BB Issue 53

Issue 53
April - June 2021
High Court declares that the BBI Steering Committee is

unconstitutional and its efforts to amend the Constitution are also
unconstitutional
The running of a bar by a judicial officer is not in itself evidence of gross

misconduct and conflict of interest. Pg 21
A state corporation had no power to alter the statutory minimum requirements for
appointment of a state officer Pg 39
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CONTENTS
Female genital mutilation cannot be rendered There is conflict of interest where an advocate
lawful because the person on whom the act was who is a senator represents a person accused
performed consented to that act. Pg 25 of corruption and who is likely to appear
before a committee of the Senate in which the
senator is a member. Pg 31
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
| Janet Munywoki | 4. Feature Case 6
Editorial Assistant 5. Cases 19
| Andrew Halonyere |
6. Caseback 45
Contributors
7. Legislative Updates 46
| Njeri Githan’ga | Wambui Kamau | Nelson Tunoi |
| Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
8. Legal Supplements 50
| John Ribia | Eunice Chelimo | Faith Wanjiku |
| Kevin Kakai | Patricia Nasumba |Musa Okumu|
9. International Jurisprudence 56
| Lisper Njeru |
10. Law Reform Compilation 68
Design and Layout
| 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
Hon. Lady Justice Martha K. Koome, EBS

Chief Justice and President of The Supreme Court of Kenya
Chairperson
The Hon Justice James Rika
Judge of the High Court of Kenya Mr Mwenda Njoka
Government Printer (Ag), Government Press
The Hon. Justice (Rtd) Kihara Kariuki (Represented by Ms Eva Kimeiywo, Principal
Attorney General Printer)
Alt - Ms Linda Murila, Chief State Counsel
Ms Janet Kimeu
Prof Kiarie Mwaura
Advocate, Law Society of Kenya
Dean, School of Law, University of Nairobi
Ms Jennifer Gitiri Mr Michael Muchemi

Advocate & Public Officer, Advocate, Law Society of Kenya
Office of the Attorney General & DoJ
Mr Long’et Terer
The Hon Justice Fatuma Sichale
Editor/CEO
Judge of the Court of Appeal of Kenya
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
(Represented by Mr Jona Wala,
Director, Accounting Services)
vi
BB Issue 53, April - June 2021
Editor’s Note
Long’et Terer
CEO/Editor
T
he Bench Bulletin is the ultimate publication oriented towards the legal field for Kenya’s judicial officers,
the practitioners, managers and the public at large. It is a quarterly magazine of recent developments
in law, particularly case law, law reform issues, international comparative analysis on case law, new
legislation in the form of Acts of Parliament, rules and regulations, pending legislations contained in
Bills tabled before Parliament and selected Legal Notices and Gazette Notices.
This edition of the Bench Bulletin highlights a significant range of ground breaking jurisprudence from the superior
courts of record in Kenya and international cases.
From the Supreme Court, we highlight the decision in the case of Kenya Vision 2030 Delivery Board v Commission
on Administrative Justice & 2 others [2021] eKLR. The case dealt with whether the recommendations of the
Commission on Administrative Justice were binding on public bodies. The Supreme Court held that whereas CAJ
had the requisite mandate to make recommendations to public officers or public bodies, the recommendations
were not binding. A recommendation could only be binding when its binding nature was specifically provided for
under the Constitution or the law. Neither the Constitution nor CAJ Act provided that CAJ’s recommendations
were binding. Consequently, the Board had discretion to determine the manner in which they were to implement
CAJ’s recommendations.
From the Court of Appeal, we highlight the case of Judicial Service Commission v Joseph Riitho Ndururi [2021]
eKLR. The Court of Appeal here dealt with the issue of whether the dismissal of a judicial officer (Principal
Magistrate) from employment, on basis of allegations of gross misconduct and conflict of interest arising from
running a bar, was fair. The court held that the appellant failed to demonstrate any impropriety or appearance of
impropriety on the part of the respondent supervising the running of a bar which was exclusively patronised by
other senior civil servants in the area. Additionally, any conflict of interest arising from running the bar was not
demonstrated. The Judicial Service Code of Conduct and Ethics 2020, which came into force almost fourteen years
after the alleged misconduct was committed could not be applied retroactively to condemn the respondent. The
appellant ought to have availed the code of conduct, if any, that was applicable in 2006 and used it as the criteria
to determine if indeed the conduct complained of was proscribed therein or not.
