Issue 46

July - September 2019

Court rules that there is need for the formulation of

regulations to limit the exercise of the right to freedom of
assembly, demonstration and picketing provided under
article 37 of the Constitution

Legal safeguards applicable to the suspension of a magistrate from duty for disciplinary purposes Pg 29

The term gross salary used in the Employment Act, 2007 as the remedy of compensation for unfair
termination includes basic salary and any other allowances Pg 17
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 CONTENTS

The remedies listed under section 49 of the Public officers who have been suspended
Employment Act are available at the discretion of over charges of corruption/economic
the Court in all situations of unfair or wrongful crimes are not allowed to hold public
termination. Pg 12 office. Pg 27

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 12
Editorial Assistant
| Linda Awuor | 6. Caseback 43
Contributors 7. Legislative Updates 44
| Njeri Githan’ga | Andrew Halonyere |Wambui Kamau | 8. Legal Supplements 53
| Nelson Tunoi | Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
| John Ribia | Eunice Chelimo | Faith Wanjiku |
9. International Jurisprudence 61
| Kevin Kakai | Christine Thiong’o |
| Patricia Nasumba |Musa Okumu| Lisper Njeru | 10. Law Reform Compilation 84
Design and Layout 11. Pictorial 91
|Catherine Moni | Josephine Mutie | Cicilian Mburunga |

| Robert Basweti |

Proofreaders
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
Humphrey Khamala |

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 Mwenda Njoka
Judge of the Court of Appeal of Kenya Government Printer (Ag), Government Press
(Represented by Ms Eva Kimeiywo, Principal
The Hon Justice Anthony Ndung’u Printer)
Judge of the High Court of Kenya
Ms Janet Kimeu
The Hon. Justice (Rtd) P. Kariuki
Advocate, Law Society of Kenya
Attorney General
Alt - Ms Linda Murila, Chief State Counsel
Mr Michael Muchemi
Prof Kiarie Mwaura Advocate, Law Society of Kenya
Dean, School of Law, University of Nairobi
Mr Long’et Terer
Ms Jennifer Gitiri
Editor/CEO
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
Amb Ukur Yatani Kanacho
Cabinet Secretary (Ag), National Treasury Ms Caroline Kigen
(Represented by Mr Jona Wala, Financial Expert, The Judiciary
Director, Accounting Services)

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 BB Issue 46, July - September 2019

Editor’s Note
Long’et Terer
CEO/Editor

2
9th August 2019 saw the dawn of a new day as Kenya Law launched its strategic
plan 2018-2022. Over the years, Kenya Law’s mandate has grown to establish
it from being merely a publisher of the Kenya Law Reports to being the focal
point institution in the collection, management and dissemination of all
species of public legal information. As a leading legal resource frontier, Kenya Law
will strive to guarantee accessibility to legal information to Kenyans of all walks of
life by making it available in various forms and through varied media. In the next
five years, Kenya Law vows to go over and above what it has achieved and play an
even greater role in providing access to public legal information and to undertake a
facilitative role in the country’s development agenda.

Through this Plan, Kenya Law seeks to address identified challenges in accessing
legal information, while at the same time putting in place measures to guarantee
accessibility to the information to Kenyans of all walks of life by making it available
in various forms and through various media. Kenya Law will therefore strive to
make significant contribution to national development.

It is our hope that the implementation of the activities set out in the Strategic Plan
will place Kenya Law in a sound position to realize its objectives and consolidate its
position as the foremost law reporting institution in Africa and beyond.

On behalf of the Kenya Law’s Council and staff, i would like to pledge our utmost
commitment to ensuring that this plan is fully implemented. In return, we ask for
your support and constructive engagement so that we can ensure that the Kenyan
citizen is empowered by being well informed about laws and regulations that affect
them.

Long’et Terer
Editor/CEO

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 BB Issue 46, July - September 2019

CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya

Key Note Address by the Hon. Justice D. K Maraga, EGH at the

Official Launch of the Kenya Law Strategic Plan 2018-2022
29th August 2019

I
t gives me great pleasure to launch the Kenya Law Strategic Plan 2018 – 2022. Today we
are celebrating not only our accomplishments in the last five (5) years and their impact
in promoting access to public legal information, but also our aspirations for the next five
(5) years. Indeed, the past five years have seen significant changes to Kenya’s governance and
legal frameworks which have completely transformed the obligations of public institutions
to the citizens particularly with regard to the right of access to information.
As we reflect on the past strategic periods, I would like us to briefly recall where we have
come from – from the first law reports that were published in 1897 for the east African
protectorate; to the revival of the Kenya Law Reports series in 1976; to the enactment of
the National Council for Law Reporting Act in 1994; and most importantly for all of us
here, to the actual establishment of this organization in the year 2001.
Kenya Law provides its distinctive services to the public as the official law reporter in
Kenya. It is the vision of the organization to fastidiously provide the platform on which
to unfailingly deliver accessible public legal information to the public so as to enlighten
the society. Our sense of obligation is captured in our slogan “Where Legal Information
is Public Knowledge”. We have come to an enlightened understanding of our mandate
and make a commitment to not merely be a provider of public legal information but the
people’s fountain of knowledge and understanding of the law for the promotion of the rule
of law and the advancement of a civilized society.
I would like to point out two (2) critical aspects that in my view stand out in the delivery
of this Strategy that will be launched today. First, is Kenya Law’s role to the citizenry who
are the main consumers of our products in accelerating access to justice. In arriving at the
strategic focus, the management with the guidance of the Council, considered its role from
a citizen-centric approach anchored in Kenya Law’s ethos and core values of integrity,
professionalism, transparency, accountability, innovation and creativity. In particular,
Kenya Law considered itself duty-bound to support the realization of the National Values
and Principles (Art 10) and the right of access to information guaranteed to the citizenry
(Art 35). These constitutional considerations are what you will find in this Strategic Plan
that will be unveiled to you today.
Secondly, is the emphasis placed on invigorating the use of appropriate ICT technologies
to improve our efficiency and productivity to enable Kenya Law achieve competitive
advantage not only in the region but globally. For this, we have planned the development
of ICT systems for legal publishing that will witness a robust, efficient and real time reach
to our consumers for the case law database and the Laws of Kenya. This is more so with the
current rapid changes in technology, the emergence of newer media but most importantly
the feedback we have received during customer satisfaction surveys and daily interactions
with our stakeholders.

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 BB Issue 46, July - September 2019

This Strategic Plan guarantees accessibility of legal information to the public. This plan
is therefore an embodiment of our collective promise to our stakeholders on the service
delivery standards that they should expect from Kenya Law. We commit in this Strategic
Plan (2018-2022), to continuously improve our systems for generating and disseminating
public legal information; review and develop appropriate policies, guidelines and legislation
for achieving our mandates; enhance the capacity of Kenya Law, prudently manage human,
infrastructural and ICT resources; and create an institutional brand that enhances the
visibility of Kenya Law’s products and services.
It was interesting engaging with the stakeholder feedback of what they expected of Kenya
Law. The feedback reaffirmed that Kenya Law’s mandate is more than ever relevant today
with the growth of jurisprudence and changing legislative terrain. This Strategy for instance
expands to report on County legislation courtesy of devolution. It has also emerged that
the public expect case law (Judicial decisions) to be processed and disseminated in a more
user-friendly way that takes account of the specialized areas of legal practice, including,
decisions from tribunals and other judicial bodies. Kenya Law is up to the task and we are
committed to ensuring that public legal information is freely accessible.
As we make these commitments, we cannot do this on our own. We will require your
support to meet our obligations. From judicial officers who are required to transmit their
judicial decisions in a timely manner to legislative bodies who are expected to produce and
share legislation to other public sector agencies who should grant Kenya Law access to
public legal information. All of these will lead to better knowledge of the law; predictability
of the law and therefore better access to justice by all Kenyans.
We must remember that this country has reported on judicial decisions for 120 years,
and that we need to ensure that we carry this mantel forward for the next 500 years and
beyond. Today this responsibility falls on you and me and we must selfishly guard it. That
is the heavy task that we have.
Our challenge (and we have the usual challenges that beset public sector agencies, but let me
mention just one) remains in ensuring that we have the right staff compliment (numbers
and professional competencies) to ensure that Kenya Law properly discharges its mandate.
Even though, we have limited human resource capacity vis-à-vis the increasing public legal
information that is being generated by the judiciary, legislatures and other public bodies,
we are committed to meeting our mandate and creating a single, reliable repository of all
of Kenya’s legal information.
The promises we are making in this Strategic Plan are indeed heavy commitments which
will require resources both financial and non-financial. This is therefore a clarion call to
the government and all development partners to assist us to reach these levels.
To the staff led by the Editor, I would like to thank you for your commitment in the
achievement of Kenya Law’s mandate. I want to assure you today of our full support even
as you discharge this heavy mandate. We know that we have various areas where we need
to improve so that we can have an optimum output from our organization. The Council
is aware of all of these issues and we are taking steps to ensure an increase in budgetary
allocation; enhanced numbers within the workforce; improved work tools, just to mention
a few.
To the Council members, I sincerely thank you all for being steadfast in guiding and
nurturing Kenya Law into the success story it is today.
Thank you.

Hon. David K. Maraga, EGH,

Chief Justice and President of the Supreme Court of Kenya

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 BB Issue 46, July - September 2019

What they said

Supreme Court Judges - D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Ndung’u & I Lenaola, SCJJ in Martha
Wangari Karua v Independent Electoral and Boundaries Commission and 3 others - Petition 3 of 2019

a) “All Applications by a Respondent in an election petition, save in exceptional

circumstances, should form part of the response to the Petition. Similarly, a
Petitioner should as much as possible file any application arising from his Petition
e.g. for scrutiny or recount at the same time as the Petition.
b) Unless for want of jurisdiction or in any other deserving circumstance, a trial
Court should exercise restraint in striking out a Petition or a response, where such
an action is likely to summarily dispose of the matter.
c) All applications for striking out an election petition for want of jurisdiction, or
for any other reason, must be made and determined within the constitutional and
statutory timelines for the resolution of electoral disputes. In this regard, it is for
the trial Court, to make and enforce such case management orders, so as to meet
this objective.
d) Appeals on interlocutory applications, other than for striking out in circumstances
explained in (b) and (c) above, should await the final determination of the whole
petition before the trial Court.
e) In exceptional circumstances, an appellate Court may dispose of an appeal arising
from an interlocutory application filed and determined by the trial Court while the
substantive matter is still ongoing at the trial Court. In doing so, the timeframe
question as explained above must always be borne in mind.”

Court of Appeal Judges – P N Waki, D K Musiga & P O Kiage JJA in Postal Corporation of Kenya v Andrew K
Tanui - Civil Appeal 127 of 2015

“
Gross salary would then be the amount calculated by adding up one’s basic salary
and allowances, before deduction of taxes and other deductions. Each case must
be examined to identify the nature of the allowances given and whether they form
part of the gross salary.”

Court of Appeal Judges – P N Waki, S Gatembu Kairu & J Otieno Odek, JJA in Kenya National Examinations
Council v Republic & 2 others - Civil Appeal 355 of 2014

“
There is, of course, need for government, and Parliament in particular to address
in a holistic manner the interests of minorities such as transgender persons. Other
jurisdictions have taken that approach. There is for instance the Gender Recognition
Act in UK that deals with gender reassignment.It cannot be the case that until there
is a policy and legislative framework in place, persons like A are without recourse to
secure their dignity guaranteed under the Constitution.”

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 BB Issue 46, July - September 2019

High Court Judge – M Ngugi, J in Moses Kasaine Lenolkulal v Director of Public Prosecutions - Criminal Revision
25 of 2019

“
The Governor of a County, to whom article 10 and Chapter Six apply is charged with
the offence of abuse of office. He is charged with basically enriching himself at the
expense of the people of Samburu County who elected him and whom he is expected
to serve. Would it serve the public interest for him to go back to office and preside
over the finances of the County that he has been charged with embezzling from? What
message does it send to the citizen if their leaders are charged with serious corruption
offences, and are in office the following day, overseeing the affairs of the institution?
How effective will prosecution of such state officers be, when their subordinates, who are
likely to be witnesses, are under the direct control of the indicted officer? It seems to me
that the provisions of section 62(6), apart from obfuscating, indeed helping to obliterate
the ‘political hygiene’… are contrary to the constitutional requirements of integrity
in governance, are against the national values and principles of governance and the
principles of leadership and integrity in Chapter Six, and undermine the prosecution of
officers in the position of the applicant in this case. In so doing, they entrench corruption
and impunity in the land.”

High Court Judge - E K Ogola, J in Juma Nyamawi Ndungo & 4 others v Attorney General; Mombasa Law Society
(Interested Party) - Constitutional Petition 196 of 2018

“
The Victims Protection Act 14/2017 makes provision for the welfare of Victims. But
that is where it stops. The connecting threads between its provisions, those of the
children Act and the Criminal Justice System have not been clearly set out. Hence the
glaring that Upon the arrest of the perpetrator, the thinking of the Criminal Justice
System is linear- single sight vision dealing with the perpetrator. There is need for a
meeting point to ensure that these laws work hand in hand- a meeting point needs to be
found to ensure that even as we deal with the criminal matter we are also dealing with
the welfare of the victims – there should be no disjoint of efforts.”

High Court Judges – A O Muchelule, M Ngugi, G V Odunga, L A Achode & J M Mativo, JJ in Federation of Women
Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6
others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) - Petition 266 of 2015

“
It is therefore an indictment of the criminal justice system to condemn the victim
of a crime to carry a pregnancy resulting from the offence to term, even when it
poses a challenge to her health and wellbeing, yet there is no other known criminal
offence in Kenya where victims of the offences are compelled to bear the burden
of the consequences of the crime they have suffered. While not advocating for blanket
abortion in all instances of pregnancies resulting from rape, defilement and incest, the 6th
interested party explained that it seeks to secure the protection of the right of women and
girls to make a choice whether or not to keep such a pregnancy, without fear, coercion
or discrimination.”

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 BB Issue 46, July - September 2019

Feature Case
There is need for the formulation of regulations to limit the exercise of
the right to freedom of assembly, demonstration and picketing provided
under article 37 of the Constitution
Ngunjiri Wambugu v Inspector General of Police, & 2 others [2019] KLR-HCK
Petition 269 of 2016
High Court at Nairobi
J A Makau, J
July 29, 2019
Reported by Long’et Terer
The petition was triggered by numerous mass a case for denial, infringement, violation
demonstrations that had been conducted in or threat of the rights or fundamental
the month of April 2016 within the capital freedom in the Constitution, in particular;
city, Nairobi and across the country. The a. the right to have human dignity
petitioner gave a detailed narration of respected and protected provided
the nature of violation of the rights and under article 28;
freedoms that took place during the public b. freedom and security of the person
demonstration, organized by the Coalition protected under article 29;
for Reforms and Democracy (CORD). c. freedom of movement and residence
under article 39; and,
The petitioner further averred that the d. protection of the right to property
country had experienced loss of lives, under article 40.
injuries and destruction of property during
ii. What was the role and nature of judicial
protests and demonstrations. He stated that
notice?
the demonstrators engaged in unlawful
activities including lootings and massive iii. Whether, in absence of any replying
destruction of property. affidavit or grounds of opposition by the
respondents, the Court could take judicial
The petitioner asked the Court to declare, inter notice of petitioner’s averments as proof
alia, that the fundamental right, under article of alleged violation of constitutional
37 of the Constitution of Kenya, to assemble, rights.
demonstrate, picket, and present petitions
to public authorities was conditional on the iv. Whether the petitioner’s allegations of
protestors or demonstrators conducting the infringement or threatened violation
themselves peaceably and unarmed. Further, of the petitioner’s constitutional rights
the petitioner asked the Court to issue orders under articles 28, 29, 39 and 40 of the
directing the respondent to formulate and/ Constitution were related to the failure
or amend the requisite law and regulations to regulate the exercise of freedom of
assembly, demonstration, picketing
to ensure that demonstrations were peaceful
and presentation of petitions to public
and held as per the Constitution.
authorities.
Issues for determination
v. Whether the petitioner was justified in
In determining the petition, the Court framed seeking limitations to the exercise of
the following as the issues for determination freedom of assembly, demonstration,
in the petition: picketing and petition.

i. Whether the petitioner had established vi. What was the impact of article 24 of the

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 BB Issue 46, July - September 2019

Constitution on limitation of rights and petitioner had expressed an apprehension,

fundamental freedoms? based on the fact that CORD demonstrators
set a precedent, that in future exercise of the
vii. Whether the Public Order Act provided
freedom of assembly, there would still be no
a sufficient limitation to the right to
regard for the rights of non-demonstrators
demonstrate, picket and present petitions
and that their rights to equal protection of
to public authorities provided under
article 37 of the Constitution. the law would be violated. That apprehension
of the petitioner for future violations of
viii. Whether there was need for the those rights was reasonably justified. The
formulation of regulations that would act petitioner was also justified in seeking the
as a limitation to the right to freedom of reliefs he sought.
assembly, demonstration and picketing
under article 37 of the Constitution. The Court noted that the right to assemble,
demonstrates, picket, and present petitions
ix. Whether the court had the power to grant to public authorities peaceably and unarmed
the orders sought in the petition. under article 37 of the Constitution was
The Court held that articles 22 and 258(1) regulated by the Public Order Act (the Act).
of the Constitution similarly provided Section 5 required public meetings to be held
that every person had the right to institute in accordance with the Act. Section 5 further
court proceedings claiming that a right or elaborated that due notice in prescribed
fundamental freedom in the bill of rights had form ought to be given to a regulating officer
been denied, violated or infringed or was by the organizer. Regulating officer was
threatened. The petitioner was exercising his defined under section 2 of the Act as a police
constitutional rights on his own behalf and officer in charge of a police station in an
in public interest. The petitioner had clearly area where a public meeting was proposed
outlined the rights and freedoms in issue; to be held. The organizer was required at all
the right to human dignity, freedom and times to be present and assist the police on
security of person, freedom of movement maintenance of law and order. Section 6 of
and residence, right to own and acquire the Public Order Act clearly provided that
property, under articles 28, 29, 39 and 40 of no one in the public process should have an
the Constitution of Kenya respectively. offensive weapon except a duly authorized
police officer.
The Court noted that as the respondent had
not filed any replying affidavit or any grounds The Court further held that section 22 of
of opposition to controvert the petitioner’s the Public Order Act empowered the 2nd
averment, judicial notice was taken of the respondent to make regulations prescribing
petitioner’s averments as sufficient proof that anything which might be prescribed under
there were violations of the rights averred the Act, and generally to give effect to
in the petitioner’s affidavit. Judicial notice the provisions of the Act. Despite that
was a court’s acceptance, for purposes of empowerment, the 2nd respondent failed
convenience and without requiring a party’s to develop any meaningful regulations
proof, of a well-known and indisputable to give full effect to the provisions of the
fact. It was means by which the court might Public Order Act, which would otherwise
take as proven certain facts without hearing have protected or prevented violation of
evidence. Notorious facts might be judicially non-demonstrators’ rights and also hold the
noticed without inquiry. Section 60 of the organizers accountable or make them more
Evidence Act mandated the court to take responsible for any destruction of property
judicial notice of all matters of general or or violence.
local notoriety (things that everyone knew). The Court held that rights could only be
According to the Court, one needed not enjoyed to the extent that they did not
wait for a violation of freedoms or rights interfere with other people’s rights as
to be breached to pursue an action under a constitutional rights and freedoms of the
constitutional petition. Threatening a right individual were subject to limitations.
or freedom was sufficient for one to pursue They were not absolute. Those rights
an action in a constitutional petition. The were designed to ensure that they did not

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 BB Issue 46, July - September 2019

prejudice the rights and freedom of others or the list of rights entrench under article 25
public interest as all parties’ rights should be of the Constitution was stretched far. The
treated equally and given equal protection. freedom of assembly could not be limited
Accordingly, there should be an element of merely by looking at article 25 of the
deterrence that would guide demonstrations Constitution. Article 19 of the Constitution
and demonstrators to maintain peace, law was clear that the bill of rights was an integral
and order. There was likelihood that in part of Kenya’s democratic state and was the
absence of further regulation on the exercise framework of social, economic and cultural
of the freedom, demonstrators would most policies. The purpose of recognizing and
likely not maintain peace, law and order. The protecting human rights and fundamental
petitioner had successfully demonstrated freedoms was to preserve the dignity of
a direct linkage between the violations of individual and communities and to promote
rights under articles 27, 28, 29, 39 and 40 social justice and the realization of the
and the exercise of freedom of assembly potential of all human beings. Rights and
under article 37 of the Constitution. fundamental freedoms in the bill of rights
belonged to each individual. They were not
The Court found that limitation of granted by the state, and did not exclude
constitutional rights might exist within other rights and fundamental freedoms
the Constitution or outside. An internal not in the bill of rights, but recognized or
limitation was embodied in the constitutional conferred by law, except to the extent that
definition of the right. Under article 37 of the they were inconsistent with chapter four of
Constitution, the definition of the freedom the Constitution. Those rights were subject
of assembly included such a limitation that only to limitations contemplated in the
the same ought to be done peacefully and Constitution.
unarmed. External limitations were anchored
in legislation aimed at public policy, national The Court held that article 37 of the
security, public order and protection of Constitution, which provided that every
others. To that regard, the Public Order Act person had the right, peacefully and unarmed,
and Penal Code, with provisions related to assemble, demonstrate, picket and present
to unlawful assembly, were the relevant petitions to pubic authority, had an internal
external limitations. limitation. The rights and freedoms in the
bill of rights could be limited in the interest
The Court further found that article 20(2) of of national security, the safety, health, ethics
the Constitution provided that every person and rights and freedom of others as provided
should enjoy the rights and fundamental under article 24 of the Constitution as read
freedoms in the bill of rights to the greatest with article 21 of the International Covenant
extent consistent with the nature of the on Civil and Political Rights (ICCPR) and
right or fundamental freedom. That article 10 of the Banjul Charter.
generally meant that limitations were the
exception as the constitutional concern was The Court also held that article 24 of the
a situation where there was enjoyment of the Constitution created a proportionality test
rights and freedoms to the greatest extent, that called upon the court, in determining
though the Constitution contemplated that whether a limitation was justified, to strike
indeed there might be some limitations a balance between an individual’s right and
in certain circumstances. Article 19(3) of the community interest. In so doing, a court
the Constitution provided that the rights was required to determine the purpose and
and fundamental freedoms in the bill of importance of the limitation; the relationship
rights were subject only to the limitations between the limitation and its purpose; and,
contemplated in the Constitution. That whether there were less restrictive means to
brought about the idea that some of the rights achieve the purpose intended.
under the Constitution might be limited
even though they were inherent to all. The Court found that subjected to the
proportionality test, the instant proposed
According to the Court, the petitioner’s limitations were justified because they
contention that the freedom of assembly were keen on ensuring that the right of
could be limited because it did not fall under other persons especially under article 27,

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 BB Issue 46, July - September 2019

28, 39 and 40 of the Constitution were not good to protect the public interest to wit the
breached or infringed on during the exercise enjoyment of rights under articles 27, 28, 39
of freedom of assembly under article 37. If and 40 of the Constitution. The proposals
implemented, the limitation would help the satisfied the proportionality test under
state in achieving objectives of article 20 and article 24 of the Constitution.
21 of the Constitution in ensuring that the
rights were respected, protected, promoted, The Court noted that the right to assemble
and fulfilled. The limitations were important and demonstrate was a constitutional
to prevent the infringement or breach of right that was recognized nationally and
rights of other persons. Granting the orders under international and regional human
sought in the instant petition would prevent rights law. That right belonged to each
loss of lives, destruction of property, general individual. The government, under article
public disorder and all other negative effects, 21(1) of the Constitution, was obligated
given that freedom of assembly and equality to respect, promote and protect the rights
introduced a form of accountability in the of the individuals to assemble peacefully
event that the negative effects occurred. and associate, among other rights. Protests
played an important part in the civil, political,
The Court held that limitation was also meant economic, social and cultural life of all
to deal with the challenges of administratively societies. Protests encouraged development
policing demonstrations and not to deny the of an engaged and informed citizenry.
right to assembly as provided under article
37 of the Constitution. For example, under The Court held that it was of paramount
the Public Order Act, an organizer was importance that in exercise of the right to
expected to notify the police whenever such demonstration, picketing, and assembly not
demonstration was required. The regulation to interfere with the rights of other citizens.
could specify the full organizer’s details It was no longer a secret that demonstration,
which should be captured to ensure that picketing, assembly had escalated from
in the event of loss of lives and destruction peaceful and unarmed gathering to a
of property, then they were liable. The violent, unruly and unlawful gathering
notifications, as they were, did not take into which ended up clouding the real agenda for
account the full details of the organizers. demonstration and in which every member
of the gathering took the law into their own
The Court further held that section 13 of hands. Lives were usually lost and property
the Public Order Act contemplated solutions damaged or looted. That was a justified case
in which persons affected by misconduct of to have regulations in force to limit the right
inhabitants in an area declared, in a Gazette to picket, demonstrate and present petitions
notice in accordance with section 106 of to public authorities. It would be antithesis
the National Police Service Act, to be in of constitutional values and principles if
a disturbed or dangerous state might be picketers and demonstrators were allowed to
compensated for losses of lives or damage participate in non-peaceful demonstrations
to property. It was clear that the section was or picketing whilst armed to the teeth with
only applicable where the relevant minister implements set to agitate and stimulate
had made a declaration under section 106 of anguish against non-demonstrators or
the National Police Service Act. Section 106 against anyone they came across as well
of the National Police Service Act needed as destroying properties at will. It was
to be expanded to cover all demonstrations therefore no surprise when the Constitution
especially where there was loss of lives itself limited the right to assemble, to
and property. It would go a long way to demonstrate, to picket and present petitions
compensate for loss of lives and property, to public authorities.
and would be a form of realization of right
to own property. It would also result in According to the Court, the demonstrators,
restraint exercise of freedom of assembly picketers and petition-presenters were
without affecting the right to peaceful, constitutionally obligated to enjoy their right
unarmed assembly and its expression. The peacefully and unarmed. The Constitution
proposals made in the instant petition were had spoken loudly and clearly that assemblies,
not ill intended but sought to serve a greater picketing and demonstrations which were

