the superior law, then the superior law, Editorial Department and Wambui in this case being the Constitution, is applied and the subservient law set Kamau, Laws of Kenya department. aside.
One of the trainers, Declan ODempsey during one of the sessions, while standing from left, Wambui Kamau, Dr. Sarah Kinyajui, Emma Kinya and Declan ODempsey
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Participants listen keenly in one of the sessions conducted by Dr. Sarah Kinyajui.
These values and principles are listed as to full and equal protection and benefit including equity, social justice, equality, of the law. nondiscrimination and protection of the marginalized. The right to nondiscrimination is subsumed in the right to equality. These values act as the guiding factor H o w t h e K e n y a n C o n s ti t u ti o n in the application of any constitutional underscores the principles of equality provision. It therefore goes without and Non- discrimination saying that any provision relating to nondiscrimination and equality should factor There are several provisions that in these values and principles. the Kenyan Constitution has on the safeguarding of the right to equality Emphasis was placed on the right to and Non- discrimination. In addition to equality and thus was defined as the Article 10 discussed above, they include: right of all human beings to be equal in dignity, to be treated with respect and 1 Article 232 (1) (i): Where the consideration and to participate on an Public Service is obligedto equal basis with others in any area of afford adequate and equal economic, social, political, cultural or opportunities for appointment, civil life. training and advancement, at all levels of the public service of The Free- Standing Rights men and women, members of all ethnic groups and persons The rights to Equality and Right to Nonwith disabilities. discrimination are considered as free standing rights by the Declaration on the 2 Article 27 serves as the main Principles of Equality.1 As much these provision for equality and two rights are complementary and have freedom from discrimination. a strong and obvious correlation, the right to equality goes beyond the right It comes out quite strongly on the to nondiscrimination following issues: The right to equality is the right of all a) Duty placed on the State and human beings to be equal in dignity, to be persons not to discriminate treated with respect and consideration directly or indirectly. and to participate on an equal basis with others on any area of economic, social, b) U n l i m i t e d g r o u n d s o f political, cultural or civil life. It is based discrimination due to the use of on the fact that all human beings are the word include in sub-article equal before the law and have the right (4). This has the implication
1 Adopted in London, 2008.
to mean that the grounds of discrimination are not limited to race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. This list is open-ended. An interesting twist to the open ended list is that discrimination laws have to be certain and having an open ended list leads to a possibility of additional grounds of discrimination. The Kenyan Legislative framework is compared to the United Kingdoms Equality Act, 2010 in section 149 whereby duty is placed on public authorities where in the exercise of its functions, should have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Direct and Indirect Discrimination
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with other persons, and Discrimination must at least cover acts or omissions that have the purpose b) Which cannot be shown to be proportionate means of or effect of nullifying or impairing achieving a legitimate aim. recognition or enjoyment or exercise of various rights. The difference between direct and Discrimination may be direct or indirect. indirect discrimination is that there is no The need to protect from discrimination justification as to direct discrimination, arises from the fact that discrimination however one can justify indirect may be committed intentionally or discrimination. This justification arises unintentionally and legislation must where there is a proportionate means provide for equal protection from to achieving a legitimate aim. discrimination regardless of the ground or combination of the grounds Limitations to Article 27 concerned. Limitation may only be by law and it Direct discrimination occurs if a person, must be reasonable and justifiable in on the basis of any of the protected an open democratic society based on grounds, treats another person less human dignity, equality and freedom. favourably than he treats or would Further principles are that treat other persons whose relevant circumstances are the same or not a) Provisions limiting a right after the Constitution must materially different. To summarize this specifically express the intention definition, the following three factors to limit the right or freedom and have to be present to indicate direct the nature and extent of the discrimination: limitation and b) The limitation must not result in a) Less favourable treatment the right or freedom derogating from its core or essential b) On a particular ground content. c) Where comparators are the same Affirmative Action As for direct discrimination, the following Article 260 defines affirmative action cannot be used as defenses: to include any measure designed to overcome or ameliorate and inequality a) the lack knowledge of the or the systemic denial or infringement of discriminative ground (Simon v a right or fundamental freedom. On this, Brimham Associates (1987) ICR there are several guiding factors which 596; and include that the particular affirmative b) the absence of a discriminatory action: motive (James v Eastleigh Borough Council, UKHL) On the other hand, indirect discrimination a) should be clear, targeted and specific; occurs when a provision, criterion or practice which is applied or would be b) time bound and subject to applied equally to all persons: periodic review to assess its impact; a) Puts or would put persons to c) designed to address past whom a particular protected disadvantage and accelerate ground applies at a particular progress towards equality; disadvantage when compared d) should not disproportionately disadvantage others, and e) should be used to meet particular needs of disadvantaged groups. In Some of the constitutional provisions on affirmative action include: a) Article 27 (8) where no more then two-thirds of members of elective or appointive bodies shall be of the same gender. b) Article 100 where legislation to promote representation of marginalized groups. Protected Groups T h e C o n sti t u ti o n o ffe rs s p e c i fi c protection to particular groups, which are children, Persons with Disabilities, Youth, Minorities and marginalized groups and older members of society. In relation to engagement in economic spheres, the youth, minority and marginalized groups are to be provided for equal opportunity in opportunities for access to employment. Conclusion In a nutshell, it is important to note that equality does not necessarily include the absence of inequality but it also the following principles: a) The need to achieve equality in practice b) Positive action and balancing acts of positive discrimination c) Treating like situations alike and unlike situations unlike. d) O p e n i n g fo r r e a s o n a b l e accommodations for disabled persons.
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Legislative update: ANALYSIS OF RECENT LEGISLATION

By Wambui Kamau, Legal Researcher, Laws of Kenya Department.
A). ACTS OF PARLIAMENT INTRODUCTION
above the maximum price. The penalty for contravening these provisions is a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years or to both. THE NURSES (AMENDMENT) ACT (NO. 27 OF 2011) The Nurses Act was enacted to make provision for the training, registration, enrolment and licensing of nurses. It further regulates their conduct and to ensure their maximum participation in the health care of the community. The (Nursing Amendment) Act seeks to amend among other provisions the provision relating to the composition of the Nursing Council of Kenya by making it more comprehensive. The new members include the Director of Education, the Attorney- General, one person with a professional background in human resource management and the Chief Executive Officer of the Kenya Medical Training College. Two additional groups that will have representation in the Council will be nominations from the Kenya Progressive Nurses Association and religious organizations providing health services in Kenya. Further amendments are with regard to Council meetings to be held four times a year as opposed to six times where quorum for such meetings will be seven members, of which four members shall either be a registered midwife, a registered community health nurse, a psychiatric, one registered general nurse, one nurse nominated by the National Nurses Association of Kenya, one nurse nominated by the Kenya Progressive Nurses Association or one person with a professional background in human resource management. This Act further seeks to diversify the Committees that the Council will appoint which will include additional ones of human resources, licensing, research and examination and the standards and ethics committees. For one to engage in private practice,
egislative authority of the republic of Kenya is derived from the people and at the national level, is vested in and exercised by Parliament. This is according to Article 94 of the Constitution of Kenya 2010 which is the supreme law of the land. In exercise of this function, Parliament from mid- September, 2011 to midNovember has enacted the several laws in compliance with the 5th Schedule of the Constitution. Below is a brief summation of legislation enacted by Parliament September to midNovember 2011 PRICE CONTROL (ESSENTIAL GOODS) ACT (NO. 26 OF 2011) This Act was gazetted on the 23rd of September 2011 to provide for the regulation of the prices of essential commodities in order to secure their availability at reasonable prices. Essential commodities are those goods that may be declared from time to time by order in the Gazette to be essential for purposes of determining the maximum prices off the commodities in consultation with the industry. One precondition that the Minister will have to consider in making a declaration for essential commodities is the relevant treaty or convention. The orders as to essential goods may contain the maximum price taking into account related costs of essential commodities in any area in Kenya. The commencement dates of any orders made are on the day the order comes into operation unless another date is specified. Offences created under the Act are as follows: a) Selling any commodity declared as an essential good above the maximum price. b) Purchasing or offering to purchase any essential good 38
section 17 lays down the qualifications to be met before the issue of a private practice license. Among the qualifications include the practice as a nurse for a period of three years under supervision of a senior nurse of not less than seven years. The license issued is at the discretion of the Council as to the period of years and the renewal. There is the presumption of private practice where the nurse is entitled to receive for his or her own financial benefit, the entire amount or a share of all fees and charges from the practice or from the partnership. However, a rider to that is that one is not presumed to be in private practice where they are working for the Government or where charges and fees do not accrue to him or her. Among the offences created are those with regard to failure to register as a nurse in private practice, which attracts a fine of up to five hundred thousand shillings or to a term not exceeding one year, failure to apply for a practicing certificate or its renewal which attracts a fine not exceeding fifty thousand shillings. Part IIIA has been inserted by this Amendment law to provide for a displinary mechanism. It mainly provides for the conduct that is deemed professional misconduct by a nurse. Among the issues termed as professional misconduct include allowing any person to practice in ones name, unless such person is a holder of a practicing certificate and one is in partnership with him or employed by him, solicits clients or services by use of means which contravenes the guidelines published by the Council, failure to keep the funds of a client in a separate banking account or to use such funds for purposes not intended and such other issues as provided for in Section 18A. The Nurses (Amendment) Act, is to commence on such day as the Minister may, by notice in the Gazette, appoint which date shall not exceed ninety days from the date of publication. THE TOURISM ACT (NO. 28 OF 2011) This Act of Parliament is enacted so
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as to provide for the development, management, marketing and regulation of sustainable tourism and tourismrelated activities and services. It is yet to come into force as the commencement date has not been gazetted as of the time of going to press A quick glance at the provisions shows that the Act is divided into eleven parts. Part II deals with the National Tourism Strategy which should be published in the Gazette every five years by the Minister responsible for matters relating to Tourism. The strategy should be developed, managed, marketed and regulated in accordance with the tourism sector. Several bodies are established under Part III. The first one is the Tourism Regulatory Authority whose main objective will be to regulate the tourism sector by formulating guidelines and prescribing measures for sustainable tourism throughout the country among many other functions set out in section 7. It shall be governed by a Board whose chairperson will be appointed by the President. The Board will be tasked with the mandate of ensuring that there will be proper and effective performance of the functions of the Authority. The second body is the Kenya Utalii College which will undertake tourism and hospitality training, capacity building for the tourism sector. The College will be managed and controlled by a Council whose main function will be to manage, control and administer the assets of the College in such manner as it promotes the purpose of which the College is established. The Principal of the College is to be appointed by the Minister in consultation with the Council through a competitive process and with prior approval of the National Assembly. The Tourism Protection Service is established which will be a specialized police service under the supervision of the National Police Service and the Command of the Inspector- General of the National Police Service. The Kenya Tourism Board will be responsible for marketing Kenya as a tourist destination. The Kenyatta International Convention Centre is also established and its main function will be to promote business of meetings, conferences and exhibitions. Part IV solely deals with the establishment of Tourism Research Institute and monitoring mechanism. This is through the Tourism Research Institute whose main objective will be to undertake and co-ordinate tourism research and analysis. This Institute will be governed by a Board whose chairperson will be appointed by the President. On the monitoring mechanisms, the Board may recommend to the Minister or by his own motion, the Minister may develop monitoring mechanism and set indicators to determine sound management of tourism products and services and trends affecting Kenyas tourism sector. Financial bodies are established in Part V and they are the Tourism Fund whish shall be vested in and operated and managed by the Board of Trustees. The chairperson, to be appointed by the President, shall be a person with competence in finance matters. The object and purpose of the Fund will be to finance the development of tourism products and services. The Tourism Finance Corporation is also established and its main object and purpose will be to provide financial assistance to investors or entrepreneurs in the tourism sector, provide for investment opportunities and business advisory services in the tourism sector. The Tourism Tribunal is established in Part VI whose membership shall consist of a chairperson nominated by the Judicial Service Commission, an advocate of the High Court of Kenya appointed by the Law Society of Kenya and three other persons in the tourism and hospitality sector appointed by the Minister. The jurisdiction of the tribunal will be to appeals, complaints, conflicts, questions arising under any decision under the Act. The awards of the tribunal are damages, confirming or setting aside any decision appealed against or an order to maintain the status quo of any complaint or question brought before it. Appeals from this Tribunal lie in the High Court. Licensing, Levy and Tax Provisions are widely provided for in Part VII. On tourism activities and services such as hotel, retreat lodges, restaurants and others as specified in the Ninth Schedule to this Act one must have a license issued by the Authority. On the tourism levy, the Minister may require its payment by persons engaged in tourism activities. On Government tax incentives, the Minister may propose tax and other fiscal incentives, disincentives or fees to induce or promote the development of sustainable tourism; this is despite the provisions of any relevant revenue Act. THE VETERINARY SURGEONS AND VETERINARY PARA-PROFESSIONALS ACT (NO. 29 OF 2011) This Act was enacted so as to make provision for the training, registration and licensing of veterinary surgeons and veterinary Para-professionals. It seeks to repeal the Veterinary Surgeons Act (Cap. 366) when it commences as the commencement date is yet to be published in the Kenya Gazette. Part I of this Act mainly provides for the interpretation section which mainly deviates from the Veterinary Surgeons Act (Cap. 366) as clarification as to terms used in the veterinary field has been done. These words include animal, animal resource industry, annual license, and the difference between veterinary Para-professional, specialist and surgeon among others. The Kenya Veterinary Board which will be a body corporate is established in Part II. Its main function will be to exercise general supervision and control over the training, business, practice and employment of veterinary surgeons and Para-professionals in Kenya and advise the Government in relation to all aspects. On the supervisory role, the Board is to work with training institutions to ensure that the courses of study are sufficient to guarantee that all trained persons acquire the minimum knowledge and skill necessary for the efficient practice of veterinary surgery. The membership is drawn from a diverse criterion which will include the Principal Secretary from the Ministry responsible on matters relating to livestock and finance. There will also be the Director of Veterinary Services, the Dean of the Faculty of Veterinary Medicine of a public university in Kenya, the Chairperson of the Kenya Veterinary Association
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amongst other members. The Board may also establish standing or ad hoc committees to perform its functions as and when it deems necessary. The Provisions relating to registration and practice are set forth in Part III. This Part mainly provides for the qualifications and registration of veterinary surgeons and Para-professionals. The main difference is shown in the qualifications where a veterinary surgeon is one who holds a degree in veterinary medicine and has served an internship of not less than twelve months while a veterinary Paraprofessional is one who has successfully completed a post- secondary school training course in animal health science of two years has obtained a certificate or diploma or degree and has served internship of twelve months. A veterinary Para-professional could also be one who is qualified in animal husbandry, range management or wildlife health and has undergone a course if not less than one year in animal health and served internship of twelve months. On registration, there shall be a separate register each for veterinary surgeons, veterinary Para-professionals, temporary registration for foreign veterinary surgeons, licensed veterinary surgeons and Para-professionals; approved animal health training institutions and such other particulars as may be advised by the Board. The Financial provisions of the Act are provided in Part V and this includes the Funds of the Board which shall comprise of monies as may be appropriated by Parliament, levies from animal industry, monies accrued or that vest in the board, or monies donated or lent to the Board. In addition, the annual estimates shall be prepared by the Board at least four months before the commencement of each financial year. Part VI bears provisions on inquiries and discipline by the Board while offences and penalties are provided in the following Part. The offences include employing a non-registered veterinary surgeon or veterinary Paraprofessional, fraudulently making a false entry in the register, forging a document purporting it to be a certificate, receipt, approval, impersonating and other 40
offences stipulated therein. The penalty is a conviction to a fine not exceeding one hundred thousand shillings or imprisonment to a term not exceeding twelve months or to both. THE NATIONAL POLICE SERVICE COMMISSION ACT (NO. 30 OF 2011) This Act provides for the functions and powers of the National Police Service Commission which is established by Article 246 of the Constitution. Its main functions are provided for in Sub-article 246(3) of the Constitution which will be to recruit and appoint persons to hold or act in offices in the service, confirm appointment and determine promotions and transfers within the National Police Service. It is further mandated to observe due processes, exercise disciplinary control over and remove persons holding or acting in offices within the Service. Other duties as conferred on it by the enactment of this Act include review of all matters relating to standards or qualifications required of members of the Service, determine the appropriate remuneration and benefits of the Service with the advice of the Salaries and Remuneration Commission. It further will investigate and summon witnesses to assist in investigations, approve training curricula and oversee its implementation, hear and determine appeals from members of the Service among other functions set forth in section 10. The membership of the Commission will be nine members who shall serve on a full-time basis. The Commission shall also through an open, transparent and competitive process appoint a Secretary who shall be the Chief Executive Officer of the Commission. For the better carrying out of its functions, the Commission may also establish committees.
