BBIssue 42

Issue 42
July - September 2018
A Judge’s membership to the Judicial Service

Commission does not warrant his/her recusal in
matters involving the Commission.
Supreme Court dismisses an application for extension of time where the application failed
to give cogent reasons for the delay Pg 10
The Salaries and Remuneration Commission does not have the mandate to limit the number of
remunerable meetings that a Constitutional Commission can have. Pg 31
Cultivation, possession and use of cannabis sativa by an adult in private and for personal use
Should be decriminalized Pg 58
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CONTENTS
Section 279(2) and 389 of the Penal Code Cultivation, possession and use of cannabis sativa
creates two conflicting sentences for the by an adult in private and for personal use should
offence of roberry with violence Pg 27 be decriminalized Pg 58
EDITORIAL TEAM 1. Editors Note 1

Editor /CEO 2. CJ’s Message 2
| Long’et Terer | 3. What they Said 4
Senior Assistant Editor/DCEO 4. Feature Case 6
| Janet Munywoki |
5. Cases 10
Editorial Assistant
| Linda Awuor | 6. Caseback 43
Contributors 7. Legislative Updates 44
| Njeri Githan’ga | Andrew Halonyere |Wambui Kamau | 8. Legal Supplements 50
| Nelson Tunoi | Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
| John Ribia | Eunice Chelimo | Faith Wanjiku |
9. International Jurisprudence 53
| Kevin Kakai | Christine Thiong’o |
| Patricia Nasumba |Musa Okumu| Lisper Njeru | 10. Law Reform Compilation 67
Design and Layout 11. Tribute 74
|Catherine Moni | Josephine Mutie | Cicilian Mburunga |
| Robert Basweti |
Proofreaders
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
Humphrey Khamala |
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Members of the Council
for Kenya Law
The Hon. Mr Justice David K. Maraga, EGH

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

Chief Registrar, The Judiciary Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Mr Henry Rotich, EGH
Cabinet Secretary, The National Treasury Ms Caroline Kigen
Represented by Mr Jona Wala Ag. Director, Financial Expert, The Judiciary
Accounting Services, National Treasury
BB Issue 42, July - September 2018
Editor’s Note
Long’et Terer
CEO/Editor
O
ver the past three months, the courts have delivered notable decisions forming
a wealth of progressive jurisprudence informed by the Constitution of Kenya,
2010. The past quarter has been a busy one for the courts in Kenya and Kenya
Law has been at the forefront of processing the information received through its law
reporting department. During this period, a total of 3625 judicial decisions were
collected from the superior courts of record and uploaded on the Kenya Law website.
These include a decision of the court of appeal holding that whether a question was
one of law or of fact was not the appellation given to such question by the party raising
the same; rather, it was whether the appellate court could determine the issue raised
without reviewing or evaluating the evidence, in which case, it was a question of law.
This decision, amongst others, has been highlighted in this edition of the Bulletin.
In keeping with its mandate of monitoring jurisprudence, Kenya Law monitors and
tracks frontier and emerging issues in regional and international jurisprudence to aid
the development of the law in Kenya. This quarter saw the development of two major
issues in the human rights sphere across the global. Firstly, India’s Supreme Court
ruled to decriminalize gay sex, in a historic and unanimous verdict handed down by
a five judge bench that will have a profound impact across the world. In its judgment,
the court held that interpreting Section 377 of the Indian Penal Code to criminalize
gay sex was irrational, arbitrary and indefensible. The court went on to declare that
any consensual sexual relationship between two consenting adults be it homosexuals,
heterosexuals or lesbians, could not be said to be unconstitutional.
Secondly, in South Africa, the Constitutional Court handed down judgment in
an application for the confirmation of an order of constitutional invalidity made by
the High Court of South Africa, Western Cape Division which declared legislation
criminalizing the use, possession, purchase and cultivation of cannabis unconstitutional.
The Constitutional Court held that section 4(b) of the Drugs Act was unconstitutional
and, therefore, invalid to the extent that it prohibited the use or possession of cannabis
by an adult in private for that adult’s personal consumption in private; The Court held
these statutory provisions to be constitutionally invalid because they infringed the
right to privacy entrenched in section 14 of the South African Constitution.
These two judgments have been captured in our international Jurisprudence
segment of the Bulletin. It is my hope that you will find this edition of the Bulletin both
informative and enlightening.
1
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Speech By Hon. David K. Maraga, Chief Justice And President Of The

Supreme Court Of Kenya During The Launch Of The Criminal Procedure
Benchbook On September 21, 2018.
I
n January 2017, I launched the current strategic blueprint for the Judiciary entitled,
Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda 2017- 2021.
A key aspect of this agenda is to continue, improve, and deepen the transformation
journey that the Judiciary has been on since the promulgation of the Constitution
2010 with a particular focus on enhancing service delivery for our clients. The SJT is
a continuation of the gains from the first phase of judicial reforms under the blueprint,
Judiciary Transformation Framework (JTF) which was in existence from 2012 until
2016. The development and completion of the Criminal Procedure Bench Book is a key
deliverable under the SJT agenda and it underlines the commitment to achieve the targets
set out therein.
The Criminal Procedure bench Book is one of the initiatives started under my
predecessor, Hon. (Rtd) Chief Justice Dr Willy Mutunga’s tenure that I have supported
and seen through to completion. Needless to say that it as an important tool even under
the current SJT framework. Specifically, the bench book is critical for purposes of
improved jurisprudence, well explained and laid out court processes, and the continuous
improvement of the manner in which we dispense justice in criminal proceedings.
Since 2010, the Judiciary has been developing a purposive, robust, indigenous, and
patriotic jurisprudence that reflects the values, principles and aspirations of all Kenyans
as reflected in the Constitution 2010. Further, Parliament has over the year’s enacted
legislation that significantly affects the criminal trial process. The courts have been at the
forefront of interpreting and implementing these provisions.
Developing on these major steps in criminal justice reforms, this Bench Book captures
the progressive jurisprudence and practices emerging from our superior and subordinate
courts on all aspects of criminal procedure. It also incorporates recent policy prescriptions
and, where applicable, international law and standards. The sum result of this Bench Book
shall be improved uniformity, efficacy and consistency in criminal proceedings across our
country. It shall be a crucial resource material for magistrates and judges during criminal
trials as well as the basis for further research, training, partnerships, benchmarking, and
research and development initiatives.
The core objective of the SJT strategy is to enhance service delivery for our clients
and court users. As such, I continue to support and emphasize mechanisms, processes
and initiatives on the reform of the criminal justice system, both procedurally and
substantively. In response to the findings and recommendations contained in the 2017
NCAJ commissioned audit of the criminal justice system, I immediately set up a multi-
agency Committee on Criminal Justice Reform under the auspices of NCAJ and chaired
by the Hon. Lady Justice Grace Ngenye, to examine all aspects of criminal justice reform.
The findings and recommendations contained in the Report of the Technical Committee
that developed this Criminal Procedure Bench Book shall be invaluable in our wider
2
efforts to improve the dispensation of justice in our criminal justice system and will
provide an appropriate springboard for the multi-agency committee.
Though developed primarily as a tool for those on the Bench, the utility of this Bench
Book goes beyond the Judiciary. This readable and comprehensive Bench Book will be
of value to prosecutors, advocates, probation officers, litigants, and other actors in the
criminal justice system. The manner in which the Bench Book was developed, by a multi-
agency committee that sought views from the spectrum of actors in the criminal justice
system including court user committees, shall reflect its use. I shall endeavor to ensure
that, through NCAJ and specifically the Committee on Criminal Justice Reform, that this
critical resource is widely disseminated and actively utilized for the betterment of our
criminal trial processes.
I am pleased and encouraged to note the role the played the National Council for Law
Reporting (KenyaLaw) in the development of this Bench Book. A key aspect of improving
service delivery to Kenyans through the Judiciary is ensuring that legal information
is public knowledge; that judicial decisions, jurisprudence and legal policies are easily
accessible to all those seeking to utilize such information. The National Council for Law
Reporting, which I chair, plays the key role in this regard and its role in the development of
the manual and digital versions of this Bench Book reflects the commitment to continue
monitoring and reporting on the development of jurisprudence for the promotion of the
Rule of Law.
I wish to thank the Technical Committee so ably chaired by Honourable Lady Justice
Hannah Okwengu for their efforts and commitment in producing a Bench Book of such
practical relevance and quality and a Report containing many valuable and insightful
findings and recommendations on policy and legislative reform on criminal procedure. I
would also like to thank our development partners for their support in the development
of this Bench Book, and for their continued partnership and assistance to the Judiciary in
its continuing journey of transformation. I thank you all.
Hon. David K. Maraga, EGH,

Chief Justice and President of the Supreme Court of Kenya
3
What they said
“
…the so called traditional gender role has been superseded by the provisions of
the Constitution and Marriage Act, 2014 and is not therefore a relevant factor in
determining whether or not an order for maintenance should be made in favour
of a husband. Indeed, justification for the reversal of the traditional gender role
is the Constitution and Marriage Act, 2014. In my view the primary and relevant
consideration when either spouse seeks maintenance from the other spouse is the
financial affairs of the spouses.”
Court of Appeal Judges – E M Githinji, H Okwengu & J Mohammed JJA in M E K v G L M - Civil Appeal No 66 of 2015
“
… the document filed was a nullity as it purports to be a notice of appeal filed under
the rules. It follows that no notice of appeal was filed in this matter and there is no
jurisdiction granted to the court to consider the extension of time as sought. The
court has no business crafting a jurisdiction it does not have, whatever amount of
sympathy it may have on the applicant. It has to down its tools.”
Court of Appeal Judges – P N Waki, F Sichale & J O Odek, JJ A, in Apungu Arthur Kibira v Independent Electoral and Boundaries
Commission & 2 others [2018] eKLR - Election Petition Appeal 11 of 2018
Per P N Waki & F Sichale, JJA (Majority Decision)
“
… the filing a Notice of Appeal at a wrong or inappropriate registry does not
necessarily and automatically affect the competence and validity of the Notice.
The rule requiring a party to file a Notice of Appeal at a particular registry or court
is merely directory. An error in designating or filing the Notice at an inappropriate
registry should not be fatal to the appeal.”
“ ... the place to file the Notice of Appeal is a directional issue not jurisdictional and
it is in this context that Rule 6 (5) vests discretion on this Court to determine the effect of
non-compliance with any of the Rules.”
Per Odek, JA Dissenting
“
…It is evident that robbery with violence does fall within the definition of a felony.
What punishment is offered for the offence of attempted robbery with violence?
Section 297 (2) on the one hand provides the death sentence while Section 389
provides for a sentence of imprisonment for a term not exceeding seven years if
the offence is punishable by death or life imprisonment. There is clearly a conflict
between the two Sections as to the sentence that should be meted out for the
offence of attempted robbery with violence.”
High Court Judge – E. K. O. Ogola, J in Felix Ochieng Omolo v Attorney General & another - Constitutional Petition No. 27
‘B’ of 2017
4
“
Appearing and arguing a substantive matter in any of the above Courts would
suffice as one of the requirements for consideration for purposes of conferment of
the rank of Senior Counsel. As far as I can gather from the rules, there are several
other criteria and rule 7(f) gives only one of them but not the only requirement.”
High Court Judge – E C Mwita, J in Jacqueline Okeyo Manani & 5 others v Attorney General & another - Petition No. 36 of
2018
“
In Kenya also voters are registered to vote in only one polling station, which will
of course be in one Ward and one |County. Under regulation 38 of the Elections
(Registration of Voters) Regulations 2012, Kenyan citizens residing outside
Kenya are only allowed to vote in Presidential Elections or Referendum. Under
Regulation 39 E, the same conditions apply to prisoners. As such, my constitutional
interpretation is that only those who were registered to vote in Wards in Garissa
County could qualify for nomination by the party to the County Assembly of Garissa.
High Court Judge – A Dulu, J in Victoria Cheruto Limo & another v Independent Electoral and Boundaries Commission &
another - Election Petition Appeal No 5 of 2018 and No 7 of 2018 (Consolidated)
“
… that is not within the 1st respondent’s (SRC) mandate and I am unable trace
anywhere among its functions both in the Constitution and the Act, the 1st
respondent’s power to set the number of meetings the petitioner as a state organ
(in this case, JSC) must have. Parliament which has legislative power did not find it
necessary to limit meetings and for that reason, no other institution may purport
to interfere by overreaching its mandate.”
High Court Judge – E C Mwita, J in Judicial Service Commission v Salaries and Remuneration Commission & another, -
Petition 274 of 2016
“
Alternative Dispute Resolution mechanisms of Article 159 (2) (c) must be
supportive and not destructive of the ability of the DPP to conduct his primary
role as the executor of the State’s powers of prosecution under Article 157 (6) of
the Constitution.”
High Court Judge – E M Muriithi, J in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & Salim Nginayo Juma –
Criminal Miscellaneous Application 79 of 2017
“
There is no constitutional requirement that JSC commissioners contemplated
in Article 171(2)(b)(c)(d) and (f) be approved by the National Assembly, and
that Article 250 (2) does not also apply to JSC Commissioners. In that regard,
therefore, section 15(2) cannot be constitutionally invalid for failure to provide
for mandatory approval of JSC Commissioners by the National Assembly.”
High Court Judge – E C Mwita, J in The Law Society of Kenya v National Assembly of Kenya and 3 others - Petition No 106 of
2018 Consolidated with Petition No 119 of 2018
5
Feature Case
A Judge’s membership to the Judicial Service Commission does not
warrant his/her recusal in matters involving the Commission.
Gladys Boss Shollei v Judicial Service Commission & another [2018] eKLR
Petition No. 34 of 2014
Supreme Court of Kenya
July 3, 2018
D K Maraga, CJ; P M Mwilu, DCJ; M K Ibrahim, J B Ojwang, & N Njoki, SCJJ
Reported by Long’et Terer
The Petitioner’s case had been referred to the In rendering its decision through a majority
Employment and Labour Relations Court, judgment, the court held that it had a special
which upheld her claim that the Judicial constitutional mandate which could not be
Service Commission (JSC) had violated delegated to any other forum in the entire
her fundamental rights and freedoms in governance set-up. The court held that it
removing her from office without a basis was guided by certain precious values, which
in law. The Court of Appeal reversed the provided the context within which it took
decision of the Employment and Labour ultimate responsibility for matters of dispute
Relations Court leading to an appeal pending settlement in accordance with the law. The
before the Court. The Petitioner prayed for instant matter was not one calling for the
judgment setting aside the Court of Appeal’s recusal of any Judge of the Court. Committed
decision. to the judges’ oaths of office, the Court stated
that it would pronounce itself unbiased
The JSC filed the instant Application seeking
and ready and willing to own up to Kenya’s
orders that the time-span for filing the
constitutional mandate of dispensing justice
Application be extended beyond the limit
in matters falling within its jurisdiction.
earlier prescribed, that most of the Court’s
Judges, in the full seven-Judge bench of that In the court’s view, the concept of fundamental
Court recuse themselves from the hearing of rights was a subject of constitutional
the Petitioner’s Appeal and that the costs of safeguard and a core pillar upon which the
the application be provided for. Court’s mandate was founded. The rights
in question were inherently and expressly
The JSC proffered the following justifications
attributed to citizens as the legatees of good
for seeking the recusal of the Court’s Judges:
governance and democratic process. On that
a. Chief Justice as Chairperson of JSC account, the court held that all rational and
and the Deputy Chief Justice as the tenable perception of the question of access
Court’s representative in JSC, had been to the judicial dispute-resolution process,
involved in JSC’s deliberations which had to be placed on balancing scale ensuring
JSC took the decision to file the instant
the entitlement of the citizen to justice, fair
Application
trial and constitutional safeguard. The cause
b. Lady Justice Njoki had active pending
of the individual who came knocking on
litigation against the JSC
the doors of the Judiciary was the very first
c. Justice J.B. Ojwang had 3 pending
consideration in determining whether or not
disciplinary proceedings with the JSC.
a hearing fell due.
d. Justice Lenaola recused himself from
hearing the appeal, having been a Justice Ibrahim, in a separate judgment
member of the JSC at the material time concurring with the majority held that the
that the Petitioner’s case was before the doctrine of necessity was more pronounced
JSC. in the instant matter and it was amplified by
6
the Constitution. He stated that the preamble members of the JSC or former members,
to the Constitution was unequivocal that had a duty to sit in the matter so as to affirm
it was the People of Kenya who gave unto constitutionalism.
themselves the Constitution. Accordingly,
In Justice Ibrahim’s view, Judges too, as
under article 163 of the Constitution, the
individual persons, enjoyed all the rights
people of Kenya established the Court,
in the Bill of Rights. They too enjoyed the
consisting of 7 justices (the Chief Justice, the
protection provided by article 22 of the
Deputy Chief Justice, and five other Judges).
Constitution to approach the High Court
Further, the judge The Constitution also
where they felt their Rights had been violated.
established the Judicial Service Commission
A person did not waive the protection of
(JSC), with its membership composition
article 22(1) when he/she became a judge.
clearly stipulated under article 171 (2)
Consequently, a judge who pursued his/her
of the Constitution. A scrutiny of that
constitutional rights protected by the Bill of
membership clearly showed that at any given
Rights could not have that used against him/
time 2 members of the Court had to be JSC
her as a ground for recusal. Membership in
Commissioners.
the JSC by a judge in the Court or any other
The Judge went on to state that among the Court was a constitutional imperative and as
Court’s Judges, the Court would or could such it could not be used without very good
have former JSC Commissioners. It could and valid reasons to exclude such a member
not therefore be stated in general terms that of JSC from sitting in a matter where the JSC
any Judge of the Court who sat in the JSC was involved.
would, as a matter of cause, not adjudicate
The court held thus that an application for
in a matter where the JSC was a party. Such
recusal should not seek to affirm the decision
a pronouncement, he averred, would be a
of the court/tribunal whose decision was
total mockery of the sovereign will of the
subject of appeal. An application for recusal
people of Kenya who established the two
was a shield to protect the applicant’s
institutions in the Constitution and willed
interest so that his/her matter was heard by
that they carried out their various functions
an impartial court. It was not a sword to be
simultaneously.
wielded by an applicant to steal a match and
Justice Ibrahim provided that the doctrine of deny a chance to the other party. Hence by
the duty of a judge to sit, though not profound praying that the effect of the Application will
in Kenya’s jurisdiction, required that every be the affirmation of the Court of Appeal
judge had a duty to sit in a matter which he decision, the Applicant sought to go beyond
duly should sit. Recusal therefore should not the genuine province of a recusal motion.
be used to cripple a judge from sitting to
Finally, Justice Ibrahim provided that the
hear a matter. That duty to sit was buttressed
fact that 3 judges recused themselves from
by the fact that every judge took an oath of
hearing the matter in Kalpana H. Rawal,
office: to serve impartially and to protect,
Philip Tunoi and David A. Onyancha v Judicial
administer and defend the Constitution. He
Service Commission and the Judiciary, did not
averred that that doctrine recognized that
by itself affirm the decision of the Court
having taken the oath of office, a judge was
of Appeal on the retirement age of judges
capable of rising above any prejudices, save
appointed before the promulgation of the
for those rare cases when he had to recuse
Constitution. That was clear and certain
himself. The doctrine also safeguarded the
from the final orders of the Court in that
parties’ right to have their cases heard and
matter. As the matter before the Court was
determined before a court.
an interlocutory application, the recusal and
The judge went on to state that there was a inability of the five-Bench to determine the
criticism of the doctrine of the duty of a judge applications meant that, de facto, the Court
to sit for being subject of abuse by judges, of Appeal judgment remained in force. The
so as to sit in matters when it was blatantly Applications in the Court were not spent or
clear that they were biased and ought not determined but remained in abeyance until
to have sat. However, where judiciously another Bench was empaneled.
invoked, the doctrine was a key component
Justice Njoki Ndungu agreeing with the
of constitutionalism. All judges of the Court,
7
majority in her concurring judgment article 249 of the Constitution, JSC was
added that pursuant to article 25 (c) of the supposed to protect the sovereignty of the
Constitution, the right to a fair trial was people, secure the observance by all State
non-derogable. All persons who came to the organs of democratic values and principles
Court were entitled to a fair hearing whether and promote constitutionalism. The judge
the matter instituted was criminal or civil stated that it was unclear what prejudice JSC
in nature. The right to a fair trial set out would suffer if the Court heard the instant
in article 50 (1) and (2) of the Constitution matter. The Petitioner herself had not raised
were the same and were both non-derogable the issue of an impartial bench, bias or any
by the provisions of article 25 of the prejudice that would arise if the bench as
Constitution. As such, when an individual constituted sat on her matter. It therefore
citizen petitioner rightly approached the baffled the mind how JSC could claim bias
Court, seeking to assert their constitutional in the face of an individual’s right to a fair
rights, the Court would be hard-pressed to hearing.
turn them away on the basis of claims of bias
Justice Ndung’u stated that the JSC could
by a respondent State organ.
not claim prejudice or bias when an
The Judge held that there was a positive duty individual citizen was seeking to exercise her
by the State to ensure that every Kenyan constitutional right to be heard as that flew
had the right to fair hearing which involved in the face of securing democratic values and
the right of appeal where conferred by the principles and promoting constitutionalism.
law or the Constitution. That obligation In addition, JSC had not sufficiently
included the Judiciary’s own participation as demonstrated the nexus between the interest
a State organ. The obligation equally applied and the resulting apprehension of bias.
to the JSC that stemmed from article 21(1) There was no nexus established between
of the Constitution. Article 19 (3) (a) of the the facts of the relevant matter between the
Constitution was categorical that the rights Court and the JSC and the instant matter. To
and fundamental freedoms in the Bill of find that membership of a judge in the JSC,
Rights belonged to each individual. automatically disqualified him or her on the
basis of perceived bias from hearing and
In the judges view, in the course of
determining any matter relating to the JSC
enforcement of the right to fair hearing,
would be to stretch the perception of bias too
when balancing the rights of different
far. That would inevitably mean that matters
claimants before the Court over the same
involving the JSC would, more often than
right and because of the personal nature of
not, be determined by the Court of Appeal
rights, priority had to be given to:
as the final Court; an absurdity and outright
a. The parties that were directly affected contravention of the Constitution.
by the violation of that right
b. Other parties to the suit that were The judge went on to state that a party
indirectly affected, such as interested was entitled to be heard by a Court before
parties. which he or she appeared even though it
c. The general public. was perceived to be conflicted, if there was
d. The interests of the State. no other Court to which he or she could go.
In the instant matter the Court ought to The doctrine of necessity and the duty to sit
have regard to the right to fair hearing of the would have to apply.
Petitioner first. Further still, the judge added that there was a
JSC, the judge provided, was a state organ presumption of impartiality of a judge. They
which was defined in article 260 of the would be able to disabuse themselves of any
Constitution as a commission, office, irrelevant personal beliefs or predispositions
agency or other body established under the when hearing and determining matters.
Constitution. JSC was established under The role of a judge was to ensure that cases
article 171 of the Constitution. It was also were determined in accordance with the
listed in Chapter 15 of the Constitution which Constitution and the law. The judge stated
pertained to commissions and independent that an application for recusal of a Supreme
offices. Under that chapter, pursuant to Court Judge could not be determined in
a similar manner as that of a judge of the
8
other superior courts due to the special a tribunal.