From the High Court, we feature the case of David Ndii & others v Attorney General & others Petition No E282 of
2020 (Consolidated with Petition Nos 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426
of 2020 and 2 of 2021). The case questioned the constitutionality of the BBI Steering Committee and whether
its process of initiating amendments to the Constitution conformed with the applicable legal and constitutional
requirements. The High Court held that the BBI Taskforce which eventually morphed into the BBI Steering
Committee was the President’s and not the peoples’ initiative. The bill to amend the Constitution was as a result
of the proposals of the BBI Steering Committee. It was, therefore, quite clear that what has been presented as a
popular initiative to amend the Constitution was in reality the presidency’s initiative which was certainly contrary
to article 257 of the Constitution. To the extent that the BBI Steering Committee was created to perpetuate what
was clearly an unconstitutional purpose, it was an unlawful, and at any rate, an unconstitutional outfit.
In the international jurisprudence scene, we have the case of Khoviwa v Republic from the Supreme Court of
Appeal of Malawi which dealt with the issue of constitutionality of the death penalty. In holding the death penalty
unconstitutional, the court held that it was a derogation from the right to life and thus impermissible.
The above are just a few extracts from this issue of the Bench Bulletin and it is our hope that it shall be educative
and enlightening to you.
Long’et Terer
Editor/CEO
1
CJ’s Message
Chief Justice and President of The Supreme Court of Kenya
SPEECH BY JUSTICE MARTHA KOOME ON BEING SWORN IN OFFICE AS THE 16th

CHIEF JUSTICE OF KENYA AND THIRD PRESIDENT OF THE SUPREME COURT
OF KENYA
Y
our Excellency, the President of the Republic of Kenya and Commander-in-Chief of
the defence forces; The Hon Deputy President of the Republic of Kenya; The Right Hon
Former Prime Minister, Hon Raila Odinga; Her ladyship Hon. Philomena Mbete Mwilu, the
Deputy Chief Justice of the Judiciary, all my colleague Judges of the Supreme Court and other
courts and the Chief Registrar of the Judiciary; Hon Cabinet Secretaries present, Governors, MPs and
distinguished guests, who include my dear family, present to witness this historic event as I take
the oath of office as the Chief Justice of this great Republic.
I STAND HERE with great humility and gratitude to the Almighty God; to the people of Kenya, who exercised
their sovereign power through the JSC that nominated me; to the people’s representatives at the National
Assembly who approved my nomination; and to your Excellency the President of the Republic of Kenya
and Commander in Chief of the Armed Forces for graciously witnessing my solemn oath of office today.
THIS IS ALSO A MOMENTOUS occasion that is witnessed by many with joy and hope not only because I am
the first woman in Kenya to take this oath of office, but because every time a woman, a member of
marginalized group or a person living with disabilities breaks a barrier they hold space for the dreams
and hopes of others. I have travelled this long journey but it was not lonely because I walked the path of
other women trail blazers who went before me. After many trials, I can confidently say the path is now well
defined and easier for others to travel after me. I am the first but certainly not the last.
I HAVE TAKEN THIS OATH of office with utmost solemnity and have internalized each and every word that
l have uttered therein seriously. These are important words, which we often refer to as guiding principles.
They are: impartiality, independence, fairness, power to protect the Constitution, to render service with
integrity and competency among others. This oath will constantly remind me that this power is entrusted
to me as the servant of the people, to work with others towards ensuring justice is done; that it is dispensed
expeditiously without fear or favour or undue regard to technicalities.
YOUR EXCELLENCY, ladies and gentlemen, the weight of responsibility that now falls on my shoulders
in the role of Chief Justice of Kenya cannot be understated. It is a heavy one, but it becomes lighter
because it is a shared responsibility. It is a shared responsibility because justice works through a chain which
runs through all branches of government and is as strongest as its weakest link. At the end of the chain is
the Judiciary, but we cannot work when the chain is broken. We must restore coordination and focus to
the justice system and that requires renewed commitment to working together as co-equal branches of
government. This transition offers an opportunity reset the working relationship and to build on existing
systems to strengthen the delivery of justice along the entire justice chain. Kenyans don’t care which of
the arms of government is the weakest link they simply want justice and as government we must work
together to improve the delivery of service to Kenyans.