registration of citizens, immigration and refugees and the administration of the laws relating to marriages. Part II focuses on the Kenya Citizens and Foreign Nationals Management Service. Section 4 sets out the functions of the Service which will be responsible for the implementation of policies, laws and matters relating to citizenship and immigration, births and deaths, marriages. Also the identification and registration of persons, issuance of identification and travel documents, foreign nationals management and the creation and maintenance of a comprehensive national population register. The Service will be governed by a Board of Service which shall be chaired by a person to be appointed by the President on recommendation by the Public Service Commission. It will have its membership drawn from Principal Secretaries to the ministries of Immigration, Foreign Affairs and Internal Security. The Board will mainly be responsible for formulation and review of policies of the Service in accordance with constitutional values and principles, monitoring the performance of the Service. It will also be responsible for the training, discipline and removal of members of the staff of the Service. The day to day operations of the Service will be conducted by the Director- General who will be the Chief Executive Officer of the Service. The Service will get its funds from monies provided by parliament through the national government appropriations in aid or moneys as may be authorized to accrue in the Service. THE PROHIBITION OF FEMALE GENITAL MUTILATION ACT (NO. 32 OF 2011)
THE KENYA CITIZENS AND FOREIGN This Act prohibits the practice of female NATIONALS MANAGEMENT SERVICE genital mutilation, to safeguard against ACT (NO. 31 OF 2011) violation of a persons mental or physical integrity through its practice. This Act mainly seeks to provide for the establishment of the Kenya Citizens and For purposes of clarity, female genital Foreign Nationals Management Service mutilation is defined in section 2 as and for the creation and maintenance comprising all procedures involving of a national population register and partial or total removal of the female the administration of the laws relating genitalia or other injury to the female to births and deaths, identification and genital organs, or any harmful procedure
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to the female genitalia, for non- medical reasons. It includes clitoridectomy, excision and infibulations. However, it does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose. To fulfill the objective of the Act, the Anti- Female Genital Mutilation Board is established as a body corporate whose management will be led by a chairperson to be appointed by the President. The membership will draw from Permanent Secretaries to the Ministries responsible for gender, finance, health, education and youth affairs. There will also be a Chief Executive Officer who will be responsible for the day to day management of the Board. The functions of the Board include the designing, supervision and co-ordination of public awareness programmes against the practice, advising the Government, formulating policy on the planning, financing and co-ordination of all activities relating to female genital mutilation among other duties as stipulated in section 5. connected with the practice; f) Fails to report the commission o f t h e p ra c ti c e to a l aw enforcement officer; g) Uses derogatory or abusive language that is intended to ridicule, embarrass or harm a wo m a n fo r h avi n g n o t undergone the practice, or a man for marrying or otherwise not supporting a woman who has not undergone female genital mutilation. For this, one would be liable on conviction to imprisonment for a term not less than six months, or to a fine not less than fifty thousand shillings or to both. This provision brings into life the constitutional provision on the right to access of information, that every citizen has the right to access to information that affects him. This law provides the process of one to be nominated to a constitutional or statutory office to be quite a transparent one. It kicks off when the appointing authority notifies the relevant House of Parliament through its Clerk. Aspects of transparency are featured in this procedure as notification of nomination is deemed to have taken place after the appointing authority has notifies the Clerk in writing accompanied by information concerning the nominee. Among the issues forwarded to the appointing authority include the procedure used to arrive at the nominee and the suitability of the nominee for the appointment proposed vis- a- vis the nominees abilities, experience and qualities that meet the need of the body to which the nomination is being made. In addition, all the approval hearings are to be open and transparent with proceedings done in camera to be the exception rather than the norm. To ensure timely appointments, this law provides for the Committee to forward its approval report within 14 days from the date of notification. Failure to submit a report within this time deemed to have been approved. However, in case of rejection, then the appointing authority goes back to the drawing board and the process starts afresh. INDUSTRIAL TRAINING (AMENDMENT) ACT (NO. 34 OF 2011) The Industrial Training Act (Cap. 237) makes provision for the regulation of the training of persons engaged in the Industry Act. Thus, this Amendment Act seeks to provide for the establishment, powers, functions and the management of the National Industrial Training Authority. It further seeks to provide for the control and regulation of industrial training in Kenya. Further, section 3 was repealed and replaced by the establishment of the National Industrial Training Authority. This Authority which is a body corporate
T h e p e n a l t y f o r o ff e n c e s , o n conviction, committed under this Act is imprisonment for a term of not less than three years or a fine of not less than two hundred thousand shillings or to both. A claw back provision is that, an offence is not committed where the surgical operation is for the purposes of a persons physical or mental health, or Offences are created in Part IV. One is in connection with any stage of labour. deemed to have committed an offence PUBLIC APPOINTMENTS if he or she; (PARLIAMENTARY APPROVAL) ACT, NO. 33 OF 2011 a) Undertakes or aids, abets or procures a person to undertake This Act assented to on the 11th of a course of training while November, 2011 commenced on the under supervision by a medical 14th November 2011. It came into practitioner or midwife with force so as to provide for procedures for a view to becoming a medical parliamentary approval of constitutional practitioner or midwife who and statutory appointments. p e r fo r m s fe m a l e g e n i ta l mutilation. If in this process, In the interpretation section, for a person causes the death of purposes of clarity, the drafters were another, they on conviction shall careful to define the word appointment be liable to life imprisonment. so as to include re-appointments to the same body, whether or not in the same b) Aids, abets, counsels or procures capacity. a person to perform female genital mutilation; The main purpose of enacting this statute c) Procures a person to perform was to bring into law the procedure for genital mutilation in another Parliaments approval for constitutional country; and statutory appointments. The procedure kicks in by section d) Allows the use of any premises 4 requiring that any advertisement to perform female genital inviting applications for nomination mutilation; shall indicate that candidates nominated shall be required to appear before a e) Is found in possession of a tool committee of parliament for vetting. or equipment for a purpose
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will be responsible for industrial training, assessing and collecting industrial training levy and fees. It will also be in charge of regulating trainers, developing industrial training curricula among other functions as stipulated in section 3A. Section 4 is amended by replacing the National Industrial Training Council to be the National Industrial Training Board. The composition of the Board will be the Principal Secretaries from the ministries relating to Labour,finance science and technology. Also representatives from the Federation of Kenya Employers and the Central Organization of Trade Union will form part of the membership. Another new provision includes the provision on permission to train by an employer. This will be possible through section 7A as long as the employer obtains written permission of the Director General. Industrial attachment has also been provided for as long as the person has attained the age of eighteen years or undergoes training in a programme requiring industrial training. Section 23 of the Act was also repealed and replaced by a more comprehensive section on the appointment of Inspectors. In the new provision, Inspectors are to be appointed from the employees of the Authority by the Minister on the advice of the Board. Any inspector appointed will be issued with a certificate of appointment signed by the DirectorGeneral and surrender the certificate once they cease to be an inspector. B) A SYNOPSIS OF BILLS UNDERGOING DEBATE IN PARLIAMENT Article 109 of the Constitution provides that Parliament shall exercise its legislative power through Bill passed by parliament and assented to by the President. The same Article provides that a Bill may be introduced by any member or committee of the relevant House of Parliament. According to the Standing Orders of the National Assembly, a Bill can either be public or private. A Private Bill means a Bill, not being a bill introduced by a Minister, which is intended to affect or benefit some particular person, association or corporate body. While a public Bill means a Bill whether introduced by a Minister or other member which is 42
intended to affect the public generally 101(1), 136(2)(a), 177(1)(a) and 180(1) of the Constitution by amending the or a section of it. date to clarify and settle all controversy These Bills have been tabulated in surrounding the date for future general Parliament as from the period between elections. It proposes the date of the mid- September to mid November, 2011. next general election to be the third Monday in December and not the T H E C O N S T I T U T I O N O F K E N YA second Tuesday in August. (AMENDMENT) BILL, 2011 The effect of the amendment is to ensure This Bill was introduced with the aim that at all times not more than two thirds of giving full effect to Articles 27(8) and of members of Parliament shall be of 81(b), of the Constitution of Kenya, the same gender. The amendments will which provides that not more than also put to rest all doubts regarding the two-thirds of the members of elective date of the next general elections as well public bodies shall be of the same as the expiry of the term of the current gender. The Bill further seeks to bring Parliament. clarity and certainty to the term of the tenth Parliament while also removing BOOKS AND NEWSPAPERS any doubts as to the date of the next (AMENDMENT) BILL, 2011 general elections under the Constitution of Kenya 2010.The Bill therefore seeks The Books and Newspapers Act (Cap. to give lasting solutions to the issues 111) makes provision for the registration of gender parity and equity in elective and deposit of books and newspapers, positions and more specifically in the for the printing of books and newspapers. It further provides for the execution of National Assembly and the Senate. bonds by printers and publishers of The Bill proposes to amend the provision newspapers. on delimitation of constituencies and wards in Article 89 (9) of the The memorandum of Objects and Constitution. This is to clarify the date reasons for this Bill provides that the on which the names and details of the principal object of amending the Books delimited boundaries come into effect. and Newspapers Act (Cap. 111) is to It is proposed that the electoral units require the deposit of published works shall come into effect for purposes of in the library of Parliament as many the general election and not on the Parliaments in the world also serve as national libraries. The Bill seeks to have dissolution of Parliament. a legal deposit system at Parliament to The Bill also proposes to amend Article act as a mirror wherein all the glory of a 97 on the composition of the National nations literature is faithfully reflected Assembly by inserting a new clause (1)(ba) and clauses (1A) and (1B) to THE PYRETHRUM (AMENDMENT) BILL, provide for the realization of and 2011 implementation of Articles 27(8) and 81(b) which specifically provide that the The Pyrethrum Act (Cap. 340) provides State shall ensure that not more than for the re-organization and regulation two-thirds of the members of elective of the pyrethrum industry and the or appointive bodies shall be of the control of the growing, processing and marketing of pyrethrum for scientific and same gender. agronomic research. The Bill further proposes to amend Article 98 on the composition of the The principal object of this Bill is to Senate by inserting a new clause (1)(ba) remove the protectionist nature of the and clauses (1A) and (1B) to provide for Act by amending the Pyrethrum Act the number of special seat members by repealing section 16 which creates necessary to ensure that not more than monopoly in the pyrethrum sector two-thirds of the membership of the to allow for the liberalization of the pyrethrum market. Section 16 that is Senate are of the same gender. sought to be repealed currently provides The Bill also proposes to amend Articles that no pyrethrum grower shall deliver
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pyrethrum or pyrethrum products to any person other than the Pyrethrum Board of Kenya . In addition, this section provide sthat no person other than the Board shall, without the permission of the Board, take delivery of any pyrethrum or pyrethrum products from a pyrethrum grower or other person in possession of pyrethrum or pyrethrum products whether by import into East Africa or otherwise. Therefore this Bill seeks to repeal this section so as to avoid the monopoly of the board in the purchase and sale of pyrethrum. THE BANKING (AMENDMENT) ACT, 2011 This is a Private Members Bill thats seeks to amend the Banking Act (Cap. 488) so as to cap on the rate of interest charged by banks and financial institutions for loans or monetary advances. The Bill also proposes to fix the minimum rate of interest that banks or financial institutions must pay on deposits held in interest-earning accounts. . The proposed section 16B prohibits banks and financial institutions from charging interest at a rate exceeding four percent of the rate set by the monetary Policy Committee. Section 16C requires banks and financial institutions to pay interest on deposits at a rate of at least seventy percent of the base rate set by the Monetary Policy Committee. d) the eradication of conditions that cause and aggravate the spread cancer. Part II of the Bill deals with Administration and it establishes a body to be known as the Cancer Prevention and Control Institute, which will be a body corporate. This Body will be tasked with the mandate of ensuring that the objects of the Bill are fulfilled. It will be administered by a Board of Trustees whose membership will be drawn from Ministry relating to Health, Kenya Medical Association, registered cancer and pharmaceutical associations, registered nurses and the Attorney General among other members. The Chief Executive Officer will be appointed by the Board who will be responsible for the day to day running of the Board. public awareness about the causes, consequences, and means of prevention and control of cancer in Part V. It is tasked with the training, sensitization and awareness programmes for employees of al national government departments, private and informal sectors, community and social workers and media professionals. In furtherance to this objective the Institute in liaison with the Government is to ensure cancer prevention and control should form part of: a) the subjects taught in both public and private schools; b) h e a l t h c a r e s e r v i c e s b y healthcare providers; c) educational and information campaigns by the county governments. Consent to undertake any cancer related biomedical research is provided for in Part VI. For one to carry out this research on another person, written informed consent of the person or guardian in case of a minor is required. The person should be informed on the aims, methods, anticipated benefits and the potential hazards and discomforts of the research. Offences under this proposed law include: 1. Contravening the provisions of clause 21 which are with respect to the notification to the Institute; 2. Contravening the provisions on the discriminatory practices in Part IV; 4. Fa i l u re to co m p l y w i t h provisions as to conducting any cancer related human biomedical research in clause 34; 5. T h e s e o ff e n c e s , u p o n conviction, attracts a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding two years or to both. STATUTORY INSTRUMENTS BILL, 2011
Part III has particulars on the Cancer Registry which the Cancer Prevention and Control Institute is to keep and maintain. The Register shall contain particulars such as the institutions, associations that provide care and treatment services for persons with cancer and a notification of the frequency, type and geographical location of the cancer. This notification has to be in the prescribed form and will not disclose the name of the person with cancer unless with the consent of the person or guardian in case of a minor. The Board is given the discretion to correct the register in respect of any THE CANCER PREVENTION AND incorrect or fraudulent entry. CONTROL BILL, 2011 Discriminatory Practices are stipulated This Bill is for an Act of Parliament to in Part IV. Discrimination against persons provide for the prevention, treatment with cancer as to the workplace, schools and control of cancer. The main and access to healthcare services in objectives of the Bill as provided for in any health institution is prohibited. Elective positions in the public service clause 3 are: will not be denied against persons with cancer. Clause 26 seeks to prohibit the a) t h e p ro m o ti o n o f p u b l i c compulsion of any person to undergo awareness about the causes, cancer screening or to disclose cancer co n s e q u e n c e s , m e a n s o f status for the purpose only of gaining prevention and control of access to any credit or loan services, cancer; medical, accident or life insurance. However, sub-clause 2 allows an insurer b) the protection of the human or health maintenance organization to rights and civil liberties of devise a reasonable limit of cover for persons with cancer; which a proposer shall not be required to disclose his or her cancer status. c) the promotion of utmost safety In regard to providing access to available and universal precautions in information the Government is tasked practices, procedures that relate with the mandate of promoting to the treatment of cancer; and
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This Bill seeks to provide for a comprehensive regime for the making, scrutiny, publication and operation of statutory instruments. It defines a statutory instrument as any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued. The main objectives of the Bill are in: a) requiring regulation-making a u t h o r i ti e s to u n d e r ta ke appropriate consultation before making statutory instruments; b) requiri ng hi gh standards in the drafting of statutory instruments to promote their legal effectiveness, clarity and intelligibility to anticipated users; c) improving public access to statutory instruments; d) e s t a b l i s h i n g i m p r o v e d mechanisms for parliamentary s c r u ti n y o f s t a t u t o r y instruments; and e) e sta b l i s h i n g m e c h a n i s m s to ensure that statutor y instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed. Part II of the Bill provides for the consultations before making statutory instruments. Clause 5 specifically provides for instances where a regulation making authority has to consult. These instances are when the proposed law is likely to have a direct, or a substantial indirect effect on business or where it will restrict competition. However, consultation is unnecessary where the statutory instrument is: a) of a minor nature and that does not substantially alter existing arrangements; or b) gives effect, in terms announced in the government annual financial estimates, to a decision i) to repeal, impose or adjust a tax, fee or charge; or ii) to confer, revoke or alter an entitlement; or iii) to impose, revoke or alter an obligation; or c) is required because of an issue of national security; or d) in relation to which appropriate consultation has already been undertaken by someone other than the regulation making authority; or e) relates to the management of, or to the service of members of, the Kenya Defence Forces. Regulatory Impact Statements are provided for in Part III. They are to be prepared where the proposed statutory instrument is likely to impose significant costs on the community or part of it. On matters concerning the proposed law, the contents of the statement will include the objectives, effect, practicable means of achieving the objectives, assessment of the costs and benefits of the legislation, reasons as to why other means are not appropriate. Notification of the statement is to be published in the Gazette and in a newspaper likely to be read by those affected. Part IV seeks to facilitate the scrutiny by Parliament of statutory instruments by setting out the circumstances and manner in which the proposed law may be disallowed and the consequences of the disallowance. This is through the laying of the statutory instrument before Parliament within seven days after publication. A committee will then be established to review it to ensure that it is in harmony accord with the Constitution, the Act pursuant to which it is made, does not infringe fundamental rights and freedoms and such other conditions provided for in clause 14. In its report to Parliament after scrutiny, it shall state the overall objective of the proposed legislation and identify the manner in which it offends the community. Parliament may either annul or adopt the report. On revocation, the regulation making body is to publish the revocation within fourteen days. Part V paves way for staged automatic expiry of statutory Instruments. It specifically provides that a statutory instrument is revoked ten years after its making unless: a) it is sooner repealed or expires or b) a regulation is made exempting it from expiry. c) Its operation is extended by the responsible Cabinet Secretary in consultation with the Committee. However, only one extension is allowed. On transition and saving, this proposed law seeks to repeal sections 27 and 34 of the Interpretation and General Provisions Act (Cap. 2) which deal with the publication and commencement of subsidiary legislation and the laying of the rules and regulations before Parliament.
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2011 BILL TRACKER

By Christian Bernard Ateka, copy reader, Laws of Kenya Department.
Bill is a proposed law under consideration by Parliament. It does not become law (an Act of Parliament/statute) until it is passed through various Reading stages and finally assented to by the President. Below is the 2011 Bill Tracker that enables you to check the status of legislation in the current Parliament. This Bill Tracker is up-to-date as at 17th November, 2011 in accordance with the
Parliament's Plenary Hansard of 2011. Keep up to date with the progress of current and draft Bills before Parliament and read the full texts of enacted Acts of Parliament from our website (www. kenyalaw.org).
KNA No.