consideration that had to be given to its
Finally, the judge provided that Article
quorum. The Court was the final bastion
168(8) of the Constitution allowed a judge
in the architectural design of Kenya’s
who was aggrieved by a decision of the
Constitution that protected and defended
tribunal appointed by the President, to
the rights of every citizen and enforced the
appeal against the tribunal’s decision to the
obligations of the State towards them. Its
Court within 10 days after the tribunal made
intervention, when rightly invoked, as in
its recommendations. The Court would not
the instant case ought to be available to the
have to down its tools merely because the
citizens of Kenya.
JSC could be a party to such cause. Justice
It was the judges’ view that the Court had Ndung’u held that the Court downed its tools
previously dealt with matters in which the in an article 168 (8) petition, merely because
JSC had been a party and no issue of conflict the JSC was a party to that suit that would
of interest had arisen. Therefore, the fact be tantamount to the Court abdicating its
that the JSC did so in the instant case raised constitutional duty. It would be equivalent to
an eyebrow and might even be construed violating both the Judicial Code of Conduct
as cherry–picking an adjudication fora or which revered the oath of office taken
forum shopping which the law frowned by judges and section 10(1) of the Public
upon. Article 168 of the Constitution Officers Ethics Act which required judges of
concerned removal of a judge from office. the superior courts as public officers to carry
That removal could be initiated by the JSC out their duties in accordance with the law.
on its own motion or upon petition by any
Application dismissed
person to the JSC. If satisfied that the petition
was merited, the JSC sends the petition to the i. Petitioner’s Appeal to be fixed for
President. Within 14 days after receiving the hearing on priority basis.
Petition, the President had to suspend the
ii. Costs of the Application to abide the
judge from office acting in accordance with
determination of the main cause.
the recommendation of the JSC and appoint
Knowledge is power. Information is liberating. Education is the premise of progress, in every society, in every family – Kofi Annan
Some rights reserved erdbeernaut
9
Supreme Court
Supreme court dismisses an application for extension of time where the
application failed to give cogent reasons for the delay
Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission &
17 others [2018] eKLR
Civil Application No. 41 Of 2014
Supreme Court
May 8, 2018.
D. K. Maraga, CJ & President, J. B. Ojwang, S. C. Wanjala, N. S. Njoki & I. Lenaola, SCJJ
Reported by Felix Okiri
Election Law - election appeals-extension of time Court, in which case they would file an
for filing election appeal -whether the Supreme appeal.
Court could extend time to file an election petition
appeal out of time - whether the Applicant had Issues
laid satisfactory basis to warrant the Court to i. Whether the Court could grant an
extend time to file the appeal-Supreme Court extension of time for the Applicants to
Rules, 2012, Rule 31(1). file a notice of appeal and a petition of
appeal.
Constitutional Law-Supreme Court-appeals
ii. What were the principles to be considered
from Court of Appeal to Supreme Court-
in an application for extension of time?
certification of a Notice of Appeal raising matters
iii. Whether the application for extension of
of general public importance- whether the
time met the criteria set in Nicholas Kiptoo
intended appeal raised any constitutional matters
arap Korir Salat v. Independent Electoral and
to warrant appeal – whether the two-Judge
Boundaries Commission and 7 Others, Sup.
Bench in the instant Court should have addressed
Ct Application No. 16 of 2014 (Nick Salat
the application for extension of time, without
Case).
digressing into a determination of the question
whether the intended appeal had met the criteria iv. Whether an application for extension of
set out in article 163 (4) (a) of the Constitution - time ought to be heard without digressing
Constitution of Kenya, 2010, article 164(4). into a determination of the question
whether the intended appeal had met the
Brief facts criteria set out in article 163 (4) (a) of the
Constitution.
In compliance with the orders of the Court
of Appeal, the Independent Electoral and Relevant provisions of the law
Boundaries Commission (IEBC) published Supreme Court Rules
the TNA party list, in which it deleted the Rule 31(1)
names of the Applicants as nominated A person who intends to appeal to the
members of the Nyeri County Assembly on Court shall file a notice of appeal within
November 29, 2013. fourteen days from the date of Judgment
or Ruling, in Form B set out in the First
Having been aggrieved by the Court of Schedule, with the Registrar of the Court
Appeal’s decision, the Applicants (who were or with the tribunal it is desired to appeal
not parties to the proceedings at the Court from.
of Appeal) filed an application out of time
before the Supreme Court seeking extension Held
of time to file a notice of appeal at the Court
of Appeal. 1. There were two aspects of delay that had
to be addressed: the initial delay in filing
The Applicants submitted that they filed the notice of appeal; and the delay in
the application out of time as they were filing the application for review.
not sure whether the proper forum was the
Magistrate’s Court in which case they would 2. Rule 31(1) of the Supreme Court Rules
file an election petition, or the Supreme provided that a notice of appeal was to
10
be filed within 14 days of the delivery petition, essentially, the cause was
of judgment. A notice of appeal was a an electoral dispute, which ought
primary document to be filed outright to have been commenced by way of
whether or not the subject matter under election petition before an election
appeal was that which required leave or Court entrusted with jurisdiction. The
not. It was a jurisdictional pre-requisite. Constitution provided for two modes
of election. The first was election in
3. The Applicants had 14 days from the the conventional sense, of universal
date of delivery of the judgment of suffrage; the second was election by way
the Court of Appeal to file a notice of of nomination, through the party list. It
appeal. Consequently, the Applicants followed from such a conception of the
did not file the notice of appeal on or electoral process, that any contest to an
before the November 22, 2013 since the election, whatever its manifestation, was
Court of Appeal judgment was delivered to be by way of an election petition.
on November 8, 2013 yet they ought to
have. Instead, the Applicants waited till 7. It was not in doubt that in deleting the
the February 13, 2014. That was 96 days Applicants’ names from the nomination
after the delivery of the Court of Appeal list, the IEBC was acting not on its own
judgment to move the Court seeking motion, but in compliance with the
to extend time within which to file the Court of Appeal’s orders following the
notice of appeal. earlier suit filed in the appellate Court by
the Respondents. In the circumstances,
4. The Applicants had sought to explain the most logical course of action open to
that delay on grounds that they did not the Applicants was to appeal the decision
know the appropriate forum in which and consequential orders of the Court of
to seek redress: an argument which, Appeal to the instant Court.
could not excuse such inordinate delay.
To allow an intending Appellant who 8. The Constitution and the electoral
had inordinately delayed in moving the law envisaged the entire process of
appeal process, to come to the Court and nomination for the special seats, including
claim that he/she did not know whether the act of gazettement of the nominees’
to move the Court or not, would be names by the IEBC as an integral part of
setting a negative precedent. the election process. Being an electoral
dispute, the parties were bound by the
5. The second delay was with respect to the imperative of time. There was nothing
filing of the application for review. The that prevented the Applicants from filing
impugned ruling was delivered on March a notice of appeal against the decision
18, 2014. The Applicants thereafter filed of the Court of Appeal, even as they
the application for review on November pondered their next course of action.
20, 2014. That was approximately 235
days after the delivery of the ruling. No 9. Although the two-judge bench in the
explanation was given for that delay. instant Court should have addressed the
Instead, the Applicants maintained that application for extension of time, without
it was only to the Court they could turn, digressing into a determination of the
having been aggrieved by the appellate question whether the intended appeal
Court’s judgment. There was no doubt had met the criteria set out in article 163
that the Court, for sustaining ends of (4) (a) of the Constitution, such action by
justice, had an inherent jurisdiction to the Court, did not excuse the inordinate
grant an application for the extension of delay in filing the instant application by
time, to enable a party to pursue its cause. the Applicants.
However, the Court would only exercise
that discretion in favour of an Applicant, Per N.S. Ndungu, SCJ (Dissenting)
where the latter presented a compelling 1. The Majority had found that there
case justifying the inordinate delay. was inexcusable delay in filing of the
6. Although those proceedings originated application and had consequently
in the High Court as a constitutional dismissed it. However, since it was
important to take into account the legal
11
principles propounded by the Court case, one of the requirements was that
on extension of time in Nick Salat case. the Applicant should furnish the Court
The Ruling of the two-judge bench with sufficient reasons for the delay. The
was rendered on March 18, 2014; Applicants had submitted that the reason
while the Nick Salat ruling came later, for the delay was that the Applicants
on July 4, 2014. Nick Salat case set out were not party to the proceedings at
cogent principles on extension of time the Court of Appeal; and so, after the
applications which might be considered Appellate Court delivered its judgment
to represent the current jurisprudential on November 8, 2013, the Applicants
state of affairs. The Court had been waited for the National Alliance Party
categorical that, at the stage of application (TNA) to come up with a list of nominees
for extension of time, an Applicant only of Member of County Assembly
needed to demonstrate a prima facie Representatives, for gazettement by the
case that raised issues of constitutional IEBC. When the list was finally gazetted
interpretation or application. on November 29, 2013 the Applicants
realized that their names were missing,
2. Nick Salat case set out the following and they sought to remedy the situation.
guiding principles on the question of The Applicants were unclear as to the
extension of time. proper avenue to redress the substantial
a. Extension of time was not a right of injustice they had suffered. It was not
a party. It was an equitable remedy clear whether the proper forum was
that was only available to a deserving the Magistrate’s Court in which case
party at the discretion of the Court; the Applicants would file an election
b. a party who sought extension of time petition, or the Supreme Court, in which
had the burden of laying a basis to the case they would file an appeal.
satisfaction of the Court;
5. The time gap between the date of
c. whether the Court should exercise
delivery of judgment of the Court of
the discretion to extend time, was a
Appeal (November 8, 2013), and the
consideration to be made on a case to
date of its implementation by the IEBC,
case basis;
which was the date of the gazettement
d. where there was a reasonable cause
of the nomination list (November 29,
for the delay, the delay should be
2013) was sufficient reason for the delay.
explained to the satisfaction of the
That was because the prescribed period
Court;
(14 days) for filing a notice of appeal
e. whether there would be any prejudice
had already lapsed. Further, the lack of
suffered by the Respondents if the
clarity on the part of the Applicants as to
extension was granted;
the proper forum to seek recourse for the
f. whether the application had been
grievances they had against the Court of
brought without undue delay; and
Appeal decision was reason enough for
g. Whether in certain cases, like election
the delay. That was especially because
petitions, public interest should be a
it appeared that the Applicants were
consideration for extending time.
indirect parties in the matter before the
3. It was apparent from the ruling of Court of Appeal.
March 18, 2014 that after considering
the question as to whether the intended 6. The prejudice likely to be occasioned
appeal raised issues of constitutional was another factor that should be taken
interpretation and application, the two into account before an application
judge bench, had not considered the for extension of time was allowed. In
pertinent issue of extension of time. The the instant matter it was evident that
question as to whether the Applicants had the Respondents, with the exception
demonstrated cause for the delay in filing of the IEBC, were sitting Members of
the notice of appeal, to the satisfaction of the County Assembly of Nyeri; and
the Court, merited consideration. thus, if the application was allowed, no
prejudice would be occasioned on them.
4. For an application for extension of time Conversely, the Applicants would suffer
to have met the criteria set in Nick Salat prejudice if extension of time was denied.
12
7. The development of law on extension of application would have been allowed.

time, by the Nick Salat ruling, provided
a basis for reviewing the decision of Application dismissed, each party was to bear
the two-judge bench, and for extending own costs.
time for filing a notice of appeal. The
To live is to choose. But to choose well, you must know who you are and what you stand for, where you want to go and why you want to get there –
Kofi Annan
Some rights reserved René Mayorga
13
Court of Appeal
Effect of filing a notice of appeal at the wrong registry and failure to
comply with legal stipulations on the form and content of the notice of
appeal
Apungu Arthur Kibira v Independent Electoral and Boundaries Commission & 2 others
Election Petition Appeal No 11 of 2018
Court of Appeal at Kisumu
July 19, 2018
P N Waki, F Sichale & J Otieno-Odek, JJ A
Reported by Beryl A Ikamari
Electoral Law-election petition appeal-notice of filed at the High Court registry at Kakamega
appeal-time allowed for filing a notice of appeal- instead of the Court of Appeal registry at
extension of time allowed for the filing of a notice Kisumu. It took one month for the mistake
of appeal-whether the Court of Appeal could to be noticed. The form and content of the
enlarge time allowed for the filing of a notice of notice of appeal was also not as required
appeal-Court of Appeal (Election Petition) Rules, by the rules. In relation to the notice of
2017, rules 17(1), 3, 4(3) & 5. appeal, there were various applications.
The Appellant wanted it to be deemed as
Electoral Law-election petition appeal-notice of
properly filed or for time to be enlarged
appeal-form and content of a notice of appeal-
for it to be filed and served afresh while the
effect of failure to comply with legal requirements
Respondents wanted it to be struck out.
as to the form and content of a notice of appeal
in an election petition- Constitution of Kenya Issues
2010, article 159(2)(d); Court of Appeal (Election i. Whether the Court of Appeal could
Petition) Rules, 2017, rules 6 & 8. enlarge time allowed for the filing of a
Electoral Law-election petition appeal-notice notice of appeal.
of appeal-registry in which a notice of appeal ii. What was the effect of failure to comply
ought to be filed-effect of filing a notice of appeal with legal requirements as to the form and
at the wrong registry-Constitution of Kenya content of a notice of appeal as stipulated
2010, article 159(2)(d); Court of Appeal (Election in rule 6 of the Court of Appeal (Election
Petition) Rules, 2017, rules 6(3)(c) & 6(5). Petition) Rules, 2017?
iii. Whether the filing of a notice of appeal in
Brief facts election matters at a registry which was
In the general elections held on August 8, not the legally prescribed registry was
2017, the 3rd Respondent was declared as a defect which was a jurisdictional issue
validly elected as Member of the National that was incapable of being corrected.
Assembly for Luanda constituency in
Vihiga County. He garnered 15,117 votes
Held
while the Appellant who was his closest
rival garnered 11,304 votes. There were a 1. Election petitions and election petition
total of 6 candidates in the election. The appeals were sui generis and they were not
Appellant challenged the election of the 3rd on the same plane as ordinary civil suits.
Respondent at the High Court but the High Electoral laws were to be interpreted
Court dismissed his petition and affirmed strictly within the corners and confines
the election. of those laws as they entailed a special
jurisdiction created by the Constitution
Against the High Court’s judgment, the
and statutes and civil process was not
Appellant lodged an appeal by filing a notice
applicable to electoral laws.
of appeal. Contrary to the requirements of
rule 6(1) of the Court of Appeal (Election 2. The jurisdiction of the Court in electoral
Petition) Rules, 2017, the notice of appeal was issues was based on article 164(3) and
14
87(1) of the Constitution. Article 87(1) of to the notice of appeal, there was no need
the Constitution required Parliament to to consider the merits of the main appeal.
enact legislation to establish mechanisms The appeal ought to be struck out as the
for the timely settling of electoral notice of appeal was a nullity.
disputes. Therefore, statutory provisions,
Per J Otieno Odek, JA [dissenting]
regulations and rules relating to electoral
disputes could be said to be normative 1. A notice of appeal occupied a central pace
derivatives of the Constitution. and without it, there was no appeal. The
notice of appeal was what would give the
3. Section 85A of the Elections Act restricted
Court jurisdiction to hear an appeal.
and confined the appellate jurisdiction of
the Court of Appeal in electoral matters 2. The filing of a notice of appeal at the
to matters of law only. A notice of appeal wrong registry did not per se go to the root
was declared by the Supreme Court to be and merits of an intended appeal. The
a jurisdictional issue and not a technical filing of a notice of appeal at the wrong
matter of procedure. Article 159 (2) (d) of registry was an error that was curable at
the Constitution was not a panacea for the discretion of the Court pursuant to
all procedural infractions and it simply rule 6(5) of the Court of Appeal (Election
meant that a court of law should not pay Petition) Rules 2017; the Court was
attention to procedural requirements at enjoined under article 159(2)(d) of the
the expense of substantive justice. Constitution to administer substantive
and not procedural and technical justice.
4. The issue relating to the filing of the notice
of appeal was not a procedural technicality 3. The filing of a notice of appeal at a wrong
capable of being cured under article 159 of registry and within the time stipulated for
the Constitution. Under rule 17(1) of the taking any action should not per se have
Court of Appeal (Election Petition) Rules, rendered the notice and record of appeal
2017, the Court of Appeal had jurisdiction null and void. There were considerations
to extend or reduce time prescribed by that the Court ought to take into account
the rules, except for timelines set by the in deciding whether to strike out such a
Constitution and the Elections Act, 2011. notice of appeal or not;
The power to extend time under rule 17(1) a) Whether the notice of appeal was filed
of the Court of Appeal (Election Petition) and served within time.
Rules, 2017 when read together with rules b) Whether a reasonable person served
3, 4(3) and 5 of the same rules, meant that with the notice of appeal understood
time could only be extended or reduced what it meant. It must mean that the
in relation to documents which the Court Appellant intended to appeal and had
of Appeal had competence or jurisdiction filed a notice of appeal.
to consider. c) Whether the Respondent or person
5. The notice of the appeal filed at the registry served suffered any prejudice by
of the High Court at Kakamega, did not having the notice of appeal filled at
embody the prerequisites set out in rule 6 the wrong registry. If no prejudice was
of the Court of Appeal (Election Petition) suffered, the notice of appeal filed at
Rules, 2017 and it could not be said to be a the wrong registry should not be null
notice of appeal. The document filed was and void.
a nullity as it purported to be a notice of d) If the notice of appeal filed at an
appeal filed under the rules. inappropriate registry was transmitted
and received at the correct/appropriate
6. Under rule 8 of the Court of Appeal registry, then the notice should not be
(Election Petition) Rules, 2017, there was incompetent, null and void.
a mandatory requirement that the record
4. The rule requiring a party to file a notice
of appeal would contain, inter alia, the
of appeal at a particular registry or
notice of appeal. The one on record was
court was merely directory. An error
a nullity. Therefore, the record of appeal
in designating or filing the notice at an
ought to be struck out.
inappropriate registry should not be
7. Given the nature of findings in relation fatal to the appeal. In filing the notice of
15
appeal a clear intention to appeal the Trial infraction or non-compliance with a

Court’s decision was expressed and there constitutional principle would lead to
was no expressed intention to abandon the invalidation of declared results.
the appeal. The rule directing a party on b) Section 83 of the Elections Act clearly
where to file a notice of appeal was aimed provided that not every infraction or
at creating finality of the judgment at the non-compliance with the Elections
Trial Court. Act and Regulations would lead to the
nullification of results.
5. Striking out a notice of appeal on the
c) Rule 6(5) of the Court of Appeal
basis that it had been filed at a wrong
(Election Petition) Rules, 2017 was to
or inappropriate registry would annul,
the effect that it was not automatic
reverse and countermand the right to
that non-compliance with rules would
appeal. The net effect was denial of the
be fatal, the Court had jurisdiction
right to appeal.
to determine the effect of non-
6. The fact that a court had power to extend compliance.
time to file a notice of appeal ipso jure 10. The Court should strive to preserve
meant that unless extension of time was the right of a party to a hearing based on
expressly prohibited by the Constitution merit. Any irregularity in the notice of
or any other written law, the Court had appeal should be liberally construed to
discretion to extend time and excuse any preserve the sufficiency of the notice.
non-compliance affecting the notice of
appeal. 11. There was a distinction between
there being no notice of appeal or the
7. The Court of Appeal (Election Petition) notice being filed out of time which was
Rules 2017 was operational and a jurisdictional matter and a defective
administrative in nature. The rules notice of appeal filed within time which
addressed the manner in which the Court was an irregularity issue. The legal effect
of Appeal exercised its jurisdiction in of any irregularity or defect in or on the
election petition appeals. The Rules did notice of appeal must be determined on
not confer jurisdiction on the Court to a case by case basis taking into account
hear election petition appeals. That was the nature of the defect or irregularity,
clear from regulation 3 of the Rules which the delay in making an application to
stipulated that the object and purpose regularize the same, the prejudice if any to
of the Rules was to facilitate the just, the opposing party, the sufficiency of any
expeditious and impartial determination explanation given and any other relevant
of election petition appeals in exercise of consideration. The issue with respect to
the Court’s appellate jurisdiction under the impugned notice of appeal was an
article 164(3) of the Constitution. irregularity and not a jurisdictional issue.
8. Rule 6 (3) (c) of the Court of Appeal Appeal dismissed
(Election Petition) Rules simply stated
that the notice of appeal shall contain Orders:-
a request that the appeal be set down i. The notice of motion (for the extension
for hearing in the appropriate registry. of time for filing the notice of appeal or
Appropriate registry was defined to be the for the notice to be deemed to have been
Court of Appeal Registry. The place to duly and properly filed) by the Appellant
file the notice of appeal was a directional dated and filed on March 16, 2018 was
issue not jurisdictional and it was in that dismissed.
context that rule 6 (5) vested discretion on ii. The notice of motion (for the striking
the Court to determine the effect of non- out of the notice of appeal) by the 1st
compliance with any of the Rules. Respondent and the Returning Officer,
Luanda Constituency, dated March 26,
9. For the following reasons the filing of
2018 and filed on March 27, 2018 was
the notice of appeal at an inappropriate
allowed.
registry would not make the notice
iii. The notice of preliminary objection
incompetent:-
filed by the Appellant against the notice
a) In election disputes, not every
16
of motion dated March 26, 2018 was v. The costs of the applications and the
rejected. struck out appeal shall be borne by the
iv. The record of appeal dated and filed in Appellant.
the Court of Appeal at Kisumu on March
16, 2018 was struck out.
The test of whether a question was one of law or of fact was whether the
appellate court could determine the issue raised without reviewing or
evaluating the evidence
Sumra Irshadali Mohammed v Independent Electoral and Boundaries Commission &
another [2018] eKLR
Election Petition Appeal No.22 of 2018
Court Of Appeal
At Nairobi
July 6, 2018.
M. Warsame, A. Makhandia & J.O Odek, JJ.A
Jurisdiction-appellate jurisdiction-jurisdiction that the original form 35B was not presented by
of the Court of Appeal - jurisdiction of the Court the 1st Respondent for scrutiny due to the reason
of Appeal in election petition appeals - appeals that the initial R.O had since left office and the
relating to matters of law - where the phrase ‘erred subsequent R.O could not trace Form 35B - what
in law and fact was inserted in the Memorandum was the purpose for an order of scrutiny and
of Appeal – whether the Memorandum of Appeal recount?
called the Court to determine matters of fact and
Judicial Officer - judge – recusal of a judge of
as a result deprived the Court Jurisdiction to
the Court of Appeal – application for the recusal
entertain a matter - Elections Act, section 85A
of a judge of the Court of Appeal - principles for
Statutes-interpretation of statutory provisions- determining the recusal of a judge – what was the
section 85A of the Elections Act-appellate test of determining bias where an application was
jurisdiction in election petitions-appeals from made for the disqualification of a person from
the High Court to the Court of Appeal-the acting in a judicial or quasi-judicial capacity
requirement that election petition appeals to the on the ground of interest (other than pecuniary
Court of Appeal were to be founded on questions or proprietary) in the subject-matter of the
of law only-the nature of questions that would proceeding
constitute questions of law- the test of determining
Brief facts
what was a matter of law in an election petition
appeal -Elections Act, No 24 of 2011, section 85A. The Appellant was aggrieved by the conduct
of the elections and the results declared by
Electoral Law – elections – election documents
the 1st Respondent. The Appellant alleged
– Form 35B – the absence of 35B– what was the
that there were different sets of results,
effect of the absence of Form 35B which was a
including: those that were announced
material document
by the returning officer (R.O); those that
Electoral Law – election petition – joinder of were shown on the public portal; and the
parties – scope of parties who can be joined as others that were published in the Kenya
respondents in an election petition – where the Gazette. It was contended that each of those
Returning Officer (R.O) was not enjoined as a results showed different discrepancies and
Respondent - whether the R.O who conducted the therefore, it was impossible to ascertain the
election that was complained of was supposed to actual results declared after the elections in
be a mandatory party to the petition –whether Embakasi South Constituency.
the non-joinder of the R.O was fatal - Elections
The Appellant sought declarations that the
(Parliamentary and County Elections) Petition
2nd Respondent was not validly elected; and
Rules, Rule 2
that the Appellant was the validly elected
Election law- election petition-scrutiny and Member of National Assembly for Embakasi
recount of votes – where scrutiny report indicated South Constituency.
17
Issues 2. With specific reference to section 85A

