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CASE STUDIES ANALYSIS IN DEVELOPING KENYA’S JURISPRUDENCE

Author: Nosh

1. SURROGACY

The Kenyan legislations are silent on the issue of surrogacy despite being an

acknowledged area worldwide. This leaves little development in terms of legislative,

institutional frameworks as well as policies to govern such a contentious matter within our

society. Surrogacy is an arrangement between parties that requires a surrogate to carry the

pregnancy until birth where the baby is handed over the parents 1.

The Kenyan Constitution states that family is a fundamental unit of the society 2 yet this is

less seen in the statute as further cemented by the child’s best interest in Article 53.In the

cultural setting in Kenya, women are required to give birth to their children in order to ensure

continuity of their generation. However, the society shuns a barren woman thus majority seek

children through surrogacy in order to fulfill this cultural and societal expectation. In the WKN

& JLN case 3, the petitioners entered a surrogacy agreement with WKN and CWW respectively

and upon birth, the baby was to be handed over to genetic parents and the baby was born

1
Saxena, P., Mishra, A., & Malik, S. (2012). Surrogacy: ethical and legal issues. Indian journal of
community medicine : official publication of Indian Association of Preventive & Social Medicine, 37(4),
211–213. https://doi.org/10.4103/0970-0218.103466
2
Constitution of Kenya Art. 45
3
J L N & 2 others v Director of Children Services & 4 others [2014] eKLR
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prematurely at MP Shah hospital and the legal issue arose as who was to be listed as the mother

of the twin as per the requirements of Births and Deaths Registration Act and the hospital

involved Director of Child’s services and petitioner sued to prevent them from putting the child

up for adoption. However, the court ordered that children to be released to WKN and CWW as

well as unlimited access were granted to JKL and the hospital was to enter the applicants’ names

on the notification and this led to current decision that changed jurisprudence in surrogacy in

Kenya. The judgment by Justice Majanja acknowledged Article 28 of the Constitution that

accords right to dignity. He stated “children born from surrogacy are not different from the rest

who were born through ordinary pregnancy. This is because they are entitled to rights under the

law and as well as protection. In as much as this was said, the Justice acknowledged the need for

legal framework to protect those in surrogacy arrangement but since there was none, he relied on

the best interest principle.

This still leaves a lacuna as the law still recognizes the surrogate mother as the legal

mother. The remedies available to the commissioning parents are but self-regulation and

adoption under Children Act. This means that the stakeholders offering fertility treatments

regulate this process for instance IVF. Contracts are made and governed by laws of Contracts

Act. In addition, such centers have guidelines on the requirements of a surrogate mother and

counseling is conducted and surrogate mother informed on what is required of her. However, this

still poses a challenge to commissioning parents as they will be required to adopt as they cannot

legally acquire such a child.

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The Assisted Reproductive Technology Bill is a framework to regulate surrogacy. It

defines the term mother to a broader perspective than that provided by the Children’s Act. In

addition, both the rights of the surrogate and the mother have been clearly provided for. If this

Bill is enacted. Then the surrogate mother ceases to have legal rights to parenthood while the

mother gets the absolute right thereby ending the lacuna facing surrogacy in Kenya.

Supreme Court/ High Court judges are struggling with new issues/ legislation

Kenya is faced with contemporary issues and the judicial system has to offer solution to

the emerging issues. In the political culture of our country, despite it being democratic, leaders

wish to impose their will on the citizens in what is deemed as “getting their way”. Being a string

political climate, the BBI issue brought about stalemate which would in the event threatened

peace. The issue regarding Building Bridges Initiative (BBI) 4 is an area which indicated a

struggle in the issue. The courts had to decide as to whether it was a matter of construction of the

Constitution and who had the authority to institute BBI as per the Kenyan Constitution. The

issue as to whether the basic structure of the Constitution can be amended. As a result, this a

matter relied on legal and judicial doctrine construing the same to the matters of Article 255-257

that grants implied limitation to the amendment power. As a result, the basic structure doctrine

applies to the Kenyan Constitution and neither the president can initiate a Constitutional

Amendment under the popular initiative.

The issue of new currency notes. Whether the design of new Kenyan currency notes

violates Article 231 of the Constitution. The change in the currency in terms of image is a new

4
David Ndii & others v Attorney General & others [2021] eKLR
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issue as this has never been decided before in the Kenyan jurisprudence. In the case of Simon

Mbugua 5, the petitioner stated that “Notes and coins issued by the Central Bank of Kenya may

bear images that depict or symbolize Kenya or an aspect of Kenya but shall not bear the portrait

of any individual.” In such instances, the judges rely on interpretation and legislations that would

promote the principles set forth by the Constitution, permits development of the law while

promoting its purpose. Therefore, where contentious issues arise, judges rely on interpretation,

relevant statutes and precedents to decide the matter. In Constitutional matters, since our

Constitution is a living document, any legal issues can be construed within the Articles of the

Constitution while promoting fundamental human rights.