2
THE EXECUTIVE has the duty to ensure budgetary allocations that supports the functions of the Judiciary;
that court orders are obeyed and implemented; and that the investigations and prosecution of
cases are undertaken efficiently. The Legislature has a mandate to make law and oversight other branches
including approve the nomination of the Chief Justice. The Judiciary’s role is to adjudicate conflicts based
on the Constitution and the law to promote peace and prosperity. Resolution of conflict however, doesn’t
mean that all parties are satisfied, but our constitutional democracy requires that those dissatisfied
with legal rulings pursue the matter through the judicial process and legal channels. As we continue to
encourage legal resolution of conflict and enforcement of court orders and judgements we will create an
enabling environment for dignity and sustainable development.
WHEN I APPEARED before the August House for vetting and approval of my nomination, I was put
to task to explain how the Judiciary can remain independent and work in harmony with other arms of
government without compromising its independence. I had no difficulties to state that the independence
of the Judiciary in decision making and in hiring of staff is protected and ring fenced in the Constitution:
such that any party or authority attempting to direct how the Judiciary should decide a matter would
be in violation of the Constitution. I also had no difficulties to state that as the Judiciary, we are accountable
for the resources entrusted to us. We are accountable for every hour and every day of work as well as all
other resources entrusted to the Judiciary.
MY CLARION CALL TODAY is for everybody to bear their own weight and for each of us individually and
institutionally to become champions for justice, by playing our constitutionally mandated role in a timely
manner and in cooperation with each other. When everybody bears the responsibility for justice from
individuals to institutions, we promote resolution and reconciliation and can avoid the pitfalls that lead
to unceasing conflict and endless litigation.
In our daily endeavours:
1. Let us embrace the various methods of alternative dispute resolution mechanisms;

2. Let us live by the values that avoid conflict; that leads us to see each other as equal members of
the society; a human being and a child of God deserving a second chance; and
3. Let us seek and practice Ubuntu.
PLEASE JOIN ME TODAY in becoming a Justice Champion, a citizen who stands up for what is right for
themselves and others, so we can build a fair and just society whose foundation is the Rule of Law and our
Constitution.
I thank you all.
HON. THE CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA
3
What they said

FEATURE CASE - High Court Judges-JM Ngugi, GV Odunga, J Ngaah, EC Mwita & MT Matheka, JJ in
David Ndii & others v Attorney General & others, Petition No E282 of 2020 (Consolidated with Petition
Nos 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426 of 2020 and 2 of 2021)
“The BBI Taskforce which eventually morphed into the BBI Steering Committee was the President’s and not the peoples’
initiative. The bill to amend the Constitution was as result of the proposals of the BBI Steering Committee. It was,
therefore, quite clear that what has been presented as a popular initiative to amend the Constitution was in reality the
presidency’s initiative which was certainly contrary to article 257 of the Constitution. To the extent that the BBI Steering
Committee was created to perpetuate what was clearly an unconstitutional purpose, it was an unlawful, and at any rate,
an unconstitutional outfit.”
Supreme Court Judges - PM Mwilu, Ag CJ & Ag P, MK Ibrahim, SC Wanjala, NS Njoki & I Lenaola, SCJJ
in Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] eKLR,
Petition 42 of 2019
“Whereas CAJ had the requisite mandate to make recommendations to public officers or public bodies, the recommen-
dations were not binding. A recommendation could only be binding when its binding nature was specifically provided
for under the Constitution or the law. Neither the Constitution nor CAJA provided that CAJ’s recommendations were
binding. Consequently, the Board had discretion to determine the manner in which they were to implement CAJ’s
recommendations.”
Court of Appeal Judges - W Karanja, SG Kairu & AK Murgor, JJA in Judicial Service Commission v Joseph
Riitho Ndururi [2021] eKLR Civil Appeal 650 of 2019
“The appellant failed to demonstrate any impropriety or appearance of impropriety on the part of the respondent super-
vising the running of a bar which was exclusively patronised by other senior civil servants in the area. Additionally, any
conflict of interest arising from running the bar was not demonstrated. The Judicial Service Code of Conduct and Ethics
2020, which came into force almost fourteen years after the alleged misconduct was committed could not be applied
retroactively to condemn the respondent. The appellant ought to have availed the code of conduct, if any, that was appli-
cable in 2006 and used it as the criteria to determine if indeed the conduct complained of was proscribed therein or not.”
