BBIssue 44

Issue 44
January - March 2019
Supreme Court quashes Court of Appeal decision that had

found it discriminatory for church-sponsored school to bar
Muslim students from wearing hijab as the cross-petition
filed had been improper
Supreme Court rules that an interested party in a petition had no right to file a cross petition Pg 06
To establish a trade mark infringement claim proof of likelihood of deception and confusion
as opposed to actual deception and confusion is required. Pg 43
PRODUCT CATALOGUE & PRICE LIST
Kenya Law Reports
PRODUCT STATUS COST
Kshs
Kenya Law Reports 1976 – 1980 (Consolidated) Available 6000
Kenya Law Reports 1981 – 1985 ( Per year) Out of stock
Kenya Law Reports 1986 Out of stock 3000
Kenya Law Reports 1988 Available 3000
Kenya Law Reports 2002 Vol.1 Available 3000
Kenya Law Reports 2004 Vol.1 Out of stock 3000
Kenya Law Reports 2006.Vol.2 Available 4500
Kenya Law Reports Specialized Volumes
PRODUCT STATUS COST
Kshs
Kenya Law Reports (Gender Based Violence) Available 4500
Kenya Law Reports (Family and Gender) Out of stock 4500
Kenya Law Reports (Environment & Land) Out of stock 3000
Kenya Law Reports (Election Petitions) Vol.1) Available 4500
Kenya Law Reports (Election Petitions) Vol.2 Available 4500
“Election Petitions Vol. 1,2,3 CD ROM” Available 5000
Kenya Law Reports Consolidated Tables and Digest (1976-1986) Out of stock 3000
Kenya Law Review 2007 Vol.1 Available 3000
Kenya Law Review Journal 2008-2010 Vol.2 Available 4500
Kenya Law Review Journal 2012-2014 Vol.3 Available 4500
Kenya Law Review Journal 2016 Vol. 5 No. I Available 2000
Kenya Law Review Journal 2016 Vol. 5 No. 2 Available 2000
Constitutional Law Case Digest Vol.1 (September 2011-May 2013) Available 3000
Supreme Court Case Digest Vol.1 2011-2012 Available 2500
Supreme Court Case Digest Vol.2 2013 Available 3500
Devolution Case Digest Vol.1 2012-2015 Available 3000
Laws of Kenya Volumes
PRODUCT STATUS COST
Kshs
Laws of Kenya Grey Book Available 15000
Public Finance Volume Available 10000
Family Law Volume Out of stock 4500
Land Law Volume Available 10000
Commercial Law Vol.1 Available 10000
Commercial Law Vol.2 Out of stock 10000
“The Constitution of Kenya, 2010” Available 200
Kenya law Weekly e-Newsletter Free by email subscription
Kenya Law Bench Bulletin Available Free
www.kenyalaw.org Available Free
CONTENTS
Victim Protection
Section 9(1)(e) of the Victim Protection To establish a trade mark infringement
Act, which requires accused persons to claim proof of likelihood of deception and
disclose and supply the victims with the confusion as opposed to actual deception
evidence they intended to rely on, declared and confusion is required. Pg 43
unconstitutional. Pg 36
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 11
Editorial Assistant
| Linda Awuor | 6. Caseback 49
Contributors 7. Legislative Updates 50
| Njeri Githan’ga | Andrew Halonyere |Wambui Kamau | 8. Legal Supplements 54
| Nelson Tunoi | Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
| John Ribia | Eunice Chelimo | Faith Wanjiku |
9. County Assemblies forum 4th
| Kevin Kakai | Christine Thiong’o | Annual Legislative Summit, 2019 57
| Patricia Nasumba |Musa Okumu| Lisper Njeru |
Design and Layout 10. Role of Kenya Law in County

|Catherine Moni | Josephine Mutie | Cicilian Mburunga | Legislation 59
| Robert Basweti | 11. International Jurisprudence 61
Proofreaders
12. Law Reform Compilation 66
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
Humphrey Khamala | 13. Pictorial 71
Disclaimer:
While the National Council for Law Reporting has made every effort
to ensure both the accuracy and comprehensiveness of the information
contained in this publication, the Council makes no warranties or guarantees
in that respect and repudiates any liability for any loss or damage that may
arise from an inaccuracy or the omission of any information.
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 Director, Financial Expert, The Judiciary
Accounting Services, National Treasury
vi
BB Issue 44, January - March 2019
Editor’s Note
Long’et Terer
CEO/Editor
I
t is yet again my pleasure and privilege to present to you this issue of our quarterly
Bulletin. I take this opportunity to thank those who have given us feedback on
previous issues of the publication, as we continue to strive to share with you the
jurisprudence from our courts.
In this Issue, the Bulletin highlights various cases from varying areas of the law which
is an indication of the development and evolution of our jurisprudence. The feature
case is the much awaited decision by the Supreme Court in Methodist Church in Kenya
v Mohamed Fugicha setting aside the orders of the Court of Appeal directing the Board
of Management of St. Paul’s Kiwanjani Day Mixed Secondary School to amend school
rules to accommodate students with religious beliefs requiring them to wear particular
items in addition to the school uniform. The court pronounced itself on the importance
of having matters properly instituted and the issues canvassed correctly in order to be
determined in the professionally competent chain of courts, when a party seeks redress.
In this jurisprudential case, the court ruled that the cross-petition was improperly
before the trial court, and ought not to have been introduced by an interested party
and should also not have been entertained by the appellate court, as neither court had
proper jurisdiction to do so.
The Court of Appeal segment highlights an important decision of Kenya Revenue Authority
v Republic (Ex parte Fintel Ltd) where the court gives an interpretation of statutory
provisions outlined in the Income Tax Act and discusses the enactment principles
applicable to interpreting taxation legislation.
From the High Court, we highlight the case of Wilson Kipchirchir Koskei v Republic where
the High Court at Nakuru ruled on factors a court considers in exercising its discretion
to grant an absolute or conditional discharge. In this case, the court granted an absolute
discharge as it determined that the appellant could not be said to have been accorded a
fair trial where the entire proceedings except his defence were conducted in a language
he did not understand.
These are only a few of the exciting and insightful decisions from our superior courts of
record highlighted in this issue which offers guidance on various areas of our laws and
it is our hope that you find the Bulletin informative. We are optimistic that 2019 will be
a dynamic year as we continue to keep pace with changes in legal developments locally
and globally.
Long’et Terer
Long’et Terer
1
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Remarks by Hon. Justice David K. Maraga, Chief Justice and The President of the
Supreme Court delivered on his behalf by Hon. Mr. Justice William Ouko, The
President of the Court of Appeal at the 6th Annual Devolution Conference, 2019 on
5th March 2019 at Kirinyaga University - Kirinyaga County
T
he presence here today of the three branches of Government is significant.
While they are established as separate and independent arms of Government,
the same Constitution emphasizes the need for inter-dependence, cooperation
and collaboration. Indeed, some of the solutions to the challenges in the
Government lie in better coordination between the agencies in the three Arms. We, in
the Judiciary believe that cooperation between State agencies or being seen together like
last week when the heads of the three branches came together during the presentation
of “ The State of the Judiciary and Administration of Justice Report” and even in this
conference, does not result in or constitute State capture or bad manners.
We will be steadfast in the defence of our judicial decisional independence, but still
hold that collaboration is one of the cardinal principles of our constitutional system of
governance. It is through collaboration with some county governments in the spirit of
taking justice closer to the people that some Governors have allocated land, provided
office accommodation for our courts and in some instances built court premises.
For this we are most grateful. Someone said many years ago that; “Coming together
is a beginning; keeping together is progress; and working together is success.” Your
Excellency, Ladies and Gentlemen, We must work together. But as we do so we must
always make sure we do not cross each other’s line. The Judiciary will continue playing
its role in the constitutional protection of devolution by safeguarding the rule of law
and good governance. Indeed the courts have from time to time been called upon by
devolved units to bring clarity through advisory opinions on constitutional ambiguities
on areas of devolved governance.
As a nation we must never forget the basic objects and principles of devolution articulated
in Articles 174 and 175 of the Constitution, key among them are; to promote democratic
and accountable exercise of power; and, to promote accountability, transparency and
public participation. It is gratifying to note that in keeping with these objects, this year’s
conference theme is aptly dubbed, “Deliver. Transform. Measure. Remaining Accountable”.
This forum therefore, provides us as a country, and all levels of Government, an
opportunity to take stock of the strides made and challenges encountered in the past
year.
While there is no doubt that devolution has helped to improve the lives of the citizens,
socially and economically, this success has been coupled up with many challenges.
The first term of many Governors was characterized by threats of impeachment. But
today the biggest threat to devolution is corruption. If the reports by Transparency
International is any yardstick, the excitement and expectations with which Kenyans
ushered in devolution has been replaced by a feeling of hopelessness; that devolution
2
has today become more of a burden to Kenyans than the saviour it had been presented
as at inception.
Your Excellency, Eminent Participants Corruption often goes unchallenged when
people do not speak out about it. If not checked corruption will gobble every coin
and render the Government’s big four development agenda a pipe dream. It will kill
devolution. We cannot afford or allow this to happen. Playing its role, the Judiciary
wishes to commit that it will ensure speedy disposal of corruption cases. In this regard,
the number of magistrates hearing these cases has been increased to ensure that
hearings are conducted on a day-to day basis until conclusion. It must be remembered
that in criminal cases it is the responsibility of the prosecution to prove the charges and
the standard of that proof is beyond any reasonable doubt. The courts will be guided by
the rule of law and ground their decisions on the evidence and the law.
3
What they said

Supreme Court Judges - D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu, I Lenaola, SCJJ
“
in Methodist Church in Kenya v Mohamed Fugicha & 3 others - Petition 16 of 2016
… with due respect to the Appellate Court, we are persuaded that the cross-petition
was improperly before the High Court, and ought not to have been introduced by an
interested party, and in that light, it should not and could not have been entertained by
the Court of Appeal; neither court having proper jurisdiction to do so… we recognize
that the issue as contained in the impugned cross petition is an important national issue,
that will provide a jurisprudential moment for this Court to pronounce itself upon in
the future. However, to do so, it is imperative that the matter ought to reach us in the proper
manner, so that when a party seeks redress from this court, they ought to have had the matter
properly instituted, the issues canvassed and determined in the professionally competent
chain of courts leading up to this Apex Court. In view of this, it is our recommendation that
should any party wish to pursue this issue, they ought to consider instituting the matter
formally at the High Court. ”
Per J B Ojwang, (dissenting)

“The definitional technicalities attached to the terms “interested party” and “cross-petition”,
did not deter the Appellate Court, which, quite properly in my opinion, addressed itself to
the fundamental cause, and dispensed justice with the requisite judicial authority. This is the
kernel of my departure from the Judgment rendered by the majority in this case… I find no
basis for departing from the stand of the Appellate Court Judges: that the trial Judge’s finding
disallowing Muslim girls wearing the hijab in school, was devoid of any legal or factual
merits.”
Supreme Court Judges - D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu, I Lenaola, SCJJ
in Mohammed Abdi Mahamud v Independent Electoral & Boundaries Commission & 4 others - Petition 7 of 2018
Per M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu (Majority)
“
It is our position that, in the absence of a determination by the Court of Appeal on an
issue, no appeal can properly fall before the Supreme Court in exercise of its appellate
jurisdiction.”
Per Per D K Maraga, CJ & P, SCJ (dissenting)

“So even if I had found that the appellant had the requisite academic qualification to
vie in the election, I would nonetheless have upheld the trial Court’s finding that the conduct
of the Wajir gubernatorial election violated the constitutional principles and affected the
result of the election and accordingly upheld its nullification of the election.”
Per I Lenaola, SCJ (dissenting)

“I disagree with the Chief Justice that this Court has jurisdiction to adjudicate on issues that
were not determined by the Court of Appeal. Indeed, those matters were not canvassed before
this Court and parties recognized – by direction of the Court – that only one single issue fell
for determination by this Court and that is the question of the academic qualification of the
Petitioner. Having said so, it is imperative that the Court of Appeal, and any other Court
whose decisions are subject to appeal, must always determine all issues placed before them.
To decline the obligation to do so would only lead to a situation such as the one explained
above which does not augur well for the administration of justice”
4
Court of Appeal Judges – W Ouko, Asike- Makhandia, S Gatembu Kairu, JJA in Kenya Revenue Authority v Republic
(Exparte Fintel Ltd) - Civil Appeal 311 of 2013
“
The Income Tax Act has given the word “paid” a technical as opposed to an ordinary
definition. Tax law is ever changing, complicated and highly technical.That is why
we, with respect disagree with the learned Judge for insisting that “upon payment”
must only convey the meaning that money or some valuable thing was delivered.
He gave the phrase a very narrow construction. In the context of the Income Tax
Act, payment is deemed to have been made even when no money has passed over…
Although section 35(5) requires that where withholding tax is payable, the tax payer must
“deduct” and remit the amount so deducted to the Commissioner, the sense in which the
word “deduct” is used, as an accounting term refers to the act or process of subtraction of an
item or expenditure from gross income to reduce the amount of income subject to income
tax. This need not be done physically or practically but as a book entry.”
High Court Judge – E C Mwita, J in Law Society of Kenya v Attorney General & another; Mohamed Abdulahi Warsame
& another - Petition 307 of 2018
“
…section 40 of the Judicial Service Act does not make it mandatory for the 1st interested
party to take the oath of office now that he has been elected to serve a second term.”
High Court Judge – F Tuiyott, J in Landor LLC & another v Wagude Lui T/A Landor & Associates & 2 others – Civil
Case 266 of 2015
“
…the mere fact that the petitioner may have appeared to be comfortable with the
taking of her photograph does not connote that she consented to the said photograph
being used in a widely circulate pamphlet. Furthermore, the respondent did not
demonstrate that its photographer was a body language expert so as to be in a
position to determine which body language means consent. In also note that the
said photographer did not swear an affidavit to confirm the claim that the petitioner
consented to the photograph through body language or at all. I therefore find that the
petitioners’ right to privacy was violated by the publication of her photograph and those of
her children in a widely circulated pamphlet, without her consent.”
High Court Judge – F Tuiyott, J in Landor LLC & another v Wagude Lui T/A Landor & Associates & 2 others – Civil
Case 266 of 2015
“
… actual deception or confusion need not be proved. It is enough to show that
deception or confusion is likely. Nonetheless, there will be occasion when it will be
necessary to prove actual deception or confusion. For instance where the Plaintiff
seeks damages for the infringement. Actual deception or confusion can inform the
Damages to be awarded.”
5
Feature Case
Supreme Court rules that an interested party in a petition had no right to
file a cross petition
Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR
Petition 16 of 2016
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P;M K Ibrahim,J B Ojwang, N Njoki & I Lenaola SCJJ
January 23, 2019.
Reported by Long’et Terer
Background It was averred that, a week later, unknown

persons brought the hijab and white trousers
On 24th January, 2019 the Supreme Court
for the Muslim girls, who subsequently
by a majority (Maraga, CJ &P, Ibrahim, Njoki,
reported to the school donning them. This
Lenaola with J.B Ojwang, SCJ dissenting)
conduct, it was stated, led to tension and
delivered a judgment setting aside the orders
disharmony. It was averred that when
of the Court of Appeal directing the Board
the school requested adherence to the
of Management of St. Paul’s Kiwanjani Day
established uniform code, the Muslim girls
Mixed Secondary School to amend school
and boys engaged in protests, breaking
rules to accommodate students with religious
window panes, and menacing teachers
beliefs requiring them to wear particular
and Christian students, before trooping
items in addition to the school uniform. The
to the District Education Officer’s offices,
Court of Appeal’s orders also directing the
apparently to entreat official endorsement of
Cabinet Secretary for Education to formulate
their conduct.
rules and regulations for the protection of
the rights under Articles 32 and 27 of the The Church sought a determination that the
Constitution have also been set aside. Respondent’s declaration was unlawful and
contravened the Constitution and school
At the High Court, the Methodist Church
rules. The Church also sought the following
of Kenya had challenged the decision of the
orders; to nullify the decision to transfer
TSC, County Director of Education, Isiolo
the principal from the school; an injunction
County and the District Education Officer,
restraining the respondents from interfering
Isiolo Sub-County that all Muslim girls in
with the petitioner in executing its rightful
Kiwanjani Secondary School be allowed to
role as a sponsor of the affairs of the school;
wear hijab and white trousers contrary to
a mandatory injunction compelling the
existing school uniform policy. It was stated
respondents to comply and ensure full
that the source of this controversy was an
compliance with current school rules and
informal request by the Deputy Governor
regulations; an injunction preventing the
of Isiolo County that all Muslim girls in
respondents from dissolving or purporting
the school be allowed to wear the hijab and
to stultify the current Board of Management
white trousers, in addition to the prescribed
and the Parents-Teachers Association
uniform. The Church averred that the School
of the school; and general damages. The
had a school uniform policy prescribed in the
respondents challenged the case. The
admission letter which each student and his
interested party in challenging the case
or her parents duly signed, upon admission.
stated in his Affidavit that Muslim students
In any event, controversy arose over the issue
should be allowed to wear a limited form of
of the uniform, on 22nd June 2014.
hijab as manifestation of their faith.
6
All the respondents, alongside an interested The appellate Judges in allowing the appeal
party joined to the suit on 15th October 2014, held that the trial court’s finding that allowing
contested the petition. The interested party in his Muslim girls to wear hijabs favoured Muslim
affidavit, dated 3rd November 2014 (paragraph girls and prejudiced the non-Muslims had
34), thus deponed: no legal or factual basis. The appellate
court also made a definite finding that the
“... I am also cross-petitioning that Muslim
School’s strictures upon Mr. Mohamed
Students be allowed to wear a limited form
Fugicha’s daughters amounted to indirect
of hijab (a scarf and a trouser) as a manifestation,
discrimination.
practice and observance of their religion consistent
with Article 32 of the Constitution of Kenya and The Appellate Court set aside the orders of
their right to equal protection and equal benefit of injunction, as well as that striking out the
the law under Article 27 (5) of the Constitution.” interested party’s cross-petition as defective,
and substituted it with an Order allowing the
The High Court, Makau J, on 5th March, 2015,
said cross-petition. Aggrieved, the petitioner
allowed the petition, and made the following
filed the instant appeal, prompting contest
final orders: the respondents’ decision
by the 1st to 4th respondents.
to allow Muslim Students to wear hijab/
trousers was discriminatory, unlawful, Aggrieved by the decision of the Court of
unconstitutional and contrary to the rules Appeal, the Methodist Church appealed
and regulations of the school; injunction to the Apex Court faulting the Court of
preventing the respondents from allowing Appeal’s decision for granting reliefs and
Muslim students to wear hijab, contrary Orders that were not sought in the appeal
to the rules and regulations of the school; by Mr. Fugicha especially paragraph 34 of
injunction restraining the respondents from the Mr. Fugicha’s affidavit sworn on which
interfering with the petitioner in executing according to the Church, did not constitute
its rightful role as sponsor, in respect of the a cross-petition, denying the Church an
affairs of the school; mandatory injunction opportunity to be heard on the alleged cross-
compelling the respondents to ensure petition. The Church also faulted the Court
full compliance with the school rules and of Appeal for adopting a wrong perception
regulations; injunction preventing the of the proceedings before the High Court
respondents from dissolving or purporting thereby reaching an erroneous finding that
to dissolve the Board of Management and there was no factual or legal basis for the
the Parents-Teachers Association of the trial Judge to hold that allowing Muslim
school; the school uniform policy did not girls to wear hijab favored such students,
indirectly discriminate against the interested and discriminated against the non-Muslims.
party(Mr. Fugicha)’s daughter and other Finally, the Church challenged the Court
Muslim female students; and the interested of Appeal’s interpretation and application
party’s cross-petition was found defective, of Articles 8, 27 and 32 of the Constitution
and was for striking out. Aggrieved by that among other grounds.
decision, Mr. Fugicha, sought redress in
The petitioner submitted that paragraph 34
the Court of Appeal which overturned the
of the replying affidavit did not meet the
decision of the High Court and gave orders
requirements of a cross-petition for it was
as indicated above.
inconsistent with the Constitution of Kenya
On 7th September 2016, the Appellate Court (Protection of Rights and Fundamental
determined that a proper reading of the Freedoms) principle and procedure Rules,
appellant’s affidavit in the High Court did 2013 otherwise known as the Mutunga
not warrant the striking out of the cross- Rules, which required a reasonable degree of
petition, in spite of any shortcoming in it. It precision in depicting of any infringement of
was the Appellate Court’s view that the learned fundamental rights and freedoms.
Judge erred by not directing himself to the
The petitioner contended that upon the
express provision of Article 22(3) (b), and by
Court of Appeal making a finding that
failing to enquire into whether paragraph 34
paragraph 34 contained a cross-petition it
of the appellant’s replying affidavit passed
ought to have sent it back to the High Court
the informality test contemplated in the
for hearing, as the petitioners were not
constitutional text.
7
afforded an opportunity to respond to it. the prevailing conditions in this case had to
be distinguished from those attendant upon
The petitioner also contended that the
the case law called in aid by the petitioner.
Appellate Court had disregarded the trite
principle of law that parties are bound by their Issues for determination
pleadings, when it came to the conclusion that
In determining the petition, the Supreme
the school uniform policy indirectly discriminated
Court framed the following as the issues for
against the Muslim students, despite the fact that
determination in the petition:
the school’s rules and regulations had not been
challenged in any Court. i. whether paragraph 34 of the
1st respondent’s replying affidavit
The 1st respondent submitted that the constituted a cross-petition; and
Court of Appeal had quite properly upheld ii. Whether the Court should interfere
his cross-petition, because paragraph 34 with the Court of Appeal’s decision.
and the entire replying affidavit transcended Holdings
the informality test contemplated in Rule
10 (3) of the Mutunga Rules. Yet this Rule, it The Court held that the 1st respondent (Mr.
was urged, is derived from Article 22 (3) (b) of the Fugicha) was admitted to the suit at the High
Constitution, which signals that the said Rules are Court as an interested party. The Trial Court
designed to assist, and not hinder the prosecution could join interested parties to proceedings
of human rights violations. where necessary, a party could be enjoined in
a matter on the basis of certain considerations
It was urged that the petitioner had an namely:
opportunity to respond to the cross- i. joinder of a person because his
petition, at both the High Court and the Appellate presence would result in the complete
Court, though it had squandered the opportunity. settlement of all the questions
This notwithstanding, the 1st respondent urged involved in the proceedings;
that he had prosecuted his cross-petition at ii. joinder to provide protection for the
the High Court, and the petitioner had rights of a party who would otherwise
responded to the substance of it. be adversely affected in law; and
The 1st respondent further submitted iii. Joinder to prevent a likely course of
that since the High Court had dealt with proliferated litigation.
the merits of the cross-petition, the appellate The trial court was thus well within its rights
court rightly considered the same, making to admit the 1st respondent as an interested
appropriate orders which, by no means, party.
did impinge on the petitioner’s Article-50 According to the Court, the most crucial
right to fair hearing. He thus perceived as interest or stake in any case was that of the
misplaced, the petitioner’s invocation of primary parties before the Court. In the
Article 27 of the Constitution, in contesting court’s opinion, the trial court ought not to
the Court of Appeal’s stand. have entertained issues arising from the cross-
The 3rd and 4th respondents limited their petition by the 1st respondent, especially in
submissions to the issue as to whether the view of article 163 (7) of the Constitution
Court of Appeal erred in failing to find that which provided that all courts, other that the
wearing a hijab by Muslim girl students violated Supreme Court were bound by the decisions
the Constitution. They urged that the ‘freedom of the Supreme Court. Moreover, the cross-
of religion’ ought to be upheld, as required by the petition did not comply with rule 15 (3) of
terms of the Constitution, and that in that process the Constitution of Kenya (Protection of
and in relation to the instant matter, both Article Rights and Fundamental Freedoms) Practice
53 of the Constitution and the provisions of the and Procedure Rules, 2013 (Mutunga Rules)
Basic Education Act, 2013 ordained that the best which spoke to a respondent filing a cross-
interests of the child required an education that petition, it was also not in conformity with
is holistic in orientation. They also urged that rule 10 (2) of those Rules. Rule 10(3) of the
the petitioner had not shown how its rights Mutunga Rules could not be invoked as the
would be prejudiced if the Muslim students replying affidavit of the 1st respondent did
were accommodated in the relevant religious not fit any of the descriptions contained
particulars. It was in that regard urged that therein.
8
The court noted that the issues set out in the much more than just an interested party
cross-petition did not afford the opportunity before the trial court. The most crucial
for the appellant to respond to the same question, if not the sole question, for most
effectively because; practical purposes before the trial court
i. it introduced a different cause of was the constitutional right of dress-choice
action from that raised in the original in accordance with recognized religious
petition; and orientation and its relevance and priority
ii. Because it was not framed in a within the schooling process.
manner, for which there was a known
The Judge noted that Article 159 (e) of the
laid out procedure for an exhaustive
Constitution required courts to uphold the
response.
purpose and principles of the Constitution.
The fact that the appellant could have referred The abode of such purposes and principles
to the issues therein through oral arguments was article 10 (b) of the Constitution. A
could not have amounted to formal pleadings regular scheme for discharging the judicial
in response to those issues. Both the trial and mandate was embodied in a number of
appellate courts violated the appellant’s right statutes; a typical example of such a statute
to be heard, as provided for under articles 25 was the Civil Procedure Act. It was within
and 50 of the Constitution. such a framework of discharge of mandate
The Court therefore ruled that the cross- that the trial court proceeded to make
petition was improperly before the trial its findings and orders of March 5, 2015
court, and ought not to have been introduced wherefrom an appeal proceeded to the
by an interested party. The court went on appellate court.
further to state that the cross-petition should In the judge’s view, a proper reading
not and could not have been entertained by of the appellant’s affidavit at the Trial
the Appellate Court, as neither court had Court did not warrant the striking-out
proper jurisdiction to do so. of the 1st respondent’s cross-petition,
The Court noted that the issue as contained in spite of its shortcoming. There would
in the impugned cross-petition was an be no justification for overlooking the
important national issue that would provide Constitution’s requirement in article 22
a jurisprudential moment for the Court (3) (b) that any formalities relating to the
to pronounce itself upon in the future. proceedings, including commencement of
However, to do so, it was imperative that the the proceedings, be kept to the minimum
matter ought to reach the Court in the proper and in particular that the court, if necessary,
manner. When a party sought redress from entertain proceedings on the basis of
the Court, they ought to have had the matter informal documentation. The trial court’s
properly instituted, the issues canvassed and finding disallowing Muslim girls wearing
determined in the professionally competent the hijab in school was devoid of any legal or
chain of courts leading up to the apex court. factual merits.
Should any party wish to pursue the issue The judge held that the appellant was
raised in the cross-petition, they ought to accorded a substantial hearing, on the
consider instituting the matter formally at cross-petition, regardless of the technicality
the High Court. attending the formal lodgment of the cross-
Per J B Ojwang, SCJ (dissenting) petition. It was of no legal consequence
that the replying affidavit was inelegant
The 1st respondent featured in the trial
in paragraph 34, with the 1st respondent
court’s proceedings only in a somewhat
averring that he was cross-petitioning. The
peripheral depiction, as an interested party,
constitutional charter, article 159 (2) (d)
an equivocation no less matched by the
of the Constitution declared that justice
labelling of his motion masked as a cross-
be administered without undue regard to
petition. The 1st respondent at the trial stage
procedural technicalities and article 22 (3)
would have appeared as a primary party, a
(b) declared that any formalities relating to
defendant and would have been entitled to
proceedings be kept to the minimum.
lodge a cross-petition in the ordinary sense.
The judge also held that the reference to
The 1st respondent before the Court was
9
the cross-petition had been inexact in a spiritual development while safeguarding