9
 BB Issue 46, July - September 2019

not peaceful and demonstrators who were experience by developing regulations, which
armed were excluded from the protection would enable the maintenance of law and
of article 37. If they consisted of violence or order in the country during demonstrations,
intimidation of the public, then the assembly picketing or presentation of petitions to
or demonstration ought to be stopped. public authorities.
Weapons as well as defensive or protective
contraptions which bred or stimulate The Court further held that section 22 of the
aggression ought not to be in possession of Public Order Act empowered the relevant
the demonstrators or picketers. minister to make regulations prescribing
anything that might be prescribed under
Further the Court found that even though the Act and generally to give effect to the
the limitations were necessary, they ought provisions of the Act. Formulation of
to meet the threshold outlined in article 24 regulations that would limit the right to
of the Constitution. The purpose of article picket, demonstrate and present petitions
24 was to enable rights to be prudently under article 37 of the Constitution was
limited to the extent necessary to protect the of utmost importance. It would help in
public good and the rights of others without resolving the dilemma that had failed the
undermining essential human rights or other country in managing, controlling and
civil liberties that provided the foundation containing the violent demonstration that
of a free society. The rights under article threatened the peace of the country at times
37 of the Constitution could be protected of demonstration, picketing or presenting
by ensuring it did not limit or infringe petitions to public authorities.
individual rights or other rights through
legislation as provided for in article 24. The Court finally noted that the petitioner
asked the Court to order legislation to be
The Court also noted that the Public Order enacted to give effect to the bill of rights as far
Act did not limit the right to demonstrate, as the limitation on the freedom of assembly
picket or assemble under article 37 of the was concerned. The Court could issue any
Constitution. Its purpose was to seek to appropriate remedy as prayed or on its own
preserve and protect the right to public terms. The Constitution offered alternatives
assembly, public protest marches or to granting the orders sought. The fact that
procession by regulating the same with a view parliament or executive held or had power
to ensure maintenance of law and order. Part to deal with certain issues did not mean that
III of the Public Order Act sought to regulate the court’s hands were tied and had to sit
public meetings and procession by providing back and do nothing. The Court could issue
for the need to notify the police service and appropriate and just orders. Accordingly, the
also the power of police service to prevent instant Court had jurisdiction and power
a public meeting where appropriate and to grant the orders sought, and any other
where it was obvious it would not meet the appropriate remedies that it might find fit
constitutional objections. The Act prohibited and just to issue.
the possession of offensive weapon at public
meetings, and processions. As such, there was Petition allowed; each party was to bear its own
no law that limited the right under article 37 costs.
of the Constitution. Orders:-
The Court found that other jurisdictions i A declaration issued that the fundamental
including South Africa and Australia right under article 37 of the Constitution
had formulated the regulations on to assemble, demonstrate, picket and
demonstrations. South Africa had enacted present petitions to public authorities
Regulation of Gathering Act that gave was conditional on the protestors or
effect to a constitutional right to assemble, demonstrators conducting themselves
demonstrate, picket and present petitions peaceably and unarmed; and that police
peacefully and unarmed. Similarly, Australia officers working under the 1st respondent
had Trade Practices Act which limited the were duty bound to immediately stop
right to picket. Kenya could rightly borrow protestors or demonstrators if they
a leaf from South African and Australian were armed with any form of weapons

10
 BB Issue 46, July - September 2019

including stones or any offensive weapon demonstration zones with appropriate

of whatever nature. penalties when they go outside the
expectations of the law.
ii A declaration issued that the petitioner
and non-demonstrators/third parties iv An order issued directing the respondents
enjoyed equal rights and freedoms to formulate a code of conduct for
during demonstrations since their rights convenors of demonstrations that
and fundamental freedoms were not included detailed explanations of how they
suspended during such times. intended to ensure non-demonstrators
were not adversely affected by such
iii An order issued directing the respondents demonstrations and that provided a clear
to formulate and/or amend the requisite line of responsibility of who was liable
law and regulations to ensure that in case of loss to life or property, or for
demonstrations were peaceful and held injury when a member of the public was
as per the Constitution including, inter aggrieved due to such demonstration.
alia, prescriptions for demarcation of
demonstration zones, responsibilities
for clean-up costs, maximum numbers,
consents of persons/entities adjacent to

What counts in life is not the mere fact that we have

lived. It is what difference we have made to the lives
of others that will determine the significance of the
life we lead. – Nelson Mandela

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11
 BB Issue 46, July - September 2019

Supreme Court
The remedies listed under section 49 of the Employment Act are available
at the discretion of the Court in all situations of unfair or wrongful
termination.
Kenfreight (EA) Limited v Benson K Nguti [2019] KLR-SCK
Petition 37 of 2018
Supreme Court of Kenya
P M Mwilu, DCJ & DP, M K Ibrahim, S C Wanjala, N Ndungu & I Lenaola, SCJJ
July 23, 2019
Reported by Beryl Ikamari

Employment Law-termination of an existed independently of the statutory right

employment contract-termination in accordance of termination under which valid reasons
with contractual terms as compared to statutory had to be given for the termination and an
termination-termination via payment in lieu employee had to be given a hearing with
of notice-remedies for wrongful termination- strict adherence to procedural requirements
whether the remedies listed under section 49 of being necessary. The appellant said that
the Employment Act would apply to a claimant there were reasons for the termination
whose employment contract was terminated by which could have allowed for the invocation
the making of payment in lieu of notice as per of the statutory procedure but it elected
the terms of the contract-Employment Act 2007, to terminate the respondent by making
sections 35, 36 & 49. payment in lieu of notice. The Court of
Appeal dismissed the appeal and made the
Brief facts finding that the termination was unfair in
The respondent’s employment contract was spite of the payment made in lieu of notice.
terminated by the appellant with effect from At the Supreme Court, the appellant filed an
December 1, 2010. The respondent filed appeal based on various grounds. It asserted
Cause No 146 of 2013 in which he contended that even if the termination was unfair,
that his termination, which had the purpose under section 46 of the Employment Act the
of replacing him with a Belgian national, maximum damages that could be awarded
was wrongful. He stated that there were no were equivalent to pay for the notice
justifiable reasons for his termination and period and that section 43(a) and 47(5) of
that he was not afforded a hearing before the Employment Act were inapplicable for
being terminated. He added that the terminal a termination effected in accordance with
dues he was paid were grossly below what mutually agreed contractual terms.
was payable under the existing practice in the
appellant company. He sought court orders, Issue
inter alia, to declare his termination unlawful
and to reinstate him. The trial court declared Whether the remedies listed under section
the termination unlawful and awarded a total 49 of the Employment Act would apply to an
of Kshs. 8,116,344/= with costs and interest employee who was terminated via the making
as compensation. of payment in lieu of notice in accordance
with the terms of an employment contract.
The appellant lodged an appeal at the Court
of Appeal. It asserted that the trial court Held
made an erroneous finding to the effect that 1. One of the ways in which an employment
the termination was unlawful. It explained contract could be terminated was the
that the respondent was terminated in issuance of notice under section 35 of
exercise of the appellant’s contract right to the Employment Act. There was a right
give one month’s notice of termination. It under section 35 as read with section 46
urged that the right to terminate the contract of the Employment Act for an employee

12
 BB Issue 46, July - September 2019

terminated via notice to dispute the respondent was only entitled to an award
lawfulness of the termination. Further, of one month’s salary, the equivalent of
under section 36 of the Employment Act, the notice period as per the employment
either party to an employment contract contract, as compensation. However,
to which section 35(5) applied could that finding did not mean that the remedy
terminate the contract without issuing available for summary dismissal was
notice while paying remuneration which limited to one month’s salary. That was
would have been paid during the notice how the Court exercised its discretion in
period. that instance.
2. Section 49 of the Employment Act 5. The decision as to what would constitute
provided for remedies for unfair an appropriate remedy was at the
termination of an employment contract. discretion of the Court. Section 49
When giving an award, the Court had of the Employment Act listed several
discretion to determine what was fair remedies that could be granted for
under the circumstances. However, the unfair termination and it was up to the
Court’s discretion was to be based on Court to decide on whether to grant any
the set parameters including the limiting or all of the remedies. It did not matter
of the award to a maximum of the how the termination was done, section
equivalent of 12 months’ salary. 49 of the Employment Act would apply
for purposes of determining the nature
3. The Court of Appeal’s decision could
of the appropriate relief.
not be said to be inconsistent with the
decision of the same court in CMC 6. The Court of Appeal’s finding on whether
Aviation Limited v Mohammed Noor, Civil or not the amount of Kshs. 3, 258, 245/=
Appeal No. 199 of 2013, [2015] eKLR. formed ex gratia payment or any other
The facts in that case were different payment to be subjected to section
from the facts in the instant case. The 49(4)(m) of the Employment Act was
respondent in that case was summarily an exercise of discretion. The appellant
dismissed while the respondent in the did not demonstrate how that exercise
instant case was dismissed via payment of discretion was wrongful. Therefore,
in lieu of notice. there was no reason to interfere with the
Court of Appeal’s finding on that issue.
4. In CMC Aviation Limited v Mohammed
Noor, Civil Appeal No. 199 of 2013 Petition of appeal dismissed with costs.
the Court of Appeal found that the

Supreme Court issues proposals/guidelines to remedy denial of

substantive justice due to impeding court process in light of strict
timelines for settlement of electoral disputes
Martha Wangari Karua v Independent Electoral and Boundaries Commission and 3 others
[2019] KLR-SCK
Petition 3 of 2019
Supreme Court of Kenya
D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Ndungu, I Lenaola, SCJJ
August 6, 2019
Reported by Ian Kiptoo
Electoral Law – elections - electoral dispute for settlement of electoral disputes – Constitution
settlement – time frame for settling of electoral of Kenya, 2010 articles 87 (1) and 105 (2)
disputes – where Court of Appeal decision
reinstating a petition caused a 9 month delay in Jurisdiction - jurisdiction of the Supreme Court
filing a petition - whether a court could extend the – appellate jurisdiction of the Supreme Court –
time provided for settlement of electoral disputes where a party did not specify the constitutional
- what were the proposals/guidelines that sought provision through which to move the Supreme
to remedy denial of substantive justice due to Court – where rule 9 and 33 of the Supreme
impeding court process in light of strict timelines Court Rules did not make specific reference to
any particular jurisdiction of the Court - whether

13
 BB Issue 46, July - September 2019

a party invoking the jurisdiction of the Supreme Court. Appeals were limited by article
Court had to specify the constitutional provision 163(4) of the Constitution, which
through which it moved the Court – Constitution categorised them either as of right
of Kenya, 2010, articles, 50, 87 and 164 (4) (a); or upon certification that a matter of
Supreme Court Rules, 2012, rules 9 and 33 general public importance was involved.
Therefore, the Court’s jurisdiction had
Brief Facts to be invoked within the confines of that
The appeal sought to set aside the judgment constitutional provision.
and orders of the Court of Appeal which 2. In approaching the Court as of right,
dismissed the appellant’s appeal thus a party had to demonstrate that
upholding the election of the 3rd and 4th questions of constitutional application
respondents as the Governor and Deputy or interpretation were in controversy.
Governor of Kirinyaga County on the With regard to the second limb, one had
grounds that: the Court of Appeal erred in to have been granted certification to
interpreting article 50 of the Constitution of appeal to the Court. Such requirements
Kenya, 2010 (Constitution) on the right to therefore dispelled any notion of an
fair trial, by upholding the rejection of the automatic locus before the Court. Thus,
electronic evidence contained in a mobile the jurisdiction upon which an appeal
device (a phone) belonging to one of the rested should not be left for speculation.
petitioner’s witnesses; that article 87 was It had to be out rightly stated.
intended to prevent delay but not to abrogate
3. The petitioner’s appeal was filed pursuant
a litigant’s right to access justice.
to rules 9 and 33 of the Supreme Court
On the other hand, the respondents Rules, 2012. Rule 9 specified the contents
contended that: the petitioner’s video of a petition while rule 33 provided the
evidence was properly excluded as it was timeframe for filing an appeal as well as
not produced as evidence within the correct the documents that formed the record
rules of procedure; that the Court of Appeal of appeal. Thus, the rules of the Court
was properly guided by holding that settling remained an important tool in aiding the
electoral disputes within the constitutionally dispensation of justice. In the instant case
provided timeframes undertaken after the however, rules 9 and 33 did not make
expiry of the 6 months were a nullity. reference to any particular jurisdiction
of the Court.
Issues
4. The appeal before the Court, in its
i. Whether a party invoking the body, was crafted in a manner that
jurisdiction of the Supreme Court demonstrated that the petitioner
had to specify the constitutional invoked the Court’s jurisdiction under
provision through which it moved article 163(4) (a) of the Constitution and
the Court. specific provisions of the Constitution
ii. Whether a court could extend the were cited as having been violated. The
time provided for settlement of Suleiman Mwamlole Warrakah & 2 others
electoral disputes. v Mwamlole Tchappu Mbwana & 4 others
iii. What were the proposals/guidelines SC Petition No. 12 of 2018 eKLR case in
that sought to remedy denial of that context was clearly distinguishable.
substantive justice due to impeding Inelegance in drafting was not
court process in light of strict encouraged nonetheless.
timelines for settlement of electoral 5. Parties had been cautioned, in the Court’s
disputes? past decisions, against making fleeting
Held statements alleging constitutional
controversies where such questions were
1. The need to specify the constitutional
not pivotal for the determination of the
provision through which one moved
dispute before the Court of Appeal. In
the Court flowed from the fact that
the instant case, the grounds raised in the
not every appeal from the Court of
petition fell for the Court to determine
Appeal was appealable to the Supreme

14
 BB Issue 46, July - September 2019

the interpretation of inter alia articles disregarded the Court’s decision in

81 and 86 of the Constitution in the Lemanken Aramat v. Harun Maitamei
context of the electoral process. Further, Lempaka & 2 others. Had the Appellate
the petitioner alleged infringement Court applied the precedent in that case,
of her right to fair hearing, which it would not have made an open ended
proposition called for interpretation of order of remission as it did. The Court
article 50. Above all, the appeal raised an should have made a limited order with
important issue of timelines for settling the requirement that the High Court
electoral disputes. Such a question was determine the petition strictly within the
deeply rooted in the Constitution and timeline of six months. In the alternative,
the determination of it would require the Appellate Court should have decided
an interpretation of articles 87(1) and to end the matter at that stage, well aware
105 of the Constitution. Therefore, the that any substantive determination of
Court had jurisdiction to determine the the petition by the High Court would
petitioner’s appeal under article 163(4) be an exercise in futility, in view of the
(a) of the Constitution. precedent in Lemanken.
6. The span of 6 months from the date of 9. With regard to elections of a Governor,
filing of the petition was almost coming the relevant provision was section 75
to an end at the time Court of Appeal of the Elections Act as read with article
decision reinstating the petition was 87(1) of the Constitution. Section 75
made. As expected, by the time the High undoubtedly derived its authority from
Court eventually determined the petition article 87 of the Constitution which
on June 11, 2018, 9 months had lapsed required timely resolution of electoral
from the date of filing the petition. There disputes. Once an election petition was
had been conflicting decisions emanating filed at the High Court sitting as the
from the superior courts with regard to Election Court, it had to be determined
consequences of determining an election within a period of 6 months.
petition after the specified timeframes.
10. In Gerald Thoya, it was also proposed
7. Timelines in resolving electoral disputes that all applications ought to be heard
were first introduced by the 2010 together with the substantive matter
Constitution. The Constitution of and even if a court were to strike out the
Kenya Review Commission (2005) had petition, it should still determine other
proposed in its draft Constitution that issues since the actions were subject to
election petitions should be heard within appeal. In such a case, all applications
one year from the date of elections. That would then be considered as a response
proposal was made against the backdrop to the petition including an application
of the long judicial processes which for striking out thus saving time and
undoubtedly led to denial of justice to meeting the 6 months’ deadline.
certain parties while also giving courts
11. The Samwel Kazungu Kambi v Nelly
the opportunity to conclusively, and on
Ilongo & 2 others Election Petition No. 4
merit, determine all electoral disputes
of 2017 case recognized that depending
placed before them for adjudication.
on the circumstances of a case, some
By 2010, when the new Constitution
interlocutory decisions could require
was being promulgated, that period had
immediate intervention by an appellate
been reduced to 6 months as reflected in
court. However, sight could not be lost
article 105 (2) of the Constitution.
of the danger of unnecessarily opening
8. The period provided for the settlement the appellate door for interlocutory
of electoral disputes could not be applications. With regard to applications
extended by any court and there was for striking out a petition, the Court
no reason to depart from that position. of Appeal was categorical that such
It was unfortunate that in remitting the appeals were inevitably justiciable since
matter back to the High Court after striking out amounted to disposing of
the determination of the prior appeal, the petition.
the Court of Appeal appeared to have

15
 BB Issue 46, July - September 2019

12. All the suggested propositions had to be within the constitutional and
considered within the context of the strict statutory timelines for the resolution
timelines provided for the settlement of of electoral disputes. In that regard,
electoral disputes. The proposals sought it was for the trial court, to make
to remedy the likelihood of denial of and enforce such case management
substantive justice due to impeding orders, so as to meet that objective;
court processes or where a wrong could d. appeals on interlocutory
not be corrected at the appellate stage applications, other than for striking
due to lapse of time. Hence, a proper out in circumstances explained in (b)
consideration of the issue required a and (c) above, should await the final
balancing of rights such as the right of determination of the whole petition
appeal, access to court, the right to have before the trial court; and
a matter adjudicated within the specified
e. in exceptional circumstances, an
timeframes and the right to substantive
appellate court could dispose of an
justice.
appeal arising from an interlocutory
13. Learning from the experience of the application filed and determined by
emerging jurisprudence in Kenyan the trial court while the substantive
courts, the following proposals was matter was still ongoing at the trial
made: court. In doing so, the timeframe
question as explained had to always
a. all applications by a respondent in an
be borne in mind.
election petition, save in exceptional
circumstances, should form part of the 14. The proposals did not in any way
response to the petition. Similarly, a provide an exception to the requirement
petitioner should as much as possible of settling disputes within the specified
file any application arising from his timeframe. All election petitions had
petition e.g. for scrutiny or recount at to be resolved within the provided
the same time as the petition; timeframes without qualification. In the
instant case, High Court determined
b. unless for want of jurisdiction or in
the petition before it after the lapse of
any other deserving circumstance, a
6 months from the date of filing. That
trial court should exercise restraint in
was an affront to the Constitution and
striking out a petition or a response,
the enabling electoral laws. As such, the
where such an action was likely to
High Court proceedings were a nullity.
summarily dispose of the matter;
c. all applications for striking out Petition of appeal dismissed with each party to
an election petition for want of bear own costs before the High Court, Court of
jurisdiction, or for any other reason, Appeal and Supreme Court
had to be made and determined

Your idea can transform Africa. Let’s stop talking and let’s start doing. –
Tony Elumelu

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16
 BB Issue 46, July - September 2019

Court of Appeal
The term gross salary used in the Employment Act, 2007 as the remedy of
compensation for unfair termination includes basic salary and any other
allowances
Postal Corporation of Kenya v Andrew K Tanui [2019] KLR-CAK
Civil Appeal 127 of 2015
Court of Appeal at Nairobi
P N Waki, D K Musinga, P O Kiage, JJA
July 19, 2019
Reported by Ian Kiptoo
Employment Law – termination of employment from the findings and orders of the High
– unfair termination – payment of compensation Court. The appellant challenged the decision
– where court awarded compensation of 12 of the trial court on grounds that gratuity by
months at the rate of the gross monthly salary – definition, was a reward given at the option
where the Employment Act did not define gross of the employer and was not a contractual
wages or gross salary – where Employment Act term; that the respondent was not entitled to
defined remuneration only – where gross salary payment of allowances as part of the award
terminology was used in the Act as the remedy arising from the award of compensation of
of compensation for unfair termination - whether 12 months at the rate of the gross monthly
the term gross salary used in the Employment Act, salary; and that there was no obligation
2007 as the remedy of compensation for unfair placed on the appellant by law to explain
termination included basic salary and any other the charges to the employee, call evidence in
allowances – Employment Act, sections 17-25 showing the truthfulness of the allegations
or allow the claimant the opportunity to
Employment Law – termination of employment question the employer’s witnesses. Such
– gratuity – payment of – where employee was requirements did not exist. Furthermore,
unfairly terminated – premature termination there was no statutory obligation for the
of an employment contract – where appellant employer to advise the employee on his
committed to pay the respondent gratuity at the right to be accompanied to the disciplinary
rate of 25% of basic salary earned - whether hearing.
an employee that was unfairly terminated was
entitled to payment of gratuity by an employer Issues
Employment Law – termination of employment i. Whether an employee that was unfairly
– gross misconduct – applicable procedure – terminated was entitled to payment of
required minimum standards - what were the gratuity by an employer.
minimum standards required for a hearing ii. Whether the term gross salary used in
before termination on grounds of misconduct to the Employment Act, 2007 as the remedy
be considered fair - Employment Act, section 41 of compensation for unfair termination
included basic salary and any other
Civil Practice and Procedure – damages allowances.
– award of damages – award of damages in
iii. What were the minimum standards
employment cases – where Employment Act
required for a hearing before termination
provided considerations for a court to consider
on grounds of misconduct to be
- whether a court ought to take into account
considered fair?
the considerations under section 49 (4) of the
Employment Act before making an award of iv. Whether a court ought to take into
damages for unfair termination – Employment account the considerations under
Act, sections 49 (1) (c), (4) section 49 (4) of the Employment Act
before making an award of damages for
Brief Facts unfair termination.
The matter before the court was an appeal

17
 BB Issue 46, July - September 2019

Held was the total value of all payments in

money or in kind, made or owing to an
1. The trial court could not be faulted in
employee arising from employment of
the manner it evaluated the evidence on
that employee. The Act, nevertheless,
record. It was true that the initial letter
used the terminology wages and salary
of offer dated October 2, 2007 stated the
interchangeably in Part IV of the Act
gross salary as Sh.348, 000. However,
- sections 17 to 25. In section 18, it
when the claim was filed two years later
referred to wages and allowances as
in October 2009, the respondent stated
separate payments upon termination
his gross salary in paragraph 3 as Sh.355,
of employment. But in prescribing the
500. In his documents in support of the
manner of payment of wages and salaries
claim, he specified that there was airtime
in section 20, the terminology gross
allowance paid to him at Sh.7, 500 per
wages was employed for the first time in
month, making the total Sh.355, 500.
the Act. Reference to wages, allowances,
Indeed the salary slip attached to the
gross wages or gross salary were all
claim by the respondent confirmed that
separate elements of the remuneration
figure, just as the oral evidence adduced
of an employee. Interest in the case was
by the respondent which was not
gross monthly wage or salary which
challenged.
was the terminology used in the Act as
2. The reason for not challenging it was the remedy of compensation for unfair
obviously because the appellant had the termination.
employment records of the respondent
5. The construction that gross monthly
and could have easily challenged the
wages were inclusive of allowances
figure at any stage if there was no truth
resonated with common sense. In
in it. But from the very beginning when
common parlance, basic salary was the
filing its defence in January 2010, the
base income of an individual, the fixed
appellant admitted paragraph 3 of the
part of one’s compensation package;
claim. Needless to say, parties were bound
while an allowance was the amount
by their pleadings. It would therefore be
received by the employee for meeting
idle to raise the issue at the stage, when
service requirements. It was provided in
in reality it was always a non-issue. The
addition to the basic salary and varied
issue was raised without any factual or
from employer to employer. Some
legal basis, and was therefore rejected.
employers could well offer allowances
3. There was no reason to disturb the that were clearly predicated on actual
reasoning of the trial court on award of performance of the contract but which
gratuity to the respondent. In the letter of did not form part of the gross salary of
appointment, the appellant committed to an employee.
paying gratuity at the rate of 25% of basic
6. Gross salary would then be the amount
salary earned during the period served.
calculated by adding up one’s basic
The appellant also reserved the right to
salary and allowances, before deduction
terminate the contract prematurely. That
of taxes and other deductions. Each case
did not mean that gratuity would not be
had to be examined to identify the nature
payable just because the employer, out
of the allowances given and whether
of its own choice, ended the contract.
they formed part of the gross salary.
Proportionate gratuity would have been
Therefore, gross wages or gross salary
earned during the period and would be
did include any allowances and was the
payable. The only reason why it would
same as the basic salary or basic wages.
not be payable was where the employee
was guilty of gross misconduct. 7. The focus of the charges laid against
the respondent was his handling of
4. The definitions of wages and
the Postapay product, not his overall
allowances were different and they
leadership of the appellant or the
were not interchangeable. There was no
Finance and Strategy docket. But clearly,
definition of gross wages or gross salary
he laid evidence before the trial court
in the Employment Act, 2007. The only
that he applied himself to mitigating the
definition was on remuneration which