Court of Appeal Judges - P O Kiage, F Sichale & J Mohammed, JJA in Alfred Mincha Ndubi v Standard
Limited, Civil Application 74 of 2019
“There was concern at the tone and content of the grounds, the affidavit and the submissions of counsel. Counsel ought
to remember that they owed the court a duty of courtesy and respect. It reflected terribly on counsel when they undertook
a mission of hurling intemperate and demeaning words at the court with reckless abandon. Such a course did great dis-
service to counsel and brought the profession of law and administration of justice to disrepute. Counsels ought to always
remember that they were officers of the court and that respect and etiquette were marks of noble professionalism.”
High Court Judge – A Mrima J in Okiya Omtatah Okoiti v Judicial Service Commission & 2 others; Katiba
Institute (Interested Party) [2021] eKLR, Petition 197 of 2018
“Most of the disputes handled by the local tribunals involved the Executive. As such, the Executive had an obvious advan-
tage as it was responsible for the appointment and removal of the members. In such circumstances, the Executive ought
not to be the appointing authority. Instead, that duty ought to be undertaken by an independent entity. Local tribunals
were subordinate courts and their affairs, just like the other subordinate courts, ought to be managed by the Judiciary
through JSC. In doing so, the constitutional dictates would be achieved. It would create transparency in the appointment
and removal of members of the tribunals which would be done in accordance with the law and the Constitution.”
4
High Court Judges - LA Achode, K Kimondo & MW Muigai JJ in Tatu Kamau v Attorney General & 2
others; Equality Now & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) [2021]
eKLR Constitutional Petition No. 244 of 2019
“The assumption was that anyone above the age of 18 years underwent FGM voluntarily. However, that hypothesis
was far from reality, especially for women who belonged to communities where the practice was strongly supported. The
context within which FGM/C was practiced was relevant as there was social pressure and punitive sanctions. Those who
underwent the cut were involved in a cycle of social pressure from the family, clan and community. They also suffered
serious health complications while those who refused to undergo it suffered the consequences of stigma. Women were thus
as vulnerable as children due to social pressure and could be subjected to the practice without their valid consent. The
rationale for FGM/C varied from one community to another. Medicalization of FGM/C did not mitigate harm on the
girl/woman as demonstrated by the FGM/C survivors who deposed affidavits and/or testified in court were consistent and
had similar experience after FGM/C.”
High Court Judge – E K Ogola, J in Office of the Director of Public Prosecutions v James Aggrey Bob
Orengo; Daniel Ogwoka Manduku & 2 others (Interested Parties) [2021] eKLR, Constitutional Petition
No. 204 of 2019
“Determining what was a personal interest would not always be easy, and would often be made on a case-by-case basis.
It did not require any taxing of the mind to find a glaring perception of conflict of interest. To the accused person he had
the Senator (respondent) as his advocate; driven to court in a state motor vehicle; chauffeured by a State provided driver;
and the vehicle fueled by the State. To the accused, despite facing grave charges of economic crimes, his defense appeared
to have the blessings of the State. To the counsel, the unsaid story to the accused was that the accused had the best counsel,
who appeared to have State support, and therefore the accused needed not unduly worry since he was in good hands; to
the public tax payer, he or she was confused, stood akimbo and wondered where the world was going: why had the accused
been charged when he was to be represented by a State officer who arrived in court using State resources? None of the per-
ceptions was bad or was unlawful. But all of them created scenarios of possible conflict of interest, at least in perception.”
High Court Judge – MA Odera, J in Premier Food Industries Limited v Triclover Industries (K) Limited
[2021] eKLR, Civil Suit No.463 of 2015
“Passing off was a tort developed out of deceit. It could be described as the common law form of trademark law but with
wider coverage. The law of passing off and trademark law had common roots and, therefore, were in many respects simi-
lar. The main point about passing off was that goodwill had been established by one trader and that another trader was
trying to take advantage of that goodwill to cash in on it to the detriment of the first trader.”
Supreme Court of the UK Judge- Lord Leggatt in Uber BV and others v Aslam and others
[2021] UKSC 5
“In determining whether an individual is a “worker”, there can, as Baroness Hale said in the Bates van Winkelhof case
at para 39, “be no substitute for applying the words of the statute to the facts of the individual case.” At the same time, in
applying the statutory language, it is necessary both to view the facts realistically and to keep in mind the purpose of the
legislation. As noted earlier, the vulnerabilities of workers which create the need for statutory protection are subordination
to and dependence upon another person in relation to the work done. As also discussed, a touchstone of such subordination
and dependence is (as has long been recognised in employment law) the degree of control exercised by the putative employer
over the work or services performed by the individual concerned. The greater the extent of such control, the stronger the
case for classifying the individual as a “worker” who is employed under a “worker’s contract.”