technical sense. It was for recognition that the denominations or religious adherence
such a flaw was, as a matter of law, mitigated of others. All the applicable terms of the
by the superior processes of both the trial Constitution and of the enacted law entailed a
court and the appellate court. There was right balance amidst people holding different
no factual or legal basis for the holding faiths, in the multi-cultural environment
that, allowing Muslim girls to wear the prevailing at the pertinent school, would by
hijab favored Muslim girl students and no means be jeopardized on account of the
discriminated against non-Muslims. The variation to the school dress-code.
appellant paid none or insufficient attention
Appeal allowed
to the proscribed indirect discrimination
and the principle of accommodation as the i. Judgment of the Court of Appeal dated
answer to the problem of discrimination. September 7, 2016 set aside.
ii. Parties to bear their own respective costs.
The judge held that Section 27 (d) of the Basic
Education Act, 2013 imposed upon a school’s
sponsor the obligation of maintenance of
“Anything you do; if it challenges you, you are motivated to try harder.”
Bernard Osei Annang, Beyond the Ocean: A Journey through Tides and Waves
10
Supreme Court
Supreme Court affirms the declared results for the gubernatorial election
for Wajir County held on August 8, 2017.
Mohammed Abdi Mahamud v Independent Electoral & Boundaries Commission & 4 others
Petition 7 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu, I Lenaola,
SCJJ
February 15, 2019
Reported by Beryl Ikamari & Mathenge Mukundi
Jurisdiction-jurisdiction of the Supreme Court- Brief facts:

appellate jurisdiction of the Supreme Court un-
The appellant filed his appeal to the Supreme
der article 163(4)(a) of the Constitution-matters
Court challenging the Court of Appeal judg-
of constitutional interpretation and application-
ment that affirmed the annulment of the gu-
whether a question relating to a candidate’s edu-
bernatorial election for Wajir County. The
cational qualifications and eligibility to vie for the
appellant was declared as the governor-elect
post of governor was a question of constitutional
pursuant to the gubernatorial election for
interpretation and application over which the
Wajir County, held on August 8, 2017.
Supreme Court had jurisdiction-Constitution of
Kenya 2010, articles 163(4)(a), 180(2) & 193(1); Aggrieved by the declaration, the 1st and 2nd
Elections Act, No 24 of 2011, section 22(1)(b)(ii).
r
espondents filed an election petition at the
High Court at Nairobi challenging the elec-
Electoral Law-pre-election disputes-disputes
tion, on the grounds, inter alia, that, contrary
arising at the nominations stage-disputes that
to section 22(2) of the Elections Act, he was
were capable of being resolved by the IEBC or Po-
not constitutionally and statutorily qualified
litical Parties Disputes Tribunal (PPDT)-dispute
to contest for the seat. The degree certificate
relating to the eligibility of a candidate to contest
he submitted to the Independent Electoral
in a gubernatorial election based on allegations
and Boundaries Commission (IEBC) for
of failure to meet the requisite academic quali-
nomination to vie, was a fraud. The respon-
fications-circumstances under which an election
dents also alleged that the conduct of the
court could determine such a dispute.
election was fraught with violence, intimida-
Jurisdiction-jurisdiction of the Supreme Court- tion and numerous illegalities and irregular-
appellate jurisdiction of the Supreme Court un- ities, which affected both the credibility and
der article 163(4)(a) of the Constitution-matters results of the election.
that were not determined at the Court of Appeal-
After hearing the election petition, the High
whether the Supreme Court could consider and
Court found that, contrary to section 22(2) of
make determinations with respect to matters that
the Elections Act, the appellant did not pos-
were left unresolved at the Court of Appeal-Con-
sess the requisite academic qualifications to
stitution of Kenya 2010, articles 163(4)(a).
vie in the election. That in the conduct of the
Electoral Law-gubernatorial elections-eligibility election, the 3rd and 4th respondents com-
of candidates to contest for the post of governor- mitted several irregularities and illegalities
academic qualifications-claim that a declared (including compromising the principle of
winner in a gubernatorial election was not eli- the secrecy of the ballot-where despite ma-
gible to contest in the election as he lacked the req- jority of the voters being unable to read and
uisite academic qualifications-whether the result write; only four Form 32 were duly filled and
of the election would be nullified. submitted, meaning the other assisted vot-
ers were not recorded, and results posted on
Electoral Law-gubernatorial elections-deputy
Form 37C were neither accountable nor ver-
governor-whether the post of deputy governor
ifiable.) The Court said that the irregularities
was elective.
11
affected both the credibility and the results grounds of the appeal and cross-appeal be-
of the election. The High Court nullified the fore it.
appellant’s election as the governor of Wa-
The Supreme Court allowed the appellant to
jir County, and directed the IEBC to hold a
adduce additional evidence on his academic
fresh election in strict accordance with the
qualification to contest in the election. It also
Constitution and the electoral laws.
allowed Ahmed Ali Muktar, the deputy gov-
Being dissatisfied with the trial Court deci- ernor of Wajir County, to be joined as an in-
sion, the appellant appealed to the Court of terested party in the appeal.
Appeal, mainly faulting the High Court for
assuming jurisdiction in the pre-election
nomination dispute which article 88 (4) (e) Issues:
of the Constitution reserves for IEBC, and i. Whether the Supreme Court had ju-
for determining that the appellant was not risdiction to entertain the appeal.
academically qualified to contest in the elec- ii. Whether the High Court, sitting as an
tion. The appellant further faulted the trial election court, had jurisdiction to en-
Court, for finding that the irregularities and tertain a pre-election dispute arising
illegalities committed, impugned the cred- from nominations, notwithstanding
ibility and affected the result of the election. the provisions of article 88 (4) (e) of
The 3rd and 4th respondents also cross-ap- the Constitution, and section 74(1) of
pealed on similar grounds, but they mainly the Elections Act.
disputed the finding by the trial Court that iii. Whether the Supreme Court had ju-
the conduct of the election was fraught with risdiction to determine issues that
irregularities and illegalities which under- were not addressed by the Court of
mined its integrity and affected the results of Appeal.
the impugned election. iv. Whether or not the appellant had the
The Court of Appeal after hearing the elec- requisite academic qualification to
tion petition appeal concurred with the High vie for the position of governor for
Court, that the appellant did not possess the Wajir County.
requisite academic qualifications to contest v. Whether the position of deputy gov-
in the election. Having declared so, the Court ernor was elective.
of Appeal considered the other grounds and Held
the cross-appeal to be moot. Consequently, 1. Questions relating to eligibility to vie
it dismissed the appeal with costs, and also for the post of county governor were
dismissed the cross-appeal, with no order as constitutional questions. Article 180(2)
to costs. and 193(1) of the Constitution provided
The Court of Appeal decision provoked the for that eligibility and it included
filing of two appeals before the Supreme satisfying educational requirements
Court. The first appeal, Petition No. 7 of provided for in the Constitution or
2018, filed on May 7, 2018, was by the ap- statute. Therefore the question as to
pellant. The second appeal, Petition No. 9 of whether the appellant met constitutional
2018, filed on June 5, 2018 the 3rd and 4th and statutory qualification necessary
respondents. With the consent of the parties, in order to vie for governor was a
those appeals were consolidated on June 11, constitutional question.
2018. The appeal at the Supreme Court chal- 2. The High Court and the Court of Appeal
lenged the Superior Courts’ findings that the considered whether the appellant was
election courts had jurisdiction to entertain academically qualified to participate in
pre-election nomination disputes, that the the impugned elections. The issue on
appellant lacked eligibility and/or the req- academic qualifications was an issue
uisite academic qualifications to vie in the relating to constitutional interpretation
election and that the conduct of the election and application which the Supreme
was fraught with illegalities and irregulari- Court could consider under article
ties which undermined its integrity and af- 163(4)(a) of the Constitution.
fected its results. The appellant also faulted
the Court of Appeal for failing to consider all 3. The issue relating to whether the
12
question on academic qualifications was resolution to the IEBC or Political

a pre-election dispute, which the election Parties Disputes Tribunal (PPDT),
courts had no jurisdiction to hear in light as the circumstances required, in the
of article 88(4) (e) of the Constitution first instance;
was also an issue of constitutional (b) where a pre-election dispute had been
interpretation and application. The conclusively resolved by the IEBC,
Supreme Court had jurisdiction to hear PPDT, or the High Court sitting as a
and determine it. judicial review Court, or in exercise
of its supervisory jurisdiction
4. The Supreme Court had the jurisdiction
under article 165 (3) and (6) of the
to hear and determine the appeal. The
Constitution, such dispute would not
Superior Courts’ concurred that the
be the subject of a petition filed at the
impugned election was not conducted
Election Court;
in accordance with the constitutional
(c) where the IEBC or PPDT resolved a
provisions, particularly, article 86 (a)
pre-election dispute, any aggrieved
of the Constitution and the Supreme
party could appeal the decision to
Court was urged to determine whether
the High Court sitting as a judicial
the Superior Courts had jurisdiction
review Court, or in exercise of its
to entertain pre-election disputes
supervisory jurisdiction under article
emanating from nominations article
165 (3) and (6) of the Constitution;
88(4) (e) of the Constitution and the
the High Court would have to hear
eligibility of a person to vie for the post
and determine the dispute before the
of county governor under article 180(2)
elections, and in accordance with the
as read together with article 193(1) of the
constitutional timelines;
Constitution. There was no doubt that
(d) where a person knew or ought to have
the Supreme Court had the jurisdiction
known of the facts forming the basis
to hear and determine the appeal.
of a pre-election dispute, and chose
5. There were conflicting judicial opinions, through any action or omission, not
on whether an election court had to present the same for resolution
jurisdiction to determine pre-election to the IEBC or PPDT, such dispute
disputes emanating from nominations would not be a ground in a petition to
notwithstanding the provisions of article the Election Court;
88(4) (e) of the Constitution and section (e) the action or inaction in (d) above
74 (1) of the Elections act. Nonetheless, would not prevent a person from
the Election Court retained the presenting the dispute for resolution
jurisdiction to determine pre-election to the High Court, sitting as a judicial
disputes. review Court, or in exercise of its
6. The Constitution had to be interpreted supervisory jurisdiction under article
holistically and purposively and a court 165 (3) and (6) of the Constitution,
of law had to keep in mind the fact that even after the determination of an
the Constitution could not subvert election petition;
itself. Every constitutional provision (f) in determining the validity of an
supported the other, and none could be election under article 105 of the
read so as to render another inoperable. Constitution, or section 75 (1) of the
Elections Act, an election court had
7. So as to ensure that article 88 (4) (e) power to look into a pre-election
of the Constitution was not rendered dispute if it determined that such
inoperable and to preserve the efficacy dispute went to the root of the
and functionality of an election court election, and that the petitioner was
under article 105 of the Constitution, not aware, or could not have been
the following guiding principles were aware of the facts forming the basis of
applicable:- that dispute before the election.
(a) all pre-election disputes, including 8. Both the Election Court and the
those relating to or arising from Court of Appeal wrongly assumed
nominations, should brought be for jurisdiction, in determining a pre-
13
election dispute, regarding the aca- appellant’s academic certificates. There

demic qualifications of the appellant. was no option available to the Court
The High Court should entertain but to affirm the concurrent Superior
such a matter only when sitting as a Courts’ findings that the appellant did
judicial review court, or exercising not possess the requisite academic
its supervisory jurisdiction under ar- qualifications to contest in the election
ticle 165 (3) and (6) of the Constitu- and that his election was therefore null
tion. and void.
9. In the absence of a determination by 5. Any dispute that questioned one’s
the Court of Appeal on an issue, no qualification or eligibility to vie in an
appeal could properly lie before the election was invariably a challenge
Supreme Court in exercise of its ap- about the integrity or validity of that
pellate jurisdiction. election. As such, even though article
88(4)(e) vested IEBC with jurisdiction
10. The Supreme Court lacked the juris-
to handle that category of disputes, a
diction to hear and determine the is-
purposive reading of other provisions
sue as to whether or not the appellant
of the Constitution would show that the
had the requisite academic qualifica-
elections courts were also vested with
tions to vie for the position of Gov-
jurisdiction to entertain them. Where the
ernor for Wajir County, which was a
Constitution provides for two or more
pre-election dispute.
methods of resolving disputes, none
Per D K Maraga, CJ & P, SCJ (dissenting) could exclude the other. Therefore in
1. Questions relating to eligibility to such cases, the decision of the forum that
contest in gubernatorial elections were had constitutional finality in resolving
questions of constitutional application the dispute would prevail.
and interpretation. Article 180(2) and 6. The vacancy in the position of a
193(1) of the Constitution provided governor referred to in article 182 of
for qualification to be met in order the Constitution would arise after a
for one to be eligible to contest for successful and unchallenged election or
the post of governor. The Supreme after the same was duly upheld after a
Court could assume jurisdiction over challenge. In case of an election petition
the issue on eligibility to participate in challenging the election of the governor,
the gubernatorial elections as both the the interested party’s contention that
High Court and the Court of Appeal where the governor would be declared
considered it. ineligible to hold office and the deputy
2. A question on whether elections were governor would assume the position of
not conducted in accordance with the Wajir county governor for the rest of the
Constitution and the law as the secrecy term, was untenable.
of the ballot was not observed contrary 7. The petitioner had the legal burden of
to article 81(1)(e) of the Constitution, proving allegations in an election petition.
was a constitutional question. It was The 1st respondent bore the burden
considered at the High Court and was of proving that the appellant degree
part of the High Court’s determination. certificate was not genuine. Considering
3. Article 193 (1) (b) of the Constitution the evidence that was adduced before the
as read together with section 22 (1) (b) trial Court, it was clear that the burden
(ii) of the Elections Act prescribed the of proof was successfully discharged, and
academic qualification of a university therefore, the evidentiary burden shifted
degree in order to qualify for election to the appellant to rebut the challenge
to a gubernatorial position. A university on the authenticity of his academic
degree was a prerequisite for election to qualification.
the position of county governor. 8. The election courts were vested with the
4. There was no compelling evidence overarching jurisdiction to determine
ascertaining the legitimacy of the the validity of an election. Nominations
14
and determinations of qualification to vie trial Court’s findings that the conduct of
were part of the continuum consisting the Wajir County gubernatorial election
in a plurality of stages that made up violated the constitutional principles
an election. Before the Election Court and affected the result of the election
certified under section 83 of the Elections should have been affirmed. Accordingly,
Act that an election was conducted the High Court decision to nullify the
in accordance with the constitutional election results should have been upheld.
principles on elections, it had to satisfy
I Lenaola, SCJ (dissenting)
itself that the constitutional criteria for
such an election had been met at every 12. Where the dispute before the IEBC was
stage. The High Court, as the Election not conclusively determined on merits,
Court, had jurisdiction to determine the then an election court would be obliged
validity of a pre-election nomination to hear and determine such a dispute, if
dispute that questioned the appellant’s it touched on the validity of an election
educational qualifications to contest in under article 105(1)(a) of the Constitu-
the Wajir County gubernatorial election. tion. The complaint to the IEBC Dispute
Resolution Committee on the academic
9. Sections 20 and 21(3) of the Supreme
qualifications of the appellant was dis-
Court Act and rule 3(5) of the Supreme
missed for want of prosecution. The said
Court Rules, 2012 provided for
Committee did not determine the merits
assumption by the Supreme Court
of that complaint. Therefore, the Elec-
of the Court of Appeal’s jurisdiction
tion Court in determining whether an
to determine any issue it omitted or
election was valid, could look to issues
refused to determine. Those provisions
arising during the pre-election period
unequivocally mandated the Court to
only to the extent that they had not pre-
assume the jurisdiction of a Superior
viously been conclusively determined,
Court and in the interests of justice, to
on merits, by the IEBC and PPDT.
make any appropriate orders that the
Superior Court would or should have 13. The Supreme Court lacked jurisdiction
made. However, those provisions should to hear and determine matters that were
be invoked sparingly. not canvassed at the Court of Appeal.
The appeal had to originate from a court
10. The evidence showed that the conduct
of appeal determination where issues of
of the election fouled the Constitution
contestation revolved around the inter-
and affected the results of the election.
pretation or application of the Constitu-
Had the Court of Appeal considered the
tion. The appellant had to be faulting the
other grounds of the appeal, it would
Appellate Court on the basis of such an
have reached the same conclusion as the
interpretation.
trial Court.
Appeal allowed. Parties were to bear their own
11. Even if it had been found that the
costs.
appellant had the requisite academic
qualification to vie in the election, the
15
Disparaging remarks made by an advocate, directed to a court, through

oral and/or written submissions amount to professional misconduct
Republic v Ahmad Abolfathi Mohammed and another
Petition 39 of 2018
Supreme Court at Nairobi
D K Maraga CJ & P; M K Ibrahim, J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ
March 15, 2019
Reported by Ian Kiptoo
Advocates-professional misconduct-obligations Supreme Court Act, 2011 (Act No. 7 of 2011)

of an advocate-where an advocate made dis-
Section 28
paraging remarks in both oral and written sub-
missions-disparaging remarks towards author- “(1) A person who
ity of a court-what was the duty of an advocate (a) assaults, threatens, intimidates, or
towards the Court, the Public and the profession wilfully insults a judge of the Supreme
as a whole in the course of a trial-whether dis- Court… during a sitting or attendance in
paraging remarks made by an advocate through Court….; or
oral and written submissions amounted to profes- (b) wilfully interrupts or obstructs the
sional misconduct-Advocates Act, sections 55 and proceedings of the Supreme Court…; or
56; Law Society Act, section 4 (c) wilfully and without lawful excuse
disobeys an order or direction of the
Brief Facts Supreme Court in the course of the hearing
The matter before the Court was an appeal of a proceeding, commits an offence….
from the Judgment of the Court of Appeal. “(3) The Supreme Court may sentence a person
However, in the course of the trial the judi- who commits an offence under Subsection (1)
cial task of hearing counsel and deliberat- to imprisonment for a period not exceeding five
ing upon the relevant issues was besieged by days, or to pay a fine not exceeding five hundred
scenarios of conduct bordering on contempt thousand shillings or both, for every offence.
which the Court had to signal, reprimand, “(4) The Supreme Court shall have the same
and for the future, prescribe lines to be ad- power and authority as the High Court to punish
hered to by any advocate canvassing his or any person for contempt of Court in any case to
her client’s case. which Subsection (1) does not apply.
Issues “(5) Nothing in Subsections (1) to (3) shall limit
or affect the power and authority referred to in
i. What was the duty of an advocate to- Subsection (4).”
wards the Court, the Public and the
profession as a whole in the course of Held
a trial? 1. It baffled the mind, how counsel for the
ii. Whether disparaging remarks made respondents, an advocate of the High
by an advocate, directed to a court, Court, and a leading member of the Law
through oral and/or written submis- Society of Kenya, seeking justice for his
sions amounted to professional mis- clients before the Court, could address
conduct. the Bench in such terms, both by written
Relevant Provisions of the Law submissions and verbally: a mode of
address deliberately chosen, even though
Advocates Act studiously insolent and impertinent,
Section 56 condescending and offensive. Such a
mode of advocacy, as was perceived,
“Nothing in this Act shall supersede, lessen or in-
was not only careless, thoughtless and
terfere with the powers vested in the Chief Justice
improper, but was imprudent, and
or any of the judges of the Court to deal with mis-
clearly intended to cast aspersions at the
conduct or offences by an advocate, or any person
Court and to taint its credibility as a core
entitled to act as such, committed during, or in
institution of the constitutional order.
the course of, or relating to, proceedings before the
Chief Justice or any judge.” 2. Counsel for the respondents was more
than discourteous towards the Court;
16
he was evincing willful disrespect for duties, were under obligation to observe
the authority of the Court, conducting rules of professionalism, and in that
himself in a manner certainly calculated behalf, they were to be guided by the
to lower the dignity of the Court. That fundamental values of integrity.
was the typical instance of a trespass
6. Counsel for the respondents bore the title
well outside the bounds of legitimate
Senior Counsel, a title in respect of which
advocacy. Counsel for the respondents,
the Advocates Act section 2 provided for.
an advocate and an officer of the Court fell
The designation as Senior Counsel was a
distinctly short, on his terms as an officer
recognition of outstanding status for the
of the Court, and conducted himself in
bearer; it symbolized the identification
a disgraceful and reprehensible manner.
of those advocates whose achievement
3. On admission to the Bar, all advocates and standing, invoked the expectation
made an affirmation, as officers of the that they were in a position to render
Court. The status of an Advocate as distinguished service as advocates and
an officer of the Court was expressly counsellors, in the cause of due and
provided for in section 55 of the Advocates meritorious administration of justice.
Act. An Advocate consequently bore
7. For most practical purposes, the Supreme
an obligation to promote the cause of
Court functioned as the ultimate
justice and the due functioning of the
appellate Court. Before the Court, as
constitutionally-established judicial
before any court bearing appellate
process ensuring that the judicial system
jurisdiction, the submissions of learned
functioned efficiently, effectively, and in
counsel, whether written or oral, had a
a respectable manner. In that context,
crucial significance. Senior Counsel in
advocates bore the ethical duty of telling
particular, who have had long experience
the truth in Court, while desisting from
in the conduct of litigation had an
any negative conduct, such as dishonesty
obligation of conducting themselves
or discourtesy. The overriding duty of
with perceptible decorum, such as
the advocate before the Court was to
manifested itself in truly respectful
promote the interests of justice, and of
temperament, as well as language, when
motions established for the delivery and
they appeared before the Court. That
sustenance of the cause of justice.
was vital for the due administration
4. Section 4 of the Law Society Act charged of justice, to which no option fell due.
the Advocate with certain obligations The Court was conscious of the fact
which included: that the vibrato attending a hearing in
a. set, maintain and continuously court could conduce to vigorous, and
improve the standards of learning, sometimes forceful argumentation by
professional competence and counsel, on no single occasion, was
professional conduct for the such to depart from the deportment of
provision of legal services in Kenya; courtesy towards the Court, and towards
b. determine, maintain and enhance the contending parties and their counsel.
standards of professional practice 8. Willful insult directed at a Judge during
and ethical conduct and learning for trial was prohibited in all civilised legal
the legal profession in Kenya; and process. Not only did such insult degrade
c. facilitate the realization of a the constitutional process of dispute-
transformed legal profession that resolution, but it disrupted and distorted
was cohesive, accountable, efficient the orderly procedure which alone,
and independent. would lead to the requisite adjudication
So clear was the position of the statute of claims resting with the Court. In
law regarding the integrity of the the instant matter, Senior Counsel for
advocate, as a vital player in the cause of the respondent had set out to question
justice, as that manifested itself within the Court’s jurisdiction. While it was
the Court system. allowable that the argumentation could
properly have been made with all vigour,
5. Advocates, while discharging their
it would ill-become legitimate cause to
17
be attended with offensive melodrama, had the liberty and empowerment to

sustained with denigrating depictions mete out penalty for such conduct in
such as: “exercising illegitimate political a proper case. The object was, first, to
power.” vindicate the Court’s authority; secondly,
to uphold honourable conduct among
9. The Court bore responsibility for
advocates in their standing as officers
exercising disciplinary procedure against
of the Court; and thirdly, to safeguard
Advocates who, in its full view, displayed
its processes for assuring compliance
conduct unbecoming of an Advocate.
so as to sustain the rule of law and the
That was provided for under section
administration of justice.
56 of the Advocates Act and there was
no novelty in judicial interpretation in 12. In the instant matter, it was made
relation to the foregoing provision. plain that counsel would not engage in
such course of conduct as was depicted
10. The Court took note that the functioning
in the Ruling, and any default in that
of the reparatory aspect of the Contempt
regard, in the future, would occasion
of Court Act under section 24A, at
contempt-of-court proceedings, with
the moment, and with regard to the
the inevitable consequences, and if not,
operations of the High Court and the
then appropriate sanctions for contempt
Court of Appeal, admitted of uncertainty
in the face of the Court.
quite apart from the fact that It was not
applying them to the instant matter All the offending paragraphs of the written
but affirmed such not to be the case submissions of Senior Counsel for the respondents,
as regarded the Supreme Court’s as set out in paragraph [2] of the Ruling, would
competence, which was founded upon not remain as part of the record of the Supreme
the Supreme Court Act, section 28 (1), Court, and would forthwith be expunged and
(3), (4) and (5). wholly obliterated from the record of the Supreme
Court.
11. There was no doubt that an act in
contempt of the Court constituted an
affront to judicial authority; the Court
“Africans must change their mind and actions. The keys to

building your continent depends on your will-power, per-
sistent effort and action towards self-liberation.” Lailah
Gifty Akita
18
Court of Appeal
The interpretation of “upon payment” and “paid” in context as used in
section 35(3) and section 2 of the Income Tax Act.
Kenya Revenue Authority v Republic (Ex parte Fintel Ltd)
Civil Appeal No 311 of 2013
Court of Appeal at Nairobi
W Ouko, Asike- Makhandia, S Gatembu Kairu, JJA
February 5, 2019
Reported by Beryl A Ikamari
Taxation Law-income tax-withholding tax- After conducting an audit of the respondent’s