BILLS (2011)
SPONSOR
1st Reading
2nd Reading
3rd Reading
Kenya Gazette Supplement Number Supp. No. 18
The Vetting of Judges and Magistrates Bill, 2011
Minister for Justice, National Cohesion and Constitutional Affairs
02.02.11
08.02.11/ 09.02.11
16.02.11
The Judicial Service Bill, 2011
02.02.11
09.02.11/ 10.02.11/ 15.02.11
23.02.11
Supp. No. 17
The National Construction Authority Bill, 2011
Minister for Public Works
10.05.11
24.05.11/ 25.05.11
13.10.11/ 18.10.11
The Public Appointments (Parliamentary Approval) Bill, 2011
Hon. Danson Mungatana
31.03.11
19.07.11 20.07.11
13.10.11/ 18.10.11
Supp. No. 145
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KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette Supplement Number Supp. No. 29
The Supplementary Appropriation Bill, 2011
Deputy Prime Minister and Minister for Finance
13.04.11
13.04.11
13.04.11
The Independent Electoral and Bounderies Commission Bill, 2011
13.04.11
26.04.11 27.04.11 03.05.11 04.05.11 05.05.11 10.05.11 11.05.11 12.05.11 04.08.11 11.08.11/ 18.08.11
31.05.11
Supp. No. 58
The Unclaimed Financial Assets Bill, 2011
Hon. Joseph Lekuton
10.05.11
03.11.11
The Salaries and Remuneration Commission Bill, 2011
Minister for State for Public Service
13.04.11
12.05.11/ 17.05.11
31.05.11/ 20.07.11
Supp. No. 69
The Vetting of Judges Minister for and Magistrates Justice, National (Amendment) Bill, Cohesion and 2011 Constitutional Affairs
04.05.11
05.05.11
11.05.11
Supp. No. 52
10
The Supreme Court Bill, 2011
25.05.11
02.06.11
07.06.11
Supp. No. 52
11
The Independent Offices (Appointment) Bill, 2011
09.06.11
15.06.11
16.06.11
Supp. No. 57
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KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette Supplement Number
12
The Customs and Excise (Amendment) Bill, 2011
Hon. Julius Kones
27.07.11
13
The National Drug Control Authority Bill, 2011
Hon. Amina Abdalla
20.07.11
14
The Sugar (Amendment) Bill, 2011
Hon. John Mututho
20.07.11
15
The Water (Amendment) Bill, 2011
Hon. John Mbadi Ngongo
16
The Finance Bill, 2011
19.07.11
18.10.11
17
The Capital Markets Deputy Prime (Amendment) Bill, Minister and 2011 Minister for Finance
19.07.11
18.10.11
09.11.11
18
The Central Depositories (Amendment) Bill, 2011
19.07.11
18.10.11
09.11.11
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19
The Alcoholic Drinks Control
Hon. Fred Kapondi
19.07.11
20
The Public Service Superannuation Scheme Bill, 2011
Minister of State for Public Service
27.07.11
11.10.11
21
The Engineers Bill, 2011
Minister for Roads
02.08.11
12.10.11
22
The Political Parties Bill, 2011
20.07.11
02.08.11/ 03.08.11
18.08.11/ 23.08.11
Supp. No. 97
23
The Commission on Administrative of Justice Bill, 2011
20.07.11
24.08.11
25.08.11
Supp. No. 110
24
The Kenya National Human Rights Commission Bill, 2011
20.07.11
10.08.11
18.08.11
Supp. No. 100
25
The National Gender and Equality Commission Bill, 2011
20.07.11
11.08.11
17.08.11
Supp. No. 101
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26
The Labour Institutions (Amendment) Bill, 2011
Hon. John Mututho
11.08.11
27
The Public Procurement and Disposal (Amendment) Bill, 2011
Hon. Eugene Wamalwa
16.08.11
17.11.11
28
The Ratification of Treaties Bill, 2011
Hon. Millie Odhiambo Mabona
12.10.11
29
The Energy and Hon. Eng. James Communications Law Rege (Amendment) Bill, 2011
11.10.11
30
The Kenya School of Government Bill, 2011
Minister of State for Public Service
11.10.11
26.10.11 09.11.11
31
The National Police Service Bill, 2011
Minister of State for Provincial Administration and Internal Security
18.08.11
23.08.11
25.08.11
32
The National Police Service Commission Bill, 2011
18.08.11
01.09.11/ 06.09.11
07.09.11
Supp. No. 127
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33
The Independent Policing Oversight Authority Bill, 2011
18.08.11
11.10.11
18.10.11
34
The Elections Bill, 2011
23.08.11
24.08.11
25.08.11/ 26.08.11
Supp. No. 111
35
The Power of Mercy Bill, 2011
Attorney-General
23.08.11
24.08.11
25.08.11
Supp. No. 108
36
The Ethics and Anti-Corruption Commission Bill, 2011
23.08.11
23.08.11
25.08.11
Supp. No. 109
37
The Employment Minister for Labour and Labour Relations Court Bill, 2011
23.08.11
24.08.11
25.08.11
Supp. No. 106
38
The Urban Areas and Deputy Prime Cities Bill, 2011 Minister and Minister for Local Government
24.08.11
24.08.11
25.08.11
Supp. No. 99
39
The Environment and Land Court Bill, 2011
Minister for Lands
24.08.11
24.08.11
25.08.11
Supp. No. 105
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40
The Kenya Citizenship and Immigration Bill
Minister of State for Immigration and Registration of Persons
24.08.11
24.08.11
25.08.11
41
The Kenya Citizens and Foreign Nationals Management Service Bill, 2011
Minister of State for Immigration and Registration of Persons
24.08.11
25.08.11
07.09.11
Supp. No. 128
42
The Commission on Revenue Allocation Bill, 2011
25.08.11
25.08.11
26.08.11
Supp. No. 102
43
The National Government Loans Guarantee Bill, 2011
25.08.11
25.08.11
26.08.11
Supp. No. 104
44
The Contingencies Fund and County Emergency Funds Bill, 2011
25.08.11
25.08.11
26.08.11
Supp. No. 103
45
The National Payment System Bill, 2011
12.10.11
27.10.11
03.11.11
46
The Cancer Prevention and Control Bill, 2011
Hon. Robert Monda
12.10.11
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47
The Appropriation Bill, 2011
08.09.11
08.09.11
08.09.11
48
The Books and Newspapers (Amendment) Bill, 2011
Hon. Farah Maalim
12.10.11
49
The Pyrethrum (Amendment) Bill, 2011
Hon. J.N. Kioni
50
The Consumer Protection Bill, 2011
Hon. Jakoyo Midiwo
26.10.11
51
The Kenya Deposit Insurance Bill, 2011
26.10.11
52
The Constitution of Kenya (Amendment) Bill, 2011
53
The Banking (Amendment) Bill, 2011
Hon. Martin Ogindo
10.11.11
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Bench Bulletin

KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Gazetted Acts
54
The Statutory Instruments Bill, 2011
Hon. Amina Abdalla
55
The Micro and Small Hon. F.T. Nyammo Enterprises Bill, 2011
02.11.11
NB: Supp. No. denotes the Supplement Number in the Kenya Gazette of respective Bills that have been duly passed by Parliament and subsequently gazetted. However, there are several Bills that have been passed by Parliament but still awaiting Presidential assent. Consequently, such Bills have not yet been gazetted as Acts of Parliament.
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NOTICES RECENTLY PUBLISHED IN THE KENYA GAZETTE

By Yvonne Kirina, copy reader, Laws of Kenya Department.
Legislative Supplements: A DIGEST OF SELECT LEGAL
DATE OF PUBLICATION IN KENYA GAZETTE 16th September, 2011.
KENYA GAZETTE SUPPLEMENT NUMBER No. 119.
NAME OF LEGISLATION The Muranga University College Order, 2011. L.N. 129/2011.
REMARKS The President made this order that establishes the Muranga University College, a constituent college of the Jomo Kenyatta University of Agriculture and Technology. The Muranga University College, being the successor of Muranga Institute of Technology assumes all rights, liabilities and assets held by or by anybody on behalf of Muranga Institute of Technology at the commencement of this Order.
No. 119.
The Machakos University College Order. L.N. 130/2011.
The Machakos University Order is a constituent college of the Kenyatta University. The University College shall be the successor to Machakos Technical Training Institute whereby all rights, liabilities and assets held by it shall be transferred to Machakos University College on the commencement of this order. These Rules are made under the Traffic Act, Cap. 403. A Breathylser is a device, for measuring the proportion of alcohol in a persons blood from a specimen of breath provided by that person. In these rules, where a police officer in uniform has reasonable cause to suspect that a person driving or attempting to drive or who is in charge of a motor vehicle on a road or other public place; (a) has committed a traffic offence whilst the vehicle was in motion; or (b) appears to have consumed alcohol, or is likely to have alcohol in his body, the police officer may require the person to provide a
7th October, 2011.
No. 130.
The Traffic (Breathylser) Rules. L.N. 138/2011.
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DATE OF PUBLICATION IN KENYA GAZETTE KENYA GAZETTE SUPPLEMENT NUMBER NAME OF LEGISLATION REMARKS
specimen of breath for a breath test. Any person who drives or attempts to drive a motor vehicle whilst under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle is guilty of an offence and liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding eighteen months or to both. No. 130. The Traffic (Signs) (Amendment) Rules, 2011. L.N. 140/2011. The Traffic (Signs) Rules contained in the Traffic Act are amended by inserting rule 22A which seeks that all motor vehicles, whether registered in Kenya or in another country shall, when being driven in any part of Kenya be equipped with two red reflecting warning triangle signs.
28th October, 2011.
No. 131.
The Supreme Court Rules. L.N. 141/2011.
The Supreme Court Rules are made the Supreme Court Act (No. 7 of 2011). Under Article 163 (8) of the new Constitution, The Supreme Court is mandated to make rules for the exercise of its jurisdiction. Part of its jurisdiction is to manage cases, where all pleadings, affidavits, reports or documents filed in the court shall be in hard and electronic form. With regards to Petitions relating to Presidential Elections, a person may petition the court for the determination of a dispute relating to presidential elections within seven days of the declaration of results. Following Article 58(5) of the Constitution, the Supreme Court may decide on the validity of a declaration of a state of emergency and any extension of a declaration of a state of emergency.
12th October, 2011.
No. 132.
The Laws of Kenya Rectification Order. L.N. 142/2011.
Section 34(9) of the Election Act 2011 (No. 24 of 2011), is rectified by deleting the word 'not'. It should therefore read; . The party list may contain a name of any Presidential or Deputy Presidential candidate nominated for an election under this Act..
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DATE OF PUBLICATION IN KENYA GAZETTE 14th October, 2011. KENYA GAZETTE SUPPLEMENT NUMBER No. 137. NAME OF LEGISLATION The Capital Markets (Corporate Governance) (Market Intermediaries) Regulations, 2011. L.N. 144/2011. REMARKS
T h e C a p i ta l M a r ke t s ( C o r p o ra te Governance)(Market Intermediaries) Regulations seek to establish a corporate governance framework that provides strategic guidance of the market intermediary so as to promote the effective monitoring of the management and accountability of the board. Further in the Schedule, a code of Conduct is established.
18th October, 2011.
No. 139.
The Registration of Persons (Amendment) Rules. L.N. 154/2011.
These Rules amend the Registration of Persons Rules, 2011 contained in the Registration of Persons Act, by deleting rule 3 and substituting a new rule. Under the new rule, an identity card shall be sealed in a plastic envelop as illustrated in Form A or a plastic card as set out in Form B of the Act. These Rules seek to provide for the criteria for conferment of the rank of Senior Counsel to advocates. Applicants will be considered for conferment if they satisfy the following requirements, among others: (a) meet the requirements specified under section 17 (2) of the Advocates Act; (b) are active legal practitioners and undertake training of other members in the legal profession; (c) have argued at least five substantive appeals before the Supreme Court or the Court of Appeal and at least ten substantive cases before the High Court within a period of ten years preceding the persons application for conferment. However, where an applicant does not ordinarily undertake litigation, his application will still be considered if he has shown outstanding performance in a specific area of practice. Further, these Rules provide for duties and privileges of advocates conferred with the rank of Senior Counsel.
No. 139.
The Advocates (Senior Counsel Conferment and Privileges) Rules. L.N. 155/2011.
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DATE OF PUBLICATION IN KENYA GAZETTE KENYA GAZETTE SUPPLEMENT NUMBER No. 140. NAME OF LEGISLATION REMARKS
The Taita Taveta University College Order. L.N. 156/2011.
The Taita Taveta University College is the successor to the Taveta Campus of Jomo Kenyatta University of Agriculture and Technology (JKUAT). The University College automatically assumes all rights, liabilities and assets held by or behalf of the Campus at the commencement of this Order. The Political Parties Act, (No. 11 of 2011), provides for the registration, regulation and funding of Political Parties in Kenya. The Minister for Justice, National Cohesion and Constitutional Affairs appoints the 1st November, 2011, as the date on which the Act shall come into operation.
28th October, 2011.
No. 142.
The Political Parties Act (Commencement). L.N. 160/2011.
1 1 t h N o v e m b e r, 2011.
No. 143.
The Co-operative University College of Kenya Order. L.N. 161/2011.
The President made this Order that establishes the Co-operative University College of Kenya, a constituent college of the Jomo Kenyatta University of Agriculture and Technology. All rights, liabilities and assets held by or by any body on behalf of the Cooperative College of Kenya, existing at the commencement of the Order, were to be automatically and fully transferred to the University College upon the commencement of the Order.
No. 144.
The Government Financial Management (Parliamentary Mortgage Scheme Fund) (Amendment) Regulations. L.N. 162/2011.
The Government Financial Management (Parliamentary Mortgage Scheme Fund) is amended in regulation 2 by inserting new definitions thus: a) Nairobi, which means the metropolis of Nairobi as designated by the Ministry for the time being responsible for metropolitan development. b) Property, a residential house purchased under a loan from the Fund and includes the land purchased under loan from the Fund on which such house is to be developed. Further, these rules have amended regulations 5, 8, 10, 12, 13, and 18. In addition, the Schedule on the Maximum Loan Entitlements for Members of Staff
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DATE OF PUBLICATION IN KENYA GAZETTE KENYA GAZETTE SUPPLEMENT NUMBER NAME OF LEGISLATION REMARKS
of the National Assembly is amended and substituted by a new Schedule.
According to the law of nature it is only fair that no one should become richer through damages and injuries suffered by another.
Marcus Tullius Cicero
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KENYA GAZETTE FOR THE PERIOD SEPTEMBER-NOVEMBER 2011 By Wanjala Sikuta copy reader and Oscar Muriithi, Legal Intern, Laws of Kenya Department.
CONSTITUENCIES DEVELOPMENT FUND BOARD In exercise of the powers conferred by section 5 of the Constituencies Development Fund (Amendment) Act, 2007, The Minister of State for Planning, National Development and Vision 2030 appointed Under s.5 (3) (a) P.S. Ministry of State for Planning, National Development and Vision 2030 Under s.5 (3) (b) Gazette Notice No.10867 Dated 30th P.S. Office of the Deputy Prime Minister and Ministry of Finance August 2011. Under s.5 (3) (c) RURAL ELECTRIFICATION AUTHORITY Clerk of the National Assembly Under s.5 (3) (d) Attorney-General The Minister for Energy appointed Under s.5 (3) (e) Betty Chemutai Korir Jennifer Naafula Barassa (Ms.), to be a member of the Board of Directors Hillary Ntabo Nyaanga (Eng.), of the Rural Electrification Authority for Jane Nyawira Kabugi (Dr.), a period of three (3) years effective 2nd Xavier Maina Nyamu, Rosalia Shida Nyalle (Mrs.) September 2011. Major Rose Mbula Kioko, The appointment was made in exercise Ahmed Ibrahim Abass, of powers conferred by section 68 (1) (d) Under section 5 (3) (f) Odongo Mark Okeyo, of the Energy Act. John Ongenge Wamakonjio (Dr.), Gazette Notice No.10868 Dated 30th David Tito Kiprono Koross, August 2011. as members of the Board of the KENYA AGRICULTURAL RESEARCH Constituencies Development Fund effective 9th September, 2011 for a INSTITUTE period of three (3) years. The Minister for Agriculture appointed Gazette Notice No.11622 Dated 16th Suleiman Warrakah Mwamlole (Dr.), September 2011. Phillip Okinda Owuor (Dr.) NATIONAL ECONOMIC AND SOCIAL As members of the Board of Management COUNCIL of the Kenya Agricultural Research Institute for a period of three (3) years The President and Commander-in-Chief of the Kenya Defence Forces appointed effective 29th August 2011. The appointment was made in exercise Under paragraph 1 (1) (c) of powers conferred by section 15 (1) (f) Michael Chege (Prof), Edward Akongo Oyugi (Prof.), of the Science and Technology Act. Under paragraph 1 (1) (d) Gazette Notice No.11250 Dated 9th Salma Mazrui, Wilfred Murungi (Eng.), September 2011. Jacqueline Wasonga Kitulu (Dr.),
A Recap of EXECUTIVE APPOINTMENTS PUBLISHED IN THE
The Kenya Gazette is the official way of communication by the Government of Kenya. The following is a recap of notable appointments made under the Kenya Gazette from September to December 2011. A). STATE CORPORATIONS AND PARASTATALS State Corporations are by order established by the president and generally regulated by the state corporations Act (Cap. 446). The president or the minister under whose docket the particular body lies make various appointments to the various state corporations, parastatals and even commissions. State Advisor y 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. Gazette Notice No.10866 Dated 1st September 2011 LANDS SURVEYORS BOARD The Minister for Lands appointed Alfred Mwangi Gathu to be a member of the Lands Surveyors Board for a period of two (2) years effective 1st September, 2011.The appointment was made in exercise of powers conferred by section 7 (1) (c) of the Survey Act.
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Samuel Muga Kolale, Everett Maraka Standa (Prof.), Michael Albert Allan Harries Shaukat Ali Abdulrazak (Prof.), Kanyenje K. Gakombe (Dr.), Vimal Shah, Stella Kilonzo Under paragraph 1 (1) (e) Chung Kunmo (Dr.), Hiroyuki Hino (Prof.), Victor Koh (Dr.), To be members of the National Economic and Social Council, for a period of three (3) years. Gazette Notice No.11979 Dated 28th September 2011 KENYA TO UR IST D EV ELO P M ENT CORPORATION The Minister of State for Tourism in exercise of powers conferred by section 5(1) (b) of the Kenya Tourist Development Corporation Act appointed Florah Nkaduda Tejpal Bedi As board members of the Kenya Tourist Development Authority for a period of three (3) years effective 25th August 2011. Gazette Notice No.12303 Dated 28th September 2011 KENYA TOURIST BOARD The President and Commander-in-Chief of the Kenya Defence Forces appointedKitili Mbathi to be Director of New Kenya Co-operative CHEMILIL SUGAR COMPANY LIMITED Creameries for a period of three (3) years effective 17th October 2011. The President and Commander-in-chief of the Kenya Defence Forces in exercise Gazette Notice No.11934 Dated 16th of the powers conferred by section September, 2011 6(i)(a) of the State Corporations Act, appointed INSURANCE REGULATORY AUTHORITY Margaret Kwengwa Chemengich (Mrs.) Notice is given to the policyholders and To be the Chairman of the Board of the general public that the Commissioner Chemilil Sugar Company Limited, for a of Insurance appointedperiod of three (3) years effective 9th September, 2011 Eliud Muchoki Muriithi, Gazette Notice No.13778 Dated 25th as Statutory Manager of Blue Shield October 2011 I n s u ra n c e C o m p a ny L i m i te d , i n accordance with the provisions of KENYA PLANT HEALTH INSPECTORATE section 67C (2) (i) of the Insurance Act SERVICE (KEPHIS) effective 16th September, 2011. The President and Commander-in-chief Gazette Notice No. 13774 Dated 25th of the Kenya Defence Forces appointed October, 2011 Daniel M. Mukunya(Prof.) COMMUNICATIONS COMMISSION OF KENYA to be the Chairman of the Kenya Plant Health Inspectorate Service (KEPHIS) for The President and Commander-in-chief a period of three(3) years effective 23rd of the Kenya Defence Forces appointed September, 2011. The appointment of Julia Auma Ojiambo(Prof.) was revoked. Philip O. Okundi (Eng) Gazette Notice No. 13778 Dated 25th to be the Chairman of the Commission October 2011 for a period of three (3) years. KENYA PORTS AUTHORITY Gazette Notice No. 13465 Dated 21st October, 2011 The President and Commander-in-chief of the Kenya Defence Forces appointed Gazette Notice No. 13474 Dated 17th October 2011 Shukri Baramadi COAST DEVELOPMENT AUTHORITY
To be the Chairman of the Kenya Ports Authority for a period of three 3 years The Minister for Regional Development effective 31st October 2011. as Chairman of the Kenya Tourist Board Authority in exercise of the powers for a period of three (3) years. conferred by section 4(i)(i) of the Coast Gazette Notice No. 13795 Dated 23rd Development Authority Act, appointed June 2011 Gazette Notice No.12715 Dated 12th October 2011 Thomas Shedrack Duda KENYA NATIONAL HOSPITAL BOARD THE NEW KENYA CO-OPERATIVE to be a Board member of the Coast CREAMERIES Development Authority for a period of three (3) years effective 24th October, T h e M i n i s t e r fo r C o - o p e ra ti v e 2011. The appointment of Mohammed Development and Marketing in exercise Dhidha was revoked. of powers conferred by section 5(3) of the State Corporations Act appointed Gazette Notice No. 13775 Dated 25th Joseph Kiplagat Kogos October 2011 The Minister for Medical Services appointed Richard Leresian Lesiyampe to be the Director of the Kenyatta National Hospital, for a period of three (3) years effective 23rd June, 2011.