Supreme Court of Appeal of Malawi Judge – DF Mwaungulu in Khoviwa v Republic

MSCA Miscellaneous Criminal Appeal No 12 of 2017
“Derogation from the right to life is prohibited directly and clearly by the Constitution. The essence of section 25, 26, and
other sections that prescribe the death penalty in criminal offences is that they are derogations from the right to life - life
itself, life in all its sanctity. Under section 45 (1) of the Constitution, the supreme law of all laws of Malawi, the death
penalty, since it is a derogation from the right to life, is impermissible. Curiously, when the legislature in 2011 amended
section 25 of the Penal Code, it removed corporal punishment, because ofits prohibition in section 19 (2) (b) of the Con-
stitution, and retained the death penalty despite that there could not, under section 45 (1) and (2) (b) of the Constitution
be derogation from the right to life.”
5
Feature Case
High Court declares that the BBI Steering Committee is unconstitutional and its
efforts to amend the Constitution are also unconstitutional.
David Ndii & others v Attorney General & others
Petition No E282 of 2020
(Consolidated with Petition Nos 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of
2020, E426 of 2020 and 2 of 2021)
High Court at Nairobi
JM Ngugi, GV Odunga, J Ngaah, EC Mwita & MT Matheka, JJ
May 13, 2021
Reported by Long’et Terer
After the intensely contested presidential election in and the resulting Constitution Amendment Bill and its
2017, there was a charged political climate. The President associated popular initiative. The consolidated petitions
and Mr Raila Odinga, who participated in the elections were Petition Nos E282 of 2020, 397 of 2020, E400 of
as contestants, shared what was known as the handshake 2020, E401 of 2020, E402 of 2020, E416 of 2020, E426
on March 18, 2018. The President later appointed the of 2020 and 2 of 2021.
Building Bridges to Unity Advisory Taskforce (BBI
Taskforce). It comprised of 14 committee members Petition No. E282 of 2020
and two joint secretaries. The key mandate of the BBI The petitioners in Petition No. E282 of 2020 argued that
Taskforce was to come up with recommendations and the judicial doctrines and theory of the basic structure of a
proposals for building lasting unity in the country. In Constitution, the doctrine of constitutional entrenchment
November 2019, the Taskforce came up with an interim clauses, unamendable constitutional provisions, the
report and on January 3, 2020, the President appointed doctrine of unconstitutional constitutional amendments,
the Steering Committee on the Implementation of the theory of unamendability of eternity clauses, essential
Building Bridges to a United Kenya Taskforce Report features, supra-constitutional laws in a constitution were
(the BBI Steering Committee) which comprised of 14 applicable to the Constitution of Kenya 2010. They said
members and two joint secretaries. that certain provisions of the Constitution were incapable
The Steering Committee was required to engage in of amendment either under article 256 of the Constitution
consultations with different segments of the public by Parliament or through popular initiative under article
in order to validate the taskforce Report and also to 257 of Constitution. According to the petitioners, the
propose administrative, policy, statutory or constitutional unamendable provisions of the Constitution of Kenya,
changes that could be necessary for the implementation 2010, included Chapter One on Sovereignty of the
of the recommendations contained in the Taskforce People and Supremacy of the Constitution, Chapter Two
Report, while considering contributions made during on the Republic, Chapter 4 on the Bill of Rights, Chapter
the validation exercise. The report of the BBI Steering Nine on the Executive and Chapter Ten.
Committee became the Constitution of Kenya The contentions of the petitioners relating to the basic
Amendment Bill, 2020, after it was handed over to structure of the Constitution and unamendability were
the President. Signatures were collected in support of challenged by the Attorney General on two grounds. One
the popular initiative to amend the Constitution. The was that the doctrines related to unamendability were
signatures were submitted to the Independent Electoral inapplicable in Kenya. Secondly, the Attorney General
and Boundaries Commission (IEBC), for verification and stated that the issues raised were not justiciable and were
submittal to the County Assemblies and Parliament for speculative and not specific enough.
approval.