deduction of withholding tax-interest payable for books, for the year ending December 31,
purposes of delayed payment for building, civil 2001, the appellant demanded immediate
and engineering works, recorded as an expense payment of withholding tax on the interest
in a profit and loss account, without actually assessed at Kshs. 4,787,257/=.
being paid-whether the payment of withholding
The respondent filed an objection to the
tax could be demanded in relation to the interest-
assessment which was considered and
Income Tax Act (Cap 470), section 35(3).
rejected by the Commissioner of Income
Statutes-interpretation of statutory provisions- Tax. The respondent then went to court
interpretation of sections 35(3) & 2 of the Income contending that that the accrual of the
Tax Act-meaning of the “upon payment” and interest expense in its books of account did
“paid” as used in section 35(3) and section 2 of not amount to payment of the same to the
the Income Tax Act-whether a payment could be contractor and the appellant’s decision to
deemed to have been made even where no money demand withholding tax was ultra vires. The
or valuable thing had changed hands-Income Tax respondent sought orders of certiorari to
Act (Cap 470), sections 2 & 35(3). quash the decision.
Statutes-interpretation of a taxation enactment- The appellant stated that the recognition of
principles applicable to interpreting a taxation the interest as an expense had the effect of
legislation-the proper approach in the application reducing the amount of profit chargeable
of the literal or ordinary meaning, reading of the as corporation tax and that when it was
enactment as a whole and purposive interpretation recognized as a liability, the respondent
of a taxation statute. acknowledged that the interest was credited
to the account of the payee. It was therefore
Judicial Review-institution of judicial review
within the definition of the term “paid” in
proceedings-availability and exhaustion of
section 2 of the Income Tax Act and was
alternative remedies-claim that a tax payer who
subject to withholding tax under section
was disputing a tax assessment failed to exhaust
35(1)(e) of the Income Tax Act.
the remedy of pursuing the grievance at the Local
Committee provided for under section 86 of the The High Court found that the demand
Income Tax Act-effect of failure to exhaust an for withholding tax was ultra vires as under
alternative remedy in judicial review proceedings- sections 35(1) and 35(3) of the Income Tax
Income Tax Act (Cap 470), section 86. Act, tax would be withheld upon payment.
It stated that when interest was claimed as
Brief facts an expense in audited accounts, that interest
The respondent entered into an agreement was not paid within the meaning of sections
with a contractor. One of the terms of the 2 and 35 of the Income Tax Act.
agreement was that the respondent would The appellant lodged an appeal at the Court
pay the contractor interest on any contract of Appeal. It stated that the High Court
fees that were outstanding after the due date. misinterpreted the words ‘paid’, ‘payment’
The respondent was unable to pay all contract and ‘credited’ in the Income Tax Act,
fees on the due dates and the interest was misapplied the basic principles of accounting
recorded as a liability in its books of account.
19
and taxation and failed to find that the with or deemed to have been paid in
respondent was guilty for failure to disclose the interest or on behalf of a person
the existence of an alternative remedy. and “pay”, “payment” and “payable” had
corresponding meanings.
Issues
4. No issue would arise where actual
i. How should the words “upon payment had been made in respect of
payment” and “paid” as used in section building, civil or engineering works.
35(3) and section 2 of the Income Tax However, in a situation where an actual
Act be interpreted? payment had not been made, it was
ii. What was the proper approach in unclear whether the respondent should
interpreting an enactment that was insist on the remission of withholding
about taxation? tax.
iii. Whether under the Income Tax Act
it was possible for a payment to be 5. In its profit and loss account, the
deemed to have been made even respondent recognized and included
where no money or valuable thing the interest payable and credited the
had changed hands. amount in favour of the contractor. The
iv. Under section 35(3) of the Income application of the strict definition of the
Tax Act, when was withholding tax word “paid” would of necessity include
due for deduction and remission to any amount credited in the interest or on
the relevant authority? behalf of a person.
v. In judicial review proceedings, what 6. Where the provisions of an enactment
was the effect of an applicant having were penal in nature, they had to be
had an alternative dispute resolution construed strictly and care had to be
mechanism which had not been taken to ensure that a person was not
exhausted? brought within the provision where
the express language of the enactment
Held
did not bring that person within that
1. Under rule 29(1) (a) of the Court of provision.
Appeal Rules 2010, an appeal from a
7. In construing tax statutes, the ordinary
high court trial would take the form of
meaning of the words used would be
a re-trial at the Court of Appeal, except
applied. Nothing was to be read in or
that the Appellate Court would not have
implied. The Court was under a duty
an opportunity of seeing and hearing
to adopt an approach that produced
the witnesses. The Court of Appeal was
neither injustice nor absurdity. In
required to reconsider the evidence on
other words the Court would adopt an
record, evaluate it itself and draw its
approach that promoted the purpose or
own independent conclusions.
object underlying the particular statute
2. Withholding tax referred to a situation albeit that such purpose or object was
where a tax payer of certain incomes was not expressly set out therein. A statute
responsible for deducting tax at source ought to be looked at in the context of its
from payments made and remitting enactment and as a whole as opposed to
the deducted tax to the revenue body. picking and choosing words in isolation.
The Black’s Law Dictionary defined
8. The Income Tax Act gave the word
withholding tax as a portion of income
“paid” a technical as opposed to an
that would be subtracted from salary,
ordinary definition. Tax law was
wages, dividends or other income before
dynamic, complicated and highly
the earner received payment.
technical. Therefore, it could not be
3. The word “upon payment” as used in the case that the meaning of “upon
section 35(3) of the Income Tax Act payment” was that money or some
had the same meaning as paid. Under valuable thing was delivered; that was a
section 2 of the Income Tax Act, the narrow construction. In the context of
definition given to the word “paid” the Income Tax Act, payment would be
included distributed, credited, dealt deemed to have been made even where
20
no money had been passed over. laws relating to revenue. Further, section
120 of the Income Tax Act permitted the
9. Section 35(5) required that where
appellant to inquire into the accounts
withholding tax was payable, the tax payer
of a company, assess tax and demand
had to “deduct” and remit the amount
payment. Therefore the grant of orders
so deducted to the Commissioner. The
of certiorari to quash the appellant’s
sense in which the word “deduct” was
decision to demand for payment of
used, as an accounting term referred to
withholding tax was inappropriate.
the act or process of subtraction of an
item or expenditure from gross income 12. After the Commissioner of Income Tax
to reduce the amount of income subject rejected the respondent’s objection, the
to income tax. That need not be done respondent filed a notice of appeal to
physically or practically but as a book the Local Committee under section 86
entry. of the Income Tax Act but decided not
to pursue the option of going to the
10. The income tax regime was based on the
Local Committee further and instead it
accrual system. That was clear from inter
filed judicial review proceedings. There
alia, sections 3 and 10 of the Income Tax
was no justification for the respondent
Act.
to move the High Court after invoking
11. The appellant was established under the jurisdiction of the Local Committee
the Kenya Revenue Authority Act but it was excusable as it was done in
with functions which included good faith and the appellant suffered no
revenue assessment and collection, prejudice.
administration and enforcement of the
Appeal allowed.
Accounting officers of public entities are responsible for ensuring that

procurement processes comply with the law even if the accounting officers
do not sit in the tender committees.
Njuguna S. Ndung’u v Ethics & Anti-Corruption Commission (EACC) & 3 others [2018]
eKLR
Civil Appeal No. 333 of 2014
Court of Appeal at Nairobi
E M Githinji, H Okwengu & J. Mohammed, JJA
December 20, 2018
Reported by Kakai Toili
Procurement Law-public procurement- entity-whether an accounting officer of a public

termination of tenders-duty to communicate the entity had a statutory duty to appeal decisions
termination of tenders-failure to communicate of the Public Procurement and Administrative
the termination of tenders-where a public entity Review Board which were adverse to the public
terminated a tender-whether an accounting officer entity
in a public entity was under a duty to communicate
Constitutional Law- office of the Director of
termination of tenders to the lowest bidder and
Public Prosecutions -powers of the Director
the Public Procurement and Administrative
of Public Prosecutions-institution of criminal
Review Board-whether accounting officers of
proceedings-discretion to institute criminal
public entities were responsible for ensuring
proceedings-what were the factors to consider in
that procurement processes complied with the
determining the proper exercise of the Director of
law-what was the purpose of the procurement
Public Prosecutions in exercising the discretion in
procedures contained in the Public Procurement
instituting prosecutions-Constitution of Kenya,
and Disposal Act 2005(repealed)
2010, article 157
Appeals-appeals from the Public Procurement
Brief Facts
Administrative Review Board- duty to appeal-
where the Public Procurement Administrative The appellant was the Governor and the
Review Board made an adverse decision to a public Chief Executive of Central Bank of Kenya
21
(the bank). Following an advertisement determining the proper exercise of

calling for bids for a tender for the supply, the Director of Public Prosecutions
installation and commissioning of the in exercising the discretion in
Integrated Security Management Systems instituting prosecutions?
(ISMS), six companies offered their bids for v. What was the purpose of the
the tender. A dispute arose concerning the procurement procedures contained
award of the tender, after the bank’s tender in the Public Procurement and
committee (tender committee) declined Disposal Act 2005(repealed)?
to award the tender to lowest bidder. The Relevant Provisions of the Law
lowest bidder filed an application in the
Public Procurement and Administrative Constitution of Kenya, 2010
Review Board (Review Board) against the Article 157
decision of the tender committee not to
(11) In exercising the powers conferred by this
award it the tender. The Review Board
Article, the Director of Prosecutions shall have
ordered that the tender be awarded to it.
regard to public interest, the interests of the
Notwithstanding internal and external legal
administration of justice and the need to prevent
advice given to the appellant questioning the
and avoid abuse of legal process.
Review Board’s jurisdiction and advise to the
appellant to appeal against the said decision, National Prosecution Policy
the appellant directed the tender committee Paragraph 4 (B) (1)
to comply with the order of the Review
Board. The decision to prosecute as a concept envisages
two basic components namely; that the evidence
The 1st respondent (EACC), initiated available is admissible and sufficient and that
investigations into the procurement process public interest requires a prosecution to be
and subsequently the 2nd respondent (DPP) conducted…
consented to the prosecution of the appellant
on charges of corruption in regard to the Paragraph 4 (B) (2)
procurement process. The appellant filed The Evidential Test –
a petition in the High Court in an attempt
to stop the prosecution proceedings against Public prosecutors in applying the evidential
him seeking orders that the allegations made test should objectively assess the totality of the
on the material tender, did not disclose evidence both for and against the suspect and
any criminal offence among other orders. satisfy themselves that it establishes a realistic
The High Court dismissed the appellant’s prospect of conviction. In other words, public
petition. Aggrieved by the dismissal of his prosecutors should ask themselves; would an
petition, the appellant filed the instant appeal. impartial tribunal convict on the basis of the
evidence available?”
Issues
Public Procurement and Disposal Act,
i. Whether accounting officers of
2005(repealed)
public entities were responsible for
ensuring that procurement processes Section 2
complied with the law. (a) to maximize economy and efficiency;
ii. Whether an accounting officer in (b) to promote competition and ensure that
a public entity was under a duty to competitors are treated fairly;
communicate termination of tenders (c) to promote the integrity and fairness of
to the lowest bidder and the Public those procedures;
Procurement and Administrative (d) to increase transparency and accountability
Review Board. in those procedures;
iii. Whether an accounting officer of a (e) to increase public confidence in those
public entity had a statutory duty procedures; and
to appeal decisions of the Public (f) to facilitate the promotion of local industry
Procurement and Administrative and economic development.
Review Board which were adverse to Section 26
the public entity.
(1) For the purpose of ensuring that its
iv. What were the factors to consider in
decisions are made in a systematic and
22
structured way, a public entity shall to make decisions on behalf of the

establish procedures to provide for the procuring entity and had a legal duty to
making of decisions, on behalf of the ensure that the provisions of the Act were
public entity, relating to procurement. complied with. In the circumstances, it
(4) A public entity shall establish a tender would prima facie be unreasonable of the
committee, procurement unit and such EACC to attribute the failure to inform
other bodies as are required under the the Review Board of the termination
regulations for the purpose of making solely on the appellant.
such decisions on behalf of the public
3. The Review Board, a quasi-judicial
entity as are specified in this Act and the
body, in its decision of January 4, 2013
regulations.
in Review No. 65 of 2012 made a
(7) A procurement unit established under
finding that the minutes of the tender
subsection (4) shall be staffed with
committee purporting to show that it
procurement professionals whose
held a meeting on September 26, 2012
qualifications have been recognised by the
which terminated the tender had been
Authority.
manufactured in an attempt to oust the
Section 27 jurisdiction of the Review Board. It was
(3) Each employee of a public entity and therefore speculative to contend that had
each member of a board or committee of the the minutes been availed to the Review
public entity shall ensure, within the areas of Board in Review No. 51 of 2012, it could
responsibility of the employee or member, that have reached a different decision on the
this Act, the regulations and any directions of the authenticity of the minutes.
Authority are complied with. 4. The decision not to appeal was a
Held discretionary administrative decision
partly based on policy considerations
1. The DPP in exercise of State powers by the chief executive officer of the bank
of prosecution under article 157 (6) of who was subject to the superintendence
the Constitution could institute and of the board of directors. It was not
undertake criminal proceedings against contended that the board of directors
any person. By article 157 (10), the DPP had a different view. The reasons that the
in exercise of his powers did not require appellant gave for not appealing were in
the consent of any person and should the best interest of the bank and rational.
not be under the direction or control There was no statutory or legal duty for
of any person or authority. In addition the appellant to appeal.
to the provisions of the Constitution,
the principles which guide the DPP in 5. It was prima facie evident that the benefit
exercising his powers were stipulated that the lowest bidder enjoyed was
in section 4 of the office of the Director conferred by the public procurement
of Public Prosecutions (ODPP Act) and process which the Review Board
in the National Prosecution Policy affirmed to have been carried out in
formulated by DPP under powers accordance with the Act. The award
conferred upon him by section 5 (1) (c) of the tender to the lowest bidder was
of ODPP Act. validated by two decisions of the Review
Board. The High Court further gave the
2. The public procurement process procurement process a stamp of legality
was an elaborate statutory process when it issued orders of mandamus. The
assigning several bodies independent 1st respondent filed an appeal against the
and distinct functions. The bank had grant of orders of mandamus by the High
a tender committee, legal department Court and the Court of Appeal dismissed
and a procuring unit all established that appeal.
under the Public Procurement and
Disposal Act, 2005(repealed)(the Act) 6. The standard of review of the discretion
which were directly responsible for the of DPP to prosecute or not to prosecute
communication of the termination of the was high and courts would interfere
tender. Those institutions were required with the exercise of discretion sparingly.
23
The charges against the appellant were with the Constitution. The role of
largely dependent on documentary the High Court as the guardian of the
evidence and most of the facts were not Constitution was not to hinder the
in controversy. The High Court erred in DPP from exercising his constitutional
law by failing to scrutinize the charges, powers, but to ensure that the DPP
the relevant documents including the exercised his powers in accordance with
decisions of evaluation committee, the Constitution. That meant that the
tender committee, review board and the High Court had to be satisfied that the
High Court proceedings and failing to decision taken by the DPP to prosecute
reach a conclusive and objective decision the appellant was to advance the key
on whether or not the charges had any values and principles of governance
legal or factual foundation and also a espoused in the Constitution, and did
realistic prospect of conviction. not violate the fundamental rights and
freedoms enshrined in the Bill of Rights.
7. The charges had no legal or factual
foundation and thus there was no 3. The complaint that led to the
realistic prospect of conviction. The decision of the DPP to prosecute
intended prosecution was oppressive and the appellant was anchored on the
violated the appellant’s constitutional bank’s ISMS procurement process.
rights, particularly the right to a fair Primarily, the process was one leading to
administrative decision that was lawful, contractual rights that would ordinarily
reasonable and procedurally fair. The be enforceable through a civil suit.
3rd and 4th respondents who did not However, as the procuring bank was
appear at the hearing had no role in the a public entity within the meaning of
prosecution, they were wrongly joined section 3 of the Act, the probity of the
in the petition. procurement process was a matter of
public interest, and the Constitution
Per H Okwengu, JA (dissenting)
required by dint of article 227 that the
1. The discretion of the DPP to initiate contract be done in a system that was
prosecutions had to be exercised in fair, equitable, transparent, competitive
accordance with article 157(11) of the and cost effective.
Constitution taking into account the
4. Although the Act was enacted before the
principles and values of the Constitution.
Constitution, its purpose as stated under
In determining the petition before it,
section 2 of the Act was in consonance
the High Court was obliged to consider
with the Constitution. The purpose
whether in exercising his discretion
of the procedures provided under the
to initiate prosecutions against the
Act were intended to achieve the same
appellant, the DPP properly exercised
ideals that were posited by article 227
his discretion. In doing so, the High
of the Constitution, which was a system
Court had to consider the circumstances
of procurement that was fair, equitable,
presented before it and determine
transparent, competitive and cost
whether the DPP was properly guided by
effective and therefore it was imperative
the Constitution or abused his discretion
that those procedures be followed.
by being motivated by factors other than
the vindication of justice; or by taking 5. The appellant was the chief executive
into account extraneous factors. Critical of the bank, under section 27 of the
to that consideration, was the issue Act, although the appellant was not a
whether the DPP acted in violation of member of the tender committee, as the
the appellant’s fundamental rights and chief executive of the bank he was the
freedoms. accounting officer within the meaning of
section 3(1)(a) of the Act, and therefore
2. The discretion of the DPP to initiate
responsible for ensuring that the
prosecutions was a constitutional
provisions of the Act and all regulations
power conferred through article 157 of
relating to the procurement process were
the Constitution. To interfere with the
complied with in the tender process for
exercise of that power was to interfere
the ISMS for the bank. The appellant
24
could not avoid responsibility by shifting who had to take responsibility for the
the blame to the tender committee or the bank’s actions including actions, relating
tender evaluation committee. to the procurement process for the
bank. In addition, the appellant was fully
6. The procurement process for the ISMS
involved in the procurement process as
raised questions of public interest and
he was informed and consulted at all
it was not appropriate to delve into
stages, including the plea for the bank to
those questions. The issue of whether
appeal the decision of the Review Board.
in the circumstances obtaining the
Besides, the appellant was the one who
appellant as the chief executive of the
eventually gave his officers the go ahead
bank, properly exercised his authority
to award the contract to the lowest
in ensuring that the procedures and
bidder as directed by the Review Board.
the procurement process for the ISMS
for the bank were followed, or whether 10. In moving to court to stop his prosecution
the appellant exercised his authority in even before the charges were brought,
a manner that irregularly conferred a the appellant jumped the gun. The
benefit on the lowest bidder was one that prosecution had barely started; there
EACC had powers to address. That was was nothing to stop EACC and the DPP
the subject of the criminal charges that from carrying out further investigations
were proposed against the appellant. and prosecuting any other officer of the
Whether there was substance in such bank that could be culpable in breaching
criminal charges, and whether the same the law in the procurement process of
could be proved was not a matter for the ISMS for the bank. The fact that the
consideration by the High Court, but a appellant was the first person targeted
matter to be addressed in the criminal did not reveal any discrimination given
trial. There was a sufficient legal and his position in the bank. There was no
factual basis for the investigations. discrimination nor was the appellant’s
right to freedom contravened or
7. The procurement of the ISMS for the
threatened with contravention nor
bank was a matter of public interest given
had the appellant demonstrated any
the value of the contract and the fact that
violation or threatened violation of any
it involved a public entity. While the
constitutional rights by the actions taken
complaints could have originated from
by the EACC and the DPP.
disgruntled bidders, the investigations
undertaken by EACC and the decision Appeal allowed
by the DPP to prosecute the appellant i. Appeal allowed with costs both in the
were undertaken pursuant to powers appeal and in the High court against the
underpinned by the Constitution, and 1st and 2nd respondents, jointly and severally.
not motivated by any malice. ii. Judgment of the High Court dismissing
8. The Act imposed upon the appellant the petition with costs set aside and
a heavy responsibility in ensuring the substituted with a judgment allowing
propriety of the procurement process. In the petition as against the 1st and 2nd
light of the controversy that surrounded respondents. The petition was dismissed
the ISMS tender process, it was only against 3rd and 4th respondents.
proper that the constitutional values iii. Declaratory orders sought in paragraph
of transparency and accountability be 19 of the petition as summarised in
achieved through a public trial process paragraph 1 of the judgment granted
that would engender public confidence against the 1st and 2nd respondents.
iv. A judicial review order of prohibition
in the administration of justice by
granted prohibiting the 1st and 2nd
addressing any issues regarding criminal
respondents from charging and
culpability.
prosecuting the appellant on the charges
9. As the chief executive of the bank, the framed.
appellant was in a special position. He was v. The appeal against the 3rd and 4th
not in an equal position with other officers respondents dismissed with no order as to
of the bank as he was the whipping boy costs.
25
High Court
A member of the Judicial Service Commission elected or appointed to
serve a second term was exempt from retaking the oath of office
Law Society of Kenya v Attorney General & 3 others
Petition 307 of 2018
High Court at Nairobi
E C Mwita, J
January 18, 2019
Reported by Chelimo Eunice
Statutes- interpretation of statutes-interpretation (consolidated with Petition No 119 of 2018)–

of section 15(2) (b) of the Judicial Service Act - Civil Procedure Act, section 7
whether the requirement for the President to
appoint nominees as members of the Judicial Brief facts:
Service Commission within three days of receipt The petitioner averred that the 1st interested
of names was mandatory- whether the President party was elected as the representative of
was violating the law in delaying to appoint the the Court of Appeal to the Judicial Service
1st interested party -Judicial Service Act, section Commission (JSC), but there had been
15(2) (b) inordinate delay in gazetting him with a view
Statutes- interpretation of statutes-interpretation to finalizing the process of appointing him as
of section 40 of the Judicial Service Act- whether a member of the JSC, an action the petitioner
members of the Judicial Service Commission were contended, was unconstitutional. In the
required to take oath or make affirmation upon alternative, the petitioner averred that the
re-election for the second term- whether the 1st 1st interested party, who was re-elected for
interested party, having been elected to serve a the second term, was exempt from re-taking
second term, was exempt from retaking the oath of the oath of office before assuming office as
office in terms of section 40 of the Judicial Service a member of the JSC. The 1st respondent
Act before assuming office- Judicial Service Act, opposed the petition contending that it was
2011, section 40 res judicata based on the fact that the Court
had dealt with Petition No. 106 of the 2018
Constitutional Law-interpretation of
(consolidated with Petition No. 119 of 2018),
constitutional provisions-interpretation of
and in his view, that decision determined the
article 23 as read with articles 22, 165(3) (d)(ii)
issue at hand.
& 159(2) of the Constitution – a claim that the
Court could not grant the reliefs sought since the Issues:
President’s action could only be supervised by the i. Whether a member of Judicial Service
National Assembly and that the alleged violations Commission elected or appointed to
did not fall within the ambit of article 23- whether serve a second term was exempt from
violation of the Bill of Rights included the right of retaking the oath of office.
representation at the Judicial Service Commission ii. Whether it was mandatory for the
and the right to represent the electorate in the President to appoint a person as
Commission -whether in the circumstances, the a member of the Judicial Service
Court could grant the reliefs sought-Constitution Commission upon receipt of his
of Kenya 2010, articles 22, 23, 159(2) & 165(3) name, and whether his inaction
(d)(ii) violated the law.
Civil practice and procedure – res judicata – iii. Whether the matters raised in the
rationale of res judicata – elements of res judicata instant petition were res judicata
- what was the rationale for the doctrine of res for addressing the issues raised
judicata - what were the elements for the doctrine in the Petition No. 106 of 2018
of res judicata - whether the matters raised in the (consolidated with Petition No 119
instant petition were res judicata for addressing of 2018).
the issues raised in the Petition No. 106 of 2018 iv. Whether violation of the Bill of Rights
26
included the right of representation at similar issues to those in the former suit;
the Judicial Service Commission and the suit ought to be between the same
the right to represent the electorate parties and relate to the same subject
in the said Commission. matter and the issues ought to have been
conclusively determined by a court of
Relevant provisions of the law competent jurisdiction.
Judicial Service Act;
Section 15; Procedure of appointment; 3. Although Petition No. 106 of 2018
(consolidated with Petition No 119
(2) Where the nominations are to be made by
of 2018), was between same parties as
bodies specified under article 171(2)(b), (c), (d),
in the instant petition (except the 2nd
(f) and (g) of the Constitution—
respondent), it primarily raised the
(a) the respective nominating body shall submit question of interpretation of various
the name of its nominee to the President; and articles of the Constitution, including
(b) the President shall, within three days of articles 171(2)(c) and 250. The question
receipt of the names, appoint the nominees as of the delay or omission in appointing
members of the Commission. the 1st interested party which was the
central issue in the instant petition and
Section 40; whether the President’s inaction violated
(1) The Chairperson and members of the the law were not issues presented for
Commission shall, on first appointment, determination in those former petitions.
take the oath or make the affirmation in the Thus, the instant petition was not res
form prescribed in the Third Schedule to the judicata as contemplated by section 7 of
Constitution. the Civil Procedure Act.
(2) The Chief Registrar and such other judicial 4. In electing the 1st interested party as
officers and staff of the Commission as the their representative in JSC, the Judges
Commission may require so to do, shall, on of the Court of Appeal were exercising
first appointment, take the oath or make the their constitutional right in accordance
affirmation in the prescribed form. with article 171(2) (c) of the Constitution.
That article gave them the right of
Civil Procedure Act; representation in the JSC and their
Section 7; representative was identified through
that election.
No court shall try any suit or issue in which
the matter directly and substantially in issue 5. The National Assembly, as the
has been directly and substantially in issue representative of the people, enacted
in a former suit between the same parties, the Judicial Service Act so that under
or between parties under whom they or any section 15(2) (b), names of those elected
of them claim, litigating under the same title, and nominated as required by the
in a court competent to try such subsequent Constitution were to be sent to the
suit or the suit in which such issue has been President who would then formally
subsequently raised, and has been heard and appoint them within 3 days of receipt
finally decided by such court. of the names. The President received
the 1st interested party’s name for
Held: appointment but forwarded it to the
1. Section 7 of the Civil Procedure Act National Assembly for approval on
barred subsequent proceedings that the basis that the 1st interested party
were similar to those in former suits, required such approval under article
between same parties or substantially 250(2) of the Constitution. That action
same parties and over similar or nearly was the subject of the two Petitions
similar issues and which had been heard Nos. 106 of 2018 and 119 of 2018
and determined by a court of competent which however concluded that there
jurisdiction to hear such matters. was no constitutional requirement for
such approval and further, that section
2. For a suit to be res judicata, the subsequent 15(2) of the Judicial Service Act was not
suit ought to raise similar or substantially unconstitutional. What remained was
27
for the President to formally appoint the constitutional test of justification as