i. What was the jurisdiction of the Court of of the Act, a question of law was one
Appeal in appeals from election petitions? involving:
ii. What was the test in determining whether a. the interpretation, or construction
a question was one of law or of fact? of a provision of the Constitution,
iii. Whether the R.O who conducted the an Act of Parliament, subsidiary
election that was complained of was legislation, or any legal doctrine,
supposed to be a mandatory party to the in an election petition in the High
petition or whether his non-joinder was Court, concerning membership of
fatal. the National Assembly, the Senate, or
iv. Whether it was incumbent upon the the office of County Governor;
Independent Electoral and Boundaries b. the application of a provision of the
Commission (the 1st Respondent) to Constitution, an Act of Parliament,
transmit results for all the elective subsidiary legislation, or any legal
positions. doctrine, to a set of facts or evidence
v. What was the authoritative set of results on record, by the trial Judge in an
between the results in - 1st Respondent election petition in the High Court
public portal; those published in the concerning membership of the
Kenya Gazette; and those announced by National Assembly, the Senate, or the
the returning officer where there was office of County Governor;
inconsistency in those different results? c. The conclusions arrived at by the trial
vi. What was the effect of the absence Judge in an election petition in the
of Form 35B which was a material High Court concerning membership
document in parliamentary elections? of the National Assembly, the Senate,
vii. What was the purpose for an order of or the office of County Governor,
scrutiny and recount? where the Appellant claimed that
viii. What was the test of determining bias such conclusions were based on no
where an application was made for the evidence, or that the conclusions
disqualification of a person from acting were not supported by the established
in a judicial or quasi-judicial capacity facts or evidence on record, or that
on the ground of interest (other than the conclusions were so perverse, or
pecuniary or proprietary) in the subject- so illegal, that no reasonable tribunal
matter of the proceeding? would arrive at the same. It was not
ix. When was the issue of margins relevant enough for the Appellant to contend
in an election other than a Presidential that the trial Judge would probably
election? have arrived at a different conclusion
Held on the basis of the evidence.
3. Under section 85A of the Act, a petition
1. The Court’s jurisdiction was limited by
which required the Appellate Court to
section 85A of the Elections Act (the Act).
re-examine the probative value of the
The jurisdiction of the Court in appeals
evidence tendered at the Trial Court, or
from election petitions was limited to
invited the Court to calibrate any such
only matters of law. A matter of law was
evidence, especially calling into question
that which contained any of the following
the credibility of witnesses, was not to be
elements:
admitted.
a. the technical element: involving the
interpretation of a constitutional or 4. The Court was a court of justice, and where
statutory provision; the grounds raised in the memorandum
b. the practical element: involving the of appeal disclosed that the Court was
application of the Constitution and asked to consider a matter of law, then
the law to a set of facts or evidence on the Court ought to consider the ground
record; raised despite the fact that the first words
c. the evidentiary element: involving as set out in the memorandum included
the evaluation of the conclusions the phrase ‘erred in law and fact.’ The test
of a Trial Court on the basis of the of whether a question was one of law or of
evidence on record. fact was not the appellation given to such
18
question by the party raising the same; before a Court without affecting that
rather, it was whether the appellate court Court’s jurisdiction to entertain them.
could determine the issue raised without A Court could cure such a defect, taking
reviewing or evaluating the evidence, in into account the relevant facts and
which case, it was a question of law. circumstances.
5. Drafting of pleadings was a technical 9. Deviations from and lapses in form
matter. If the judge had deduced an and procedures which did not go to
unknown legal principle from the facts the jurisdiction of the Court, or to the
of the case to arrive at his decision, it root of the dispute or which did not at
would be preposterous to shut out a all occasion prejudice or miscarriage of
litigant simply on account of inelegance justice to the opposite party were not be
in drafting. The Court had to ensure that elevated to the level of a criminal offence
justice prevailed at all times and that attracting such heavy punishment of
section 85A of the Act was not used as a the offending party, who might in many
roadblock to shut out genuine grounds of cases be innocent since the rules of
appeal on account of poor drafting of the procedure were complex and technical.
grounds of appeal. The memorandum of Instead, in such instances, the Court
appeal clearly set out various issues of law should do justice by sparing the parties
upon which the Appellant had challenged the draconian approach of striking out
the judgment of the Trial Court. pleadings.
6. In line with section 85A(1)(a) of the 10. While it was good practice to seek leave
Elections Act, any record of appeal to file documents out of time when filing
was to be filed within thirty days of the a memorandum of appeal, in the instant
judgment sought to be appealed from. appeal, it was only the supplementary
In the instant appeal, the judgment of record of appeal that was filed late.
the High Court was delivered on March That was the kind of defect that article
22, 2018. Rule 9 of the Court of Appeal 159 of the Constitution mandated the
(Election Petition) Rules also required Court to cure. There was no merit in the
that the record of appeal be filed within complaint.
thirty days from the date of the judgment
11. The fact that the R.O was not joined, yet
of the High Court.
he was alleged to have participated in a
7. The record of appeal contained 14 scheme to rig in the 2nd Respondent
volumes. The first 8 volumes were filed amounted to condemning him unheard
on the March 29, 2018. Those volumes and would go against the rules of natural
were therefore within time. However, justice. It was necessary to make the R.O
the remaining 6 volumes were out of a party to the petition. However, the
time as they were filed between the contention that the Appellant exposed
April 2, 2018 and the April 5, 2018. The himself to any risk by the said omission
failure to file the remaining volumes was was not right. That was because the
not an omission that went to the root issue was moot having been conclusively
of the appeal or in any way affected the determined as a preliminary issue and
jurisdiction of the Court. A court dealing no appeal had been preferred against the
with a question of procedure, where said decision.
jurisdiction was not expressly limited
12. The Trial Court failed to take into
in scope – as in the case of articles 87(2)
consideration the provisions of section
and 105(1) (a) of the Constitution could
106, 107 and 110 of the Evidence Act.
exercise discretion to ensure that any
The said provisions bestowed upon the
procedural failing that lent itself to cure
Respondents the duty to answer to the
under article 159, was cured.
case of the Appellant. That was not done.
8. Certain procedural shortfalls did not
13. While pleadings played a pivotal role,
have a bearing on the jurisdiction of
they did not lead to the conclusion that
judicial power to consider a particular
elegant or well drafted pleadings would
matter. Procedural shortcomings only
automatically guarantee a success in a
affected the competence of the cause
case. What guaranteed success was the
19
evidence tendered by the parties and as well as the Trial Court did not exercise
application of the facts on the law. their jurisdiction, prudently reasonably
and unfortunately arrived at a perverse
14. Rule 2 of the Elections (Parliamentary and
conclusion.
County Elections) Petition Rules defined
a ‘Respondent’ in an election petition as 18. The absence of Form 35B which was
including the R.O who conducted the a material document was fatal. It was
election that was complained of. Rule impossible to say with certainty and
14 of those Rules further required a precision that the 2nd Respondent
Respondent to file affidavits sworn by was the winner. Once the validity of
him as well as each of the witnesses that the declaration of results of the 2nd
he intended to call during hearing of the Respondent was in question, clear doubt
petition. However, the election court had was created, it was mandatory to place
canvassed that issue and found out that material to persuade the Trial Court that
the R.O was not a mandatory party to the the results, declaration and gazettement
petition. were legitimate. That was not done.
The explanation proffered and decision
15. Section 39 of the Elections Act did not
arrived at by the Trial Court could not
require the 1st Respondent to transmit
stand judicial scrutiny and reasoning.
results for all the elective positions, only
The results given by the 1st Respondent
for the presidential election. However,
were not verifiable and were in violation
for reasons best known to itself, the
of the mandatory requirements of articles
1st Respondent opted to electronically
81 and 86 of the Constitution, section 39
submit the results of the election
and regulation 83 of the Elections Act
that was subject of the appeal, and as
and General Regulation.
conceded by it, made various errors in
that transmission. That of itself was not 19. The purpose for an order of scrutiny and
a ground to vitiate an election. recount was to:
16. The results contained in the form 35A a. Assist the court to investigate if
were the final results that ought to be the allegations of irregularities and
declared. It was incumbent upon the R.O breaches of the law complained of
to count, collate, tabulate and declare the were valid.
winner after an election. That exercise b. Assist the court in determining the
had to be based on the results contained valid votes in favour of each candidate.
and captured in Forms 35A from all c. Assist the court to better understand
polling stations. The tallying, tabulation the vital details of the electoral process
and collation had to be accurate, and gain impressions on the integrity
verifiable and secure in order to meet the of the electoral process.
constitutional threshold set out under 20. In the instant matter, the findings of the
article 81 and 86 of the Constitution. scrutiny report indicated that the original
That position was fortified under section form 35B was not presented by the
39 (1) of the Election Petition Act, which 1st Respondent for scrutiny due to the
provided that the R.O was responsible for reason that the initial R.O had since left
tallying, announcement and declaration office and the subsequent R.O could not
of the results in the prescribed form. trace Form 35B. Form 35B was therefore
not scrutinized as per the orders of the
17. Free and fair elections was the fountain
court. The statutory documents used
source of parliamentary democracy. The
in the conduct of the election belonged
attempt of the R.O to use two different
to the 1st Respondent, and were not
and divergent results to declare and
personal property of the various officials
gazette the winner and the Trial Court’s
who were employed for the purpose
attempt to chart the easy course of
of the election. The fact that an officer
sustaining an invalid and unsustainable
had left employment was therefore not
results, unsupportable by evidence was
ground for refusing to avail the necessary
a clear manifestation of dereliction of
documents pursuant to court orders.
constitutional obligation and duty on the
1st Respondent and Trial Court. The R.O, 21. Section 39(1A)(1) of the Act made it
20
mandatory for the R.O to tally, announce by the party complaining, but from such
and declare in the prescribed form, the further facts as one might readily have
final results from each polling station ascertained and easily verified in the
in the constituency for the election of a course of his inquiries. A real likelihood
member of the National Assembly. That of bias had to be proved to exist before
information had to be captured in the proceedings were vitiated.
Form 35B and in the manner prescribed.
26. The apprehension of bias had to be
22. The only way that the Court could have a reasonable one held by reasonable
verified the results of the election was and right-minded persons, applying
by determining what the results in the themselves to the question and obtaining
original forms were; however, those thereon the required information. The
were not availed and as such, it could test was what would an informed person,
not be said that the Appellant failed to viewing the matter realistically and
meet the burden of proof to the required practically and having thought the matter
standard. The 1st Respondent failed to through, conclude. That test contained a
fully and candidly discharge its duty to two-fold objective element:
bring before the Court all evidence in its a. The person considering the alleged
possession, control and within its ability bias had to be reasonable and the
to enable the Court to decide the petition. apprehension of bias itself had to be
In the absence of the validated form 35B reasonable in the circumstances of the
from the 1st Respondent, there was no case. The reasonable person had to be
verifiability of Form 35C. an informed person, with knowledge
23. The Court had no jurisdiction to re- of all the relevant circumstances,
evaluate a factual determination unless including the traditions of integrity
such conclusions were based on no and impartiality that formed part of
evidence or not supported or arising the background and apprised also of
from the evidence on record or that the the fact that impartiality was one of
conclusions were so perverse, or illegal the duties the judges swore to uphold.
that no reasonable Court addressing b. The reasonable person was also to
its mind and wearing its judicial lenses be taken to be aware of the social
and being conscious to the applicable reality that formed the background
legal principles would arrive at such to a particular case, such as societal
conclusion. That was the only acceptable awareness and acknowledgement of
and required standard that inhibited the the prevalence of racism or gender
jurisdiction of the Court. bias in a particular community.
27. A real likelihood or probability of bias
24. With 4 different sets of results, absence
had to be demonstrated and a mere
of all forms 35A and refusal of the 1st
suspicion was not enough. The existence
Respondent to avail the original Form
of a reasonable apprehension of bias
35B, it was against or contrary to fair
depended entirely on the facts. The
play and in negation of the principles of
threshold for such a finding was high and
accuracy, verifiability and transparency
the onus of demonstrating bias lay with
to say that the 2nd Respondent legally
the person who was alleging its existence.
and legitimately won the election. The
Appellant placed enough and adequate 28. To a reasonable man, it appeared that a
material to nullify the election of the 2nd party who had an interest in the outcome
Respondent. of the election was employed by the 1st
Respondent, who had a constitutional
25. To disqualify a person from acting in a
edict to remain impartial. That not only
judicial or quasi-judicial capacity on the
gave rise to the apprehension of bias,
ground of interest (other than pecuniary
but also showed that there was a real
or proprietary) in the subject-matter of
likelihood of bias. The election in that
the proceeding, a real likelihood of bias
tallying center was not conducted in a
had to be shown. A real likelihood of
free and fair manner.
bias had to be made to appear not only
from the materials in fact ascertained 29. The margin of votes between the Appellant
21
and the 2nd Respondent was a mere 165 March 2, 2018 and the subsequent orders
votes. The issue of margins in an election were set aside in their entirety;
other than a Presidential election, could b. The 2nd Respondent’s application dated
only bear transient relevance and only April 10, 2018 seeking to strike out the
where it was alleged that there were appeal was dismissed with costs to the
counting, and tallying errors or other Appellant;
irregularities that affected the final result. c. The certificate issued by the Election Court
A narrow margin between the declared pursuant to section 86 of the Elections
winner and the runner-up beckoned as a Act was set aside and substituted with
red flag where the results were contested a Certificate that the 2nd Respondent
on allegations of counting and tallying was not validly declared as having been
errors at specified polling stations. Where elected as Member of National Assembly
a re-count, re-tally or scrutiny did not for Embakasi South Constituency during
change the final result as to the gaining the elections held on the August 8, 2017;
of votes by candidates, the percentage d. The 1st Respondent was directed to
or margin of victory however narrow, organize and conduct a fresh election
was immaterial as a factor in the proper for the position of Member of National
election-outcome. To nullify an election Assembly for Embakasi South
in such a context would contradict Constituency in conformity with the
article 180 (4) of the Constitution. The Constitution and the Elections Act;
mere description of a percentage or e. The Appellant was to have costs of the
margin as small or wide was of no legal petition before the High Court, which
import, unless it was inextricably linked costs were to be taxed by the Deputy
to a definite uncertainty as to who won Registrar, but in any event not to exceed
an election. the sum of Ksh.1,500,000/= to be paid
equally by the Respondents;
30. The election for the Member of
f. The costs to be paid to the Appellant with
National Assembly for Embakasi South
respect to the application as well as the
Constituency was not conducted in
appeal were not to exceed the sum of
accordance with the law.
Kshs.1,000,000/= to be paid equally by
Appeal allowed with costs to the Appellant the Respondents.
Orders
a. The judgment of the election Court dated
The right to development is the measure of the respect of all other human rights. That should be our
aim: a situation in which all individuals are enabled to maximize their potential, and to contribute to the
evolution of society as a whole – Kofi Annan
Some rights reserved by Lip Kee
22
High Court
The criteria for conferment of the title of senior counsel to a select
number of the members of the legal profession is not discriminatory.
Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR
Constitutional and Human Rights Division
Petition No. 36 of 2018
High Court at Nairobi
August 3, 2018
E. C. Mwita J.
Reported by Rutto Jepchirchir Faith
Advocates - Senior Counsel-conferment of the Brief facts
title senior counsel - criteria for selection of
The Petitioners’ complaint was that the
advocates to be conferred with the title of senior
National Assembly enacted section 17 of the
counsel - whether the Advocates (Senior Counsel
Advocates Act , (the Act) giving the President
Conferment and Privileges) rules 2011 were
powers to confer the title of “Senior Counsel”
inconsistent with section 17 of the Advocates
to members of the 2nd Respondent with
Act on conferment of the title of Senior Counsel
irreproachable professional conduct and
and therefore ultra vires-Advocates Act, section
who had rendered exemplary service to the
17; Advocates (Senior Counsel Conferment and
legal and public service in the country. They
Privileges) rules 2011, rule 7(f)
further averred that pursuant to section 17,
Constitutional Law – fundamental rights and there was promulgation of rules setting out
freedoms – right to equality and freedom from the criteria for qualifications for conferment
discrimination – right of advocates who do not of the title of Senior Counsel.
ordinarily litigate cases in court to be conferred
The Petitioners contended that the criteria
the title of Senior Counsel -whether the Advocates
set by the rules was inconsistent with the
(Senior Counsel Conferment and Privileges)
provisions of section 17 of the Act; irrational,
rules 2011 were discriminatory for not including
unreasonable, and discriminatory as it
advocates who did not ordinarily litigate cases
discriminated against a section of members
in court – Constitution of Kenya, 2010, article
of the 2nd Respondent who did not ordinarily
27;Advocates (Senior Counsel Conferment and
litigate cases in court on behalf of their
Privileges) rules 2011,rule 7(f)
clients. They stated that section 17 of the
Statutes - interpretation of statutes - Act limited qualifications for conferment of
interpretation of the Advocates Act, section the title of Senior Counsel to those advocates
17- where the rules were inconsistent with the who appeared in court only, hence the rules
enabling statute- whether the impugned rules were, to that extent, inconsistent with the
were inconsistent with section 17 of the Advocates Parent Act.
Act on conferment of the title of Senior Counsel
Issues
and therefore ultra vires - Statutory Instruments
Act, No 23 of 2013, section 24(2) ; Advocates i. Whether the Advocates (Senior Counsel
Act, section 17; Advocates (Senior Counsel Conferment and Privileges) Rules 2011
Conferment and Privileges) rules 2011,rule 7(f) were discriminatory for not including
advocates who did not ordinarily litigate
Words and phrases- discrimination – cases in court.
definition of discrimination – the effect of a law ii. Whether the Advocates (Senior Counsel
or established practice that confers privileges on a Conferment and Privileges) Rules 2011
certain class because of race, age sex, nationality, rules were inconsistent with section 17 of
religion or hardship- Differential treatment the Advocates Act on conferment of the
especially a failure to treat all persons equally title of Senior Counsel and therefore ultra
when no reasonable distinction can be found vires.
between those favoured and those not favoured - iii. What were the benefits and privileges that
Black’s Law Dictionary, 9th Edition accrued to an advocate conferred the rank
23
of Senior Counsel? have accorded privileges or advantages

iv. What was the process and consideration which were not accorded to persons of
to be followed in order to confer the title another such description. Discrimination
of Senior Counsel to an Advocate? also meant unfair treatment or denial of
Relevant provisions normal privileges to persons because of
Constitution of Kenya, 2010 their race, age sex, a failure to treat all
Article 27 persons equally where no reasonable
(1) Every person is equal before the law and has distinction can be found between
the right to equal protection and equal benefit of those favoured and those not favoured.
the law, and that Discrimination, simply put, was any
(2) Equality includes the full and equal enjoyment distinction, exclusion or preference
of all rights and fundamental freedoms. made on the basis of differences to
Advocates Act persons or group of persons based such
1) The President may grant a letter of considerations as race, colour, sex,
conferment to any person of irreproachable religious beliefs political persuasion
professional conduct who has rendered or any such attributes that had real or
exemplary service to the legal and public potential effect of nullifying or impairing
service in Kenya conferring upon him the equality of opportunity or treatment
rank and dignity of Senior Counsel between two persons or groups.
2) A person shall not be eligible to be a 2. The Constitution advocated for non-

Senior Counsel unless— discrimination as a fundamental right
which guaranteed that people in equal
(a) he is a duly enrolled advocate of the High circumstances be treated or dealt
Court of not less than fifteen years’ standing; with equally both in law and practice
or without unreasonable distinction or
(b) being a person to whom section 10 applies, differentiation. However, not every
he holds, and has held for a continuous period distinction or differentiation in
of not less than fifteen years, one or other of treatment amounted to discrimination.
the qualifications specified in section 13(1). Discrimination was deemed to arise
3) The grant shall be made not later than where equal classes of people were
sixty days upon receipt of a list of names subjected to different treatment, without
submitted by the Committee on Senior objective or reasonable justification or
Counsel through the Chief Justice. proportionality between the aim sought
and the means employed to achieve that
Section 17 aim. Discrimination involved an element
Rule 7(1)(f) of unfavourable bias. Unfavourable bias
Criteria for conferment. had to be shown by the complainant; and
7. (1) A person qualifies for conferment of the the bias had to be based on the grounds
rank of Senior Counsel if that person— set in the constitutional definition of the
f) has argued at least five substantive appeals word “discriminatory” in section 82 of
before the Supreme Court or the Court of Appeal the repealed Constitution.
and at least ten substantive cases before the High
Court within a period of ten years preceding the 3. Section 17 of the Advocates Act
person’s application for conferment or, in the case bestowed powers on the President to
of an applicant who does not ordinarily undertake confer the rank of “Senior Counsel” on
litigation, has shown outstanding performance in an advocate who was of irreproachable
the area of practice of the applicant; professional conduct who had rendered
Held exemplary service to the legal and public
1. Discrimination meant affording service in Kenya. Section 17(2) identified
different treatment to different persons qualifications of a person who was duly
attributable wholly or mainly to their enrolled as an advocate of not less than
descriptions whereby persons of one fifteen years or one to whom section
such description were subjected to; 10 of the Act applied and who had held
restrictions to which persons of another practicing certificate continuously for
description were not made subject or fifteen years. In order to give effect to
24
section 17, the impugned rules were inconsistent with the Constitution.
promulgated including rule 7 which, for
the sake of the instant petition, provided 6. It was necessary to establish a link between
for additional criteria for conferment the aggrieved party, the provisions of
of the title of Senior Counsel. Rule 7(f) the Constitution alleged to have been
provided that the advocate should have contravened and the manifestation of
argued a substantive matter before a contravention or infringement. That
superior, regional or international court. played a positive role as a foundation of
There were other criteria in rule 7 but the conviction and good faith, in engaging
Petitioners had singled out the criteria in the constitutional process of dispute
7(f) for attack and used it to submit that settlement.
the body of rules was discriminatory.
7. The question the Petitioners ought to
They had not, however, demonstrated in
have addressed was how rule 7(f) was
what manner the rest of the requirements
discriminatory when, except for those
in rule 7 were discriminatory, if at all, yet
advocates who litigated cases in court,
the criteria in rule 7 covered a wide range
the rest would not enjoy any of the
of areas for consideration which the
privileges in rule 19, even if the rank
petitioners appeared to have lost sight of.
of Senior Counsel was conferred on
4. In order to determine whether rule 7(f) them. Rule 7(f) or any other rule did
was indeed discriminatory, one had not result into discrimination or have a
to read all the provisions relating to discriminatory effect given that only rule
conferment of senior Counsel holistically 7(f) was the principal rule under attack
and determine whether there was really in the instant petition and there had not
discrimination as the petitioners alleged. been any effort to show that the rest of
In doing so, one had to consider the the rules had a problem.
benefits and privileges that accrued
8. The names of those to be conferred the
to the advocate conferred the rank of
title of Senior Counsel were to be picked
Senior Counsel. The answer, lay in rule
by a committee of the 2nd Respondent
19 which provided for duties, powers
which was established for that purpose
and privileges of Senior Counsel. The
and upon application. That meant the
privileges included precedence in having
process through which those to be
matters mentioned first when appearing
conferred were picked was a peer review
in court or in a Tribunal; appearing
exercise by fellow members who knew
in court or Tribunal robed; wearing
one another and the extent to which
special robes; sitting in a separate place
those who finally made the list were
designated for Senior Counsel or front
distinguished in their area of practice,
bench and any such other privileges the
be it in litigation or not. Rule 7(f) was
Council of the Law Society may consider
therefore not in any way discriminatory
appropriate. Simply put, Senior Counsel
to the extent of violating of article 27 of
would have their cases called out and
the Constitution.
heard first whenever they appeared in
court. 9. The advocate to be conferred with the
role of senior counsel should have argued
5. There had to be precision in
a substantive matter before a superior,
constitutional litigation to enable parties
regional or international court. Superior
respond to the issues at hand and the
Courts in terms of article 162(1), of the
Court to make the correct determination
Constitution, were the Supreme Court,
on the issues. A Constitutional challenge
the Court Appeal, the High Court and the
should be explicit, with due notice to all
Employment and Labour Relations Court
affected. That requirement ensured that
and the Environmental and Land Court.
all interested parties had an opportunity
Appearing and arguing a substantive
to make representations. Constitutional
matter in any of the above Courts would
litigation required accuracy in the
suffice as one of the requirements for
identification of the provisions of
consideration for purposes of conferment
legislation that were challenged to be
25
of the rank of Senior Counsel. inconsistency between the rules and the
parent Act, and to what extent there was
10. There were several other criteria and tension between the two.
rule 7(f) gave only one of them but not
the only requirement. In that regard, the 15. For a rule or regulation to be declared
Petitioners’ apprehension that for one to void for reason of in consistency with
qualify he had to only have argued cases the parent Act, there had to be clear and
before the Supreme Court, regional or irreconcilable tension or inconsistency.
International Courts was unfounded and Section 24(2) of the Statutory
misinformed. There had to be rationale Instruments Act, No 23 of 2013 was clear
and justification in recommending one that a statutory instrument should not be
for the conferment of the rank of Senior inconsistent with the provisions of the
Counsel. enabling legislation or any Act and that
the statutory instrument should be void to
11. In England where the practice originated the extent of the inconsistency. Section 2
from, the rank of Queens Counsel of the Act defined “statutory instrument”
(QC) was reserved for a few members to include a rule. If the impugned rules
within the legal profession who had were to be found inconsistent with the
a distinguished track record in the Act, they would have been declared void.
profession and public service which
was in the public knowledge, hence the 16. As a general principle of interpretation
title was conferred based on sound and of statutes, a law or regulation should as
rational grounds. Hence, there was no much as possible be read to be consistent
discrimination either in the purpose and be declared unconstitutional or
of enacting the rules or in the effect of void only where it was impossible to
implementing them. rationalize or reconcile it with the
constitution or the Act. It was the duty of
12. Discrimination which was disallowed a judicial officer to interpret legislation
by the Constitution was that which was in conformity with the constitution so
unjustifiable and without any rational far as that was reasonably possible, while
basis. It was always the duty of the on the other hand, the legislature was
party who alleged discrimination to under a duty to pass legislation that was
demonstrate that there was unreasonable reasonably clear.
differential treatment accorded to
persons of the same class or category to 17. What the Petitioners did was to plead
amount to real discrimination. Equality inconsistency and leave the matter to
was not to be confused with uniformity Court by merely saying the rules were
lest uniformity became the enemy of inconsistent with section 17 of the Act.
equality. No effort was made at all to show how
each of the 20 rules that made up the
13. Section 17 did not give criteria for Advocates (Senior Counsel Conferment
choosing those to be conferred with the and Privileges) Rules, contradicted
rank save for the requirement that such section 17 of the parent Act for them to
a person was to be of irreproachable be void on account of inconsistency. It
conduct and ought to have rendered was not enough to plead inconsistency
exemplary service to the legal profession or tension between rules and the Act.
and public service for not less than fifteen The Petitioners were to go further and
years. The section however did not state demonstrate how that was so which they
how the committee would identify the fell short of. The rules only expounded
advocate. For that reason, there was need on section 17 which set policy without
to come up with rules that would define going into the finer details leaving it for
the criteria for identification and that the rules.
was what the impugned rules were for.
Petition dismissed .Each party to bear its own
14. The Petitioners were required to point costs.
out with clarity and precision the alleged
26
Section 279(2) and 389 of the Penal Code creates two conflicting sentences
for the offence of roberry with violence
Felix Ochieng Omolo v Attorney General & another [2018] eKLR
Constitutional Petition No. 27 ‘B’ of 2017
High Court
At Mombasa
July 5, 2018.
E. K. O. Ogola, J
Constitutional Law – Fundamental Rights and nature of section 297 (2) and 389 of the Penal
Freedoms – allegation of infringement of rights Code.
under the Bill of Rights – where section 297 (2)
Issues
of the Penal Code on the one hand provided the
death sentence while section 389 provided for a i. Whether the High Court had jurisdiction
sentence of imprisonment for a term not exceeding to entertain a matter regarding the
seven years if the offence was punishable by death infringement of the Bill of Rights where
or life imprisonment - whether a conflict section the Petitioner had already appealed his
297 (2) and 389 of the Penal Code infringed on conviction at the Court of Appeal.
the Petitioner’s fundamental rights and freedoms ii. Whether a conflict between sections
under the Bill of Rights - Penal Code, sections 297(2) of the Penal Code which provided
297 (2) and 389; Constitution of Kenya, 2010, for death sentence and section 389 which
article 23. (1) provided for imprisonment for a term
not exceeding seven years violated the
Statutes – interpretation of statutes – rules Petitioner’s rights under the Constitution
of interpreting statutory provisions –rules of iii. What offences were felonies as per section
interpreting statutory provisions where the literal 389 of the Penal Code?
words used in a statute created an ambiguity iv. What was the rule of statutory
– what was the rule of statutory interpretation interpretation where the literal words
where the literal words used in a statute created used in a statute created an ambiguity?
an ambiguity
Relevant provisions of the law
Jurisdiction - jurisdiction of the High Court - Constitution of Kenya, 2010
jurisdiction to entertain a matter regarding the Article 23 (1)
infringement of the Bill of Rights - where the
The High Court has jurisdiction, in
Petitioner had already appealed his conviction
accordance with Article 165, to
at the Court of Appeal - whether the High Court
had jurisdiction to entertain a matter regarding hear and determine applications for
the infringement of the Bill of Rights where the redress of a denial, violation
Petitioner had already appealed his conviction or infringement of, or threat to, a right
at the Court of Appeal- Constitution of Kenya, or fundamental freedom in
2010, article 23 (1,) article 165,
the Bill of Rights.
Brief Facts
(2) Parliament shall enact legislation to give
The Petitioner was charged and convicted original jurisdiction in appropriate cases to
of the offence of attempted robbery with subordinate courts to hear and determine
violence contrary to section 297 (2) of the applications for redress of a denial, violation
Penal Code and sentenced to death. The or infringement of, or threat to, a right or
Petitioner subsequently lodged a first appeal fundamental freedom in the Bill of Rights.
before the High Court and a second appeal (3) In any proceedings brought under Article
in the Court of Appeal. Both appeals were 22, a court may grant appropriate relief,
dismissed and he was serving a life sentence including—
after his death sentence was commuted. (a) a declaration of rights;
The Petitioner claimed that his rights under (b) an injunction;
articles 26, 25, 27, 28, 48, 50 (2) (b) (c) and (p) (c) a conservatory order;
had been violated by the alleged conflicting (d) a declaration of invalidity of any law that
denies, violates, infringes, or threatens a right
27
or fundamental freedom in the Bill of Rights his rights under the Bill of Rights. That
and is not justified under Article 24; being the case, the instant Court had the
(e) an order for compensation; and jurisdiction to entertain the matter by
(f) an order of judicial review. virtue of article 23 and 165 (3) (b) of the
Penal Code Constitution.
Section 297 3. The Petitioner was charged under
section 297 (2) of the Penal Code which
(1) Any person who assaults any person with provided the sentence for attempted
intent to steal anything, and, at or immediately robbery with violence as death. However,
before or immediately after the time of the section 389 of the Penal Code provided
assault, uses or threatens to use actual violence the sentence for an attempted felony
to any person or property in order to obtain as being imprisonment for a term not
the thing intended to be stolen, or to prevent or exceeding seven years if the intended
overcome resistance to it being stolen, is guilty offence was punishable by death or life
of a felony and is liable to imprisonment for imprisonment.
seven years.
4. Section 4 of the Penal Code defined a
(2) If the offender is armed with any dangerous felony as an offence which was declared
or offensive weapon or instrument, or is in by the law to be a felony or if not declared
company with one or more person or persons, to be a misdemeanor, was punishable,
or if, at or immediately before or immediately without proof of previous conviction,
after the time of assault, he wounds, beats, with death, or with imprisonment for
strikes or uses any other personal violence to three or more years. Robbery with
any person, he shall be sentenced to death. violence fell within the definition of a
Section 389 felony. Section 297 (2) on the one hand
provided the death sentence while
Any person who attempts to commit a felony
section 389 provided for a sentence of
or a misdemeanor is guilty of an offence and
imprisonment for a term not exceeding
is liable, if no other punishment is provided,
seven years if the offence was punishable
to one-half of such punishment as may be
by death or life imprisonment. There
provided for the offence attempted, but so
was clearly a conflict between the two
that if that offence is one punishable by death
sections as to the sentence that was to be
or life imprisonment he shall not be liable to
meted out for the offence of attempted
imprisonment for a term exceeding seven years.
robbery with violence.
Held
5. Article 259 of the Constitution provided
1. Article 23 of the Constitution gave the that the Constitution was to be
instant Court the jurisdiction to hear and interpreted in a manner that promoted
determine matters involving violation its purposes, values and principles;
of fundamental rights under the Bill advanced the rule of law, and the human
of Rights. The jurisdiction of the High rights and fundamental freedoms in the
Court to determine issues of violation of Bill of Rights; permitted the development
fundamental rights was further cemented of the law; and contributed to good
by article 165 which established the High governance. The Constitution should be
Court and at sub-article (3) (b) gave given a purposive interpretation where
the court jurisdiction to determine the all provisions were read as a whole with
question whether a right or fundamental each provision sustaining the other.
freedom in the Bill of Rights had been
6. A purposive interpretation should be
denied, violated, infringed or threatened.
given to statutes so as to reveal the
2. The Petitioner had not in any way intention of the statute. Purposive
approached the Court in a manner to approach to legislative interpretation
suggest that he wanted his conviction had evolved to resolve ambiguities in
reviewed. The Petitioner submitted that meaning. Where the literal words used
his criminal case had run its course. in a statute created an ambiguity, the
The Petitioner came to the Court Court was not to be held captive to
seeking redress for alleged violation of such phraseology. Where the Court was
28
not sure of what the legislature meant, to it. The Constitution mandated that an
it was free to look beyond the words accused was to be entitled to the least
themselves, and consider the historical severe sentence which in the instant case
context underpinning the legislation. was that provided by section 389 of the
Penal Code.
7. The object of the court in interpreting
legislation was to give effect so far as 11. There had been instances where
the language permitted to the intention Appellants faced with similar
of the legislature. If the language proved circumstances as the Petitioner were
to be ambiguous, the Hansard was to accorded the benefit of the least severe
be consulted to see if there was a clear sentence during their appeals before the
statement of the meaning that the Court of Appeal. Examples were the cases
words were intended to carry. Strict of Evanson Muiruri Gichane vs. Republic
constructionist view of interpretation [2010] eKLR and Boniface Juma Khisa
which required Courts to adopt the vs. Republic [2011] eKLR. It was in line
literal meaning of the language was no with the provisions of article 27 of the
longer fashionable as the courts had now Constitution to accord the Petitioner the
adopted a purposive approach which same treatment. Affording the Petitioner
sought to give effect to the true purpose same treatment also guaranteed his right
of legislation. to life under article 26 of the Constitution
and his right to human dignity under
8. Article 50 of the Constitution guaranteed
article 28 of the Constitution.
the Petitioner the right to a fair trial
which included the right to the benefit 12. The conflict between sections 297(2)
of the least severe of the prescribed and 389 of the Penal Code violated the
punishments for an offence. Sections Petitioner’s rights under article 26, 27, 28
297(2) and 389 of the Penal provided and 50 (2) (p) of the Constitution.
sentences for the crime of attempted
Orders
robbery with violence. Section 297 of the
Penal Code which was the substantive i. The Petitioner was entitled to benefit from the
provision for robbery with violence lesser sentence provided under section 389 of
prescribed a sentence of death while the Penal Code
section 389 of the Penal Code under ii. There was a conflict between section 297 (2)
which the crime also fell prescribed a and 389 of the Penal Code as to the sentence for
sentence not exceeding seven years. the offence of attempted robbery with violence
and the conflict violated the Petitioner’s right
9. An interpretation of both provisions of as espoused under articles 26, 27, 28 and 50 (2)
the Penal Code revealed that the drafters (p) of the Constitution.
of the legislation seemed to have created iii. The Petitioner having been convicted on July
two sentences for the offence in question. 21, 2008 and having served a sentence in
As a result, a conflict emanated that could excess of seven years imprisonment, was to be
only be resolved by way of amendment. released from prison unless held for reasons
10. The Constitution was the supreme law not indicated in the Petition.
and any other legislation was subordinate iv. Each party to bear own costs.
Legal requirements relating to settlement, withdrawal or termination of