The Speaker of the National Assembly filed grounds
There were eight consolidated constitutional petitions of opposition in response to all the eight consolidated
filed in court to challenge the Building Bridges Initiative
6
petitions. He stated that the issues raised were non- reflected those aspirations. However, a report released
justiciable as they were based on speculative future in October 2020 limited the functions of the proposed
contingencies. He added that the amendment bill was Health Service Commission to reviewing standards on
under consideration before Parliament and the court the transfer of health workers, facilitation of resolution
lacked jurisdiction to intervene in an active parliamentary of disputes between employers and health workers and
process. The Speaker explained that the only limitation accreditation of health institutions through a proposed bill
to the people’s power to amend the Constitution was the to amend the Health Act as opposed to a constitutional
procedure set out under the Constitution. He also said amendment. The Union felt that the failure to fully
that the Constitution was a living document that had to incorporate its proposals into the subsequent report
respond to the new needs and changing societal demand. meant that its legitimate expectations had been breached.
The Speaker of the Senate argued that the people of Kenya In response to the Union’s contention, the BBI Steering
were granted sovereignty under the Constitution and Committee stated that the petition invited the court to
they had an inalienable right to determine their form of usurp the role of Parliament and the County Assemblies
governance. The Constitution, according to the Speaker and substitute their views with those of the petition. The
of the Senate, provided for how the Constitution could be BBI Steering Committee said that it collected divergent
amended directly through popular initiative or through views and not all of them could be accommodated.
democratically elected representatives of the people. He Further, according to the BBI Steering Committee, an
added that under article 255 of the Constitution provision entity could not be allowed to force its views on the
was made for the basic structure of the Constitution popular initiative. The Attorney General also opposed
which could only be amended by the people exercising the petition on grounds that all views collected during
their sovereign right directly in a referendum. a public participation exercise need not be implemented
and that compelling the respondents to incorporate the
The BBI secretariat together with Mr Raila Odinga views of the Nurses’ Union would amount to an unlawful
filed a joint response to the consolidated petitions. They interference with their discretion.
said that the petitions were an abuse of court process
and vexatious because they were speculative and they Petition No E400 of 2020
offended the principles of pleading with precision. They
added that the petition invited the court to encroach into In Petition No E400 of 2020, the petitioners contended
the legislative mandate of Parliament in breach of the that the collection of signatures for the constitutional
doctrine of separation of powers. They also stated that amendment bill was hurriedly done. They said that the
some issues raised were res judicata and others were sub public did not get civic education so as to enable them to
judice. Other issues, according to the BBI Secretariat and make informed decisions and to exercise their free will.
Mr Raila Odinga, were founded on a misinterpretation The petitioners further contended that the terms of
of the law and were speculative. They offended the reference of the BBI Taskforce set out in the Gazette Notice
political question doctrine and sections 106 and 107 of Number 5154 dated May 24, 2018 did not contemplate
the Evidence Act as they were mere generalizations. They proposals for the amendment of the Constitution. They
said that the petitions did not demonstrate any violation said that the appointment of the BBI Steering Committee
or contravention of the law to warrant the intervention was an afterthought. The petitioners averred that the
of the court. subsequent process of validation of the initial report,
Petition No E397 of 2020 formulation and publication of the amendment bill was
unconstitutional. Additionally, the petitioners said that
In Petition No E397 of 2020, the Kenya National Union the initiation of the constitutional amendment process
of Nurses stated that it had submitted various proposals to by the President violated the sovereign right of the
the BBI Steering Committee. The proposals included the people of Kenya to exercise power directly by proposing
establishment of an Independent Constitutional Health an amendment to the Constitution as it was disguised
Service Commission, recognition of universal health as a popular initiative when in fact it was not. It was
care as a human right, expansion of free basic education not contended that an amendment to the Constitution
and the removal of the Salaries and Remuneration by popular initiative as envisaged in article 257 of the
Commission. The main aspiration of the Nurses’ Union Constitution had to originate from the electorate devoid
was for health sector personnel to be transferred from of the influence of any representative.
County Governments to an Independent Health Service
Commission to enable sharing of very limited health The petitioners averred that under article 257(10) of
experts. the Constitution, it was necessary to allow the people to
exercise their free will to approve or reject specific proposals
An initial report from the BBI taskforce of October 2019 and a mere “yes” or “no” to the entire amendment bill
7
violated the exercise of free will by the people as they could counties, the time frame within which the constituencies
not distinguish between proposals that they accepted and had to come into existence and the criteria on how the
those that they rejected. They also said that the IEBC constituencies would be distributed. Under the Second
lacked capacity, to receive, verify and approve signatures Schedule to the Constitution of Kenya (Amendment)
of the alleged Kenyan voters who endorsed the impugned Bill, 2020, the allocation of the 70 constituencies was
bill and that Kenyans were not given reasonable time to pre-determined.