1st interested party which he did not. an incidence of the rule of law and a
founding value in the Constitution.
6. The President was a state officer and,
as head of state and government, he 11. The President had not appointed the 1st
exercised delegated authority from interested party as was required by the
the people and he was bound to act law. He had not attempted to justify
in accordance with the Constitution his inaction which was in violation of
which was the supreme law. Article section 15(2) (b) of the Judicial Service
3(1) obligated every person, including Act and did not, in any way, advance
the President, to respect, uphold and constitutionalism, the rule of law or
defend the Constitution. Kenya was a inspire peoples’ confidence in the
democratic state founded on the essential discharge of his duties as demanded by
values in article 10 of the Constitution, the law. The inaction further denied the
including the rule of law which required JSC an important member, thus violated
that the country be governed through the right of the Judges of the Court of
observance of the laws. Appeal to be represented in JSC, which
undermined the independence and
7. Article 131(2) of the Constitution
integrity of JSC.
required the President to respect, uphold
and safeguard the Constitution and 12. The President’s act of commission or
ensure the protection of human rights omission, if allowed, had the potential
and fundamental freedoms and the of not only interfering with the
rule of law. Those were constitutional independence of the JSC, but also that
commands that bound any person acting of the Judiciary as guaranteed by the
as President. Constitution.
8. The 1st interested party was elected in 13. In exercising its judicial authority,
a manner specified by the Constitution the Court in Petition No. 106 of 2018
as a member of an independent (consolidated with Petition No 119 of
constitutional Commission, established 2018) determined the issue surrounding
under the Constitution. The Judicial the 1st interested party’s election and
Service Act, a legislation enacted by any potential approval by the National
the National Assembly, required the Assembly, as well as the constitutionality
President to appoint the 1st interested of section 15(2) of the Judicial Service
party to take his place as a representative Act. That determination was final unless
of the Court of Appeal in the JSC within set aside on appeal. In that regard, there
three days of receipt of his name. He remained no extra judicial discretion on
had not done so ten months since his re- the part of the President to exercise in so
election. far as the 1st interested party’s election
to JSC was concerned. He was required
9. The President was a servant of the
by law to appoint the 1st interested party
Constitution and the law who had not
and that requirement was mandatory.
only the obligation to uphold, respect
Section 15(2) (b) of the Judicial Service
and defend the Constitution, but also
Act was mandatory.
the duty to ensure protection of human
rights, fundamental freedoms and the 14. The 1st interested party’s election
rule of law. Actions by the President, any conferred on him a right and a provision
other state officer or public officer had to would be construed to be mandatory
be legally justifiable as the essence of the if failure to adhere to a requirement
rule of law and democratic governance contained in it would take away a vested
demanded by the Constitution. right of a party and, in effect, scuttle the
administration of justice. In that regard,
10. The Constitution required justification
the President’s delay in appointing the
of every governmental or public action,
1st interested party took away his vested
taken or not taken. Actions of any
right to represent the Judges of the Court
state officer or public officer, including
of Appeal in JSC thus tended to scuttle
that of the President, had to meet the
28
the administration of justice. for a member elected or appointed to

serve a second term to take the oath of
15. The President had no other role to play
office. The section did not require any
once the 1st interested party was elected
other interpretation other than giving the
as a member of the JSC as required by
words their ordinary meaning as used in
the Constitution and the law and the
the Judicial Service Act in the absence of
name forwarded to him, except to put in
any ambiguity arising from the words in
place mechanisms to have him formally
that provision. A member of JSC elected
appointed as required by section 15(2(b)
or appointed to serve a second term, did
of the Judicial Service Act.
not have to take the oath of office again.
16. The President’s inaction violated the
sovereign will of the Kenyan people.
18. The Court could grant the reliefs sought
since the Constitution had assigned
Parliament legislated on behalf of the
functions to state organs, including
people and, in that regard, enacted
the Court. The Court was assigned the
section 15(2) of the Judicial Service Act
function of interpreting the Constitution
in exercise of its delegated authority. In
and the laws and settling disputes
essence it was the people of Kenya who
brought before it. Article 165(3)(d)(ii) of
enacted section 15(2) of the Act on the
the Constitution conferred on the Court
appointment of members of the JSC. By
jurisdiction to determine the question
his inaction, delay or refusal to appoint
whether anything said to be done under
the 1st interested party, the President was
the authority of the Constitution or
defying the people of Kenya on whose
of any law was inconsistent with, or
behalf section 15(2) (b) was enacted,
in contravention of, the Constitution.
which did not inspire confidence in the
The Court was also required by article
country, as a true democracy.
159(2) of the Constitution to ensure
17. The President was not also living up to that the purpose and principles of
his oath of office, to bear true allegiance the Constitution were protected and
to the Republic; to obey, preserve, promoted.
protect and defend the Constitution
and laws of the Republic. The President
19. The Court was the custodian and
protector of the Constitution and the rule
undertook to diligently serve the people
of law. In discharging that mandate, the
and do justice to all in accordance with
Court exercised jurisdiction conferred
the laws. His inaction was not, therefore,
on it by the Constitution, including to
in keeping with the law. Neither was he
determine the question of whether the
doing justice to the 1st interested party
President’s action was in conformity
and the Judges of the Court of Appeal
with the law. And where it was not
who elected him. He was not doing
satisfied, the Court ought to prescribe a
justice to the people of Kenya who were
remedy following such a determination.
to be served by the JSC, the 1st interested
party was elected to serve in. To decline to 20. Article 23(1) of the Constitution gave the
appoint the 1st interested party without Court jurisdiction to hear applications
constitutional justification, the President for redress of denial, violation or
was also not acting in accordance with infringement of, or threat to, a right
the values and principles in article 10 or fundamental freedom in the Bill of
of the Constitution. Thus, the President Rights. Article 23(3) of the Constitution
was violating the Constitution and its further gave the Court power to grant
essential values including the rule of law. an appropriate relief as circumstances
of the case demanded. The Court had
Section 40 of the Judicial Service
jurisdiction to redress any violations
Act showed that the chairperson and
occasioned by the President’s inaction.
members of the JSC were required to take
The Judiciary performed a vital function
the oath on their first appointment. The
as the interpreter of the Constitution,
same thing applied to the Chief Registrar,
the arbiter in disputes between organs
judicial officers and other staff of the JSC.
of State and was the watchdog over the
The section did not make it mandatory
Constitution and its Bill of Rights, even
29
against the State. constitutional or legal process.

21. Article 171(2) (c) of the Constitution 26. It was not the mandate of the 1st
gave the Court of Appeal the right of respondent to appoint the 1st interested
representation in the JSC. That was a party, thus, he would not be compelled to
constitutional right granted to that court do so. The most effective remedy should
and could not be taken away from them not be to direct the 1st respondent to
at whims. At any one time, the Court do that which he had failed to advice
of Appeal had to have a representative the President to do. Rather, the Court
in the JSC and the JSC would not be should grant a remedy that would
fully constituted without the Court of bring the constitutional process to a
Appeal’s representative. conclusion, do away with any further
or potential stalemate and enable an
22. The 1st interested party having been
independent constitutional commission
elected, he acquired a right to represent
function at its optimal in the discharge
his electorate in the JSC, a right flowing
its constitutional mandate.
from the Constitution and which was
constitutionally protected. Anything 27. The 1st interested party, having been
that infringed on that right, was a elected as required by the law, but the
violation or a threat to violate the right President had failed to perform his duties
of representation or to represent, which as required by law without constitutional
fell within the scheme of articles 22 and or legal justification, the Court should
23 of the Constitution and which the grant an appropriate relief that should
Court had jurisdiction to redress. deem the 1st interested party to have
been appointed to enable him take his
23. The Court had jurisdiction to grant
position in the JSC as a representative
any relief for purposes of enforcing
of Judges of the Court of Appeal. It was
the Constitution and or redressing
not the President’s act of appointment
violation of fundamental rights and
that made the 1st interested party a
freedoms. There was no injustice that the
commissioner but his election. That
Constitution was powerless to redress.
was the best way to strike at the heart of
24. It was the duty of the Court to settle the problem and discharge the Court’s
disputes and for that reason, the Court obligation to respect, uphold and defend
could come in where a state organ, state the Constitution and its essential values
officer or public officer acted in a manner including the rule of law.
that violated the law. The Court would
Petition allowed.
not stand by and watch because exercise
of administrative power called on the Orders;
state, its organs and public officers to i. A declaration was issued that the
observe the principle of legality which President’s failure to appoint the 1st
was an incidence of the rule of law and a interested party as required by section
founding value in the Constitution. 15(2)(b) of the Judicial Service Act, 2011,
25. Appropriate relief should be an effective was in violation of articles 1, 2(1), 3(1),
remedy for purposes of enforcing the 10, 47, 73, 75(1), 131(2), 132(4)(a), 171
Constitution, human rights and the rule and 172 of the Constitution and was,
of law. In determining appropriate relief, therefore, unconstitutional and invalid.
courts should carefully analyse the nature ii. A declaration was issued that the 1st
of the constitutional infringement, and interested party, a state officer elected
strike effectively at its source. Thus, to serve a second term based on his re-
the Court ought to grant a relief that election, was exempted under section
would effectively strike at the source of 40(1) of the Judicial Service Act, 2011,
the violation as a way of enforcing the from retaking the oath of office before
Constitution and strike a blow to any assuming the office of Commissioner in
future incentives for any state organ, the Judicial Service Commission.
state officer or public officer to violate, iii. A declaration was issued that the 1st
infringe and or frustrate a legitimate interested party, having been duly
30
elected Commissioner of Judicial iv. An order of mandamus was issued

Service Commission as required by compelling the 2nd respondent and
the Constitution and the law, and the the 2nd interested party to take
President having failed to appoint him immediate measures and or steps to
in violation of mandatory timelines set enable the 1st interested party take
by section 15(2) (b) of the Judicial Service office as a Commissioner of the Judicial
Act, the 1st interested party was deemed Service Commission and discharge his
to have been appointed and was at liberty constitutional mandate.
to take his position as a Commissioner v. The 1st Respondent was ordered to bear
of the Judicial Service Commission, costs of the petition.
representing judges of the Court of
Appeal.
Factors a court considers in exercising its discretion to grant an absolute

or conditional discharge
Wilson Kipchirchir Koskei v Republic
Criminal Appeal 333 of 2013
High Court at Nakuru
J M Mativo, J
January 30, 2019
Reported by Ian Kiptoo
Constitutional Law-fundamental rights limitation of court’s discretion-whether the

and freedoms-right to fair hearing-right to be mandatory sentences under the sexual offences
provided with an interpreter if accused person Act limited a court’s jurisdiction on sentencing
cannot understand language used at the trial-
Brief Facts
where an accused was not provided with an
interpreter except when giving his evidence- The appellant was convicted of the offence
whether conducting a trial, except where an of defilement contrary to section 8(1) of the
accused gave his/her defence, in a language he/ Sexual Offences Act and sentenced to serve
she did not understand without providing an life imprisonment. The appellant in his
interpreter violated an accused person’s right to grounds of appeal contended that he did not
fair hearing-Constitution of Kenya, 2010, article understand the language of the court.
50(2)(m) Issues
Criminal Law - sentencing-discharge-absolute i. Whether conducting a trial, except
and conditional discharge-courts discretion to where an accused gave his/her
exercise discharge-factors a court considers in defence, in a language he/she did
exercising its discretion-what are the factors a not understand without providing
court considers in exercising its discretion to grant an interpreter violated an accused
or decline an absolute or conditional discharge- person’s right to fair hearing.
Constitution of Kenya, 2010, article 165(5);
Criminal Procedure Code, sections 362 and 364; ii. What are the factors a court considers
Penal code, section 35(1) in exercising its discretion to grant
or decline an absolute or conditional
Criminal Law - sentencing-discharge- discharge?
absolute and conditional discharge-factors a
court considered in exercising its discretion iii. Whether the age of an accused person
on sentencing-age of the accused-where an ought to be considered before a court
accused was 80 years at the time of sentencing- exercised it discretion on sentencing.
whether the age of an accused person ought to be iv. Whether the mandatory sentences
considered before a court exercised it discretion under the sexual offences Act limited
on sentencing- Penal Code, section 35(1) a court’s jurisdiction on sentencing.
Statutes-interpretation of statutes-interpretation Relevant Provisions of the Law
of the Sexual offences Act-mandatory nature of
Penal Code
sentences imposed by the Sexual Offences Act-
31
Section 35 (1) stages of the trial to understand the case

against him or have the case explained
(1). “Where a court by or before which a person is
to him in a language that he understood.
convicted of an offence is of opinion, having regard
The sole purpose of doing so was to
to the circumstances including the nature of the
ensure that an accused at all stages of the
offence and the character of the offender, that it
trial understood the case against him and
is inexpedient to inflict punishment and that a
availed the accused person sufficient time
probation order under the Probation of Offenders
and facilities to enable him prepare his
Act (Cap. 64) is not appropriate, the court may
defence and challenge the prosecution’s
make an order discharging him absolutely, or, if
evidence at the opportune time both in
the court thinks fit, discharging him subject to the
cross-examination and in his defence.
condition that he commits no offence during such
period, not exceeding twelve months from the date 4. The constitutional dictate to a fair trial
of the order, as may be specified therein.” could not be met if the accused could not
understand the language of the Court.
Held
If that goal was not met, it meant that
1. Article 50(2) (m) of the Constitution of the Court would be misinterpreting the
Kenya, 2010 (Constitution) guaranteed letter and spirit of the supreme law of the
a fair trial to include the right to have land thereby belittling the Constitution
the assistance of an interpreter without and the very purpose for which it was
payment if the accused person could not intended. Courts had to therefore be
understand the language used at the trial. very keen in ensuring that the provision
The record showed that the proceedings was adequately given regard to so as
were conducted in English language to ensure that the rights of an accused
which was translated to Kiswahili. person were not violated.
Curiously, after the appellant was put on
5. Fair trial was the main object of criminal
his defence, while tendering his defence,
procedure, and it was the duty of the
for the first time in the proceedings a
Court to ensure that such fairness was
Tugen Interpreter was availed. Curiously,
not hampered or threatened in any
that was the first time the court
manner. Fair trial included the grant
recognized the need for an interpreter.
of fair and proper opportunities to the
2. The Court hoisted high the constitutional person concerned, and understanding
requirement for a fair trial which the nature of the case against him and
included the right of the accused to have understanding the language of the Court.
the assistance of an interpreter without That had to be ensured and observed as it
payment if the accused person could was a constitutional, as well as a human
not understand the language used at right. Under no circumstances could a
the trial. The Court had a duty to study person’s right to fair trial be jeopardized. On
the entire record and satisfy itself that that ground alone, the trial at the Lower
indeed the Trial Court did not comply Court was not conducted in a manner
with that constitutional requirement. that could be said to be consistent
The Appellate Court had to consider with the Constitution. Therefore, the
whether the misdirection, viewed either conviction could not be allowed to stand.
on its own or cumulatively together with
6. Even though the Court was a court of
any other misdirection, was so material
law, it had a conscience. The appellant
as to affect the judgment, in the sense
was aged over 85 years. At the time of
that it justified interference by the Court
the conviction, he was over 80 years
of Appeal bearing in mind that what the
or thereabout. He exhibited serious
Constitution demanded was that the
difficulties answering simple questions,
accused be given a fair trial.
was evidently disoriented and incoherent
3. The right to a fair trial was among the and was evidently confused. Above all,
fundamental rights and freedoms that he looked frail and manifested old age
could not be limited. Article 50(2) (m) related complications.
correctly interpreted meant that an
7. The jurisdiction of the High Court to
accused person should be able at all
32
review or revise orders of a Magistrate’s public. The appellant was aged over 85
Court or Tribunal was underpinned by years. He was over 80 years as at the time
the Constitution at article 165(5) which of the conviction. He could not be said
comported with section 362 as read to be a significant threat to the safety of
together with section 364 of the Criminal the public.
Procedure Code. Even though the instant
11. There were two conditions precedent to
case came to the High Court by way of
the exercise of the jurisdiction to grant
an appeal, the peculiar circumstances
a discharge, either conditionally or
made the case an appropriate case for
absolutely;
the Court to invoke its vast jurisdiction
under article 165 of the Constitution. a. the Court could consider that it was
in the best interests of the accused;
8. The supervisory powers of a High Court and
were intended to be used by the High b. the Court had to consider that a grant
Court to decide all questions as to the of discharge was not contrary to the
correctness, legality or propriety of any public interest.
finding, sentence or order, recorded
In the consideration of that aspect,
or passed by an inferior criminal court
a discharge, conditional or absolute,
and even as to the regularity of any
should not be granted routinely. Further,
proceeding of any inferior court. The
that the jurisdiction should be used
object of conferring such powers on the
sparingly.
High Court was to clothe the High Court
with a jurisdiction of general supervision 12. In consideration of the exercise of
and superintendence in order to the discretion to grant an absolute
correct grave failure or miscarriage or conditional discharge, it was quite
of justice arising from erroneous or impossible to lay down rules which
defective orders or where justice and would cover the myriad of situations
circumstances of the case so demanded. which could appear before a trial court
confronted with the task of appropriate
9. Section 35 of the Penal Code provided
sentence in any given case. However,
for absolute or conditional discharge.
some of the relevant factors which had
The obvious purpose of the provision
to be considered in every case were;
was to provide the Trial Courts with
an alternative to convicting an accused a. nature of the offence: While it was
when the consequences of such a to be borne in mind that the section
conviction would outweigh the benefit could be used in respect of any offence,
normally obtained through securing a one had to nevertheless be concerned
conviction after a finding or admission with the seriousness of the offence,
of guilt. It was clear that it was the and it would seem appropriate that
function of the Trial Court to decide the more serious the offence, the
the appropriateness of a discharge. The less frequent would be the use of a
granting of a discharge was discretionary. discharge in sentencing. It would, for
The Trial Court could by order direct a instance, be a most exceptional case
discharge if it considered it to be in the where a crime involving violence or
best interests of the accused and not sexual assault would be dealt with by
contrary to the public interest. an order of discharge;
10. An absolute discharge or a discharge b. one had to consider the prevalence of
upon conditions prescribed in section the particular offence as it could exist
35(1) could be ordered where an accused in the community from time to time;
pleaded guilty to or was found guilty of c. where the offence was relating to
an offence. The Court had to consider property, the value of the property
a discharge to be in the best interests destroyed or stolen had to be relevant;
of the accused and not contrary to the
public interest. Absolute discharges were d. where the offence involved sexual
only available where an accused was not assault, as in the instant case, the
a significant threat to the safety of the Court should consider the rights of
33
the victim and whether there were consideration by the Court. The Court
aggravating circumstances including was required to be of the opinion, having
violence; and regard to the circumstances including the
nature of the offence and the character of
e. whether the crime was committed
the offender, that it was inexpedient to
as a matter of impulse, and in the
inflict punishment and that a probation
face of unexpected opportunity, or
order was not appropriate.
whether it was calculated and the
propensity of the accused to commit 16. Life in prison could challenge anyone,
such offences. but it could be particularly hard for
people whose bodies and minds were
13. It was necessary that the Courts
being whittled away by age. Older
express the moral condemnation of the
prisoners were more likely than younger
community for deliberate infractions
ones to develop mobility impairments,
of the criminal law. The discharge
hearing and vision loss, and cognitive
should never be applied routinely to any
limitations including dementia. Older
criminal offence, in effect labelling the
prisoners were also more likely to have
enactment violable. It should be used
chronic, disabling, and terminal illnesses.
frugally, selectively and judiciously as
Prisoners who continued to age behind
Parliament obviously intended. The
bars would eventually require assisted
Courts should not compromise or
living and nursing home levels of care
circumvent the law. While rejecting a
while incarcerated.
blanket application of section 35(1) to
criminal cases, of course, there would 17. For an old and frail person, the right
be cases under the section and for other to safe conditions of confinement
infractions of the criminal law, where a meant not having to live in a cell with
discharge was appropriate, depending younger persons prone to violence and
upon the nature of the offence, the age extortion; the right to decent conditions
and antecedents of the accused and the of confinement meant receiving extra
circumstances of the case. blankets and clothing because it was
harder to stay warm; and the right to
14. Deterrence to others would be a factor
rehabilitation meant receiving age-
to be assessed when considering the
appropriate educational, recreational,
contrary to public interest limb. The
and vocational opportunities.
more serious the offence, the less likely
it would appear that a discharge was 18. Some elderly inmates were being
not contrary to the public interest. To unnecessarily held in prison despite the
attempt more specific delineation would fact that their continued incarceration
be unwise, and might serve to fetter did little to serve the principal
what was conceived to be a wide, albeit purposes of punishment: retribution,
judicial, discretion vested in the Court. incapacitation, deterrence, and
The Court had to consider all of the rehabilitation. For prisoners who no
circumstances of the accused, and the longer posed a public safety risk because
nature and circumstances of the offence, of age and infirmity, and who had already
against the background of proper law served some portion of their prison
enforcement in the community, and the sentence, continued incarceration could
general criteria mentioned. constitute a violation of their right to
a just and proportionate punishment.
15. Public interest in respect of the offence
Alternative forms of punishment should
in question had to be fully and carefully
be imposed—for example, conditional
canvassed and given due weight before a
release to home confinement under
disposition could be made. Much of the
parole supervision—that would serve
public interest in the area was exemplified
the legitimate goals of punishment.
by the well-known considerations which
a court took into account in determining 19. Time had come for Kenya’s criminal
sentence. Section 35 of the Penal Code justice system to review sentencing,
provided conditions to be taken into penal laws and policies and guidelines
34
to determine which could be adjusted accordance with the law. If an arrested

to reduce the elderly prisoner person was found guilty, it was a judicial
population without risking public safety. function to set out the punishment of the
Correctional facilities should review individual on a case-by-case basis guided
the conditions of confinement for their by the statutory parameters set out by
elderly prisoners, including the services the legislature. Judicial discretion was
and programs available to them, and necessary for the proper discharge of
make changes as needed to ensure their court’s constitutional obligations. Time
human rights are respected. had come for Parliament to reconsider
the provisions of the Sexual Offences
20. The case presented exceptional
Act particularly on the question of taking
circumstances to compel a court to order
away or limiting judicial discretion on
an unconditional and absolute discharge
sentencing.
as contemplated under section 35 of the
Penal Code. The appellant was 80 years 23. What the law required and allowed was
as at the time he tendered his defence a function not just of legal rules, but
in the Lower Court. He was jailed on also of considerations without which
November 27, 2013. He was aged over decisions could not soundly be made.
85 years. Keeping a person aged over 85 Those considerations were relevant to a
years in prison under the harsh prison judicial decision, so that a court had to
conditions when he was not a danger take them into account and weigh them
even to himself was something that in the balance in a judicially appropriate
should prick the conscience of humanity way. Neglecting relevant considerations
and Kenya’s entire criminal justice would be a judicial error and could cause
system. It was tantamount to sentencing injustice. Differently stated, a law that
such a person to a slow death. Differently took away judicial discretion was an open
stated, the Trial Court properly directing invitation to injustice and could open the
its mind to the provisions of section 35 law to violation of fundamental rights. It
of the Penal Code would have been was assumed that the established rules
perfectly entitled to invoke the said of law sometimes ran out and that when
section on account of the appellant’s they did judges had discretion and had
age who was over 80 at the time of to exercise choice between legally open
sentencing. alternative decisions.
21. Much had been said about the mandatory 24. The proceedings in the lower Court were
sentences under the Sexual Offences not conducted in a manner that could
Act. However, the drafters of section be read to be consistent with the fair
35 of the Penal Code contemplated trial requirements under article 50(2)
circumstances such as presented in (m) of the Constitution. The appellant
the instant case. To reason otherwise could not be said to have been accorded
would amount to a blind and mechanical a fair trial when it was evident that the
application of the law. Legislators simply entire proceedings except his defence
could not write laws to address all were conducted in a language he did
situations which found their way into not understand. Therefore, it would be
court or that developed as a case made an affront to the letter and spirit of the
its way through the legal system. Judges Constitution to allow the conviction
were present during proceedings and and imprisonment imposed upon the
heard the evidence firsthand. From that appellant to stand.
vantage point a judge had to have some
Appeal allowed
discretion to apply the law to the facts
and procedure of the pending dispute. Conviction quashed and sentence imposed upon
the appellant in CMC Criminal Case Number
22. Crime and its punishment was a public
153 of 2012 set aside. Consequently, the appellant
policy concern in which Parliament
be released from prison unless otherwise lawfully
had a key role in defining. It was a
held. Right of appeal 14 days.
judicial function to ensure the criminal
laws were implemented fairly and in
35
Section 9(1)(e) of the Victim Protection Act, which requires accused

persons to disclose and supply the victims with the evidence they
intended to rely on, declared unconstitutional.
Joseph Nduvi Mbuvi v Republic
Criminal Revision 4 of 2019
High Court at Machakos
G V Odunga, J
February 26, 2019
Reported by Mathenge Mukundi & Beryl Ikamari
Constitutional Law-fundamental rights and went further and made orders geared
freedoms-right to a fair trial-rights of an accused towards compelling the defence witnesses
person-whether the prosecution could claim to record their statements and furnish the
entitlement to access the evidence that the accused prosecution therewith within 14 days.
intended to rely on during the defence hearing-
Constitution of Kenya 2010, article 50(2)(j). Issues:
Constitutional Law-fundamental rights and i. Whether section 9(1)(e) of the Victim
freedoms-fair hearing-rights of an accused Protection Act was unconstitutional
person-whether the accused person had a in that it required an accused person
reciprocal duty that required the disclosure and to provide the evidence he intended
supply of the evidence that he intended to rely on to rely on in advance to the victim,
during the defence hearing to the prosecution- and it therefore violated the accused’s
Constitution of Kenya 2010, article 50(2)(j). right to be presumed innocent until
proven guilty.
Jurisdiction-jurisdiction of the High Court- ii. Whether an accused person was
the revisionary jurisdiction of the High Court- obliged to disclose its statements
invocation and purpose of the revisionary and documentary evidence to the
jurisdiction of the High Court-whether the prosecution and the victim.
revisionary jurisdiction of the High Court could iii. Whether the prosecution had the
only be invoked with respect to final adjudications right to be informed in advance of the
in criminal proceedings and not those relating to evidence the accused intended to rely
interlocutory applications-Criminal Procedure on, and to have reasonable access to
Code (Cap 75), sections 362, 364 & 367. that evidence.
Constitutional Law-constitutionality of iv. Whether the revisionary jurisdiction
a statutory provision-constitutionality of of the High Court could be invoked
section 9(1)(e) of the Victim Protection Act- with respect to a decision on an
constitutionality of the right to be informed in interlocutory application while
advance about the evidence of the defence and criminal proceedings were still
prosecution and to access it as part of the rights of pending at the Lower Court.
the victim-where the Constitution did not provide
Relevant provisions of the law
for such a right-whether the statutory provision
violated the accused’s right to be presumed Constitution of Kenya, 2010
innocent until proven guilty-Constitution of Article 50(2)(j);
Kenya 2010, article 50(2)(j); Victim Protection (j) to be informed in advance of the evidence
Act, No 17 of 2014, section 9(1)(e). the prosecution intends to rely on, and to have
reasonable access to that evidence;
Brief Facts:
Victim Protection Act, No 17 of 2014
The application for revision arose from the
Senior Resident Magistrate Court ruling, in Section 9(1)(e);
which the Court placed the applicant on his (1) A victim has a right to-
defence and directed the applicant to supply ...
the prosecution with the witness statements
and any other evidence the defence intended be informed in advance of the evidence the
to rely on at the defence hearing. The Court prosecution and defence intends to rely on, and to
have reasonable access to that evidence;
36
Held: should not argue an appeal under the