a criminal case through an agreement between an accused person and a
complainant.
Kelly Kases Bunjika v Director of Public Prosecutions & another
Criminal Miscellaneous Application No 79 of 2017
High Court at Kabarnet
July 26, 2018
Edward M Muriithi, J
Criminal Procedure - Settlement, withdrawal a criminal case through an agreement between
or termination of a criminal case-withdrawal of the Complainant and an Accused person-
29
considerations of the Court in deciding on whether b) Withdrawal or discontinuance of the

to approve such a withdrawal-whether it was charge by the Complainant under
necessary for the Director of Public Prosecutions section 204 of the Criminal Procedure
to concur with an agreement between parties to Code;
withdraw a criminal case-Constitution of Kenya c) By the prosecutor under article 157(6)
2010, article 157(11); Criminal Procedure Code (c) of the Constitution and section 87
(Cap 75) section 204. of the Criminal Procedure Code;
d) Alternative dispute resolution
Constitutional Law - interpretation of
agreement pursuant to article 159 (2)
constitutional provisions-Director of Public
(c) of the Constitution.
Prosecutions-role of the Director of Public
Prosecutions in the settlement, withdrawal or 2. Section 176 of the Criminal Procedure
termination of a criminal case-whether the DPP Code allowed the Court to promote
had concur with a proposed withdrawal of a reconciliation, encourage and facilitate
criminal case-Constitution of Kenya 2010, article amicable dispute settlement on terms
157(11). of payment of compensation or terms
approved by the Court, in cases of
Brief facts common assault or offences of a personal
The Applicant was on trial for the offence or private nature not amounting to a
of robbery with violence in Eldama Ravine felony and not aggravated in degree.
Principal Magistrate’s Court Criminal Case 3. Section 204 of the Criminal Procedure
No. 53 of 2016. The Court found that the Code provided for withdrawal of the
Applicant had a case to answer and the trial complaint by the Complainant. The
was at the defence stage. The Complainant Complainant could withdraw the
made a request for the criminal case to complaint before the Court made its
be withdrawn but the Court declined to final orders in the matter and the Court
grant the request. The Applicant made an had discretion to allow or reject the
application for the Court to review the withdrawal when satisfied of the existence
decision declining to grant the request for or otherwise of sufficient grounds
withdrawal. The Applicant wanted the permitting the withdrawal.
decision reviewed and orders granting the
request for the withdrawal of the decision to 4. Each case depended on its own
be issued. circumstances and in withdrawal or
termination of criminal cases, in terms of
Issues article 157(11) of the Constitution, the DPP
i. Under what circumstances would the was obliged to consider public interest, the
Court allow an Accused person and a interests of the administration of justice
Complainant to withdraw or discontinue and the need to prevent and avoid abuse
criminal proceedings? of the legal process. The Accused or the
ii. What was the role of the DPP in a Prosecutor who sought the withdrawal
situation where an Accused person and or termination of a criminal case had
a Complainant agreed to withdraw or to demonstrate that the discontinuance
discontinue criminal proceedings? (settlement, withdrawal or termination
Held of the criminal case) was justifiable under
the parameters of the considerations of
1. A criminal case would be terminated by
public interest, interests of justice and the
operation of the law where an Accused
need to prevent abuse of the legal process.
person died and there was no person to
be tried, convicted and sentenced and 5. The case of Republic v PKM [2017] eKLR
where a Complainant failed to attend was distinguishable as a case which
under section 202 of the Criminal involved a matter of a personal nature
Procedure Code. There were other ways arising from a matrimonial context. In
through which a criminal charge could that case, the court found that since there
be terminated by an act of the parties and was a marriage and the offence was not
they included:- so grave, the best that the court could do
a) By reconciliation under section 176 of and that social justice demanded was to
the Criminal Procedure Code; promote reconciliation for the sake of the
30
unity of the family. a) The offence of robbery with violence

using firearms was of a serious nature
6. Although the Court had power to
and was prevalent in the area. It
allow alternative dispute resolution
required a full trial and an appropriate
mechanisms, the concurrence of the DPP
punishment for deterrence if there was
in addition to any agreement between
evidence to sustain the charge.
the Complainant and the Accused was
b) Alternative dispute resolution
necessary. It was the DPP’s responsibility
mechanisms provided for in article
under article 157 of the Constitution to
159 (2) (c) had to be supportive and
consider public interest in making such a
not destructive of the ability of the
decision.
DPP to conduct his primary role as
7. The DPP was the constitutional custodian, the executor of the State’s powers of
enforcer and defender of public interest prosecution under article 157 (6) of the
in criminal justice. That entailed the Constitution.
due administration of justice so that the c) The approval of the DPP who had the
offender would get punished or otherwise constitutional mandate and duty to
dealt with, as appropriate, for deterrence consider under article 157 (11), the
and rehabilitation, the victim would be public interest, the interests of the
assuaged and compensated as appropriate, administration of justice and the need
and the society would benefit from to prevent and avoid abuse of the legal
prevention of crime. In addition, the DPP process had not been obtained.
ensured that the criminal justice system d) It was a public interest consideration
was not abused, in that, it was not used to within the meaning of article 157 (11)
persecute the innocent, achieve collateral of the Constitution that offenders
civil purpose or avoid due punishment for in serious crimes should be suitably
crime. prosecuted and punished if found
8. The Accused and the Complainant guilty.
agreed to withdraw the charge but the e) Improper termination of serious
DPP did not agree to that withdrawal. It criminal charges would demoralize
was demonstrated that the Complainant police and prosecutorial agencies to
was not the owner of the motor vehicle the detriment of the country’s ability
which was the subject of the robbery with to combat and deter such crimes.
violence charge and that there were other f) The Complainant as the driver, and
entities that could also be complainants. not the owner, of the motor vehicle-
It was not shown that the DPP did the property subject of the robbery was
not comply with article 157(11) of the not in a fitting position to compromise
Constitution in refusing to agree to the a criminal charge relating to the said
withdrawal of the charge. property. The interests of justice would
require concurrence of the victim and
9. The Court did not approve the proposed the true owner of the property subject
withdrawal of the robbery with violence of the robbery charge.
charge for the following reasons:-
Application dismissed.
The Salaries and Remuneration Commission does not have the mandate
to limit the number of remunerable meetings that a Constitutional
Commission can have.
Judicial Service Commission v Salaries and Remuneration Commission & another
Petition No 274 of 2016
July 30, 2018
E C Mwita, J
Constitutional Law - constitutional and Remuneration Commission-whether the
commissions-Salaries and Remuneration Salaries and Remuneration Commission could
Commission-extent of the mandate of the Salaries determine the number of remunerable meetings
31
that a constitutional commission could have- by a constitutional commission to eight

Constitution of Kenya 2010, article 230(4)(a). meetings a month for purposes of reducing
the commission’s expenditure, was a
Constitutional Law -constitutional commissions-
violation of the commission’s financial
independence of constitutional commissions-
and administrative independence.
Judicial Service Commission-constitutionality
of a decision by the Salaries and Remuneration Held
Commission to cap the number of remunerable 1. Under article 230(4)(a) of the Constitution,
meetings that the Judicial Service Commission the 1st Respondent’s mandate was to set
could have to eight meetings a month-whether the and regularly review the remuneration and
decision violated the financial and administrative benefits of all State officers and to advise
independence of the Commission-Constitution the National and County Governments
of Kenya 2010, articles 172 & 230(4)(a); Judicial on the remuneration and benefits of all
Service Act, No 1 of 2011, section 22(4). other public officers. In undertaking that
Brief facts mandate, the 1st Respondent was required
to take into account, the following:-
The 1st Respondent’s mandate was to
a) the need to ensure that the total
determine salaries and allowances for state
public compensation bill was fiscally
and public officers in Government. On
sustainable;
December 19, 2013, the 1st Respondent
b) the need to ensure that the public
wrote a letter addressed to the Petitioner’s
services were able to attract and
Chairperson detailing its determinations on
retain the skills required to execute
remuneration and benefits of the Petitioner’s
their functions;
officers. The 1st Respondent set the sitting
c) the need to recognise productivity
allowances and also limited the number of
and performance; and
the Petitioner’s remunerable meetings to 8
d) transparency and fairness.
meetings a month, effective from the date of
the letter. 2. Article 249(2) of the Constitution provided
that the constitutional commissions
The Petitioner stated that before a limitation and holders of independent offices were
was placed on the remunerable number of subject only to the Constitution and the
sittings it could have, it ought to have been law and were independent and not subject
consulted. It elaborated that the limitation to direction or control by any person or
interfered with its independence and the authority. The effect of the provision
wide mandate it had in recruitment of was that constitutional commissions and
judges, judicial officers and staff, handling independent offices were independent
promotions and handling disciplinary cases. in the execution of their mandate and
The Petitioner contended that the decision they should not take directions from any
was made ultra vires the mandate of the person or authority. Further, article 249(3)
1st Respondent and it interfered with its of the Constitution was to the effect that
independence and mandate contrary to each commission and independent office
articles 249(2)(b) & 172 of the Constitution would have sufficient financial allocation
and section 22(4) of the Judicial Service Act. to enable it discharge its mandate.
The Petitioner sought various reliefs from
the Court against that decision. 3. The 1st Respondent’s mandate was limited
to setting and reviewing remuneration
Issues and benefits for state officers and advising
i. Whether the mandate of the Salaries and the National and County Governments
Remuneration Commission included on the issue of remuneration and benefits
determinations on the number of of public officers. That mandate did
remunerable meetings that a constitutional not extend to superintending how an
commission could have, for purposes of independent commission utilized its
reducing the commission’s expenditure. budgetary allocations.
ii. Whether a decision by the Salaries and
4. Section 22(4) of the Judicial Service
Remuneration Commission to cap the
Act provided that the Judicial Service
number of remunerable meetings held
Commission shall hold such number of
32
meetings, in such places, at such times and Petition allowed.

in such manner as the Commission shall
Orders:-
consider necessary for the discharge of
its functions under the Constitution and i. A declaration was issued to the effect that
the Act. The Legislature did not deem it the role of the Salaries and Remuneration
necessary to limit the number of monthly Commission under article 230(4) (a) of
sittings that the Petitioner could have. It the Constitution was limited to setting the
appreciated the unique and possibly heavy remuneration and benefits of State Officers
mandate of the Petitioner and thought serving in the Judicial Service Commission
it was inappropriate to limit the sittings. and not to determining the number of
The Legislature in its enactment gave the remunerable meetings the members of the
Petitioner discretion on the number of Judicial Service Commission could have in
meetings to have in order to discharge its discharging their mandate.
constitutional mandate. ii. A declaration was issued to the effect that the
decision of the Salaries and Remuneration
5. The 1st Respondent had no mandate Commission to cap remunerable meetings for
to limit the Petitioner’s remunerable members of the Judicial Service Commission
monthly sittings. Any attempt by the 1st to eight (8) meetings a month was made ultra
Respondent to restrict the Petitioner from vires its powers under article 230(4) (a) of
holding more than eight remunerable the Constitution and was a violation of the
meetings a month was not only ultra vires provisions of article 172 of the Constitution
its constitutional and statutory mandate and section 22(4) of the Judicial Service Act.
but also clearly unconstitutional and iii. An order for certiorari was issued to quash
illegal. the decision of the Salaries and Remuneration
6. The Petitioner enjoyed financial and Commission contained in the letter dated
administrative independence and was December 19, 2013, capping the remunerable
accountable to Parliament. Parliament meetings for members of the Judicial Service
and not the 1st Respondent was the Commission to not more than eight (8)
organ that was mandated to oversee how meetings a month.
the Petitioner expended its budgetary iv. An order of Prohibition was issued to prohibit
allocation. Therefore, the 1st Respondent the Salaries and Remuneration Commission
could not restrict the number of the from interfering in any way with the work
Petitioner’s remunerable monthly sittings and constitutional independence of the
as a way of reducing the Petitioner’s Petitioner.
expenditure. v. No order as to Cost.
With the exception of the two lay persons appointed by the president,
elected members of the Judicial Service Commission are not subject to
approval by the National Assembly before appointment
The Law Society of Kenya v National Assembly of Kenya and 3 others [2018] eKLR
Consolidated with Petition No 119 of 2018
July 6, 2018
E C Mwita, J
Reported by Ian Kiptoo
Constitutional Law - interpretation of the representative of the justices of the Court of Appeal
Constitution-interpretation of articles 171 and was subject to national assembly approval before
250 of the Constitution of Kenya, 2010-principles being appointed by the President-Constitution of
applicable in interpreting the Constitution-claim Kenya, 2010, articles 171(2); (b), (c), (d), (f), & (h);
that article 250 on composition, appointment 248(1) & (2); and 250(6) (a); Judicial Service Act,
and terms of office applied to the Judicial Service sections 15(2) and 16
Commission-whether a commissioner elected
Constitutional Law - separation of powers-
to the Judicial Service Commission (JSC) as a
33
functions and powers of the organs of government- the National Assembly was a breach of
extent to which parliament can interfere in the separation of powers.
judiciary-claim that elected commissioners of iii. Whether section 15(2) of the Judicial
the JSC were subject to parliamentary approval- Service Act was unconstitutional for not
whether subjecting an elected commissioner of providing for mandatory approval of an
the JSC, excluding the two lay persons appointed elected commissioner to the JSC by the
by the President, to an approval process by the National Assembly.
National Assembly was a breach of separation
Relevant provisions of the Law
of powers-Constitution of Kenya, 2010, articles
Constitution of Kenya, 2010
132(4), 171 and 250; Final Report of Committee
Article 171
of Experts (COE’s Final Report), paragraph
1) “There is established the Judicial Service
8.11.5
Commission.
Constitutional Law - constitutionality of 2) The Commission shall consist of-
statutes-constitutionality of section 15(2) of a) the Chief Justice who shall be the
the Judicial service Act-principles applicable in Chairperson of the Commission;
determining the constitutionality of statutes- b) one Supreme Court Judge elected by
whether section 15(2) of the Judicial Service the Judges of the Supreme Court;
Act was unconstitutional for not providing for c) one Court of Appeal Judge elected by
mandatory approval of an elected commissioner the Judges of the Court of Appeal;
to the JSC by the National Assembly-Constitution d) one High Court Judge and one
of Kenya, 2010, articles 171 and 250; Judicial Magistrate, one a woman and one a man,
Service Act, section 15(2) elected by the members of the association
of Judges and Magistrates;
Brief facts
e) the Attorney General;
The consolidated Petitions involved the f) two advocates, one a woman and one
relationship between articles 171(2) and a man, each of whom has at least 15
250(2) of the Constitution of Kenya, 2010 years’ experience, elected by the members
(Constitution) in as far as the appointment of the statutory body responsible for the
of commissioners to the Judicial Service professional regulation of advocates;
Commission (JSC). The second Petition g) one person nominated by the Public
was, as a matter of fact, a response to the Service Commission; and
first Petition because issues it raised were h) one woman and one man to represent
answers to the first petition. the public, not being lawyers, appointed
The 1st Petitioner averred that the President’s by the President with the approval of the
act of nominating the 1st Interested Party was National Assembly.”
ultra vires article 171(2) (c) of the Constitution Article 250
and similarly, that the National Assembly Composition, appointment and terms of
had no constitutional mandate to approve office
elected members of JSC. On the other hand,
1) each commission shall consist of at least
the 2nd Petitioner contended that approval
three, but not more than nine commissioners;
by the National Assembly was mandatory
that
for all commissioners irrespective of the
2) the Chairperson and each member of a
Commission.
commission and holder of an independent
Issues office
i. Whether a commissioner elected to the a. shall be Identified and recommended for
Judicial Service Commission (JSC) as a appointment in a manner prescribed by
representative of the justices of the Court national legislation;
of Appeal was subject to national assembly b. approved by the National Assembly; and
approval before being appointed by the c. appointed by the President
President. Held
ii. Whether subjecting an elected
1. Article 259(1) of the Constitution of
commissioner of the JSC, excluding
Kenya, 2010 (Constitution) enjoined the
the two lay persons appointed by the
Court to interpret the Constitution in a
President, to an approval process by
manner that promoted its purpose and
34
principles; advanced the rule of law and the Commissioners. In the case of the 1st
human rights and fundamental freedoms Interested Party, he was elected by the
in the Bill of Rights; permitted the Justices of his Court in accordance with
development of the law and contributed article 171(2) (c) of the Constitution, and
to good governance. Furthermore, the by secret ballot as required by section 16
Constitution should be given a purposive, of the Judicial Service Act.
liberal and flexible interpretation. A
4. Section 15(2) of the Judicial Service Act
Constitution was a living instrument
required the President to formally appoint
with several provisions that should be
those elected and the one nominated
read as an integrated whole, reading one
within three days after receiving the
provision alongside others so that they
names. After the 1st Interested Party’s
were seen as supporting one another
election, instead of being appointed as
and not contradicting or destroying each
required by law, his name was sent to the
other.
National Assembly for approval leading
2. Article 171(2) had four categories of to litigation.
commissioners.
5. Article 250 was a general provision relating
a. persons who were Commissioners to commissions and independent office
by virtue of the offices they held- the holders including the Auditor General and
Chief Justice who was Chairperson Controller of Budget. Furthermore, article
of the Commission by virtue of being 250 of the Constitution left identification,
Chief Justice and the Attorney General recommendation for appointment
who was a member of Judicial Service and qualifications of chairpersons and
Commission (JSC) by virtue of being members of commission and independent
the Attorney General; offices a matter for national legislation.
b. members elected by their peers- a Sub-article 6(a) gave commissioners a
justice of the Supreme Court, a justice single term of six years with no legibility
of the Court of Appeal and a judge of for reappointment. At the same time,
the High Court and a representative article 248(1) of the Constitution
of the Magistrates, male and female, provided that Chapter 15 applied to the
elected by the association of Judges Commissions specified in clause 2 and the
and Magistrates. In the same category independent offices specified in clause (3)
were two advocates, a woman and a except to the extent that the Constitution
man of 15 years’ standing, to represent provided otherwise. JSC was one of the
the Law Society of Kenya; commissions specified in article 248(2). It
c. the nominee by the Public Service was however clear that although Chapter
Commission; and 15, including article 250, applied to all
d. Two lay persons, a man and a woman, the commissions listed there under, the
appointed by the President with article contemplated situations where
approval by the National Assembly, to the Constitution may exclude chapter
represent public interest. 15 (article 250) from applying to some
In the case of second class of Commissioners, commissions.
the Constitution was clear that they were
6. JSC was excluded from the general
elected by their peers. The Supreme Court,
provisions of article 250 of the
Court of Appeal, Judges of the High Court
Constitution. Whereas article 250(2)
and Magistrates elected representatives of
left identification, qualification and
their choice.
recommendation for appointment of
3. The Law Society of Kenya and section commissioners to legislation, that was not
16 of the Judicial Service Act provided the case with regard to membership of JSC.
that elections had to be by secret ballot In contrast, article 171(2) identified who
and were ordinarily overseen by the the Chairperson was; who the members
Independent Electoral and Boundaries should be; provided for modes of their
Commission. Therefore, there was identification as election, nomination
no doubt that article 171(2) of the and those to be appointed and in some
Constitution provided for identification, instances gave qualifications and gender.
qualification and appointment of JSC Moreover, unlike the Commissions
35
contemplated under article 250, JSC had subject should be as far as possible, be
eleven commissioners, way above the construed as complementing and not
maximum number of nine prescribed by contradicting one another. Furthermore,
article 250. the history of the Country including the
legislative history of the Constitution
7. A reading of the language in articles 171
was also relevant and a useful guide in
and 250 of the Constitution, taking into
constitutional interpretation. The Court
account article 248(1), was that articles 171
had to pay proper attention to the words
and 250 applied to different commissions.
actually used in context; avoid doing
Therefore, article 250 of the Constitution
so literally or rigidly; look at the whole
did not apply to JSC whether in terms of
Constitution; and consider further the
composition or manner of identification
background circumstances when the
of its commissioners. In that regard, the
Constitution was granted because in
requirement and processes of approval by
interpreting the Constitution the whole
the National Assembly in article 250 did
document had to be looked at, both
not apply to JSC commissioners except
provisions were impliedly subject to any
those appointed under article 171(2) (h) of
exceptions made in other parts of the
the Constitution.
Constitution.
8. Even though article 250(6) limited the
11. Articles 171 and 250 of the
term of office for commissioners and
Constitution were not at war with each
holders of independent office to a single
other but complemented one another.
non-renewable term of six years, article
They had to be understood from the
171(4) gave JSC commissioners, other
historical context that they were a
than the Chief Justice and Attorney
product of change from the past when
General, a renewable term of five years
JSC was composed of unknown people.
provided they remained qualified. That
As a result, the country wanted a break
was; the status of the commissioners
from the past, thus the adoption of article
must not have changed since their first
171 on the establishment, composition
appointment. Where a statute (read a
and appointment of JSC commissioners.
Constitution) contained both a general
Article 171(2) reflected the wishes of the
provision as well as a specific one, the
people of Kenya and the Court’s duty
latter had to prevail.
was to give effect to those wishes. In that
9. Articles 171 and 250 were articles in the regard, the language of article 171(2) (b, (c),
same Constitution. None of them was (d), and (f) had to be respected and given
superior to the other, and the principles effect to, rather than ignoring it in favour
of constitutional construction required of a strict and technical interpretation
that the Constitution be read as an which deviated from the spirit of the
integrated whole with various articles Constitution.
supporting one another. They should
12. Flowing from the language of
never be seen as contradicting each
article 171 (2) (b), (c), (d), and (f) of the
other or one subordinating the others.
Constitution, there was no doubt that
They had to be read harmoniously
results from elections conducted under
because they were mutually consistent
the authority of the Constitution and the
with no internal logical contradictions.
law by constituencies identified in article
The Court therefore had to adopt an
171(2)(b), (c), (d), and (f) were final and
interpretation that brought a harmonious
conclusive and did not require approval
relationship between the two articles
by any other state organ, not even the
and resist an interpretation that created
National Assembly under the guise of
tension between them or encouraged one
article 250(2) of the Constitution. Any
provision of the same Constitution to be
attempt to subject those elected to any
hoist above the other. They were equal
form of approval was against the letter
like branches of the same tree.
and spirit of the Constitution and was
10. It was a rule in constitutional unconstitutional. So was any action so far
interpretation that provisions of a taken by the National Assembly respecting
constitution concerned with the same the election of the 1st Interested Party as a
36
member of JSC. fact that only the two lay members of the
JSC appointed by the President should
13. If a rigid interpretation of article
be subject to approval by the National
171(2) (h), that implied that all JSC
Assembly.
commissioners had to be approved by the
National Assembly, were to be taken to be 16. It may well be true that approval by
correct. It would then mean that even the the National Assembly provided checks
Chief Justice and the Attorney General on those elected to JSC with some scope
who were members of JSC by virtue of of public scrutiny of the appointment
the offices they held, would be subjected process. However, the Constitution
to approval which would obviously be limited that to the persons appointed under
absurd, because those two were appointed article 171(2) (h) in so far as membership
after a process that included approval by to JSC was concerned. That was the
the National Assembly. They could not be constitutional reality the Court had to be
subjected to another approval. prepared to live with, uphold and defend.
Article 250 could not be emphasized
14. Secondly, such an interpretation
while down playing the import of article
would defeat the meaning and essence
171 of the same Constitution. They were
of elections conducted by peers through
equal, complementary and deserved equal
secret ballot. Members who had been
consideration.
subjected to elections were, in essence,
vetted by their colleagues on their 17. There was no constitutional
suitability to serve as representatives. The requirement that JSC commissioners
Constitution did not use the word elected contemplated in article 171(2) (b), (c), (d),
just for the sake of it. It wanted elected and (f) of the Constitution be approved
representatives subjected to scrutiny and by the National Assembly. In addition,
competition among peers before being article 250(2) did not also apply to JSC
picked through such elections because Commissioners. Therefore, section 15(2)
only the person who stood out best was could not be constitutionally invalid for
elected. It had to be clear that the member failure to provide for mandatory approval
was elected as a representative and, of JSC Commissioners by the National
therefore, only those who had been given Assembly.
the constitutional mandate to elect had a
18. It was the first time the National
final say on who their best representative
Assembly and the Attorney General argued
was and not the National Assembly.
that a legislation enacted by the National
15. The people of Kenya made a Assembly was constitutionally invalid,
deliberate decision on how they wanted a serious indictment on the National
JSC constituted and its members Assembly’s ability to act in accordance
appointed. That was intended to with the Constitution. If not for anything
guarantee independence to JSC and by else, that admission betrayed any good
extension to the Judiciary. Independence intentions the National Assembly and
of the Judiciary could not be delinked the Attorney General may have had in
from that of JSC because article 172(1) supporting the second petition.
of the Constitution mandated JSC to
19. The principles upon which a statute
promote and facilitate independence of
or statutory provision may be declared
the Judiciary. JSC could not do so if it
constitutionally invalid were clear. The
was not independent. Subjecting persons
provision had to violate or contradict
duly elected by peers as required by the
a clear provision of the Constitution to
Constitution to approval by the National
the extent that it could not be reconciled
Assembly would not only expose them to
with the offended article; and second, the
ridicule, possible political patronage and
purpose of enacting the statute or statutory
horse trading, but would also defeat the
provision had to be unconstitutional or
spirit of the Constitution, thus interfere
the implementation of the impugned
with independence of JSC and ultimately,
statute or statutory provision had to
that of the Judiciary. In fact, the final
have an unconstitutional effect. In other
Report of Committee of Experts (COE’s
words, the statute or statutory provision
Final Report) paragraph 8.11.5 bore the
37
had to have an unconstitutional purpose in national legislation. In that regard,