Emerging issues: Covid-19

The Corona virus pandemic has affected the country in various ways. This has seen the

scarcity in resources. The question of what basis should the doctors use to prioritize treatment is

a challenge as this would attribute to negligence. The doctors have a duty to their patients and at

times situations place them in a tough spot like the pandemic. Doctors now have to prioritize

who to treat according to the hospital’s policies. In this age, hospitals are but money minting and

majority are influenced by politicians. Since the politician brings a lot of money than the

ordinary mwananchi, then they will automatically be treated when they get to hospital. This then

raises the concern as to whether disaster ethics can the law be excused. In such instances, the

rule of law is scrutinized by the public eye. Therefore, it is highly likely that the doctor will be

sued for negligence and the burden of proof solely lies on the plaintiff. As long as the doctor

exercised standard of care, this is going to be a challenge for the courts. This is why disaster

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Simon Mbugua & another v Central Bank of Kenya & 2 others [2019] eKLR
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ethics is allowed. The doctors are overwhelmed with work and majorities suffer burnout as a

result with the increase in the number of patients. The fact that such a disaster can be termed as

force majeure, then it has to be allowed but cannot be used as an excuse. Should the medical

practitioners be excused from negligence? The plea of scarcity of resources was indicated in

Okiya Omtata’s case 6. This was a petition that the Ministry of Health contrary to Public Health

Act 7, forced persons into quarantine and required them to pay for their upkeep and that the state

ought to have footed their bills. In my perception, the state imposed that requirement due to

scarce resources as it cannot take care of all those in quarantine. In as much as this request seems

absurd, these requirements were for the benefits of those suffering from corona. However, the

court ruled that they were to be refunded. The state could use the plea of scarcity of resources as

a defense but it wasn’t the case here. The Kenyan jurisprudence is silent on the plea of scarcity

of resource. In Petition 94 of 2012 8, the petitioner sought the courts indulgence on scarcity of

resource and it was held, “It is not unreasonable for the petitioner and other concerned Kenyans

to demand that a concrete policy framework be rolled out and implemented to address the

containment and treatment of various health afflictions”. This was regarded as matter of policy

framework and the court was unable to grant the petitioner relief sought.

Therefore, regarding this matter, the jurisprudence regarding plea of scarcity is silent

unless it is developed through interpretation and other Constitutional petitions decided.

Case of LGBTQ

6
Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others; Kenya
National Commission on Human Rights (Interested Party) [2020] eKLR
7
Section 27 of the Public Health Act, 1921 Cap 242 Laws of Kenya
8
Mathew Okwanda v Minister of Health and Medical Services & 3 others [2013] eKLR
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The Constitution of Kenya recognizes equality and freedom from discrimination 9. The

societal norms and cultural perspective are of the opinion that marriage is between a man and

woman which LGBTQ is not conformed to. The law does not recognize same sex marriages as

this is criminalized in the legal framework. The Penal Code under sections 162 and 165

criminalizes same sex sexual conduct and the High court failed to declare this as

unconstitutional. 10 In the opinion of the court, decriminalizing the aforementioned sections of the

Penal Code would indirectly open a gap that allowed same sex marriages. This is an indication

how the Kenyan society views the same sex marriages which is archaic and backwards despite

the Constitution rooting for an equal society. Religion and culture as well prohibit same sex

unions and this is evident in our society as same sex is viewed as a crime. If the same matter

came to my court, I would allow same sex marriage. This is because, that which is done in

private, the law cannot govern. The law is the mirror of our society thus enacting laws that fit the

changing society, nourishes its jurisprudence. In deed there is a conflict between religion, and

culture thus decriminalizing the sections of Penal Code is crystallized in its criminalizing effects.

In Okiya Omtata Okoiti case; What were the issues and what did the court say about it.