guise of a revision.
1. The object of the revisionary jurisdiction
of the High Court was to enable the High 5. Article 50(2) of the Constitution which
Court, in appropriate cases, whether provided for an accused person’s right to
during the pendency of the proceedings be informed in advance of the evidence
in the Subordinate Court or at the the prosecution intended to rely on,
conclusion of the proceedings to correct and to have reasonable access to that
manifest irregularities or illegalities evidence. That right could only be
and give appropriate directions on the exercised by the accused person.
manner in which the trial, if it was still
6. The prosecution could not rely on article
ongoing, should proceed.
50(2) of the Constitution as a basis for
2. Section 362 of the Criminal Procedure seeking to be informed in advance of the
Code provided that the High Court’s evidence the accused intended to rely on
revisionary jurisdiction could be and to have access to it. That right could
exercised with respect to any criminal only be exercised against those who had
proceedings. Any criminal proceedings unlimited capacity and resources to
included interlocutory proceedings deprive individual Kenyans of their life,
and the High Court’s jurisdiction liberty and security of the person. It was
could be exercised with respect to a the state that had the capacity to deprive
final adjudication, a decision on an individuals of their rights guaranteed
interlocutory application and also under the Constitution. Therefore, the
to determine the regularity of any Court had to rigorously enforce, against
proceedings of any such subordinate the state, the fundamental rights and
court. freedoms of the individual guaranteed
by the Constitution.
3. Section 362 as read together with
section 364 of the Criminal Procedure 7. There should be no question of
Code stated that the High Court had reciprocal rights, or a level playing
power to call for and examine the record or any such theory as between the
of any criminal proceedings before any accused person and the state. No statute
subordinate court for the purpose of should give the state such privileges,
satisfying itself as to the correctness, and the Constitution, did not give the
legality of any finding, sentence or prosecution such powers. Additionally,
order recorded or passed, and as to the those rights should not be given through
regularity of any proceedings of any the inherent power of the Court.
such subordinate court. Therefore, it was
8. Whereas article 50(1) of the Constitution
clear that the High Court had revisionary
provided for fair hearing generally, that
jurisdiction to hear the application.
right could not be stretched to confer
4. The revisionary jurisdiction should upon the prosecution the right to be
not be invoked so as to micro-manage informed in advance of the evidence the
the Lower Courts in the conduct and accused intended to rely on, and to have
management of their proceedings for reasonable access to that evidence or
the simple reason that if every ruling of reciprocity of statements.
the Lower Court were to be subjected
9. Article 50(9) of the Constitution
to the revisionary jurisdiction of the
empowered the Parliament to enact
Court, floodgates would be opened and
legislation providing for the protection,
the Court would be inundated with
rights and welfare of the victims of
applications thus making it practically
offences. On the other hand, section 9(1)
impossible for the Lower Courts to
(e) of the Victim Protection Act provided
proceed with any case to its logical
that a victim had a right to be informed in
conclusion. Revisionary jurisdiction
advance of the evidence the prosecution
should only be invoked where there were
and defence intended to rely on, and to
glaring acts or omissions but should not
have reasonable access to that evidence.
be a substitute for an appeal. Parties
The rights of victims should not be
37
extended to encompass the right to be an accused would in advance inform

informed in advance of the evidence that the victim of the evidence he intended
the accused intended to rely on and to to rely on, and to give reasonable access
access it. to that evidence, the provision clearly
contravened both the spirit and the letter
10. There was a presumption of innocence
of the Constitution and to that extent it
that the Constitution bestowed upon
was null and void.
an accused person, there could be no
case that an accused person would be Application allowed. The orders issued by the
expected to disclose in advance. To the Trial Court were declared illegal and improper
extent therefore that section 9(1)(e) of and set aside.
the Victim Protection Act expected that
Publication of an individual’s photograph without his or her consent

amounts to violation of his or her right to privacy
FAF (suing on her own behalf and as a next friend of SAS and NAMS) v Norwegian Refugee
Council [2019] eKLR
Petition No.178 of 2017
W. A Okwany, J
January 9, 2019
Reported By Flora Weru and Kakai Toili
Constitutional Law-fundamental rights and videos were captured at the said graduation
freedoms-enforcement of fundamental rights- where the petitioner and her children
right to privacy-where a photo of a lady with her were in attendance. It was alleged that the
children was taken and published in a publication petitioners photographs were taken in the
without her consent-whether the publication of said ceremony and that she did not seem to
a person’s photograph and that of her children object to the taking of the said photos.
in a widely circulated publication without their
Issues
consent was a violation of their right to privacy-
what was the nature of the right to privacy- i. What was the nature of the right to
Constitution of Kenya, 2010 article 31 privacy?
ii. Whether the publication of a person’s
Constitutional Law-fundamental rights and photograph and that of her children
freedoms-enforcement of fundamental rights in a widely circulated publication
and freedoms-right to human dignity-where a without their consent was a violation
person who was not a refugee was portrayed as a of their right to privacy.
refugee-whether portraying a person as a refugee iii. Whether portraying a person as a
amounted to lowering the standard of that person refugee amounted to lowering the
in the society and thus a violation to the right standard of that person in the society
of human dignity-Constitution of Kenya, 2010 and thus a violation to the right to
article 28 human dignity.
Held
Brief Facts
1. The right to privacy consisted
The petitioner brought the petition on her
essentially in the right to live one’s
own behalf and on behalf of 2 minors stating
life with a minimum interference. It
that her right to privacy and human dignity
concerned private family and home life,
had been violated by the respondent who
physical and moral integrity, honour
without her consent published her private
and reputation, avoidance of being
photographs and photographs of the minors
placed in a false light, non-revelation
on a pamphlet (publication). It was averred
of irrelevant and embarrassing facts,
that the respondent conducted a graduation
unauthorized publication of private
ceremony for its vocational training
photographs, protection from disclosure
students at the Dadaab Youth Education
of information given or received by the
Pack (YEP) Centre and photographs and
individual confidentially. However the
38
right to privacy was not an absolute right nothing really damaging about anyone
as it was one of those rights that could, being a refugee. Refugees despite the
under article 24 of the Constitution, be difficult circumstances that they found
limited. themselves in, were entitled to the
2. The respondent published the fundamental human rights and equal
photograph of the petitioner and her protection under the law and for that
children in a pamphlet that was widely reason the claim on violation of the right
distributed. Such public action was to human dignity was not proved.
not done with the knowledge and/or 6. While it was clear that the consent
consent of the petitioner. It therefore of the petitioners was not sought or
amounted to an infringement of their obtained before their images were used
right to privacy. in the publication, the petitioner did not
3. The mere fact that the petitioner could establish that the said publication was
have appeared to be comfortable with used for purposes of the respondent’s
the taking of her photograph did not commercial gain and neither was it
connote that she consented to the said proved that the respondent was a
photograph being used in a widely business enterprise or a profit making
circulated publication. Furthermore the organization. Irrespective of the
respondent did not demonstrate that its purpose of the said publication, the
photographer was a body language expert respondent could not escape liability
so as to be in a position to determine for violation of the petitioners’ right to
which body language meant consent. privacy by publishing their images in a
Additionally, the said photographer did widely distributed publication without
not swear an affidavit to confirm the their consent. The publication was
claim that the petitioner consented to nonetheless an unacceptable exploitation
the photograph through body language of ones photograph or likeness for the
or at all. Therefore the petitioners’ respondent’s purposes or programs
right to privacy was violated by the without the petitioners’ consent and
publication of her photograph and those thus, an invasion of their right to privacy.
of her children in a widely circulated 7. The petitioners did not submit on
publication without her consent. the quantum of damages payable for
4. If indeed the petitioners case was that the violation of their right to privacy
she was a Kenyan citizen who was and neither was it established that the
wrongly portrayed by the respondent, petitioners suffered any tangible loss as a
as a refugee, then the burden of proof result of the publication. Nonetheless, in
rested on her to establish; the circumstances of the instant case, the
a. that she was a Kenyan citizen, and petitioner was entitled to some damages
b. that her image was dented following for the invasion of their constitutionally
the said publication. guaranteed right of privacy.
Nothing would have been easier than the Petition allowed
petitioner to present, before the Court, Orders
proof of Kenyan citizenship in the form
i. A declaration issued that the publication
of either national identity card or a
of the petitioner’s photograph and
Kenyan passport. The burden was not
that of the minors by the respondent
discharged and thus the claim was not
was unlawful, unconstitutional and a
proved to the required standards.
violation of their fundamental rights
5. Assuming that the petitioner had and freedoms under Article 31 of the
presented documents of proof of Constitution.
citizenship, the Court was not ii. An order of compensation in the global
convinced that being portrayed as a sum of kshs. 210,000 being general
refugee amounted to lowering the damages to be distributed at kshs 70,000/-
standard of any person in the society for each of the claimants/petitioners.
considering that refugees were not lesser iii. An order that the petitioner be paid the
beings and that there was therefore costs of the petition.
39
Criminal proceedings can be instituted against an employee of a public

office who is not a member of its tendering committee but whose
misleading advice leads to direct sourcing of a tender resulting to loss of
public funds.
Republic v Director Public Prosecutions & another Ex-parte Justus Ongera [2019] eKLR
Miscellaneous Criminal Application 20 of 2017
J N Onyiego, J
January 30, 2019.
Constitutional Law- office of the Director of software and which firm had to have had
Public Prosecutions - powers of the Director of local references. They confirmed that only
Public Prosecutions-scope of the poweres-where OSL Kenya Limited (a subsidiary of OSL
an employee of a public office who was not a SLOVENIA) was known to have supplied
member of the tendering committee of public the system in Kenya and the African region.
office gave misleading advice which lead to direct His finding together with his colleague was
sourcing of a tender-wjere the direct sourcing communicated to the Auditor General and
led to loss of public funds-whether the Director the tender committee who met and approved
of Public Prosections could institute criminal the purchase of the software through direct
proceedings against an employee of a public office sourcing which decision was also approved
who was not a member of its tendering committee by the executive committee.
but whose misleading advice led to direct sourcing
A corruption report was made to the
of a tender resulting in loss of public funds -
2nd respondent (EACC) who conducted
Constitution of Kenya, 2010, article 2, 10 & 157;
investigations and recommended that the
Ethics and Economics Crimes Act, section 35;
ex parte applicant and members of tender
National Prosectution Policy, paragraph 4(B)(2)
committee including the Auditor General
Judicial Review-orders-certiorari, mandamus be charged with various offences. The 1st
and prohibition-circumstances in which a court respondent (DPP) absolved the charges
could grant judicial review orders-where an against the Auditor General, the tender
employee of a public office who was not a member committee and the executive committee and
of the tendering committee of the public office gave recommended the prosecution of the ex parte
misleading advice which led to direct sourcing of applicant and his colleague. Aggrieved by the
a tender-where the direct sourcing led to loss of respondents’ actions the ex parte applicant
public funds-whether judicial review orders could filed the instant application.
be granted against a decision of the Director
of Public Prosecutions to institute criminal Issues
proceedings against an employee of a public office i Whether criminal proceedings could
who was not a member of its tendering committee be instituted against an employee
but whose misleading advice led to direct sourcing of a public office who was not a
of a tender resulting in loss of public funds- member of its tendering committee
Constitution of Kenya, 2010, article 22, 23 & 47; but whose misleading advice led to
Fair Administrative Actions Act; Civil Procedure direct sourcing of a tender resulting
Rules, 2010, order 53 in loss of public funds.
Brief Facts ii What were the circumstances in
which a court could exercise its
The ex-parte applicant was the director of the
powers of granting judicial review
ICT department in the office of the Auditor
orders?
General. He and the then IT audit manager
(his colleague) were tasked with the duty of iii Whether judicial review orders
conducting due diligence on prospective could be granted against a decision of
suppliers of an audit vault software. the Director of Public Prosecutions
Their instructions were to establish and to institute criminal proceedings
recommend the firms that would supply the against an employee of a public
40
office who was not a member of its reversion to the original position before
tendering committee but whose the impugned decision was made.
misleading advice led to direct
5. An order for prohibition was that which
sourcing of a tender resulting in loss
was prospective in character and was
of public funds.
intended to restrain an inferior tribunal
body or authority from assuming
Held
jurisdiction where there was none or
1. The law governing judicial review from doing what it was not authorised
proceedings was anchored under order to do. Its mandate was not a basis for
53 of the Civil Procedure Rules and reviewing errors or wrongs that had
principally based on the common law already taken place or occurred. The
principles in which courts or judicial order was only focused on the future
review proceedings were concerned and was intended to contain or stop
only with the decision making process an anticipated event like the intended
as opposed to the merits of the prosecution in the instant case.
decision. With the promulgation of the
6. The remedy of judicial review was not
Constitution and subsequent enactment
to review the merits of the decision
of the Fair Administrative Actions
but the decision making process itself
Act, the scope or process of judicial
to ensure that an individual was given
review had been elevated to a pedestal
fair treatment. However, with the
that transcended the technicalities of
promulgation of the Constitution and
common law.
enactment of the Fair Administrative
2. The Court had powers to exercise Actions Act there had been a paradigm
supervisory powers over the respondents, shift in terms of the scope of interpretation
being public statutory bodies mandated and applicability of judicial review
to exercise certain administrative orders. That was a departure from the
functions, breach of which would attract traditional common law understanding
judicial review orders from the Court. and limited application in terms of scope
That could be done either under order53 on judicial review declaratory orders.
of the Civil Procedure Rules or articles
7. Issuance of judicial review orders could
22, 23 and 47 of the Constitution as well
be classified from the viewpoint of
as the Fair Administrative Actions Act.
focusing on an illegality, irrationality
3. For the court to exercise powers of and procedural impropriety in decision
certiorari, prohibition or mandamus the making. It was a constitutional
Court had to be satisfied that the act imperative that nobody should be
or omission complained of was arrived discriminated against and where the
at illegally, unreasonably, improperly, Court was confronted with proof, such
irrationally, biased, in bad faith or decision should be quashed. Article
otherwise ultra vires hence breach of the 21 of the Constitution underscored
principles of natural justice. implementation of rights and
4. An order of certiorari was designed to fundamental freedoms and the State and
prevent abuse of power and was intended every State organ duly bound to observe
to ensure that an individual was given respect, protect, promote and fulfil the
fair treatment by the authority to which rights and fundamental freedoms in
he was subjected. Orders of certiorari the Bill of Rights. As a State organ, the
dealt with decisions already made, such DPP was subject to the authority of the
an order could only be issued where Constitution, being a product of the
the court considered that the decision Constitution itself under article 157 of
under attack was reached without or the Constitution.
in excess of jurisdiction or in breach of 8. The DPP’s functions included directing
the rules of natural justice or contrary the Inspector General of Police to
to law. Thus, an order of certiorari was investigate any allegation of criminal
not a restraining order. The order of conduct, recommending, instituting
certiorari was retrospective as it directed
41
and undertaking criminal proceedings, Act and section 23 of the Anti-

taking over or discontinuing any criminal Corruption and Economic Crimes Act
proceedings commenced before any and submitted their recommendations
court by any other person. In executing to the DPP under section 35 of Anti-
that mandate, the DPP had to have due Corruption and Economic Crimes Act
regard to public interest, promote the for further directions. In the instant
interest of justice, apply national values case EACC discharged its mandate as
and principles of good governance, constitutionally and statutorily required
promote the rule of law and only be in recommending prosecution of the
answerable to the Constitution. He was applicant.
expected to work diligently without any 12. EACC had no control over what the DPP
discrimination, abuse of power/office did. The DPP had powers to decide on
and free from any direction, control or who to charge based on the evidence at
influence from any quarters. hand. He could not be directed on who
9. Article 27 of the Constitution to charge and who not to charge. The
commanded equality and freedom from DPP could recommend or discontinue
discrimination and that every person prosecution if he found it necessary. As
was equal before the law hence entitled to whether the person charged was guilty
to equal protection. For the Court to or not, it was for the court to decide upon
interfere with decisions made by the conducting full trial.
DPP, one had to demonstrate sufficiently 13. The DPP could drop charges against
that the DPP had exceeded his mandate a suspect or an accused person or an
or acted in contravention of the law. accomplice and treat such person as
The DPP did not have blank cheques a witness against the person charged
to do what he wished regardless of the although an accomplice. It did not matter
law. He was bound by the Constitution whether the one treated as a witness was
and where there was clear and sufficient culpable like the one charged. However,
proof of such contravention of the law, the DPP had to justify the reasons for
the Court would not hesitate to set such dropping charges against some suspect
orders aside. or suspects facing similar allegations
10. Among the guiding principles outlined without appearing to discriminate the
in section 4 of Office of the Director one charged.
of Public Prosecution’s Act(ODPP Act) 14. Absolving some suspects from
and the National Prosecution Policy prosecution and recommending
formulated by the DPP pursuant to the ex parte applicant’s prosecution
section 5(1)(c) of the ODPP Act were together with another person was not
that; discriminatory. The DPP had powers
a. the decision to prosecute as a concept to decide on who to charge for which
envisaged two basic components offence. He could not work under
namely; direction not even from the Court on
who to charge save where there was
i that the evidence available was
discrimination without justification.
admissible and sufficient
In the instant case the DPP dropped
ii and that public interest required
charges on account that the executive
a prosecution to be conducted.
tender committee was misled by the
11. Recommendation of prosecution by the recommendation of the ex parte applicant
EACC or the DPP was clearly guided and his colleague. Prima facie, that could
by the law and where excesses arose, be a justification sufficient enough to
then the decisions arising therefrom absolve those that the DPP found were
had to be interfered with and set aside not culpable from the evidence at hand.
albeit sparingly. The duty to investigate
crime by the EACC was well captured 15. The Court would act with utmost and
under section 13 (2) (c) of the Ethics extreme caution and restraint not to
and Anti-Corruption Commission unnecessarily interfere with decisions
42
of the DPP or other statutory bodies the Constitution.

in a manner that would disable their
18. The finer details regarding the contract
operations hence cause an injustice to
and who met which requirements and
the public who were consumers of justice
to what extent the ex parte applicant
and interested parties in the outcome of
misled the Auditor General and the
criminal justice. In the instant case there
entire tender committee into awarding a
was no fundamental wrong committed
contract through single sourcing instead
in absolving the tender executive
of subjecting it to competitive bidding
committee members.
would be a subject of the trial court.
16. Section 74(2) of the Procurement The Court should be slow but cautious
Act only allowed single sourcing in before curtailing other independent
situations where there was only one offices from executing their statutory
person who could supply the goods, mandate unless it was overtly clear that
works or services being procured and such action would definitely deliver a
that there was no reasonable alternative miscarriage of justice.
or a substitute for the goods, work or
19. In the instant case, from the onset and
services being procured. Therefore,
initiation of the procurement process, the
the burden to prove that there were no
element of sourcing a supplier with local
other accredited suppliers or alternative
reference in terms of having supplied
source other than OSI Slovenia Kenya
and installed similar software within
lay with the ex parte applicant.
Kenya was not mentioned anywhere.
17. By making the effort in writing to That issue came up when the Auditor
Oracle Kenya on March 29, 2017, the General solicited for that confirmation
EACC was exercising diligence in on January 19, 2017 for a purpose to
confirming the true position regarding defeat the intended prosecution.
actual accredited partners of Oracle in
20. There were high prospects of a conviction
Kenya. That action was in compliance
against the ex parte applicant for giving
with the requirements stipulated in
misleading information or professional
the Fair Administrative Actions Act in
advice thus causing the Auditor General
making fair, diligent and accountable
and the tender committee to award a
administrative decisions without bias.
tender through single sourcing which
Having received the letter dated April 21,
they could not have done had true and
2017 from Oracle which confirmed that
correct information been given. The
there were other accredited partners of
prerogative orders of certiorari and
oracle which letter came later, the DPP
prohibition were not applicable.
had prima facie evidence to recommend
the prosecution which then would be Application dismissed, interim prohibitory orders
subjected to scrutiny upon trial. The DPP issued on February 14, 2017 vacated, each party
and EACC’s conduct did not contravene to bear own costs.
the Fair Administrative Actions Act or
To establish a trade mark infringement claim proof of likelihood of
deception and confusion as opposed to actual deception and confusion is
required.
Landor LLC & another v Wagude Lui T/A Landor & Associates & 2 others
Civil Case 266 of 2015
F Tuiyott, J
January 25, 2019
Reported by Beryl A Ikamari
Intellectual Property Law-trade marks-rights confusion or deception and mistaken association
of a proprietor-exclusive use-infringement of a of certain goods and services with those offered
trade mark-conditions to be met in an action for under a registered trade mark-whether proof of
trade mark infringement-use of a mark causing actual confusion or deception was required as
43
opposed to proof of a likelihood of confusion or commercial advantage from the good

deception-Trade Marks Act (Cap 506), section 7. will and reputation of the plaintiffs’ trade
marks. The plaintiffs filed a suit based on
Intellectual Property Law-trade marks-
infringement of trade marks and passing off.
infringement of trade marks-defences to an
action of trade mark infringement-prior use- The 3rd defendant explained that he formed
establishing bona fide and continuous prior use the name “Landor” by combining his
in evidence-whether there was an infringement daughter’s name with the word “or” which
where evidence of prior use showed that the meant gold in French. He said that the
defendant was aware of the existence of the trade company he formed was registered in Kenya
mark at the time he used a mark that resembled and Uganda and that the goods and services
it-Trade Marks Act (Cap 506), section 10. it offered were not similar to those of the
plaintiffs. Therefore, he said that customers
Brief facts
were unlikely to frequent the company on
The 1st plaintiff, a company known as Landor the basis of misrepresentations. The 3rd
LLC, had a name derived from the surname of defendant explained that the company had
its founder. The founder’s name was Walter accumulated market presence, reputation
Landor. The 2nd plaintiff was registered to do and customer loyalty in Kenya and in the
business under the name Landor Associates. East and Central African region.
The plaintiffs were involved in the business
of global branding, advertising, public Issues
relations, marketing and communication. i. What were the conditions to be
“Landor” and “Landor Associates” were their met in an action for trade mark
trade marks which were registered in over 20 infringement?
countries. “Landor” was registered with the ii. Whether it was necessary to prove
Kenya Industrial Property Institute (KIPI) as actual confusion and deception as
a trade mark of the 2nd plaintiff with effect opposed to a likelihood of confusion
from June 23, 2010. The plaintiffs enjoyed or deception, amongst members of
a market reputation under the trade names the public as concerned the question
“Landor” and “Landor Associates.” as to whether a mark related to goods
In September 2015, the plaintiffs discovered and services on offer was connected
another business operating under the name with a certain trade mark.
“Landor and Associates.” The business name iii. When would the defence of prior
“Landor and Associates” was registered use be available in a trade mark
under the Business Name Certificate of infringement action?
Registration Number BN/2009/53796 on Held
November 28, 2009 and the business “Landor
and Associates” was registered as “Landor 1. Section 7(1) of the Trade Marks Act
and Associates Limited” under company guaranteed the exclusive right of a
registration number CPR/2014/129132 proprietor to use a registered trade mark.
on January 23, 2014. The business names Under section 7 of the Trade Marks Act,
belonged to the 1st and 2nd defendants and the conditions to be met in an action for
they were involved in construction, security trade mark infringement were that:-
installation, information communication a) the Plaintiff was the registered
technology, project management and proprietor of the trade mark;
consulting. b) the alleged infringement was a
mark identical which or so nearly
The plaintiffs asserted that the registration
resembled that of the registered mark
of the 1st and 2nd defendants under those
so as to be likely to deceive or cause
business names was creating confusion in
confusion in the course of trade or
the market. They said it was likely to cause
in connection with the provision of
the public to believe that the defendants’
the services in respect of which it was
services were those of the plaintiffs or were
registered;
offered in association or collaboration with
c) the use of the mark was without
the plaintiffs. In that sense, they stated
the consent or authority of the
that the defendants were gaining an unfair
proprietor; and
44
d) the use of the mark was such that it their business involved construction,
was likely to cause injury or prejudice ICT, security solutions, architectural
to the proprietor or licensee of the designs and investment but failed to
trade mark. mention that the 2nd defendant also did
2. On June 23, 2010, the 2nd defendant branding.
was registered as the proprietor of the 7. The defendants later explained that the
trade mark “Landor” under trade mark branding the 2nd defendant did was not
no. 68507 in class 35. The 1st defendant the ordinary branding but the placement
had undertaken business in the name of of brands on construction sites in a
“Landor and Associates” since November creative manner and it was a component
28, 2009 when the business name was of construction. However, the evidence
registered in favour of the 3rd defendant tendered showed that the 2nd defendant
under the provisions of the Registration was engaged in branding that was
of Business Names Act. Therefore, the intended to create buzz in the market and
defence of prior use as provided for in that the intention was to manage brands
section 10 of the Trade Marks Act was and create an atmosphere of excitement
applicable to the circumstances and and activity about the brands. That was
warranted consideration. not a component of construction.
3. The 2nd plaintiff was the registered 8. Branding was not the 2nd defendant’s
proprietor of the trade mark “Landor”. peripheral activity. The 2nd defendant
It was necessary for the plaintiff to engaged in branding as a separate activity
adduce evidence of a member of the from construction.
public to show confusion in the passing
off of his goodwill. However, proof of 9. There was a similarity between the
actual deception or confusion was not registered trade mark of the 2nd plaintiff
necessary. It was enough to show that and the name of the 2nd defendant. The
deception or confusion was likely. 2nd defendant offered a service affiliated
with advertising and the 2nd defendant’s
4. In proving the likelihood of deception name was likely to confuse the public
or confusion, witnesses would provide and cause them to believe that branding
views on whether deception or services offered by the 2nd defendant
confusion was likely. The final call on the originated from or were connected to
likelihood of deception or confusion was the 2nd plaintiff.
the Court’s view for which reasons had
to be assigned. 10. Section 10 of the Trade Marks Act
provided for the defence of prior use.
5. The defendants did not contend that the Only continuous and bona fide prior use
word “Landor” being a registered mark of a trade mark deserved protection.
did not resemble “Landor and Associates Evidence indicated that the 3rd
Limited.” Such a challenge would have defendant was aware of Landor at the
failed because the common feature in the time he registered his business name
two was the word “Landor.” There was a in 2009. The Plaintiffs showed that he
resemblance between the mark “Landor” had worked for companies that were
and the name “Landor and Associates associated with Landor as subsidiaries in
Limited.” the WPP family. As a high ranking official
6. There was a similarity between the in those companies it was very likely that
plaintiffs’ marks and the defendants’ he was aware that WPP was using the
marks and it was necessary to assess name Landor. Therefore, it was doubtful
whether the trade or services offered that he conjured up the name “Landor”
by them made the apprehension of by combining letters from his daughter’s
confusion or deception credible. The name and a French word.
2nd Plaintiff was engaged in advertising, 11. It was not necessary to consider the
media investment management, public claim of passing off because although the
relations and public affairs, branding plaintiffs claimed general and aggravated
and identity. The defendants stated that damages and submitted that it should be
45
presumed, there was no proposal made to stand and the 2nd Defendant would
on quantum. It seemed to have been have to change its name. Section 58(1) of
abandoned. the Companies Act provided a sufficient
statutory framework for effecting a
12. The company name “Landor and
change of name of a company.
Associates Limited” infringed on the
registered trade mark of the 2nd Plaintiff. Judgment entered for the plaintiffs against the
The company name could not be allowed defendants.
Section 17(1) (a) and (b) of the National Cohesion and Integrations Act on
the membership of the Commission and the procedure for nominating
commissioners by the National Assembly under the first schedule to the
Act declared unconstitutional
Okiya Omtatah Okoiti v Attorney General & another [2018] eKLR
Petition 385 of 2018
W A Okwany, J
January 14, 2019
Statutes-interpretation of statutes-interpretation of the National Cohesion and Integration
of section 17(1) (a) and(b) and the first schedule Commission (NCIC). Aggrieved by the
of the National Cohesion and Integrations Act- 2nd respondent’s actions, the petitioner
whether section 17(1) (a) and (b) of the National filed the instant petition. The petitioner
Cohesion and Integrations Act and the procedure contended that the said recruitment by
for nominating commissioners of the National the 2nd Respondent contravened the
Cohesion and Integration Commission by the constitutional principle of separation of
National Assembly under the first schedule powers and that section 17(1)(a) and (b)
to the Act was unconstitutional-what was the of the National Cohesion and Integration
procedure to be followed in the appointment of the Commission (the Act) and the procedure for
National Cohesion and Integration Commission nominating commissioners by the National
commissioners- Constitution of Kenya, 2010, assembly under the first schedule of the Act
article 95, 234(2)(a) & 260; National Cohesion were unconstitutional. The petitioner also
and Integrations Act, section 17(1) (a) and(b) and contended that recruitment of persons to be
first schedule appointed to public office was the preserve
Statutes-interpretation of statutes-principles of of the Public Service Commission (PSC) and
interpretation of statutes-what were the principles the executive, and not Parliament
to be applied in construction of statutes Issues
Constitutional Law-constitutionality of i. Whether section 17(1) (a) and (b)
statutes-presumption of constitutionality of of the National Cohesion and
statutes-rationale-what was the rationale Integrations Act and the procedure
behind the rebuttable principle of presumption for nominating commissioners of the
of constitutionality of statutes-whether there National Cohesion and Integration
was a time limitation for challenging the Commission by the National
constitutionality of a statute Assembly under the first schedule to
Constitutional Law-constitutional doctrines the Act was unconstitutional.
and principles-doctrine of separation of powers- ii. What was the procedure to be
interference of actions of other arms of Government followed in the appointment of the
by courts-what were the circumstances in which National Cohesion and Integration
a court could interfere with the actions of other Commission commissioners?
arms of Government-Constitution of Kenya, iii. What were the principles to be
2010, article 165 applied in interpretation of statutes?
Brief Facts iv. What was the rationale behind the
In November 2018 the 2nd Respondent rebuttable principle of presumption
embarked on the process of recruiting of constitutionality of statutes?
persons for appointment as commissioners v. Whether there was a time limitation
46
for challenging the constitutionality interpreting the Constitution, to be