or effect. appointment of nominees as JSC
commissioners was an executive function
20. Section 15(2) provided that where
conferred on the President by section
nominations were to be made by bodies
15(2) of the Judicial Service Act. Therefore
specified under article 171(2) (b), (c), (d),
there was no constitutional invalidity in
(f), and (g) of the Constitution-
the impugned section 15(2).
a. the respective nominating body would
submit the name of its nominee to the First Petition allowed and second Petition
President; and dismissed
b. The President would, within three Orders
days of receipt of the names, appoint
i. A declaration was issued that the 1st Interested
the nominees as members of the
Party, having been elected by Judges of the
Commission.
Court of Appeal as a member of the Judicial
The section simply directed that names Service Commission in accordance with article
be sent to the President for formal 171(2) (c) as read with section 16 of the Judicial
appointment. It did not confer any Service Act, was not subject to approval by the
discretion on the President once he National Assembly under article 250(2) of the
received the names. He was under legal Constitution.
obligation to appoint the nominee(s) ii. An order was issued invalidating the purported
within three days of receipt of the name(s). nomination by the President of the 1st
Once the President received names of Interested Party as a member of the judicial
commissioners determined in accordance Service Commission and forwarding his name
with provisions of article 171(2) (b), (c), (d), to the National Assembly for approval and any
(f), and (g), his mandate was to formally subsequent decision by the National Assembly
appoint them and nothing more. in that regard.
21. The National Assembly, fully iii. A permanent injunction was issued prohibiting
cognizant of and appreciating the unique the National Assembly, the 1st Respondent,
functions and mandate of JSC, assigned from vetting or approving the 1st Interested
a period of three days within which the Party as a member of Judicial Service
President had to sign the instrument(s) Commission.
formally appointing the nominee(s) as iv. The 1st and 2nd Respondents in the first
commissioner(s). Article 132(4) of the Petition would bear the Petitioner’s costs; while
Constitution mandated the President to the Interested Parties bore their own costs.
perform any other executive function v. The second Petition was dismissed with no
provided for in the Constitution and order as to costs.
Decisions of the Judges and Magistrates Vetting Board on the suitability

of a Judicial Officer to continue serving as such cannot be challenged in
Court
Leonard Njagi v Judges & Magistrates Vetting Board & another [2018] eKLR
High Court Constitutional Petition No. 320 of 2013
September 27, 2018.
B Thuranira Jaden, J Wakiaga, G W Ngenye-Macharia, John Mativo & John Onyiego, JJ
Reported by Kakai Toili
Constitutional Law–vetting of Judges and Vetting Board on the suitability of a judicial officer
Magistrates–mandate of the Judges and to continue serving as such could be challenged in
Magistrates Vetting Board–mandate to determine court-Constitution of Kenya, 2010 article 163(7),
the suitability of a judicial officer to serve– Sixth Schedule, section 23; Vetting of Judges and
where the Judges and Magistrates Vetting Board Magistrates Act section 23
determined that a judicial officer was not fit to
Constitutional Law- interpretation of the
serve-where the decision was challenged in court-
Constitution-interpretation of section 23(2) of
whether a decision of the Judges and Magistrates
38
the Sixth Schedule of the Constitution-what was declared that the decision of the Board
the proper interpretation of section 23(2) of the was final, the Court referred the file to the
Sixth Schedule of the Constitution with regard to Chief Justice recommending that the matter
decisions of the Judges and Magistrates Vetting be placed before a bench of five Judges
Board - Constitution of Kenya, 2010, Sixth already handling similar issues in various
Schedule, section 23 Petitions consolidated and heard under a
Judicial Review Application. Subsequently,
Civil Practice and Procedure-preliminary
the matter was placed before a bench of five
objections-raising of preliminary objections- what
Judges. On April 24, 2015 the Court held that
were the circumstances in which a preliminary
it had no jurisdiction to entertain any Petition
objection could be raised
challenging the Board’s decision. The Court
Statutes-interpretation of statutes-interpretation directed that the Petitioner was at liberty to
of statutory provisions-what was the proper pursue his Petition independently as he was
way of construing statutory and constitutional not directly affected by the Supreme Court
provisions decision in JMVB1.
Precedents-judicial precedents-doctrine of stare Aggrieved by the decision the 3rd Respondent
decisis-what was the purpose of the doctrine of filed a Preliminary Objection objecting the
stare decisis and whether a subordinate court Court’s jurisdiction to hear the Petition and
could fail to follow a position which was settled that the prayers sought in the Petition were
by the Supreme Court when faced with a similar moot as the Petitioner had since retired
issue Issues
Civil Practice and Procedure-suits-termination i. Whether a decision of the Judges and
of suits-factors to consider-mootness-where there Magistrates Vetting Board on the
was a claim for damages-whether claims for suitability of a judicial officer to continue
damages that sought compensation for past harm serving as such could be challenged in
were moot court.
ii. What was the proper interpretation of
Words and Phrases - preliminary objection-
section 23(2) of the Sixth Schedule of the
definition of preliminary objection- in a case
Constitution with regard to decisions
before an international tribunal, an objection
of the Judges and Magistrates Vetting
that, if upheld, would render further proceedings
Board?
before the tribunal impossible or unnecessary-
iii. What were the circumstances in which a
Black’s Law Dictionary, 10th Edition
preliminary objection could be raised?
Brief Facts iv. What was the proper way of construing
The Petitioner, who was a long serving statutory and constitutional provisions?
judge, was on December 21, 2012 found by v. What was the purpose of the doctrine of
the 1st Respondent (the Board) as lacking stare decisis and whether a subordinate
in conduct and integrity hence declared court could fail to follow a position which
unsuitable to continue serving. Aggrieved by was settled by the Supreme Court when
the decision, the Petitioner filed a petition to faced with a similar issue?
the Court challenging the Board’s decision. vi. Whether claims for damages that sought
Contemporaneously filed with the Petition compensation for past harm were moot.
was an Application seeking leave to apply for Relevant Provisions of the Law
judicial review orders of certiorari, prohibition Constitution of Kenya, 2010
and mandamus, conservatory stay orders Article 261
thus retaining the Petitioner as a judge of the (1) Parliament shall enact any legislation
Court. Consequently, the Court granted the required by this Constitution to be
prayers sought in the Application on interim enacted to govern a particular matter
basis pending hearing and determination of within the period specified in the Fifth
the Petition. Schedule, commencing on the effective
date.
In view of the Supreme Court decision in (2) Despite clause (1), the National Assembly
Judges and Magistrates Vetting Board & 2 Others may, by resolution supported by the votes
v Centre for Human Rights and Democracy of at least two-thirds of all the members of
& 11 Others (2014)eKLR (JMVB1) which
39
the National Assembly, extend the period conclude the process of vetting all the Judges,
prescribed in respect of any particular chief Magistrates and principal Magistrates
matter under clause (1), by a period not not later than the 28th March, 2013 and
exceeding one year. any review of a decision of the Board shall
(3) The power of the National Assembly be heard and concluded within the above
contemplated under clause (2), may be specified period.
exercised— Vetting of Judges and Magistrates
(a) only once in respect of any (Amendment) Act, No. 43 of 2012
particular matter; and Section 8
(b) only in exceptional circumstances “ Section 23 of the principal Act is
to be certified by the Speaker of amended by deleting subsections (2)
the National Assembly. and (3) and substituting therefore the
Sixth Schedule following subsections-
Section 23 (2) The vetting process, once commenced,
(1) Within one year after the effective shall be concluded not later than the 31st
date, Parliament shall enact legislation, December, 2013 and any review of a
which shall operate despite Article 160, decision of the Board shall be heard and
167 and 168, establishing mechanisms concluded within the above specified
and procedures for vetting, within a period.
time frame to be determined in the (3) Despite subsection (2), the Board shall
legislation, the suitability of the Judges conclude the process of vetting all the
and Magistrates who were in office in Judges, chief Magistrates and principal
the effective date to continue to serve in Magistrates not later than the 28th
accordance with the values and principles March 2013 and any review of a decision
set out in Articles 10 and 159. of the Board shall be heard and concluded
(2) A removal, or a process leading to the within the above specified period.
removal, of a Judge, from office by Vetting of Judges and Magistrates
virtue of the operation of legislation (Amendment) Act No. 43 of 2013
contemplated under subsection (1) shall Section 3
not be subject to question in, or by, any Section 23 of the Principal Act is amended
court.” (a) in subsection (1) by deleting the words
Vetting of Judges and Magistrates Act “a period of one year, save that the
Section 23 National Assembly may, on the request
(1) The vetting process once commenced of the Board, extend the period for not
shall not exceed a period of one year, save more than one year” and substituting
that the National Assembly may, on the therefore by the words “the period
request of the Board extend the period for specified by this section”;
not more than one year. (b) in subsection (2) by deleting the
(2) The vetting process once commenced expression “2013” and substituting
shall be concluded not later than the therefore the expression “2015.”
31st December, 2013 and any review of Held
a decision of the Board shall be heard 1. A Preliminary Objection raised a pure
and concluded within the above specified point of law, which was argued on the
period. assumption that all the facts pleaded by
Section 23 - Time frame(as amended either side were correct. It could not be
by Vetting of Judges and Magistrates raised if any fact has to be ascertained or
(Amendment) Act No. 43 of 2013) if what was sought was the exercise of
(1) The vetting process once commenced shall judicial discretion.
not exceed the period specified by this section. 2. It was reasonably plain that a question
(2) The vetting process, once commenced, shall be of jurisdiction ought to be raised at the
concluded not later than the 31st December, earliest opportunity and the court seized
2015 and any review of a decision of the of the matter was then obliged to decide
Board shall be heard and concluded within the issue right away on the material before
the above specified period. it. Jurisdiction was everything, without it,
(3) Despite subsection (2), the Board shall a court had no power to make one more
40
step. Where a court had no jurisdiction, save when the legislation intention was
there would be no basis for continuation not clear. However, the courts would not
of proceedings pending other evidence. be justified in so straying the language of
A court downed tools in respect of the the statutory provision as to ascribe the
matter before it the moment it held the meaning which could not be warranted
opinion that it was without jurisdiction. by the words displayed by the Legislature.
3. Mootness inquired whether events If the language was clear and explicit, the
subsequent to the filing of a suit had Court had to give effect to it, for in that
eliminated the controversy between the case the words of the statute spoke the
parties. It included cases in which the intention of the Legislature.
Plaintiff challenged actions or policies 7. In construing a statute or constitutional
which were temporary in nature, in provision, all provisions had to be read
which factual developments after the suit in harmony and construed together. The
was filed resolved the harm alleged or in words used in section 23(2) of the Sixth
which claims had been settled. An actual Schedule to the Constitution were plain,
controversy had to exist at all stages clear and unambiguous to the extent
of a trial and not simply at the date the that decisions of the Board established
action was initiated. Mootness involved pursuant to section 6 of the Act were final
the situation where a dispute no longer when it came to removal or a process
existed. Mootness was a point of law. leading to removal, of a judge. Section
4. The contemplated legislation under 23(2) did not leave room for any form of
section 23 (1) of the Sixth Schedule of the intervention by any court. The provision
Constitution was the Vetting of Judges was couched in mandatory terms and
and Magistrates Act(the Act) which was the Court could not change the meaning
enacted and commenced on March 22, or imply something else other than
2011. One year after the commencement pronounce the will of the people and the
date lapsed on March 21, 2012. Any Legislature.
extension beyond March 21, 2012 would 8. The vetting process was insulated against
only be effected in conformity with article litigation in any court as it was intended
261 (1) (2) & (3) of the Constitution. to be fast enough without subjecting it
5. A perusal of the Petitioner’s Hansard before to unnecessary rules of evidence which
the Board revealed that the Petitioner first would then clog the process and provoke
appeared before the Board for vetting on conflict of interest by the then sitting
November 13, 2012. The Act commenced judges and magistrates who were the
on March 22, 2011 and expired on March subject of vetting.
21, 2012. The Petitioner’s appearance 9. The Supreme Court in JMVB1 at
before the Board on November 13, 2012 paragraph 172 recognized the role of
was evidently after the Board’s term the Court in exercise of its supervisory
had lapsed. The next extension was on powers. However, in the same Judgment
December 14, 2012 and the extension was at paragraph 213, the then Chief Justice
to remain valid until December 31, 2013. in a concurring opinion dismissed the
However, the determination and review argument that the Court had any residual
made on December 21, 2012 and March supervisory powers in questioning the
20, 2013 respectively were within the Board’s decisions. From the two holdings,
time frame. it was clear that any intervention by the
6. In construing a statutory provision, the Court had no room and therefore not
first and foremost rule of construction within its remit to review the decision of
was that of literal construction. All that the Board which was final. The holding
the Court had to see at the very outset in paragraph 213 was worded in such
was what the provision said in its plain, language that subdued paragraph 172
grammatical and ordinary language. If the which could apply in the absence of
provision was unambiguous and if from constructive precedent. In the instant case
that provision the legislative intent was there was precedent that the Court had no
clear, the other rules of construction of jurisdiction. To that extent, the Court did
its statutes needed not be called into aid not have jurisdiction under section 23 of
41
the Sixth Schedule of the Constitution to operation, relevance and applicability.

question the Board’s decision. Binding decisions would be followed
10. The Supreme Court had pronounced in the absence of a strong reason to the
itself on the issue of whether the Board’s contrary.
decisions could be challenged in court. 14. A case was not moot so long as the
Article 163 (7) of the Constitution plaintiff continued to have an injury for
explicitly provided that all courts, other which the Court could award relief, even if
than the Supreme Court were bound by entitlement to the primary relief had been
the decisions of the Supreme Court. The mooted and what remained was small.
interpretation of section 23 (1) & (2) of Put differently, the presence of a collateral
the Sixth Schedule by the Supreme Court injury was an exception to mootness.
was binding on the Court by dint of As a result, distinguishing claims for
article 163 (7). The binding nature of the injunctive relief from claims for damages
Supreme Court decisions under the said was important. Since damage claims
provision was absolute. The provision sought compensation for past harm, they
was an edict firmly addressed to all courts could not become moot. Short of paying a
that they were bound by the authoritative plaintiff the damages sought, a defendant
pronouncements of the Supreme Court could do little to moot a damage claim. A
and that where the issues before the Court case was moot, however, when the Court
were determined by the Supreme Court, it could not give any effectual relief to the
was not open to the Court to examine the party seeking it.
same with a view to arriving at a different 15. In the instant case, among the reliefs
decision. sought was an order that the State pays
11. The doctrine of stare decisis was such the Petitioner general damages for loss
a critical legal weapon in streamlining of reputation, standing, unlawful and
and commanding certainty, predictability, unconstitutional interruption of his
consistence and integrity in the corridors services as Judge of the High Court.
of justice and for the consumption of the Damage claims sought compensation for
consumers of justice. When a position in past harm, hence, they could not become
law was well settled as a result of judicial moot.
pronouncement of the Supreme Court, 16. The question of the Petitioner’s
it would amount to judicial impropriety retirement age was among the issues
to say the least, for a subordinate court that the court framed, considered and
including the instant Court to ignore determined in Leonard Njagi v Judicial
the settled decisions and then to pass a Service Commission(2015) eKLR. No
judicial order which was clearly contrary evidence was tendered to show that
to the settled legal position. Such judicial the Petitioner had appealed against the
adventurism could not be permitted. said decision. The decision of the Court
12. From the determination of the in that case stood unless and until it
Supreme Court in JMVB1 and JMVB2 was overturned by an appellate court.
Petitions, the Court had no room left Accordingly, the Petitioner having raised
to interfere or address any form of the issue of retirement in the said case,
constitutional violation against any litigant he could not raise it in a subsequent suit.
by the Board. The Court had no latitude His remedy lay in challenging the said
to disregard the sanctity and authority of Judgment. The issue of retirement was
judicial precedent, more particularly from not justiciable before the Court.
the Supreme Court. That did not mean
Respondents’ Preliminary Objection
that the Supreme Court was not infallible.
allowed, Petition dismissed, each
It was a constitutional obligation for
party to bear own costs
sound and orderly management of court
business on the understanding that the
higher the court the lesser mistakes there
were.
13. The Court’s power to distinguish
conflicting decisions was limited in
42
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Hon. Rosalynn Aganyo Thank you very much for the feedback on the decision on
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Nakuru Law Courts
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43
Legislative Updates
By Christine Thiong’o, Laws of Kenya Department
This is an outline of legislation gazetted in the period between June and August, 2018.
A. ACTS OF PARLIAMENT
ACT PUBLIC TRUSTEE (AMENDMENT) ACT, 2018

Act No. 6 of 2018
Commencement 8th June, 2018
Objective This Act amends the Public Trustee Act (Cap. 168).
It introduces new definitions of certain terms. These include, among others, insertion of
a new definition establishing an office to be known as the Public Trustee, which shall be
a body corporate with perpetual succession and a common seal. This office may acquire,
hold and dispose of property; and is capable of suing and being sued in its corporate
name.
It also establishes an Investment Board to be known as the Public Trustee Investment
Board. The functions of the Board shall be to review and oversee matters pertaining to the
investment of estate and trust funds; formulate, review and oversee the implementation
of the Public Trustee Investment Policy; and advise the Attorney-General on the
management of the investment portfolio.
This amendment Act substitutes Minister for Attorney General who appoints the Public
Trustee. It also inserts the qualification for a person to qualify for appointment as a public
trustee.
ACT APPROPRIATION ACT, 2018

Act No. 7 of 2018
Commencement 1st July, 2018
Objective This is an Act to authorize the issue of a sum of money out of the Consolidated Fund
and its application towards the service of the year ending on the 30th June, 2019 and to
appropriate that sum and a sum voted on account by the National Assembly for certain
public services and purposes.
ACT COUNTY ALLOCATION OF REVENUE ACT, 2018

Act No. 8 of 2018
Commencement 11th July, 2018
Objective This Act provides for the equitable allocation of revenue raised nationally among the
county governments for the 2018/2019 financial year; the responsibilities of national and
county governments pursuant to such allocation; and for connected purposes.
ACT TAX LAWS (AMENDMENT) ACT

Act No. 9 of 2018
Commencement There are several dates for each of the Acts to be amended as follows:
i. provisions relating to the Income Tax Act, on the 1st of July, 2018;
ii. provisions relating to the Stamp Duty Act, on the 1st of October, 2018; and
iii. provisions relating to the Value Added Tax, 2013 on the 1st of July, 2018.
Objective This Act makes amendments to the following tax related laws:
a) Income Tax Act, 1973 Cap 470);
b) Stamp Duty Act (Cap. 480); and
c) Value Added Tax, 2013 (No. 35 of 2013).
44
B. NATIONAL ASSEMBLY BILLS
NATIONAL AS- KENYA ACCREDITATION SERVICE BILL, 2018

SEMBLY BILL
Dated 7th June, 2018
Objective The object of the Bill is to establish the Kenya National Accreditation Service as an internationally
recognised and effective accreditation system. The Bill shall establish the Service as the sole
recognised body for accreditation in Kenya.
The Bill shall also repeal the Kenya Accreditation Service Order, 2009, which was made under the
State Corporations Act (Cap. 446 of the Laws of Kenya).
Sponsor Aden Duale, Majority Leader, National Assembly.
NATIONAL AS- SACCO SOCIETIES (AMENDMENT) BILL, 2018

SEMBLY BILL
Objective This Bill has been submitted by the Cabinet Secretary for the National Treasury and Planning in line
with the proposals announced in the Budget from 2018/19.
The principal object of the Bill is to amend the Act by providing for the usage of Information
and Communications Technology in collecting and receiving of statutory reports. This is aimed at
reducing the regulatory reporting burden on SACCOs and ensuring a faster, efficient and accurate
reporting, monitoring and analysis of Sacco’s financial status at any time, being the cornerstone of
Risk-Based Supervision (RBS).
The Bill also seeks realign the definition and roles of Minister to be Cabinet Secretary and also the
responsibility and office of the Controller of Budget as reflected in the Act, to be in line with the
Constitution.
Sponsor Joseph Limo, Chairperson, Committee on Finance and National Planning.
NATIONAL AS- CAPITAL MARKETS (AMENDMENT) BILL, 2018

SEMBLY BILL
Objective This Bill has been submitted by the Cabinet Secretary for the National Treasury and Planning in
line with the proposals announced in the Budget from 2018/19.
The principal object of the Bill is to amend the Capital Markets Act (Cap. 485A)to facilitate the
punishing of persons involved in embezzlement activities and further ensure that administrative
enforcement action set out is sufficiently explicit in application to key employees of listed
companies.
45
NATIONAL AS- FINANCE BILL, 2018

SEMBLY BILL
Objective The Bill formulates the proposals announced in the Budget for 2018/2019 relating to liability, and
collection of taxes and matters incidental thereto.
This Bill seeks to amend the following laws relating to various taxes and duties:
i.) Income Tax Act (Cap 470);
ii.) Value Added Tax Act, 2013 (No. 35 of 2013);
iii.) Tax Appeals Tribunal Act, 2013 (No. 40 of 2013);
iv.) Excise Duty Act, 2015 (No. 23 of 2015);
v.) Tax Procedures Act, 2015 (No. 29 of 2015);
vi.) Miscellaneous Fees and Levies Act, 2016 (No. 29 of 2016)
It also amends the following laws:
i.) Betting, Lotteries and Gaming Act (Cap. 131);
ii.) Marine Insurance Act (Cap. 390);
iii.) Air Passengers Service Charge Act (Cap. 475);
iv.) Stamp Duty Act (Cap. 480);
v.) Banking Act (Cap. 488);
vi.) Co-operative Societies Act (Cap. 490);
vii.) Central Bank Act (Cap. 491);
viii.) Kenya Revenue Authority Act, 1995 (No. 2 of 1995);
ix.) Retirement Benefits Act, 1997 (No. 2 of 1997);
x.) Employment Act, 2007 (No. 11 of 2007);
xi.) Accountants Act, 2008 (No. 15 of 2008);
xii.) Proceeds of Crime and Anti-Money Laundering Act, 2009 (No. 9 of 2009);
xiii.) Public Finance Management Act (No. 18 of 2012).
NATIONAL AS- INSURANCE (AMENDMENT) BILL, 2018

SEMBLY BILL
Objective This Bill has been submitted by the Cabinet Secretary for the National Treasury and Planning in line
with the proposals announced in the Budget from 2018/19.
The principal object of the Bill is to amend the Insurance Act to address the adverse selection
and high costs of loss assessment related to traditional indemnity-based agriculture insurance by
providing for index based insurance as an alternative with an intention to reduce moral hazard,
adverse selection, underwriting and claim assessment costs while speeding up claim settlements.
In addition, the Bill seeks to amend the Act by introducing a legal provision creating offences on
insurance fraud, including penalties intended to address the problem of insurance fraud that continues
to be a major challenge to the stability of the insurance industry in the country. The amendment
further ensures that the Act complies with International Association of Insurance Supervisors (IAIS)
standards on countering insurance fraud.
46
C. SENATE BILLS
SENATE BILL DATA PROTECTION BILL, 2018