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Gazette Notice 13798 Dated 24th Committee on Devolved Government contained in Gazette Notice Nos. 12875 October 2011 and 15885 of 2010 and 1777 of 2011 for a period of two months effective 13th NATIONAL CRIME RESEARCH CENTRE September 2011. It was notified for the information of the general public that the Chairperson of C) JUDICIAL APPOINTMENTS the Governing Council of the National Gazette Notice No.13095 Dated 17th Crime Research Centre was October, 2011 Githu Muigai (Dr) The Judicial Service Commission in Attorney General, effective 27th August, exercise of the powers conferred by 2011. Gazette Notice No. 5390 of the Article 16 (2)(c) of the Constitution 21st July, 2006 was amended accordingly. appointed Gazette Notice No. 13478 Dated 26th October, 2011 The Chief Justice/President of the Supreme Court established Garissa High Court, with supervisory jurisdiction over Garissa, Mandera, Wajir, Hola, Kyuso and Mwingi Magistrates Courts effective 1st October 2011. E) FINACIAL MATTERS Gazette Notice 13799 Dated 24th October 2011
CENTRAL BANK OF KENYA Gladys Boss Shollei Gazette Notice No. 14306 Dated 2Nd to be the Chief Registrar of the Judiciary Revocation of Forex Bureau Licence November, 2011 Central Bank of Kenya revoked the effective 22th August 2011 Licence of the following Bureaus; KENYA ACCOUNTANTS AND SECRETARIES THE POWER OF MERCY ADVISORY NATIONAL EXAMINATIONS BOARD Overseas Forex Bureau Limited with COMMITTEE (KASNEB) effect from 30 th September, 2011, Gazette Notice No. 13463 Dated 25th The Deputy Prime Minister and Minister Amazon Forex Bureau Limited with effect October, 2011 for Finance appointedfrom 17th October, 2011- Gazette Notice No. 13800, The President and Commander-in-Chief Wanyama Kilundu Bitonye (Prof.) of the Kenya Defence Forces, in exercise Margaret Kobia (Prof.) of the powers conferred by Article 133(2) Alok Bureau De Change Limited with to be the Chairman and Vice Chairman of (c) of the constitution, and section effect from 17th October, 2011- Gazette the Kenya Accountants and Secretaries 9(3) of the Power of Mercy Act, 2011, Notice No. 13800, National Examinations Board(KASNEB) appointed Blue Nile Forex Bureau De Change Kenya with effect from 18th October, Florence Kajuju Gitonga B) MINISTRIES 2011-Gazette Notice No. 13800 Regina Saira Boisabi Ann Wanjiku N. Waibura MINISTRY OF REGIONAL DEVELOPMENT F) TASK FORCES Charles F. Anabaka (Rev.) Hemed Twahir (Dr.) Gazette Notice No. 13093 Dated 17th MINISTRY OF STATE FOR IMMIGRATION David Sawe (Rev. Canon) October, 2010 AND REGISTRATION OF PERSONS Mohamed Omar Ahmed The Minister for Regional Development to be members of the Advisory Gazette Notice No.11624 Dated 19th Authorities appointed September 2011 Committee on the Power of Mercy. Rashid Kassim Amin Gazette Notice No. 13477 Dated 21st Extension of the term of the Task Force on Citizenship and Related Provisions to be the Managing Director of Ewaso October, 2011 established vide Gazette Notice Ngiro North Development Authority for No.16509 of 2010 The Chief Justice/President of the a period of three (3) years effective 18th It was notified for the general information Supreme Court in exercise of powers October, 2011 conferred by section 3 of the Auctioneers of the public that the Minister of State for Immigration and Registration of Gazette Notice No.13798 Dated 24th Act, appointed Persons has for the purposes of finalizing October 2011 the rules, regulations, orders, schedules Lilian Renee Omondi (Ms.) and forms on the enacted laws on NATIONAL STEERING COMMITTEE ON citizenship reconstituted and extended to be a member of te Auctioneers Board DEVOLVED GOVERNMENT with immediate effect. Appointment of the time of the above mentioned Task Force. It was notified for the general information Solomon Wamwayi was revoked. of the public that the minister for Local The Task Force shall be headed by Mumo government had extended the period Matemu as the chairperson: of appointment of the National Steering
Transforming Legal Information into Public Knowledge. Issue17: October - December 2011
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Joint Secretaries: James Omondi Opundo Nicholas Ongeri Maronda Members: Lucy Njihia Stephen Kokonya John Kinyumu Omar Dhadho Caroline Oduor Paul Mwangemi Madara Ogot (Prof.) Mary Muthoka Joint secretaries Edith Nanini Torome Michael Mwangi Kahiti Josephine Waceke Muritu Gazette Notice No. 14093 Dated 8th November, 2011 COMMISSION ON ADMINISTRATIVE JUSTICE
The President and Commander-inMINISTRY OF INTERNAL SECURITY AND chief of the Kenya Defence Forces in ADMIN consultation with the Prime Minister, appointed Gazette Notice No. 14095 Dated 3rd Regina Gathoni Mwatha (Dr.) THE MINISTRY OF HIGHER EDUCATION, November 2011 Saadia Abdikadir Mohamed SCIENCE AND TECHNOLOGY The Task Force on the Resettlement of to be members of the Commission on Gazette Notice No.11626 Dated 14th Beneficiaries of the Chebyuk Phase III Administrative Justice. September 2011 Settlement Scheme in Mount Elgon. Gazette Notice No. 14094 Dated 8th Establishment of the Task Force on I t wa s n o ti fi e d fo r t h e ge n e ra l November, 2011 Alignment of the Higher Education, information of the public that the Science and Technology Sector with the period of appointment of the Task Force I N D E P E N D E N T E L EC TO R A L A N D Constitution. On Resettlement of beneficiaries of BOUNDARIES COMMISSION Chebyuk Phase III contained in Gazette This Task Force is accountable to the Notice No. 11420 of 2009 had been The President and Commander-inMinister for Higher Education, Science extended to 31th December 2011. chief of the Kenya Defence Forces in and Technology and will present its final Gazette Notice No. 14103 Dated 2nd consultation with the Prime Minister report on conclusion of its appointed November, 2011 appointed task on expiry of its ninety (90) days term or any other date as may be extended. D) COMMISIONS Yusuf Abdulrahman Nzibo In achieving its mandate the Task Force Mohamed Alawi Hussun will have to analyze the implications Gazette Notice No. 14091 Dated 8th Abdullahi M. Sharawe of the new constitution on university November, 2011 Lilian Bokeeye Mahiri-Zaja education as well as auditing the Thomas Letangule distribution of existing universities and I N D E P E N D E N T E L EC TO R A L A N D Joyce Muthoni Wangai university colleges. BOUNDARIES COMMISSION Albert C. O. Bwire Kule Galma Godana It will review literature on best The President and Commander-inpractices from countries with two-tier chief of the Kenya Defence Forces in to be members of the Independent governments and study all relevant consultation with the Prime Minister Electoral and Boundaries Commission. material as well as a comprehensively appointed review draft policies and structures of Ahmed Isaack Hassan NOTICE OF CANCELLATION OF LICENCES the ministry with a view to fill gaps on compliance with the constitution. to be the Chairperson of the Independent Gazette Notice No. 13802 Dated 24th Electoral and Boundaries Commission. October 2011 The Task Force will be headed by DAVID Gazette Notice No. 14092 Dated 8th SOME (PROF.) as the Chairperson November, 2011 It was notified that in exercise of the powers conferred by section 6(i) of the The Members are: COMMISSION ON ADMINISTRATIVE African Christian Marriage and Divorce Timothy M. WaemA (Prof.) JUSTICE Act, the following Ministers had their Edward Mungai (Dr.) Licences to celebrate marriages under Eric M. Aligula (Dr.) The President and Commander-in- the provisions of the said Act; Harry Kaane (Prof.) chief of the Kenya Defence Forces in Charles O. Nyangute consultation with the Prime Minister, Kenya Redeemed Church- Rev. Absalom Lucy W. Irungu (Prof.) appointed Ndungu Kevit Desai (Dr.) Meloli Kashorda (Prof.) Paul Otiende Amollo Akorino Church of God Bishop Gerald Henry Thairu (Prof.) Mwangi Macharia Francis Aduol (Prof.) to be the Chairperson of the Commission Muga K Olale (Dr.) on Administrative Justice. and Priest Joseph Gitonga Maina Alice J. Yano
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PROCESSES By Evelyn Emaase Anyokorit & Laila Mbevi, Copy editors, Laws of Kenya Department
Introduction to BOOK PUBLISHING: LAYOUT AND COPYEDITING

Those vested with this responsibility ii) Detailed editing for sense: At this stage the concern is bringing are expected to ensure that the content out the intended meaning, adheres to the publishers style or clearing out contradictions and conforms to its editorial policy. These ambiguity. Sentence structure, roles do vary depending with the nature choice of words, punctuation, of the publication. In most publishing abbreviations, comparison of industries layout and copyediting data in tables with relevant text involves spell-checking, correcting usage and captions are looked at, at of grammar, singling out style errors this level. and making corrections. Layout people sometimes rewrite copies to fit in the iii) Checking for consistency: This style standard of the publication. is typically a mechanical task which involves checking of Copyeditors need not be experts on the spellings, type of quotations, the subject of the work; however they need type of numbering, illustrations to have interest in learning to grasp what in tables and cross referencing. is happening in the manuscript. Being able to know what you are working on is equally important as providing quality iv) Presentation: This is the overall presentation of the manuscript information to the public. ready for publication. This stage typically entails confirmation of The main aim of Layout and Copyediting details. is to remove obstacles between the reader and what the author wants to convey. Though copy editors main Publishing in Legal sector interest is editorial, the job involves production considerations too. Copy In legal publishing the nature of the editors guide the book through the information calls for an intelligent, complexities of the production process, tactful and sensitive critic, someone so it is expected that they have a good who cares enough about perfection of judgment to be able to strike a balance detail to carry out the layout and the task of copyediting. While it is allowable between quality and time. Knowing the manuscript in detail and for copy editors in most publications being able to face the challenges involved such as periodicals to shorten text so is what gives the job its fascination. to improve and or fit the length limits Those with good understanding of the of the particular editorial policy, this is processes involved in their in-house not the case in legal publishing as this editorial are able to fulfill their roles will tamper with legal information. The substance of the text in the legal material effectively. is to be preserved at all costs otherwise; it would result to grave consequences. Types of copyediting Copyeditors thus have to be familiar with There are different types of copyediting legal terminology so as not to mistake it depending with the nature of the for anomalies. publication. The common types include:- In as much as publishers require grammarians for this job, in legal publishing it is necessary for one to i ) S u b s t a n ti v e e d i ti n g : I n have basic understanding of the law, for substantive editing, we look instance when dealing with amending into improving the look and terminologies like revoke, repeal, presentation of work. Content, substitute and so forth . scope, length and organization of work are the main focus. Layout and copyediting in the Laws of This process entails rewriting Kenya department and rearranging material in question. The Laws of Kenya department believes
o p u b l i s h m e a n s to m a ke information and literature available to the public. Book publishing involves the process of producing and distributing information so that the public can have access to it. The applications used for publishing include PageMaker, QuarkXPress, Adobe In Design among others. For purposes of universal access to the general public and persons with visual disability, publishers are now adopting more user friendly applications and embracing san serif fonts such as Arial and Verdana families for publications. In publishing, a number of stages are involved. While the end consumer of published material enjoys the final product, a number of processes and expertise are employed behind the scenes to achieve the desired end product. There are several steps involved in the process of book publication. The major ones include: Acquisition of material Layout and copyediting Distribution. Layout and copyediting Layout involves using a desirable publishing application to add display copy such as headlines, standardized headers and footers, photos and captions whereas copyediting entails correcting spelling, punctuation, grammar, and terminology on the already laid out copy. Layout also refers to a general look of a particular publishers in-house style.
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in perfection in every stage of work. In order to achieve this, the publishing unit within the department carries out various rigorous activities, which include extraction of statutes, copy reading of statutes at various stages, layout and copy-editing and final proofs. The department has always endeavored to keep with the changing trends both in content and technology so as to be within its objective of Revising, updating, publishing and disseminating the Laws of Kenya and hence the current changes. Publishing applications used in Laws of Kenya Department The department applies a set of well codified layout guidelines that copyeditors adhere to in the process of laying out. These guidelines reflect the in-house styles. They are however, not cast in stone and are often modified to Publishing Fonts reflect best practices in publishing. A ft e r i n t e n s i v e r e s e a r c h a n d Previously all publications were laid out consultations on universally accessible in adobe in design (a software that is fonts, the department found it necessary to adopt the san serif family fonts such best suited for publishing). as Arial (These fonts are seen as being Copy editors create a template which more universally accessible even to is designed using the in-house styles persons with print disabilities). conforming to the editorial policies, such designs include; font style, font size, Content layout body text, part heading, marginal notes, various hanging index among others. Layout of statutes is currently being For purposes of universal accessibility done in the new improved layout word of the information to the general public templates, comprising of various inand persons with visual impairments, house styles to bring out high quality the department found it necessary to materials accessible to all. comply with the universally acceptable standards of publishing. It has for Layout and copyediting are valuable instance adopted Ms Word software as skills which are key to any publishing institution. The quality of output is a new publishing application. often at times, as good as its layout and copyediting processes.
There is one kind of robber whom the law does not strike at, and who steals what is most precious to men: time.
Napoleon Bonaparte
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DISABILITY: WEB STYLES AND OTHER TEXT ACCESSIBILITY FEATURES By Stanley Mutuma, Legal Intern, Laws of Kenya Department
made to the Australian Human Rights The accessibility (W3C) guidelines Commission (previously known as the Human Rights and Equal Opportunity A web site known as the world wide consortium i.e.www.w3c.org, has been Commission, HREOC), set up and it contains the guidelines These provisions are not only displayed for web developers to follow in making in paper but have been enforced in the contents of their information and courts of law. In the Australian case material accessible to persons with visual of Bruce Lindsay Maguire v. Sydney impairment and other persons with print Organising Committee for the Olympic disability e.g. learning disability. Some Games a blind man, Mr. Bruce Maguire, of the basic guidelines would include filed a legal action in which he took the the following. Sidney Olympic organizing committee of the commonwealth games(SOCOG) a) Using the acceptable web fonts i.e. Arial, verdana and Helvetica to court for not making its web content for Mac books accessible for persons with visual impairment. Justice William Carter (Inquiry Commissioner) ruled that the b) Having a great contrast between the background and foreground, complainant on that account had been this is for easier viewing for unlawfully discriminated against in persons with low vision breach of the Disability Discrimination Act, 1992. c) Having the websites have a zoom in element in which a The court stated that the fact that the person with low vision or a applicant was blind did not in any way learning disability can magnify suggest that he should have had lower the print for easier viewing. expectation than those of a sighted person. In the courts opinion, his expectations of being able to access d) Reducing the number of images that are not necessary in a information from the respondent's web website, or having the images site were, not surprisingly, high; certainly illustrated in print format as high as that which a sighted person in which a visually impaired with his skills could expect person can be able to read and understand The court also found the respondents earlier responses to the Mr Maguires complaints to enlist the aid of a sighted e) Making the website have an accessible html link in which person to assist him was wholly persons with visual impairment inconsistent with his own expectations can click to view similar content and what he himself, unaided, had been to the one that containing able to achieve, both at university level images and other pop ups and in business, in spite of his disability. that screen readers software The commission was thus satisfied that programs cannot access. Mr Maguires limited access to the web site caused him considerable feelings of hurt, humiliation and rejection and The National Council for Law Reporting ordered the respondent to pay the has taken a bold and first move in complainant by way of compensation an endeavour to ensure that all its information and material accessible the sum of $20,000. to the public is also accessible to this Following this ruling, it is now mandatory category of persons. For instance, it in Australia to have such content follow has taken steps to ensure that all the laws of Kenya i.e. statutes are now in the laid down procedures. easy to read fonts such as Arial,, which is the most used and most recognized
Making Information ACCESSIBLE TO PERSONS WITH PRINT
Introduction As it has come to be accepted, the world of information technology is shaping and continuing to shape the dynamics of our world, as we know it. Since the onset of the world wide web/internet, growth and spread of information, knowledge has grown in leaps and bounds. This being the case, many countries, companies, institutions and individuals has taken the bold step to ensure that they are aligned with the changing times. It is now common occurrence to see that most communication is paperless, and most information about a certain organization is to be found online via their website. Therefore, it is of paramount importance to ensure that all sectors of the society are able to access this information. The case for persons with print disability is that if such information is in a particular format which is not friendly to them, then it is as though it was not there. Therefore, this brings to the fore, the issue of accessibility. Various governments are passing legislation that will compel all entities to ensure that the content that they display for public consumption is publicly accessible to all users who need it. For instance in Australia, there is the Disability Discrimination Act(DDA) of 1992 which sought to promote the rights of people with disabilities in certain areas such as housing, education and provision of goods and services. Complaints made under the DDA are
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font style and is the most considered accessible web font. NCLR, is also in the fast lane of making other documents such as those in PDF, accessible by converting them into word documents, html format or other type of PDF style that is accessible to screen reader programs. NCLR is progressively incorporating the guidelines stipulated by the World Wide Web consortium [w3c] in an effort to ensure that it does not discriminate persons with disability on the rights to equal access to information. It is our hope and believe that other institutions and entities will follow suit in this noble and worthwhile endeavour, to help make tomorrow-brighter today for persons with print disability.
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Feature Case
VETTING OF JUDICIAL OFFICERS CHALLENGE THROWN OUT Dennis Mogambi Mongare v Aorney General & 3 others [2011] eKLR Constuonal and Human Rights Division High Court at Nairobi (Milimani Law Courts) Mumbi Ngugi, D.S. Majanja & G.V. Odunga JJ November 18, 2011 By Michael M. Murungi, Advocate The Constuonal and Human Rights division of the High Court has dismissed a peon challenging the veng of Judges and Magistrates. The Court found that the Veng of Judges and Magistrates Act, 2011 (VJM Act) was sanconed by the new Constuon and its provisions did not violate the doctrines of separaon of powers and the independence of the judiciary and that it did not threaten the constuonal rights of judges and magistrates. While adming that the veng process may cause some anxiety, the Court observed that the process would help to underpin the values of accountability and integrity in the Judiciary and restore it to its respected place as the arbiter of jusce in Kenya. The peon was led by lawyer Dennis Mongare and joined by six interested pares: The Party of Independent Candidates of Kenya (PICK); The Internaonal Commission of Jurists Kenyan Chapter (ICJ-K); Law Society of Kenya (LSK); Kenyans for Peace with Truth and Jusce (KPTJ); African Centre for Open Governance (AfriCOG); and the Kenya Judges and Magistrates Associaon (KMJA). The bench of three High Court judges described the peon as raising crical quesons regarding the Judiciary and the constuonal and legislave provisions aimed at restoring public condence in [it]. The Judges recalled that in the period leading to the new constuon, Kenyas Judiciary had been cricized for its perceived failure to uphold the rule of law and therefore, the constuonal provisions on the Judiciary must be understood in the light of public percepons of the Judiciary during that period. In the Constuon of Kenya, 2010 (promulgated on August 27, 2010 aer a naonal referendum), Arcle 262 provided for the coming into eect of certain transional and consequenal provisions set out in the Sixth Schedule to the Constuon. Among these provisions was secon 23 of the Schedule, which required that within one year aer the coming into force of the Constuon, Parliament was to enact legislaon establishing mechanisms for veng the
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ion to entertain the issues raised in the petition? Mr. Paul Muite representing the JSC suitability of all judges and were magistrates who were in oce then to connue to serve in the commendations for approval and eventual appointment done before the petition Judiciary. s at June 17 2011, the appointment of the five judges had already been effected through June 16 2011 by the President of the Republic of Kenya.