process the over one thousand paged document which
was only accessible online. They also said that since IEBC The petitioners said that the role of creating constituencies
did not have specimen signatures of the registered voters and delimiting the boundaries was within the competence
in Kenya to warrant a comparison for verification and of the IEBC and it could not be done in pre-determined
approval of the signatures collected, any attempt to carry manner without public participation.
out verification was unlawful and/or illegal. The Attorney General filed grounds of opposition in
Petition No E401 of 2020 response to the petition. He said that the petition was
not justiciable on account of want of ripeness. The issues
The petitioner was 254Hope, an unincorporated body raised on the new constituencies and their distribution
suing in public interest. It stated that amendments to entailed political questions and the legislative assemblies
the Constitution could only be done in accordance with were best placed to decide on them. He added that the
the Constitution and that the National Executive, any Constitution’s provisions on amendments gave absolute
state organ or Taskforce could not initiate constitutional sovereignty to the people to amend their constitution
amendments through popular initiative. Further, the either through a popular initiative or through directly
petitioner said that the National Executive could not elected representatives. The Attorney General also averred
use public resources to steer constitutional amendments that the issue as to whether there was sufficient public
through popular initiative. The petitioner also said that participation in the constitutional amendment process
some of the proposed constitutional amendments were was premature and could only be considered after a
constitutionally defective. It stated that the collection referendum.
of signatures and submission of the same to the IEBC
by the National Executive for purposes of pursuing Petition No E416 of 2020
constitutional amendments through popular initiative The petitioner was a public-spirited lawyer. He stated
was not authorized. that there was no legislative framework to operationalize
The Attorney General filed grounds of opposition article 257 of the Constitution. That legal framework was
against the petition. He stated that the petitioner was necessary for purposes of providing for the submission
unincorporated and incapable of suing or being sued. of a constitutional amendment bill to the County
The Attorney General averred that the President’s Assemblies and the Speaker of the two Houses of
role included promoting unity in the nation and that Parliament for consideration and how the referendum
the Constitution of Kenya did not preclude any state would be conducted. Further, the petitioners said that it
organ, body, person or public entity from initiating was necessary to stop efforts to process the constitutional
a constitutional amendment. He also stated that the amendment bill, including the conduct of a referendum,
rationality or otherwise of the proposed amendments was until the Covid-19 pandemic was combatted by the state.
subject to approval or disapproval by Kenya’s legislative Moreover, according to the petitioner, the IEBC had to
assemblies and by the people. On the issue of use of conduct a nationwide voter registration exercise before
public resources, the Attorney General stated that there any referendum could be conducted. They also averred
was no proof that principles of public finance had been that under section 8 of the Independent Electoral and
breached and that it would be wrong under the doctrine Boundaries Commission Act, there were requirements as
of separation of powers for the court to intervene when to quorum and the IEBC as constituted lacked quorum
the Constitution had assigned the management of public and it could not verify signatures as it had purported to
finance to specific constitutional bodies. do or conduct a referendum.
Petition No E402 of 2020 The petitioner alleged that there had been violations of
articles 7, 10, 33, 35 and 38 of the Constitution when
The petitioner’s main contention was about the proposed signatures were collected before members of the public
constitutional amendments that would increase the were provided with copies of the Interim and Final BBI
number of constituencies by 70 from 290 constituencies Report and the Constitution of Kenya (Amendment) Bill,
to 360 constituencies. Section 74 of the amendment 2020 in English, Kiswahili, indigenous languages, Kenyan
bill directed the IEBC on the manner of delimitation Sign language, Braille and other communication formats
and distribution of the 70 constituencies in various and technologies accessible to persons with disabilities.