Dated 30th May, 2018
Objective The principal object of this Bill is to protect personal data collected, used or stored by both private
and public entities. The Bill recognizes that data protection forms part and parcel of the expectation
of the right to privacy, protected under Article 31 of the Constitution. Provision of the right to
privacy under the Constitution is an indication of its importance but the right is not absolute. It may
be limited and must as of necessity be balanced against other competing rights and interests such as
protecting the rights and freedoms of others, and maintaining law and order.
This Bill therefore, provides for the legal framework for protection of a person’s privacy in instances
where personal information is collected, stored, used or processed by another person. The Bill seeks
to give effect to Article 31(c) and (d) of the Constitution; to promote the protection of personal data;
to regulate the manner in which personal data may be processed; to provide persons with rights and
remedies to protect their personal data; and to regulate the flow of personal information across the
borders of the country.
Sponsor Gideon Moi, Chairperson of the Committee on Information, Communication and Technology.
SENATE BILL CARE AND PROTECTION OF OLDER MEMBERS OF SOCIETY BILL, 2018
Objective The principal object of the Bill is to give effect to Article 57 of the Constitution on the right of older
persons to –
a) fully participate in the affairs of society;
b) pursue their personal development;
c) live in dignity and respect and be free from abuse; and
d) receive reasonable care and assistance from family and the State.
The Bill recognises the fact that for a long time, older members of society, particularly those who
are unable to care for themselves, have often been neglected and are unable to carry on living decent
lives. The need for the State to take measures for the care of older members of society is compounded
by the fact that the cohesion that existed amongst families and communities in the past is gradually
eroding, and the older members of society have no one to turn to look after them when they are
unable to look after themselves. It is therefore imperative to set up a system which can provide
for the support of these older members of society to enable them live decent lives, a right which is
inherent and which is expressed under Article 57 of the Constitution.
The Bill therefore provides the necessary legal framework for the establishment of a system for the
care and maintenance of older members of society.
Sponsor Aaron Cheruiyot, Senator.
SENATE BILL COUNTY PLANNING (ROADS, PAVEMENTS AND PARKING BAYS) BILL, 2018
Dated 22nd June, 2018
Objective The Bill seeks to provide a legislative framework for the planning, construction and maintenance of
county roads, streets, lanes, alleys, parking bays, drainage systems and pavements in each county. It
also provides for the proper planning and placement of access-ways to commercial buildings along
major roads within counties.
Sponsor Ledama Olekina, Senator.
47
SENATE BILL COUNTY OUTDOOR ADVERTISING CONTROL BILL, 2018

Dated 13th July, 2018
Objective This Bill provides for a legal framework for the regulation of outdoor advertisement in the counties.
It seeks to ensure that outdoor advertisements respect amenity and do not prejudice public safety,
including road safety and that the display of outdoor advertisements contributes positively to the
appearance of a well-cared for and attractive environment in the counties.
Outdoor advertising is a key element of the industry and contributes to the creation of a vibrant and
competitive economy. There is however a need to balance the requirements of the industry with the
protection and, where possible, enhancement of the character and appearance of counties. Further
there is also a need to ensure that advertisements will not prejudice public safety.
This Bill therefore seeks to provide a legal framework for the control of outdoor advertising in order
to achieve a balance between the need to advertise and the protection of amenity and public safety.
The Bill proposes to provide for the procedure for the application for and issuance of an outdoor
advertising license.
Sponsor S. L. Poghisio, Senator.
SENATE BILL PREVENTION OF TERRORISM (AMENDMENT) BILL, 2018

Dated 19th July, 2018
Objective The principal object of this Bill is to amend the Prevention of Terrorism Act, 2012 (No. 30 of 2012)
to provide for the duty of institution administrators to counter radicalization.
Part II of the Fourth Schedule to the Constitution assigns the function of Pre-primary education to
county governments.
The Bill in amending the Prevention of Terrorism Act, 2012 seeks to ensure that all institution
administrators are mandated and charged with the duty of ensuring measures are put in place in their
respective institutions to prevent radicalization and violent extremism.
Under the Bill, the schools’ administrators will be required to keep and update records of all their
students, ensure teachers are sensitized to detect extremism behaviour in students and collaborate
with key stakeholders in countering radicalization.
Sponsor Naomi Waqo, Senator.
SENATE BILL COUNTY STATUTORY INSTRUMENTS BILL, 2018

Dated 10th August, 2018
Objective The principal object of this Bill is to make provision for the procedure of consideration of Statutory
Instruments by County Assemblies. The Bill seeks to provide a legal mechanism by which County
Assemblies will scrutinize statutory instruments.
Sponsor Samuel Poghisio, Chairperson, Delegated Legislation Committee.
SENATE BILL PETITION TO COUNTY ASSEMBLIES (PROCEDURE) BILL, 2018

Objective The main objective of this Bill is to provide for the procedure for petitioning a county assembly.
Article 37 of the Constitution provides that every person has a right to present petitions to public
authorities. Section 15 of the County Governments Act, 2012 (No. 17 of 2012) specifically provides
for the right to petition a county assembly. On the procedure for the exercise of the right, section
15(2) of the County Governments Act, 2012 requires each county assembly to provide for the
procedure to be applied in the respective county assembly. This may result in the enactment of
different procedures for petitioning county assemblies across the forty-seven counties.
This Bill, therefore, seeks to provide a uniform and harmonized procedure that would apply in all
county assemblies. The procedure is similar to that applicable to the National Parliament as set out
in the Petition to Parliament (Procedure) Act, 2012 (No. 22 of 2012).
Sponsor Judith Pareno, Senator.
48
SENATE BILL TREATY MAKING AND RATIFICATION (AMENDMENT) BILL, 2018

Objective The purpose of the Bill is to amend the Treaty Making and Ratification Act, 2012 (No. 45 of 2012)
in order to set out the role of the Senate in the treaty making and ratification process. The function of
considering and approving the ratification of treaties resides in both Houses of Parliament in exercise
of their shared legislative authority under Article 94 of the Constitution. The proposed amendments
to the Treaty Making and Ratification Act are therefore intended to bring the provisions of the Act
into conformity with the letter and spirit of the Constitution.
Sponsor Fatuma Adan Dullo, Senator.
SENATE BILL STATUTORY INSTRUMENTS (AMENDMENT) BILL, 2018

Objective The purpose of the Bill is to amend the Statutory Instruments Act, 2013 (No. 23 of 2013) in
order to expressly include the Senate in the statutory instruments scrutiny process. As part of the
Parliament of Kenya, the Senate has a role in the making of the laws of Kenya which includes
statutory instruments. Excluding the Senate from such an important aspect of law making would
deny Counties the right to be represented.
Sponsor Samuel Poghisio, Chairperson, Delegated Legislation Committee.
If one is going to err, one should err on the side of liberty and freedom – Kofi Annan
Some rights reserved by joepyrek
49
Legal Supplements
By Christine Thiong’o
This article presents a brief summation of Legislative Supplements published in the Kenya
Gazette on matters of general public importance.
DATE OF PUBLICATION LEGISLATIVE CITATION PREFACE

SUPPLEMENT
NUMBER
12th May, 2017 33 The Kenya The Cabinet Secretary for Interior
Citizenship and and Co-ordination of National
Immigration Government gazette the exemption of
(Amendment) Civil servants, holders of diplomatic,
Regulations, L.N official or ordinary passports from
74/2017 the Republic of South Africa for a
period of ninety(90) days from the
requirement to get a visa to enter
Kenya.
12th May, 2017 33 Public Private These regulations are made by the
Partnerships (Project Cabinet Secretary in exercise of the
Facilitation Fund) powers conferred by section 68 (4) of
Regulations, 2017 the Public Private Partnerships Act,
2013.
L.N. 75/2017
The object of the Fund is to
provide financial support for the
implementation of public private
partnership projects under the Act,
which may be provided in the form of
grants, loans, equity, guarantees and
other financial instruments as may
from time to time be approved by the
Cabinet Secretary.
24th May, 2017 39 Movable Property These regulations are made by the
Security Rights Cabinet Secretary in exercise of
(General) Regulations, the powers conferred by section 88
20I7 of the Movable Property Security
Rights Act, 20l7. They provide for
L.N. 86/2017 the electronic registry; access to the
registry; information and procedure
for the notices.
The First Schedule lays out the
relevant forms and notices. The fees
payable under these Regulations are
provided in the Second Schedule.
26th May, 2017 42 Subscription and The Cabinet Secretary for
Accreditation Fees Information, Communications and
in Respect of Media technology gives notices of fees
Enterprises and payable by all media enterprises and
Journalists operating Journalists operating in Kenya in this
in Kenya Legal Notice with effect from 31st
L.N 89/2017 March, 2017.
50
19th May, 2017 38 The Mining Act(Use This Regulation applies to holders of
of Assets) Regulations mining licenses and provides of the
L.N 80/2017 us of assets vested in the National
Government.
38 Mining (Use of Local The purpose of these regulations
Goods and Services) is to promote job creation through
Regulations, L.N the use of local expertise, goods and
81/2017 services, business and financing in
the mining industry value chain and
their retention in the country among
others as set out in rule 3.
38 Mining (employment These regulations serve the purpose
and Training) to develop local capacities in the
Regulations mining industry value chain
L.N 82/2016
through education, skills and
technology transfer, research
and development. They also seek
to achieve the minimum local
employment level and in country
spend across the entire mining
industry value chain.
21st July, 2017 53 Supreme Court The object of these Rules is to enable
(Presidential Election the Court to exercise its exclusive
Petition) Rules, 2017 original jurisdiction under Article
163(3) (a) of the Constitution.
L.N. 113/2017
These Rules apply to petitions in
respect of presidential elections
including petitions arising upon
declaration by the Independent
Electoral and Boundaries
Commission of the President-elect.
The Rules provide for filing,
grounds, and other matters up to
the determination of such petition.
The Schedules deal with provisions
relating to Petitions and Affidavits;
Forms and Fees, respectively.
The Rules also revoke the 2013 Rules,
L. N 15/ 2013.
21st July, 2017 53 Court of Appeal The object of these Rules is to
(Election Petition) facilitate the just, expeditious and
Rules, 2017 impartial determination of election
petition appeals in exercise of the
L.N. 114/2017 Court’s appellate jurisdiction under
Article 164 (3) of the Constitution.
These Rules apply to the conduct
of appeals from decisions of the
High Court in election petitions and
matters relating thereto.
The Rules deal with the initiation,
filing and service of appeals. They
also deal with the administration of
the Court, duration for hearing and
determination of election petition
appeals.
51
21st July, 2017 54 Elections The objective of these Rules is

(Parliamentary and to facilitate the just, expeditious,
County Elections) proportionate and affordable
Petitions Rules, 2017 resolution of elections petitions.
These Rules shall apply to petitions in
L.N. 116/ 2017
respect of the election of-
(a) Members of Parliament;
(b) County Governors; and
(c) Members of County Assemblies.
The Rules deal with the constitution
of an election court; presentation and
commencement of petitions. They
also deal with the recount of votes or
examination of tallying and scrutiny
of votes. The Schedules deal with
Forms and Fees, respectively.
27th July, 2017 56 Bomet University The Order established the Bomet
College Order University College which shall be a
L.N 145/2017 constituent college of Moi University,
Eldoret.
We have the means and the capacity to deal with our problems, if only we can find the political will –Kofi Annan
Some rights reserved by Last Hero
52
International
Jurisprudence
Supreme Court of India declares Section 377 of the Indian Penal Code
criminalizing homosexual acts as unconstitutional hence declaring all private
consensual sexual acts between adults legal
Navtej Singh Johar v. Union of India
In the Supreme Court of India
Criminal Original Jurisdiction
Writ Petition (Criminal) No. 76 of 2016
Brief Facts the petition asked the Supreme Court to read

down the provision as a remedy on the basis
In 2016, a writ petition, was filed by five
of a comprehensive finding by the Supreme
renowned members of the LGBT community
Court that Section 377 violated fundamental
- Sunil Mehra, Navtej Singh Johar, Ritu
rights, guaranteed by the Indian Constitution,
Dalmia, Aman Nath and Ayesha Kapur -
including the petitioners’ rights to equality
who challenged the constitutional validity
before the law and equal protection of the
of Section 377, claiming that the existence
law without discrimination, dignity, liberty,
of Section 377 rendered them criminals in
health, freedom of expression, equality in
their own country as it criminalized the very
employment, and privacy.
existence of LGBT persons by criminalizing
their sexuality. They argued that in addition Section 377 Unnatural offences
to their right to sexuality, their fundamental
Whoever voluntarily has carnal intercourse
rights that flow from their constitutional right
against the order of nature with any man, woman
to dignity were violated by Section 377, such
or animal shall be punished with imprisonment
as their right to be open about their sexuality
for life, or with imprisonment of either description
in their personal and professional lives,
for a term which may extend to ten years, and
which is integral to living a life with dignity.
shall also be liable to fine.
Further, the petitioners argued that Section
377 perpetuated the fear of criminalization Held
and abuse by state and non-state actors to 1. A democratic Constitution is an
the detriment of their economic, social, organic and breathing document with
and political lives. Based on these and other senses which are very much alive to its
arguments, the petitioners said that the surroundings, for it has been created in
existence of Section 377 deprived them of a such a manner that it can adapt to the
number of fundamental rights, such as their needs and developments taking place
right to life with dignity, right to equality, in the society. It was highlighted by this
right to nondiscrimination, right to personal Court in the case of Chief Justice of Andhra
autonomy, right to choice of partner, right Pradesh and others v. L.V.A. Dixitulu and
to privacy, right to health, right to freedom others 34 that the Constitution is a living,
of speech and expression, right to equality in integrated organism having a soul and
matters of employment, and further, that the consciousness of its own and its pulse
Section 377 was vague, excessive, inherently beats, emanating from the spinal cord of
arbitrary and unreasonable, and a hostile its basic framework, can be felt all over its
class legislation. body, even in the extremities of its limbs.
The petitioners sought for a reading down of 2. The Court is required to keep in view
the dynamic concepts inherent in the
Section 377 in as much as it concerned adult
Constitution that have the potential to
consensual same sex intercourse. Further,
53
enable and urge the constitutional courts of ushering a pluralistic and inclusive
to beam with expansionism that really society, while at the same time adhering to
grows to adapt to the ever-changing the other principles of constitutionalism.
circumstances without losing the identity It is further the result of embodying
of the Constitution. The idea of identity constitutional morality that the values
of the individual and the constitutional of constitutionalism trickle down and
legitimacy behind the same is of immense percolate through the apparatus of the
significance. Therefore, in this context, State for the betterment of each and every
the duty of the constitutional courts gets individual citizen of the State.
accentuated. We emphasize on the role of
5. The Constitution of India was visualized
the constitutional courts in realizing the
with the aim of securing to the citizens
evolving nature of this living instrument.
of our country inalienable rights which
Through its dynamic and purposive
were essential for fostering a spirit of
interpretative approach, the judiciary must
growth and development and at the same
strive to breathe life into the Constitution
time ensuring that the three organs of
and not render the document a collection
the State working under the aegis of the
of mere dead letters
Constitution and deriving their authority
3. The Constitution of India fosters and from the supreme document, that is, the
strengthens the spirit of equality and Constitution, practise constitutional
envisions a society where every person morality. The Executive, the Legislature
enjoys equal rights which enable him/her and the Judiciary all have to stay alive to
to grow and realize his/her potential as an the concept of constitutional morality.
individual. This guarantee of recognition
6. When a penal provision is challenged
of individuality runs through the entire 37
as being violative of the fundamental
(1990) 3 SCC 87 length and breadth of this
rights of a section of the society,
dynamic instrument. The Constitution
notwithstanding the fact whether the
has been conceived of and designed in
said section of the society is a minority
a manner which acknowledges the fact
or a majority, the magna cum laude and
that ‘change is inevitable’. It is the duty
creditable principle of constitutional
of the courts to realize the constitutional
morality, in a constitutional democracy
vision of equal rights in consonance with
like ours where the rule of law prevails,
the current demands and situations and
must not be allowed to be trampled by
not to read and interpret the same as
obscure notions of social morality which
per the standards of equality that existed
have no legal tenability. The concept of
decades ago. The judiciary cannot remain
constitutional morality would serve as an
oblivious to the fact that the society is
aid for the Court to arrive at a just decision
constantly evolving and many a variation
which would be in consonance with
may emerge with the changing times.
the constitutional rights of the citizens,
There is a constant need to transform
howsoever small that fragment of the
the constitutional idealism into reality
populace may be. The idea of number, in
by fostering respect for human rights,
this context, is meaningless; like zero on
promoting inclusion of pluralism, bringing
the left side of any number.
harmony, that is, unity amongst diversity,
abandoning the idea of alienation or 7. The Court had to telescopically analyse
some unacceptable social notions built social morality vis-à-vis constitutional
on medieval egos and establishing the morality. It needs no special emphasis
cult of egalitarian liberalism founded on to state that whenever the constitutional
reasonable principles that can withstand courts come across a situation of
scrutiny. transgression or dereliction in the sphere
of fundamental rights, which are also the
4. The concept of constitutional morality
basic human rights of a section, howsoever
was not limited to the mere observance of
small part of the society, then it is for the
the core principles of constitutionalism as
constitutional courts to ensure, with the
the magnitude and sweep of constitutional
aid of judicial engagement and creativity,
morality is not confined to the provisions
that constitutional morality prevails over
and literal text which a Constitution
social morality.
contains, rather it embraces within itself
virtues of a wide magnitude such as that 8. In the garb of social morality, the
54
members of the LGBT community must of every individual attains the quality of
not be outlawed or given a step-motherly an individual being only if he/she has the
treatment of malefactor by the society. If dignity. Dignity while expressive of choice
this happens or if such a treatment to the is averse to creation of any dent. When
LGBT community is allowed to persist, biological expression, be it an orientation
then the constitutional courts, which or optional expression of choice, is faced
are under the obligation to protect the with impediment, albeit through any
fundamental rights, would be failing in imposition of law, the individual‘s natural
the discharge of their duty. A failure to do and constitutional right is dented. Such
so would reduce the citizenry rights to a a situation urges the conscience of the
cipher. final constitutional arbiter to 56 (1978)
1 SCC 248 demolish the obstruction and
9. Every individual has many possessions
remove the impediment so as to allow
which assume the position of his/her
the full blossoming of the natural and
definitive characteristics. There may not
constitutional rights of individuals. This is
be any obsession with them but he/she
the essence of dignity and we say, without
may abhor to be denuded of them, for they
any inhibition, that it is our constitutional
are sacred to him/her and so inseparably
duty to allow the individual to behave and
associated that he/she may not conceive
conduct himself/herself as he/she desires
of any dissolution. He/she would like
and allow him/her to express himself/
others to respect the said attributes with a
herself, of course, with the consent of the
singular acceptable condition that there is
other. That is the right to choose without
mutual respect. Mutual respect abandons
fear. It has to be ingrained as a necessary
outside interference and is averse to
pre-requisite that consent is the real
any kind of interdiction. It is based on
fulcrum of any sexual relationship.
the precept that the individuality of an
individual is recognized, accepted and 11. Every human being has certain basic
respected. Such respect for the conception biological characteristics and acquires
of dignity 5556, New York State Bar or develops some facets under certain
Journal (No 3. April, 1984), p.50 has circumstances. The first can generally
become a fundamental right under Article be termed as inherent orientation that is
21 of the Constitution and that ushers natural to his/her being. The second can
in the right of liberty of expression. be described as a demonstration of his/
Dignity and liberty as a twin concept in her choice which gradually becomes an
a society that cares for both, apart from inseparable quality of his/her being, for
painting a grand picture of humanity, also the individual also leans on a different
smoothens the atmosphere by promoting expression because of the inclination to
peaceful co-existence and thereby makes derive satisfaction. The third one has the
the administration of justice easy. In such proclivity which he/she maintains and
a society, everyone becomes a part of the does not express any other inclination.
social engineering process where rights The first one is homosexuality, the second,
as inviolable and sacrosanct principles bisexuality and third, heterosexuality. The
are adhered to; individual choice is not third one is regarded as natural and the
an exception and each one gets his/her first one, by the same standard, is treated
space. Though no tower is built, yet the to be unnatural.
tower of individual rights with peaceful
12. In the case at hand, the court’s focus
co-existence is visible.
was limited to dealing with the right
10. Dignity is that component of one‘s to privacy vis-à-vis Section 377 IPC
being without which sustenance of his/ and other facets such as right to choice
her being to the fullest or completest as part of the freedom of expression
is inconceivable. In the theatre of life, and sexual orientation. That apart,
without possession of the attribute of within the compartment of privacy,
identity with dignity, the entity may be individual autonomy has a significant
allowed entry to the centre stage but space. Autonomy is individualistic. It
would be characterized as a spineless is expressive of self-determination and
entity or, for that matter, projected as such self-determination includes sexual
a ruling king without the sceptre. The orientation and declaration of sexual
purpose of saying so is that the identity identity. Such an orientation or choice
55
that reflects an individual‘s autonomy of citizens whose fundamental rights are

is innate to him/her. It is an inalienable affected and violated grow in figures.
part of his/her identity. The said identity In the case at hand, whatever be the
under the constitutional scheme does percentage of gays, lesbians, bisexuals and
not accept any interference as long as transgenders, this Court is not concerned
its expression is not against decency with the number of persons belonging
or morality. And the morality that is to the LGBT community. What matters
conceived of under the Constitution is whether this community is entitled to
is constitutional morality. Under the certain fundamental rights which they
autonomy principle, the individual has claim and whether such fundamental
sovereignty over his/her body. He/she rights are being violated due to the
can surrender his/her autonomy wilfully presence of a law in the statute book. If
to another individual and their intimacy the answer to both these questions is in
in privacy is a matter of their choice. Such the affirmative, then the constitutional
concept of identity is not only sacred but courts must not display an iota of doubt
is also in recognition of the quintessential and must not hesitate in striking down
facet of humanity in a person‘s nature. such provision of law on the account of it
The autonomy establishes identity and being violative of the fundamental rights
the said identity, in the ultimate eventuate, of certain citizens, however minuscule
becomes a part of dignity in an individual. their percentage may be.
This dignity is special to the man/woman
15. When we talk about the rights
who has a right to enjoy his/her life as
guaranteed under the Constitution and the
per the constitutional norms and should
protection of these rights, we observe and
not be allowed to wither and perish like
comprehend a manifest ascendance and
a mushroom. It is a directional shift from
triumphant march of such rights which,
conceptual macrocosm to cognizable
in turn, paves the way for the doctrine of
microcosm. When such culture grows,
progressive realization of the rights under
there is an affirmative move towards a
the Constitution. This doctrine invariably
more inclusive and egalitarian society.
reminds us about the living and dynamic
Non-acceptance of the same would
nature of a Constitution. Edmund
tantamount to denial of human rights to
Burke, delineating upon the progressive
people and one cannot be oblivious of the
and the perpetual growing nature of a
saying of Nelson Mandela to deny people
Constitution, had said that a Constitution
their human rights is to challenge their
is ever-growing and it is perpetually
very humanity.
continuous as it embodies the spirit of
13. The constitutional framers could a nation. It is enriched at the present by
have never intended that the protection the past experiences and influences and
of fundamental rights was only for the makes the future richer than the present.
majority population. If such had been the
16. At the very least, it can be said that
intention, then all provisions in Part III of
criminalisation of consensual carnal
the Constitution would have contained
intercourse, be it amongst homosexuals,
qualifying words such as ‘majority
heterosexuals, bi-sexuals or transgenders,
persons’ or ‘majority citizens’. Instead,
hardly serves any legitimate public purpose
the provisions have employed the words
or interest. Per contra, we are inclined to
‘any person‘ and any citizen’ making it
believe that if Section 377 remains in its
manifest that the constitutional courts
present form in the statute book, it will
are under an obligation to protect the
allow the harassment and exploitation
fundamental rights of every single citizen
of the LGBT community to prevail. We
without waiting for the catastrophic
must make it clear that freedom of choice
situation when the fundamental rights of
cannot be scuttled or abridged on the
the majority of citizens get violated.
threat of criminal prosecution and made
14. Such a view is well supported on two paraplegic on the mercurial stance of
counts, namely, one that the constitutional majoritarian perception.
courts have to embody in their approach
17. Section 377 IPC, in its present form,
a telescopic vision wherein they inculcate
abridges both human dignity as well as
the ability to be futuristic and do not
the fundamental right to privacy and
procrastinate till the day when the number
56
choice of the citizenry, howsoever small. 377 IPC also assumes the characteristic
As sexual orientation is an essential of unreasonableness, for it becomes a
and innate facet of privacy, the right to weapon in the hands of the majority to
privacy takes within its sweep the right seclude, exploit and harass the LGBT
of every individual including that of the community. It shrouds the lives of the
LGBT to express their choices in terms LGBT community in criminality and
of sexual inclination without the fear of constant fear mars their joy of life. They
persecution or criminal prosecution. constantly face social prejudice, disdain
and are subjected to the shame of being
18. The sexual autonomy of an individual
their very natural selves. Thus, an
to choose his/her sexual partner is an
archaic law which is incompatible with
important pillar and an insegregable facet
constitutional values cannot be allowed
of individual liberty. When the liberty
to be preserved.
of even a single person of the society
is smothered under some vague and 21. Bigoted and homophobic attitudes
archival stipulation that it is against the dehumanize the transgenders by denying
order of nature or under the perception them their dignity, personhood and
that the majority population is peeved above all, their basic human rights. It is
when such an individual exercises his/ important to realize that identity and
her liberty despite the fact that the sexual orientation cannot be silenced
exercise of such liberty is within the by oppression. Liberty, as the linchpin
confines of his/her private space, then the of our constitutional values, enables
signature of life melts and living becomes individuals to define and express their
a bare subsistence and resultantly, the identity and individual identity has to be
fundamental right of liberty of such an acknowledged and respected.
individual is abridged.
22. The very existence of Section
19. The LGBT community possesses 377 IPC criminalising transgenders casts
the same human, fundamental and a great stigma on an already oppressed
constitutional rights as other citizens do and discriminated class of people. This
since these rights inhere in individuals stigma, oppression and prejudice has
as natural and human rights. We must to be eradicated and the transgenders
remember that equality is the edifice on have to progress from their narrow
which the entire non-discrimination claustrophobic spaces of mere survival
jurisprudence rests. Respect for in hiding with their isolation and fears
individual choice is the very essence of to enjoying the richness of living out of
liberty under law and, thus, criminalizing the shadows with full realization of their
carnal intercourse under Section 377 IPC potential and equal opportunities in all
is irrational, indefensible and manifestly walks of life. The ideals and objectives
arbitrary. It is true that the principle of enshrined in our benevolent Constitution
choice can never be absolute under a can be achieved only when each and every
liberal Constitution and the law restricts individual is empowered and enabled to
one individual‘s choice to prevent participate in the social mainstream and
harm or injury to others. However, the in the journey towards achieving equality
organisation of intimate relations is in all spheres, equality of opportunities in
a matter of complete personal choice all walks of life, equal freedoms and rights
especially between consenting adults. and, above all, equitable justice. This can
It is a vital personal right falling within be achieved only by inclusion of all and
the private protective sphere and realm exclusion of none from the mainstream.
of individual choice and autonomy.
23. Different hues and colours together
Such progressive proclivity is rooted in
make the painting of humanity beautiful
the constitutional structure and is an
and this beauty is the essence of humanity.
inextricable part of human nature.
We need to respect the strength of our
20. Section 377 IPC does not meet diversity so as to sustain our unity as a
the criteria of proportionality and is cohesive unit of free citizens by fostering
violative of the fundamental right of tolerance and respect for each other’s‘
freedom of expression including the rights thereby progressing towards
right to choose a sexual partner. Section harmonious and peaceful co-existence in
57
the supreme bond of humanity. Attitudes towards the basic recognition of dignity
and mentality have to change to accept and humanity of all and towards leading
the distinct identity of individuals and a life without pretence eschewing duality
respect them for who they are rather than and ambivalence. It is their momentous
compelling them to become who they walk to freedom and journey to a
are not. All human beings possess the constitutional ethos of dignity, equality
equal right to be themselves instead of and liberty and this freedom can only be
transitioning or conditioning themselves fulfilled in its truest sense when each of us
as per the perceived dogmatic notions of realize that the LGBT community possess
a group of people. To change the societal equal rights as any other citizen in the
bias and root out the weed, it is the country under the magnificent charter of
foremost duty of each one of us to stand rights our Constitution.
up and speak up against the slightest form
25. Section 377 IPC, so far as it penalizes
of discrimination against transgenders
any consensual sexual activity between
that we come across. Let us move from
two adults, be it homosexuals (man and a
darkness to light, from bigotry to tolerance
man), heterosexuals (man and a woman)
and from the winter of mere survival to
and lesbians (woman and a woman), and
the spring of life as the herald of a New
cannot be regarded as constitutional.
India to a more inclusive society.
However, if anyone, by which we mean
24. It is through times of grave both a man and a woman, engages in any
disappointment, denunciation, adversity, kind of sexual activity with an animal,
grief, injustice and despair that the the said aspect of Section 377 IPC is
transgenders have stood firm with their constitutional and it shall remain a penal
formidable spirit, inspired commitment, offence under Section 377 IPC. Any act
strong determination and infinite hope of the description covered under Section
and belief that has made them look for the 377 IPC done between the individuals
rainbow in every cloud and lead the way without the consent of any one of them
to a future that would be the harbinger would invite penal liability under Section
of liberation and emancipation from a 377 IPC.
certain bondage indescribable in words –
Cultivation, possession and use of cannabis sativa by an adult in private and