Constitutional Petition. He contended that the petition was against Articles 166, 167 and ch provided specific criteria for removing the five Judges already appointed through a The peon, which was stated to led in public interest, was against the Aorney General; The t what the petitioners were attempting the removal ofConstuonal the five appointedAairs; and gazetted Minister for Jusce and the Judges and Magistrates Veng Board and the stated that the JSC could not reverse its decision and could not re-open the nomination Judicial Service Commission (the respondents). The peoner argued that by perming parliamination. As a result thement High Court had no legislaon jurisdiction infor the the matter. to enact removal of judges, the Sixth Schedule to the Constuon was
unconstuonal and that both the Schedule and certain secons of the VJM Act were null and
Later, in March 2011, the VJM Act came into force. The Act established the Judges and Magistrates Veng Board which was to carry out the veng exercise. Secons 17-23 of the Act set out procedure covering the treatment of a judge, the same could ere there was a conclusive the procedure for and the criteria to be applied in the veng exercise.
he petitioners and the interested parties positionthe thatconstuonal Article 165 of theprinciples Constitutionof separaon of powers and the independence void as they violated tion to hear and determine matter. Mr. Ongoya representing the petitioners submitof the the Judiciary. portant constitutional issues which had not been fulfilled by JSC and the President in He asked the High dealt Court to declare that the following constuonal rights of judges and magisnal mandate - that is Article 27(8) and 74 which which the issue of gender equality trates had been violated or threatened: the right to equality and freedom from discriminaon; fficers respectively.
there was an alleged misconduct on the part of a Judge or when he was unable to office arising from mental or physical incapacity or breach of code of conduct or bankWhile PICK and the KMJA submied that the Veng Board was not the proper body to undergross misconduct or misbehavior. the other hand thethe court opinedinterested that the question take the On veng exercise, other pares opposed the peon, with at least one of cess used to nominate and appoint the five Supreme Court Judges. of Therefore it had the to hear it. them challenging the jurisdicon the High Court amine the process for nomination and appointment. The court further remarked that had been sworn in, it would still have the jurisdiction toCourt entertain such an issue. The ndings of the High
human dignity; freedom and security of the person; the right to a fair administrave acon; and the rightof to a fair hearing. He165 also asked for the compensaon of all judges and magistrates likely the court held that the jurisdiction the court under Article was completely differto Constitution. be aected by the Act and for injuncon restraining the respondents from doing l under Article 168 of the It was clearVJM to the bench that thean Tribunal's anything prejudicial to the judges and magistrates pending the hearing of the peon.
The following were the ndings of the Court. erpretation of Article 27(8) of the Constitution which stressed the principle of gender? On jurisdicon: The High Court had jurisdicon to hear and determine the peon. The Consinterpreting the Bill of Rights it must promote the values that underlie an open a tuon of Kenya Arcle 165 (3)(b) vested in that Court jurisdicon to determine the queson y based on human dignity, equality and freedom. That such an interpretation should be whether a right or fundamental freedom in the Bill of Rights has been denied, violated, ustainable to give individuals the full the fundamental rightsunder and freedoms infringed ormeasure, threatened. In addion, Arcle 165(3)(d), the Court had jurisdicon to hear urt should take full cognizance of the social conditions, experiences and perception of Constuon, including the determinaon of any queson respecng the interpretaon of the enya. any queson whether any law is inconsistent with or in contravenon of the Constuon.
rther stated that the Constitution was a 23 flexible and Sixth adaptable instrument, some Was secon of the Schedule to with the Constuon in conict with the substanve proviof more the Constuon and therefore null and void? ons highly specific and sions others no than a broad outline. It took the view that the had a consistent and not contingent meaning. It did not mean one thing at one time The time. Court observed that by vong in favour of the Constuon, the people of Kenya made a ely different thing at another
sovereign decision that all the provisions of the Constuon would
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form the basis on which they would be governed. The transional provisions contained in the Sixth Schedule were as much a part of the Constuon and as much an expression of the sovereign will of the people as the main body of the Constuon. Secon 23 of the Constuon fell under the Sixth Schedule which contained the Transional Provisions of the Constuon and along with the other provisions of the Constuon, the secon came into force on August 27, 2010. It was not open to the Court to queson the sovereign will of the people and to decide that one part of their Constuon was null and void as compared to another. The authority conferred on the Court by the people of Kenya was to give eect to the whole Constuon. Did the VJM Act violate the Principle of Separaon of Powers and the Independence of the Judiciary? The Court stated that the Act was enacted pursuant to Arcle 262 and secon 23 of the Sixth Schedule to the Constuon. That secon required Parliament to enact legislaon for establishing mechanisms and procedures for veng of judges and magistrates, and it was specically stated in the secon that such legislaon was to operate despite the provisions of the Constuon providing for the independence of the Judiciary and the tenure and the manner of removal from oce for judges - Arcle 160, 167 and 168. The secon was part of the Constuon and as such, the veng procedures were a constuonally mandated derogaon from the provisions regarding the independence of the judiciary. Therefore, the principle of separaon of powers had to yield to the dictates of the Constuon. Did the VJM Act violate the Bill of Rights, parcularly the right to equality and the freedom from discriminaon? There was nothing in the VJM Act that violated the right to equality and freedom from discriminaon. Further, in so far as the veng process was constuonally ordained, it could not be subjected to the test of discriminaon. As the Court further observed, all judges and magistrates appointed prior to the coming into force of the Constuon were treated equally and had the same rights under the Act. While judges appointed under the former Constuon were required to undergo veng, judges and magistrates appointed under the new Constuon must undergo a process that complies with the dictates of Arcle 10 of the Constuon and ensures compliance of prospecve judicial ocers with the provisions of Chapter 6 of the Constuon. In fact the relevant consideraons which the Board must take into account in determining the suitability of judges and magistrates under secon 18 of the Act were the same consideraons applied by the Judicial Service Commission in considering the suitability of nominees for judgeship under secon 13 of the First Schedule to the Judicial Service Act, 2011 Did the veng process subject the judges and magistrates to inhuman and degrading treatment and was their right to inherent dignity violated?
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In the Courts words, the veng process provided in the Act, which was sanconed by the Constuon, did not even remotely approach the denion of torture, cruel, inhuman and degrading treatment or amount to a violaon of Arcle 25 of the Constuon. The right to have the inherent dignity of the judicial ocers protected and respected under the Constuon was not violated, infringed or threatened by applicaon of the Veng of Judges and Magistrates Act, 2011. The Act provided that the informaon gathered from interviews with judges or magistrates shall be condenal. The hearings were not to be conducted in public unless the judicial ocers choose to have a public hearing. Whether or not to parcipate in the veng process was a maer of elecon by the individual judge or magistrate. Furthermore, the Act preserved the right to terminal benets for those who elected not to go through the veng proceedings and those who are found unsuitable for service. Was there a threat to the right to a fair hearing and the rules of natural jusce? The Court found nothing in the Act that violated the right of judges and magistrates to a fair hearing or derogated under Arcle 50(1) of the Constuon. It was sased that the VJM Act met the threshold of what constutes a fair process. The requirements for noce and for the complaints to be communicated to the judge or magistrate, the opportunity to be heard, the rules of natural jusce - which include the right to legal representaon - were intended to safeguard the rights of the judicial ocers during the veng exercise. The Court found that neither the Act nor Secon 23 of the Sixth Schedule to the Constuon prescribed a right of appeal from the decision of the Veng Board. The removal of a judge from oce by virtue of that secon was clearly stated not to be subject to queson in, or review by any court. Since the Constuon itself clearly foreclosed on the possibility of appeal to a higher court, the Court could not imply a right of appeal. For these reasons the Court found that the peon lacked merit and it was dismissed with no order as to costs.
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Supreme Court Of Kenya

SUPREME COURT OF KENYA ADOPTS ITS FIRST CASE FROM THE COURT OF APPEAL
In The Supreme Court of Kenya At Nairobi Advisory Opinions App. No. 1 of 2011 In The Matter of Advisory Opinions of The Court Under Article 163 (6) Of The Constitution The Commission For The Implementation of The Constitution (Applicant) M.K. Ibrahim & Smokin Wanjala (SCJJ)
The Hon. Mr. Justice M.K. Ibrahim, SCJ
Reported By Ann Asugah - Advocate
The Hon. Justice (Dr.) S. Wanjala, SCJ
Schedule of the Constitution istory was made on 2nd must have regard to the other November 2011 when the provisions of the Constitution Supreme Court of the Republic regarding the appointment of Kenya gave a ruling on directions on of Constitutional Officers and whether to adopt previous proceedings if so, the extent to which the relating to an advisory application filed by nominating or appointing the Commission on the Implementation authority whose powers are of the Constitution relating to the conferred by the Sixth Schedule question of nomination of persons of Constitution is bound by for constitutional offices under the the other provisions of the new Constitution of Kenya 2010. The Constitution; proceedings had been before the Court of Appeal sitting as a Supreme Court and were adjourned indefinitely following 2. What is the nature and extent of the consultation required the establishment of the Supreme Court under the National Accord and and appointment of the Supreme Court Reconciliation Act in making Judges. At the time, the Court of Appeal nominations and appointments had established interim Supreme Court to Constitutional Offices? Rules to guide its proceedings. The ruling heralds a new dawn in the administration of justice in the country which has had the Court of Appeal as the highest court in the land since the days of East African Community when the Court of Appeal of Eastern African used to preside over appeals from the three countries. After hearing submissions from the Applicant and all interested parties, the Court of Appeal, still sitting as the Supreme Court on 5th April, 2011 gave the following directions, inter alia
submissions which would be orally highlighted at the hearing. Subsequently some proposed Interested Parties gave notice directly and through their written submissions that they would raise issues of jurisdiction of the Court in respect of the application. Most of the Interested Parties raised preliminary objections on points of law, relating to the jurisdiction of the court to hear and determine the application whether as the Court of Appeal sitting as the Supreme Court or the Supreme Court generally. However, a few of the Interested Parties supported the right of C.I.C to be heard on the merits i.e. they thought that that court in whatever capacity had the jurisdiction to hear the matter. After the resting of submissions by counsel for the applicant, various Interested parties wished to file a reply. However, due to constraints of time, they were advised to file written submissions within 14 days and the matter was fixed for mention on 5th May, 2011 for further orders. On the 5th May 2011, the court reserved its Ruling for 3rd June, 2011. The ruling was not delivered on the said date and was deferred to the 8th July, 2011. Before the delivery of the Ruling, the Judges to the Supreme Court of Kenya were appointed and gazetted on 16th June 2011. The Court of Appeal sitting as the Supreme Court then made the following order; ORDER OF THE COURT In view of the fact that there now
1. The motion shall be heard for a period of three consecutive days commencing on 11th April, 2010; On the 3rd March, 2011, the Commission fo r t h e I m p l e m e ntati o n o f t h e Constitution (C.I.C) filed a Notice of 2. Due to the urgency of the matter the motion shall be heard by Motion dated 22nd March 2011 in the way of written submissions Court of Appeal which was sitting as the which would be orally highSupreme Court under the provisions of lighted at the hearing. Section 21 (2) of the Sixth Schedule of the Constitution. The applicant, C.I.C. sought Advisory Opinions of the Court As a result of the said Directions, the Motion was fixed for hearing for three on several matters including: consecutive days, namely 11th, 12th and 13th April, 2011. Various parties 1. W h e t h e r t h e a p p o i n ti n g applied to be enjoined in the Application authority in making an and be made Interested parties. appointment under Sections Parties were given leave to file written 24(2) and 29(2) of the Sixth
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Supreme Court Of Kenya

exists the Supreme Court of Kenya and Judges thereto have been appointed and gazetted, it is doubtful whether the Court of Appeal sitting as the Supreme Court is still seized of the Jurisdiction to hear and determine this Application. In the circumstances, this application is stood over sine die. At the time of the establishment of the Supreme Court and the appointment and swearing of the Supreme Court Judges, the above motion was still pending. The Supreme Court placed the matter for mention to find out the position and views of counsel as to the way forward and to give directions accordingly. Mr. Regeru for the C.I.C. together with Mr. J. Thongori and Mr. Bryant confirmed that they had instructions to prosecute the notice of motion and that the matter was still urgent. Mr. Regeru submitted that there was nothing which stopped the Supreme Court from directing that the 5 Judge bench of the Court of Appeal, which had heard the matter to proceed to deliver their Ruling. In the alternative, he suggested that the present Supreme Court now duly established could adopt the record and proceedings and prepare and proceed to determine the issues in question, the Court ruled that it would its ruling on the matter indeed adopt the proceedings including Ms Muthoni Kimani together with Mr. all its pleadings. In making this ruling, Ambwayo for the Attorney General the Court observed that the applicant, submitted that now that the Supreme due to the urgency of the motion and the Court Rules, 2011 had been promulgated, issues which had been raised, believed there was necessity that the court and that time was of the essence and parties comply with the said Rules. She the questions which were of national proposed that the matter ought to start a importance and interest could not await fresh and that the Applicant be directed the establishment of the Supreme Court. to file fresh pleadings. She said that new It was the courts view, therefore, that issues could have arisen and there could it would be totally improper, irregular be confusion if the matter proceeded and unfair for the court to set aside all from where the previous Bench had proceedings and record and to order the applicant to file a fresh application stopped. so that they could comply with the Having considered all the submissions new Supreme Court Rules. The court by counsel for the parties, the Supreme observed that it would be prejudicial, Court first started by addressing the costly and oppressive to the applicant question of jurisdiction of the Court of and even the interested parties, who had Appeal sitting as the Supreme Court. It invested heavily in terms of expenses observed that it would not make any and precious time in reaching the stage finding on this matter since its current of proceedings that have been recorded. task was to only filter and facilitate the hearing of the application by a properly For these reasons, the Supreme Court directed that the application, together constituted five-Judge Bench. with the pleadings filed by the Applicant With regard to the question as to be adopted and admitted into the whether the Supreme Court could now Supreme Court proper and such to be adopt and/or take over the proceedings deemed as duly filed and on record.
At his best, man is the noblest of all animals; separated from law and justice he is the worst.
Aristotle
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Court Of Appeal Cases

COURTS OBLIGED TO ADMIT SINGLE WITNESS EVIDENCE OF VISUAL IDENTIFICATION WHERE NO IDENTIFICATION PARADE CONDUCTED
The Hon. Mr. Justice Waki , J.A
Thomas Morara Nyambega v Republic [2011] eKLR Criminal Appeal No. 226 of 2010 Court of Appeal at Mombasa P N Waki, J W Onyango Otieno & A Visram, JJ A October 6, 2011 Reported by Nelson K. Tunoi - Advocate proper identification of the appellant as one of the perpetrators of the subject robbery and that the alleged evidence of recent possession of the stolen foreign currency notes could not be relied upon to sustain a conviction against the appellant. During the hearing of the appeal, Mr Buti representing the appellant submitted that there was no proper identification of the appellant at the scene of crime as the only single identifying witness who purported to identify the appellant was inconsistent in his evidence, and further that there was no identification parade held for purposes of identification. Regarding evidence on recent possession, Mr Buti argued that there was no evidence that the appellant was found in possession of the stolen foreign currency notes. He urged the court to allow the appeal since the High Court had failed to discharge its duty to analyze the evidence adduced because it was evident that the alleged serialization of the foreign currency notes was done on a paper dated 27th June 2007, which was the date of the robbery. In response, Mr Ondari, the Assistant Director of Public Prosecutions submitted that the single identifying witness had an argument with the appellant for three minutes and that was enough time for identifying the appellant as the offence took place in broad day light. Further, as the appellant refused to attend an identification parade, that evidence of the single identifying witness ought to be accepted and there was no need to organize an identification parade for the appellant. He further submitted that the serialization of the stolen currencies was done before they were recovered and the appellant failed to explain how he came in possession of the stolen property. Therefore the evidence of recent possession was rightly relied upon by both the trial court and the first appellate court to establish the doctrine of recent possession, and urged the court to dismiss the appeal. The Court of Appeal observed that the High Court complied with the legal requirements enjoining it to analyse and evaluate the evidence on record and therefore discharged its duty accordingly. Regarding identification evidence, the court stated that the testimony of a single witness on identification was reliable upon exercising caution since no identification parade was conducted and the appellant had refused to attend any such parade. The court further observed that even if the identity of the appellant was not established, the evidence on record established that the appellant was found in recent possession of the stolen foreign currency note and he failed to give any reasonable explanation for that possession. The appeal was consequently dismissed.
he Court of Appeal (Waki, Onyango Otieno & Visram, JJ.A) has held that the need for identification parades to confirm witnesss evidence of visual identification cannot be whittled down at any time, save in circumstances where the courts have accepted that the appellant had refused to attend such a parade, where the courts would be obliged to accept a witnesss evidence of visual identification particularly when the conditions prevailing for such identification were clear. Thomas Morara Nyambega (appellant) was charged with seven (7) counts of robbery with violence contrary to section 296 (2) of the Penal Code and after a full trial convicted on two (2) counts and sentenced to death on the first count while the sentence on the second count was held in abeyance. Aggrieved by the convictions and sentence, the appellant filed an appeal in the High Court (Azangalala & Odero, JJ.) but the same was dismissed. In dismissing the appeal, the superior court held that the prosecution proved a watertight case against the appellant, and observed that there was evidence of positive identification of the appellant at the scene of crime and further evidence of recent possession by the appellant of the stolen foreign currency notes. The appellant subsequently filed a second appeal against his conviction and sentence on grounds that there was no
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A COURT HAS NO JURISDICTION TO EXTEND TIME TO COMPLY WITH A CONSENT ORDER.