18
 BB Issue 46, July - September 2019

enormous damage caused by those who b. the reason for which the employer
had initiated and launched the product was considering termination;
without due diligence. He showed that c. entitlement of an employee to the
there was only so much he could do as presence of another employee of
an individual after advising on what his choice when the explanation of
needed to be done by the appellant as grounds of termination was made;
an institution. There was no allegation and
that he was involved in any stealing or
d. hearing and considering any
pilfering of the appellant’s funds. On the
representations made by the
contrary, he was involved in the process
employee and the person chosen by
of automating the processes to ensure
the employee.
that there was no pilferage. The trial
court, which saw and heard him, found In the instant case, the letter inviting
him a trustworthy and credible witness. the respondent to appear before the
Therefore, there was no reason to doubt Board was only two lines containing
that assessment. the date and venue. It said nothing
8. The onus was on the appellant to show about the reasons for such invitation
that the dismissal was justifiable after the and about the respondent appearing
response made by the respondent both with another employee of his choice.
in his documentary and oral evidence. The retort that an employer had no
The employer failed to sufficiently obligation to ask the employee to
discharge the burden of proof placed on be accompanied did not avail the
it, and there was no reason to disturb the appellant because the law required
findings of the trial court on that aspect that such other person be present to
of the case. hear the grounds of termination and
if so inclined, make representations
9. There had been considerable debate as
thereon. A hearing not so conducted
to what amounted to a fair hearing or
was irregular.
procedure in disciplinary proceedings.
The appellant had cited the Kenya 11. At the Board meeting, there was no
Revenue Authority vs Menginya Salim evidence that an explanation of the
Murgani [2010] eKLR where the Court grounds of termination was made to the
held that the fairness of a hearing was respondent, and if so, in what language.
not determined solely by its oral nature The Board had in its possession the very
and that a hearing could be conducted document that formed the basis of the
through an exchange of letters as charges framed against the respondent
happened in the case. It also held that but kept it away from him. Even in
whether an oral hearing was necessary criminal trials, which were more serious
would depend on the subject matter and in nature, an accused was entitled to the
circumstances of the particular case and statements that supported the charges
upon the nature of the decision to be laid against him. That was the essence
made. That was still good law, but not in of fairness even outside a judicial
respect of a hearing before termination setting. The respondent faced serious
as envisaged under section 41 of the Act. indictments which could torpedo his
10. Section 41 provided the minimum entire career and destroy his future. That
standards of a fair procedure that an was a matter in which oral hearing was
employer ought to comply with. The necessary, but none was held. Instead,
section provided for notification and all the respondent had was a technical
hearing before termination on grounds appearance of less than five minutes
of misconduct. Four elements had to be with the Board, which evidence was
discernible for the procedure to pass not seriously challenged. For all those
muster:- reasons, the procedure adopted by the
appellant was short of a fair one.
a. an explanation of the grounds of
termination in a language understood 12. The award of damages was made under
by the employee; section 49 (1) (c) of the Act. The Court
had in several previous decisions decried
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 BB Issue 46, July - September 2019

the awarding of maximum compensatory termination of his employment in terms

damages for wrongful or unfair of gratuity, notice, leave, thus converting
termination without a firm factual and it to a normal termination. He had only
legal foundation for such awards. While 15 months of his contract to serve and
the considerations by the trial court were giving him his gross salary for 12 months
relevant in the overall award of damages, would virtually be paying him for the
the award lacked a sense of balance. The term he had not served. At any rate it
balance was introduced by section 49 (4) was doubtful that injured feelings and
which listed a raft of considerations for a difficulty to find alternative employment
court to take into account. The trial court were relevant considerations in
made no mention of those provisions. determining compensation.
13. It was necessary to have considered 14. The award was inordinately high and was
not only the effect of the dismissal on not based on a balanced consideration of
the respondent, but the intention of the applicable principles. An interference
Parliament in capping compensatory with the award to the extent that it was
awards. It was also relevant to consider set aside and substituted with an award
other comparable awards made in similar of six months gross salary; Sh.355,500 x
circumstances but none was considered. 6 = Sh.2,133,000.
The respondent had already been given
Appeal partly allowed with no order as to costs.
compensatory awards for the wrongful

The Employment and Labour Relations Court has exclusive jurisdiction

to determine appeals for claims under the Work Injury Benefits Act
including subsisting appeals on claims initiated under the repealed
Workmen’s Compensation Act
Elizabeth Njeri Nderi & another v Highway Carriers Limited [2019] KLR-CAK
Civil Appeal 340 of 2014
Court of Appeal at Nairobi
E M Githinji, F Sichale & J Otieno-Odek, JJA
August 6, 2019
Reported by Moses Rotich

Civil Practice and Procedure-claims under the evidence as prima facie proof of dependency or
Work Injury Benefits Act-procedure for-what was degree of dependency-whether affidavits of the
the procedure for claims and appeals under the claimants and documents including limited
Work Injury Benefits Act-Work Injury Benefits grant of letters of administration were sufficient
Act, section 50 & 58 to prove dependency on a deceased employee-
Workmen’s Compensation Act, section 6; Work
Jurisdiction-jurisdiction of the Employment Injury Benefits Act, sections 34 & 58(2)
and Labour Relations Court- claims and appeals
under the Work injury Benefits Act-where an Brief facts
appeal against a subordinate court’s decision
in a claim under the repealed Workmen’s The two appellants were personal
Compensation Act was lodged in the High Court- representatives of a deceased truck driver
finding that it ought to have been lodged in the who had been employed by the respondents.
Employment and Labour Relations Court-Work The 1st appellant was the widow of the
Injury Benefits Act, sections 34, 50, 51, 52(2),53 deceased while the 2nd appellant was a sister
& 58; Employment and Labour Relations Court to the deceased. The deceased died aged fifty-
Act, section 12(1) five years old in a road traffic accident on
September 22, 2004, while in the course of
Evidence Law-proof of dependency-claims under employment. The appellants’ claim against
the repealed Workmen’s Compensation Act and its the respondent for compensation under
successor, the Work Injury Benefits Act-proof of the repealed Workmen’s Compensation Act
dependency or degree of dependency on a deceased (WCA) failed. The appellants appealed to the
employee-whether a court could rely on informal High Court. The High Court agreed with the

20
 BB Issue 46, July - September 2019

trial court that the appellants had failed to the claimants lived in Sagana, Kirinyaga
prove that they were true dependants of the County.
deceased. 2. The provisions of section 20(2) of the
WCA showed that the court could rely
Aggrieved, the appellants filed the instant
on informal evidence as prima facie proof
appeal against that finding of the High Court
of dependency or degree of dependency.
on the ground that it erred, in law and in fact,
The WCA was repealed by section 57 of
in not finding that dependency was proved
the Work Injury Benefits Act (WIBA),
by affidavits and documents including the
which commenced on June 2, 2007.
limited grant of letters of administration.
Section 6 of the WIBA provided that a
Issues widow or widower, child below eighteen
years old, parent, brother, sister, half-
i. Whether, under the repealed Workmen’s
brother, half-sister of the deceased were
Compensation Act, the court could rely
dependants without requirement that
on informal evidence as prima facie proof
they were wholly or in part dependent
of dependency or degree of dependency.
on the deceased employee. It was only
ii. Whether the High Court or the persons outside the stipulated relation
Employment and Labour Relations with the deceased employee who were
Court had jurisdiction to determine required to show that they were wholly
appeals for claims under both the dependent on the deceased employee.
repealed Workmen’s Compensation
3. Section 34 of the WIBA detailed the
Act and its successor, the Work Injury
manner of determining the amount
Benefits Act.
of compensation in case of death of an
iii. What was the procedure for claims and employee. Section 34(3) stipulated that
appeals under the Work Injury Benefits a dependant was deemed to have been
Act? wholly financially dependent upon the
iv. What orders could issue in light of the employee at the time of the accident
existence of past decisions declaring unless the contrary was proved. The
certain provisions of the Work Injury transitional provision in section 58(2)
Benefits Act unconstitutional? provided that any claim in respect of an
Held accident or disease occurring before the
commencement of the WIBA ought to be
1. Section 3 of the repealed WCA defined deemed to have been lodged under the
dependants to include those members WIBA.
of the family of a workman who were
4. The repealed WCA gave jurisdiction
wholly or in part dependent upon his
to a subordinate court to determine
earnings at the time of his death, or
applications for compensation whatever
would but for the incapacity due to
the amount might be involved. From the
the accident have been so dependent.
provisions of the WIBA, the jurisdiction
Section 20 of the WCA provided that, in
to determine applications for
proceedings for compensation in respect
compensation had been conferred upon
of death of a workman, if the court was
the Director of Work Injury Benefits (the
satisfied that other evidence or sufficient
Director), as established by section 53 of
evidence of dependency could not be
the Act.
procured without undue hardship to the
claimant who resided outside the district 5. Section 51 of the WIBA provided that
where proceedings were being held, the a person aggrieved by the decision of
court could rely on a statement signed the Director had a right to lodge an
by the District Commissioner and such objection with the Director against such
statement by him or her was prima decision. Section 52(2) provided for the
facie proof of facts in that statement right of appeal to the Industrial Court
and was to be admitted without proof against the decision of the Director
unless the court had reasons to doubt its on the objection. The Industrial Court
genuineness. In the instant case, the trial was replaced by the Employment and
proceedings took place in Nairobi and Labour Relations Court (ELRC) which

21
 BB Issue 46, July - September 2019

was established by the Employment been injured to pay compensation to the

and Labour Relations Court Act. dependants of a deceased worker.
Section 12(1) of the Employment 7. The High Court further fell into error
and Labour Relations Court Act gave in failing to appreciate the transitional
ELRC exclusive original jurisdiction to provisions in section 58(2) of the
hear and determine disputes relating WIBA which expressly provided that
to employment and labour relations. previous claims under the repealed
Section 12(5)(b) specifically gave ELRC WCA were deemed to have been lodged
power to hear and determine appeals under WIBA. By section 23(3) of the
from the decision of any other local Interpretation and General Provisions
tribunal or commission as might be Act, the repealed law applied where the
prescribed under any written law. repealing Act did not show a contrary
6. In the instant matter, the appellants intention. Section 58(2) of the WIBA
named the dependants of the deceased showed a contrary intention. Both the
and their relationship with the deceased. decision of the subordinate court and
The named dependants were his widow, the High Court was made after the WIBA
children and a sister. The parties agreed had come into operation and the two
that the application be determined courts below erred in law in failing to
by way of affidavit evidence. The 1st find that the appellants and the children
appellant’s affidavit included a petition of the deceased were dependants within
for grant of letters of administration to the meaning of section 6 of the WIBA.
the estate of the deceased, and a limited 8. The constitutionality of various
grant of letters of administration issued provisions of the WIBA had been
to the appellant for purpose of filing the challenged in the High Court. The Court
suit. It also included a letter dated March of Appeal had reversed the decision
20, 2006, from the Chief addressed to the of the High Court which had declared
Principal Magistrate verifying that the several provisions of the WIBA Act
1st appellant was the only widow of the to be inconsistent with the repealed
deceased and the one entitled to inherit Constitution and declared only section 7
his properties. Whereas those documents and 10(4) of the WIBA to be inconsistent
did not prove dependency, they showed with both the repealed Constitution and
that the claim by the 1st appellant that the 2010 Constitution. Sections of the
she was a widow of the deceased and WIBA referred to in the instant matter,
that she and the children of the deceased particularly sections 6, 34(3), 51, 52, 53
were dependants was genuine. The and 58(2), were left intact.
respondent did not provide any evidence
to the contrary. The High Court failed to Appeal allowed with costs to the appellants;
appreciate that the WCA imposed strict matter was to be remitted to the Employment and
statutory duty to the employer of an Labour Relations Court to deal with the matter
employee who had died at work or had in accordance with the Work Injury Benefits Act.

22
 BB Issue 46, July - September 2019

The equitable doctrines of constructive trust and proprietary estoppel

were applicable to override the requirement for Land Control Board
consent in a controlled land transaction
William Kipsoi Sigei v Kipkoech Arusei & another [2019] KLR-CAK
Civil Appeal 54 of 2016
Court of Appeal at Nairobi
E M Githinji, H Okwengu & J Mohammed, JJA
July 25, 2019
Reported by Moses Rotich

Land Law-controlled transactions-Land Control years earlier. The appellant, aggrieved, filed
Board consent-failure to obtain Land Control the instant second appeal and asked the
Board consent in a controlled transaction-effect Court to set aside the judgment of the ELC.
of-where the vendor executed an agreement for
sale of land, received the full purchase price and Issues
allowed the purchaser to take possession and i. What was the effect of lack of Land Control
ownership of the property for a period of over Board consent in a land transaction where
fourteen years-whether a constructive trust arose a purchaser had paid the full purchase
between the vendor and the purchaser-whether price and took possession of the suit
the absence of the Land Control Board consent property?
could operate to vitiate the land transaction- ii. Whether the doctrines of constructive
Land Control Act, section 6 trust and estoppel could be applied in
Brief facts favour of a purchaser who paid full
purchase price and took possession of a
The 1st respondent and the appellant had parcel of agricultural land but failed to
entered into an agreement for purchase obtain Land Control Board consent.
of five parcels of land in Kesses Township,
Held
Eldoret. The 1st respondent paid the agreed
purchase price for the five parcels of land, and 1. Section 6 of the Land Control Act
took possession and ownership. Later on, he provided that any transactions, including
sold one of the plots to the 2nd respondent the sale, transfer, lease, mortgage, division
who started to develop it. The appellant or any other disposal of agricultural land
interfered with 2nd respondent’s quiet was void for all purposes unless the Land
enjoyment and occupation of the property Control Board had given its consent in
prompting the two respondents to sue him respect of that transaction.
in the Chief Magistrate Court. 2. Given the fact that the appellant received
the full purchase price for the property,
The trial court dismissed both the claim
allowed the 1st respondent to take
and the counterclaim finding that neither
possession, and for a period of at least
of the parties had title to the suit property.
fourteen years let him remain on the
Aggrieved, the appellant appealed to the
property undisturbed, a constructive
Environment and Land Court (ELC), which
trust had been created.
found that the suit property was agricultural
land, and the appellant and the 1st 3. In the circumstances of the instant case,
respondent had not obtained consent of the the equitable doctrines of constructive
Land Control Board before transacting on trust and proprietary estoppel were
the suit property. However, the ELC found applicable and enforceable in regard to
that since the appellant had received money land subject to the Land Control Act.
from the 1st respondent who took possession Accordingly, the ELC made no error in
and improved the suit property, there had finding that despite the lack of consent
resulted constructive trust in favour of the of the Land Control Board, the doctrine
1st respondent. While dismissing the appeal, of constructive trust applied to the
the ELC held that the appellant could not rely agreement between the appellant and
on the absence of the Land Control Board the 1st respondent.
consent to vitiate an agreement made twenty Appeal dismissed; costs to the respondents

23
 BB Issue 46, July - September 2019

KNEC has the mandate to effect changes, relating to a transsexual

candidate’s name and gender, to a KCSE certificate issued by it.
Kenya National Examinations Council v Republic & 2 others [2019] KLR-CAK
Civil Appeal 355 of 2014
Court of Appeal at Nairobi
P Waki, S Gatembu Kairu & J Otieno-Odek, JJA
July 19, 2019
Reported by Beryl Ikamari

Judicial Review-availability of judicial review such changes where documentation in the

remedies-mandamus-existence of a public form of a deed poll, a gazette notice or medical
statutory duty and exercise of discretion in the reports was given, the 3rd respondent did
performance of a statutory duty-whether the not succeed in having those changes effected
Kenya National Examinations Council had the in the certificate. The appellant later stated
statutory mandate to effect changes on KCSE that the changes could not be made after the
certificates that it had issued and whether an issuance of the certificate.
order of mandamus could be used to compel it to
effect changes relating to a candidate’s name and The 3rd respondent went to the High Court
gender, in a particular manner-Kenya National and sought orders of mandamus to compel
Examinations Council (Kenya Certificate of the appellant to change the particulars of her
Secondary Education Examinations) Rules, 2009, name in her certificate and also to remove
rule 9(3). the gender mark on her certificate in exercise
of its statutory mandate. The High Court
Constitutional Law-separation of powers- found that the application was merited and
mandate of the courts-transsexual/transgender it granted the orders of mandamus.
rights-where there was no public policy or
legislative framework for transsexual/transgender The appellant filed an appeal on the basis
rights-whether in making determinations of various grounds. It stated that the orders
on transsexual/transgender rights without a of mandamus should not have been granted
supporting public policy or legislative framework, as mandamus could not be used to compel
the High Court usurped the functions of the a public body to perform its duties in a
Executive and the Legislature. certain way, particularly where statute gave
it discretion relating to the performance
Brief facts of that duty. It added that a statutory duty,
in relation to the remedy sought by the
The 3rd respondent was previously known as 3rd respondent, did not exist in the first
AMI and she sat for her Kenya Certificate of place. The appellant also said that what the
Secondary Education (KCSE) Examinations 3rd respondent sought to enforce entailed
in 2001 in a boys’ secondary school. She private law rights for which the public law
obtained the requisite certificate with her remedy of judicial review should have been
name reflected together with her gender unavailable. The appellant further stated
indicated as male. Since the year 2008, the that judicial review proceedings could not
3rd respondent had been receiving treatment be used to enforce fundamental rights and
for depression and gender identity disorder. freedoms.
In 2010, she effected a change of her name
via deed poll and Gazette Notice No 6139 On the question as to whether the gender
of May 19, 2010 was published to reflect mark should be removed, the appellant urged
the change in name. Further changes to her that the High Court was ill equipped to make
name were made via another Gazette Notice a finding and that the 3rd respondent was
in the year 2012. still male. The appellant contended that the
High Court should not have handled issues
The 3rd respondent wrote various letters to of transsexualism which were not suited
the appellant asking the appellant to issue a for determination by a court and required
certificate in which changes in her name and legislation.
sex were indicated. Despite indications from
the appellant that it could consider effecting

24
 BB Issue 46, July - September 2019

Issues 4. Under rule 9(3) of the Kenya National

Examinations Council (Kenya Certificate
i. Whether the remedy of mandamus could
of Secondary Education Examinations)
be used to compel the performance of
Rules, 2009, upon the making of an
a statutory duty whose performance
application or on its own motion, the
involved the exercise of discretion.
appellant could withdraw and amend a
ii. Whether the Kenya National KCSE certificate where it considered it
Examinations Council had the statutory necessary. The appellant had a duty to
mandate to effect changes relating to a consider the 3rd respondent’s application
candidate’s name and gender in a KCSE for the amendment of the certificate.
certificate that it had issued.
5. The appellant’s power to withdraw and
iii. Whether issues concerning enforcement amend certificates was discretionary.
of rights of transsexual or transgendered Mandamus could not be used to compel
individuals were issues that required the the exercise of discretion in a certain
making of public policy and a legislative way. However, discretionary power was
framework before they could be handled not absolute or beyond the purview
by courts. of judicial scrutiny. All discretion was
Held subject to the doctrine of reasonableness
and it had to be shown to have been
1. The appellant had a statutory duty
exercised reasonably. Under section 7(2)
to award certificates and diplomas to
(k) of the Fair Administrative Action
successful candidates. However, the
Act, a court or tribunal had the power
power to withdraw a certificate for
to review an administrative action if the
amendment or for any other reason that
exercise of the power or the performance
the appellant considered necessary was
of the function authorized by the
discretionary. That power was provided
empowering provision, in pursuance
for under rule 9(3) of the Kenya National
of which the administrative action was
Examinations Council (Kenya Certificate
purportedly taken, was so unreasonable
of Secondary Education Examinations)
that no reasonable person could have so
Rules, 2009.
exercised the power or performed the
2. The order of mandamus could not be used function.
to compel the performance of a public
6. The appellant initially indicated that
duty in a specific way where there was
a name and gender change could be
discretion as to the mode of performing
effected on certificates by persons who
the duty. However, that did not mean that
provided relevant documentation which
mandamus was not available where the
included a gazette notice, deed poll and
performance of a public duty involved
medical report. However, when the 3rd
the exercise of discretion. Discretion had
respondent relied on that representation,
to be exercise reasonably, in accordance
the appellant changed its stance and
with the law and on the basis of relevant
turned down the 3rd respondent’s
considerations. A decision that no
application. The appellant at that point
reasonable authority could arrive at was
stated that it could not effect a name
amenable to judicial review.
change after the award of a certificate to
3. Rule 9(1) of the Kenya National a candidate.
Examinations Council (Kenya Certificate
7. The appellant refused to act on its
of Secondary Education Examinations)
mandate under rule 9(3) of the Kenya
Rules, 2009 spelt out what a certificate
National Examinations Council (Kenya
should contain. It did not require the
Certificate of Secondary Education
inclusion of a gender mark in the
Examinations) Rules, 2009. It declined to
certificate. However, the inclusion of
do so notwithstanding the fact that it had
a gender mark was not a violation of
previously acknowledged that it had the
statute or the Rules. There could be
power to amend certificates. It was not
good reasons for the inclusion of the
that the appellant improperly exercise
gender mark even though it was not a
its mandate, it’s that it refused to act.
mandatory requirement.

25
 BB Issue 46, July - September 2019

In those circumstances, the court was respondent did not mislead the appellant
entitled to grant the orders of mandamus in any way. The fact that as an individual,
compelling the appellant to perform its she would benefit from a public law
duty. remedy, did not bar the court from
8. Evidence in the form of correspondence granting the relief.
showed that the 3rd respondent had a 10. It could not be the case that until there
legitimate expectation that the appellant was a policy or legislative framework in
would make the changes that she sought place, persons like the 3rd respondent,
upon being furnished with the relevant would be left with no recourse for
documentation. Failure by the appellant purposes of securing their dignity as
to make the changes warranted the grant guaranteed by the Constitution. Lack of
of the remedy of mandamus. public policy or a legislative framework
9. The complaint that the 3rd respondent could not bar the court from enforcing
was seeking to enforce her interests while constitutional rights.
alleging to be acting for an organization Appeal dismissed.
in public interest had no basis. The 3rd

If your dreams do not scare you, they are not big enough. Ellen Johnson
Sirleaf

Some rights reserved by Ethical Culture

26
 BB Issue 46, July - September 2019

High Court
Public officers who have been suspended over charges of corruption/
economic crimes are not allowed to hold public office.
Moses Kasaine Lenolkulal v Director of Public Prosecutions [2019] KLR-HCK
Criminal Revision 25 of 2019
High Court at Nairobi
M Ngugi, J
July 24, 2019
Reported by Ribia John

Constitutional Law – leadership and integrity Brief Facts

– suspension of public officers for being charged
with corruption or economic crimes – whether a The applicant was the Governor of Samburu
holder of an office which the Constitution limited County. He had been charged with various
or provided for the ground upon which such offences under the Anti-Corruption and
holders could be removed or the office could be Economic Crimes Act. The Trial Court
vacated could be suspended from office if charged granted the applicant bail and also issued
with corruption or an economic crime - Anti- interim orders that prohibited the applicant
Corruption and Economic Crimes Act, section 62 from accessing Samburu County offices
pending filing, hearing and determination of
Statutes – interpretation of statutes - an application to be made by the prosecution.
constitutionality of statutes – Anti-Corruption
and Economic Crimes Act section 62(6) - Aggrieved by the interim orders the applicant
whether section 62(6) of the Anti-Corruption filed the instant revision, in which he sought
and Economic Crimes Act that exempted office for the interim orders to be vacated on
holders of offices which the Constitution limited or grounds that they violated section 62(6) of
provided for the ground upon which such holders the Anti-Corruption and Economic Crimes
could be removed or the office could be vacated Act and that the orders went against the
from being suspended from office if charged procedures of removing a County Governor
with corruption or an economic crime violated as prescribed in the Constitution.
the letter & spirit of the Constitution as well as Issues
Chapter Six of the Constitution on leadership
and integrity – Anti-Corruption and Economic i. Whether section 62(6) of the Anti-
Crimes Act, section 62(6); County Governments Corruption and Economic Crimes Act
Act section 32(2); Constitution of Kenya, 2010 that exempted office holders of offices
article 182 & Chapter Six which the Constitution limited or
provided for the ground upon which such
Constitutional Law – leadership and integrity holders could be removed or the office
– devolution – suspension of a sitting governor – could be vacated from being suspended
whether a County Governor could be suspended from office if charged with corruption or
for being charged with corruption or an economic an economic crime, violated:
crime – implications of suspending a County a. the letter and spirit of the
Governor - whether suspending a sitting Constitution;
Governor from office was the same as removing
b. Chapter Six of the Constitution on
the Governor from office - whether the Deputy
leadership and integrity.
Governor was to take up the roles of the Governor
if the Governor was suspended for being charged ii. Whether a holder of an office which the
with corruption or an economic crime and could Constitution limited or provided for
not obtain authorisation to resume office from the the grounds upon which such a person
Ethics and Anti-Corruption Commission – Anti- could be removed or the office could be
Corruption and Economic Crimes Act, section vacated could be suspended from office if
62(6); Constitution of Kenya, 2010 Chapter Six charged with corruption or an economic