Judges in jurisprudence are but facilitators of formalism. This means that they identify a

set of legal principles that are determined in a case by case basis. As a result, this will later create

rules that will govern such outcomes. In the Okiya Omtata case 11, the Ministry of Health went

contrary to Section 27 of the Public Health Act, 1921 Cap 242 Laws of Kenya. People were

9
Constitution of Kenya Art. 27
10
EG & 7 Others v the Attorney General; DKM & 9 Others v the Attorney General (Petition 150
& 234 of 2016)
11
Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others; Kenya
National Commission on Human Rights (Interested Party) [2020] eKLR
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forced into quarantine by the government at their own costs. It was alleged that other individuals

had their period of compulsory quarantine un-procedurally and unfairly extended. The power of

the Cabinet Secretary to make and enforce laws by criminalizing offenses was questioned.

However, the issues for the court to decide were whether this matter fell under subjudice. “in

Petition 140 of 2020 were sub judice; pending determination in Nairobi constitutional Petition

132 of 2020 Law Society vs. CS for Health & another, and now res judicata since determination

of the said petition?” In the development of jurisprudence, the courts under Mutunga rules 12,

nothing limits the courts inherent powers. It was argued that subjudice looks into substance of

the claim rather than the prayers sought. Res judicata on the other hand relies on similar issues

and same parties as per Section 7 of the Civil Procedure Act which puts any litigation to an end

even where public interest is concerned. However, the courts determined that, in as much as

constitutional litigation issues keep evolving, res judicata applies. The issue regarding Article

94(5) of the Constitution, the power to make provisions and having the force of law. The court

relied on the notion that, “Ominia praesumuntur rite et solemniter asse acta: all acts are

presumed to be done rightly and regularly”. Any scholar, who embraces a realistic perspective

regarding this matter, would be of the belief that the judges acted in the balance of interest. For

instance in this matter, it is argued that the power to declare emergency rule lies within

Legislature, judiciary and the executive branches and this was done contrary to Section 27 of the

PHA. The interest of all persons arises where, “quarantine is internationally accepted as a means

of containment of pandemics like Covid-19”. The court affirms that there is scarcity of resources

by reckoning that, “decision to limit the use of government quarantine facilities which are

12
Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms)
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evidently limited to more deserving cases as opposed to persons flagrantly breaching the

measures put in place to contain the spread of pandemic was and is reasonable; widely accepted

and recommended by the World Health Organization (WHO) in containment of the spread of

COVID-19.” Therefore, the court ordered those forcefully placed into quarantine be refunded.

In Simon Mbugua Case; What were the findings, Issues and interpretation of Article 231

and the Jurisprudence around it.

The petitioners were Simon Mbugua and Okiya Omtata 13. The petitioners challenged the

process and design that introduced the new generation Kenyan notes and coins. The issue before

court was that the “design contains a portrait or a sculpture-portrait of the first President of

Kenya, Mzee Jomo Kenyatta, contrary to Article 231 of the Constitution”. This is because the

new bank notes and coins go contrary to this Constitutional provision that prohibits any portraits

on the currencies. The courts used the guidance of Article 259 in order to interpret fully Article

231. Here, Art. 259 require that the courts to interpret the Constitution in a manner that promotes

purpose as well as the development of the law. The judges pin the formation of the Central Bank

of Kenya to the 1969 Constitution of Kenya and thereby identifying CBK as a creature of

ordinary statute. This raises a concern as to whether the CBK acts retrospectively. The courts

were of the opinion that the 2010 Constitution elevated the bank into a Constitutional organ that

has clear mandates under Art. 231. As a result, it was construed that Art 231(3) established an

independent organ that shielded it from control of other persons directly or indirectly as read

with Section 13 of the CBK Act.

Muruatetu case

Practice and Procedure Rules 2013

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In this case, the suspect had been sentenced to death 14. The issue raised was whether the

mandatory death sentence was unconstitutional. Religion prohibits taking away one’s life and

under the naturalist perspective, the individual right to life ought to be respected. In as much as

positivists argue that law and morality has no connection, any given society’s action is reflected

through its laws. This is a contentious issue that contravenes the right to life provided by

Constitution as well as human dignity under International treaties that form part of the Kenyan

laws under Art 2(5). Their conviction was as per Section 204 of the Penal Code which led to the

appeal. The court’s decision departed from Godfrey Ngotho Mutiso v R, Cr. App No. 17 of 2008

(Mutiso case), the judge termed the mandatory death sentence was arbitrary and unconstitutional.

Therefore, it was the decision of the court that Section 204 of the Penal Code that mandatory

death sentence was but antithetical to the Constitutional provisions on protection against

inhuman or degrading punishment or treatment and fair trial. This led to the analysis of the

decision by The UN United Human Rights Committee in Eversley Thomson v St. Vincent,

Communication No. 806/ 1998U.N. Doc. CCPR/70/806/1998 (2000), which viewed mandatory

death sentence to be a violation of Article 26 of the Covenant. Therefore, departing from Section

204 of Penal Code, the Constitution under Article 20 requires Bill or rights to be applied by all

state organs and individual’s dignity be protected as per Article 28.