The Hon. Mr. Justice
R.S.C Omolo, J.A
Reported by Wambui Kamau, Advocate Gateway Insurance Company Ltd. V Aries Auto Sprays [2011] eKLR (www.kenyalaw.org) Court of Appeal at Nairobi R.S.C Omolo, Githinji & Visram, JJA October 14, 2011 Reported by Nelson K. Tunoi - Advocate for trial before a different magistrate. Secondly, Gateway Insurance was to file and serve Aries Auto Sprays Limited within fourteen days, a certified copy of deposit slip for the sum deposited in HFCK in the joint account of Gateway and Aries Auto Spares. Further, in case of default, Auto Aries was to be free to enforce the judgment and that there will be leave to apply. the consent judgment provided for leave to apply which he interpreted to mean that a party can apply for the extension of time. That a consent judgment was an order of the court and a court has power to extend time limited by it. He reiterated that the application was for extension of time and not setting aside the consent judgment.
he Court of Appeal has ruled that a court which has entered a consent judgment in which time for taking certain actions or steps had been stipulated, has no jurisdiction to extend time on application by a party to the consent judgment. Where the consent order was clearly entered into freely and there was no evidence as to fraud or misrepresentation, then a court cannot interfere with a consent judgment as to time. The brief facts to the case are that in 1998, Aries Auto Spares sought to recover an amount of money from Gateway Insurance Company Limited. This amount was for services rendered and spares supplied to one Michael Mugele who was insured by Gateway Insurance Company Limited. Gateway Insurance and Michael both filed defences denying the claim and Gateway specifically pleaded that the plaint did not disclose a cause of action against it. However, during the hearing, both Gateway Insurance and Michael did not present themselves in court for hearing. This led to judgment being entered in favour of Aries Auto Spares on 9th April, 2001. This prompted Gateway Insurance to file an application to set aside the judgment. It relied on the ground that the hearing date was taken by an advocate who had no instructions and that it was not aware of the hearing date. This application was dismissed by the subordinate court. Gateway Insurance further appealed against the dismissal of the application. During the appeal, a consent order between the parties was recorded. The consent order had terms to the effect of vacating the judgment and decree issued by the subordinate court and to proceed 74
In upholding the High Court judgment, Court of Appeal Judges, Visram and Omolo concurred by stating that the consent judgment was entered into freely, and stated clearly the terms as to what was to occur in case of breach. In deciding this appeal, Justice Visram relied on the case of Hirani vs. Kassam[1952], 19 EACA 131 where Windham J. stated that, a court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties. In this case, there was no evidence as to fraud, misrepresentation or collusion and no possibility of mistake and there was no specific statute or provision of law cited to show that the consent judgment was contrary to such law, or public policy. The Court of Appeal stated that the consent order was entered into freely, and was clear in its terms. It further provided for a default clause in event of any breach, there would be enforcement of the Therefore, the issue for determination judgment. before the Court of Appeal was whether the High Court erred in its ruling that it However, on the other hand, Justice had no jurisdiction to extend the time Githinji held a contrary view. In dissenting, he was guided, by section stipulated within a consent order. 95 of the Civil Procedure Act (Cap. 21) Mr. Nyaga, the advocate for Gateway which provides Where any period is Insurance argued that the High Court fixed or granted by the court for doing of erred in concluding that the court had no any act prescribed or allowed by this Act, jurisdiction to entertain the application the court may in its discretion from time for extension of time. He argued that to time, enlarge such period even though Following the agreed terms of the consent order, Gateway failed to file and serve Auto Aries with a copy of the deposit slip within fourteen days as indicated in the consent order. This led to Gateway Insurance filing an application in the High Court seeking to enlarge the time in which it was to serve Auto Aries with the deposit slip. In support of its application, the advocate for the applicant, Gateway Insurance, stated that the deposit slip was filed two days later due to oversight. The High Court dismissed the application and held that the parties entered into the consent which was clear that in case of default, the consent would stand vacated and Aries Auto would be free to enforce the judgment. This, according to the High Court, was evident that the parties did not leave any room for the court to exercise discretion for enlargement of time.
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Board AIR 1973 Mad 250, where it was stated that, the principle that when the effect of the order granting time (in the event of non-compliance) has to operate automatically the court has no power to extend time as it becomes functus officio, will apply when the suit is finally disposed of. If the order is not final and the court retains control over He was of the opinion that a court it and seized of the matter, it will have has jurisdiction and discretion under power to extend time the Civil Procedure Rules or under the inherent jurisdiction to extend time so Justice Githinji stated that a consent or long as it retains control over the case or compromise reached by parties is, when proceedings. In addition, Justice Githinji recorded and signed by the court merged stated that a court has jurisdiction to or subsumed in the judgment or order extend time as long as it has not finally of the court and it becomes a judgment and conclusively determined the matter. of order of the court. Consequently, He relied on the holding of an Indian case, the time stipulated in such a consent Periasami Asari Vs Illuppur Penchayat order or judgment becomes the time the period originally fixed, or granted may have expired. Section 59 of the Interpretation and General Provisions Act (Cap. 2) further supports this view by indicating that where the court is given power by a written law to extend time prescribed by such written law, the court has power to extend such time. fixed or granted by the court and the court would generally have discretion to enlarge such time in furtherance of the ends of justice. He relied on the words of Justice Ringera (as he then was) in the case of June Jebet Moi Vs Fuel Oil Company Limited and two others- HCCC No. 305 of 2000 where the court has power on plain wording of Order 49 rule 5 to extend such time. And even if such power were not conferred by the rule, it would be within the courts inherent power for purposes of securing the rights of justice to extend such time if reasonable cause were shown. The Court of Appeal dismissed the appeal with costs to the respondent.
An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.
Martin Luther King, Jr.
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EVIDENCE OBTAINED THROUGH ENTRAPMENT BY STATE AGENTS IS ILLEGAL AND THUS INADMISSIBLE IN A CRIMINAL CASE
Mohamed Koriow Nur v The Attorney General [2011] eKLR (www.kenyalaw.org) Petition No. 181 of 2010 High Court, at Nairobi M.Warsame J. September 30, 2011 Reported by Christian Bernard Ateka - Advocate
...entrapment is a complete defence and it does not matter that the evidence against the person is overwhelming or that his guilt was undisputed. The court must refuse to convict an entrapped person not because his conduct falls outside the proscription of the statute but because even if his guilt is admitted, the methods and manner employed on behalf of the State to bring about the evidence cannot be countenanced.
to make a favourable investigation report about the acquisition of the land in question so that the land could not be repossessed from him. In return for such a report he promised to do anything that he would be asked for. Through a concealed recording, the KACC agent engaged Mr. Nur in a mock bribe-bargaining that led them to settle on a bribe of 1 million shillings payable in two installments of Kshs.500,000/= each. It was further agreed that the first installment would be paid the he High Court has ruled that following day. evidence sought to be relied upon by the State and obtained On 15th March, 2007 together with five through the process of entrapment is other officers, Mr. Buchianga proceeded inadmissible. In making this ruling, Justice to an agreed venue with a view to arrest Warsame observed that the criminal Mr. Nur if he bribed him as he had justice system would be compromised promised the previous day. Mr. Nur should the State be allowed to prosecute arrived at the scene and allegedly gave a and punish someone for committing a brown A4 size envelope which contained crime which he only committed because Kshs.500,000/=. He was promptly he had been instigated into committing arrested and charged with three offences it by a State agent. relating to the contravention of the AntiCorruption and Economic Crimes Act, The facts of this petition are that around No. 3 of 2003. mid March 2007, one Jeremiah Kaluma Buchianga, an investigator at the Kenya It is against these criminal charges Anti-Corruption Commission (KACC) that Mr. Nur petitioned the High Court and therefore a State agent, had been to declare, among others, that the assigned to investigate an alleged evidence sought to be relied upon by grabbing of a piece of land LR. NO. the Attorney General in the Criminal 209/16441 by Mr. Mohamed Koriow Case was obtained by or through the Nur, who is the petitioner herein. Mr. process of entrapment and is therefore Buchianga proceeded to arrange a inadmissible. meeting with Mr. Nur on 14th March, 2007 and he equipped himself with It was contended by the petitioner that a tape recorder to assist him in his the said KACC agent, having informed him investigation. that he was carrying out an investigation with respect to the land in question, he In the course of the meeting, it was had insisted that the petitioner must alleged that Mr. Nur asked Mr. Buchianga meet him, otherwise he would write an
investigation report in such a manner as to implicate the petitioner in the alleged fraud and in acquisition of the land. As a result, the petitioner met with Mr. Buchianga who turned the conversation in the direction of performance and reward by asking the petitioner what he was willing to do for him should he write a favourable report. Mr. Macharia, the advocate for the petitioner submitted that the conduct of Mr. Buchianga as set out in the recorded conversation was clearly unjustified, illegal and amounted to a clear case of entrapment. This contention was based on the fact that at the time of engaging in the conversation, Mr. Nur was not under any investigation by KACC with regard to the offence of corruption or any other offence and therefore had no reason to bribe or offer any inducement to anyone. Further, Mr. Macharia submitted that from the conversation, the KACC agent repeatedly invited Mr. Nur to do something he did not intend to do by commencing the request for a bribe and as a result, he planted an intention to commit a crime in the mind of Mr. Nur where such intention did not exist before. On the other hand, Mr. Mule, the State counsel, contented that Mr. Nur had indeed bribed Mr. Buchianga and therefore, he had been properly charged upon the sufficiency of the evidence obtained by the KACC agent. Further, he contended that there was no entrapment of the petitioner by Mr. Buchianga and the petition was a mere attempt to delay the trial of the criminal case.
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In determining the petition, the court first sought to address the legality and admissibility of evidence obtained through entrapment in a Criminal Case. Justice Warsame observed that in law, entrapment is viewed as a type of lawlessness by law enforcement officers and is a tactic which is rationalized under the theory that the end justifies the employment of the illegal means. In essence, entrapment is a State created crime which is unacceptable and improper. The court clearly stated that judicial response to entrapment is based on the need to uphold the rule of law and therefore, it is not sufficient to do justice by obtaining a proper result where such a result acquired through irregular and improper means. The judge noted that essentially, entrapment is a complete defence and it does not matter that the evidence against the person is overwhelming or that his guilt was undisputed. He further stated that the court must refuse to convict an entrapped person not because his conduct falls outside the proscription of the statute but because even if his guilt is admitted, the methods and manner employed on behalf of the State to bring about the evidence cannot be countenanced. The court re-emphasized that it is wholly wrong for a State agent to induce a person to commit an offence in order that an offence may be detected by the same agent. In determining whether entrapment occurred, the learned judge observed that it is important to analyze and scrutinize how much and what manner of persuasion, pressure and cajoling was brought to bear by the law enforcement agent to induce persons to commit a crime. Having scrutinized the recorded conversation between the petitioner and Mr. Buchianga in detail in order to understand and determine the issue in dispute, Justice Warsame concluded that Mr. Buchianga had actually lured Mr. Nur into committing an act of bribery for which the State was now seeking to prosecute him. The court further concluded that the actions and conduct of Mr. Buchianga went beyond those of an undercover agent because he instigated the offence and there was nothing to suggest that without his intervention and participation, the offence would have nevertheless been committed. For this reason, the learned judge ruled that the evidence so obtained through entrapment by the State agent was illegal and unlawful and thus inadmissible in a Criminal Case against the petitioner.
NOMINATED COUNCILORS LOSE BID TO STOP REVOCATION OF THEIR NOMINATION
Paul Kiplagat Birgen and 25 Others V Interim Independent Electoral Commission and 2 others (2011) eKLR www.kenyalaw.org Miscellaneous Civil Application No.156 Of 2011 High Court of Kenya at Nairobi M. Warsame J. November 9, 2011 Reported by Njeri Githanga Kamau - Advocate
It is incumbent upon he who seeks a legal remedy to come with a clear road map so that the court can hear, evaluate, interrogate and determine the grievances suffered or likely to be suffered by the person seeking to benefit from the power of the court. The court can only intervene on clear factual and legal basis. There must be a cause of action against an individual before court clearly and correctly framed in a proper manner.
by the councilors that their rights were breached, saying it was not clear who had violated their rights under their application. The 28 applicants had been serving as nominated councilors by the Orange Democratic Movement (ODM) in various Municipals and county councils within the Republic of Kenya having been nominated pursuant to sections 26(1) (b), 39(1) (c) of the Local Government Act and section 33 of the repealed Constitution. It was contended that through various letters ODM through the Secretary General wrote to the 1st respondent (Interim Independent Electoral Commission-IIEC chairman) requesting for revocation and nomination
of new councilors in the positions of those to be revoked or de-nominated. All the letters were also copied to the Deputy Prime Minister and Minister for Local Governments. After satisfying itself with all the requirements for the nomination and de-nomination of a councilor, the IIEC Chairman wrote a letter dated 12th July 2011 to the Minister for Local Government enclosing a letter from the ODM party containing the list of councilors to be revoked and nominated. Being aggrieved, the applicants filed a notice of motion seeking an order of certiorari to quash the decision of the IIEC contained in the letter addressed to the Deputy Prime Minister and Minister
he High Court has declined to issue orders restraining the Orange Democratic Movement (ODM) nominated councilors from being denominated. The court dismissed claims
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for Local Government requesting and/ or recommending the revocation of nomination of the applicants. They further sought an Order of Prohibition to stop the Deputy Prime Minister and Minister for Local Government from acting on the recommendation by the IIEC. The application was argued by Mr. Ongegu on behalf of the applicants. It was submitted that the actions of the IIEC Chairman amounted to a blatant violation of the rules of natural justice. He also submitted that the decision to terminate the nomination of the applicants was taken exparte as they were never invited to any forum where their conduct or suitability was discussed. It was contended that the decision to revoke the applicants nomination was reached at by a section of ODM members without any regard to the partys constitution and the universal rules of natural justice. He further stated that the IIEC Chairman had violated the mandatory provisions of section 17 (7) of the Political Parties Act which echoes the rules of natural justice be observed before a member can be expelled from a party. Lastly it was the applicants view that the 2nd respondent was not seized of jurisdiction to terminate the nomination of councilors nominated under section 26 of Local Government Act. Mr. Kilonzo advocate for the IIEC Chairman submitted that the issue of revocation had been dealt with by the High Court and the Court of Appeal. He further submitted that the commission had limited responsibilities and was not entitled to question a political party why it sought the revocation of a councilor. The application was opposed by Mr. Kipkogei counsel for the 2nd and 3rd respondents who stated that the process of de-nomination starts with the party concerned, then the party communicates the decision to the Electoral commission. The Commission had to then transmit the names to the Minister who had powers vested in his office to exercise in the manner he thought fit and just. He therefore urged the court to dismiss the application as it did not meet the criteria for the grant of the orders sought. The court started by analyzing the scope and the efficacy of an order of certiorari. Justice Warsame pointed out that Certiorari and prohibition were complementary remedies based upon common principles and certiorari would be issued to quash a decision which was ultra vires. The concern of certiorari, he stated, was about a decision or determination whether or not made under a legal power or a legal authority. The judge was of the view that it was not clear who had breached the applicants rights and who was to accord them a hearing before any decision was taken against them. He pointed out the fact that it was uncontested that the IIEC Chairman was not the appointing authority of the applicants. Secondly the commission had a limited statutory power and it had no power and/or authority to question the party or Minister on matters outside its jurisdiction. The question was hence whether the letter dated 12th July 2011 addressed to the Deputy Prime Minister and Minister for Local Government amounted to a decision and whether the IIEC chairman committed acts prejudicial to the rights and interests of applicants. The judge referred to the Blacks Law Dictionary 6th Edition which defined a decision as A determination arrived at after consideration of facts, and, in legal context, law. It was noted that the catchwords used in the prayer No.1 of the Notice of Motion were the words requesting and/or recommending. From the definition of request and recommendation it meant the chairman of the IIEC Chairman was asking for something to be granted or done which had been requested by the political party that nominated the applicants. The IIEC Chairman was indeed incapable and had no capacity or authority or power to revoke or recommend the nomination of the applicants. According to the court, one could not challenge an exercise of statutory duty or obligation from being exercised by the IIEC Chairman. With regard to the contention of the applicants that they were not given or accorded an opportunity as to why the decision contained in the letter dated 12th July 2011 was made, the court affirmed that the understanding of the law was that it was not the role of the IIEC Chairman to assume the responsibilities of the concerned party that nominated the applicants. It was hence opined that there was no decision capable of being challenged and which was amenable to judicial review that was made by the IIEC Chairman against the applicants. On the issue of the prohibition order, it was the courts view that there was little difference in principle between certiorari and prohibition except that prohibition could be involved at an earlier stage. If the proceedings established that the body complained of was exceeding its jurisdiction by entertaining matters which could result into its final decisions being subject to being brought up and quashed on certiorari, then prohibition would lie to restrain from so exceeding its jurisdiction. However under the circumstances, the court could not determine whether the rules of natural justice were followed or would be followed by the Minister when there was no evidence or complaint against his conduct or the exercise of his statutory duty. The judge could not also determine whether the decision to revoke the applicants nomination was unilaterally reached by a section of ODM members without the presence of the said party before the proceedings. In conclusion, the court opined that there was no cause of action established by the applicants against the respondents and the application was hence without merit and was dismissed in its entirety.
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COURT BARS CMC SHAREHOLDER FROM HOLDING EXTRA-ORDINARY GENERAL MEETING
Andy Forwarders Services Limited v The Capital Markets Authority & CMC Holdings Limited www.kenyalaw.org Petition No. 216 of 2011 High Court of Kenya at Nairobi Mumbi Ngugi J. November 16, 2011
The Hon. Lady Justice Mumbi Ngugi, j.
Reported by Emma Kinya - Advocate Capital Markets Authority filed a crossapplication seeking a conservatory order maintaining the status quo regarding CMC Holdings Company and the composition of its Board of Directors pending the hearing and determination of the petition. CMA also sought an order restraining the petitioner from proceeding with the Extra-ordinary General meeting. The two applications were heard concurrently by Justice Mumbi Ngugi. Mr. Ojiambo appearing for the petitioner submitted that in exercise of rights granted under section 132 (1) of the Companies Act, the petitioner had requisitioned for an EGM upon failure of the Directors of CMC to convene one. He further submitted that the right of shareholders under section 132 of the Companies Act was a right that could not have been abridged and a right of property which could have been exercised by the shareholders whatever their motive for exercising that right was. Counsel contended that the right under section 132 was not just a statutory right but had constitutional underpinnings and was protected under Article 40 (2) of the Constitution which prohibited parliament from enacting any law that permitted the deprivation of property. He therefore stated that the right was a fundamental right which could not be limited except as had been provided under Article 24 of the Constitution and that CMA could not therefore as a statutory body have interfered with the petitioners right. any limitation under Article 24 of the Constitution should not have limited the right so far as to derogate from its core and essential content. In the petitioners view, the core and essential content of the rights of a shareholder under section 132 of the Companies Act was to call an EGM and therefore, to limit the right to call an EGM was to derogate from that rights core and essential content. Counsel further averred that there was no provision in the CMA Act permitting the respondent to stop the shareholders from holding an EGM. He went on averred that while it was argued that the respondent was carrying out its statutory duty in seeking to stop the petitioner from holding an EGM, no specific duty had been drawn to the attention of the court. Mr. Alibhai who represented CMA stated that the purpose of the EGM was to remove the directors of a listed company who had alleged that the petitioner defrauded the company and that should the petitioner have succeeded, it would have amounted to removing the directors who had made the allegations against it and replaced them with its nominees, thereby assuming full control of CMC. He submitted that while the respondents application was intended to preserve the status quo, the petitioner was seeking to change the status quo. He therefore observed that should the AGM have taken place, then the entire purpose of the petition would have been lost and the petition would have been spent and therefore there would have been no issue left for the court to determine. The petition would thus have been rendered nugatory.
here a company has invited the public to purchase its shares and has therefore come under the regulatory regime of the Capital Markets Authority, the interests of all shareholders and investors must be protected, the court has held. The petitioner, Andy Forwarders Services Limited, sought an order to restrain the respondent, the Capital Markets Authority (CMA) which is the statutory regulator of the Capital Market in Kenya, from interfering with an ExtraOrdinary General Meeting (EGM), which the petitioner had requisitioned and which had already been scheduled. The purpose of the EGM had been to remove certain directors of CMC Holdings and replace them. The petitioner therefore sought an order to declare that the respondents decision purporting to bar the CMC Board of Directors from holding an Extra-ordinary General Meeting (EGM) in direct breach of statutory duty imposed upon CMC Directors by virtue of shareholders interest under section 132 of the Companies Act was in violation of Article 40 of the Constitution and therefore invalid.