of a statute. conscious of the legal environment
vi. What were the circumstances in under which they operated and to take
which a court could interfere with the into account the contemporary situation
actions of other arms of Government? of each age so as to attach such meaning
and interpretation that met the purpose
Held
of guaranteeing constitutionalism,
1. In interpreting the Constitution, the non-discrimination, separation of
starting point was article 259 of the powers, and enjoyment of fundamental
Constitution which enjoined the Court rights and freedoms. In doing that, the
to interpret the Constitution in a manner court was under a duty to examine the
that promoted its purposes, values and objects and purport of an Act and to
principles, advanced the rule of law, read the provisions of the legislation in
human rights and fundamental freedoms conformity with the Constitution.
in the bill of rights and in a manner that
4. In considering the constitutionality of
contributed to good governance. Further,
the Act, one had to bear in mind the
in exercising its judicial authority, the
rebuttable principle of presumption
Court was obliged under article 159 (2)
of constitutionality of statutes. The
(e) of the Constitution to protect and
principle stated that statutes should be
promote the purposes and principles of
presumed to be constitutional until the
the Constitution.
contrary was proved. The philosophy
2. A Constitution was a living instrument behind that principle was that Parliament
with several provisions that should be as peoples’ representative legislated laws
read as an integrated whole, reading one to serve the people they represented and
provision alongside others so that they therefore, as legislators, they understood
were seen as supporting one another the problems people faced and enacted
and not contradicting or destroying each laws to solve those problems.
other. There were important principles
5. It was the duty of the person alleging
which applied to the construction of
constitutional invalidity of a statute or
statues such as:-
statutory provision to prove that indeed
a. presumption against absurdity – the statute or any of its provisions
meaning that a court should avoid was unconstitutional. The Court had
a construction that produced an to also consider whether the purpose
absurd result; and effect of implementing the statute
b. the presumption against unworkable or statutory provision would result
or impracticable result - meaning into unconstitutionality. Even though
that a court should find against the NCIC was not an independent
a construction which produced commission expressly established and
unworkable or impracticable result; provided for under chapter 15 of the
c. presumption against anomalous or Constitution, it was nonetheless a State
illogical result, - meaning that a court office established by national legislation.
should find against a construction 6. A holistic reading of articles 260 of the
that created an anomaly or otherwise Constitution on the interpretation of
produced an irrational or illogical the meaning of the words public office,
result and public officer and public service showed
d. the presumption against artificial that NCIC was a public office whose
result – meaning that a court should appointment of commissioners fell
find against a construction that within the purview of the Public Service
produced artificial result and, Commission(PSC) under article 234(2)
e. the principle that the law should serve (a)(ii) of the Constitution. NCIC was a
public interest –meaning that the commission like any other commission
court should strive to avoid adopting established under article 250 of the
a construction which was in any way Constitution and the argument that
adverse to public interest, economic, NCIC was a sui generis body that was
social and political or otherwise. subject to a different set of rules from
other commissions was misguided and
3. Courts were under an obligation, when
47
bereft of any constitutional backing. powers did not preclude the Court from
7. Article 95 of the Constitution was clear intervening and arresting a violation
and specific on the role of the National of the Constitution by any arm of the
Assembly and nowhere in that article Government.
was the National Assembly given the 11. The Court had the power to enquire into
mandate to make appointment of the constitutionality of the actions of
the commissioners of the NCIC. The the National Assembly notwithstanding
impugned section of the Act was not the privilege of debate accorded to
consistent with the provisions of article its members and its proceedings. The
95 of the Constitution. Articles 2(4) and Constitution was the supreme law of
165(3) (d)(i) of the Constitution gave the Kenya and Parliament had to function
Court the power to invalidate any law, within the limits prescribed by the
act or omission that was inconsistent Constitution. In cases where it had
with the Constitution. stepped beyond what the law permitted
8. The Constitution did not set out the it to do, it could not seek refuge in
timelines within which any law could be or hide behind the twin doctrines of
challenged or declared unconstitutional. parliamentary privilege and separation
Section 7(1) of the sixth schedule of the of powers to escape judicial scrutiny.
Constitution was categorical that all 12. The doctrine of separation of powers
law in force before the effective date had to be read in the context of the
continued to be in force and had to be constitutional framework and where the
construed with alterations, adaptations, adoption of the doctrine would militate
qualifications and exceptions necessary against the constitutional principles the
to bring it into conformity with the doctrine had to bow to the dictates of the
Constitution. spirit and the letter of the Constitution.
9. The impugned Act having been enacted Petition allowed
in 2008 prior to the promulgation of the i. A declaration issued that section 17(1)
Constitution ought to be construed in (a) and (b) of the National Cohesion and
conformity with the Constitution and Integrations Act No. 12 of 2008 and the
the mere fact that the law had been in procedure for nominating commissioners
operation for a long period of time did of the National Cohesion and Integration
not preclude the Court from declaring Commission by the National Assembly
the said law unconstitutional if it was under the first schedule to the Act was
found to be inconsistent with the unconstitutional and therefore, invalid,
Constitution. The petition should serve null and void.
as a wake-up call to the Legislature to take
ii. A declaration issued that any
urgent measures to amend the impugned
appointments made pursuant to section
sections of the Act so as to make them
17(1) (a) and (b) of the National Cohesion
compliant with the Constitution bearing
and Integration Act No. 12 of 2008 and the
in mind the critical role that the NCIC
procedure for nominating commissioners
was supposed to play in Kenya’s young
of the National Cohesion and Integration
and fragile democracy.
Commission by the National Assembly
10. When any of the state organs stepped under the first schedule of the Act was
outside its mandate, the Court would not unconstitutional, and therefore, invalid,
hesitate to intervene when called upon null and void ab initio.
to do so. The Court was vested with
iii. An order issued quashing section 17(1)
the power to interpret the Constitution
(a) and (b) of the National Cohesion and
and to safeguard, protect and promote
Integration Act No. 12 of 2008 and the
its provisions as provided for under
procedure for nominating commissioners
article 165(3) of the Constitution. The
of the National Cohesion and Integration
Court had an obligation to intervene in
Commission by the National Assembly
actions of other arms of Government
under the first schedule to the Act.
and State organs where it was alleged or
demonstrated that the Constitution had iv. No orders as to costs.
either been violated or threatened with
violation. The doctrine of separation of
48
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Thank you for this feedback!

Hon.Dolphina Alego – PM Goes a long way keeping me on track and
Eldoret Law Courts developing Jurisprudence!
Kind regards,
Hon. Justice Jacqueline Received with thanks Caseback.

Kamau Keep them coming.
Milimani High Court
Hon. MM Wachira – SRM Well received. This is good practice much

Migori Law Courts appreciated.
Hon. C Yalwala - DR Thank you for the feedback.

High Court of Kenya,
Bungoma
49
Legislative Updates
By Rachel Muriithi & Christine Thiong’o, Laws of Kenya Department
T
his is an outline of legislation gazetted between November, 2018 and February, 2019.
A. ACTS OF PARLIAMENT
ACT CAPITAL MARKETS (AMENDMENT) ACT, 2018
Act No. No. 15 of 2018
Commencement 18th January, 2019
This Act amends the Capital Markets Act, (Cap 485A) to facilitate the punishing
of persons involved in embezzlement activities and further ensure that admin-
Objective
istrative enforcement action set out is sufficiently explicit in application to key
employees of listed companies.
ACT SACCO SOCIETIES (AMENDMENT) ACT, 2018

This Act amends the Sacco Societies Act, 2008 (No. 14 of 2008) by providing
for the usage of ICT in filing of the statutory returns and documents or other
Objective
information required to be furnished to Authority under the Act or any other
written law.
ACT NATIONAL YOUTH SERVICE ACT, 2018

Commencement 1st February, 2019
This Act establishes the National Youth Service (NYS). It provides for the estab-
lishment, functions, discipline, organisation and administration of the Service.
Pursuant to provisions of section 7 of the Act, some of the functions of NYS
include: undertaking paramilitary training of members of the Service; co-oper-
ating with and assisting the Kenya Defence Forces, National Police Service
Objective
Commission and other public authorities during emergencies, disasters, war or
insurrection or in the execution of the mandates of the public authorities as the
Council may determine, among others.

This Act repeals the National Youth Service Act, (Cap. 208).
ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2018
50

This is an Act to make various amendments to the following statutes:

1. Judicature Act (Cap. 8).
2. Oaths and Statutory Declarations Act (Cap.15).
3. Public Archives and Documentation Service Act (Cap.19).
4. Civil Procedure Act (Cap. 21).
5. Foreign Judgment (Reciprocal Enforcement) Act (Cap. 43).
6. Probation of Offenders Act (Cap. 64).
7. Criminal Procedure Code (Cap. 75).
8. Extradition (Contiguous and Foreign Countries) Act (Cap. 76).
9. Registration of Persons Act (Cap. 107).
10. Public Holidays Act (Cap. 110).
11. Housing Act (Cap. 117).
12. Law of Succession Act (Cap. 160).
13. Kenya Ports Authority Act (Cap. 391).
14. Kenya Airports Authority Act (Cap. 395).
15. Traffic Act (Cap. 403).
16. Kenya Post Office Savings Bank Act (Cap. 493).
17. Export Processing Zones Act (Cap. 517).
18. Kenya Information and Communications Act, 1998 (No. 2 of 1998).
19. Community Service Orders Act, 1998 (No.10 of 1998).
20. Environmental Management and Co-ordination Act, 1999 (No. 8 of 1999).
21. Kenya Roads Board Act, 1999 (No. 7 of 1999).
22. Industrial Property Act, 2001 (No. 3 of 2001).
23. Children Act, 2001 (No. 8 of 2001).
24. Copyright Act, 2001 (No. 12 of 2001).
25. Privatization Act, 2005 (No. 2 of 2005).
26. Witness Protection Act, 2006 (No. 16 of 2006).
27. Labour Institutions Act, 2007 (No.12 of 2007).
Objective 28. Labour Relations Act, 2007 (No. 14 of 2007).
29. Anti-Counterfeit Act, 2008 (No. 13 of 2008).
30. Biosafety Act, 2009 (No. 2 of 2009).
31. Proceeds of Crime and Anti-Money Laundering Act, 2009 (No. 9 of 2009).
32. Alcoholic Drinks Control Act, 2010 (No. 4 of 2010).
33. Competition Act, 2010 (No.12 of 2010).
34. Tourism Act, 2011 (No. 28 of 2011).
35. National Construction Authority Act, 2011 (No. 41 of 2011).
36. Engineers Act, 2011 (No. 43 of 2011).
37. Land Act, 2012 (No. 6 of 2012).
38. National Authority for the Campaign Against Alcohol and Drug Abuse, 2012
(No.14 of 2012).
39. Kenya Defence Forces Act, 2012 (No. 25 of 2012).
40. Universities Act, 2012 (No. 42 of 2012).
41. Treaty Making and Ratification Act, 2012 (No.45 of 2012).
42. Kenya Institute of Curriculum Development Act, 2013 (No. 4 of 2013).
43. Kenya Agricultural and Livestock Research Act, 2013 (No. 17 of 2013).
44. Kenya Law Reform Commission Act, 2013 (No.19 of 2013).
45. Nairobi Centre for International Arbitration Act, 2013 (No. 26 of 2013).
46. Wildlife Conservation and Management Act, 2013 (No. 47 of 2013).
47. Retirement Benefits (Deputy President and Designated State Officers) Act, 2015
(No.8 of 2015).
48. Companies Act, 2015 (No. 17 of 2015).
49. National Drought Management Authority Act, 2016 (No.4 of 2016)
50. Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No.
33 of 2016).
51. Forest Conservation and Management Act, 2016 (No. 34 of 2016).
52. Bribery Act, 2016 (No. 47 of 2016).
53. Public Finance Management Act, 2012 (No. 18 of 2012).
51
ACT BUILDING SURVEYORS ACT, 2018

This Act provides for the registration and licencing of building surveyors, to
regulate their practice. It establishes a Board that shall be responsible for reg-
istering and regulating the activities and conduct of building surveyors in ac-
Objective
cordance with the provisions of the Act. It provides for a Registrar, appointed
by the Board, who shall be the Chief Executive Officer of the Board and the
Secretary to the Board.
B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEM-
LAW OF CONTRACT (AMENDMENT) BILL, 2019
BLY BILL
Dated 28th January, 2019
The principal object of this Bill is to amend the Law of Contract Act, (Cap. 23) so that in
Objective case of a default by the principal borrower, the creditor should first realise the assets of the
principal borrower before proceeding to realise the assets of the guarantor.
Sponsor Waititu Francis Munyua, Member of Parliament, National Assembly.
NATIONAL ASSEM- LIVESTOCK AND LIVESTOCK PRODUCTS MARKETING BOARD BILL, 2019
BLY BILL
Dated 7th February, 2019
The principal object of this Bill is to streamline the marketing of livestock and livestock
products in Kenya. This is in light of the fact that although the livestock industry is a very
important source of income for many households in Kenya, its regulation is carried out by
Objective different entities leading to duplication and competition among the various entities. The
streamlining of the industry is to be achieved through the establishment of the Livestock
and Livestock Products Marketing Promotion Board which is to be the main body deal-
ing with the concerns of the marketing of livestock and livestock products in the country.
Sponsor Bashir Abdullaih, Member of Parliament, National Assembly.
NATIONAL ASSEM- INSTITUTE OF DIRECTORS OF KENYA BILL, 2019

BLY BILL
The objective of this Bill is to establish the Institute of Directors of Kenya. The Bill
provides for the registration and regulation of their conduct. The Institute is to issue cer-
Objective tificates of registration to its members annually as a form of quality assurance to the
public bodies, entities, enterprises and companies on whose boards its members are to
be appointed.
Sponsor Chris Wamalwa, Member of Parliament, National Assembly.
C. SENATE BILLS
SENATE BILL KENYA MEDICAL SUPPLIES AUTHORITY(AMENDMENT) BILL, 2018
Dated 26th November, 2018
Objective The object of this Bill is to amend the Kenya Medical Supplies Authority Act, (No. 20 of
2013), so as to ensure the Authority’s functions are in tandem with the functions of the
devolved governments established under Article 176 of the Constitution and section
67 of the Health Act, (No. 21 of 2017) and provide a framework through which Kenya
Medical Supplies Authority can collaborate with and work with county governments.
Sponsor Mary Seneta, Senator.
SENATE BILL COUNTY HALL OF FAME BILL, 2018
52
Dated 29th November, 2018

Objective The purpose of the Bill is to provide a means through which exceptional individuals in
each County are recognized and honoured by their Counties. The Bill creates a forum by
which County Governments can honour persons who may not necessarily be recognized
at the National level but are heroes and heroines within their respective counties.
The Bill therefore appreciates that each County may have a group of persons that it may
want to honour at the County level of government. The County Hall of Fame will create a
forum for the recognition of such persons.
Sponsor Kipchumba Murkomen, Senator & Leader of Majority, Senate.
SENATE BILL CONSTITUTION OF KENYA (AMENDMENT) BILL, 2018

Dated 10th December, 2018
Objective This Bill seeks to amend the Constitution of Kenya, 2010 to exclude Nairobi from the
ambit of county governments and to place it under the leadership of the National Govern-
ment. The Bill further seeks to establish Nairobi as the National Capital City and empow-
ers the President to nominate a Cabinet Secretary to be responsible for the management
of the City.
Sponsor Aaron Cheruiyot, Senator.
SENATE BILL PERSONS WITH DISABILITIES (AMENDMENT) BILL, 2019

Objective This Bill seeks to amend the Persons with Disabilities Act, (No. 14 of 2003) by imposing
obligations on both the national and county governments to address the socio-economic needs
of persons with disabilities as provided for under Article 54(1) of the Constitution of Kenya,
2010. The Bill proposes to bestow upon the county executive committee member for the time
being in charge of matters relating to persons with disabilities the responsibility to advise on
and put in place measures to ensure the socio-economic development of persons with dis-
abilities in the county.
It further proposes to review the membership of the National Council for Persons with Dis-
abilities in order to make the workings of the Council more efficient and representative.
Sponsors Aaron Cheruiyot, Senator.
Isaac Mwaura, Senator.
SENATE BILL CONSTITUTION OF KENYA (AMENDMENT) BILL, 2019

Objective This Bill seeks to amend the Constitution of Kenya, 2010 to make it mandatory for the Inde-
pendent Electoral and Boundaries Commission (IEBC) to submit a Report to Parliament, con-
taining details of proposed alterations to names and boundaries of constituencies and wards.
Parliament will then have thirty days to make recommendations on the report of the IEBC
containing details of proposed alteration to names or boundaries of constituencies and wards.
Sponsor Kipchumba Murkomen, Senator & Leader of Majority, Senate.
53
Legal Supplements
Digest of Recent Legislative Supplements on Matters of General Public Importance
By Rachel Muriithi & Christine Thiong’o, Laws of Kenya Department
T
his article presents a summary of Legislative Supplements published in the Kenya Ga-
zette on matters of general public importance. The outline covers the period between
23rd November, 2018 and 31st January, 2019.
DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
23rd November, 2018 69 Kenya Fishing This Order, made by the President in exercise of the
Industries powers conferred by section 3(1) of the State Corporations
Corporation Act (Cap 446), establishes the Kenya Fishing Industries
Order, 2018 Corporation.
(L.N. 214/2018) The functions of the Corporation are:
a. to exploit fishery resources in the Kenya fishery

waters and high seas by promoting the establishment,
development and efficiency of businesses engaged in
the fishing and fishing related activities;
b. to develop and operate facilities and establishments

for the exploitation of fishery resources:
c. to acquire, hold or dispose of assets including

equipment and accessories necessary for the capture,
preservation, processing, selling and marketing of fish
and fish products;
d. to formulate mechanisms for carrying out the

functions under sub paragraphs (a), (b) and (c); and
e. to undertake any other activities necessary or

incidental to achieving the functions of the
Corporation.
The management of the Corporation shall vest in a Board

as established under Order 6.
54
28th November, 2018. 71 Bandari Mari- This Order, made by the President in exercise of the
time Academy powers conferred by section 3(1) of the State Corporations
Order, 2018 Act (Cap 446), establishes the Bandari Maritime Academy.
(L.N. 233/2018) The Academy shall be an institution of excellence in

teaching, training, scholarship, innovation and research
in maritime skills.
The functions of the Academy are:
a. to provide and advance education and training to
appropriately qualified candidates, leading to the
award of diplomas and certificates and such other
qualifications as the Board may, from time to time
prescribe;
b. to conduct examinations for such academic awards as
the Board may, from time to time prescribe;
c. to implement government policy on maritime
education and training;
d. to ensure the highest international maritime standards
in maritime human resource development;
e. to recommend and advise the Government on the
development of relevant legislation to facilitate
successful implementation of maritime education and
training;
f. to serve as the regional maritime centre of excellence
for training for ports, terminals, logistics and maritime
transport skills;
g. to establish centres of excellence in maritime
education and training based on international
maritime standards in maritime human resource
development
h. to partner with other institutions in furtherance of
maritime education and training;
i. to serve as a national centre for motion simulator
training for seagoing competencies; and
j. to perform any other functions necessary or incidental
to achieving the functions of the Academy.
The management of the Academy shall vest in a Board as
constituted under Order 5.
The Academy shall be a successor to the Bandari College.
55
18th December 2018. 74 Housing Fund The Cabinet Secretary for Transport, Infrastructure,
R e g u l a t i o n s , Housing, Urban Development and Public Works made
2018 these Regulations in exercise of the powers conferred by
section 24 of the Housing Act (Cap 117), as read with sec-
(L.N.238/2018) tion 31A of the Employment Act, 2007 (No. 11 of 2007).
The Housing Fund established under section 6(1) of the

Act shall be an affordable housing scheme for the purpos-
es of section 30A of the Income Tax Act (Cap 470).
These Regulations require the registration of employer

and employee. Every employer who, under a contract of
service, employs one employee or more shall register with
the Housing Fund as a contributing employer and shall
register his or her employee or employee as members of
the Housing Fund.
Every employee who is under a contract of service shall

register with the Housing Fund as a contributing employ-
ee, unless that employee is a foreigner working in Kenya.
A self-employed person who wishes to become a member

of the Housing Fund may register as a voluntary member.
These Regulations outline the Register, Voluntary Contri-

butions and Mode of Payment, among other things.
25th January, 2019. 2 Kenyatta Uni- This Order, made by the President in exercise of the pow-
versity Teach- ers conferred by section 3(1) of the State Corporations
ing, Referral and Act (Cap 446), establishes the Kenyatta University Teach-
Research Hospi- ing, Referral and Research Hospital.
tal Order, 2019
The aim and objective of the Referral Hospital shall be:
(L.N. 4/2019) a. to provide highly specialized services, including-
i. general specialization;
ii. discipline specialization; and
iii. geographical or regional specialization including

highly specialized healthcare for an area or region;
and
b. to provide training and research services for issues of

national importance.
The Hospital shall be a level 6 tertiary hospital within the

meaning of section 25(1) as read with the First Schedule
of the Health Act, 2017 (No. 21 of 2017).
The Board of the Referral Hospital established under Or-

der 6 shall be responsible for the management and ad-
ministration of the Referral Hospital.
31st January, 2019 3 Witness Pro- The Witness Protection Agency establishes the following
tection Agency Administration Procedures in exercise of the powers con-
Procedures for ferred by section 33(1) of the Public Officer Ethics Act,
Administration 2003 (No. 4 of 2003).
of Part IV of the
Act These Procedures are for the Administration of Part IV
(L.N. 6/2019) of the Act in respect to the public officers for whom the
Board is the responsible commission.
The Director shall be responsible for the administration

of Part IV of the Act on behalf of the Board.
The Director or the public officer designated by him or

her for that purpose in writing shall not disclose access,
acquire or publish the information in the declaration as
may be provided in the Act and these Procedures.
56
County Assemblies forum 4th