for personal use should be decriminalized
Minister of Justice and Constitutional Development and Others v Prince;
National Director of Public Prosecutions and Others v Rubin;
National Director of Public Prosecutions and Others v Acton and Others
Constitutional Court of South Africa
September 18, 2018
Case CCT 108/17
Reported by Linda Awuor & Wanjiru Njihia
Brief facts Control Act No.101 of 1965 (Medicines Act)

read with Schedule 7 of GN R509 of 2003
Confirmatory proceedings were brought
published in terms of section 22A (2) of the
before the Constitutional Court which
Medicines Act. The said orders criminalized
followed upon the lodgment by the Registrar
private use of marijuana by adults.
of the Western Cape Division of the High
Court of South Africa with the Registrar The High Court suspended the order of
of the Constitutional Court of the order of invalidity of the said provisions for a period
constitutional invalidity made by the High of 24 months from March 31 2017. It said
Court in the instant matter. The order was in that to allow Parliament to correct the
relation to sections 4(b) and 5(b) of the Drugs constitutional defects in the Drugs Act and
and Drug Trafficking Act No.140 of 1992 Medicines Act as set out in the judgment.
(Drugs Act) read with Part III of Schedule 2
The order of invalidity was made in favour
to that Act and sections 22A(9)(a)(i) and 22A
of various persons to whom the High Court
(10) of the Medicines and Related Substances
referred as applicants. Some proceedings
58
under different case numbers had been did not include the sale or administration
instituted by different persons in the High of cannabis. The order of the High Court
Court. did not declare invalid any provision
prohibiting the sale or administration of
The Respondents / Defendants in the High
cannabis. However, it did declare invalid
Court proceedings brought an application
provisions that related to purchase of
for leave to appeal against the decision of the
cannabis that could be found in any of the
High Court. They also opposed confirmation
sections referred to in the order. There
of the High Court’s order of constitutional
could be no purchase without a sale. If the
invalidity.
order of the High Court was not confirmed
Held in so far as it related to provisions
1. Section 4(b) prohibited the use or prohibiting the purchase of cannabis, there
possession of any dangerous dependence- would be no need to deal with section 22A
producing substance or any undesirable (10) in that judgment. That was because
dependence-producing substance unless the sale or administration of cannabis –
one or more of the exceptions listed which were the activities prohibited by
therein applied. Section 5(b) prohibited section 22A (2) were not included in the
dealing in any dangerous dependence– order of the High Court.
producing substance or any undesirable 5. If the instant Court was satisfied that
dependence-producing substance unless the statutory provisions were correctly
one or more of the exceptions listed in that declared invalid, it confirmed the order
provision applied. of invalidity made by the High Court.
2. A reading of the judgment of the High If, however, the Court concluded that
Court did not reveal what statutory the High Court erred in holding the
provision the High Court understood to impugned provisions inconsistent with
prohibit the cultivation of cannabis in a the Constitution and in declaring them
private dwelling by an adult for his or her invalid, it did not confirm the order.
personal consumption in private. On the Where the Court did not confirm an order
face of it, section 5(b) did not itself seem to of invalidity made by a High Court, the
prohibit that activity when it was carried statutory provisions in question continued
out for the purpose just mentioned. in operation.
However, it was only when one read the 6. The right to privacy entitled an adult
definition of the phrase deal in in section person to use or cultivate or possess
1 of the Drugs Act that one realised that in cannabis in private for his or her personal
relation to a drug the definition included consumption. Therefore, to the extent that
performing any act in connection with the impugned provisions criminalised such
cultivation. cultivation, possession or use of cannabis,
3. One of the effects of section 5(b) read with they limited the right to privacy. The High
the definition of the phrase deal in was that Court pointed out that the State did not
the performance of any act in connection plead that the impugned provisions did not
with the cultivation of cannabis in a private limit the right to privacy. The High Court
dwelling or in private by an adult for his or correctly concluded that the impugned
her personal consumption in private was provisions limited the right to privacy.
prohibited. The High Court judgment had It was the State that had to satisfy the
to be taken to have intended to declare Court that the limitation was reasonable
that prohibition to be inconsistent with and justifiable in an open and democratic
the right to privacy entrenched in the society. The justification analysis required
Constitution and, therefore, invalid. by section 36(1) needed not be dealt with
on the basis of a check list approach. The
4. The conduct prohibited by section 22A High Court did not put much weight on
(10) was the sale or administration of any affidavits deposed to in support of the
Scheduled substance or medicine for any State’s case.
purpose other than medicinal purposes.
That was subject to the exceptions given in 7. The impugned provisions criminalised,
the provision. In its order the High Court among others, the cultivation of cannabis
59
in private by an adult for his or her e) cannabis use in pregnancy is associated

personal consumption in private. In Prince with restrictions in the growth of
II the Court was split 5:4. In the minority the foetus, miscarriage and cognitive
judgment it was said that the medical deficits in offspring.
evidence in that case showed that there f) although tobacco, alcohol and
was a level of consumption of cannabis prescription drugs also have harmful
which was not harmful but it was not effects, research has shown beyond
known what that level was. The impugned reasonable doubt that their effects are
provisions also criminalised possession of far less than those of cannabis on the
cannabis by an adult in private for his or user.
her personal consumption. That was quite g) the harmful effects caused by cannabis
invasive. are incomparable to food, alcohol and
tobacco. The harmful effects of cannabis
8. The State relied on Dr Gous’ affidavit as
have been well documented.
its main answering affidavit to justify
the limitation. In the State’s answering 9. The High Court’s conclusion that the
affidavit, Dr Gous made, among others, limitation was not reasonable and
the following points: justifiable was based on, amongst others,
the position taken by the South African
a) the psychoactive effects of cannabis,
Central Drug Authority as reflected in
known as a “high”, are subjective and
its position statement issued in 2016 in
can vary, based on the person and the
the South African Medical Journal. Two
method of use. Cannabis produces
points made in that statement needed to be
euphoria and relaxation, perceptual
emphasised. The first was that the South
alterations, time distortion and the
African Central Drug Authority said that
intensification of ordinary sensory
an assessment of available data in other
experiences, such as eating and listening
countries indicated, inter alia, that, among
to music. When used in a social setting,
alcohol, tobacco and cannabis, alcohol
it may produce infectious laughter and
caused the most individual and social harm.
talkativeness. Short-term memory and
The second point was that the immediate
attention, motor skills, reaction time
focus should be on decriminalisation.
and skilled activities are impaired while
a person is intoxicated. 10. The High Court’s conclusion was
b) the most common unpleasant side- also influenced by, among others, the
effects of occasional cannabis use are fact that there were many democratic
anxiety and panic reactions. societies based on freedom, equality and
c) chronic heavy cannabis smoking is human dignity that had either legalised or
associated with increased symptoms of decriminalised possession of cannabis in
chronic bronchitis, such as coughing, small quantities for personal consumption.
production of sputum and wheezing. Those were reflected in an addendum to
Lung function is significantly poorer the judgment. The addendum had the
and there are significantly greater name of the jurisdiction, the legislation
abnormalities in the large airways involved and the year in which the
of marijuana smokers than in non- decriminalisation or legalisation, as the
smokers. case would be, occurred.
d) the short-term effects of cannabis
11. Counsel for the State referred to
use on the cardiovascular system can
various international agreements to which
include increased heart rate, dilation of
South Africa was a signatory and submitted
blood vessels and fluctuations in blood
that South Africa was obliged to give effect
pressure. The cardiovascular effects of
to those international agreements. The
cannabis are not associated with serious
answer to the submission was that South
health problems for most young, healthy
Africa’s international obligations were
users. Cannabis use by older people,
subject to South Africa’s constitutional
particularly those with some degree
obligations. The Constitution was the
or coronary artery or cerebrovascular
supreme law of the Republic and, in entering
disease, may pose greater risks.
into international agreements, South
60
Africa had to ensure that its obligations it could also be grown inside an enclosure
in terms of those agreements were not in or a room under certain circumstances.
breach of its constitutional obligations. It would also be that one would cultivate
The Court could not be precluded by an it in a place other than in one’s garden
international agreement to which South if that place could be said to be a private
Africa would be a signatory from declaring place. The Court was of the view that the
a statutory provision to be inconsistent prohibition of the performance of any
with the Constitution. Of course, it was activity in connection with the cultivation
correct that, in interpreting legislation, an of cannabis by an adult in private for his
interpretation that allowed South Africa to or her personal consumption in private
comply with its international obligations was inconsistent with the right to privacy
would be preferred to one that did not, entrenched in the Constitution and was
provided that did not strain the language constitutionally invalid.
of the statutory provision.
15. The provisions that were declared
12. The order of the High Court said in inconsistent with the Constitution
effect that the provisions of section 5(b) of included provisions that prohibited
the Drugs Act were declared inconsistent the purchase of cannabis. Although the
with the Constitution of the Republic of provisions that the order of the High
South Africa Act 108 of 1996 and invalid, Court invalidated included provisions
only to the extent that they prohibited that prohibited the purchase of cannabis,
the use of cannabis by an adult in private in its judgment the High Court did not
dwellings where the possession, purchase anywhere advance reasons why those
or cultivation of cannabis for personal provisions could not be said to constitute
consumption by an adult. In its judgment, a reasonable and justifiable limitation
the High Court did not anywhere discuss of the right to privacy. A purchaser of
dealing in cannabis nor did it discuss the cannabis would be purchasing it from
activity of cultivation of cannabis. a dealer in cannabis. Therefore, if the
Court were to confirm the order declaring
13. The High Court did not give any
invalid provisions that prohibited the
reasons why section 5(b) could not be said
purchase of cannabis, it would, in effect, be
to constitute a reasonable and justifiable
sanctioning dealing in cannabis. That the
limitation of the right to privacy. However,
Court could not do. Dealing in cannabis
the definition of the phrase “deal in” in
was a serious problem in the country and
section 1 of the Drugs Act threw light on
the prohibition of dealing in cannabis
why the High Court would have declared
was a justifiable limitation of the right
section 5(b) constitutionally invalid to the
to privacy. The Court could therefore
extent that it declared it. When section 5(b)
not confirm that part of the order of the
was read with the definition of the phrase
High Court because it had no intention of
deal in in section 1 of the Drugs Act, one of
decriminalising dealing in cannabis.
its effects was that the performance of any
activity in connection with the cultivation 16. The order of the High Court
by an adult of cannabis in a private place declared section 22A (10) inconsistent
for his or her personal consumption in with the Constitution and, therefore,
private was criminalised. constitutionally invalid to the extent that
it prohibited the use, possession, purchase
14. The issue of the cultivation of
or cultivation of in effect cannabis by an
cannabis in private by an adult for
adult in a private dwelling for personal
personal consumption in private should
consumption. It did not anywhere refer to
not be dealt with simply on the basis that
the use, possession, purchase or cultivation.
the cultivation of cannabis by an adult had
It prohibited the sale and administration
to be in a private place and the cannabis
of, among others, cannabis for any
so cultivated had to be for that adult
purpose other than medicinal purposes
person’s personal consumption in private.
unless one of the exceptions given in the
An example of cultivation of cannabis in
provision applied. In the order of the High
a private place was the garden of one’s
Court there was no reference to the sale
residence. It would or would not be that
61
or administration of cannabis. Since there appeal against the High Court’s failure
was no reference in the order of the High to declare that the impugned provisions
Court to any activity prohibited by section were also invalid in the light of those other
22A (10) nor were there reasons in the rights. The other rights included the right
judgment of the High Court why section to equality, the right to human dignity and
22A (10) was declared constitutionally others.
invalid, the Court proposed not to confirm
20. The High Court’s intention was
the part of the order of the High Court that
to declare as inconsistent with the
related to it.
Constitution the provisions of the sections
17. Section 40(1)(h) of the Criminal referred to in the order in so far as they
Procedure Act simply conferred power on related to the use, possession, purchase
a peace officer to arrest without a warrant and cultivation of cannabis in a home or
any person who was reasonably suspected dwelling for personal consumption of
of committing or having committed an an adult. The effect of the order of the
offence under any law governing, for High Court was that an adult would not
example, the possession or conveyance of be committing any crime by using or
dependence-producing drugs. One of the possessing or cultivating cannabis in a
effects of the judgment was that it was no private dwelling or in a home for his or
longer a criminal offence for an adult to use her consumption but the moment he or
or be in possession of cannabis in private she stepped out of the private dwelling or
for his or her own personal consumption home, he or she would be committing a
in private. That meant that, after the criminal offence. That meant that an adult
handing down of the judgment, there who had cannabis in his or her pocket for
would be no law governing possession of his or her personal consumption within
cannabis by an adult in private for his or the boundaries of a private dwelling or
her own personal consumption in private home would not be committing an offence
that made such possession a criminal but he or she would be committing an
offence. If that conduct would no longer be offence if, for example, he or she were to
a criminal offence, there could be no basis step outside of the boundary of the home
for a peace officer to reasonably suspect or private dwelling while such cannabis
an adult in that situation to be committing remained in his or her pocket and he or
or to have committed an offence by being she possessed it for his or her personal
in possession of cannabis. There was consumption.
therefore no need for that provision to be
21. There was no persuasive reason why
declared constitutionally invalid.
the High Court confined its declaration
18. When all of the above was taken into of invalidity to the use or possession
account including the increasing number or cultivation of cannabis at a home
of open and democratic societies in which or in a private dwelling. As long as the
possession of cannabis for personal use use or possession of cannabis was in
had either been legalised or decriminalised private and not in public and the use
and the inadequate evidence put up by or possession of cannabis was for the
the State, the conclusion was inevitable personal consumption of an adult, it was
that the State had failed to show that the protected. Therefore, provided the use or
limitation was reasonable and justifiable in possession of cannabis was by an adult
an open and democratic society based on person in private for his or her personal
human dignity, equality and freedom. consumption, it was protected by the right
to privacy entrenched in section 14 of the
19. The High Court decided the matter
Constitution.
solely on the basis of the right to privacy.
Mr Prince submitted that it should have 22. Since the Court concluded that
based its conclusion on the infringement the limitation was not reasonable and
of other rights as well on which he said that justifiable in an open and democratic
he and his co-respondents (co-applicants society based on human dignity, equality
or plaintiffs in the High Court) had relied. and freedom, an order would have to be
For that reason, they sought leave to cross- made declaring the relevant provisions
62
constitutionally invalid to the extent that dependence-producing substance, unless

they criminalised the use or possession (vii) in the case of an adult, the substance
of cannabis in private by an adult for his is cannabis and he or she uses it or is in
or her personal consumption in private. possession thereof in private for his or her
Indeed, that order should also declare personal consumption in private.
invalid the provisions of section 5(b) read
26. As to section 5(b) of the Drugs Act,
with definition of “deal in” in section 1
It seemed that the Court should read
of the Drugs Act to the extent that they
into the definition of the phrase “deal in”
prohibited the cultivation of cannabis
in section 1 of the Drugs Act after the
by an adult in private for his or her own
word “cultivation” but before the comma
consumption in private.
the words “other than the cultivation of
23. The order of invalidity that the Court cannabis by an adult in a private place
made in the matter should not operate for his or her personal consumption in
with retrospective effect because it could private”. With that reading-in, which was
have a disruptive effect on, and, cause italics, the definition of the phrase “deal in”
uncertainty in, the criminal justice system. would read:
Accordingly, the order of invalidity in
‘deal in’, in relation to a drug, includes
the case would operate prospectively.
performing any act in connection with the
The operation of the order of invalidity
transshipment, importation, cultivation
should be suspended in order to afford
other than the cultivation of cannabis by an
Parliament an opportunity to correct the
adult in a private place for his or her personal
constitutional defect in the impugned
consumption in private, manufacture,
provisions as identified in the judgment. If
supply, prescription, administration, sale,
the order of invalidity were to come into
transmission or exportation of the drug.”
operation immediately, that could cause
many challenges in the criminal justice 27. As to section 22A(9)(a)(i) of the
system in the country. With regard to Medicines Act, the Court should read the
the period of suspension, the High Court following words and commas into that
expressed the view that 24 months would provision after the word “unless”:
be an appropriate period of suspension. In the case of cannabis, he or she, being an
24. The Court should grant interim relief adult, uses it or is in possession thereof in
so as to ensure that the Applicants and other private for his or her personal consumption
people in circumstances similar to theirs in private or, in any other case,
were granted effective relief. In the instant With the reading-in, which is in italics,
case, if no interim relief was granted, section 22A(9)(a)(i) would read like this:
there were many adult people who would
continue to be arrested by the police and (9)(a) No person shall— (i) acquire, use,
who would face criminal charges and, if possess, manufacture or supply any Schedule
convicted, possible imprisonment for the 7 or Schedule 8 substance, or manufacture
use or possession or cultivation of cannabis any specified Schedule 5 or Schedule 6
in private for personal consumption in substance unless, in the case of cannabis,
private – something that the judgment he or she, being an adult, uses it or is in
said nobody should be arrested for or possession thereof in private for his or her
charged with. interim relief therefore had personal consumption in private or, in any
to be granted. other case, he or she has been issued with
a permit by the Director-General for such
25. The interim relief the Court ought to acquisition, use, possession, manufacture, or
grant had to be a reading-in. It had to read supply: Provided that the Director-General
a new sub-paragraph (vii) into section 4(b) may, subject to such conditions as he or she
of the Drugs Act. The new sub-paragraph may determine, acquire or authorise the use
(vii) would read: of any Schedule 7 or Schedule 8 substance
No person shall use or have in his in order to provide a medical practitioner,
possession— (b)any dangerous dependenc analyst, researcher or veterinarian
producing substance or any undesirable therewith on the prescribed conditions for
the treatment or prevention of a medical
63
condition in a particular patient, or for the the State would bear the onus to prove
purposes of education, analysis or research. beyond a reasonable doubt that the
purpose of the possession was not personal
28. The effect of the reading-in adopted
consumption.
was that whenever the impugned
provisions prohibited the use or possession 30. The above reading-in meant that, if a
or cultivation of cannabis, an exception police officer found a person in possession
was created with the result that the use of cannabis, he or she would only arrest the
or possession of cannabis in private or person if, having regard to all the relevant
cultivation of cannabis in a private place for circumstances, including the quantity of
personal consumption in private was no cannabis found in that person’s possession,
longer a criminal offence. All the time that it could be said that there was a reasonable
was so only in respect of an adult and not suspicion that a person had committed an
a child. The judgment did not confine the offence under section 40(1)(b) or (h) of the
permitted use or possession or cultivation Criminal Procedure Act. The references
of cannabis to a home or a private to possession of cannabis, for personal
dwelling. That was because there were use, or for personal consumption helped
other places other than a person’s home or to ensure that the Court did not have to
a private dwelling where the prohibition specify the amount or quantity of cannabis
of the use or possession or cultivation of that would be possessed. The Court only
cannabis would be inconsistent with the needed to say that the amount that would
right to privacy if the use or possession be possessed was an amount for personal
or cultivation of cannabis was by an consumption.
adult in private for his or her personal
31. At a practical level, a question
consumption in private. Using the term in
that arose was: if a police officer found
private instead of at home or in a private
someone in possession of cannabis, how
dwelling was preferable. The effect of the
would he or she know whether that
reading-in was:
person was in possession of that cannabis
a) an adult person could, use or be in for personal consumption? Would he or
possession of cannabis in private for his she rely on that person’s word? Would he
or her personal consumption in private. or she ask questions aimed at establishing
b) the use, including smoking, of cannabis that? Obviously, a police officer would
in public or in the presence of children ask the person questions but his or her
or in the presence of non-consenting answers would not be decisive. The police
adult persons was not permitted. officer would need to have regard to all the
c) the use or possession of cannabis in relevant circumstances and take a view
private other than by an adult for his whether the cannabis possessed by a person
or her personal consumption was not was for personal consumption. If he or she
permitted. took the view, on reasonable grounds, that
d) The cultivation of cannabis by an adult that person’s possession of cannabis was
in a private place for his or her personal not for personal consumption, he or she
consumption in private was no longer a would arrest the person. If he or she took
criminal offence. the view that the cannabis in the person’s
29. In determining whether or not a possession was for that person’s personal
person was in possession of cannabis consumption, he or she would not arrest
for a purpose other than for personal him or her.
consumption, an important factor to be
32. It was true that there would be
taken into account would be the amount
cases where it would be clear from all
of cannabis found in his or her possession.
the circumstances that the possession of
The greater the amount of cannabis of
cannabis by a person was for personal
which a person was in possession, the
use or consumption. There would also
greater the possibility was that it was
be cases where it would be clear from all
possessed for a purpose other than for
the circumstances that the possession of
personal consumption. Where a person
cannabis by a person was not or could
was charged with possession of cannabis,
not be for personal consumption or use.
64
Then, there would be cases where it would worse than the uncertainty in the law
be difficult to tell whether the possession connected with the crime of negligent
was for personal consumption or not. In driving. Just as a police officer would
the latter scenario a police officer should look at the facts in regard to how a driver
not arrest the person because in such a was driving his or her motor vehicle and
case it would be difficult to show beyond take a view whether the driver should
reasonable doubt later in court that that be arrested for negligent driving, so, too,
person’s possession of cannabis was not would a police officer take a view of the
for personal consumption. facts in the case of possession of cannabis
whether or not the person concerned was
33. The above reading-in would be
in possession of the cannabis for personal
criticized on the basis that it did not
consumption in private. If he took the
provide either a police officer or anyone
view that it was not being possessed for
with certainty as to when the possession of
personal consumption or use, he or she
cannabis could be said to have crossed the
would arrest the person and cause him to
line of personal use or consumption and
be charged criminally. If, however, he was
would, therefore, have become prohibited.
satisfied that the person was in possession
However, that criticism could equally
of cannabis for personal consumption or
be levelled at the law in regard to, for
use, he or she would not arrest that person.
example, the crime of negligent driving. A
There were statutory offences which also
police officer who saw a car that was being
required a police officer to take a view on
driven in a certain manner formed a view
given facts and then decide whether to
whether or not the driver of that car was
arrest a person or not.
driving negligently. That view would be
based on the police officer’s observation 36. It was clear from Section 36 of the
of the manner in which the car was being General Law Amendment Act and Section
driven. 2&3 of Stock Theft Act that an essential
element of the offence of possession of
34. If the police officer took the view that
stolen goods was that the person found
the driver was not driving negligently,
in possession of the goods had to be
he or she would not arrest the driver. If,
unable to give a satisfactory account of
on the other hand, the police officer took
such possession. If he or she was able
the view that the car was being driven
to give a satisfactory account of his or
negligently and he or she thought that his
her possession of the goods, his or her
belief was based on reasonable grounds,
possession of the goods did not constitute
he or she would arrest the driver for
a criminal offence. If, however, he or she
negligent driving. That driver would be
was unable to give a satisfactory account
charged with negligent driving and the
of his or her possession of the goods, his or
Court would decide whether he or she
her possession of the goods was a criminal
was driving negligently. If the Court
offence provided that the other elements
concluded that the State had proved
of the offence were satisfied.
beyond reasonable doubt that the driver
was driving negligently, it would convict 37. Before a police officer arrested a
the driver of negligent driving. Whether or person in connection with the crime
not a driver was driving or drove his or her created by section 36, he or she had to
car negligently depended upon whether a first ask the person for an account of
reasonable driver in his or her position his or her possession of the goods. That
could have driven the way he drove. In meant that the person would give his or
other words, it depended on whether he her account of the possession of the goods
or she had fallen short of the standard of to the police officer and the police officer
driving expected from a reasonable driver would have to weigh it up together with
in his or her position. all other information and decide whether
the account was satisfactory or not. If the
35. The reading-in the Court had adopted
police officer thought that the account was
in the judgment would be criticized on
satisfactory, he or she would not arrest
the basis that it created uncertainty, the
the person. If he or she thought that the
uncertainty that it would create was no
65
account was unsatisfactory, he or she question of how a police officer would