27
 BB Issue 46, July - September 2019

crime. a public officer as a state officer or any

iii. Whether suspending a County Governor person other than a State Officer, who
from office was the same as removing held a public office. Article 260 defined a
the Governor from office. state office and a state officer to include a
member of a County Assembly, Governor
iv. Whether the Deputy Governor was
or Deputy Governor of a County, or other
to take up the roles of the Governor if
member of the executive committee
the Governor was suspended for being
of a County Government. Therefore a
charged with corruption or an economic
person in the position of the applicant,
crime and could not obtain authorisation
a County Governor, as well as members
from the Ethics and Anti-Corruption
of constitutional commissions such as
Commission.
the Chairperson of the National Land
Held Commission were State Officers. If some
1. The applicant was holder of a State Officers were not to be afforded
constitutional office. He was the different, preferential treatment, then
Governor of Samburu County and section 62(1) of ACECA, which referred
would thus appear to be exempt from the to suspension of a public officer or state
provisions of section 62(1) of ACECA officer who was charged with corruption
and protected by section 62(6) thereof as or economic crime, should apply to them
the grounds for his removal were set out also.
in the Constitution. Further, by requiring 5. In considering section 62(6) of ACECA
that he seeks authorisation from the one should regard the provisions of the
EACC and its CEO, he was, to some Constitution with regard to leadership
extent, subordinated to the EACC. There and integrity, and the national values and
could also be some practical difficulties principles that underpinned all actions
in the manner in which the authorisation and conduct by all public and State
was to be given. Officers and all State Organs.
2. The question of whether the applicant 6. The provisions of section 62(6) of
should have access to his office required ACECA, apart from obfuscating,
a perspective that looked beyond the indeed helping to obliterate the
interests of the individual holder of the political hygiene, were contrary to the
constitutional office and considered the constitutional requirements of integrity
wider public interest. That perspective in governance, were against the national
spoke to the question of political hygiene, values and principles of governance and
and was a perspective that raised the principles of leadership and integrity
serious concerns that required judicial in Chapter Six of the Constitution, and
consideration with respect to section undermined the prosecution of officers
62(6) of ACECA. in the position of the applicant in the
3. Suspension of a public or State officer instant case. In so doing, they entrenched
was not a violation of rights and was in corruption and impunity in the land.
accord with the constitutional provisions 7. Under the provisions of the County
in Chapter Six requiring integrity from Government Act, where the Governor
public and state officers. Where a public was unable to act, his functions were
or state officer was charged with an performed by the Deputy Governor. That
offence of corruption, then the officer was provided for in section 32(2) of the
was required by law to be suspended County Governments Act. The Governor
with half pay, under the terms of section in the instant case was not being removed
62(1) of ACECA, until the conclusion of from office. He had been charged with
the case. If the prosecution results in an an offence under ACECA, and a proper
acquittal, then the public or state officer reading of section 62 of ACECA required
was restored to his position and paid all that he did not continue to perform the
the monies that could have been withheld functions of the Office of Governor
in the period of his suspension. while the criminal charges against him
4. Article 260 of the Constitution defined were pending. However, if section 62(6),

28
 BB Issue 46, July - September 2019

which violated the letter and spirit of the that, until his prosecution was complete,
Constitution, particularly Chapter Six his access to the County government
on leadership and integrity, was to be offices were to be limited as directed by
given an interpretation that protected the Trial Court.
the applicant’s access to his office, then 9. [Obiter] Would it serve the public interest
conditions had to be imposed that for him to go back to office and preside
protected the public interest. That was over the finances of the County that
what the Trial Court did in making he has been charged with embezzling
the order requiring that the applicant from? What message does it send to the
obtained the authorisation of the CEO citizen if their leaders are charged with
of EACC before accessing his office. In serious corruption offences, and are in
the circumstances, there hadn’t been an office the following day, overseeing the
error of law that required that the instant affairs of the institution? How effective
Court revises the said order. will prosecution of such state officers be,
8. Should there be difficulty in obtaining when their subordinates, who are likely
the authorisation from the EACC, there to be witnesses, are under the direct
would be no vacuum in the County. The control of the indicted officer?
instant Court took judicial notice of the
Revision application dismissed
fact that there had been circumstances
in the past in which County Governors Orders
had, for reasons of ill health, been out
i. The terms set for the applicant’s access to his
of office, and given the fact that the
office would remain in force for the duration
Constitution provided for the seat of
of his trial.
a Deputy Governor, the Counties had
continued to function. In the instant case, ii. It was in the public interest and the interest
the applicant was charged with a criminal of the applicant that the case against the
offence; he had been accused of being in applicant in ACC No. 3 of 2019 be proceeded
moral ill-health. He was alleged to have with expeditiously.
exhibited moral turpitude that required

Legal safeguards applicable to the suspension of a magistrate from duty

for disciplinary purposes
Bryan Mandila Khaemba v Chief Justice and President of the Supreme Court of Kenya & 2
others [2019] KLR-ELRCK
Petition 100 of 2019
Employment and Labour Relations Court at Nairobi
B Ongaya, J
August 30, 2019
Reported by Beryl Ikamari

Constitutional Law-institution of a paragraph 15 of the third schedule to the Judicial

constitutional petition-parties-joinder of parties- Service Act-whether the delegation of powers to
the Attorney-General as a party-effect of failure to suspend or interdict judicial officers and other
join the Attorney-General as a party to a petition staff of the judiciary to the Chief Justice was
filed against the Government (the Judiciary)- constitutional.
Constitution of Kenya 2010, article 156.
Employment Law-employment contract-
Employment Law-contracts of service-contracts disciplinary action-suspension from duty-
of service of judicial officers and other staff of suspension of a magistrate-nature of legal
the Judiciary -law applicable to the contract of safeguards applicable to the suspension of a
service of judicial officers and other staff of the magistrate under the Third Schedule to the
Judiciary-whether the Employment Act 2007 was Judicial Service Act-Judicial Service Act, No 1 of
applicable to such contracts of service. 2011, Third Schedule.
Constitutional Law-constitutionality of Statutes-interpretation of statutory provisions-
statutory provisions-constitutionality of hierarchy of laws-subsidiary legislation-nature
29
 BB Issue 46, July - September 2019

of legislation that would constitute subsidiary to the suspension of a judicial officer or

legislation-whether the Third Schedule to the other staff of the Judiciary under the
Judicial Service Act was a form of subsidiary Third Schedule to the Judicial Service
legislation. Act?
ii. Whether failure to join the Attorney-
Constitutional Law-fundamental rights and
General as a party to a petition in which
freedoms-right to fair labour practices-where a
the Government had been sued would
magistrate was suspended without pay-legality
render the petition incompetent.
of suspension of an employee facing disciplinary
action without pay-Constitution of Kenya 2010, iii. Whether the Third Schedule to the
article 41; Judicial Service Act, No 1 of 2011, Judicial Service Act was a form of
Third Schedule, paragraph 17(3). subsidiary legislation.
iv. Whether the delegation of powers to
Employment Law-employment contract- suspend or interdict judicial officers and
termination of an employment contract- other staff of the judiciary to the Chief
termination of a magistrate’s employment Justice under paragraph 15 of the third
contract-validity of the reason for termination- schedule to the Judicial Service Act was
where a magistrate, who was away on medical constitutional.
grounds but had recovered and was at the
v. Whether it was lawful for an employer to
work premises, granted anticipatory bail to an
suspend an employee on terms that the
applicant-where operational rules envisaged
employee would not be paid during the
under section 20 of the Magistrate’s Court Act
suspension.
and which would have provided guidance for
such situations were not enacted-whether such vi. Whether the Employment Act 2007 was
termination of an employment contract was applicable to the contracts of service
valid-Magistrate’s Court Act, No 26 of 2015, of judicial officers and other staff of
section 20. the Judiciary given that the primary
applicable statute to their contracts was
Brief facts the Judicial Service Act.
The petitioner was employed as a magistrate vii. What was the effect of the absence of
in Kenya on July 1, 2010. On May 23, 2019, the operational rules envisaged under
having explained that he was unwell, the section 20 of the Magistrate’s Court
petitioner was off duty. However, he later Act where conduct which required the
went to court and handled one matter - an guidance of those rules was undertaken
application for anticipatory bail. with the consequence being that
disciplinary action was commenced
The 1st respondent asked him to explain why against a magistrate.
he handled that matter on a day he was off viii. What remedies were available for a
duty and without the requisite jurisdiction. judicial officer (magistrate) who had
He stated that he had been unwell in the been suspended indefinitely without
morning and his condition had improved compliance to the applicable procedural
by the time he went to court. He added requirements?
that he handled a particular matter after
being informed by the relevant Head of the Held
Criminal Registry of an impatient advocate 1. There was no merit in the assertion that
that was on record. He was suspended the petition was incompetent on grounds
with no pay on grounds of alleged gross of failure to enjoin the Attorney-General
misconduct and was to face disciplinary as a party. No application had been made
action. After receiving the suspension letter, for such a joinder under article 156(5)
he explained why the suspension amounted of the Constitution and the respondents
to constructive dismissal from employment. opted to appoint an advocate to represent
He then went to court seeking various reliefs them even though they were part of the
including damages and reinstatement. Government. The respondents could
therefore not benefit from their elective
Issues
omission. Generally, the rule was that a
i. What were the legal safeguards applicable petition would not be defeated by reason

30
 BB Issue 46, July - September 2019

of misjoinder of parties. Schedule to the Judicial Service Act did

2. The Constitution was the supreme law not have an enactment allowing for
of the land and everyone had a duty to the suspension of a judicial officer or
respect, uphold and defend it. Parliament other staff with nil pay. There was no
and the Executive had a duty to ensure express or implied provision that the
that legislation was consistent with the salary of a judicial officer or other staff
Constitution. When the constitutionality on suspension would be withheld or not
of legislation was questioned the Court paid during the period of suspension.
had an obligation to consider the issue of Particularly, paragraph 17(3) of the
constitutionality. Third Schedule provided for an
alimentary allowance, the amount and
3. Section 32 of the Judicial Service Act
terms of which were to be fixed under
provided for the appointment, discipline
regulations enacted by the Commission,
and removal of judicial officers and staff
for a suspended employee.
and the establishment of a committee
or panel for such purposes. Further, the 8. While the Judicial Service Act was the
Third Schedule to the Judicial Service primary Act for judicial officers and other
Act had provisions which served the staff of the Judiciary, the Employment
same purpose. That Third Schedule was Act 2007 was equally applicable
part of the Judicial Service Act and not where appropriate or necessary. The
subsidiary legislation. Employment Act was the primary
legislation for the implementation of
4. Paragraph 15 of the Third Schedule to
article 41 of the Constitution. There was
the Judicial Service Act provided for the
no reason why it should not apply to the
delegation of powers, including those
Judiciary’s staff where statute or contract
of interdiction and suspension to the
provided for terms and conditions of
Chief Justice. The petitioner did not
service that were not better than those
identify a conflict between the Judicial
imposed under the Employment Act
Service Act and the Third Schedule
2007.
to the Judicial Service Act. It was not
shown that in enacting the provision on 9. It was unconstitutional for an employer
delegation Parliament acted irrationally to suspend an employee without
or unreasonably or unconstitutionally. pay. That would amount to unfair
labour practices under article 41 of
5. The delegation of powers, including
the Constitution. In the absence of a
those of interdiction and suspension,
contrary provision, a judicial officer
entailed an administrative role which
or other staff of the Judiciary who had
could efficiently and effectively be
been suspended was entitled to full pay.
vested in the Chief Justice as the Head
During the disciplinary process such an
of the Judiciary. Therefore, there was
employee should not suffer but should
no conflict between paragraphs 15 and
instead enjoy full pay. The provisions of
17 of the Third Schedule to the Judicial
paragraph 17(3) of the Third Schedule
Service Act and sections 14 and 32 of the
relating to the alimentary allowance for
Judicial Service Act.
suspended staff and the Commission’s
6. There was a mix-up in paragraph 15 of failure to fix the amount and terms
the Third Schedule to the Judicial Service of that allowance did not mean that
Act as related to the correct numbering of the employer’s obligation to pay
the provisions on the power to interdict remuneration was discharged.
and the power to suspend an employee
10. The suspension of the petitioner via
for disciplinary purposes. Those powers
a letter did not comply with the legal
were provided for under the Third
safeguards relating to such suspension.
Schedule to the Judicial Service Act
Those safeguards were that:-
and power to interdict should be under
paragraph 16 and not 17 while the power a) the conditions attached to the
to suspend should be under paragraph suspension would have to be legally
17 and not 18. prescribed-the applicable provisions
did not require suspension without
7. The Judicial Service Act and the Third

31
 BB Issue 46, July - September 2019

pay, hand-over of all Government and other statutory instruments.

stores in the petitioner’s possession 13. The manner in which the petitioner
and preparation of a detailed hand- was suspended infringed on his
over report; rights to fair labour practices and the
b) the requirements for a valid protection offered to public offices
suspension under paragraph 17 of under article 236 of the Constitution.
the Third Schedule, which included The suspension was also premature in
commission of a serious crime or view of the prescribed legal regime and
proceedings for dismissal where the therefore the petitioner’s rights to fair
Chief Justice was of the opinion that administrative action under article 47 of
the officer ought to be dismissed, the Constitution were violated.
were not met-the suspension letter 14. The petitioner established that the
was only a show-cause notice and suspension was done in breach of the
the petitioner had not committed a applicable law and that there were no
serious crime; internal mechanisms that could remedy
c) disciplinary proceedings could not the grievance. The petitioner was
be commenced under paragraph therefore entitled to move the Court for
17(2) of the Third Schedule to the a remedy.
Judicial Service Act unless the 2nd 15. The prayer for punitive and aggravated
respondent made a determination in damages would fail. The 1st respondent
accordance with paragraph 25(3) that acted in good faith and it was not shown
the proceedings against that officer that the respondents released any
should continue-the suspension information to the social or mainstream
of the petitioner without that media.
determination was premature; and,
16. There were violations of fundamental
d) there was a failure of pay the rights and freedoms in the suspension.
mandatory alimentary allowance Considering that, it was sufficient for
provided for under paragraph 17(3) the petitioner to be paid all salaries,
of the Third Schedule. allowances and benefits withheld
11. The petitioner was suspended throughout the suspension and to
indefinitely without the observance of continue in employment without loss of
legal safeguards attendant to that process rank, status, and all attached benefits.
and he was entitled to lament that he had 17. The 1st respondent acted in good faith
been dismissed constructively. and section 45(1) of the Judicial Service
12. On the question as to whether there Act, which shielded the members of the
was a valid reason for the termination, 2nd respondent from civil action relating
it was clear that the petitioner handled to the performance of official functions
Miscellaneous Criminal Application in good faith, was applicable. For that
No. 222 of 2019 while he was supposed reason, there would be no finding that
to be off-duty on medical grounds but the 1st respondent violated articles 10,
had resumed work after getting better. 73, 232, and 236 of the Constitution.
The operational rules that would have 18. As the suspension was unlawful, the
provided guidance as envisaged under petitioner was entitled to the orders of
section 20 of the Magistrate’s Court Act prohibition or a permanent injunction.
2015 were not available. To the extent
19. It was not established by the petitioner
that there was such an operational
that paragraph 15 of the Third Schedule
deficiency, the petitioner would not be
to the Judicial Service Act was in conflict
held culpable if he was taking a positive
with sections 13, 14, and 32 (1) and
initiative in good faith and towards good
32(3) of the Judicial Service Act and
and responsive judicial service delivery.
no declaration would be issued in that
There were operational policies in place
regard.
but such administrative policies could
not substitute instances where statute Petition partly allowed.
required the making of rules, regulations Orders:-

32
 BB Issue 46, July - September 2019

i. The respondents were to pay the petitioner injunction was issued to prohibit and
all salaries, allowances and all other due permanently restrain the respondents by
contractual and statutory benefits withheld themselves, or by their officers or agents from
throughout the suspension period to date implementing the decision contained in the
and to allow him to continue in employment 1st respondent’s letter of June 13, 2019 and
without loss of rank, status, and all attached from taking any adverse action against the
benefits; and the respondents were to pay the petitioner pursuant to the said decision.
petitioner the due sum of money by November v. The judicial review order of mandamus was
1, 2019, failing which interest at Court rates issued to direct the respondents to reinstate
would be payable thereon from the date of the the petitioner to his employment including the
judgment till full payment; and further the reinstatement of his salary and employment
petitioner was to report to the respondents benefits.
forthwith and not later than September
vi. The petitioner was to serve the judgment
9, 2019 for appropriate deployment and
upon the Attorney – General within 7
assignment of duty.
days towards the Attorney-General taking
ii. The respondents infringed the petitioner’s appropriate action within his constitutional
fundamental rights as guaranteed under and statutory roles to correct the anomaly
articles 41 and 47(1) of the Constitution of the Court identified in the numbering of
Kenya, 2010. paragraphs as referred to in paragraph 15
iii. The judicial review order of certiorari of the Third Schedule of the Judicial Service
was issued to quash the decision of the 1st Act.
respondent as contained in the letter dated vii. The respondents were to pay the petitioner’s
June 13, 2019. costs of the petition.
iv. The order of prohibition and permanent

Court holds that there is a need to clearly set out the connecting threads
to the provisions of the Children Act and the Victim Protection Act so as
to ensure victims of crime, who are children, are protected
Daniel Onyondi Moi v Republic [2019] KLR-HCK
Criminal Case No 2 of 2017
High Court at Nyeri
MT Matheka, J
June 28, 2019
Reported by Ian Kiptoo
Criminal Law – victims of crime – protection of section 204 of the Penal Code making him
victims of crimes – where victims of a crime were liable to the death penalty. The Court ordered
children of the deceased – where the meeting point a pre-sentence report which was filed by the
of the provisions of the Children Act and Witness Probation Office. The deceased was a mother
protection Act had not been clearly set - whether the of four children who had to be separated to
criminal trial process provided for the protection of live with different relatives following her
the welfare of victims of crime who were children – death.
Children Act, sections 2, 4, 119, 120 and 125
Issues
Criminal Law - sentencing – court’s discretion in
i. Whether the criminal trial process
sentencing of murder cases – applicable guidelines
provided for the protection of the welfare
in regards to mitigating factors - whether courts
of victims of crime who were children.
could depart from the Muruatetu case prescribing
exercise of discretion in an accused person’s favour ii. Whether there was a need to clearly
in regard to sentencing for the conviction of a set out the connecting threads to the
murder charge provisions of the Children Act and the
Victim Protection Act so as to ensure
Brief Facts victims of crime, who were children,
were protected.
The accused person was found guilty of
iii. Whether courts could depart from the
murder contrary to section 203 as read with

33
 BB Issue 46, July - September 2019

Muruatetu case prescribing exercise of Services for appropriate action to take

discretion in an accused person’s favour place simultaneously with the criminal
in regard to sentencing for the conviction case.
of a murder charge. 4. A police officer could open a protection
Held and care file simultaneously with a
criminal file and have them registered in
1. The pre-sentence report indicated that court leaving the children matter to be
the accused’s family knew him as a good pursued by the Children Officer under
person – laying blame on alcohol and the provisions of sections 119, 120 to 125
bad company and would welcome him of the same Act. He could bring the court’s
back. The larger community represented attention, through the prosecution,
by the elders and local administration the plight of the children during the
stated that the offence was a taboo and preliminaries of the criminal case so
that the accused ought to spend some that the court could give appropriate
time in custody. The probation officer directions. That was because every day
recommended a lenient sentence as the for a growing child was precious.
accused was not depicted as a person with
5. Despite what the Court did with the
a pro - criminal record.
accused person, for the deceased’s
2. The protection of the welfare of the victim children, justice would not be seen to
was not as guaranteed as participation have been done until life was breathed
of victims in Kenya’s criminal justice into the implementation of the Children
processes which was to some extend Act and the Victims Protection Act to safe
guaranteed. The Victims Protection guard and protect their welfare.
Act made provision for the welfare of
6. The appropriate guidelines were set out
Victims. But that was where it stopped.
in the Francis Kariko Muruatetu & another
The connecting threads between its
and Republic and others (2017) eKLR by
provisions, those of the children Act and
the Supreme Court by amending the
the Criminal Justice System had not been
provisions of the Judiciary Sentencing
clearly set out. Hence the glaring that
Guidelines for Murder. To avoid a lacuna,
upon the arrest of the perpetrator, the
the following guidelines with regard to
thinking of the criminal justice system
mitigating factors were applicable in a re-
was linear- single sight vision dealing
hearing sentence for the conviction of a
with the perpetrator. There was need
murder charge:
for a meeting point to ensure that those
laws worked hand in hand- a meeting a. age of the offender;
point needed to be found to ensure that b. being a first offender;
even as the court dealt with the criminal c. whether the offender pleaded guilty;
matter – the court was also dealing with
d. character and record of the offender;
the welfare of the victims – there should
be no disjoint of efforts. e. commission of the offence in response
to gender-based violence;
3. A police officer was an authorized officer
as per section 2 of the Act. Authorized f. remorsefulness of the offender;
officer meant a police officer, an g. the possibility of reform and social re-
administrative officer, a children’s officer, adaptation of the offender; and
an approved officer, a chief appointed h. any other factor that the Court
under the Chiefs’ Act, a labour officer considered relevant.
or any other officer authorized by the The guidelines in no way replaced
Director for the purposes of the Act; For judicial discretion. They were advisory
example, an Investigating officer who and not mandatory. They were geared to
found that there were child victims as promoting consistency and transparency
in the instant case, who by virtue of the in sentencing hearings.
killing of their mother became not only
7. In spite of the discretion granted in
victims but children in need of care and
the Muruatetu case, the accused person
protection under section 119 of the
was not deserving of the exercise of the
Children Act, ought to be able to refer
Court’s discretion in his favour. What
the case to the Department of Children

34
 BB Issue 46, July - September 2019

he did and the way he did it flew in the the family had to be protected by people
face of the basis upon which justice understanding that there were better ways
could be tempered with mercy. A careful to resolve disputes. If it was not tolerable,
consideration of the mitigation, the that it was better to walk away and forget
pre-sentence report, the state of the that relationship. Kenya’s society had
victims and manner in which the offence to revive its revulsion to any form of
was committed set it apart from other violence; have no tolerance to domestic
murders. It demonstrated the reason violence and gender based violence. The
why the Muruatetu holding was long message had to be heard loud and clear,
overdue. There was need to consider the killing girlfriends; wives, boyfriends and
circumstances of each offence, offender, husbands would not be tolerated by the
and victims in arriving at the sentence and society. If a relationship went sour, if a
the courts needed to have that discretion marriage broke down, then those people
in the interests of justice. in it had to have the human sense to walk
8. Courts had to send the strongest message away and seek other solutions.
that marital/relationship disputes could The accused was sentenced to death as prescribed
not, should not/ should never be resolved by law. Right of appeal within 14 days.
through killing or causing any harm to
the other party. The sanctity of love and
The withdrawal of guidelines and training curriculums in the health
sector without back up mechanisms violated the right to the highest
attainable standard of health for women and girls
Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others;
East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link
Worldwide & 2 others (Amicus Curiae) [2019] KLR-HCK
Petition 266 of 2015
High Court at Nairobi
A O Muchelule, M Ngugi, G V Odunga, L A Achode & J M Mativo, JJ
June 12, 2019
Reported by Kakai Toili

Constitutional Law – fundamental rights and constitutional provisions – interpretation

freedoms – enforcement of fundamental rights of article 26(4) of the Constitution -whether
and freedoms - right to the highest attainable article 26(4) of the Constitution which dealt
standard of health – where standards and with abortion meant that abortion was legal –
guidelines for reducing morbidity and mortality Constitution of Kenya, 2010, article 26; Sexual
from unsafe abortion in Kenya and the national Offences Act, section 35(3); Penal Code, section
training curriculum for the management of 158, 159 and 160
unintended, risky and unplanned pregnancies
were withdrawn – where no back up mechanisms Constitutional Law – fundamental rights and
were put in place of the withdrawn guidelines - freedoms – enforcement of fundamental rights
whether the withdrawal of the 2012 standards and freedoms - limitation of fundamental rights
and guidelines for reducing morbidity and and freedoms - what were the circumstances in
mortality from unsafe abortion in Kenya and the which fundamental rights and freedoms could be
national training curriculum for the management limited – what were the requirements to be met
of unintended, risky and unplanned pregnancies under the proportionality test for there to be a
without back up mechanisms violated the right limitation of fundamental rights and freedoms -
to the highest attainable standard of health for Constitution of Kenya, 2010, article 24
women and girls – Constitution of Kenya, 2010, Statutes – doctrine of implied repeal – application
article 26 & 43; Health Act, 2017, section 2 & of the doctrine of implied repeal - when could the
6; International Conference on Population and doctrine of implied repeal be applied
Development Program of Action 1994, paragraph
7.2 Constitutional Law - national values and
principles of governance - public participation –
Constitutional Law – interpretation of public participation in withdrawal of public policy
35
 BB Issue 46, July - September 2019

documents - whether public policy documents had pregnant. She procured an abortion which
to be subjected to public participation before they led to her experiencing complications. She
were withdrawn - Constitution of Kenya, 2010, was later on taken to Kenyatta National
article 10 & 23(4) Hospital where at the time of her discharge
her diagnosis was that she had had a septic
Medical Law – medical services - Director of abortion and haemorrhagic shock and had
Medical Services – powers of – withdrawal developed chronic kidney disease. The
of guidelines and training curriculums in the petitioner died before the instant petition
health sector - whether the Director of Medical was determined. The petitioners argued that
services had the power to withdraw standards and the DMS had no power to unilaterally and
guidelines on abortion and the national training arbitrarily withdraw the 2012 Standards and
curriculum for the management of unplanned Guidelines and the Training Curriculum;
pregnancies that the withdrawal left a gap and exposed
Constitutional Law - fundamental rights and the 2nd petitioner and others in her position
freedoms – enforcement of fundamental rights to a denial of, inter alia, their reproductive
and freedoms –where there was a violation of health rights.
fundamental rights and freedoms – assessment Issues
and award of damages for violation of rights -
principles applicable to assessment and award i. Whether the withdrawal of the
of damages - what were the principles to be 2012 Standards and Guidelines for
considered in awarding damages for violation of Reducing Morbidity and Mortality
fundamental rights from Unsafe Abortion in Kenya and the
National Training Curriculum for the
Words and Phrases – conception – definition of Management of Unintended, Risky and
conception - the fecundation of the female ovum Unplanned Pregnancies without back
by the male spermatozoon resulting in human life up mechanisms violated the right to the
capable of survival and maturation under normal highest attainable standard of health for
conditions – Black’s Law Dictionary women and girls.
Brief Facts ii. Whether article 26(4) of the Constitution
which dealt with abortion meant that
In September 2012, the Ministry of Medical abortion was legal.
Services, pursuant to a consultative process, iii. What were the circumstances in which
issued the 2012 Standards and Guidelines fundamental rights and freedoms could
for Reducing Morbidity and Mortality be limited?
from Unsafe Abortion in Kenya (2012
iv. What were the requirements to be met
Standards and Guidelines), and the National
under the proportionality test for there
Training Curriculum for the Management
to be a limitation of fundamental rights
of Unintended, Risky and Unplanned
and freedoms?
Pregnancies (the Training Curriculum).
However, by a letter dated December 3, 2013, v. When could the doctrine of implied
the 3rd respondent (DMS) withdrew both repeal be applied?
the 2012 Standards and Guidelines and the vi. Whether public policy documents had
Training Curriculum. Thereafter, by a memo to be subjected to public participation
directed to all Health Workers (Memo), the before they were withdrawn.
DMS directed all those to whom it was vii. Whether the Director of Medical services
addressed not to participate in any training on had the power to withdraw standards and
safe abortion and use of medabon(medicines guidelines on abortion and the national
for inducing abortion). It stated that anybody training curriculum for the management
attending the trainings or using the drug of unplanned pregnancies.
medabon would be subjected to appropriate viii. What were the principles to be considered
legal and professional proceedings. in awarding damages for violation of
In the year 2014 the 2nd petitioner, fundamental rights?
who was 18 years, was forced into sexual Held
intercourse and in the process she got
1. Article 26(4) of the Constitution was