Annual Legislative Summit, 2019
THEME “Accelerating devolution; assessing the progress and addressing the gaps
in in policy and legislation”
INTRODUCTION Assemblies Forum and the Senate proposed
D
evolution remains the biggest the establishment of the Legislative Summit.
gain from the Constitution that The Legislative Summit was envisioned to
was promulgated in August be an annual Summit of legislatures across
2010, ushering in a new political the country, and their staff. The conference
and economic governance system. is aimed at promoting positive engagement
The Constitution created two levels of between the Senate, County Assemblies and
government at the national and county other institutions relevant to devolution,
level. This change made national matters, as well as providing capacity-building and
including policy and non-severable technical assistance to county assemblies
functions such as defense and security the with a view to enabling them effectively
responsibility of the National Government execute their legislative and oversight roles
while local needs such as delivery of various in the devolved system of government.
services were made the responsibility of the The Inaugural Legislative Summit was held
forty seven (47) County Governments. Both on 22nd - 29th May, 2016 in Mombasa
the National and County Governments were County. Participants shared experiences,
allowed autonomy of planning, budgeting achievements, challenges and gaps they
and finance within a national planning and faced, and made a raft of proposals on the way
public finance management framework. forward in line with the theme: ‘Celebrating
The main objectives of this change were to and Entrenching Devolution through Legislation’.
bring the government closer to citizens, The Second Annual Legislative Summit was
increase civic engagement, improve service held on 20th to 24th March, 2017 in Mombasa
delivery, as well as achieve equity across County with the theme ‘Effective Legislatures
the nation in resource sharing. While for Sustainable Grassroots Development’. The
Article 6 (2) of the Constitution emphasizes participants assessed the progress made,
distinctiveness and interdependence, shared experiences and proposed ways
Article 189 calls for closer collaboration, to firm the gaps towards realizing the
consultation and exchange of information devolution dream. The Legislative Summit
between the national government and the 2018 was held on 20th – 25th May, 2018 in
counties. Both levels of government are Mombasa. Being the second term of County
meant to perform their respective functions Governments, the theme for the summit was:
within the framework of intergovernmental “The Devolution Debate; Aligning Legislations to
relations while also respecting the functional the Development Agenda”
distinctness between them, as provided The Legislative Summit 2019 will seek to
for under the Fourth Schedule to the build on the gains of the first three legislative
Constitution. summits while providing an avenue for Kenya
In keeping with the constitutional obligations Legislatures to critically interrogate their
to conduct mutual relations on the basis of roles in the devolved governance structure,
consultation and co-operation, the County six years after its implementation begun.
The pioneer devolved system of government
57
largely focused on setting up of structures county governments;

and hence much of the attention was on b) Legislating laws concerning county
establishing the policy, legal and institution governments;
framework for democratic governance. c) determines allocation of national
The theme of this summit will focus on revenue amongst counties and oversight
delivering on the objects of devolution utilization of revenue allocated to county
guided by the constitutionally outlined governments; and
principles as stipulated in Articles 174 and d) Oversight of state officers and participate
175 respectively. The proposed theme is in the impeachment of the President and
“Accelerating devolution; assessing the the Deputy President.
progress and addressing the gaps in policy Under Article 110(1) of the Constitution a
and legislation”. The Legislative Summit, Bill is said to concern counties if-
2019 is proposed to be held on 14th -18th April,
a) it contains provisions affecting the
2019 in Kisumu County.
functions and powers of the county
OBJECTIVES OF THE LEGISLATIVE governments;
SUMMIT b) it relates to the election of members of a
county assembly or a county executive;
The main objectives of the Legislative
and
Summit 2019 will be;
c) it is Bill affecting the finances of county
i. To assess the progress made in governments.
legislations that support entrenching of
PRE-CONFERENCE ACTIVITIES
devolution;
ii. To identify the gaps and challenges in There will be activities that will be held as
legislation that are impeding devolution build up to the main conference as follows;
and develop measures to address them;
a) Pre-summits on Gender, Youth
iii. To identify opportunities that can be
and People Living With Disability
harnessed to accelerate devolution
(PWDs)
iv. To provide a platform for dialogue
amongst key actors in devolution to The Constitution has placed a lot of emphasis
learn and share experiences; on gender representation at all levels of
v. To strengthen inter and intra- leadership and there has been a lot of debate
governmental relations for effective on this. The youth also play a key role in the
implementation of devolution. current and future economy of the country.
The Summit is to be jointly hosted by PWDs are equal members of the society and
The County Assemblies Forum [CAF] are not to be discriminated in any way.
and the Senate. The County Assemblies The pre-summits on these special groups will
Forum [CAF] is the coordinating body of review progress made in implementation
the 47 County Assemblies in Kenya. Its of the resolutions of the previous Summits
role is to institutionalize the law making, and develop new action areas in line with
representation and oversight capacities for the theme of the Summit for consideration
the County Assemblies in Kenya and form during the Summit. These Pre-summits will
linkages with other arms of government. be held prior to the Summit on 14th April
Chapter eight of the Constitution of Kenya 2019.
(the Constitution) establishes the Legislature. OUTPUT
Article 93 of the Constitution states that At the end of the Summit, a joint communiqué
“There is established a Parliament of Kenya,” will be prepared outlining the resolutions of
(Parliament) “which shall consist of the the deliberations. The resolutions will be
National Assembly and the Senate.” The geared to further strengthen the position of
Senate is made up of 67 members and the legislatures in Kenya within the context of
Speaker who is an ex officio member. The role the devolved system of government. Further,
of the Senate as set out under Articles 94 and the communique will adopt a drafting
96 of the Constitution are formula that captures actionable resolutions
a) Representing counties and protecting containing a logical action points and an
the interests of counties and those of accountability plan for implementation by
respective institutions.
58
Role of Kenya Law in County

Legislation
by June Migizi
T
he Judicature
Act (Cap. 8),
in defining the
mode of exercise
of jurisdiction of various
courts in Kenya, has
provided the sources of law
as the Constitution, written
law and the substance of
common law, doctrines
of equity and statutes of
general application.
The Laws of Kenya
therefore include national
legislation which is inclusive
of subsidiary legislation
made thereunder, treaties
ratified by Kenya and, by
virtue of the Constitution
2010, county legislation.
County Legislation was
The Chief Executive Officer/ Editor of Kenya, Mr. Long’et Terer presenting the Grey Book to
introduced via Article Hon. John Osoi, Chairman, County Assemblies Forum
260 of the constitution
which defines legislation to Office of the Government Printer. However, as
include laws made by an assembly of a county much as the law prescribes for the publication
government. Anchored in with Article 6(1) of of county legislation in the Kenya Gazette and
the Constitution, the first Schedule provides for the County Gazette, there is no mechanism
the forty seven (47) counties. Under Article 176, in place to ensure gazettement of county
there shall be a county government for each legislation takes place. There is need to fast-
county, consisting of a county assembly and a track the enactment of the Office of the County
county executive. The legislative authority of Printer Bill, 2018 which shall seeks to establish
a county, as stated in Article 185, is vested in, the office of the county printer in each county.
and exercised by, its county assembly which Under section 5 of the Bill, the office of the
may make any laws that are necessary for, or county printer shall be responsible for the
incidental to, the effective performance of the printing and publication of the county gazette
functions and exercise of the powers of the and shall-
county government under the Fourth Schedule a) publish in the county gazette such documents
of the Constitution. as are approved by an authorized officer
Kenya law therefore collects and publishes within seven days of such authorization;
county legislation on its portal, www.kenyalaw. b) advise the county executive and the county
org for easy access by the public and in line with assembly on all matters pertaining to
the principle of access to information as laid printing and publication of documents;
out in article 35 of the Constitution. c) enter into such partnerships and
collaborations with other public sector
Improvement of the role of Kenya Law in the or private sector printing offices as are
Collection of County Legislation necessary for the proper execution of its
National Legislation is collected from the functions; and
59
d) perform any other function as may be Assemblies Forum to solidify the relationship
necessary for the proper execution of its and streamline challenges faced in access to
mandate. county Legislation.
In performing its functions, the office of the One of the gaps that need to be addressed is
county printer shall be required to coordinate the publication of county legislation. Kenya
and liaise with the office of the government Law has been on the forefront in publishing
printer and shall ensure that there is no county legislation on its website but this can
duplication in the printing and publication still be improved, with more cooperation from
of documents. This will ultimately make counties and with counties understanding
collection of legislation easier and therefore the role and mandate of Kenya Law in the
the public will be able to access legislation in a legislative process.
timely manner.
The revision of county legislation also needs
Secondly, the enactment of The Office of the to be addressed. Questions such as how
County Attorney Bill, 2018 will also aid in do counties incorporate amendments and
improving the accessibility of county legislation. consolidate their laws need to be on discussed.
The Bill, if passed, shall establish the Office of The manner of gazettement of county Bills and
the County Attorney which shall consist of Acts is also a big gap because many counties are
the County Attorney, County Solicitor and yet to gazette their legislation.
County Legal Counsel. The County Attorney,
under section 6, shall advise departments in the Conclusion
county executive on legislative and other legal Kenya Law is a link between the counties and
matters and shall be responsible for the revision the public in the enhancement and facilitation
of county laws, among other responsibilities. of public participation, which is one of the
This will enable Kenya Law to liaise with the key principles articulated by the Constitution
County Attorney directly on matters of county especially when it comes to devolution. It is
legislation. therefore key for counties to understand the
Kenya Law and the County Assemblies role of Kenya Law in the improvement of policy
Forum in relation to County Legislation and legislation. In line with Kenya achieving its
full potential under the Constitution, ability
In line with the county legislation agenda, of Kenya Law to acquire and publish county
Kenya Law is working together with CAF legislation will assist in finding out the level of
to ensure that access to county legislation is counties’ commitment to passing legislation
achieved. CAF being the coordinating body that is in line with the Constitution, Kenya
of the 47 County assemblies would be a good Vision 2030 and the Big Four Agenda as set out
platform to aid Kenya Law in ensuring county by the President.
Legislation is collected and disseminated
through the Kenya law platform. To solidify To access county legislation, visit, www.kenyalaw.
the working relationship, Kenya Law paid a org
courtesy call to the headquarters of the County
“Africa has her mysteries and even a wise man cannot under-
stand them. But a wise man respects them.” ~ Miriam Makeba
Somerights reserved by dan Lundberg
60
International
Jurisprudence
The legitimate expectations of an objective, hypothetical neighbour should
be considered by a local authority when considering a proposed building in
assessing all disqualifying factors of the possibility of derogation of value of
adjacent properties, disfigurement and unsightliness of the area.
Trustees of the Simcha Trust v Da Cruz and 3 Others; City of Cape Town v Da Cruz and
3 Others [2018]
Constitutional Court of South Africa
CCT 125/18 and CCT 128/18
Mogoeng CJ, Cameron, Froneman, Khampepe, Mhlantla, Theron JJ and Basson,
Dlodlo, Goliath, Petse AJJ
February 19, 2019
Reported by Faith Wanjiku
Infrastructure Law-buildings-erection of to build an additional four storeys to the

buildings-building regulations and standards- existing structure on its property. All storeys
approval by local authorities-disqualifying factors were to be built up to the boundary of the
against approval-test to be applied in assessing property. If implemented, the top three
disqualifying factors- whether the legitimate storeys of the new building would touch the
expectations of an objective, hypothetical existing balconies on the eighth, ninth and
neighbour had to be considered by a local tenth floors of the Four Seasons’ building.
authority when assessing all disqualifying factors The Municipality approved the Simcha
of the possibility of derogation of value of adjacent Trust’s application in September 2008 and
properties, disfigurement and unsightliness of construction commenced.
the area when considering a proposed building
In December 2012, Four Seasons instituted
- National Building Regulations and Building
an application in the High Court in which
Standards Act No 103 of 1977, section 7(1) (b) (ii)
it sought an order that the Trust suspend
(aa)
construction pending a review of the approval
Constitutional Law- Bill of Rights- right to of the development. The Municipality
just and fair administrative action- review of conceded that the approval it had granted
administrative action by a court-whether the to the Trust should be set aside as it had
appeals raised a constitutional issue which could been improperly granted. The approval was
grant the Constitutional Court jurisdiction set aside by agreement between the parties
to grant leave to appeal- Constitution of the and the High Court made an order to that
Republic of South Africa, 1996, section 33 effect. The Trust submitted new plans to the
Municipality in June 2014. The application
Brief Facts process was more rigorous that time. The
In 2005, the City of Cape Town (Municipality) building control officer recommended that
approved a development application by the the plans be approved.
Four Seasons sectional title scheme. The Four Seasons instituted a review in the High
building plan entailed building balconies Court with regard to the Municipality’s
up to the boundary of the Four Seasons’ decision to approve the Simcha Trust’s plans.
property. Adjacent to the Four Seasons’ The High Court set aside the development
property was a property owned by the approval on two grounds: first, that the
Simcha Trust. Between 2005 and 2007, City’s official, in approving the plans, was
Four Seasons erected a 17-storey building materially influenced by an error of law; and,
with balconies leaning into the Simcha second, that the official failed to take into
Trust’s property. In 2007, the Simcha Trust account a relevant consideration, namely
submitted a building application. It sought
61
whether the proposed development gave rise objectionable;

to any disqualifying factors when viewed
(ccc) it will probably or in fact derogate from the
from the perspective of the neighbouring
value of adjoining or neighbouring properties;
Four Seasons’ building.
such local authority shall within 30 days after
The Simcha Trust and the City appealed
the receipt of such application refuse to grant its
to the Full Court. The Full Court held that
approval in respect thereof and give reasons for
the City’s decision-makers had committed
such refusal
errors of law, first by applying the incorrect
test when considering whether any of the Held
disqualifying factors were present, and, 1. The instant Court would grant leave
second, by failing to take into account to appeal where the application raised
the impact of the building plans on the a constitutional issue and where it was
neighbouring properties. The Full Court in the interests of justice to grant leave
dismissed the appeal and a petition for special to appeal. The Court had jurisdiction
leave to appeal to the Supreme Court of to consider the appeal because all
Appeal was unsuccessful. The Trust and the Promotion of Administrative Justice
Municipality then filed separate applications Act (PAJA) reviews concerned the right
for leave to appeal in the Constitutional to just and fair administrative action
Court as applicants respectively claiming that under section 33 of the Constitution of
the legitimate expectations test was suited to the Republic of South Africa, 1996 (the
application in the context of derogation in Constitution). They were constitutional
value from a particular property, rather than matters. While prospects of success were
disfigurement of an entire area. important in determining whether leave
Issues to appeal should be granted, they were not
i Whether the legitimate expectations determinative. There were no prospects
of an objective, hypothetical of success in the matter yet there was a
neighbour had to be considered by narrow question of law which the Court
a local authority when assessing should pronounce upon. It was therefore
all disqualifying factors of the in the interests of justice to grant leave
possibility of derogation of value of to appeal.
adjacent properties, disfigurement 2. The legitimate expectations test was
and unsightliness of the area when the means by which a decision maker
considering a proposed building. determined whether there would
ii Whether the appeals raised a be derogation in value sufficient to
constitutional issue which could disqualify a building application under
grant the Constitutional Court the National Building Regulations and
jurisdiction to grant leave to appeal. Building Standards Act (the Act). In
terms of section 7(1) (b) (ii) (aa) of the
Relevant Provisions of the Law
Act, the local authority had to be satisfied
National Building Regulations and
that none of the disqualifying factors
Building Standards Act, No. 103 of 1977
were present. Discretionary power was
Section 7 - Approval by local authorities in
an essential tool in the administration
respect of erection of buildings
and the legal system that governed it.
(1) If a local authority, having considered a The latitude of discretionary power
recommendation referred to in section 6 (l) (a)- varied with context. Section 7(1) (b)
(b) (ii) is satisfied that the building to which the (ii) (aa) conferred a broad discretion
application in question relates..,- on the local authority to consider
a range of factors. However, that
(aa) is to be erected in such manner or will be of discretion was not untrammelled. All
such nature or appearance that- administrative action had to be lawful,
(aaa) the area in which it is to be erected will reasonable and procedurally fair. The
probably or in fact be disfigured thereby; legitimate expectations test correctly
circumscribed the discretion of the
(bbb) it will probably or in fact be unsightly or
decision maker with the constitutionally
62
mandated requirements of lawfulness, was to ensure the harmonious, safe and

reasonableness and procedural fairness. efficient development of urban areas.
Local authorities had to exercise powers
3. The concept of legitimate expectation
conferred on them under the Act in
found its origins in administrative
pursuit of that purpose. They were the
law. But even where a person claiming
caretakers of the community interest in
some benefit or privilege had no legal
relation to building applications. That
right to it, as a matter of private law,
impelled them to consider the impact of
he could have a legitimate expectation
a building proposal on the surrounding
of receiving the benefit or privilege,
area and particularly the neighbours.
and, if so, the courts would protect his
expectation by judicial review as a matter 7. When applied to each of the disqualifying
of public law. Legitimate, or reasonable, factors in section 7(1) (b)(ii)(aa), the
expectation could arise either from an legitimate expectations test was an
express promise given on behalf of a accurate translation of the duties of
public authority or from the existence local authorities under the Act and the
of a regular practice which the claimant Constitution. It required the decision
could reasonably expect to continue. maker to consider the impact of the
proposed development on neighbouring
4. The reference to legitimate expectations
properties, from the perspective of a
was a reference to the hypothetical
hypothetical neighbour. That infused
range of future possibilities which the
the exercise of the discretionary power
parties to a notional sale would, as a legal
under section 7(1) (b) (ii) (aa) with the
construct, be considered to have had
constitutionally mandated requirements
in the forefront of their minds, at the
of reasonableness, lawfulness and
time. It was not to be confused with the
procedural fairness, informed by the
concept of a legitimate expectation as it
contextual approach mandated by the
had been established in law, in order to
Act. The test was consistent with the
protect a party, by way of a procedural
objects of the Act and the constitutional
remedy, from the adverse consequences
requirement of just administrative
of a decision being taken by another
action.
without a prior opportunity to be heard.
8. The Municipality expressed
5. The language of legitimate expectations
considerable concern in its submissions
in the context of derogation from value
about the administrative burden which
did not refer to an independent right held
the legitimate expectations test would
on behalf of a neighbour to have their
impose on it. The test did not impose
opinion heard by the decision maker.
any additional duty on the Municipality
The phrase referred to an objective
to consult with the public above and
factual inquiry into the legitimate
beyond the existing requirements of
expectations of a party to a hypothetical
the law. The legitimate expectations test
sale of a neighbouring property. In
was not a subjective test determined by
the context of derogation in value, the
the whim of a sensitive neighbour. The
decision maker had to be positively
test was objective and based on relevant
satisfied that a hypothetical purchaser
facts, which would, in the ordinary
of a neighbouring property would not
course, be placed at the disposal of the
harbour legitimate expectations that
decision maker.
the proposed development application
would be denied because it was so 9. The legitimate expectations test applied
unattractive or intrusive. to the disqualifying factors in section
7(1) (b) (ii) (aa)(aaa)-(ccc). In contrast to
6. The purpose of the Act coloured
the disqualifying factor in subsection
the way in which the constitutional
(ccc), the disqualifying factors in
requirements of reasonableness,
subsections (aaa)-(bbb) made no mention
lawfulness and procedural fairness
of neighbouring or adjoining properties.
applied to administrative action taken
The phrase neighbouring property was
under the Act. The purpose of the Act
used flexibly and its scope would vary
63
in light of all of the circumstances of the established is to oversee the construction

case. The decision maker should consider industry and coordinate its development.
whether the proposed building would Regulation 17 (1) of the National Construction
probably, or in fact, be so disfiguring Authority Regulations 2014 provides that all
of the area, objectionable or unsightly construction works, contracts or projects
that it would exceed the legitimate either in the public or private sector shall be
expectations of a hypothetical owner of registered with the Authority in accordance
a neighbouring property. with the Act.
10. The decision maker had to be The Environmental Management and
positively satisfied as to the existence Coordination Act No. 8 of 1999 establishes
of the disqualifying factors and that the National Environment Management
the disqualifying factors had to be Authority under section 7 whose main
considered separately from compliance objective is general supervision and co-
with the other requirements of the ordination over all matters relating to
Act. The legitimate expectations test the environment and to be the principal
was the appropriate means through instrument of Government in the
which to establish the existence of the implementation of all policies relating to the
disqualifying factors in section 7(1)(b)(ii) environment.
(aa)(aaa)-(ccc) of the Act.
The Environmental (Impact Assessment
Appeal dismissed. and Audit) Regulations, 2003 provide in
regulation 4 (1) that no proponent shall
Orders:
implement a project likely to have a negative
Under CCT 125/18 (Trustees of the Simcha Trust environmental impact or for which an EIA
v Da Cruz and Others): is required under the Act or the Regulations,
i Leave to appeal to the Constitutional unless an EIA has been concluded and
Court by the applicants was granted. approved in accordance with the Regulations.
ii The appeal at the Constitutional Court Regulation 16 provides that an EIA study
was dismissed. prepared under the Regulations shall take
iii The applicants to pay the costs of the into account environmental, social, cultural,
respondents in the Court, including economic, and legal considerations.
where applicable the costs of two counsel.
In Douglas Onyancha Omboga & 3 others
Under CCT 128/18 (City of Cape Town v Da
v Joseph Karanja Wamugi & 4 others [2019]
Cruz and Others):
eKLR it was the petitioners’ case that they
i Leave to appeal to the Constitutional signed a petition objecting to the construction
Court by the applicants was granted. of the telecommunication mast on the suit
ii The appeal at the Constitutional Court land because they had not been consulted
was dismissed. and that they were not involved in any
iii The applicants to pay the costs of the Environmental Impact Assessments or other
respondents in the Court, including approvals for the said project. The petitioners
where applicable the costs of two counsel. averred that the telecommunication tower
Relevance to the Kenyan Situation stood at 30 meters and did not meet the
The Constitution of Kenya, 2010 provides specifications stated in the Environmental
in article 42 that every person has the right Impact Assessment Project Report and that
to a clean and healthy environment. Article the base of the tower affected and limited the
66 provides for regulation of land use and user of the other adjoining parcels of land.
property in stating that the State could The Court held that the procedural rights
regulate the use of any land, or any interest by individuals who were likely to be affected
in or right over any land, in the interest of by a project which was out of character with
defence, public safety, public order, public its surrounding were critical in realizing the
morality, public health, or land use planning. right to a clean and healthy environment.
Indeed, the failure to involve the public in
There is also the National Construction environmental decisions or to provide access
Authority Act No. 41 of 2011. Under section to environmental information was a violation
5 (1) the object for which the Authority was
64
of environmental rights of individuals. relevant considerations. The status of the