Religion and the law is an area where courts tread cautiously. In the case of Mohamed

Fugicha 15, was a case pertaining the freedom to exercise religion in public schools. The High

13
Simon Mbugua & another v Central Bank of Kenya & 2 others [2019] eKLR.
14
Francis Karioko Muruatetu & another v Republic [2017] eKLR
15
Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3
others [2016] eKLR
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Court in its decision that rules that allow Muslim students to wear hijab/trousers was

discriminatory, unlawful and unconstitutional. The decision was based religious prejudices

In this case, the controversy arose in the issue regarding school uniform. The respondents

had a uniform policy prescribed in the admission letter which each student signed upon

admission. However, the Deputy Governor of Isiolo County “made an informal request that all

Muslim girls in the school be allowed to wear hijab and white trousers in addition to the

prescribed uniform”. It was argued that under Islamic jurisprudence, Hijab was but a scarf that is

worn by school going children and with the accorded respect to Islamic beliefs and practice. This

was but a religious obligation for such students. The appeal relied on Article 24(4) and (5) where

equality ought to be accorded to Muslim faithful’s. Therefore, applying Article 27(4), the state or

any state organs cannot directly or indirectly discriminate on basis or religion. The fact that

Christian students felt that Muslim students are being favored; the court relied on the case of

FEDERATION OF WOMEN LAWYERS FIDA KENYA & 5 OTHERS vs. ATTORNEY

GENERAL & ANOR 16. In this case, “the issue of differentiation of treatment does not per se

amount to discrimination within the prohibition of the equal protection clause. It further stated

that an equal protection is not violated if the exception which is made is required to be made by

some other provisions of the Constitution.” The High Court’s decision was set aside that allowed

Muslim students to wear hijab/trousers which were deemed discriminatory, unlawful and

unconstitutional.

These raises a concern as to what extent can the law compromise to achieve equality and

equity in such contentious matters?

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The Supreme Court later overturned that decision stating that schools had the right to

determine the dress code of the school 17. The matter before it appeared to be more for the

interested party rather than the primary parties. This then requires deduction as to parties to a suit

as per the Civil Procedure Act. Does it mean that issues raised by such interested parties ought to

be overlooked by the courts? The courts acknowledge interested parties are allowed in

proceedings so that their cause is heard. According to Justice Ojwang, the majority viewed the

applicant as an interested party and rather not a primary party. This breeds technicalities as the

majority state that in order for a remedy to be awarded, “when a party seeks redress from this

Court, they ought to have had the matter properly instituted.” In the light of the Oxygen

principles and Section 3A of Civil Procedure Act, the courts ought to observe the overriding

objective and decide matters expeditiously. Does this then mean that an interested party has no

right to appeal as a party who wishes to pursue the issue? The courts ought to exercise their

inherent powers to meet the ends of justice by promoting the same. Relying on such

technicalities limits future involvement of parties since the decision of the Supreme Court binds

all courts thus having a negative impact in the laid down jurisprudence. Therefore, it was but a

personal choice when the ruling was issued as this lacked origin in the basis of law as these

decisions cannot be relied upon.

Reference

Statutes

16
FEDERATION OF WOMEN LAWYERS FIDA KENYA & 5 OTHERS vs. ATTORNEY
GENERAL & ANOR 2011 eKLR;
17
Mohamed Fugicha v Methodist Church in Kenya (Through its registered trustees) & 3 others [2020] eKLR
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Children’s Act

Constitution of Kenya 2010

Public Health Act

Cases

David Ndii & others v Attorney General & others [2021] eKLR

EG & 7 Others v the Attorney General; DKM & 9 Others v the Attorney General

(Petition 150 & 234 of 2016)

J L N & 2 others v Director of Children Services & 4 others [2014] eKLR

Mathew Okwanda v Minister of Health and Medical Services & 3 others [2013] eKLR

Okiya Omtatah Okoiti & 2 others v Cabinet Secretary, Ministry of Health & 2 others;

Kenya National Commission on Human Rights (Interested Party) [2020] eKLR

Saxena, P., Mishra, A., & Malik, S. (2012). Surrogacy: ethical and legal issues. Indian

journal of community medicine : official publication of Indian Association of Preventive &

Social Medicine, 37(4), 211–213. https://doi.org/10.4103/0970-0218.103466

Simon Mbugua & another v Central Bank of Kenya & 2 others [2019] eKLR