The petitioner had filed a chamber summons application concurrently with the petition in which it sought among others, an injunction to restrain the respondent from interfering with the meeting of shareholders of CMC to be held pursuant to the petitioners requisition notice issued in accordance with section 132(1) of the Companies Act. CMC holdings thereafter applied to be joined as an interested party when the matter came up for hearing. The In addition, counsel submitted that
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More over, argued that in such a matter, the applicant seeking a conservatory order ought to have shown a prima facie case. He submitted that there was nothing sacrosanct about the right conferred by Section 132 of the Companies Act and that the court was entitled to have interfered where there was an abuse of this right in the case of an unlisted company. He therefore submitted that in the circumstances, the court should have been concerned with the question of balancing of rights and that CMA as a regulator must balance the interests of one shareholder against those of investors and the entire market. CMC Holdings as the interested party on its part associated itself with the submissions of CMA. The High Court after entertaining rivalry submissions considered whether or not to grant conservatory orders either to the petitioner or the respondent. In determining the matter the Court relied on the case of Centre For Rights Education and Awareness (CREAW) & 7 Others v Attorney General & Others Petition No. 16 of 2011 and observed that the courts discretion to grant conservatory orders required the applicant to demonstrate that it had a prima facie case with a likelihood of success and that unless the court had granted the conservatory order, there was a real danger that he would have suffered prejudice as a result of the violation of the Constitution. The Court also considered the decision in Muslims For Human Rights & Others v The Attorney General & Others Petition No. 7 of 2011 where it had been noted that a conservatory Order was not an injunction as was known in civil matters but was an order that was intended to preserve the subject matter in such a way that the Constitutional proceedings and cause of action was not rendered nugatory. The Court upon the aforegoing decisions observed that two conditions had to be satisfied for a conservatory order to issue. First, that the situation required conservation so as to have maintained the status quo pending the hearing of the petition and if the order was not issued, the petition would have been rendered nugatory. Secondly the court was to consider whether the petitioner or other party seeking a conservatory order had established a prima facie case with a probability of success. To this end, the court had to weigh the respective interests of other investors and the market. A change in the status quo in CMC would have radically altered the situation and rendered the questions for determination in the petition moot. The judge therefore found that the petitioner had not demonstrated that it had an arguable case with a probability of success and that it would have suffered prejudice if conservatory orders in its favour were not granted. The judge further observed that if the regulator was restrained and the petitioner permitted to convene the EGM, the critical questions that the petition sought to answer relating to the mandate of the respondent as regulator with regard to the rights of shareholders under the Companies Act would have been rendered moot. She observed that conversely, should the cross application succeed, the status quo in the interested party would have been maintained and the issues raised by the petition would have remained live for determination at the hearing for the petition. Accordingly, the court dismissed the application and ordered that the status quo as regards CMC Holdings be maintained and further that the petitioner be restrained from convening an Extra-ordinary General Meeting pending the hearing and determination of the petition.
EVICTION OF PETITIONERS WAS IN VIOLATION OF THE LAW
Musa Mohammed Dagane & 25 others v Attorney General & 3 others [2011] eKLR Constitutional Petition No. 56 of 2009 High Court of Kenya at Embu M Warsame, J. November 16, 2011
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Reported by Nelson K. Tunoi - Advocate access to basic amenities are available. District although they had never been issued with title documents to the he High Court at Embu (Warsame, land they had occupied since time J.) has held that the eviction immemorial. In 1981 they were evicted subjected to the petitioners was by the provincial administration from in violation of the law and consequently the land on which the NEP Technical the petitioners suffered loss and College currently stands. They alleged damages, which must be compensated. that no compensation was offered in The petitioners were the local and spite of the historical claims by virtue of historical indigenous habitants of Garissa being the local and historical habitants
Eviction results in individuals being rendered homeless or vulnerable to violation of other human rights especially where the affected persons are unable to provide for themselves and for their families. In such circumstances the State must take all appropriate measures taking into consideration the available resources to ensure that adequate alternative housing, resettlement and/or
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of the subject area hence laying claim to customary interest in the subject land. The petitioners were evicted in 1984 by the Provincial administration from the land on which Umu Salama Secondary school now stands, and no compensation offered. Again in 1989, the Provincial Administration invaded the land occupied by the petitioners in a move suspected to have been intended to give the said land to a private developer. There was no explanation given by the Provincial Administration as to why the petitioners were being evicted. In April 2003 the petitioners received a notice from the Garissa District Commissioner alleging to be issued in line with Government policy of repossessing public land taken over by private individuals. The notice ordered the petitioners to vacate the subject land within fourteen (14) days. Despite the protests by the petitioners regarding the Governments decision to evict the petitioners, the District Commissioner in the company of administration police proceeded to evict them and demolished their structures leaving them homeless, and later resettled them at an empty parcel of land six (6) kilometers away, which had no access to the amenities essential for basic life support. Those actions by the respondents provoked the instant petition where the petitioners challenged the conduct and actions of the respondents. The petitioners sought declaratory orders, inter alia, that the eviction of the petitioners from the subject lands without any adequate compensation and resettlement amounted to a violation of their right to own property guaranteed under section 75 of the Constitution (now repealed), and that the eviction notices issued were void and of no legal effect. The petitioners also sought directions that the petitioners adduce viva voce evidence to prove their losses of property incurred during the forcible evictions for purposes of appropriate compensation. The petition was not challenged by the respondents. During the determination of the petition, the petitioners contended that they were relocated to a place which had no access to education facilities, health, electricity, water, road network and other trading facilities that were essential for basic life support. Justice Warsame observed that the petitioners had demonstrated that their land was taken away in a manner contrary to the Constitution and International Conventions against forceful eviction. The judge stated that, eviction results in individuals being rendered homeless or vulnerable to violation of other human rights especially where the affected persons are unable to provide for themselves and for their families. In such circumstances the State must take all appropriate measures taking into consideration the available resources to ensure that adequate alternative housing, resettlement and/or access to basic amenities are available. Thus, the petitioners were subjected to inhuman and degrading acts by the conduct of the respondents, and further they lost their land and property in a manner contrary and in violation of the law. Justice Warsame further held that the State has a constitutional obligation to provide services to the petitioners in a sustainable manner to promote social and economic development and encourage the growth and the sustenance of basic rights, and that the State must also respect, protect, promote and fulfil the basic rights enshrined in the Constitution to ensure that there is no violation or encroachment on the said rights on any entity or organ of the State. The judge noted that by evicting the petitioners from their ancestral home, the respondents engaged in acts and in a manner that was broadly at odds with the spirit and purpose of constitutional obligations. The judge granted the orders sought in the petition and directed that the court would hear oral evidence of the petitioners regarding the loss of property so as to ascertain the appropriate compensation after balancing the interests of the petitioners and that of the respondents. The petitioners were represented by Mr Elisha Ongoya.
EVICTEES AWARDED OVER 200 MILLION SHILLINGS AS DAMAGES FOR VIOLATION OF THEIR RIGHTS
Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration and Internal Security & 10 others [2011] eKLR Constitutional Petition No. 2 of 2011 High Court at Embu A O Muchelule, J. November, 16 2011
Reported by Nelson K. Tunoi - Advocate
the petitioners were entitled to adequate information on the reasons of the proposed evictions and the alternative purpose the subject land was to be used had to be indicated, and the said information be given in accordance with article 35, which
guarantees the right to information. he High Court (Muchelule, J.) has The evictions were then supposed to be awarded a global sum of Kshs. carried out in a manner that respected 224,600,000/= to 1,123 Medina human dignity, right to life and the Evictees (petitioners) as damages security of the affected following their eviction from unalienated public land within the jurisdiction of the Municipal Council of Garissa (2nd
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respondent). The court also declared that the petitioners fundamental rights as outlined in their petition had been violated by virtue of the eviction from the alleged public land and the consequential demolition of property by the respondents. The petitioners had occupied the subject land since the 1940s, initially as grazing land but in the 1980s they put up permanent and semi-permanent dwellings in which they were living prior to eviction. Sometime in December 2010, the Garissa District Commissioner, in the company of administration police and some unidentified youth informed the petitioners that they had come to prepare the grounds for the construction of a ring-road and warned that any homestead that fell along the road would be demolished. They proceeded to mark the area where the purported road would pass. There was no further communication from the relevant authorities and the petitioners attempts to seek audience with them regarding the scheduled eviction and demolition became futile. had to seek alternative accommodation elsewhere. The petitioners had sought audience with the relevant authorities following the eviction but all was in vain. The petitioners consequently filed a petition before the High Court seeking several declarations and orders, among them, that the forcible, violent and brutal eviction through the demolition of their homes without according them alternative settlement was a violation of their fundamental rights enshrined under the Constitution and that the respondents be permanently restrained from evicting the petitioners without provision of alternative shelter mutually agreed upon with the petitioners. The alleged violations of the fundamental rights in the petition included the right to life (Article 26), right to inherent human dignity and security of the person (Articles 28 & 29), right to access to information (Article 35), economic, social and specific rights (Articles 43 & 53 (1) (b) (c) (d)) and the right to fair administrative action (Article 47). Those rights were also enshrined in various regional and international instruments: the International Conventions such as the African Charter on Human and Peoples Rights (ACHPR), International Covenant on Economic, Social and Cultural Rights (ICESCR-Articles 11, 13), International Covenant on Civil and Political Rights (ICCPR- Article 17) and the Universal Declaration of Human Rights. These instruments formed part of the Laws of Kenya by virtue of Article 2 (5) & (6) of the Constitution. The petition was not challenged by the respondents. information on the reasons of the proposed evictions and the alternative purpose the subject land was to be used had to be indicated, and the said information be given in accordance with Article 35, which guarantees the right to information. The evictions were then supposed to be carried out in a manner that respected human dignity, right to life and the security of the affected. The court observed that there was no written notice served upon the petitioners and no adequate information given concerning the usefulness of the road vis--vis the petitioners occupation of the land, and there was no indication that they would be afforded alternative settlement. Further, for the evictions to be justified pursuant to the relevant provisions of the international instruments ratified by Kenya, they ought to be carried out in the most exceptional circumstances after all feasible alternatives to eviction were explored in consultation with the affected community and after due process afforded to the individual or group. The forced eviction was a violation of the fundamental right of the petitioners to accessible and adequate housing as enshrined in article 43(1) (b) of the Constitution, and more important, the eviction rendered the petitioners vulnerable to other human rights violations. Regarding the remedies available to the petitioners in the circumstances, the court relied on the United Nations General Assembly (Resolution 60/147 of 21/3/2005), which provided that a proper remedy for forced evictions was to return the victims as close as possible to the status quo ante. The judge also made reference to the persuasive South African authority Tswelopele Non-Profit Organization & Others v City of Tshwane Metropolitan Municipality, 2007 SCA 70 (RSA), where the court considered forced eviction as a violation of the right to have access to adequate housing as enshrined in Article 26 (1) of the South African Constitution and held that the proper remedy was the resolution of the status quo ante and ordered the occupiers to get their shelters back and further ordered the respondents to jointly and severally reconstruct them. Thus, the court observed that the petitioners
About three weeks later, a group of armed administration police officers in riot gear and unidentified youth arrived in the area under the command of the Garissa Central District Officer, and proceeded to demolish some of the houses and structures erected on the purported Government Land. The demolition squad returned a second time under the authority of the Deputy Mayor of the Municipal Council of Garissa and continued with the exercise. The petitioners attempt to resist the The court observed that the Constitution eviction was violently crushed by the provided that the Bill of Rights applied to all and bound all State organs and police. all persons (Article 20), and that it was It was established in court that no written a fundamental duty of the State and notice was served on the petitioners, the every State organ to observe, respect, respondents had no court order and protect, promote and fulfill the rights they did not engage the petitioners in and fundamental freedoms in the Bill any consultation or explanation. It was of Rights (Article 21 (1)). Further, all submitted that too that a total of 149 State organs and public officers had a houses and structures were demolished duty to address the needs of vulnerable and the petitioners were forced to live groups within the society i.e. women, in make-shift temporary structures, children and the elderly (Article 21 (3)). exposing them to elements and vagaries The Court thus held that the purported of nature, health risks, insecurity and lack 21 days notice by the respondents was of basic human necessities such as food, both unreasonable and insufficient in water and sanitation. Several children the circumstances. It further stated that dropped out of school as their parents petitioners were entitled to adequate 82
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were entitled to the declarations sought in the petition, and made an order compelling the respondents to return the petitioners to the subject land, reconstruct reasonable residence and alternative accommodation for them, which would include all the amenities and facilities subsisting at the time of the eviction and demolitions. The court further ordered a permanent injunction retraining the respondents from future evictions and demolitions unless the law was followed. Although the petitioners did not disclose the value of what was lost in the evictions or any other expense, and considering the fact that the petition was not defended by the respondents, each of the 1,123 petitioners was awarded a sum of Ksh. 200,000/= in damages against the respondents, jointly and severally, including the costs of the petition. The petitioners were represented by Mr Mbugua Mureithi and the Amici Curia represented by Mr Odindo Opiata.
COURT MAINTAINS COMMISSIONER KIPLAGAT AS CHAIRMAN OF TJRC
The Hon. Mr. Justice J. W. Mwera, JJ.
In Re Truth Justice & Reconciliation Commission & Another Ex-Parte Hon. Augustine Njeru Kathangu & 9 Others Eklr [2011] High Court at Nairobi J. W. Mwera; H. M. Okwengu; D.K. Maraga (JJ) November 28th 2011 Reported by Monica Achode Advocate as Ambassador of Kenya in the United affecting any legally enforceable rights of Kingdom and Permanent Secretary in the applicants, such as would attract an order of certiorari. He pointed out that the Ministry of Foreign Affairs. the appointment of the commissioners The ex-parte applicants further contend or chairman of the Commission was that the TJRC Act specifically excluded neither a judicial nor quasi-judicial act holders of public office, both serving amenable to judicial review. and retired from membership of the Commission. This was because the In determining the matter the court actions of public officers were the subject h a d c o n t e m p l a t e d u n d e r w h a t of the investigations being undertaken circumstances it would issue an order by the Commission. The forwarding of of prohibition as requested by the Mr. Kiplagats name for appointment to applicants. Also in consideration had the Commission was therefore against been the import of section 17 of the the spirit and letter of the TJRC Act. In TJRC Act in setting out the procedure for addition, the oath of office taken by Mr. removal of commissioners viz a vis the Kiplagat was null and void as it had been judicial review procedures, and whether taken before publication of the notice of orders of judicial review available against the appointing authority. As his appointment in the Kenya gazette. regards the order of certiorari the court The gravamen of Mr. Kiplagats response considered whether Mr. Kiplagat had to this application was that the court been sworn before the gazette notice had no jurisdiction to grant the orders of his appointment was published and sought in the application; the application if so what effect that had on his as the had not disclose any recognized grounds chairman of the Commission. for judicial review; and that the matters raised in the application were non- The applicants had also raised substantive justiciable and not amenable to judicial issues of law such as whether the TJRC review. He denied being aware of the Act was defective; whether the TJRC Act breaches of the TJRC Act alleged by the was unconstitutional; or whether the applicants and maintained that he had TJRC Act violates other statutes, human been properly gazetted as commissioner rights and international law among and chairman of the commission. Mr. others and the court considered whether Kiplagat further averred that he never these issues could be raised through acted in excess of his jurisdiction nor had such a general prayer as adopted by the any action or decision been disclosed applicants.
he High Court has dismissed an ex-parte judicial review application seeking to have Mr. Bethwel Kiplagat prohibited from running the affairs of the Commission as Chairman or participating in the activities of the Commission and a further order quashing the oath of office. The Court found that the applicants had in fact not challenged the decision making process in the appointment of Mr. Kiplagat but rather, they had challenged his selection and nomination, being of the view that he was not a suitable candidate for nomination. It was the Courts observation that the remedy of prohibition did not deal with the merit of the decision but with the process. The facts as stated by the ex-parte applicants had been that the Truth Justice & Reconciliation Act (TJRC Act) had been violated by the selection panel in forwarding the name of Mr. Kiplagat for appointment as chairman of the Commission. The applicants, a lobby group known as Kenyans against Impunity and former victims of state violence, contended that, on account of his past record, Mr. Kiplagat was unfit to be appointed as a commissioner and chairman of the Commission as he was alleged to have been involved in defending torture, abuse of judicial process, and policies of dictatorship in Kenya during the period he served
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The Courts findings: Whether or not the TJRC Act was defective or unconstitutional? The Courts understanding of the exparte applicants complaint was that it was against the TJRC Act, which was in the applicants view defective, unconstitutional, and its propriety and legality vis a vis the Constitution questionable. The Court felt that these were substantive constitutional issues which could not be casually sprung up at the tail end of the proceedings during submissions as the ex-parte applicants had done. One could not seek the invalidation of an Act of Parliament in ones submissions without specific pleadings. prohibition: The High Court opined that it was trite law that judicial review was a special jurisdiction which was neither civil nor criminal. It was concerned with the decision making process, not with the merits of the decision itself therefore the Court would only be concerned with the process leading to the making of the decision and not the merits of the impugned decisions. The Court reiterated that even a purely administrative act of a public officer purporting to discharge his public duty, would be amenable to judicial review, thereby debunking submissions by Mr. Kiplagats counsel that for an act to be amenable to judicial review jurisdiction it had to be judicial or quasi-judicial or No question had been raised in the ex- against the rules of natural justice. parte applicants pleadings regarding the validity of the TJRC Act, nor had the The High Court went ahead t define what ex-parte applicants specifically prayed an oath of office meant with regard to that the court declare the TJRC Act or the application to quash the oath of part thereof as null and void or ultra vires office. The only issue raised by the exthe Constitution. Thus the application as parte applicants on it was that it had pleaded in the Notice of Motion did not been administered before Mr. Kiplagats provide an appropriate forum for the appointment, therefore in the Courts determination of those issues. The ex- view the determining factor was the parte applicants failed to properly invoke date of appointment. There was nothing the Courts mandate as a Constitutional wrong with the publication of the notice Court. In the circumstances the High of appointment after administering the Court had no option but to decline oath. Therefore the issue of putting the the ex-parte applicants plea in their cart before the horse as contended by counsels submissions to declare the the ex-parte applicants has absolutely TJRC Act defective or unconstitutional. no basis. On the issue of the application for the judicial review orders of certiorari and In considering the prayer for an order of prohibition the Court felt that the starting point was to consider the scope of the order of prohibition itself, what the order did and when it would issue. The ex-parte applicants had to establish that the Mr. Kiplagat was running the affairs of the Commission either without any jurisdiction, or in excess of his jurisdiction as chairman or commissioner, or in contravention of the laws of the land, or against the rules of natural justice. However, none of these things formed part of the ex-parte applicants complaint, their complaint related to the actual appointment of the 2nd respondent to the Commission. They did not seek to quash Mr. Kiplagats appointment therefore an order seeking to prohibit him from running the affairs of the commission would have no basis as long as his appointment remained in force. Based on the fact that the ex-parte applicants were not challenging the decision making process in the appointment of Mr. Kiplagat but rather the merit of his selection and nomination, being of the view that 2nd respondent was not a suitable person for nomination, the High Court held that the remedy of prohibition was not available to the ex-parte applicants. It was from the foregoing that the Court dismissed the ex-parte applicants application.