36
 BB Issue 46, July - September 2019

one of the articles that was flagged article dealing with the right to life.
out as a contentious question during That was not by inadvertence, the
the deliberations leading to the drafters of the Constitution considered
Constitution. The end product that abortion as an intentional deprivation
was incorporated in article 26 was a of a life. Accordingly, abortion had to be
compromise of the differing views contradistinguished from miscarriage.
expressed by the various camps. The The word abortion as applied in article
Constitution should be given a broad, 26(4) of the Constitution did not apply
liberal and purposive interpretation to to miscarriage. Interpretation of the
give effect to its fundamental values and Constitution had to be progressive.
principles. That purposive approach, 5. The opening statement of article 26(4)
would take into account the agonized of the Constitution was that abortion
history attending Kenya’s constitutional was not permitted, that, was the general
reform. Therefore the Constitution had rule. The drafters of the Constitution
to be interpreted within the context had to have had a very good reason for
of social and economic development opening the said clause in that manner as
keeping in mind the basic philosophy opposed to, for example, starting with the
behind the particular provisions of the statement that abortion was permitted
Constitution. and then setting out the circumstances
2. As a result of the compromise, one of under which it was permitted. Article
the fundamental changes made to the 26(4) did not mean that abortion was
Parliamentary Select Committee on legal. Abortion was not lawful in Kenya;
the Review of the Constitution (PSC it stood prohibited as provided under
Draft) was the substitution of the term sections 158, 159 and 160 of the Penal
“registered medical practitioner” with Code.
“a trained health professional.” That 6. Article 26(4) of the Constitution provided
was due to the fact that the requirement a proviso or exception to the general
that abortion could be performed by rule that abortion was not permitted.
medical practitioners alone would mean Article 26(4) made an exception to the
that women in poor rural communities general rule when it exempted situations
without such services would be unable in which a trained health professional
to procure abortions with potentially formed the opinion that there was need
serious or fatal repercussions for some for emergency treatment, or the life
poor women. In other words, the or health of the mother was in danger,
Committee appreciated that in rural or if permitted by any other written
areas where majority of Kenyans lived; law. It was therefore clear that there
there was a scarcity of the services of was a window given to Parliament to
registered medical practitioners. legislate situations where abortion was
3. Article 26 (1) of the Constitution applied permissible.
to a natural person as opposed to a legal 7. The social context in which abortion
person. According to article 26(2), the took place was one in which there was
life of such a person begun at conception. a high incidence of sexual violence
The parties in the instant case could not amongst the poor women and girls. The
take issue with article 26(1) and (2) since bulk of those who sought abortion in
article 2(3) of the Constitution barred unsafe environments sought treatment
any challenge being taken to the validity in public health institutions. That was
or legality of the Constitution. the situation of the 2nd petitioner, who
4. Since life begun at conception, the ended up at the Kisii Level 5 hospital,
Constitution was clear that a person a public referral hospital. Her ordeal
should not be deprived of life intentionally, presented a classic case of a failed health
except to the extent authorised by the care system lacking in both skilled staff,
Constitution or other written law. The facilities and a proper referral system.
drafters of the Constitution deemed The 2nd petitioner’s situation illustrated
it fit to deal with abortion under the the need for training to impart the

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 BB Issue 46, July - September 2019

requisite skills and knowledge and create law, and the objective of the law had
an environment in which the incidence to be pressing and substantial and
of maternal deaths as a result of unsafe had to be important to society. One of
abortions could be addressed. the principles in the case concerning
8. There was a need to address the challenge reasonableness of the limitation was that
posed by unsafe abortion in Kenya. To the interest underlying the limitation had
do otherwise was to leave women and to be of sufficient importance to outweigh
girls such as the 2nd petitioner without the constitutionally protected right
recourse to information on safe services, and the means had to be proportional
and was a violation of their rights under to the object of the limitation. Since
the Constitution and international what was at stake was the limitation of
instruments that protect their human fundamental rights, that had to mean
rights. the legislative objective of the limitation
law had to be motivated by substantial as
9. The right to life was guaranteed under
opposed to trivial concerns and directed
international conventions to which
towards goals in harmony with the
Kenya was a party and which were, in
values underlying a democratic society.
accordance with article 2(5) and (6) of
The proportionality test required the
the Constitution part of Kenyan law.
following of any limitation;
The term health was defined by the
World Health Organization as a state a. that it be rationally connected to its
of complete physical, mental and social objective,
well-being, and was not only the absence b. that it impaired the right or freedom
of disease or infirmity. That was also as little as possible and
the definition of health contained in c. that there was proportionality
the Protocol to the African Charter on between its effects and its objectives.
Human and Peoples’ Rights on the Rights
12. The constitutional provisions with
of Women in Africa.
respect to abortion in a situation in which
10. The inter-linkage and inter-dependence emergency treatment was required,
of rights was recognised, and in or where the life of the mother was in
that regard, the right to health was danger, were not disputable. The use of
an underlying determinant of the the term ‘trained health professional’
enjoyment of other rights. In addition, instead of ‘a medical doctor’ in the
with respect to women and girls, the Constitution was a concession to the
right to health under the Constitution dearth of qualified medical doctors in
encompassed the right to reproductive many of Kenya’s health facilities. Many
health care. Women and girls had of the first line health facilities to which
rights, in common with every other women and girls in need of reproductive
citizen, guaranteed to them under the health services go to were manned by
Constitution. However, because of their nurses and clinical officers.
sex, they were also guaranteed rights that
13. The Penal Code prohibited abortion,
were specific to them, the reproductive
however, it was an Act of Parliament that
rights guaranteed under article 43 (1) (a)
predated the Sexual Offences Act, 2006,
of the Constitution. Since the State had
and the Constitution. The provisions
an obligation under article 21(1) of the
of the Sexual Offences Act which was
Constitution to observe, respect, protect,
later in time took precedence. That was
promote and fulfill the rights guaranteed
based on the doctrine of implied repeal,
under the bill of rights, and to take
under which, if the provisions of an Act
legislative, policy and other measures,
were inconsistent with the provisions
including the setting of standards, to
of an earlier Act. The earlier provisions
achieve the progressive realisation of the
could be impliedly repealed by the later
rights guaranteed under article 43, then
legislation.
any action that limited or diminished that
right was a violation of the Constitution. 14. The Constitution having provided a
right to abortion where, in the opinion
11. The limitation of rights had to be by
of a trained health professional there

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 BB Issue 46, July - September 2019

was need for emergency treatment, required under the Constitution. Their
or that the life or health of the mother withdrawal however did not follow
was in danger, the apparent blanket the same process, they were arbitrarily
prohibition of abortion under the Penal withdrawn. A decision to withdraw a
Code could not stand. That was because, public policy document had to similarly
in accordance with sections 6 and 7 of be subjected to the constitutional
the 6th Schedule to the Constitution, dictates. It was a power that could
the provisions of the Penal Code had to not therefore be arbitrarily exercised.
be read with the necessary alterations, Arbitrary exercise of power, even where
adaptations, qualifications and it existed, was a ground to grant a judicial
exceptions to bring it into conformity review relief which was one of the reliefs
with the Constitution. While the said under article 23(3) of the Constitution.
section was still valid in so far as unlawful 17. Article 43(1) (a) of the Constitution
abortions were concerned, the same had provided that every person had the right
to be read taking into consideration the to the highest attainable standard of
provisions of the Constitution as well as health, which included the right to health
the Sexual Offences Act. care services, including reproductive
15. Women and girls in Kenya who found health care. Abortion in constitutionally
themselves pregnant as a result of sexual permissible circumstances was clearly a
violence had a right, under Kenyan right since article 26 of the Constitution
law, to have an abortion performed fell under the bill of rights. The arbitrary
by a trained health professional if that withdrawal of the 2012 Guidelines
health professional formed the opinion and Training Curriculum clearly left
that the life or health of the mother was those to whom the rights thereunder
in danger. Health, encompassed both were bestowed, women and girls to the
physical and mental health. While Kenya vagaries of medical quacks and backstreet
made a reservation to article 14 (2)(c) of services. Their withdrawal amounted to
the Maputo Protocol, it was instructive a limitation of the said right.
that the words of the article mirrored 18. Article 24 (1) of the Constitution
in some respects the words used in permitted limitation of rights only to
the Constitution. Kenya was also a the extent that it was reasonable and
signatory to the International Covenant justifiable in a democratic society.
on the Elimination of all Forms of The test of what was acceptable and
Discrimination against Women. In its demonstrably justifiable for the purposes
recommendations adopted after its 11th of limitation imposed on the freedoms
General Session in 1992, the Committee of expression and freedom of the press
required states to, among other things, in a free and democratic society did not
enact and enforce laws and policies that have to be a subjective one. The test
protect women and girls from violence had to conform to what was universally
and abuse and provide for appropriate accepted to be a democratic society
physical and mental health services. It since there could be no varying classes
also required that health-care workers of democratic societies. International
should also be trained to detect and human rights bodies had developed a
manage the health consequences of detailed guidance on how the restrictions
violence against women. Sexual violence on a right could be applied and to meet
exacted a major and unacceptable toll on the three part test described as:
the mental health of women and girls.
a. The restrictions had to be prescribed
Whether the violence occurred in the
by law: that meant that a norm had
home or in situations of conflict, women
to be formulated with sufficient
suffered unspeakable torment as a result
precision to enable an individual
of such violence.
to regulate his or her conduct
16. The 2012 Standards and Guidelines and accordingly.
the Training Curriculum were public
b. Restrictions had to pursue a
policy documents and were the product
legitimate aim, exhaustively
of a public participatory process as

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 BB Issue 46, July - September 2019

enumerated in article 19(3) (a) and attainable standard of health for women
(b) of the International Covenant on and girls was not by law. The said
Civil and Political Rights as respect action of the DMS neither specifically
of the rights or reputations of others, expressed the intention to limit that right
protection of national security, public or fundamental freedom, and the nature
order, public health or morals. and extent of the limitation was not clear
c. Restrictions had to be necessary and and specific about the right or freedom
proportionate to secure the legitimate to be limited and the nature and extent of
aim: Necessity required that there the limitation. In addition, considering
had to be a pressing social need for relation between the limitation and
the restriction. The party invoking its purpose and whether there were
the restriction had to show a direct less restrictive means to achieve the
and immediate connection between purpose, the limitation did not meet the
the expression/information and the proportionality test. The State, which
protected interest. However, the under article 24(3) of the Constitution
premise of the memo was misguided shouldered the burden of demonstrating
and thus not necessary. that the requirements of that article had
been satisfied had failed to do so. If the
19. In the instant case the limitation of the
only issue was the misuse of otherwise
right to the highest attainable standard
useful 2012 Standards and Guidelines
of health for women and girls was a
and Training Curriculum, there were
negative act of arbitrary withdrawal of
available mechanisms to stop the same
the facilitating instruments. No back
otherwise than by withdrawal of the
up mechanisms was put into place to
said instruments. The withdrawal of the
facilitate the said rights in the absence of
2012 Standards and Guideline and the
the said 2012 Standards and Guidelines
Training Curriculum was unreasonable,
and Training Curriculum. The
drastic and unjustifiable in a democratic
National Guidelines on Management
society.
of Sexual Violence in Kenya, 2014
(2014 Guidelines), apart from drawing 22. A holistic reading of article 43 of the
attention to the constitutional provisions Constitution with the Health Act
did not guide the health professionals led to the conclusion that the 2nd
on the circumstances in which the said petitioner was entitled to emergency
rights were to be attained. The 2014 treatment including post-abortal
Guidelines did not meet the threshold care. All persons who were in need of
of precision required under article 24 of treatment were entitled to health care
the Constitution. and it did not matter the circumstances
under which they found themselves
20. To the extent that the withdrawal of
in those situations. Post-abortal care
the 2012 Standards and Guidelines and
was wanting in the facilities, which
Training Curriculum was by the DMS
ordinarily ought to have had such care,
as opposed to the Medical Practitioners
such as Kisii Level 5 Hospital. The post-
and Dentists Board(Board), the act itself
abortal care she received in the hospital
was ultra vires and unlawful. There was
was wanting, there was no doctor in
no absolute rule governing the question
the hospital to attend to her, and there
of delegation, but in general, where a
were no dialysis services available.
power was discretionary and could affect
Apart from that, the 2nd petitioner was
substantial rights, a power of delegation
subjected to travel a long distance from
would not be inferred, although it could
Kisii Level 5 to Tenwek Hospital in a taxi
be in matters of a routine nature. In the
due to her inability to afford ambulance
instant case there was no evidence that
services, services which ought to have
the Board made the decision to withdraw
been afforded as part of emergency
the said documents. There was, however,
treatment services. As a result of those
no express power to delegate and such
deficiencies, the 2nd petitioner’s mother
inference could not be made.
as the personal representative of the
21. The limitation of the right to the highest estate of the petitioner was entitled to

40
 BB Issue 46, July - September 2019

comprehensive reparation including a. Monetary compensation for

indemnification for material and violation of fundamental rights was
emotional harm suffered as a result an acknowledged remedy in public
of the actions and omissions of the law for enforcement and protection
respondents. of fundamental rights;
23. The purpose of public law was not only b. such claim was distinct from, and in
to civilize public power but also to addition to a remedy in private law
assure the citizens that they lived under for damages for tort;
a legal system which aimed to protect c. that remedy would be available when
their interests and preserve their rights. it was the only practicable mode of
Therefore, when the court moulded redress available;
the relief by granting compensation
d. against a claim for compensation
in proceedings under article 23 of the
for violation of a fundamental right
Constitution or seeking enforcement
under the Constitution, the defence
or protection of fundamental rights, it
of sovereign immunity would be
did so under the public law by way of
inapplicable.
penalizing the wrongdoer and fixing
the liability for the public wrong on the 26. An award of compensation would go
State which had failed in its public duty some distance towards vindicating the
to protect the fundamental rights of the infringed constitutional right. How far it
citizen. The payment of compensation went would depend on the circumstances,
in such cases was not to be understood but in principle it could well not suffice.
as it was generally understood in a civil The fact that the right violated was
action for damages under the private law a constitutional right added an extra
but in the broader sense of providing dimension to the wrong. An additional
relief by an order of making monetary award, not necessarily of substantial
amends under the public law for the size, could be needed to reflect the
wrong done due to breach of public duty, sense of public outrage, emphasise the
by not protecting the fundamental rights importance of the constitutional rights
of the citizen or by subjecting the citizen and the gravity of the breach, and deter
to acts which amounted to infringement further breaches. All those elements
of the Constitution. had a place in helping the Court arrive
at a reasonable award. The Court had
24. An award of compensation against the
to consider and have regard to all the
State was an appropriate and effective
circumstances of the instant case.
remedy for redress of an established
infringement of a fundamental right Petition partly allowed
under the Constitution. The quantum of i. A declaration was issued that the right to the
compensation would, however, depend highest attainable standard of health, right
upon the facts and circumstances of to non-discrimination, right to information,
each case. In principle, constitutional consumer rights, and right to benefit from
damages as a relief, separate and distinct scientific progress of the 2nd, 3rd, and 4th
from remedies available under private petitioners as women of reproductive age
law were competent. That was because a and other women and adolescent girls
violation of a constitutional right had to of reproductive age whose interest they
of necessity find a remedy in one form or represented had been violated and/or
another, including a remedy in the form threatened by the 3rd respondent’s letter of
of compensation in monetary terms. December 3, 2013, reference number MOH/
25. Award of damages entailed exercise CIR/2/1/2, and Memo dated February 24,
of judicial discretion which should be 2014, reference number MOH/ADM/1/1/2;
exercised judicially. The discretion had ii. A declaration was issued that the 3rd
to be exercised upon reason and principle respondent’s Memo dated February 24,
and not upon caprice or personal opinion. 2014, reference number MOH/ADM/1/1/2
The following principles emerged from violated or threatened the rights of health
decided cases: care professionals to information, freedom of

41
 BB Issue 46, July - September 2019

expression and association, consumer rights, the opinion of a trained health professional,
and right to benefit from scientific progress; posed a danger to the life or the health
iii. An order was issued decreeing that the 3rd (physical, mental and social well-being) of
respondent’s letter dated December 3, 2013, the mother could be terminated under the
reference number MOH/CIR/2/1/2, and the exceptions provided under article 26 (4) of
Memo dated February 24, 2014, reference the Constitution.
number MOH/ADM/1/1/2, were unlawful, vi. An order was issued directing the respondents
illegal, arbitrary, unconstitutional, and thus jointly and or severally to pay PKM a sum
null and void ab initio, and were thereby of Ksh. 3,000,000/= being compensation for
quashed; the physical, psychological, emotional and
iv. A declaration was issued declaring that mental anguish, stress, pain, suffering and
abortion was illegal in Kenya save for the death of JMM occasioned by respondents
exceptions provided under article 26(4) of the violation of JMM’s constitutional rights.
Constitution. vii. An order was issued for all parties to bear
v. A declaration was issued that pregnancy their own costs of the suit, because the petition
resulting from rape and defilement, if in was brought in the public interest.

Some rights reserved by Dan Lundberg

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 BB Issue 46, July - September 2019

Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department

“CaseBack” is a service provided by Kenya Law to Judicial Officers alerting the judicial officer
when his or her decision has been considered by a court of higher jurisdiction or where the
case or any aspect of it has been substantially considered by any other court. A judicial officer
whose decision has been considered receives an alert along with the decision of the higher
court or the court considering it immediately that decision is received by the Council.

Hon. Maureen Nabibya I appreciate your work kenyalaw. It has

SRM made our work very easy and enjoyable.
Hamisi Law Courts

Hon. Justice Olga Sewe

High Court of Kenya at Received with appreciation.
Eldoret

Hon. Electer Akoth Riany

SRM Much appreciated..
Traffic court
Milimani Law Courts

Hon. Justice Byram

Ongaya
Employment and Labour Thank you.
Relations Court
(Nairobi)

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 BB Issue 46, July - September 2019

Legislative Updates
By Christine Thiong’o & Rachel Muriithi, Laws of Kenya Department

This is a synopsis of legislation in the form of Bills and Acts of Parliament that have
been published in the period between May - September 2019.

A. ACTS OF PARLIAMENT

ACT HEALTH LAWS (AMENDMENT) ACT, 2019

Act No. No. 5 of 2019

Commencement 17th May, 2019
Objective This Act amends the following health- related laws:
i. Pharmacy and Poisons Act (Cap. 244);
ii. Medical Practitioners and Dentists Act (Cap 253);
iii. Nurses Act (Cap. 257);
iv. Kenya Medical Training College Act (Cap. 261);
v. Nutritionists and Dieticians Act (No. 18 of 2007);
vi. Kenya Medical Supplies Authority Act, 2013 (No. 20 of
2013);
vii. Counsellors and Psychologists Act, 2014 (No. 14 of 2014);
viii. Physiotherapists Act, 2014 (No. 20 of 2014);
ix. Health Records and Information Managers Act, 2016 (No.
15 of 2016);
x. Clinical Officers (Registration and Licensing) Act, 2017
(No. 20 of 2017).

ACT NATIONAL COHESION AND INTEGRATION (AMENDMENT)

ACT, 2019
Act No. No. 6 of 2019
Commencement 2nd July, 2019
Objective This is an Act of Parliament to amend the National Cohesion and Inte-
gration Act, 2008 (No. 12 of 2008). It amends provisions dealing with:
i. Membership of the Commission;
ii. Powers of the Chairperson;
iii. Qualification of Commissioner; and
iv. Term of Office of the Chairperson and Commissioners.

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 BB Issue 46, July - September 2019

ACT SPORTS (AMENDMENT) ACT, 2019

Act No. No. 7 of 2019
Commencement 2nd July, 2019
Objective This Act amends the Sports Act, 2013 (No. 25 of 2013) to provide a
comprehensive approach to financing of the sports sector through a
fund established and managed in accordance with the Public Finance
Management (Sports, Arts, and Social Development Fund) Regulations,
2018.

ACT WAREHOUSE RECEIPT SYSTEM ACT, 2019

Act No. No. 8 of 2019
Commencement 2nd July, 2019
Objective This Act provides a legal framework for the development and
regulation of a warehouse receipt system for agricultural com-
modities, and the establishment of the Warehouse Receipt Sys-
tem Council.

ACT SUPPLEMENTARY APPROPRIATION ACT, 2019

Act No. No. 9 of 2019
Commencement 20th June, 2019
Objective An Act of Parliament to authorize the issue of certain sums
of money out of the Consolidated Fund and their application
towards the service of the year ending on the 30th June, 2019,
and to appropriate those sums for certain public services and
purposes.

ACT INSURANCE (AMENDMENT) ACT, 2019

Act No. No. 11 of 2019
Commencement 23rd July, 2019
Objective This Act amends Insurance Act (Cap 487) by providing inter alia for:
i. Advance payment of premiums;
ii. Power of Authority to settle disputes; and
iii. Offences on Insurance Fraud.

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 BB Issue 46, July - September 2019

ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2019

Act No. No. 12 of 2019
Commencement 23rd July, 2019
Objective This Act amends the following Acts:
i. Districts and Provinces Act, 1992 (No. 5 of 1992);
ii. Merchant Shipping Act, 2009 (No. 4 of 2009);
iii. Alcoholic Drinks Control Act, 2010 (No. 4 of 2010);
iv. Tourism Act, 2011 (No. 28 of 2011);
v. Public Finance Management Act, 2012 (No. 18 of 2012);
vi. Prevention of Terrorism Act, 2012 (No. 30 of 2012);
vii. Kenya Law Reform Commission Act, 2013 (No. 19 of 2013);
viii. Value Added Tax Act, 2013 (No. 35 of 2013);
ix. Wildlife Conservation and Management Act, 2013 (No. 47 of
2013);
x. Companies Act, 2015 (No. 17 of 2015);
xi. Insolvency Act, 2015 (No. 18 of 2015).

ACT PHYSICAL AND LAND USE PLANNING ACT, 2019

Act No. No. 13 of 2019
Commencement 5th August, 2019
Objective This Act makes provision for the planning, use, regulation and develop-
ment of land. It provides for the principles, procedures and standards
for the preparation, implementation of physical, and land use develop-
ment plans at the national, county, urban, rural and cities level.

This Act repeals the Physical Planning Act, 1996 (No. 6 of 1996).

ACT IRRIGATION ACT, 2019

Act No. No. 14 of 2019
Commencement 16th August, 2019
Objective This is an Act of Parliament to provide for the development, manage-
ment and regulation of irrigation, to support sustainable food security
and socioeconomic development in Kenya.

It repeals the Irrigation Act (Cap. 347).

ACT LAND VALUE (AMENDMENT) ACT, 2019

Act No. No. 15 of 2019
Commencement 19th August, 2019
Objective This Act amends the Land Act (No. 6 of 2012); the Land Regis-
tration Act (No. 3 of 2012); and the Prevention, Protection and
Assistance to Internally Displaced Persons and Affected Com-
munities Act (No. 56 of 2012). It provides for the assessment of
land value index in respect of compulsory acquisition of land.

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 BB Issue 46, July - September 2019

ACT STATISTICS (AMENDMENT) ACT, 2019

Act No. No. 16 of 2019
Commencement 16th August, 2019
Objective This is an Act to amend the Statistics Act (No. 4 of 2006) to expand
the scope of the functions of the Kenya National Bureau of Statistics.
The Act establishes and provides for the functions of the Corporation
Secretary of the Bureau. It also provides for Bureau’s power to access
information and power of entry for the collection of statistical infor-
mation or the taking of the census, as the case may be.

ACT KENYA ACCREDITATION SERVICE ACT, 2019

Act No. No. 17 of 2019
Commencement 2nd September, 2019
Objective This Act establishes an accreditation system known as the Kenya Ac-
creditation Service and recognizes the Service as the sole national
accreditation body. The Service shall be the successor to the Kenya
Accreditation Service established in accordance with the Kenya Ac-
creditation Service Order, 2009 (L.N. No. 55 of 2009).