would arrest the person and, ultimately, know whether an adult who was in
the court would decide at the trial whether possession of cannabis was in possession
the account was satisfactory or not. thereof for personal consumption or not.
In regard to cultivation, the question also
38. That was no different from what would
arose as to how a police officer who came
have to happen on the above reading-in if a
across cannabis that was being grown
police officer found a person in possession
in a garden or in a private place would
of cannabis and he or she thought it was
know whether the adult person growing
not for personal consumption. He or she
it was growing it for his or her personal
would ask the person such questions as
consumption. All the considerations the
would be necessary to satisfy himself or
Court had discussed above in relation
herself whether the cannabis he or she
to how a police officer would determine
was in possession of was for personal
whether cannabis was possessed for
consumption. If, having heard what the
personal consumption applied with equal
person had to say, the police officer thought
force to the cultivation of cannabis in a
that the explanation was not satisfactory,
private place for personal consumption
he or she would arrest the person.
and they needed not be repeated.
Ultimately, it would be the court that would
decide whether the person possessed the 40. The reading-in that the Court had
cannabis for personal consumption. The adopted in the judgment would apply
regulations to the National Environment until such time that Parliament cured the
Management: Biodiversity Act, defined constitutional defect. If Parliament failed
a possession permit as a permit for to cure the constitutional defect within the
keeping or conveying a specimen of a period of the suspension of the order of
listed threatened or protected species invalidity, the reading-in would continue
for personal use in a person’s possession to be part of the legislation.
without carrying out any other restricted
Application allowed
activity.
39. The Court had addressed the above
Education is a human right with immense power to transform. On its foundation rest the
cornerstones of freedom, democracy and sustainable human development – Kofi Annan
Some rights reserved by Colin J. McMechan
66
Law Reform
Compilation
Section 65 of the Kenya Ports Authority Act declared unconstitutional for
imposing a requirement that notice be issued as a Pre-Requisite to a competent
suit
Bob Thompson Dickens Ngobi v Kenya Ports Authority and 2 others
High Court at Mombasa,
Civil Suit No 87 of 2013
December 22, 2017
P J O Otieno, J
Brief Facts limited to representation in the board of

directors.
Before court for determination were two
Notices of Preliminary Objection by the 3. A statutory corporation, unless the
1st and 3rd Defendants. The Defendants creating statute said otherwise, was
contended that failure to issue a notice not an appendage or department of the
pursuant to section 65 of the Kenya Ports Government as contemplated under
Authority Act rendered the suit incompetent the Government Proceedings Act. One
and that section 39(1) of the Public needed not invite the application of the
Authorities Limitation of Action Act barred Government Proceedings Act when
the suit that was filed. parliament in its own wisdom had spent
time and public resources to enact a
Holdings pertinent to law reform statute to regulate the body so desired to
1. Various superior courts in Kenya had said be created.
more than once that a statutory provision 4. The provisions of section 65 of the Kenya
that sought to hinder any person’s access Ports Authority Act were in Pari materia
to justice, impose hurdles on the way to sections 13A of the Government
of citizens from seeking accountability, Proceedings Act and 3(2) of the Kenya
openness and efficiency in service delivery Revenue Authority Act. That being so
by government or government agencies the interpretation which the superior
had to be seen to violate article 48 of the courts had given to section 13A of the
Constitution and would be held to be Government Proceedings Act and 3(2)
unconstitutional for being antibusiness, of the Kenya Revenue Authority Act
oppressive and suppressed the need to would apply to section 65 of Kenya Ports
interrogate the Constitutional values of Authority Act. Being fully persuaded
accountability, transparency and efficiency by the decisions of the High Court and
expected of State Agencies. fully bound by the findings of the Court
2. The 1st and 3rd Defendants were created by of Appeal, section 65 of the Kenya Ports
Acts of parliament and both had been given Authority Act was in violation of article
legal personality in that they were capable 48 of the Constitution and to that extent
of suing and being sued independent unconstitutional. For that reason, the two
of the office of the Attorney General. limbs in the two Notices of Preliminary
Furthermore, the two statutes creating Objection could not stand but would fail
the two Defendants were explicit and the and were dismissed.
two ran as distinct corporates not as a 5. In any event section 65(3) also provided for
government department. Both recruited a window for a claimant to explain inability
their personnel including their legal to give the Notice. Such an explanation
personnel independent of the office of the could only be given by evidence adducing
Attorney General whose involvement was facts hence that was a point that ought
67
not to have been canvassed as a Notice of the 3rd Defendant was not a government
Preliminary Objection. department or a local authority and
could not get refuge behind The Public
6. The 3rd Defendant being a creature of the
Authorities Limitation Act. That being the
specific statute did not need to seek resort
position the law on limitation pertaining
in other legislations on matters otherwise
to the 3rd Defendant, its parent act having
fully covered and which ought to have been
not provided for limitation, had to be
covered by its parent statute. The Public
the limitation of Actions Act Cap 22.
Authorities Limitation Act did not apply
Accordingly, reliance by the 3rd Defendant
to Kenya Revenue Authority at all. The
upon the Public Authorities Limitation
use of the word public authority by itself
Act was ill founded conceived and advised
did not invite the Application of the Act
and could not be sustained.
to the 3rd Defendant. Having stated that
Sections 7 and 11 of the Parliamentary Powers and Privileges Act Declared

unconstitutional on grounds of being ouster clauses which unjustifiably limit
the tight of access to justice
Apollo Mboya v Attorney General & 2 others
High Court at Nairobi,
May 21, 2018
J M Mativo, J
Brief facts contrary to article 24 of the Constitution.

According to the Petitioner, section 11 of the
The Petitioner challenged the
Act made Parliament a house of secrets that
constitutionality of sections 3, 7 and 11 of
was beyond the reach of the Constitution.
the Parliamentary Powers and Privileges
Act (the Act). He also questioned the process The challenge raised against section 3
leading to the enactment of the Parliamentary of the Act by the Petitioner was that it
Powers and Privileges Act on grounds of purported to confer non-existent privileges
failure to undertake public consultations and immunities to all staff of Parliament,
with all stakeholders. members of the public and press who were
within the precincts of Parliament from
The Petitioner stated that section 7 of the
Court processes and it elevated them above
Act was unconstitutional as it insulated
the law. The Petitioner stated that the
Parliament’s staff and legal officers from
provision was a contravention of article
service of process from Courts in Kenya
117(2) of the Constitution on powers,
while permitting service of foreign court
privileges and immunities of Parliament
process within the precincts of Parliament.
granted to the business of Parliament, its
The Petitioner challenged section 11 of the committees, the leaders of the Majority and
Act on various grounds. Generally, he stated Minority and Chairpersons and Members of
that it purported to confer non-existent Committees.
privileges and immunities on all staff and
Holdings pertinent to law reform
advocates of Parliament from court process.
He said that it insulated the proceedings 1. Parliamentary privilege is a legal immunity
and decisions of Parliament including enjoyed by members of Parliament, in
enactments and appointment of public which legislators are granted protection
officers from court scrutiny even where against civil or criminal liability for actions
they were unconstitutional or a violation of done or statements made in the course of
fundamental rights and freedoms. Further, their legislative duties.
the Petitioner stated that the provision
2. Parliamentary immunity ensured the
limited the right to fair administrative action
proper operation of Parliament. It
and access to justice guaranteed under
conferred rights and privileges to members
articles 47 and 48 of the Constitution and
of Parliament; most importantly freedom
amounted to a limitation on the enjoyment of
of speech. That freedom of speech enabled
fundamental rights and freedoms which was
68
Parliament to do its job of legislating, clause could still be subjected to judicial

adopting the budget and overseeing the review.
activities of the Government. If members
7. It was possible for legislation to be
of Parliament could not criticize the
nullified by a court on grounds of
Government and investigate and denounce
unconstitutionality on the basis of its
abuses because of fear of reprisals by
content or the process of its enactment.
the executive branch or other powerful
Similarly, a decision of a parliamentary
actors, they would not live up to their role.
committee, made in exercise of its quasi-
Freedom of speech would enable them to
judicial functions could be quashed by a
raise questions affecting the public good
court for being ultra vires, an error of law,
which could be difficult to voice elsewhere
unreasonable, illegal, and arbitrary or for
owing to the possibility of court action.
violating the Bill of Rights.
3. Members would participate in
8. By denying an aggrieved citizen access to
parliamentary proceedings usually by
court in order to challenge a particular
speech and also through formal action
decision, ouster clauses offended the
including voting and giving a notice of
constitutional principle of rule of law. The
motion. Strangers could also participate
issue that was most likely to provoke the
in parliamentary proceedings by
Court’s rejection of an ouster clause was
giving evidence before parliamentary
that it violated the constitutional right to
committees or presenting petitions with
access to the courts and it attacked the
respect to private bills. While participating
constitutional duty of the Court to hear
in parliamentary proceedings, members,
cases relating to violations of fundamental
officers and strangers were protected
rights and freedoms and also to determine
under parliamentary immunity. They
the constitutionality of legislations and
could not be asked to account for their
the legality of decisions made.
actions before any authority other than
Parliament itself. 9. To the extent that section 11 of the Act
restricted service of civil process to staff
4. The hard core of parliamentary immunity
working in Parliament, including legal
covered statements made from the floor
officers, it was a violation of the right of
of the House or in committees, Bills or
access to justice as recognized in article
proposed resolutions and motions, written
48 of the Constitution. Court process
and oral questions, interpellations, reports
would not be served inside Parliament in
made at the request of Parliament, and
the course of parliamentary proceedings
votes cast. Such actions were protected by
but to Parliament’s officers or advocates
absolute privilege of freedom of speech.
authorized to accept service. Thus, it could
Members of Parliament could not be sued
not be said that the impugned section
for defamatory statements or statements
11 was meant to protect parliamentary
that would otherwise be a criminal offence.
proceedings from disruptions. The
5. Section 11 of the impugned Act offered justification given for the infringement of
more immunity than would be covered the right of access to justice by the Act did
under parliamentary immunity. It barred not meet the test provided for in article 24
any person from challenging decisions of the Constitution.
made by Parliament or its committees
10. Section 3 of the Act described
in Court. It did not limit the nature of
the precincts of Parliament. There
decisions which could not be challenged.
was nothing unconstitutional about it.
It shielded Parliament’s decisions from
However, section 7 and 11 of the Act did
court scrutiny. It took the form of an
not pass constitutional muster and were
ouster or finality cause which restricted or
inconsistent with articles 1, 2, 3, 10, 19,
eliminated judicial review.
20, 21(1), 22, 23, 24, 48, 50, 93 (2),94 (4),
6. Traditionally, courts interpreted 159, and 258 of the Constitution. Judicial
provisions which ousted the Court’s review was part of the basic structure of
jurisdiction narrowly. That meant that a the Constitution and it could not be ousted
decision that was the subject of an ouster by a statutory provision.
69
Sections 4(2), 8, 12, 17(1), 18, 27, 40, 42, and 70 of the Public Audit Act 2015
declared unconstitutional as they negatively impact on the independence of
the Auditor General
Transparency International (TI Kenya) v Attorney General & 2 others
High Court at Nairobi,
February 16, 2018
E C Mwita, J
Brief facts 9(1)(e) of the Public Audit Act contained a

proviso which limited the Auditor General’s
The Petitioner, a non-profit organization,
access to records, documents, property and
established with the aim of developing a
premises for purposes of undertaking an
transparent and corrupt free society through
audit to situations where such access was
good governance and social justice initiatives,
reasonably necessary and section 42 of the
sought to challenge the constitutionality of
Public Audit Act, which provided that the
various provisions of the Public Audit Act
Auditor General would not question the
2015. In particular, the Petitioner challenged
merits of a policy adopted by the National
the validity of sections 4(2), 7(1)(g), 9, 12, 14,
Government and the County Government.
17, 18(3), 25, 26, 27, 40, 42, 68, 70 and 72 of
the Act. The appointment of the Acting Auditor
General under section 12 of the Act was also
Generally, some of the provisions were said
questioned as that entity would be appointed
to negatively impact on the independence
by statute to perform the constitutional
of the Auditor General. For example, the
functions of an Auditor General in the
constitutionality of sections 8(a)(b)(c)(d)(e)
absence of an Auditor General. It was said
and (f) and 17(1) of the Act which created a
that the position was not contemplated by
role for the Public Service Commission, the
the Constitution and could not be created
Salaries and Remuneration Commission and
by statute as it allowed the office holder to
the National Treasury as related to the staff in
exercise constitutional powers.
the Auditor General’s office was questioned.
On similar grounds, section 18(3) of the A challenge was also raised against the
Public Audit Act, which required the Auditor constitutionality of section 72 of the Act
General to second officers to state organs and which limited public access to the official
the provisions on the functions of the Audit reports of the Auditor General on national
Advisory Board, which was to advise the security grounds. Furthermore, the scope
Auditor General on questions concerning the of the President’s powers, under article 115
discharge of his mandate, were questioned. of the Constitution, when referring a Bill
back to Parliament for reconsideration after
Additional provisions which were said to
its presentation for presidential assent was
negate the Auditor General’s independence
questioned. It was argued that in making
included those providing for inception
recommendations and suggestions on the
meetings to be held between the Auditor
drafting of the Bill, the President went
General and national security organs to
beyond what was required.
discuss the scope of the audit of the national
security organs and section 68 of the Act Holdings pertinent to Law Reform
which gave Cabinet Secretary for Finance
1. Under article 229(1) of the Constitution
powers to make regulations for purposes of
the Auditor General would be nominated
giving effect to the provisions of the Act.
by the President and after being approved
Provisions which were said to unduly limit by Parliament, he would then be appointed
or extend the Auditor General’s functions by the President. As a constitutional
or powers were also challenged. Those creature, the Auditor General was not a
provisions included section 7(1)(g) of the statutory head. The impression in section
Public Audit Act which provided that the 4(2) of the Public Audit Act that the Auditor
Auditor General would serve any other General was created by the statute or was a
functions provided in written law, section statutory office was erroneous. Therefore,
70
the statute had an unconstitutional effect. 6. Requiring the Auditor General to take
action subject to article 234 of the
2. Section 4(1) of the Public Audit Act
Constitution would undermine and erode
recognized that the Auditor General
the independence bestowed on him by the
existed by virtue of article 229(1) of
Constitution. A holistic reading of articles
the Constitution while subsection 2 of
229, 234, 249 and 252 of the Constitution
the same provision defined the Auditor
revealed that the Auditor General could
General as a statutory head. That entailed
not be subject to the Public Service
reducing a constitutional office into a
Commission when either recruiting or
statutory one. Section 4(2) of the Act
disciplining his staff.
resulted in an unconstitutional effect and
offended article 229(1) of the Constitution. 7. The proviso to section 9 (1) (e) of the Act,
allowed the Auditor General to access
3. Section 4(2) of the Public Audit Act
documents, reports, records and even
created a problem when it subjected the
properties for the purpose of carrying
appointment of the Auditor General’s staff
out his work if in his opinion the access
to the Public Service Commission. As the
was reasonably necessary for the audit.
holder of an independent office under
There was no limitation introduced in the
article 252(1)(c) of the Constitution, the
proviso. It would have been different had
Auditor General had power to recruit his
the proviso left the question of necessity
own staff.
of access in the opinion of the state organ
4. Section 7(1) (g) of the Public Audit Act or public body to be audited. There was
provided that the Auditor General shall no ambiguity or vagueness in the proviso
perform any other functions prescribed which would make it constitutionally
by any other written law. Article 229 invalid.
provided for the functions of the Auditor
8. Section 12 of the Public Audit Act which
General which were to audit and report
created the office of Acting Auditor
on financial expenditure of enumerated
General, presented various problems.
public entities. Article 229 did not provide
Under the provision, it was the Public
any other duties for the Auditor General
Service Commission which would
or subject him to any other legislation.
recommend the appointment of the Acting
However, under article 252(1)(d) of
Auditor General to the President in order
the Constitution, the Auditor General
to fill a vacancy in the office of Auditor
was allowed to perform any functions
General. There was no constitutional
and exercise any powers prescribed by
requirement that the Public Service
statute in addition to the functions and
Commission would recommend a person
powers conferred under the Constitution.
for appointment as Auditor General. The
Therefore, the impugned section 7(1) (g)
law was clear on how the Auditor General
of the Act did not expand the powers and
would be appointed and there was no
functions of the Auditor General beyond
alternative method.
what the Constitution allowed.
9. Any attempt to create a substantive
5. Section 8 of the Public Audit Act provided
position of Acting Auditor General by
that the Auditor would recruit and promote
statute, appoint a person otherwise than
qualified staff and human resource subject
as contemplated by the Constitution and
to article 234(5) of the Constitution. Article
allow him/her to exercise constitutional
234(5) of the Constitution provided for the
functions and powers of the Auditor General,
delegation of functions and powers of the
would amount to an unconstitutional
Public Service Commission to any officer,
office and unconstitutional exercise of
body or authority in the public service.
functions and powers of the constitutional
The Auditor General was an independent
independent office. Section 12 of the Act
constitutional office which would not
was inconsistent with article 229 of the
operate while being subject to the Public
Constitution and was invalid.
Service Commission. It would not recruit
and discipline staff subject to the Public 10. Section 17(1) provided that the
Service Commission. recruitment of staff of the Auditor
71
General was subject to article 234(5) of That was an interference with the Auditor
the Constitution. Article 234(5) of the General’s institutional and individual
Constitution allowed the Public Service independence. It was also a violation of
Commission to delegate its functions and article 249(2) (b) which was to the effect
powers to any other body. Given that the that the Auditor General was independent
Auditor General was an independent office and not subject to direction or control
holder, the Public Service Commission of any person or authority. Section 27
could not delegate its functions and of the Public Audit Act was therefore
powers to the Auditor General. The unconstitutional.
Auditor General had powers to recruit
15. Section 40 of the Public Audit Act
staff independently. Section 7(1) was
was unconstitutional on grounds that it
inconsistent with articles 249 (2) (b) and
interfered with the independence of the
252 (1) (c) of the Constitution.
Auditor General. It required the Auditor
11. The Auditor General was allowed General, when auditing national security
to employ staff for purposes of carrying organs, to hold a pre-audit meeting at the
out his functions and duties. Secondment highest level to agree on the areas to audit
of staff, under the terms of section 18 of and the appropriate audit approach.
the Public Audit Act, would be improper.
16. Section 42 of the Act barred the
It would lead to familiarity, undermine
Auditor General from questioning the
the independence of individual staff and
merits of a policy or objective of any level
interfere with institutional independence.
of Government or public entity, when
12. Section 27 of the Public Audit Act undertaking an audit. A statute could not
which provided for the functions of the impose conditions on the performance
Audit Advisory Board was problematic. of the Auditor General’s functions where
The Auditor General was created by the Constitution did not impose them.
the Constitution as a holder of an Section 42 of the Act was a violation
independent office. Under article 229(2) of of article 10 of the Constitution which
the Constitution, holders of independent provided for national values and principles
offices were independent and not subject of governance which included integrity,
to direction or control by any person or transparency and accountability and also
authority. The word “independent office” article 201 of the Constitution which
under the Constitution meant an office provided for financial openness.
that worked independent of all other state
organs in the discharge of its duties and
gave power to the Cabinet Secretary for
performance of its functions.
finance to make regulations necessary
13. An independent Auditor General for the operationalization of the Act.
was critical in establishing an office that The Cabinet Secretary could make such
dealt with public finance administration regulations for purposes of enforcing
matters given that the Kenyan people provisions of the Act if the provisions
put their trust on state organs and public were not unconstitutional and they did
bodies to use public funds to promote an not interfere with the independence of the
equitable society. In undertaking an audit, Auditor General. Where it was apparent
the Auditor General was required to reveal that such regulations were interfering with
any failures on the part of state organs the independence of the Auditor General,
and public bodies to comply with public they would be open to challenge.
finance regulations and he could not do
that if his independence was curtailed.
was superfluous. It provided that the Act
Independence guaranteed that the Auditor
shall prevail in case of any inconsistency
General would perform his duties without
between the Act and any other legislation
fear of repercussions.
relating to the functions and powers of the
14. The principal function of the Audit Auditor General. It was the Constitution
Advisory Board was to advise the Auditor that provided for the powers and
General on how to discharge his mandate. functions of the Auditor General and the
72
Public Audit Act merely restated them. If to reports by the Auditor General on
any other legislation conflicted with those grounds of national security. Section 72
provisions, it would be unconstitutional of the Act recognized the right of access to
under the terms of article 2(4) of the information as provided for in article 35 of
Constitution. Section 70 of the Act did the Constitution and any limitation placed
not add anything new to what was already on the enjoyment of that right would have
provided for under the Constitution. to be justified.
19. Section 72 of the Public Audit Petition partly allowed
Act had the effect of limiting access
We need to think of the future and the planet we are going to leave to our children and their children – Kofi Annan
Some rights reserved by Filip Lachowski
73
Tribute to the Late Hon. Justice S.N. Mukunya

Memorable Quotes
1. Muchira Paul Mbogo v Lincoln Muchoki Mwangi [2018]

eKLR
July 26, 2018
ELC Case No. 145 of 2016
“[8] Therefore a Court of law will not interfere with a contract
entered into between two consenting parties and the interest agreed
upon unless the same is illegal, unconscionable or fraudulent.”
2. Republic v National Irrigation Board & another Exparte
Anthony Munene Mbui & another [2018] eKLR
July 20, 2018
Judicial Review Application No. 1 of 2017
“There is no doubt that the Advisory Committee of the Mwea
Irrigation Scheme acted without jurisdiction in trying to set aside and overrule an order of a
competent Court of law. It had no jurisdiction to do so. Its actions were a nullity and void ab
initio…”
3. Erick Kimingichi Wapang’ana t/a Magharibi Machinaries Ltd v Equity Bank Limited &
another
September 27, 2016
Civil Appeal No. 91. of 2011.
“… Where a Court dismisses a suit under Order 17 rule 2 the suit ceases to exist. The court becomes
functus officio and the only option open to the applicant is to appeal. There is no provision under
the Civil Procedure Rules under that rule, to set aside the Courts orders… Even if there were such
powers, the applicant who has admitted having borrowed Kshs.7.8 million ought to show the
efforts he has made to repay the debt before a stay can be granted…”
4. Rajab Oundo Tabiro v Rukiya Nechesa Tabiro [2016] eKLR
May 11, 2016
Land and Environment Case No. 64 of 2014
“… In a case of adverse possession one must be a trespasser who enters the land of another person
peacefully and without permission and who stays there on the land for a period of 12 years without
his said stay being interrupted by a notice by the registered owner to move out and vacate the
land…. In such a case a parallel decision would arise because, I have no jurisdiction to interfere
with a Succession Cause and have no jurisdiction to vary the orders of a competent court of equal
and parallel jurisdiction. Such a situation would not be in the interests of justice as the court would
be open to ridicule and parties would be left confused, a situation that would not be desirable.
Such a decision would put the court into disrepute.”
5. Jackson Ali Wabomba & another v Jafether Ali Wabomba [2017] eKLR
HCC. 103 OF 2010
May 23, 2017
“No time for adverse possession could run against the respondent prior to his registration as a
proprietor. The required 12 year period for adverse possession had not run out. Further, the
applicants in their further affidavit state that this land was held by respondent as a trustee.
Consequently, they claim the land as of right, yet their suit is for adverse possession. Adverse
possession presupposes an entry that is through trespass and without any permission. Entry that
has persisted as against the registered owner for a period of 12 years or more. Not entry that is
alleged to be through trust, license and/or permission. Or entry through sale that becomes void
and one that has been persisting for 12 years since it became void. In all cases the entry must be
peaceful and without notice to vacate by the registered proprietor having been issued. Such notice
is required to be by filing a suit to vacate.”
74
The Devolution Case Digest gives a synopsis of selected cases on devolution emanating from
the Kenyan Courts and draws comparative lessons from other commonwealth jurisdictions.
The Digest is arranged thematically along the following seven key areas: Public Service;
Public Finance Management; Equity and Inclusivity; Removal from Office and Suspension
of County Governments; Transition to Devolved Government and Transfer of Powers and
Functions; Intergovernmental Relations as well as Public Participation and Citizen
Engagement.
Each @
Ksh.3000
Address of Principal office and Contacts:
ACK Garden Annex, 5th Flr., 1st Ngong Avenue, Off Ngong Road
P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
Mobile: +254 718 799 464, 736 863 309

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Issue 42

July - September 2018

A Judge’s membership to the Judicial Service

EDITORIAL TEAM 1. Editors Note 1

The official Law Reports of Kenya

The Hon. Mr Justice David K. Maraga, EGH

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

Ms Anne Amadi Mr Michael Sialai, EBS

Speech By Hon. David K. Maraga, Chief Justice And President Of The

Hon. David K. Maraga, EGH,

What they said

Per P N Waki & F Sichale, JJA (Majority Decision)

Per Odek, JA Dissenting

other superior courts due to the special a tribunal.

Some rights reserved erdbeernaut

7. The development of law on extension of application would have been allowed.

Some rights reserved René Mayorga

appeal a clear intention to appeal the Trial infraction or non-compliance with a

Issues 2. With specific reference to section 85A

Some rights reserved by Lip Kee

of Senior Counsel? have accorded privileges or advantages

2) A person shall not be eligible to be a 2. The Constitution advocated for non-

Legal requirements relating to settlement, withdrawal or termination of

considerations of the Court in deciding on whether b) Withdrawal or discontinuance of the

unity of the family. a) The offence of robbery with violence

that a constitutional commission could have- by a constitutional commission to eight

meetings, in such places, at such times and Petition allowed.

had to have an unconstitutional purpose in national legislation. In that regard,

Decisions of the Judges and Magistrates Vetting Board on the suitability

the Sixth Schedule of the Constitution to operation, relevance and applicability.

Feedback For Caseback Service

Dear CaseBack team,

Hon. D Alego Totally greatful for the feedback and insights!

Hon. Reuben Kipngeno

ACT PUBLIC TRUSTEE (AMENDMENT) ACT, 2018

ACT APPROPRIATION ACT, 2018

ACT COUNTY ALLOCATION OF REVENUE ACT, 2018

ACT TAX LAWS (AMENDMENT) ACT

B. NATIONAL ASSEMBLY BILLS

NATIONAL AS- KENYA ACCREDITATION SERVICE BILL, 2018

Sponsor Aden Duale, Majority Leader, National Assembly.

NATIONAL AS- SACCO SOCIETIES (AMENDMENT) BILL, 2018

Sponsor Joseph Limo, Chairperson, Committee on Finance and National Planning.

NATIONAL AS- CAPITAL MARKETS (AMENDMENT) BILL, 2018

NATIONAL AS- FINANCE BILL, 2018

Sponsor Joseph Limo, Chairperson, Committee on Finance and National Planning.

NATIONAL AS- INSURANCE (AMENDMENT) BILL, 2018

Sponsor Joseph Limo, Chairperson, Committee on Finance and National Planning.

SENATE BILL DATA PROTECTION BILL, 2018

Sponsor Aaron Cheruiyot, Senator.

Sponsor Ledama Olekina, Senator.

SENATE BILL COUNTY OUTDOOR ADVERTISING CONTROL BILL, 2018

SENATE BILL PREVENTION OF TERRORISM (AMENDMENT) BILL, 2018

Sponsor Naomi Waqo, Senator.

SENATE BILL COUNTY STATUTORY INSTRUMENTS BILL, 2018

SENATE BILL PETITION TO COUNTY ASSEMBLIES (PROCEDURE) BILL, 2018

Sponsor Judith Pareno, Senator.

SENATE BILL TREATY MAKING AND RATIFICATION (AMENDMENT) BILL, 2018