WHY COURT ISSUED A WARRANT OF ARREST AGAINST AL BASHIR
Hon. Mr. Justice N.R.O. Ombija, J.
International Commission of Jurists-Kenya v Attorney General & 2 others High Court, at Nairobi N.R.O. Ombija J November 28, 2011. Reported by Cornelius W. Lupao - Advocate. under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue oneIn respect of this particular case, two warrants of arrest were issued against President Omar Ahmad Hassan Al Bashir [Omar Al Bashir], the sitting President of the sovereign Republic of Sudan on 4th March 2009 with five counts of crime against humanity and two of war crimes
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on 12th July, 2010 with three counts of genocide for allegedly orchestrating atrocities in the Western Province of Dafur in Sudan. It is in evidence, that subsequent to the issuance, the Registrar of the International Criminal Court [ICC] sent a supplementary request to ask the State parties to the Rome Statute to effect the arrest and surrender of President Omar Ahmad Hassan Al Bashir [Omar Al Bashir] should he come to the respective territory. It is common ground that Kenya is a State party to the Rome StatuteState parties are under a duty to execute or extradite the perpetrators of International Crimes to the ICC for prosecution. said warrants of arrest, the respondents in utter disregard of their obligations, under international law and the Laws of Kenya, failed to enforce the said warrants of arrest; that the applicant was apprehensive that President Al Bashir would again be coming into Kenya to attend a meeting convened by Kenya through the Intergovernmental Authority on Development (IGAD);that previously when President Al Bashir came to Kenya on the 27th August 2010, the respondents failed and refused to effect arrest on him despite the existence of the said warrants of arrest against him which fact was within their knowledge; that the applicant was apprehensive that should President Al Bashir come to Kenya, the respondents in total disregard of the law would once again fail to effect an arrest against him as they previously did and that it was in this premise, that the applicant sought the application. Kenya on 27th August, 2010 during the promulgation of the countrys new Constitution and that the presence of the said President in the Kenyan territory was in violation of Kenyas obligations under the Rome Statute, the International Crimes Act, 2008 and the new Constitution of Kenya, 2010. It went on that the failure, neglect or refusal to arrest the said President violated the basic tenets of International law and that the hosting of the said President in Kenya in violation of Kenyas obligations under the Rome Statute [ICC] and the International Crimes Act, 2008, and the Constitution of Kenya, 2010 raised serious concern over Kenyas commitment to combating impunity for the most serious crimes against humanity. On the other hand, the 1st and 2nd respondents urged that the request for a provisional warrant can only be made by the ICC. They urged that it was the ICC to demonstrate the reasons and the urgency. In this regard they placed reliance on Article 92 of the Rome Statute. They went ahead to state that Section 32 and 33 of the International Crimes Act, 2008 derive directly from Article 92 of the Rome Statute. Hence, according to them, section 32 and 33 of the International Crimes Act, 2008, should be read together with Article 92 of the Rome Statute for their full tenor and effect. Their view was that a reading of the aforesaid Sections and the said Article leaves no doubt that the request can only be made by the ICC in urgent cases. In the premises, the applicant (ICJ-Kenya Chapter) therefore lacked locus-standi as it had not stated its (ICJKenya Chapter)s, interest in the case. More so they argued that ordinarily, in matters of mutual legal assistance and extradition, foreign requests are channeled to the Hon. the Attorney General and that if the Attorney General is satisfied as to the authenticity of the request, he would then move the High Court for issuance of a warrant and conduct the proceedings on behalf of the requesting party. They observed that this process is not done by an individual or any authority. Their view was that the applicant envisaged under Section 29 of the International Crimes Act, 2008 is the Minister, in charge of Internal Security, of the Sovereign Republic of Kenya. Thus,
warrant of arrest was issued against President Al Bashir, the President of Sudan, due to an obligation that Kenya has to arrest him should he set foot in its territory, the court has held. This followed an application by the International Commission of Jurists (ICJ)-Kenya which sought orders to the effect that a provisional warrant of arrest against President Bashir is issued and a subsequent order against the Minister of State for Provincial Administration to effect the said warrant of arrest.
On behalf of the applicant, the court was urged that the objectives of the applicant were inter-alia, the development, strengthening and protection of the rule of law; and in particular to keep under review all aspects of the rule of law and human rights within the Republic of The application by ICJ was predicated Kenya and take such action as would be upon the affidavit of, George Kegoro, of assistance in promoting or ensuring ICJs Executive Director , and was based the enjoyment of these rights. on grounds that the Constitution of Kenya at Article 2 (5) applies all treaties It was stated further that the applicant and conventions that have been ratified was aware of the existence of the by Kenya to be part of the Laws of Kenya; warrants of arrest against President Al that Kenya ratified the Rome Statute on Bashir [Omar Al Bashir, the President the 15th March 2005 and followed up of the Sovereign Republic of Sudan, the on that act by domesticating the Statute said warrants having been issued by the vide the International Crimes Act of Pre-Trial Chamber of the International 2008; that the Constitution of Kenya, Criminal Court [ICC] respectively on 4th 2010 at Article 3 puts an obligation on March, 2009 with five counts of crime every person to respect, uphold and against humanity and two of war crimes defend the Constitution; that there and on 12th July, 2010 with three counts were two outstanding warrants of arrest of genocide for allegedly orchestrating against President Al Bashir issued by atrocities in the Western Province of the International Criminal Court [ICC] Dafur in Sudan. This was pursuant to on 4th March, 2009 and 12th July 2010 Article 91 as read together with Article respectively; that there were also two 92 of the Rome Statute. requests for co-operation in the arrest and surrender of President Al Bashir The applicant concluded its case by issued by the International Criminal stating that despite the Government Court [ICC] on 6th March, 2009 and 21st of Kenya being averse and/or aware July, 2010 to States that are parties to the of its commitments and obligations Rome Statute; that President Al Bashir under international law and municipal came to Kenya, on the 27th August, law, President Al Bashir was invited 2010, but despite the existence of the and hosted by the Government of
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according to them, the applicant under both sections should be the State as opposed to the applicant herein or any other legal person. They emphasized that an application for a provisional warrant of arrest under Section 32 of International Crimes Act, 2008 can only be made upon receipt of a request from the ICC courtesy of Article 92 of the Rome Statute and that since, there was no evidence that such a request for a provisional warrant had been made to the Kenya Government by the ICC, the High Court lacked jurisdiction to hear, determine or give orders sought in the application. Finally the 1st and 2nd respondents concluded that the application was moot, moribund and fruitless since the IGAD Summit meeting which could provide an opportunity for President Omar Al Bashir was held in Addis Ababa in November 2010. Hence, as far as they were concerned, the argument that the said President might come to Kenya was speculative and could not be a basis upon which the court could issue a warrant even if the right procedure had been followed. On behalf of the 3rd respondent, it was urged that the Vienna Convection on Diplomatic Relations Treaty was in conflict with the International Crimes Act, 2008.According to it, African Unions decision adopted in July, 2009 at a Summit in Sirte Libya, under the auspices of the Assembly of heads of States, the AUs highest decision making organ, directed all AU member States to withhold co-operation with the ICC in respect of the arrest and surrender of President Omar Hassan Ahmad Al Bashir. It stressed that the African Union had repeatedly called for the United Nations Security Council to invoke Article 16 of the Rome Statute to suspend the warrant of arrest against President Omar Al Bashir and that Kenya being a member of the African Union, decisions and resolutions of the AU are binding on Kenya and its people. To the 3rd respondent, Kenya being a neighbor to Sudan, declaration of the warrant of arrest against Al Bashir would be an act of aggression and its execution of would jeopardize or risk the lives and property of an estimated 500,000 Kenyans in the Sudan and lead to a deterioration of the relations between the two States. It concluded that Kenya being a guarantor 86
to the comprehensive peace agreement that ended the civil war in Sudan should not take action that would precipitate instability in Sudan. Upon consideration of issues at hand, the Court began by acknowledging the fact that Article 2(5) of the Constitution of Kenya, 2010 provides that the general rules of international law, the Rome Statute being such, form part of the law of Kenya hence the Constitution incorporates it in the Courts of Kenya. This, the Court stated that it is fortified by the enactment of the International Crimes Act, 2008 [Act No. 16 of 2008. To this end, the court concluded that Kenyas constitution incorporates the role of the International Institutions such as the ICC hence the role of the International Criminal Court [ICC] operates within the frame-work of the Rome-Statute in the framework of the Kenyan Legal System. Further, the court observed that in the context of Kenya, the High Court exercises any jurisdiction, original or appellate, conferred on it by legislation. In this regard the Constitution of Kenya, 2010 and the International Crimes Act 2008, it went on, confers jurisdiction on the High Court to enforce the Rome Statute. The Court in addition observed that in the realm of International Law, under the principle of universality, any State is empowered to bring to trial persons accused of international crimes regardless of the place of the commission of the crime, or the nationality of the offender. Similarly, the court observed that the view that the duty to prosecute international crimes has developed into jus-cogens and customary international law, thus delegating States to prosecute perpetrators wherever they may be found. The State parties to the ICC according to the court are under a duty to prosecute or extradite the perpetrators to the ICC for prosecution. The court, upon applying various International Law principles to the facts of this case, stated that the High Court in Kenya clearly has jurisdiction not only to issue a warrant of arrest against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the principle of universal
jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one. It went on that in respect of this particular case, two warrants of arrest were issued against President Omar Ahmad Hassan Al Bashir [Omar Al Bashir], the sitting President of the sovereign Republic of Sudan on 4th March 2009 with five counts of crime against humanity and two of war crimes on 12th July, 2010 with three counts of genocide for allegedly orchestrating atrocities in the Western Province of Dafur in Sudan. It stated that it was in evidence, that subsequent to the issuance, the Registrar of the International Criminal Court [ICC] sent a supplementary request to ask the State parties to the Rome Statute to effect the arrest and surrender of President Omar Ahmad Hassan Al Bashir [Omar Al Bashir] should he come to the respective territory. As to who would implement the instructions of the Pre-trial Chamber, the court considered three aspects; first , whether there were serious issues raised by the applicant, second, whether it had been established by evidence that the applicant was directly affected by the issue raised,in other words, whether it was within the mandate of the applicant and third, whether the applicant had a genuine interest in the matter at hand. In this regard, the court held that the applicant had a genuine interest in the development, strengthening and protection of the rule of law and human rights. It went on to obsere that there was ample evidence that the Pre-Trial chamber of the ICC had issued two warrants on the 4th March 2009 with five counts of Crimes against humanity and two of war crimes on 12th July 2010 with three counts of orchestrating atrocities in the Western Province of Dafur in Sudan against President and that a request for arrest and surrender had been made to Kenya as a State party to the Rome Statute pursuant to Article 91 as read together with Article 92 of the said Statute. Moreover, the court went on, that subsequent to the issuance of the second warrant of arrest, the Registrar of the International Criminal Court [ICC] sent a supplementary request on 21st July, 2010 for co-operation to all
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locus standi to bring this application and that the orders sought by the applicant were justiciable and tenable in law hence issued them accordingly Message form The Hon. Mr. Justice N.R.O. Ombija, Judge of the High Court: "It has come to my attention that there is in circulation on the internet and by email a copy of a ruling in the case of With the above, the court concluded The Kenya Section of the International that the applicants had the necessary Commission of Jurists v Attorney General State Parties to the Rome Statute for the arrest and surrender of President Al Bashir should he set foot in Kenya but that the Government of Kenya had refused, neglected and/ or ignored to comply with the ICC request even when the said President was in Kenya on 27th August, 2010O. & 2 others Misc Criminal Application No. 685 of 2010 supposedly attributed to me and which is not my decision or the final official ruling of the court in this case. I wish to clarify that the authentic ruling in the case, which corresponds with the one that has been delivered and signed by me, is the one found on the website of the National Council for Law Reporting (www.kenyalaw.org)."
An unjust law is itself a species of violence. Arrest for its breach is more so.
Mohandas Gandhi
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PRESS SUMMARY Jude (Respondent) v Her Majestys Advocate (Appellant) (Scotland) Hodgson (Respondent) v Her Majestys Advocate (Appellant) (Scotland) Birnie (Respondent) v Her Majestys Advocate (Appellant) (Scotland) [2011] UKSC 55
23 November 2011
Appeals from the Appeal Court, High Court of Justiciary
JUSTICES: Lord Hope (Deputy President), Lord Brown, Lord Kerr, Lord Dyson, Lord Hamilton (Scotland) BACKGROUND TO THE APPEALS The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal; (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview; and (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances deprived him of his right to a fair trial under Article 6(1) of the Convention. JUDGMENT The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4-1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. REASONS FOR THE JUDGMENT (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of
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Published with the permission of the United Kingdom Supreme Court
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took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention-compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57]. References in square brackets are to paragraphs in the judgment NOTE 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
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Published with the permission of the United Kingdom Supreme Court
89
Kenya Law Reports
Bench Bulletin
YEAR IN REVIEW 2011

By Michael M. Murungi - Advocate
FEBRUARY 2011
1. Designed and commissioned an Electronic Case Management System (CMS) for the Eldoret Chief Magistrates Court, so far Kenyas most successful CMS deployment. 2. Justice J.E. Gicheru retires as Chief Justice, marking the end of his tenure as the third Chairman of the Board of the National Council for Law Reporting
MARCH 2011
1. Established partnership with African Braille Centre for universal access to public legal information, especially for persons with visual impairment.
APRIL 2011
1. In partnership with the Government Printer and Google Inc., launched the online archive of the Kenya Gazette at the Connected Kenya Summit in Mombasa. 2. Partnered with the Judicial Service Commission in negotiating for improved financial allocation to the Council by the Treasury. 3. Showcased at the LSK Annual Conference, Leisure Lodge, Mombasa.
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YEAR IN REVIEW 2011
May 2011
1. Awarded the Technology in Government in Africa Award, 2010 in Addis Ababa, Ethiopia. 3. Participated in the ICJ Uwazi Cup football tournament, in support of the right to information. 5. Established a sales and marketing plan and designed and deployed a customer care query management system. 1
June 2011
1. Participated at the Law via Internet Conference, Hong Kong University, Hong Kong. 2. Dr. Willy Mutunga is sworn is as Chief Justice and President of the Supreme Court of Kenya, marking the start of his tenure as the fourth Chairman of the Board of the National Council for Law Reporting. Nancy M. Braza is sworn in as Kenyas first ever Deputy Chief Justice and Vice President of the Supreme Court. 3. Participated in the LSK Annual Justice Cup, a football tournament, in Nairobi. 4. Hosted Dr. W.M. Mutunga, the new Chief Justice and Chairman of the Councils Board, and The Hon. Justice Nancy Baraza, the new Deputy Chief Justice, on their first tour of the Council. 5. Established a publishing partnership with the Nairobi Law Monthly. 6. Established a partnership with the American Universitys School of International Service for an international internship programme. 7. Open Gov. presented the online archive of the Kenya Gazette and the Hansard to H.E. President Mwai Kibaki at the Open Gov launch at the KICC, Nairobi. 8. Partnered with Google Inc. in implementing the Google Sitemaps Protocol for improved search engine discoverability of the Councils website. 9. Published six volumes of the Kenya Law Reports 1992, 1993, 1994, 2006(2), 2008, 2009. 10. Published six volumes of selected chapters of the Laws of Kenya Public Finance and Administration Laws; Land Laws; Commercial laws (two volumes); Family Laws and the Grey Book (procedural laws).
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Kenya Law Reports
Bench Bulletin
YEAR IN REVIEW 2011 July 2011

1. Held a staff team building retreat at the Sarova Salt lick and Sarova Taita Hills, in Taita 2. In partnership with the Clerk of the Kenya National Assembly and Google Inc., launched the online archive of the Hansard (Parliamentary Proceedings) 1960-2011.
August 2011
1. Held a farewell luncheon for Mr. Justice (Rtd.) J.E. Gicheru, the immediate former Chief Justice and Chairman of the Councils Board. 2. Participated at the launch of the National Council on the Administration of Justice. 4. Participated at the Annual Meeting of the Association of Reporters of Judicial Decisions in Boston, USA. 6. Participated and showcased at the 2011 Annual Judges Colloquium in Mombasa. 8. Supreme Court judges Philip Tunoi, Jackton Boma Ojwang', Mohamed Ibrahim, Dr Smokin Wanjala and Njoki Ndung'u sworn in. 10. Participated at the EAC Judicial Education Committee Seminar in Nairobi.
September 2011
1. Sponsored and participated at the Annual Strathmore University ICT Conference. 2. Implemented a new and improved automated payroll and HR management system. 3. Showcased and participated at the LSK Annual Legal Awareness Week at the Supreme Court compound, Nairobi 4. Hosted the Judiciary website and implemented an email system for Judiciary Staff. 92
Kenya Law Reports
Bench Bulletin
YEAR IN REVIEW 2011 October 2011

1. Bereaved of Mr. Justin Muthee, Sales and Marketing Officer; Judiciary bereaved of Mr. Justice Moijo Ole Keiwua, Judge of Appeal 2. Designed a web page for the office of Legal Counsel in the office of the Clerk of the Kenya National Assembly. 3. Showcased at the Africa Parliamentary Legal Counsel Conference in Nairobi. 4. Participated in the launch of the Judiciary Transformation Programme. 5. Councils Board resolves to establish a new organization structure, a pension scheme and a medical scheme for Council staff. 6. Participated in the induction of newly appointed Judges of the High Court . 7. Established a partnership with the Kenya Community Development Founation for the benefit of socio-economically disadvantaged girls of school-age. 8. Published the first series of the Kenya Law Reports (Elections Petitions) in three volumes. 9. Entered into a partnership with Bookshare. Bookshare is the largest online accessible library of copyrighted content for people with print disabilities. Through its technology initiatives and partnerships, Bookshare seeks to raise the floor on accessibility issues so that individuals with print disabilities have the same ease of access to print materials as people without disabilities. As a publisher, the National Council for Law Reporting is Bookshares partner in a global initiative to make accessible content available for persons with print disabilities. The Council contributes to this initiative by submitting its copyrighted publications in digital files to Bookshare with an open licence to provide access to the publications to persons with print disabilities. 1
Beneficient Technology Inc./Bookshare www.bookshare.org
November 2011
1. Participated in an induction course for newly appointed District Magistrates at the Judiciary Training Institute, Nairobi. 2. Entered into a publishing partnership with The Star national daily newspaper.

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Kenya Law Reports
Bench Bulletin
Notes
YEAR IN REVIEW 2011
December 2011
1. Bereaved of Wilson K. Riungu, Office Assistant, National Council for Law Reporting 2. Launched Wakilishare, Kenyas first and leading online community forum and blog for the legal fraternity. 3. Participated at the Impact Sourcing Conference 2011 in Johannesburg, South Africa. 4. Due to hold the end of year staff retreat, during which the NCLR Team Leader of the Year 2011 and NCLR Team Player of the Year 2011 will be announced and celebrated. 1
The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.
Dwight D. Eisenhower
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