B. NATIONAL ASSEMBLY BILLS

NATIONAL NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES (CONTROL)

ASSEMBLY BILL (AMENDMENT) BILL, 2019
Dated 1st March, 2019
Objective The principal object of this Bill is to amend the Narcotics Drugs and Psycho-
tropic Substances (Control) Act (No. 4 of 1994) in order to:
i. Enhance the penalties of the offence of trafficking narcotic drugs;
ii. Define who the law enforcement officers are in respect to the Act;
and
iii. Prescribe offences for a law enforcement officer who aids, abets, or is
an accessory to any offence under the Act.
Sponsor Mohamed Ali Mohamed, Member of Parliament, National Assembly

NATIONAL AS- LABOUR RELATIONS (AMENDMENT) BILL, 2019

SEMBLY BILL
Dated 15th March, 2019
Objective The principal object of the Bill is to amend the Labor Relations Act, 2007
(No. 14 of 2007). The Bill sets out the requirements that must be met by a
trade union prior to calling and holding a strike in any of the essential servic-
es sector. This is with a view of guarding against the interruption of essential
services, which would endanger the health, life and safety of the population.
Sponsor Kimani Ichungwa, Member of Parliament, National Assembly

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 BB Issue 46, July - September 2019

NATIONAL KENYA UWEZO FUND BILL, 2019

ASSEMBLY BILL
Dated 17th June, 2019
Objective This Bill proposes to provide for the establishment of the empowerment fund
for youth, women and persons with disabilities, to consolidate the Uwezo
Fund, the Women Enterprise Fund and the Youth Enterprise Development
Fund into one Fund, and for connected purposes.
This Bill therefore proposes to repeal the following subsidiary legislations:
(a) Public Finance Management (Uwezo Fund) Regulations, 2014 (L.N.
21 of 2014);
(b) Government Financial Management (Women Enterprise Fund) Reg-
ulations, 2007 (L.N. 147 of 2007);
(c) Youth Enterprise Development Fund Order, 2007 (L.N. 63 of 2007);
and
(d) Public Finance Management (National Government Affirmative Ac-
tion Fund) Regulations, 2016 (L.N. 52 of 2016).
Sponsor D. K. Bowen, Member of Parliament, National Assembly

NATIONAL EQUALISATION FUND BILL, 2019

ASSEMBLY BILL
Dated 18th June, 2019
Objective The principal object of this Bill is to operationalize the Equalisation Fund
as established under Article 204 of the Constitution. The Bill proposes to
establish a Board to administer the Fund in instances where the Fund is di-
rectly used for the provision of basic services including water, roads, health,
facilities and electricity to marginalized areas to bring the quality of the pro-
visions of such services as nearly as possible to the same quality enjoyed by
other areas in the Country.

The Bill further proposes the establishment of Local Equalisation Fund Com-
mittees in each ward in marginalised areas as determined by the Commission
on Revenue Allocation in their report prepared pursuant to Article 216 of the
Constitution. The Local Committees are tasked with identifying projects for
funding in consultation with local communities with the final decision being
made by the Board and implementation done by a project implementation
committee.
Sponsor Kassait Kamket, Member of Parliament, National Assembly

NATIONAL DATA PROTECTION BILL, 2019

ASSEMBLY BILL
Dated 21st June, 2019
Objective The principal object of this Bill is to give effect to the right to privacy as
provided for in Article 31(c) and (d) of the Constitution by setting out the
requirements for the protection of personal data processed by both public
and private entities. Further, the Bill outlines the key principles that shall
govern the processing of personal data by both public and private entities,
while setting out the rights of data subjects and the duties of data controllers
and data processors.
Sponsor Aden Duale, Leader of the Majority, National Assembly

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NATIONAL PARLIAMENTARY PENSIONS (AMENDMENT) BILL, 2019

ASSEMBLY BILL
Dated 21st June, 2019
Objective The principal object of this Bill is to amend the Parliamentary Pensions Act
(Cap. 196). It proposes to raise the amount of pension due to former Members
of Parliament who served between 1st July 1984 and 1st January 2001 to a
minimum sum of Kenya Shillings one hundred thousand. The Bill proposes
to have the five hundred former Members of Parliament (whose number is
currently about three hundred and seventy) be paid a monthly pension of
one hundred thousand shillings each as living pension with effect from 1st
July 2010.
Sponsor John Mbadi Ng’ongo, Member of Parliament, National Assembly

NATIONAL RADIOGRAPHERS BILL, 2019

ASSEMBLY BILL
Dated 25th June, 2019
Objective The principal object of this Bill is to provide a legislative framework for the
training, registration and licensing of radiographers, so as to regulate their
practice; and to provide for the establishment, powers and functions of the
Radiographers Board of Kenya.
Sponsor Sabina W Chege, Member of Parliament, National Assembly

NATIONAL INSURANCE (AMENDMENT) BILL, 2019

ASSEMBLY BILL
Dated 1st July, 2019
Objective The Bill seeks to introduce provisions for the protection of the policyholder
where an insurer is in distress and the assets are put in statutory manage-
ment. The Bill further seeks to empower the Authority to prescribe the man-
ner of submission of various kinds of returns, and provides for a penalty for
late submission, which shall be payable into the Policyholders’ Compensa-
tion Fund.
Sponsor Aden Duale, Leader of the Majority Party, National Assembly

NATIONAL COMPETITION (AMENDMENT) BILL, 2019

ASSEMBLY BILL
Dated 1st July, 2019
Objective The Bill seeks to amend the Act to facilitate investigations with a view of
mitigating abuse of bargaining or buyer power, which adversely affects the
economy, and empowers the Competition Authority to investigate and take
action against such conduct.
Sponsor Aden Duale, Leader of Majority, National Assembly

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 BB Issue 46, July - September 2019

NATIONAL CONSTITUTION OF KENYA (AMENDMENT) BILL, 2019

ASSEMBLY BILL
Date 4th July, 2019
Objective This is a Bill to amend the Constitution by parliamentary initiative in terms
of Article 256 of the Constitution. The Bill seeks to amend the Constitu-
tion in order to ensure that the number of Members of Parliament reflect
the requirement of Article 27 (8) that not more than two-thirds of the mem-
bers of elective or appointive bodies shall be of the same gender. The Bill
further seeks to ensure that the membership of Parliament also reflects the
requirement of Article 54(2) of the Constitution that at least five percent of
the members of the public in elective and appointive bodies be persons with
disabilities.
With regard to the Membership of County Assemblies, the Bill seeks to limit
the number of representative wards to one thousand four hundred and fifty
and provide for the election of one woman for at least every two wards in a
County for purposes of gender parity and to remove the provision for post-
election gender top-up seats.
The proposed amendment seeks to entrench gender equality and the inclu-
sion of historically marginalized persons in the representation of the people
by reserving a minimum number of seats in Parliament for women and per-
sons with disability.
Sponsor G. B. Shollei, Member of Parliament, National Assembly

NATIONAL LAND (AMENDMENT) BILL, 2019

ASSEMBLY BILL
Date 4th July, 2019
Objective The principal object of the Bill is to amend the Land Act (No. 6 of 2012), in
order to provide that where public land has been allocated to a public body
or public institution by the National Land Commission for a public purpose
or where land set aside by persons or land buying companies for a public
purpose, the Registrar of Lands under the Land Registration Act, 2012 (No. 3
of 2012) shall issue a certificate of title in the name of the public body, public
institution or the relevant ministry as the case may be.
Sponsor Simon King’ara, Member of Parliament, National Assembly

NATIONAL BANKING (AMENDMENT) BILL, 2019

ASSEMBLY BILL
Date 5th July, 2019
Objective The principal object of this Bill is to amend the Banking Act (Cap. 488) to
clarify any vague, ambiguous, imprecise and indefinite words contained
in Section 33B. The amendment firstly seeks to remove any ambiguity in
section 33B (1) by clarifying that the interest rate under reference is to be
computed or applied on an annual basis. Secondly, the amendment seeks to
clarify what a credit facility is by replacing the term “credit facility” with the
word “loan” which is a more suitable and comprehensive term for purposes
of section 33B (1) of the Banking Act.
Thirdly, the amendment seeks to reaffirm that the maximum interest rate
charged by banks and financial institutions on loans should not exceed four
percentage points above the Central Bank Rate as set by the Central Bank of
Kenya pursuant to the provisions of section 36(4) of the Central Bank Act.
Sponsor Jude Njomo, Member of Parliament, National Assembly

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 BB Issue 46, July - September 2019

NATIONAL PARLIAMENTARY PENSIONS (AMENDMENT) (No. 3) BILL, 2019

ASSEMBLY BILL
Date 9th July, 2019
Objective The principal object of this Bill is to amend the Parliamentary Pensions Act
(Cap. 196) to bring it into conformity with the provisions of the Constitution
of Kenya, 2010 and provide for the Act to apply to Members of both Houses
of Parliament.
The Bill further seeks to bring Cap. 196 into conformity with the directions
of the Salaries and Remuneration Commission as regards the retirement
benefits due to Members of Parliament.
Sponsor Andrew Mwadime, Member of Parliament, National Assembly

NATIONAL NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT

ASSEMBLY BILL (AMENDMENT) ACT, 2019
Date 12th July, 2019
Objective The principal object of the Bill is to amend the National Government Con-
stituencies Development Fund Act, 2015 (No. 30 of 2015) to provide for the
adjustment of the ceiling of the fund to reflect an equitable sharing of the
Fund amongst the constituencies.
Sponsor D. E. Simiyu, Member of Parliament, National Assembly

NATIONAL DIVISION OF REVENUE (NO. 2) BILL, 2019

ASSEMBLY BILL
Date 16th July, 2019
Objective The principal object of this Bill is to provide for the equitable division of
revenue raised nationally among the national and county levels of govern-
ment as required by Article 218 of the Constitution, in order to facilitate
the proper functioning of county governments and to ensure continuity of
county services in the 2019/20 financial year.
Sponsor Kimani Ichung’wah, Chairperson, Budget and Appropriations Committee,
National Assembly

NATIONAL REFUGEES BILL, 2019

ASSEMBLY BILL
Date 26th July, 2019
Objective The principal object of the Bill is to provide for the recognition, protection
and management of refugees, to give effect to the 1951 United Nations Con-
vention Relating to the Status of Refugees; the 1967 Protocol Relating to the
Status of Refugees; and the 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa.
Sponsor Aden Duale, Leader Of The Majority Party, National Assembly

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 BB Issue 46, July - September 2019

C. SENATE BILLS

SENATE BILL CANCER PREVENTION AND CONTROL (AMENDMENT) BILL, 2019

Date 3rd May, 2019
Objective The principal object of this Bill is to amend the Cancer Prevention and Con-
trol Act (No. 15 of 2012) to provide for additional functions of county gov-
ernments in the prevention and treatment of cancer. The county govern-
ments shall be responsible for the prevention, treatment, rehabilitation and
control of cancer within the county.
The Bill also seeks to establish a county cancer center in each county to pro-
vide specialized medical services related to cancer including screening, diag-
nostic, treatment, collection of data on cancer within the county and other
cancer support services such as palliative, counselling and rehabilitation ser-
vices.
Sponsor Abdullahi Ibrahim Ali, Senator

SENATE BILL DIVISION OF REVENUE BILL, 2019

Dated 17th July, 2019
Objective The principal object of this Bill is to provide for the equitable division of rev-
enue raised nationally among the national and county levels of government
in order to facilitate the proper functioning of county governments and to
ensure continuity of county services in the 2019/2020 financial year.
Sponsor Mohamed M. Mahamud, Chairperson, Finance and Budget, Senate

SENATE BILL KENYAN SIGN LANGUAGE BILL, 2019

Dated 26th July, 2019
Objective The principal objective of this Bill is to give effect to Article 7(3(b) of the
Constitution of Kenya on the promotion and development of the use of Sign
language. The Bill provides for the inclusion of sign language in education
curriculum and use of sign language in legal proceedings. The Constitution
of Kenya contemplates that public institutions shall put in place facilities to
ensure the inclusion of deaf persons and persons who are hard of hearing in
their processes.
Sponsor Gertrude Musuruve, Senator
Margaret Kamar, Senator

SENATE BILL REGISTRATION OF PERSONS (AMENDMENT) BILL, 2019

Dated 26th July, 2019
Objective The Bill seeks to amend the Registration of Persons Act, (Cap. 107) and the
Births and Deaths Registration Act, (Cap. 149) in order to make provision
for the registration of persons born with both male and female reproductive
organs. This will ensure that the registration of such intersex persons reflects
their unique gender.
Sponsor Isaac Mwaura, Senator

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 BB Issue 46, July - September 2019

Legal Supplements
By Christine Thiong’o & Rachel Muriithi, 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
24th May, 2019 and 9th August, 2019.

DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
24th May, 2019 20 Public Service These Regulations are made by the
Commission Public Service Commission in the exer-
Regulations, 2019 cise of the powers conferred by section
92 of the Public Service Commission
(L.N. 65/2019) Act, 2017 (No. 10 of 2017). They shall
apply to public bodies and all persons
holding or acting in an office in a pub-
lic body.
They deal with the following matters:
i. Appointments, Promotions,
Re-designations, Transfers,
Secondments and Deploy-
ments;
ii. Conditions of Service, Code of
Conduct and Qualifications;
iii. Development of Human Re-
source in the Public Service;
iv. Organisation, Administration
and Personnel Practices of the
Public Service;
v. Public Service Efficiency and
Effectiveness;
vi. Values and Principles of Gov-
ernance and Public Service;
vii. Disciplinary Control;
viii. Resignation, Retirement and
Related Matters;
ix. Commission’s Report to the
President and Parliament; and
x. Miscellaneous provisions.
The Public Service Commission
Regulations, 2005 (L.N. 28 of 2005) are
revoked.

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 BB Issue 46, July - September 2019

13th June, 2019 26 Public Finance The Cabinet Secretary for National
Management Treasury and Planning makes these
(Uwezo Fund) regulations in the exercise of the powers
(Revocation) conferred by section 24(8) of the Public
Regulations, 2019 Finance Management Act, 2012 (No. 18
of 2012).
(L.N. 79/2019) The Uwezo Fund established under the
Public Finance Management (Uwezo
Fund) Regulations, 2014 is wound up.
The Regulations address the:
i. Transfer of outstanding
amounts; and
ii. Transition of staff.
The Government Financial Management
(Uwezo Fund) Regulations, 2014 (L.N.
21of 2014) are revoked.
13th June, 2019 26 Public Finance The Cabinet Secretary for National
Management Treasury and Planning makes these
(Women regulations in the exercise of the powers
Enterprise Fund) conferred by section 24(8) of the Public
(Revocation) Finance Management Act, 2012 (No. 18
Regulations, 2019 of 2012).
The Women Enterprise Fund
(L.N. 80/2019) established under the Government
Financial Management (Women
Enterprise Fund) Regulations, 2007 is
wound up.
The Regulations provide for the:
i. Transfer of outstanding
amounts; and
ii. Transition of staff.
The Government Financial
Management (Women Enterprise Fund)
Regulations, 2007(L.N. 147 of 2007) are
revoked.
13th June, 2019 26 Public Finance These regulations are made by the
Management Cabinet Secretary for National Treasury
(Youth Enterprise and Planning in the exercise of the
Development powers conferred by section 24(8) of
Fund) (Revocation) the Public Finance Management Act,
Regulations, 2019 2012 (No. 18 of 2012).
The Youth Enterprise Fund established
(L.N 81/2019) under the Government Financial
Management (Youth Enterprise
Development Fund) Regulations, 2006
is wound up.
The Regulations provide for the transfer
of outstanding amounts in the Youth
Enterprise Transfer of Development
Fund to the National Exchequer
Account outstanding for the credit of
the national government.
Government Financial Management
(Youth Enterprise Revocation.
Development Fund) Regulations, 2006
(L.N. 167 of 2006) are revoked.

54
 BB Issue 46, July - September 2019

17th June 2019 27 Tax Procedures The Cabinet Secretary for the National
(Unassembled Treasury and Planning makes these
Motor Vehicles Regulations in exercise of the powers
and Trailers) conferred by section 112 of the Tax
Regulations, 2019 Procedures Act, 2015(No. 29of 2015).
The Regulations deal with among other
(L.N. 84/2019) things:
i. Importation of unassembled
motor vehicles or trailers;
ii. Application for approval of
importation;
iii. Conditions for approval as an
importer;
iv. Assembling of motor vehicles
or trailers; and
v. Transfers between bonded
warehouse facilities.
The Customs and Excise (Unassembled
Motor Vehicles) Regulations, 1993
(L.N. No. 363/1993) are revoked.
The Customs and Excise (Restricted
Imports) (Commercial Trailers) Order,
2002 (L.N. No. 128/2002) is revoked.
17th June 2019 27 Protected Areas This Order is made by Cabinet Secretary
Order, 2019 for Interior and Co-ordination of
National Government in the exercise of
(L.N. 96/2019) the powers conferred by section 3(1) of
the Protected Areas Act (Cap 204).
It declares Kenya Revenue Authority
buildings as Protected Areas.

The seeds of success in every nation on Earth are best planted in

women and children. Joyce Banda

Some rights reserved by www.j-pics.info

55
 BB Issue 46, July - September 2019

25th June, 2019 29 Petroleum The Cabinet Secretary for Petroleum

(Liquefied and Mining on the recommendation of
Petroleum Gas) the authority makes these regulations
Regulations, 2019 in the exercise of the powers conferred
by section 101 of the Petroleum Act,
(L.N. 100/2019) 2019 (No. 2 of 2019).
These regulations do not apply to
Kenya Defence Forces.
They address, inter alia:
i. Requirement for licence
for liquefied petroleum gas
business;
ii. Application for a licence;
iii. Form and duration of licence;
iv. Renewal of licence;
v. Importation of bulk liquefied
petroleum gas;
vi. Storage of bulk liquefied
petroleum gas;
vii. Filling of liquefied petroleum
gas;
viii. Prohibition against
unauthorized refilling;
ix. Transport of bulk liquefied
petroleum gas;
x. Retail of liquefied petroleum
gas in cylinders;
xi. Export of liquefied petroleum
gas in cylinders;
xii. Obligations of the brand
owner;
xiii. Penalties and fines.
The Energy (Liquefied Petroleum Gas)
Regulations, 2009 (L.N. No. 121 of
2009) are repealed.

56
 BB Issue 46, July - September 2019

28th June, 2019 30 Land Registration The Cabinet Secretary for Lands
(Electronic Land and Physical Planning makes these
Tr a n s a c t i o n s ) Regulations in the exercise of the
Regulations, 2019 powers conferred by section 110 of the
Land Registration Act, 2012 (No. 3 of
(L.N. 101/2019) 2012).
They provide that all registry
transactions under the Act shall be
carried out through the electronic
registry system in the registries set out
in the Schedule.
The Regulations also provide for:
i. Registration as a user of the
system;
ii. User Agreement;
iii. Obligations of users;
iv. Termination of user’s access;
v. Notice of termination;
vi. Appeals against the decisions of
the Chief Land Registrar;
vii. Use of the system to draw
and engross conveyancing
documents;
viii. Creation of electronic
documents and instruments;
ix. Electronic generation of
documents for registration;
x. Lodging of documents
electronically for purpose of
registration;
xi. Payment;
xii. Procedure to be followed by
a Registrar in the registration
process;
xiii. Recording or registration of
electronic documents in the
register;
xiv. Public access to information
maintained electronically;
xv. Limitation of liability of
the Cabinet Secretary and
the officers of the Ministry
responsible for lands.

57
 BB Issue 46, July - September 2019

1st July, 2019 31 Crops (Coffee) The Cabinet Secretary For Agriculture,
(General) Livestock, Fisheries And Irrigation, in
Regulations, 2019 consultation with the Authority and
the County Governments, makes these
(L.N. 102/2019) Regulations in exercise of the powers
conferred by section 40 of the Crops
Act, 2013 (No. 16 of 2013).
The object and purpose of these
Regulations is to give effect to section
40 of the Crops Act, 2013; to regulate
the coffee industry in Kenya.
The Regulations provide for:
i. Functions of the Authority and
County Governments;
ii. Registration and Licensing;
iii. Production and Processing;
iv. Coffee Trading and Marketing;
v. Quality Assurance; and
vi. General Provisions.
The Coffee (General) Rules 2002 (L.N.
No. 79 of 2012) are revoked.
1st July, 2019 32 Public Finance The Parliamentary Service Commission
Management makes these Regulations in exercise
(Parliamentary of the powers conferred by section 36
Catering Fund) of the Parliamentary Service Act (No.
Regulations, 2019 10 of 2000) and section 24(2A) of the
Public Finance Management Act, 2012
(L.N. 103/2019) (No. 18 of 2012).
They establish the Parliamentary
Catering Fund, which shall vest in and be
operated and managed by the Catering
Fund Management Committee.
The object of the Fund is to provide for
the purchase of catering equipment,
management and administration of
catering facilities.
The Regulations provide for, inter alia:
i. Capital of the Fund;
ii. Membership of the Catering
Fund Committee;
iii. Functions of the Committee;
iv. Administration of the Fund;
v. Membership of the Fund;
vi. Operation of the Fund;
vii. Operation of the catering
facility.

58
 BB Issue 46, July - September 2019

5th July, 2019 33 Private Security The following Regulations are made by
(General) the Cabinet Secretary for Interior and
Regulations, 2019 Coordination of National Government
in exercise of the powers conferred by
(L.N. 108/2019) sections 11 (2), 33, 45 (2), 51 (2), 61(4)
and 70 of the Private Security Regula-
tion Act, 2016 (No. 13 of 2016).
They deal with the:
i. Procedure for Appointment of
Members of the Board;
ii. Application for Registration of
Private Security Service Pro-
viders;
iii. Employment and Training of
Personnel;
iv. Equipment and Tools of Trade;
v. Cooperation with National Se-
curity Organs;
vi. Private Security Fidelity Levy;
and
vii. General Provisions.
2nd August, 2019 43 Central Bank of The Central Bank of Kenya makes the
Kenya (Mortgage following Regulations in exercise of
Refinance the powers conferred by 57 (1) of the
Companies) Central Bank of Kenya Act (Cap 491).
Regulations, 2019 The Regulations address:
i. Authorized activities of
(L.N. 134/2019) Mortgage Refinance Business;
ii. Licensing;
iii. Governance;
iv. Loans;
v. Capital Requirements And
Liquidity Management;
vi. Internal Controls; and
vii. Reporting Requirements of
financial statements.
9th August, 2019 45 Political Parties The Registrar of Political Parties makes
(Registration) these Regulations in the exercise of the
Regulations, 2019 powers conferred by section 49 of the
Political Parties Act, 2011 (No. 11 of
(L.N. 141/2019) 2011).
The Regulations provide for:
(a) Registration of a Political
Party;
(b) Offices of Political Parties;
(c) Coalitions; and
(d) Political Party Mergers.
The Political Parties (Registration)
Regulations, 2008 (L.N 111/2008) are
revoked.

59
 BB Issue 46, July - September 2019

9th August, 2019 47 Political Parties The Registrar of Political Parties makes
(Funding) the following Regulations in exercise of
Regulations, 2019 the powers conferred by section 49 of
(L.N. 143/2019) the Political Parties Act, 2011 (No. 11
of 2011).
The Regulations address-
(a) Administration and
Management;
(b) Funding of Political Parties;
(c) Accounting and Reporting; and
(d) General Provisions.
The Registrar shall be responsible for
the administration and management of
the Fund.

The Political Parties (Funding)

Regulations, 2009 (L.N. 169 of 2009)
are revoked.