environment was not determined by the
In Tim Busienei & 2 Others v Director
fact alone that an area was designated as a
General, National Environment
residential area, a high class residential area
Management Authority & Another,
or even as an area of low population density.
Tribunal Case No. 10 of 2006 [2007] eKLR,
the National Environmental Tribunal In Ken Kasinga v David Kiplagat & 5 others,
stated that the purpose of an EIA licensing Petition No. 50 of 2013 the Court held that
process prescribed by Part VI of EMCA where there was non-compliance of the
and the regulations made thereunder was procedure for protecting the environment,
to assess the likely significant impact of then an assumption ought to be drawn that
a proposed development project on the the project was one that violated the right to
environment. In deciding on the nature of a clean and healthy environment.
likely impacts, account had to be taken of
The Constitutional Court case is of
the status of the environment within which
significance to Kenya as it develops
the proposed project would be undertaken
jurisprudence in this era of rampant real
as well as the negative impacts that the
estate developments by laying out plainly
proposed project were likely to have on the
and in statute the disqualifying factors for
environment. In that regard, existing air
one not to be given approval for erection of
quality, traffic, noise, aesthetic and other
a proposed building by a local authority and
features of the environment in the area in
the correct test of legitimate expectations
which the development was proposed to be
of an objective, hypothetical neighbor that
carried out, as well as the likely impacts of
should be applied in determining the same.
the project on the environment media were
“The great powers of the world may have done wonders in giving the world an industrial look, but the great gift still has
to come from Africa - giving the world a more human face” – Steven Biko
65
Law Reform
Compilation
LAW REFORM BRIEF FACTS & METADATA HOLDINGS PERTINENT TO LAW REFORM
ISSUE OF JUDGMENT
Reforms are needed Elizabeth Wanjiru Njenga & another 1. Under rule 99(3) of the Court of Appeal Rules 2010, the only person that could
under rule 99 of the v Margaret Wanjiru Kinyara & 2 oth- apply for the revival of the appeal after it abated upon the expiry of 12 months
Court of Appeal Rules ers from the time of death of the 1st respondent was her legal representative.
Court of Appeal at Nairobi, Civil Ap-
2010 to allow for any Therefore, a question arose as to whether the appellants had locus standi to
peal (Application) No 30 of 2005
interested person to P N Waki, S Gatembu Kairu & K apply for the revival of an abated appeal.
make applications M’Inoti, JJA 2. In dismissing the appellant’s application, the High Court was exercising
for the revival of an November 23, 2018 discretion. For the Court of Appeal to interfere with such a decision it would
abated appeal at the At the High Court, the appellant’s ap- have to be shown that the High Court failed to consider relevant factors or
Court of appeal as the plication sought revival of their appeal considered irrelevant factors in reaching at its decision or that its decision was
against the 1st respondent who was
legal representative of plainly wrong.
deceased and the substitution of that
the deceased. respondent with John Wainaina Wan- 3. Prior to the enactment of the Court of Appeal Rules 2010, there was no specific
jiru who was said to be the sole surviv- rule dealing with revival of abated appeals. Under rule 51(4) of the Court of
ing son and heir of the deceased. The Appeal Rules 2010, any interested person could apply to revive an application
High Court dismissed the application. that had abated but under rule 99(3) of the same rules only a person claiming
The deceased’s father was registered to be the legal representative of a deceased party to an appeal could apply for
as the proprietor of the suit premises.
revival of an appeal. There was no rational basis as to why the right to apply for
The deceased had one brother and a
sister. Upon her father’s death in 1972, revival of an appeal and substitution of a deceased party to the appeal was not
her brother, Peter Njenga Kinyara, as extended under rule 99(3) to any interested person but was limited to the person
an only son, got registered as the pro- claiming to be the legal representative to a deceased person. Similarly, there was
prietor of the land. After the death of no rational basis as to why any interested person would be at liberty or entitled
Peter Njenga Kinyara, the High Court to apply for substitution of a deceased party to the appeal within 12 months of
issued a grant of letters of adminis-
the death of such party but lose the right to do so upon abatement of the appeal
tration to his widow Elizabeth Wan-
jiru Njenga, David Karanja Njenga and 12 months following the death of a party.
John Wainaina Njenga on September 4. Amendments made to the rules to cater for revival of abated applications and
26, 2000 in Nairobi High Court Suc- appeals, were intended to avoid injustice that innocent litigants or other relevant
cession Cause No. 1610 of 2000. parties could suffer through no fault of their own. It was doubtful that the Rules
Margaret Wanjiru Kinyara, the de- Committee intended that an application to revive an abated application could be
ceased, filed summons for revocation
made by any interested person and application to revive an abated appeal could
or annulment of grant on grounds that
there had been material concealment only be made by the legal representative of the deceased party.
of facts in that her deceased brother, 5. One of the overriding objectives under section 3A of the Appellate Jurisdiction
Peter Njenga Kinyara, held the prop- Act was to facilitate just, expeditious, proportionate and affordable resolution
erty in trust and she was entitled to a of appeals. For purposes of furthering those objectives, the Court was required,
share of the deceased’s assets. She said under section 3B of the Act, to handle matters with the aim of, among other
that she resided on the land and had
things, just determination of proceedings. It was apparent that the High Court
undertaken extensive developments
on it. On September 17, 2004, the High did not consider the import of such provisions in exercising discretion.
Court ruled that she had a beneficial
interest in a third of the property in
question which had been occupied by
her mother and that interest should be
noted in the grant of letters of admin-
istration relating to the estate of Peter
Njenga Kinyara.
Two of the administrators lodged
an appeal against the decision. In the
appeal, the deceased, was the 1st re-
spondent and the two administrators
namely, Elizabeth Wanjiru Njenga and
David Karanja Njenga, were the appel-
lants. When the 1st respondent died
they unsuccessfully sought the revival
of the appeal and the substitution of
the 1st respondent with her son. The
High Court stated that they had no lo-
cus standi to apply for the revival of an
abated appeal and that the only person
who could do so was a legal represen-
tative of the deceased.
66
Section 33B (1) and Boniface Oduor v Attorney General 1. In regards to the discriminatory nature of section 33B of the Act, section 2
(2) of the Banking and 4 others of the Banking Act defined what a banking business; financial business and
Act on capping of in- Petition no 413 of 2016 financial institution were. Section 33B of the Act talked of a bank or financial
terest rates declared High Court at Nairobi; Commercial institution whereas section 54 of the Act exempted the application of the Act
imprecise, vague and and Admiralty Division on certain institutions. So as to examine whether the differentiation was one
ambiguous and thus F Tuiyott, J Kamau, R B Ngetich, JJ that was constitutionally acceptable, one had to look at the object for enacting
unconstitutional March 14, 2019 section 33B of the Act and the nature of institutions that were not covered by
The petition related to the constitu- the regulation. The object enacting of section 33B of the Act was to curb the
tionality of the interest rate capping runaway high interest rates by the banks. That was evident from the reports
and auxiliary provisions of section 33B
by the National Assembly Departmental Committee on Finance, Planning and
of the Banking Act which were enact-
ed through the Banking (Amendment) Trade and the debates in Parliament annexed to the affidavit by the National
Act no 25 of 2016. A month prior to Assembly.
the hearing of the petition, there was 2. The institutions in section 54 of the Banking Act were exempted by virtue of
an amendment to sections 31A and the fact that they had been established to meet specific needs or for a particular
33B of the Act. Those changes were group of people. The institutions had not been granted consent of CBK to act as
through section 64 of the Finance Act
banks, but if they were to provide banking services then by virtue of section 54
No 10 of 2018 which commenced on
1st October 2018. (2) of the Banking Act, they would bound by the provisions of section 33B (1) of
The petitioner’s case was that, in so the Banking Act.
far as the object and effect of the im- 3. The right to property was protected under article 40 of the Constitution. Under
pugned provisions was to cap the the provisions of article 259 on the interpretation and construction of the
interest rate charged by banks and fi- Constitution, property was defined to include any vested or contingent right
nancial institutions for loans, they de-
to, or interest in or arising from money, choses in action or negotiable interest.
prived Central Bank of Kenya (CBK) of
its exclusive constitutional mandate to Choses in action included rights under a contract. Money, a loan or credit
solely formulate and implement mon- facility of any type was without doubt a property. Although a right to property
etary policy. The petitioner contended could be limited, article 24 delineated the permissible limitation.
that the impugned provisions discrim- 4. The provisions did not appear to prevent banks and financial institutions from
inated against banks and financial in- lending or borrowers from accessing credit. What it did was to cap the rate of
stitutions as no similar restriction on
interest on borrowing. It set interest rate parameters within which parties could
interest rates was placed on mortgage
finance institutions, micro finance interact. Given that the overall objective of the Statute was to protect consumers,
banks, insurance companies and those by regulating interest rates the Statute did not impose an impermissible
dealing with Islamic banking. limitation on lending or borrowing. Lenders and borrowers were free to deal
with their property within the parameters that parliament had set.
5. The Petition was filed on October 10, 2016. Subsequently, the National Assembly
through the Finance Act No 10 of 2018 made amendments to the Banking Act
which affected sections 31A and 33B. The amendments had provided clarity on
some of the concerns that the petitioner had raised. Although the Court noted
the arguments in respect of the ambiguity of the clause of “at least seventy per
cent, the base rate”, it did not find it necessary to analyse the same for the reason
that the 2018 Amendment deleted the clause of “at least seventy per cent, the
base rate” by removing section 33B (1) (b) of the Banking Act.
6. The term “credit facility” appeared in various sections of the Banking Act. On
occasion it appeared alongside the word “loan”. However, neither had been
defined in the interpretation provision of section 2 of the Banking Act. Further,
the two terms were not defined in the Interpretation and General Provisions Act
(Cap 2 Laws of Kenya), which was a statute inter alia in regard to the construction,
application and interpretation of written law. Nevertheless, reference of the two
(2) terms had been made in section 44A (5) (b) of the Act. To be noted, was that
the meaning assigned to the word “loan” under section 44A (5) (b) was specific
for that section. Therefore, for purposes of section 33B (1), the phrase “credit
facility” had no statutory definition.
7. Ordinarily, where there was no statutory definition of a word, then it ought to be
construed in its plain and simple meaning. The term “credit facility” was open to
different subjective interpretations. One could construe the term “credit facility”
in its ordinary meaning while another could choose to give it a meaning similar
to that assigned in section 44A(5)(b). If the former, a loan was a type of credit
facility, and if the latter, a credit facility was a type of loan. That interpretation
was conflicting.
8. To remove the possibility of conflicting construction of the phrases, it was
necessary that the term “credit facility” for purposes of section 33B (1) be
explicitly defined. In the alternative, the terms “credit facility”, “loan”, “advance”
and “financial guarantee” could be defined in the interpretation provisions of
the Act. Arguments such as whether the section as worded covered loans such as
mobile loans and hire purchase facilities would be avoided.
9. One spill-over effect of the ambiguity in the meaning of “credit facility” could
be seen on the reading of section 33B (2). What was to be borrowed or lent was
not clear in so far as the words “credit facility” used in section 33(B) (1) were not
defined.
67
10. The 2018 Amendment had provided some clarity on the base rate referred to
in section 33B (1)(a) of the Banking (Amendment) Act, 2016. The amendment
clarified that the base rate was the CBR that was set and published by CBK. But
that clarification could not be sufficient. The reference of the role by CBK to set
and publish CBR appeared only in section 33B in the entire Banking Act. So as
to establish the CBR referred to in section 33 B (1), it was necessary to read that
section with section 36(4) of the Central Bank Act.
11. Failure by section 33B (1) of the Banking Act to make specific reference to the
provisions of the CBK Act in respect to the setting and publication of the CBR
could open the provisions of section 33B (1) to various interpretations. If left
as worded, one could argue that the CBR referred to in section 33B need not
necessarily be that contemplated under the CBK Act. Clarity could be given
to those provisions if they specified that the CBR in section 33B was the CBR
contemplated under section 36(4) of the Central Bank Act.
12. Given that the contravention of section 33B of the Act attracted penal
consequences, the Statute should be unequivocal that the CBR referred to was
that contemplated in the CBK Act. That would be in consonance with good
legislative practice that definitions appearing in one statute ought to appear
in related statutes for clarity and to avoid inconsistencies and ambiguity when
dealing with a related issue. All laws relating to the same issue had to bear the
same meaning as they would have the potential of the same words being assigned
different meanings and interpreted differently depending on the statute under
consideration. Each statute had to be interpreted in line with all the provisions
contained.
13. The use of the words “four percent, the CBR set and published” in section 33(B)
(1)(a) of the Act were imprecise, uncertain and fell short of what would be termed
a good piece of legislation that was easily understood by “Wanjiku.” In an attempt
to clarify that ambiguity, CBK in its Banking Circular No 4 of 2016 gave the
following guideline, “For purposes of section 33B (1) (a) which set the maximum
interest rate chargeable for a credit facility “at no more than four percent, the
base rate set and published by the CBK”, the cap would be set at four percentage
points above the CBR.”
14. Section 33(B) (1) (a) of the Act was not clear whether the word “of” was
intentionally left out by the drafters of the legislation. The words “at no more
than four percent, the base rate” could mean four percent above the CBR set
and published by CBK. There could also be a mischievous interpretation of the
words “at no more than four percent, the base rate” to mean below the CBR.
Unfortunately, the ambiguity persisted even after the 2018 Amendment. There
was need for clarity on the issue because left as it was; it was open to different
interpretations.
15. Section 33(B) (1) (a) of the Act was also vague as to the period the four (4%)
per cent interest was applicable. It did not specify whether it was to be charged
per day, per month or per annum. That ambiguity was apparent as CBK felt it
necessary to provide a guideline in Banking Circular No. 4 of 2016, that “the
interest rates indicated in the Banking (Amendment) Act 2016, would apply on
an annual basis.” The attempt to clarify the meaning through circulars/guidelines
was not sufficient because it had to be remembered that non-compliance with
the section 33B came with penalties and criminal proceedings. In any event, any
valid law had to be self-explanatory. It had to and should not be qualified by
explanations to be found outside of the statute.
16. Section 57 of the CBK Act empowered CBK to make regulation, circulars and
directives for the purpose of giving effect to the Act. In giving effect to the Act,
CBK issued Circular No 4 of 2016 on September 13, 2016. CBK issued guidance
in an attempt to clarify and harmonise the interpretation of the sections. The
fact that CBK issued the Circular to clarify several issues was evidence of the
ambiguity of the impugned section. In the absence of that guidance, there would
have been anarchy in the banking industry.
17. Any words that had the potential of causing confusion had to be clearly defined.
The Legislature should not assume that the meaning of material words could
be inferred. It had to make it easy for everyone, including a lay person to
understand the meaning of a provision. Section 33B lacked the minimum degree
of certainty that was required of legislation that created criminal offences. There
was no option but for the provision to be struck out for being vague, ambiguous
and being in contravention to article 29 of the Constitution.
68
18. No person should be punished for disobeying a law that was uncertain. He
had to understand in clear terms the law he was required to obey. As drafted,
sections 33B(1) and (2) of the Act were open to different interpretations which
could lead to some offending CEOs suffering prejudice while others would go
scot free depending on the interpretation that different courts would make.
Therefore, section 33(B) (1) and (2) of the Act violated the Constitution in
so far as any person contravening the same risked facing criminal liability
without the benefit of understanding what s[he] was supposed to comply with.
The penalties for contravention of section 33 B (2) were fairly severe and
banks, financial institutions and their respective CEOs risked suffering severe
penalties for failure to comply with unclear laws.
19. From the wording of section 33B (2), the offender could either be the bank
or the customer. However, section 33B (3) provided a penalty for the bank
and the CEOs only. The customer had been left out. It was not clear why only
the bank and not the customer should be punished yet they would both be
contravening the provisions of the law. That anomaly was evident when one
compared the provision with the provisions of section 49 of the Act which
was the general penalty section. Section 49 covered all offenders and was not
discriminatory. Anyone who did not comply with should be subjected to the
same treatment in regards to penalty. By failing to do so, section 33B of the Act
was discriminatory and therefore unconstitutional.
20. Section 33B (3) being challenged provided for a minimum fine of Kenya
Shillings one million with a default penalty of a minimum imprisonment for a
year. It could not be said that the discretion of a judicial officer was completely
impaired or that mitigation was worthless because under the provisions of
section 33B the Court could impose a higher penalty than the minimum
prescribed. The Court had opportunity to consider mitigating factors and
impose an appropriate sentence as per the Sentencing Guidelines.
21. The only unconstitutional aspect of the penal section of section 33B was that
it discriminated against the banks and its CEOs. If eventually the Court was to
declare as invalid section 33B, there would be no lacuna in the law as section
49 of the Act provided for general penalties for offences under the Act.
22. A lesson to be drawn from the provisions of sections 4B, 4C and 4D of the
Central Bank Act was that an integral feature of formulating monetary policy;
it was a consultative process between CBK and the Executive (through the
Cabinet Secretary, Treasury). It was also a process in which the National
Assembly had an input when the monetary policy statements were placed
before its appropriate committee for deliberation. Although CBK had
the ultimate constitutional authority to formulate monetary policy, the
collaborative involvement of the other two organs was testimony of the
importance of matters of the nature and therefore the need to have the input
of not only the Executive but Parliament, the peoples’ representative. One
organ could not act in isolation.
23. Although the provisions of section 33B were of matters that could be outside
monetary policy, a framework that regulated interest rate charged by banks
and financial Institutions had far reaching consequences. For that reason, the
setting of an interest rate cap or any other regulations on interest rates could
be enriched by a consultative and/or collaborative framework that drew input
from stakeholders not in the least CBK. There was merit in the argument by
CBK that the fixing of interest rates caps and the entire regulatory framework
should not be arbitrary. But of course those were matters within the remit of
the National Assembly and the Court could only make observations.
24. The Court was aware that thousands of contracts had been entered by
borrowers and lenders on the basis of the impugned provisions of section
33B. Although the provisions generally had constitutional underpinning,
some aspects were unconstitutional. Therefore, the remedies granted would
take into account the possible disruption that invalidating everything done
under the unconstitutional aspects of the provisions could have on existing
contracts. The possible harm should not be disproportionate to the harm that
could result if the law was to be given a temporary respite.
25. The approach would be taken for the provisions that were found to be vague,
imprecise and ambiguous. Indeed, if the striking out of the provision was not
temporarily suspended, there was the risk of throwing the entire banking
industry in turmoil. The Circular no 4 of 2016 by CBK had brought some
measure of certainty amongst stakeholders. That had to subsist before a new
provision could be enacted.
69
Difference in Judicial
Reasoning
Enlargement of time for filing Judicial Review
Applications by Courts. By Linda Awuor & Kakai Toili
Introduction the court for the doing of any act prescribed
T
here were two schools of thought in or allowed by the Act, the court may, in its
approaching the question as to whether discretion, from time to time, enlarge such
a court can enlarge/extend the time for period, even though the period originally
filing judicial review proceedings. One theory fixed or granted may have expired. The Civil
stated that Order 53 of the Civil Procedure Procedure Rules, 2010 under Order 53 Rule
Rules, 2010 did not envisage enlargement 2 provides that leave shall not be granted
of time for judicial review proceedings and to apply for an order of certiorari to remove
that in such proceedings there was a special any judgment, order, decree, conviction or
procedure applicable and that apart from other proceeding for the purpose of its being
invoking Order 53, a party could not invoke quashed, unless the application for leave is
other provisions in the Civil Procedure made not later than six months after the date
Rules or the Civil Procedure Act. The second of the proceeding or such shorter period as
school of thought recognized that although may be prescribed by any Act.
the Law Reform Act did not allow for the Section 8 and 9 of the Law Reform Act deal
extension of time within which to seek leave with the orders of mandamus, prohibition,
to institute judicial review proceedings certiorari and rules of the court in that regard.
or to file judicial review applications, the Section 9 (2) provides that rules made section
new constitutional dispensation and the 9 (1) may prescribe that applications for an
enactment of the Fair Administrative order of mandamus, prohibition or certiorari
Actions Act introduced flexibility in the should, in specified proceedings, be made
application of the law to a particular case for within six months, or such shorter period as
purposes of achieving substantive justice. may be prescribed, after the act or omission
According to this school of thought the to which the application for leave elated.
strict interpretation of the Law Reform Act Section 9 (3) goes on to state that in the case
and Order 53 of the Civil Procedure Rules of an application for an order of certiorari
to exclude room for enlargement of time, to remove any judgment, order, decree,
would hamper the enforcement of the right conviction or other proceedings for the
to fair administrative action. purpose of its being quashed, leave shall not
Applicable law in judicial review be granted unless the application for leave is
applications made not later than six months after the date
The laws governing the enlargement of of that judgment, order, decree, conviction
time in filing of judicial review applications or other proceeding or such shorter period
include; the Constitution of Kenya, 2010, Fair as may be prescribed under any written law.
Administrative Action Act, 2015, the Law Case analysis
Reform Act, the Civil Procedure Act and Civil The issue of whether a court can extent the
Procedure Rules, 2010. The Constitution time for filing judicial review applications
under article 159 2(d) provides that justice has been addressed by several courts.
shall be administered without undue regard Republic v Kenya Revenue Authority Ex-
to procedural technicalities. Similarly, Parte Stanley Mombo Amuti [2018] eKLR,
section 10 of the Fair Administrative Action in allowing the extension of time, the Court
Act, provides that an application for judicial held that in an application for extension of
review should be heard and determined time as related to the filing of judicial review
without undue regard to procedural proceedings, the applicant was required to
technicalities. demonstrate that there were good reasons
Section 95 of the Civil Procedure Act for failing to file the application within the
provides for the enlargement of time, it states allowed period or to sufficiently account for
that where any period is fixed or granted by the delay. The Court went on to hold that
70
discretion conferred by statute had to be to delve into the merits of the substantive
exercised judiciously and not in an arbitrary motion.
and capricious manner. Discretion depended In Republic v The Kenya Medical Laboratory
on the various circumstances including the Technicians And Technologists Board Ex-
need to do real and substantial justice to the Parte Edna Mwende Kavindu [2017] eKLR
parties to the suit and that administration of the Court held that albeit the Court existing
justice without undue regard to technicalities to do justice to the parties, it was an umpire
was one of the principles of the Constitution. and unless its jurisdiction whether inherent
The Court finally held that ex parte applicant or otherwise was invoked, it did not exist to
in that case sufficiently explained the delay exercise unsolicited advisory jurisdiction.
in filing his judicial review application and The Court went on to state that it was upon
thus had established a sufficient cause for the the parties who approached the seat of justice
Court to grant the extension of time sought. to ensure that what they sought was available
In R v Public Procurement Administrative to them. The Court further held that the filing
Review Board Ex-parte Syner-Chemie of the substantive application for judicial
Limited (2016) eKLR the Court granted review outside the period granted by the
orders for the enlargement of time to file a Court went to the root and jurisdiction of the
substantive notice of motion for a judicial Court to entertain the said application. The
review application. In that case the Court Court also held that it was not a procedural
held that the provisions of section 95 of Civil technicality curable by application of article
Procedure Act, section 59 of Interpretation 159(2) of the Constitution and that where
and General Provisions Act as well as Order there was no specific application made to the
50 Rule 6 of the Civil Procedure Rules were Court for enlargement of the expired time,
clear that such application for leave could the Court would not even determine whether
be made even after expiry of the period the failure to file the application within the
of doing any act or taking the proceeding stipulated time granted in the order for leave
for which leave was granted. The Court is excusable or not. The Court finally held
further held that section 10(1) of the Fair that failure to comply with the timelines
Administrative Action Act, 2015 eschewed given by the Court rendered the substantive
undue regard to procedural technicalities in application as filed out of time inept.
judicial review applications. The Court also In Republic v Inspector General National
held that by virtue of the fact that judicial Police Service & 2 others Ex-Parte Linda
review was currently a constitutional tool Okello & 2 others [2016] eKLR, the Court
for the vindication of fundamental rights and held that it would only have jurisdiction to
freedoms, more specifically, the right to fair hear and determine the substantive judicial
administrative action, any conflict between review application which was filed within
the Law Reform Act in sections 8 and 9 and the timelines given by the Court. The Court
the Fair Administrative Action Act, 2015 further held that, the Court having granted
had to be resolved in favour of the latter Act. a shorter period than the 21 days provided
The Court therefore held that, in applying in Order 53 of the Civil Procedure Rules, it
sections 8 and 9 of the Law Reform Act, the was upon the applicant to file the substantive
said sections had to be interpreted with the motion within the timeframe granted by
alterations, adaptations, qualifications and the Court. The Court also held that failure
exceptions necessary to bring them into to comply with the timeframe rendered the
conformity with the Constitution. substantive motion as filed out of timelines
In Republic v Commission for University given by the Court inept. The Court finally
Education & another ex-parte Genco held that where there was no compliance
University [2017] eKLR, the ex parte with a court order, that failure could not be a
applicant in that case did not seek the technicality curable under article 159 of the
Courts’ indulgence to enlarge time for the Constitution.
filing of the substantive notice motion for Conclusion
judicial review despite acknowledging on From the foregoing judgments it is clear that
his first appearance after the filing that he courts are of contradictory opinions when it
had filed the same out of time. In declining comes to handling the issue of whether a court
to entertain the judicial review application can extent the time for filing judicial review
filed out of time, the Court held that the said applications. Therefore there is need for this
notice of motion was fatally incompetent issu to be settled so as to enable litigants in
and therefore the Court could not waste judicial review matters to be treated equally
very precious judicial time and resources when appearing before courts.
71
1. ALL Kenyan Moot Court Competition- 21st March- 23rd March

2019
Kenya Law partnered with Kenyatta University School of Law, Parklands Campus to
make the 7th All Moot Court competition a success under the theme ‘Business and Human
Rights: Attaining Sustainable Development while Respecting Human Rights. The main aim
of the competition is to
assemble law students
from across the country,
who undertake research
to find legal solutions
for contemporary legal
issues in Kenya.
Kenya Law offered
legal publications
for the participants.
Christian Ateka, Senior
Law Reporter and
Robai Nasike, Legal
Researcher both team
players at Kenya Law
were nominated to be
judges at the event.
Mr.Christian Ateka one of the judges from Kenya Law gives his views during the competition.
2. Benchmarking Session at Kenya Law 20th – 22nd February 2019

Members of the Uganda Legal
Information Institute (ULII)
were hosted by Kenya Law for a
Knowledge exchange visit whose
main objective was to share
insights into Kenya Law work
flow processes and systems and
technologies platforms.
(Above); Team players from Kenya Law and ULII follow

keenly during one of the sessions.
(Right); Uganda Legal Information Institute(ULII) and

Kenya Law members take a group photo after one of the
sessions.
72
3. International Women’s Day March 8, 2019
Kenya Law ladies during the International Women’s Day celebration on March 8, 2019.
4. Kenya Law Exhibits at the 6th Devolution Conference in Kirinyaga

County 4th -8th March 2019
The Marketing Department exhibited Kenya Law’s products and services at the 6th
Annual Devolution Conference that took place at the Kirinyaga University, Kirinyaga
County. The Devolution Conference creates a good forum for the organization to inter-
act with clients especially from different County Governments as Kenya Law continues
to collect and upload on its website Legislation from the County Assemblies.
Ms. Ivy Njoki of the Marketing Department interacts with visitors at the Kenya Law stand during the Devolution Conference
73
Bench Bulletin Issue 44, January - March 2019
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

BBIssue 44

Uploaded by

Copyright:

Available Formats

BBIssue 44

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

BBIssue 44

Uploaded by

Copyright:

Available Formats

Issue 44

January - March 2019

Supreme Court quashes Court of Appeal decision that had

EDITORIAL TEAM 1. Editors Note 1

Design and Layout 10. Role of Kenya Law in County

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

What they said

Per J B Ojwang, (dissenting)

Per Per D K Maraga, CJ & P, SCJ (dissenting)

Per I Lenaola, SCJ (dissenting)

Background It was averred that, a week later, unknown

the cross-petition had been inexact in a spiritual development while safeguarding

Jurisdiction-jurisdiction of the Supreme Court- Brief facts:

question on academic qualifications was resolution to the IEBC or Political

election dispute, regarding the aca- appellant’s academic certificates. There

Disparaging remarks made by an advocate, directed to a court, through

Advocates-professional misconduct-obligations Supreme Court Act, 2011 (Act No. 7 of 2011)

be attended with offensive melodrama, had the liberty and empowerment to

“Africans must change their mind and actions. The keys to

Taxation Law-income tax-withholding tax- After conducting an audit of the respondent’s

Accounting officers of public entities are responsible for ensuring that

Procurement Law-public procurement- entity-whether an accounting officer of a public

(the bank). Following an advertisement determining the proper exercise of

structured way, a public entity shall to make decisions on behalf of the

Statutes- interpretation of statutes-interpretation (consolidated with Petition No 119 of 2018)–

for the President to formally appoint the constitutional test of justification as

the administration of justice. for a member elected or appointed to

against the State. constitutional or legal process.

elected Commissioner of Judicial iv. An order of mandamus was issued

Factors a court considers in exercising its discretion to grant an absolute

Constitutional Law-fundamental rights limitation of court’s discretion-whether the

Section 35 (1) stages of the trial to understand the case

to determine which could be adjusted accordance with the law. If an arrested

Section 9(1)(e) of the Victim Protection Act, which requires accused

Held: should not argue an appeal under the

extended to encompass the right to be an accused would in advance inform

Publication of an individual’s photograph without his or her consent

Criminal proceedings can be instituted against an employee of a public

and undertaking criminal proceedings, Act and section 23 of the Anti-

of the DPP or other statutory bodies the Constitution.

opposed to proof of a likelihood of confusion or commercial advantage from the good

for challenging the constitutionality interpreting the Constitution, to be

Feedback For Caseback Service

Thank you for this feedback!

Hon. Justice Jacqueline Received with thanks Caseback.

Hon. MM Wachira – SRM Well received. This is good practice much

Hon. C Yalwala - DR Thank you for the feedback.

ACT SACCO SOCIETIES (AMENDMENT) ACT, 2018

ACT NATIONAL YOUTH SERVICE ACT, 2018

ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2018

Act No. No. 18 of 2018

This is an Act to make various amendments to the following statutes:

ACT BUILDING SURVEYORS ACT, 2018

B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEM- INSTITUTE OF DIRECTORS OF KENYA BILL, 2019

SENATE BILL COUNTY HALL OF FAME BILL, 2018

Dated 29th November, 2018