60
 BB Issue 46, July - September 2019

International
Jurisprudence
The Aadhaar Act affords unique identity to individuals to ensure that
such government subsidies, benefits and services reach only the intended
beneficiaries and thus upholds the concept of limited government, good
governance and constitutional trust
K S Puttaswamy (Retd.) & another v Union of India & others
Writ Petition (Civil) No. 494 of 2012
Supreme Court of India
D Misra, CJI; A Bhushan, A Khanwilkar, A Sikri, SJJ
September 26, 2018
Reported by Faith Wanjiku

Constitutional Law-fundamental rights and 23(2)(g) read with Chapter VI & VII –regulations
freedoms-right to privacy and education- 27 to 32; 29,33, 47, 48, 57, 59
authentication of Aadhaar number and proof Brief Facts
of Aadhaar number necessary for receipt of
The petition was based on Aadhaar, a word
certain subsidies, benefits and services- children
associated with the card that was issued
not under legal capacity to provide any consent
to a person from where he/she could be
under the law and if they could be brought within
identified. It was described as an ‘Unique
the sweep of sections 7 and 8 of the Aadhaar Act
Identity’ and the authority which enrolled
for the purposes of utilising any of the benefits
a person and at whose behest the Aadhaar
thereunder-whether the Aadhaar Act violated
Card was issued was known as Unique
right to privacy and education in the context of
Identification Authority of India (UIDAI
sections 7 on authentication of Aadhaar number
or Authority). UIDAI claimed that not only
and 8 on proof of Aadhaar number necessary for
it was a foolproof method of identifying a
receipt of certain subsidies, benefits and services
person; it was also an instrument whereby
and was thus unconstitutional- Constitution of
a person could enter into any transaction
India, 1949, article 21,21A; Aadhaar (Targeted
without needing any other document in
Delivery of Financial and Other Subsidies,
support. The scheme was conceptualised in
Benefits and Services) Act, 2016, sections 7 and 8;
the year 2006 and launched in the year 2009
European Convention on Human Rights, article 8
with the creation of UIDAI.
Constitutional Law-information privacy-
The petitioners claimed that Aadhaar was a
data –protection, collection and storage-whether
serious invasion into the right to privacy of
the Aadhaar project created or had tendency
persons protected under article 21 of the
to create a surveillance state and was thus
Constitution of India and it had the tendency
unconstitutional in that the Aadhaar Act and its
to lead to a surveillance state where each
Rules did not provide protection, in respect of data
individual could be kept under surveillance
minimisation, purpose limitation, time period for
by creating his/her life profile and movement
data retention and data protection and security
as well on his/her use of Aadhaar. They were
Statutes-interpretation of various statutory demanding scrapping and demolition of the
provisions of the Aadhaar Act and its Regulations- entire Aadhaar structure which, according
whether those various provisions defied the to them, was an anathema to the democratic
concept of limited government, good governance principles and rule of law, which was the
and constitutional trust and thus suffered from bedrock of the Indian Constitution. The
the vice of unconstitutionality - Constitution of petitioners further challenged its shield
India, 1949; Aadhaar Act and its Regulations- of statutory cover, the Aadhaar (Targeted
sections 2(c) and 2(d),32,2(h),10 of CIDR, 2(l) read Delivery of Financial and Other Subsidies,
with regulation 23, 2(v), 3, 5, 6, 8, 9, 11 to 23, 54, Benefits and Services) Act, 2016 (the Aadhaar

61
 BB Issue 46, July - September 2019

Act) as being constitutionally impermissible. of establishing identity of an individual as a

Issues condition for receipt of a subsidy, benefit or service
for which the expenditure is incurred from, or the
i Whether the Aadhaar project created
receipt therefrom forms part of, the Consolidated
or had tendency to create a surveillance
Fund of India, require that such individual
state and was thus unconstitutional in
undergo authentication, or furnish proof of
that the Aadhaar Act and its Rules did
possession of Aadhaar number or in the case of an
not provide protection, in respect of
individual to whom no Aadhaar number has been
data minimisation, purpose limitation,
assigned, such individual makes an application
time period for data retention and data
for enrolment:
protection and security
Provided that if an Aadhaar number is not assigned
ii Whether the Aadhaar Act violated right
to an individual, the individual shall be offered
to privacy in the context of sections 7 on
alternate and viable means of identification for
authentication of Aadhaar number and 8
delivery of the subsidy, benefit or service.
on proof of Aadhaar number necessary for
receipt of certain subsidies, benefits and Section 8- Authentication of Aadhaar
services and was thus unconstitutional. number—
iii Whether children who were not under (1) The Authority shall perform authentication of
legal capacity to provide any consent the Aadhaar number of an Aadhaar number holder
under the law could be brought within submitted by any requesting entity, in relation
the sweep of sections 7 and 8 of the to his biometric information or demographic
Aadhaar Act for the purposes of utilising information, subject to such conditions and on
any of the benefits thereunder? payment of such fees and in such manner as may
be specified by regulations.
iv Whether the following provisions of
the Aadhaar Act and Regulations defied (2) A requesting entity shall—
the concept of limited government, (a) unless otherwise provided in this Act, obtain
good governance and constitutional the consent of an individual before collecting
trust and thus suffered from the vice of his identity information for the purposes of
unconstitutionality: authentication in such manner as may be specified
Sections 2(c) and 2(d) read with section 32; by regulations; and
section 2(h) read with section 10 of CIDR; (b) ensure that the identity information of
section 2(l) read with regulation 23; section an individual is only used for submission to
2(v); section 3; section 5; section 6; section 8; the Central Identities Data Repository for
section 9; sections 11 to 23; sections 23 and authentication.
54; section 23(2)(g) read with Chapter VI & (3) A requesting entity shall inform, in such
VII –regulations 27 to 32; section 29; section manner as may be specified by regulations, the
33; section 47; section 48; section 57; section individual submitting his identity information for
59 authentication, the following details with respect
Relevant Provisions of the Law to authentication, namely—
The Constitution of India, 1949 (a) the nature of information that may be shared
Article 21- Protection of life and personal upon authentication;
liberty.- (b) the uses to which the information received
No person shall be deprived of his life or personal during authentication may be put by the
liberty except according to procedure established requesting entity; and
by law. (c) alternatives to submission of identity
Aadhaar (Targeted Delivery of Financial information to the requesting entity.
and Other Subsidies, Benefits and Services) (4) The Authority shall respond to an
Act, 2016 authentication query with a positive, negative
Section 7- Proof of Aadhaar number or any other appropriate response sharing such
necessary for receipt of certain subsidies, identity information excluding any core biometric
benefits and services, etc.— information.”
The Central Government or, as the case may Held
be, the State Government may, for the purpose 1. The enrolment and authentication

62
 BB Issue 46, July - September 2019

processes were strongly regulated so Such data could not be shared and had to be
that data was secure. The enrolment stored in encrypted form. The biometric
agency, which collected the biometric information used was not permitted to
and demographic of the individuals be stored. Only the logs of authentication
during enrolment, was appointed transactions were maintained for a short
either by UIDAI or by a registrar. The period. Full identity information was
registrars were appointed through never transmitted back to the requesting
MoUs or agreements for enrolment and entity. Anyone trying to unlawfully gain
were to abide by a code of conduct and access into the system was liable to be
processes, policies and guidelines issued punished with 10 years’ imprisonment
by the Authority. They were responsible and fine. The storage involved end to
for the process of enrolment. Categories end encryption, logical partitioning,
of persons eligible for appointment were firewalling and anonymisation of
limited by the regulations. The agency decrypted biometric data. Breaches of
employed a certified supervisor, an penalty were made punitive by Chapter
operator and a verifier under Enrolment VII of the Act.
and Update Regulations. Registrars and
4. Biometric information was deemed to
the enrolling agencies were obliged to
be an electronic record, and sensitive
use the software provided or authorized
personal data or information under the
by UIDAI for enrolment purpose.
IT Act. Demographic information, both
2. The standard software had security mandatory and optional, and photographs
features as specified by the Authority. did not raise a reasonable expectation
All equipment used was as per the of privacy under article 21 of the
specification issued by the Authority. The Constitution of India (the Constitution)
registrars were prohibited from using the unless under special circumstances
information collected for any purpose such as juveniles in conflict of law or a
other than uploading the information rape victims’ identity. Today, all global
to Central Identities Data Repository ID cards contained photographs for
(CIDR). Sub-contracting of the enrolment identification along with address, date
function was not allowed. The Code of of birth, gender etc. The demographic
Conduct contained specific directions information was readily provided by
for following the confidentiality, privacy individuals globally for disclosing
and security protocols and submission identity while relating with others and
of periodic reports of enrolment. Not while seeking benefits whether provided
only were there directions prohibiting by government or by private entities, be
manipulation and fraudulent practices it registration for citizenship, elections,
but the Act contained penal provisions passports, marriage or enrolment in
for such violations in Chapter VII of the educational institutions. Email ids and
Regulations. The enrolment agencies phone numbers were also available in
were empanelled by the Authority. public domain, for example in telephone
They were given an enrolling agency directories. Aadhaar Act only used
code using which the registrar could demographic information which was
onboard such agency to the CIDR. not sensitive and where no reasonable
The enrolment data was uploaded to expectation of privacy existed - name,
the CIDR certified equipment and date of birth, address, gender, mobile
software with a digital signature of the number and e-mail address. Section
Registrar/enrolling agency. The data was 2(k) specifically provided that in the
encrypted immediately upon capture. Regulations, demographic information
The decryption key was with the UIDAI could not include race, religion, caste,
solely. tribe, ethnicity, language, records of
3. Requesting entities were appointed entitlement, income or medical history.
through agreement. Whatever identity Thus, sensitive information specifically
information was obtained by the stood excluded.
requesting entity was based on a specific 5. Regulation 27 of the Authentication
consent of the Aadhaar number holder.

63
 BB Issue 46, July - September 2019

Regulations required the UIDAI to retain That entitlement had turned into a
the authentication transaction data Constitutional fundamental right. The
(which included the metadata) for a period Constitutional obligation was reinforced
of 6 months and to archive the same for a by obligations under International
period of 5 years thereafter. Regulations Conventions. The Universal Declaration
18(3) and 20(3) allowed requesting of Human Rights (Preamble, articles 22
entities (RE) and Authentication Service & 23) and International Covenant on
Agencies to retain the authentication Economic, Social and Cultural Rights
logs for a period of 2 years and then to which India was a signatory, also
archive them for 5 years. It was required cast responsibilities on all State parties
to be deleted only after 7 years unless to recognize the right of everyone to
retained by a court. The right of the adequate food.
citizen to erasure of data or right to be 8. By no stretch of imagination, therefore,
forgotten was severely affected by such could it be said that there was no defined
regulation. There was no provision to State aim in legislating Aadhaar Act. The
delete the biometric information in any petitioners did not seriously question
eventuality once a person was enrolled. the purpose bona fides of the legislature
There was no reason for archiving the in enacting that law. In a welfare State,
authentication transaction data for a where measures were taken to ameliorate
period of five years. Retention of that the sufferings of the downtrodden, the
data for a period of six months was more aim of the Act was to ensure that those
than sufficient after which it needed to be benefits actually reached the populace
deleted except when such authentication for whom they were meant. That was
transaction data were required to be naturally a legitimate State aim. It was the
maintained by a Court or in connection instant Court which had been repeatedly
with any pending dispute. Regulations insisting that benefits reach the most
26 and 27 would, therefore, be amended deserving and should not get frittered
accordingly. mid-way. That purpose of Aadhaar Act, as
6. Section 7 of the Aadhaar Act was aimed captured in the Statement of Objects and
at offering subsidies, benefits or services Reasons and sought to be implemented
to the marginalised section of the society by section 7 of the Aadhaar Act, was to
for whom such welfare schemes had been achieve the stated objectives. The Court
formulated from time to time. That also was convinced by its conscience that
became an aspect of social justice, which the Act was aimed at a proper purpose,
was the obligation of the State stipulated which was of sufficient importance.
in Para IV of the Constitution. The 9. Section 7, which provided for necessity
rationale behind section 7 lay in ensuring of authentication for receipt of certain
targeted delivery of services, benefits and subsidies, benefits and services had a
subsidies which were funded from the definite purpose and that authentication
Consolidated Fund of India. was to achieve the objectives for
7. The State had come forward in which Aadhaar Act was enacted,
recognising the rights of deprived section namely, to ensure that such subsidies,
of the society to receive such benefits on benefits and services reached only the
the premise that it was their fundamental intended beneficiaries. There was seen
right to claim such benefits. It was rampant corruption at various levels
acknowledged by the respondents that in implementation of benevolent and
there was a paradigm shift in addressing welfare schemes meant for different
the problem of security and eradicating classes of persons. It had resulted in
extreme poverty and hunger. The shift depriving the actual beneficiaries to
was from the welfare approach to a rights receive those subsidies, benefits and
based approach. As a consequence, right services which got frittered away though
of everyone to adequate food no more on papers, it was shown that they were
remained based on Directive Principles received by the persons for whom they
of State Policy, though the said principles were meant. By providing that the
remained a source of inspiration. benefits for various welfare schemes

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would be given to those who possess many laws did, such limitation was
Aadhaar number and after undergoing constitutional if it was proportional.
the authentication as provided in section The law imposing restriction was
8 of the Aadhaar Act, the purpose was proportional if it was meant to achieve
to ensure that only rightful persons a proper purpose, and if the measures
received those benefits. taken to achieve such a purpose were
10. The legitimate expectation of privacy rationally connected to the purpose and
could vary from the intimate zone to the such measures were necessary. Such
private zone and from the private to the limitations should not be arbitrary or
public arenas. However, the privacy was of an excessive nature beyond what
not lost or surrendered merely because was required in the interest of the
the individual was in a public space. One public. Reasonableness was judged with
of the chief concerns was that while the reference to the objective which the
web was a source of lawful activity both legislation sought to achieve, and could
personal and commercial, concerns of not be in excess of that objective. Further,
national security intervened since the the reasonableness was examined in an
seamless structure of the web could be objective manner from the standpoint of
exploited by terrorists to wreak havoc the interest of the general public and not
and destruction on civilized societies. from the point of view of the person upon
Privacy was the terrorist’s best friend. whom the restrictions were imposed or
That formulation indicated that the State abstract considerations.
had legitimate interest when it monitored 13. The Aadhaar Act had struck a fair
the web to secure the nation. Apart from balance between the right of privacy of
national security, the State could have the individual with right to life of the
justifiable reasons for the collection and same individual as a beneficiary. In the
storage of data as where it embarked face of the all-pervading prescript for
upon programs to provide benefits to accomplished socio-economic rights,
impoverished and marginalized sections that needed to be given to the deprived
of society and for ensuring that scarce and marginalised section of the society, as
public resources were not dissipated the constitutional imperative embodied
and diverted to non-eligible recipients. in those provisions of the Act, it was
Digital platforms were a vital tool of entitled to receive judicial imprimatur.
ensuring good governance in a social 14. The Act passed the muster of necessity
welfare State and technology was a stage as well when there could not be
powerful enabler. found any less restrictive measure which
11. Private life was a broad term covering could be equally effective in achieving
physical and psychological integrity of a the aim. In a situation like that where
person. Storing of data relating to private the Act was aimed at achieving the
life of an individual interfered with aforesaid public purpose, striving to
article 8 of the European Convention benefit millions of deserving people,
on Human Rights (ECHR). Article 8 of it could not be invalidated only on the
the ECHR, however protean, should ground that there was a possibility of
not be so construed widely that its exclusion of some of the seekers of those
claims became unreal and unreasonable. welfare schemes. By no means, was the
Firstly, the threat to individuals’ personal court accepting that if such an exclusion
autonomy had to attain a certain level took place, it was justified. The court
of seriousness. Secondly, the claimant was only highlighting the fact that the
had to enjoy on the facts a reasonable Government seemed to be sincere in its
expectation of privacy. Thirdly, the efforts to ensure that no such exclusion
breadth of article 8(1) could in many took place and in those cases where an
instances be greatly curtailed by scope of individual who was rightfully entitled
justifications available to the State. to benefits under the scheme was not
12. Needless to emphasise that when a law denied such a benefit merely because of
limited a constitutional right which failure of authentication. In that scenario,
the entire Aadhaar project could not be

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shelved. If that was done, it would cause Aadhaar, if they so chose. For availing
much more harm to the society. the benefits of other welfare schemes
15. The Government could not take which were covered by section 7 of the
umbrage under the section 7 to enlarge Aadhaar Act, though enrolment number
the scope of subsidies, services and could be insisted, it would be subject to
benefits. Benefits should be such which the consent of the parents, as mentioned
were in the nature of welfare schemes above. No child would be denied benefit
for which resources were to be drawn of any of those schemes if, for some
from the Consolidated Fund of India. reasons, she was not able to produce the
The expression benefit had to be read Aadhaar number and the benefit would
ejusdem generis with the preceding be given by verifying the identity on the
word subsidies. A benefit which was basis of any other documents.
earned by an individual (e.g. pension by 18. Section 2(d) which pertained to
a government employee) could not be authentication records, such records
covered under section 7 of the Act, as it would not include metadata as mentioned
was the right of the individual to receive in regulation 26(c) of the Aadhaar
such benefit. The instant court hoped (Authentication) Regulations, 2016.
that the respondents would not unduly Therefore, the provision in the present
expand the scope of subsidies, services form was struck down. Liberty, however,
and benefits thereby widening the net was given to reframe the regulation,
of Aadhaar, where it was not permitted keeping in view the parameters stated by
otherwise. Benefits and services as the Court.
mentioned in section 7 should be those 19. Insofar as section 2(b) was concerned,
which had the colour of some kind of which defined resident, the apprehension
subsidies etc., namely, welfare schemes of expressed by the petitioners was that it
the Government whereby Government should not lead to giving Aadhaar card
was doling out such benefits which were to illegal immigrants. The court directed
targeted at a particular deprived class. the respondent to take suitable measures
The expenditure thereof had to be drawn to ensure that illegal immigrants were
from the Consolidated Fund of India. not able to take such benefits.
16. Article 21A of the Constitution 20. Section 29 imposed a restriction on
guaranteed right to education and made sharing information and was, therefore,
it a fundamental right of the children valid as it protected the interests of
between 6 years and 14 years of age. Aadhaar number holders. However,
Such a right could not be taken away apprehension of the petitioners was that
by imposing requirement of holding the provision entitled Government to
Aadhaar card, upon the children. share the information for the purposes
Admission of a child in his school could of as could be specified by regulations.
not be covered under section 7 of the The Aadhaar (Sharing of Information)
Aadhaar Act as it was neither subsidy Regulations, 2016 did not contain any
nor service. No doubt, the expression such provision. If a provision was made
benefit occurring in section 7 was very in the regulations which impinged upon
wide. At the same time, it had to be given the privacy rights of the Aadhaar card
restrictive meaning and the admission of holders that could always be challenged.
children in the schools, when they had
21. Section 33(1) of the Aadhaar Act
fundamental right to education, would
prohibited disclosure of information,
not be covered by section 7.
including identity information or
17. For the enrolment of children under the authentication records, except when
Aadhaar Act, it would be essential to have it was by an order of a court not
the consent of their parents/guardian. inferior to that of a District Judge. The
On attaining the age of majority, such provision was to be read down with the
children who were enrolled under clarification that an individual, whose
Aadhaar with the consent of their parents, information was sought to be released,
would be given the right to exit from would be afforded an opportunity of

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hearing. If such an order was passed, in c. Apart from authorising the State,
that eventuality, he would also have right even any body corporate or person
to challenge such an order passed by was authorised to avail authentication
approaching the higher court. During the services which could be on the basis
hearing before the concerned court, the of purported agreement between an
said individual could always object to the individual and such body corporate
disclosure of information on accepted or person. Even if the court presumed
grounds in law, including article 20(3) that legislature did not intend so, the
of the Constitution or the privacy rights impact of the aforesaid features would
etc. be to enable commercial exploitation
22. Section 33(2) of the Aadhaar Act on of an individual biometric and
disclosure of information in the interest demographic information by the
of national security could not be faulted private entities. Thus, that part of
with. However, for determination of the provision which enabled body
such an eventuality, an officer higher corporates and individuals also to
than the rank of a Joint Secretary should seek authentication, that too on
be given such a power. Further, in order the basis of a contract between the
to avoid any possible misuse, a judicial individual and such body corporate
officer (preferably a sitting High Court or person, would impinge upon the
judge) should also be associated with. right to privacy of such individuals.
Such provisions of application of judicial That part of the section, thus, was
mind for arriving at the conclusion declared unconstitutional.
that disclosure of information was in 25. Other provisions of Aadhaar Act were
the interest of national security, were held to be valid, including section 59 of
prevalent in some jurisdictions. Section the Act which saved the pre-enactment
33(2) of the Aadhaar Act in the present period of Aadhaar project, i.e. from 2009-
form was struck down with liberty to 2016.
enact a suitable provision on the lines 26. The instant matter was examined keeping
suggested above. in view the fundamental principles of
23. Section 47 of the Aadhaar Act which constitutionalism in mind including
provided for the cognizance of offence basic freedoms (private autonomy) and
only on a complaint made by the the right of political participation (public
Authority or any officer or person autonomy and more particularly the
authorised by it was concerned, it needed principle that the concept of limited
a suitable amendment to include the government was applicable having
provision for filing of such a complaint regard to the fact that the three limbs
by an individual/victim as well whose of the State were to act within the
right was violated. framework of a written Constitution
24. Section 57 was susceptible to misuse in which assigned specific powers to
as much as: each of the wing of the State. That
presupposed that the sovereign power
a. It could be used for establishing the
of the Parliament was circumscribed
identity of an individual for any
by the provisions of the Constitution
purpose. Such a purpose had to be
and the legislature was supposed to Act
backed by law. Further, whenever
within the boundaries delineated by the
any such law was made, it would be
Constitution. The constitutionalism,
subject to judicial scrutiny.
which was the bedrock of rule of law,
b. Such purpose was not limited was to be necessarily adhered to by the
pursuant to any law alone but could Parliament. Further, the power of judicial
be done pursuant to any contract to review which was accorded to the courts
that effect as well. That was clearly could be exercised to strike down any
impermissible as a contractual legislation or executive action if it was
provision was not backed by a law unconstitutional.
and, therefore, first requirement of
27. It was difficult to agree with the
proportionality test was not met.

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sweeping proposition advanced by the under article 20(3) of the Constitution.

petitioners that the Aadhaar project was xi Section 47 of the Aadhaar Act could not be
destructive of limited government and held to be unconstitutional on the ground
constitutional trust. Those submissions that it did not allow an individual who found
were premised on the architecture of the that there was a violation of Aadhaar Act to
Aadhaar being constitutionally intrusive initiate any criminal process.
which threatened the autonomy of
xii Section 57, to the extent, which permitted use
individuals and had a tendency of
of Aadhaar by the State or any body corporate
creating a surveillance state. In support,
or person, in pursuant to any contract to that
the petitioners referred to certain
effect was unconstitutional and void. Thus,
provisions of the Aadhaar Act. Some
the last phrase in main provision of section
provisions which were found offending
57, i.e. or any contract to that effect was
were struck down, some others had been
struck down.
read down and some were tweaked with.
The statutory regime that would now Relevance to the Kenyan Situation
govern the citizenry warded off such a The right to privacy is heavily guarded under
danger, if any. article 31 of the Constitution of Kenya,
Petition partly allowed. 2010 in that every person has the right to
privacy, which includes the right not to have
Orders:
information relating to their family or private
i The requirement under Aadhaar Act to give affairs unnecessarily required or revealed.
one’s demographic and biometric information
The Access to Information Act No. 31 of
did not violate fundamental right of privacy.
2016 provides in section 6(1) that the right
ii Collection of data, its storage and use did not of access to information under article 35 of
violate fundamental Right of privacy. the Constitution shall be limited in respect
iii Aadhaar Act did not create an architecture of information whose disclosure is likely
for pervasive surveillance. to involve the unwarranted invasion of
iv Aadhaar Act and Regulations provided the privacy of an individual, other than the
protection and safety of the data received applicant or the person on whose behalf an
from individuals. application has, with proper authority, been
made.
v The court directed the respondent to take
suitable measures to ensure that illegal The Data Protection Bill No. 44 of 2019 if
immigrants were not able to take such benefits passed by Parliament will play a big role
under section 2(b) which defined resident. in order to give effect to article 31(c) and
(d) of the Constitution; establish the office
vi Regulation 26(c) of the Aadhaar
of the Data Protection Commissioner; to
(Authentication) Regulations, 2016 which
make provision for the regulation of the
would include metadata in authentication
processing of personal data; to provide for
records was struck down.
the rights of data subjects and obligations
vii Section 7 of the Aadhaar was constitutional. of data controllers and processors. It will
The provision did not deserve to be struck contain provisions such as registration of
down on account of denial in some cases data controllers and data processors in part
of right to claim on account of failure of III, principles and obligations of personal
authentication. data protection in part IV and grounds for
viii The State while enlivening right to food, processing of sensitive personal data in part
right to shelter etc. envisaged under article V.
21 could not encroach upon the right In Kenya, a few months ago, citizens
of privacy of beneficiaries nor former could underwent registration of the Huduma
be given precedence over the latter. Namba through the use of both demographic
ix Provisions of section 29 were constitutional and biometric information. The purposes of
and did not deserve to be struck down. the Huduma Namba as the Government of
x Section 33 could not be said to be Kenya put them are:
unconstitutional as it provided for the use of a. Coordinated registration of persons
Aadhaar data base for police investigation nor which will avoid different institutions
it could be said to violate protection granted
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 BB Issue 46, July - September 2019

capturing different data parameters of other entities. It went on to state that it was
the same individual with unnecessary in the public interest to have an efficient and
duplication amounting to inefficiency organised system of registration of persons,
in utilization of public resources. and the responsible use of resources in the
b. Registration of persons which is not process, in light of the socio-economic gains
paper-based thus inexpensive and of the system that had been illustrated by
time effective. the respondents. There was, however, also
a public interest in ensuring that the said
c. There is also lack of a single identity
system did not infringe on fundamental
document for persons accompanied
rights and freedoms.
by limited public access to national
identification data. The Court partly allowed the petition and
held that the respondents were at liberty
In addition, the Government has cited its
to proceed with the collection of personal
move to establish a National Master Database
information and data under the National
through Huduma Namba that addresses
Integrated Information Management
the constitutional requirement on access
System (NIIMS) pursuant to the operational
to public information and fulfils the Big 4
provisions of the Registration of Persons
Agenda which comprises of Food Security;
Act. However, pending the hearing and
Affordable Housing; Manufacturing and
determination of the consolidated petitions,
Affordable Healthcare.
the respondents were not to:
In Nubian Rights Forum & 2 others v
a. Compel any member of the public to
Attorney-General & 6 others; Child Welfare
participate in the collection of personal
Society & 8 others(Interested Parties); Centre
information and data in NIIMS.
For Intellectual Property & Information
Technology(Proposed Amicus Curiae) [2019] b. Set any time restrictions or deadlines as
eKLR, the petitioners filed the petition regards the collection of the said personal
based on amendments to the Registration information and data in NIIMS.
of Persons Act establishing a National c. Set the collection of personal information
Integrated Information Management and data in NIIMS as a condition precedent
System (NIIMS) that was intended to be a for the provision of any government or
single repository of personal information public services, or access to any government
of all Kenyans as well as foreigners resident or public facilities.
in Kenya, introduced new definitions of d. Share or disseminate any of the personal
biometric and global positioning systems information or data collected in NIIMS
coordinates, among others. They sought to with any other national or international
suspend the amendments arguing, among government or non-governmental agencies
others, that the impugned amendments or any person.
were unconstitutional because the correct
However, the Government has gone ahead
procedure for amendment was not followed;
to make it mandatory for registration of
that there was no public participation and
the Huduma Namba, given deadlines for
that the amendments threatened violations
registration and in addition that one would
of their rights and of the public and especially
not access any government or public services
as regards the right to privacy, in light of the
without it. Further to that, there will be an
nature of personal information that would
enactment of the Huduma Act, to guide on use
be collected in the NIIMS and the lack of
of the Huduma Namba. The Supreme Court of
any security in the manner of storage of and
India judgment will thus be a crucial guiding
access to the collected data.
precedent should there be a challenge in
The Court held that at least one of the courts over the said incoming Act.
laws cited by the respondents as providing
protection for data, the Computer Misuse
and Cyber Crimes Act, 2018 had been
suspended. As matters stood, there was no
or no specific legislation that provided for
the collection, storage, protection and use of
data collected by or held by government or

69
 BB Issue 46, July - September 2019

Law Reform
Compilation Compiled by Linda Awuor & Faith Wanjiku

LAW REFORM ISSUE BRIEF FACTS & METADATA HOLDINGS PERTINENT TO LAW REFORM
OF JUDGMENT
A. Moses Kasaine Lenolkulal v 1. The applicant was holder of a constitutional office. He
Section 62(6) ofACECA Director of Public Prosecutions was the Governor of Samburu County and would thus
which exempted office Criminal Revision 25 of 2019 appear to be exempt from the provisions of section 62(1)
of ACECA and protected by section 62(6) thereof as the
holders of offices which High Court at Nairobi
M Ngugi, J grounds for his removal were set out in the Constitution.
the Constitution limited or Further, by requiring that he seeks authorisation from the
July 24, 2019
provided for the grounds EACC and its CEO, he was, to some extent, subordinated
upon which such holders to the EACC. There could also be some practical difficulties
Brief Facts
could be removed or the The applicant was the Governor in the manner in which the authorisation was to be given.
2. The question of whether the applicant should have access
office could be vacated from of Samburu County. He had been
to his office required a perspective that looked beyond
being suspended from office charged with various offences the interests of the individual holder of the constitutional
if charged with corruption under the Anti-Corruption and office and considered the wider public interest. That
or an economic crime is Economic Crimes Act. The Trial perspective spoke to the question of political hygiene,
contrary to the Constitution Court granted the applicant bail and was a perspective that raised serious concerns that
and also issued interim orders required judicial consideration with respect to section
that prohibited the applicant 62(6) of ACECA.
3. Suspension of a public or State officer was not a violation of
from accessing Samburu County
rights and was in accord with the constitutional provisions
offices pending filing, hearing and
in Chapter Six requiring integrity from public and state
determination of an application to
officers. Where a public or state officer was charged with
be made by the prosecution. an offence of corruption, then the officer was required
Aggrieved by the interim orders by law to be suspended with half pay, under the terms of
the applicant filed the instant section 62(1) of ACECA, until the conclusion of the case.
revision, in which he sought for If the prosecution results in an acquittal, then the public
the interim orders to be vacated on or state officer was restored to his position and paid all the
grounds that they violated section monies that could have been withheld in the period of his
62(6) of the Anti-Corruption suspension.
and Economic Crimes Act and 4. Article 260 of the Constitution defined a public officer
as a state officer or any person other than a State Officer,
that the orders went against the
who held a public office. Article 260 defined a state office
procedures of removing a County
and a state officer to include a member of a County
Governor as prescribed in the
Assembly, Governor or Deputy Governor of a County,
Constitution. or other member of the executive committee of a County
Government. Therefore a person in the position of the
applicant, a County Governor, as well as well as members
of constitutional commissions such as the Chairperson of
the National Land Commission were State Officers. If some
State Officers were not to be afforded different, preferential
treatment, then section 62(1) of ACECA, which referred
to suspension of a public officer or state officer who was
charged with corruption or economic crime, should apply
to them also.
5. In considering section 62(6) of ACECA one should regard
the provisions of the Constitution with regard to leadership
and integrity, and the national values and principles that
underpinned all actions and conduct by all public and State
Officers and all State Organs.
6. The provisions of section 62(6) of ACECA, apart from
obfuscating, indeed helping to obliterate the political
hygiene, were contrary to the constitutional requirements
of integrity in governance, were against the national
values and principles of governance and the principles of
leadership and integrity in Chapter Six of the Constitution,
and undermined the prosecution of officers in the position
of the applicant in the instant case. In so doing, they

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 BB Issue 46, July - September 2019

LAW REFORM ISSUE BRIEF FACTS & METADATA HOLDINGS PERTINENT TO LAW REFORM
OF JUDGMENT
entrenched corruption and impunity in the land.
7. Under the provisions of the County Government Act,
where the Governor was unable to act, his functions were
performed by the Deputy Governor. That was provided
for in section 32(2) of the County Governments Act. The
Governor in the instant case was not being removed
from office. He had been charged with an offence under
ACECA, and a proper reading of section 62 of ACECA
required that he did not continue to perform the functions
of the Office of Governor while the criminal charges
against him were pending. However, if section 62(6),
which violated the letter and spirit of the Constitution,
particularly Chapter Six on leadership and integrity, was
to be given an interpretation that protected the applicant’s
access to his office, then conditions had to be imposed
that protected the public interest. That was what the Trial
Court did in making the order requiring that the applicant
obtained the authorisation of the CEO of EACC before
accessing his office. In the circumstances, there hadn’t
been an error of law that required that the instant Court
revises the said order.
8. Should there be difficulty in obtaining the authorisation
from the EACC, there would be no vacuum in the County.
The instant Court took judicial notice of the fact that
there had been circumstances in the past in which County
Governors had, for reasons of ill health, been out of office,
and given the fact that the Constitution provided for the
seat of a Deputy Governor, the Counties had continued
to function. In the instant case, the applicant was charged
with a criminal offence; he had been accused of being in
moral ill-health. He was alleged to have exhibited moral
turpitude that required that, until his prosecution was
complete, his access to the County government offices
were to be limited as directed by the Trial Court.
9. [Obiter] Would it serve the public interest for him to go
back to office and preside over the finances of the County
that he has been charged with embezzling from? What
message does it send to the citizen if their leaders are
charged with serious corruption offences, and are in office
the following day, overseeing the affairs of the institution?
How effective will prosecution of such state officers be,
when their subordinates, who are likely to be witnesses,
are under the direct control of the indicted officer?

71
 BB Issue 46, July - September 2019

LAW REFORM ISSUE BRIEF FACTS & METADATA HOLDINGS PERTINENT TO LAW REFORM
OF JUDGMENT
B. Lake Naivasha Grower Group & 1. A person who alleged a violation of his constitutional rights
Section 30 of the Nakuru another v County Government and freedoms had to plead such allegation with a certain
of Nakuru [2019] eKLR degree of precision. That precision had the importance of
County Finance Act, 2016 is defining the dispute to be decided by the court. Procedure
Petition 8 of 2017
unconstitutional to the ex- High Court at Nakuru was a hand maiden of just determination of cases. Cases
tent to which it purports to R.L. Korir, J could not be dealt with justly unless the parties and the
February 12, 2019 court knew the issues in controversy. Pleadings assisted in
levy horticultural cess on the that regard and were a tenet of substantive justice as they
Brief facts
horticultural exports. gave fair notice to the other party. The petition, together
The 1st petitioner, a limited
with the supporting affidavit, was quite clear and left no
liability company, represented
doubt that the petitioners were claiming that certain county
and advanced the interests
legislation contravened the provisions of article 209 and
of members/shareholders 210 of the Constitution.
engaged in horticultural 2. A county government could not overlook the provisions
business in Lake Naivasha of the Constitution governing the enactment of laws. The
region in Nakuru County. The principles of constitutional interpretation dictated that the
2nd petitioner was a voluntary elementary rule of constitutional construction was that no
association of independent one provision of the Constitution was to be segregated from
growers and exporters of cut all others to be considered alone, but all provisions bearing
flowers and ornamentals. on a particular subject were to be brought into view and to
be so interpreted as to effectuate the general purpose of the
The petitioners averred that instrument.
based on the Nakuru County 3. County governments had legislative discretion to impose
Finance Act, 2016, the respondent charges for services rendered under article 209 (4) of the
demanded horticultural cess and Constitution. A holistic interpretation of article 210 (1) of
agricultural produce cess from the Constitution which was meant to regulate such charges
the petitioners. The demands provided that county governments could not impose charges
contained penal consequences that they had not provided for in their county legislation.
4. In order to determine whether the respondent contemplated
for non-compliance. Having
the cess as a tax or a charge, the court had to consider the
received legal advice on the
definitions in the Nakuru County Finance Act, 2016. The
unconstitutionality of the county Act had defined the term charges under section 2 as charges
legislation, the petitioners’ for services provided including but not limited to, parking
members did not comply and as fees, game park entry fees under the County Government
a result the respondent preferred powers and functions in part II of the fourth schedule of
charges against the petitioners’ the Constitution as devolved in legal gazette notices from
members for non-payment time to time. The Act also defined the term taxes as property
of cess. They claimed that the tax and entertainment tax as related to the county and
respondent had acted ultra vires contemplated under article 209 of the Constitution and
its constitutional jurisdiction by provided for under relevant county legislations. Taxes were
levying the agricultural produce found under part II of the Act and the only taxes envisaged
cess and the horticultural cess, were property taxes and entertainment taxes. On the other
subjecting them to double hand, other fees and charges were found in part IV of the
taxation, and that the county Act where the agricultural produce cess and horticulture
legislation was null and void cess were provided for.
and any enforcement of such 5. The respondent never intended the cess to be a tax but
laws eroded the sanctity of the rather to be a charge for the measure of weight to regulate
scheduled crop markets within the county as mandated
Constitution.
under the law. Counties had the mandate to levy charges
The respondent opposed the
for development of agricultural crops and development and
petition and stated that county regulation of the scheduled crops market under section 17
governments have exclusive (2) of the Crops Act, while section 42 of the Agriculture and
mandate over agriculture Food Authority Act provided for the measure of weight of
including crop and animal agricultural produce.
husbandry, livestock sale yards, 6. Agricultural produce cess was a charge/fee for the regulation
county abattoirs, and animal of scheduled crops within the county’s markets and it was
disease control and fisheries. therefore within the respondent’s function to levy the cess.
The county assembly exercised Further the said cess had been provided for in the Nakuru
the legislative authority of the County Finance Act, 2016 as required by the Constitution.
county government and therefore Therefore section 29 of the Act did not offend the provisions
made laws that were necessary of the Constitution.
and incidental to the exercise 7. Horticultural cess levied under section 30 of the Nakuru
of the functions and powers Finance Act, 2016, was in relation to flowers and vegetables
of any county government in for export. Article 209(1) (c) of the Constitution clearly
relation to matters specified and expressly provided that only the national government
under the fourth schedule of would impose custom duties and other duties on import
and export. Section 17 (2) of the Crops Act mandated the
the Constitution, including the
County Government to regulate scheduled crops market
levying of agricultural produce
within the County. Flowers and vegetables for export were
cess. The respondent added that meant for international markets and the taxation regime in
the petitioners failed to adduce respect of such exports was not under the jurisdiction of the
any evidence as to impute County Government.
the unconstitutionality of the 8. The Horticultural Crops Directorate via a letter dated
Nakuru Finance Act and the October 5, 2015 wrote to all the county governments and
Revenue Administration Act in advised that they were not allowed to charge duties on
comparison to the Crops Act, export and import as it was the mandate of the national
2013. government through the Authority and doing so would

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amount to double taxation. Under section 4 of the Agriculture
and Food Authority Act one of the Directorate’s functions was to
advise the National Government and the county governments on
agricultural levies for purposes of planning, enhancing harmony
and equity in the sector. Therefore, the advice issued by the
Authority was binding to all county governments.
9. The respondents’ action in charging horticultural cess as per
section 30 of the Nakuru County Finance Act, 2016, was ultra
vires its mandate as provided for in the Constitution and hence
the provision was illegal and therefore null and void to the extent
of the inconsistency.
10. One of the requirements of public participation was the fact that
there had to be a reasonable opportunity given to the public to
participate. The petitioners had not adduced any evidence to
show that their views were not considered or that they were not
given a reasonable opportunity to participate. Therefore, the
petitioners’ claim that their right to fair administrative action was
infringed failed.

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C. Cyprian Andama v Director of 1. Courts had laid two main standards to be used in determining
Section 84D of the Public Prosecution & another; constitutional validity of a challenged statute or its provision(s). The first was
Kenya Information and Article 19 East Africa (Interested the rationality test which applied to all legislation under the rule of law while
Communication Act Party) [2019] eKLR the second was that of reasonableness or proportionality test which applied
which created the offence High Court at Nairobi when legislation limited a fundamental right in the bill of rights. Article 24(1)
of publishing obscene Petition No. 214 of 2018 of the Constitution provided that such a limitation was valid only if it was
information declared reasonable and justifiable in an open and democratic society. Kenya was a
unconstitutional Brief facts democratic state with a democratically elected leadership and therefore it
The petition challenged the was only through criticism that citizens made their leaders know when their
constitutionality of section 84D actions were not in the interest of the nation. Such criticism helped public
of the Kenya Information and officers understand the feelings of the citizens. Citizens could not be freely
Communication Act, 2009, (KICA) expressing themselves if they did not criticize or comment about their leaders
for unjustifiably violating article and public officers. Article 33 of the Constitution guaranteed freedom of
33 and 50(2)(n) of the Constitution. expression and limited it to any expression that was not in accord with article
The petitioner contended that 33(2).
impugned section created 2. KICA was enacted in the year 2009, less than a year to the
an offence criminalizing the promulgation of the 2010 Constitution which introduced a wide array
publishing of obscene information of fundamental rights and freedoms under the bill of rights including
in electronic form in vague and the freedom of expression. The enactment of KICA and its section 84D in
overbroad terms with regard to the particular was aimed at controlling the kind of information that could be
meaning of “lascivious”, “appeals circulated through the electronic media, also referred to as the social media.
to the prurient interest” and “tends The title of the impugned section indicated that it was meant to rein in on the
to deprave and corrupt persons”. publishing of obscene information. However, the resultant effect had been to
He stated that section 84D of instil fear and submission among the people considering the hefty fines and
KICA offended the principle of long prison terms that the persons charged under the impugned section might
legality in article 50(2)(b) of the face in the event of a conviction. That could not be the object of any law in
Constitution which required that the face of the prevailing constitutional dispensation; when people enjoyed a
criminal law, especially one that robust bill of rights that had opened the democratic space in the country.
limited a fundamental right should 3. Article 20(2) of the Constitution emphasized that every person
be clear enough to be understood should enjoy the rights and fundamental freedoms in the bill of rights to the
and be precise enough to cover greatest extent consistent with the nature of the right or fundamental freedom.
only the activities connected to the Under the 2010 Constitution, people had the right to exercise the right to
law’s purpose. freedom of expression to the greatest extent, subject only to the limitation of
The petitioner urged the Court that right under article 33(2) or any other provision in the Constitution.
to declare section 84D of KICA 4. From the Constitution itself, the freedom of expression and the
unconstitutional and to issue freedom to hold opinion were not absolute and could only be limited in
an injunction barring the 1st accordance with article 24(1). Article 24(1) of the Constitution required
respondent from carrying on with that there be reasonable and justifiable reasons for the limitation to a right.
the prosecution of the petitioner Whereas article 33(1) of the Constitution was limited by clause (2) and (3)
in the proceedings in Milimani thereof, any other limitation should be in terms of the two sub-articles. It was,
Criminal Case Number 166 of therefore, upon the respondent to show that the limitation by section 84D of
2018, Kiambu Criminal Case KICA over the publications allegedly made by the petitioner was contrary to
Number 686 of 2018, and Kiambu article 33(2) and (3). That was not the case in the instant matter because the
Criminal Case Number 687 of respondent did not show how article 33(2) was violated by the publications
2018. The petitioner was charged complained of and neither did the respondent say that the limitation was
with the offences of publishing of reasonable or justified. Article 24 of the Constitution was in mandatory terms
obscene information in electronic that the purported limitation should be justifiable in an open and democratic
form contrary to section 84D society based on human dignity, equality and freedom.
of the Kenya Information and 5. Article 24(3) of the Constitution placed an obligation on the state
Communication Act, 2009. or person seeking to justify a particular limitation to demonstrate to the court
or tribunal or other authority that the requirements of article 24 had been
satisfied. The only justification that section 84D of KICA met was that it was a
law, limiting that fundamental right to freedom of expression, and not more.
The instant respondent did not sufficiently demonstrate that the limitation by
section 84D of KICA was justified.
6. To the extent that section 84D of KICA purported to suppress
dissent, it was a derogation of article 33 of the Constitution. The impugned
provision also contravened article 25(c) to the extent that it limited the right

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to a fair trial as enshrined in article 50(2)(b) of the Constitution. Any alleged

discomfort or displeasure with the petitioner’s publication could have been
addressed by less restrictive means, such as a civil suit for defamation, other
than blanket curtailment of a fundamental right. Section 84D of KICA was
unconstitutional considering that even though its purpose was to control/
limit use of obscenities in communication, its effect had been to infringe on the
freedom of expression guaranteed by the Constitution by creating the fear of the
consequences of a charge under the said section.
7. It was a fundamental tenet of natural justice that an accused person
ought to be informed, in very clear terms, of the charges that he faced to enable
him to prepare his defence adequately. That principle was aptly captured under
article 50 of the Constitution which provided for the rights of every accused
person and at article 50(2)(b) which expounded the non-derogable right to fair
trial to include the right of the accused person to be informed of the charge,
with sufficient detail to answer it.
8. Section 84D of KICA provided for an offence in such broad and
unspecific terms such that the person charged under it might not know how to
answer to it. The section;
a. did not define the meaning of the words; “obscene” or the phrase “any
material which is lascivious or appeals to the prurient interest”;
b. did not explain how or who should determine if the publication’s
“effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained or
embodied therein.”
The section left the words to the subjective interpretation by the investigative
agencies, the prosecution or the court that would ultimately try the case.
9. A law, especially one that created a criminal offence, should be clear
and unambiguous. It should not be widely and vaguely worded that it would net
anyone who might not have intended to commit what was criminalized by the
provision. In the instant matter, it was difficult to comprehend how court of law
trying a criminal case will determine how a publication can have effects that
tends to deprive not only persons who read it but also those likely to read, see or
hear the matter contained or embodied in it. In effect therefore, section 84D of
KICA was so wide and endless in its application that it referred to publications
that targeted everyone including those who were yet to read, see or hear of it
or what it embodied. Such an all-encompassing and vague statutory provision
introduced prior to the enactment of the 2010 Constitution, as an instrument of
repression for the protection and cover up of felonies and scandals committed by
those in power had no place in a free and democratic society that was governed
by the rule of law.
10. From the particulars of the criminal charges against the petitioner,
the petitioner might have been unhappy about the misuse of power and public
funds by public officers and the outcome of an election in Kirinyaga County.
The petitioner might have used very strong and impolite words in expressing his
displeasure. His publications targeted public officers. A democratic state should
acknowledge constructive criticism of public or state officers as the hallmark
of democracy and the means for public accountability. Criminalizing criticism
was not in accord with the transformative 2010 Constitution. The dissent in
opinion or thought should not amount to a crime, otherwise, that was in effect
suppressing the right to hold different opinion from those in public office.
11. The manner in which people express their thoughts was not uniform
and might vary depending on their context, background and upbringing. That
meant that the mere use of impolite language, which was really the case in the
instant petition, should not necessarily be criminalized. Section 84D of KICA
criminalized the use of impolite, annoying or character assassinating remarks
that would appear to displease those in public office – a scenario that was at
cross purpose with the intent and spirit of the Constitution.
12. The subjects of the criticism in the publications made by the petitioner

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were public or state officers. Article 73 of the Constitution provided that
the authority assigned to a state officer was a public trust to be expressed
in a manner consistent with the purpose and objects of the Constitution,
demonstrated respect for the people, brought honour to the nation and
dignity to the office, and vested in the state officer the responsibility to serve
the people rather than the power to rule them. Public office bestowed on the
public officer servant leadership, and therefore, the right to criticize public
officers should not be criminalized merely as a means of suppressing dissent.
It was no longer acceptable to use laws that, prima facie, were oppressive to
the public for the sole purpose of protecting the dignity of public officers,
thereby, violating people’s right to freedom of expression. Any stifling of that
right was by any means unconstitutional.
13. Section 84D of KICA was unconstitutional to the extent that it
infringed on the citizens’ right to freedom of expression guaranteed under
article 33 of the Constitution and derogated the right to fair hearing by
providing for an offence in broad and unclear terms; making it subject to the
arbitrary and subjective interpretation by the Director of Public Prosecution
or the courts, contrary to article 50(2)(b) of the Constitution. Under article
25(c) of the Constitution, the right to a fair trial could not be limited.
14. The Constitution protected people’s rights and prohibited laws
that unreasonably and unjustifiably infringe on those rights. Section 7 of the
sixth schedule of the Constitution stipulated that all laws in force immediately
before the effective date continued in force and were to be construed with
the alterations, adaptations, qualifications and exceptions necessary to
bring it into conformity with the Constitution. Therefore, a provision such
as section 84D of KICA was too retrogressive to fit into the modern, open
and democratic society envisaged under the 2010 Constitution. The section
was too wide in scope, punitive in intent and suppressive in effect to be
tolerated by the transformative 2010 Constitution. The impugned section
was inconsistent with articles 33, 50(2)(b) and 25(c) of the Constitution, in so
far as it suppressed the freedom of expression and denied the petitioner the
right to fair trial through vagueness and ambiguity.

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KENYA LAW STRATEGIC PLAN LAUNCH

N
ational Council For Law “This Strategic Plan guarantees accessibility
Reporting (Kenya Law) on 29th of legal information to the public. This plan
August 2019, officially launched is therefore an embodiment of our collective
its Strategic Plan for the period promise to our stakeholders on the service
2018 to 2022 with a focus on providing delivery standards that they should expect
access to public legal information. from Kenya Law.” Said the Chief Justice.
Speaking during the launch at Crown Plaza, Building on the previous years’ success,
the chief guest , who is also the Chairman of Kenya Law aims further to re-align resources
the Council for Law Reporting, Hon. David available to the institution with key strategic
K. Maraga, E.G.H. Chief Justice/President of objectives under three thematic areas;
Supreme Court of Kenya; lauded Kenya Law 1) Access to public legal information
for making significant advances in tracking 2) Organizational sustainability, and
Kenya’s jurisprudence and disseminating 3) Corporate identity and Brand visibility
public legal information over the last five- which will be the drivers to achieving its
year planning period. mandate.
The key accomplishments included the Kenya Law CEO Mr. Long’et Terer, in his
publication of 12 Kenya Law Reports and speech, promised that; as a leading legal
the revision and update of 498 chapters of resource frontier, Kenya Law will strive to
the Laws of Kenya both of which facilitated guarantee accessibility to legal information
judicial officers, legal practitioners and to Kenyans of all walks of life by making
members of the public to understand it available in various forms and through
and advance their rights and obligations. varied media.
This freely accessible data also facilitated Mr. Terer also noted that the Strategic Plan
government institutions and officers to is a commitment and a responsibility which
review, implement and enforce laws and the Council will gladly implement as the
regulations. objectives that have been set are well thought

CEO Mr. Long’et Terer (Centre) consults with the CJ Hon. David Maraga during the launch of the Kenya Law strategic plan 2018-2022. On the
Hon. Justice Anthony Ndung’u a Council member and Chairman of the Technical Committee of the Council..

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A section of the Council members hold the Strategic

plan during it’s unveiling at the launch

out and achievable. “The plan is

an embodiment of a collective
promise to the stakeholders on
the service delivery standards
that customers should expect
from Kenya Law.” He said.
The Deputy CEO Ms. Janet
Munywoki also made a
presentation on the Kenya
Law journey, highlighting the
successes and challenges since
inception and Kenya Laws
promise in the new strategic From left: Deputy chief executive Janet Munywoki, Chair of the Technical Committee Hon.
plan. Justice Anthony Ndung’u and Chief Executive Officer Long’et Terer during the launch of
In attendance were members of the Kenya Law Strategic Plan 2018-2022 in Nairobi.
the council including court of
appeal judge Hon. Fatuma Sichale, High court
judge and chair of the technical committee
Hon. Anthony Ndungu, University of Nairobi
Law school dean Kameri Mbote among
others. Others were development partners,
representatives from LSK, representatives
of the clerk of the National Assembly among
other kenya law stakeholders.
An electronic copy of the Strategic Plan
2008 – 2022 document can be found on our
website at: www.kenyalaw.org

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1 2

1. Team Leader, Strategy and Quality Assurance Ms. Edna Kuria Muthaura interacts with attendees
during the LSK Nairobi Legal Tech and Innovation week
2. Team Leader Laws of of Kenya Department Ms. Wambui Kamau makes a presentation during the LSK
Nairobi Legal Tech and Innovation week
3. Kenya Law exhibited at the Kenya Leadership Integrity Forum (KLIF) - Anti Corruption Day held on
July 11th at the Hilton Hotel, Nairobi.
4. Kenya Law Sales and Marketing officer Ms. Carolyne Wairimu (right) speaks to the former Auditor
General of the Republic of Kenya, Mr. Edward Ouko who was among the guests at the Kenya Leadership
Integrity Forum (KLIF) - Anti Corruption Day event.
5. Kenya Law crowned the Overall winner of the coveted LSK Justice Cup Tournament 2019
6. LSK President Mr. Allen Gichuhi (second right) and LSK CEO, Ms. Mercy Wambua (third left) presents
the LSK Justice Cup trophy to Kenya Law FC player Ms. Flora Weru during the 20th Edition of the LSK
justice cup tournament held on 27th July 2019 at Parklands Sports Club, Nairobi.
7. Kenya Law at the 2019 LSK Annual conference in Mombasa
7

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