8
According to the petitioner, it was necessary to give the registered voters and whether funds had been allocated for
public reasonably sufficient time to read and understand the signature verification exercise. The IEBC responded
the documents that should have been availed in various and stated that it developed procedures for signature
communication formats. The petitioner also stated that verification, that it had biographic and biometric data
it was not constitutional for public funds to have been of registered voters but not specimen signatures and that
spent in order to promote the constitutional amendment it had funds from treasury for the signatures verification
initiative and that any public funds utilized should be exercise which had been launched at the Bomas of Kenya.
refunded. The petitioner further contended that bills for
constitutional amendments should be prepared and tabled In a press statement published on January 21, 2020, the
before Parliament by the Attorney General and that any IEBC stated that it had published the names of persons
other entity should not exercise that role. Furthermore, who had appended their signature in support of the
the petitioner challenged the constitutionality of sections constitutional amendment bill, on its website. The IEBC
10, 13(a)(i), 33, 37(b), 39, 41 and 44 of the Constitution invited the public to access the information on their
of Kenya (Amendment) Bill, 2020. website and in case of any complaint, it required the
complaint to be made in writing to the IEBC by January
There were various reliefs sought in the petition and they 25, 2021. The signature verification exercise concluded
included a mandatory injunction for the President to with the IEBC saying that the requirements of article
dissolve Parliament under article 267(7) in accordance 257 of the Constitution in relation to the constitutional
with the advice of the Chief Justice to the President amendment bill had been met. The IEBC proceeded to
pursuant to article 261(7) of the Constitution dated submit the BBI bill to the 47 counties for consideration
September 21, 2020. and approval or rejection.
Petition No E426 of 2020 According to the petitioner, there was no regulatory

framework governing the collection of signatures or their
The petitioner’s prayers included findings that he wanted verification and any procedures applied by the IEBC were
the court to make. The petitioner submitted that the in violation of articles 10, 94 and 249 of the Constitution
court should find that the President could be sued, during as the IEBC did not have legislative power. They said that
tenure of office, in civil proceedings for acts or omissions the conduct of the signature verification exercise without
that were not authorized under the Constitution. The a regulatory framework, was a violation of article 81 of
petitioner contended that the President lacked authority the Constitution. Additionally, MUHURI said that the
to initiate constitutional amendments that were to be procedures used were developed without legal authority
undertaken through a popular initiative. He also alleged and failed to comply with sections 5, 6, and 11 of the
that the BBI Steering Committee on the Implementation Statutory Instruments Act. The petitioner added that
of the Building Bridges to a United Kenya Taskforce failure to maintain a database of specimen signatures of
Report established by the President as notified in Gazette registered voters by the IEBC violated articles 257(4)
Notice No. 264 dated January 3, 2020 and published in a and 257(5) of the Constitution as it had rendered
special issue of the Kenya Gazette dated January 10, 2020, IEBC incapable of discharging the mandate of signature
with terms of reference for considering and promoting verification.
constitutional changes, was an unlawful entity under the
laws of Kenya. The Issues for determination were whether the basic
structure doctrine on constitutional amendments was
The petitioner prayed for a declaration that the BBI Steering applicable in Kenya; what were the implications of the basic
Committee lacked locus standi to promote constitutional structure doctrine in Kenya for the amendment powers
changes under article 257 of the Constitution. He also provided under articles 255 to 257 of the Constitution;
sought orders related to the use of public funds during who could initiate constitutional amendments through a
the constitutional amendment process including orders popular initiative as provided for under the Constitution;
for the sums spent to be accounted for. Lastly, he also whether the BBI Steering Committee’s process of
sought orders for the constitutional amendment process initiating amendments to the Constitution conformed
to be terminated. with the applicable legal and constitutional requirements;
Petition No 2 of 2021 whether the President and public officers who directed
or authorized the use of public funds for the BBI
The petitioner was Muslims for Human Rights constitutional amendment process could be ordered to
(MUHURI). On December 18, 2020, they requested refund the monies so used; whether there was an adequate
IEBC to provide information about whether there were legislative framework to guide the process of undertaking
rules to guide and regulate the signature verification constitutional amendments through a popular initiative
process, whether the IEBC held specimen signatures of all and whether, if such a framework was inadequate or
9
lacking, it would render any constitutional amendment interpretation in Kenya. In particular, four principles
processes incurably defective; whether Parliament of constitutional interpretation emerged in Kenya’s
and County Assemblies could propose changes to a jurisprudence, namely;
constitutional amendment bill that was promoted a) The Constitution had to be interpreted holistically.
through a popular initiative; whether it was necessary for That meant that in interpreting a constitutional
specific proposed amendments to the Constitution to be provision, it was necessary to undertake a contextual
submitted as separate and distinct referendum questions; analysis wherein that provision would be read
whether it was lawful for the BBI Steering Committee alongside other provisions, so as to maintain a
to leave out a proposal on the establishment of the rational explication of what the Constitution had to
Constitutional Health Service Commission, which was be taken to mean in the light of its history, of the
proposed during a public participation exercise, from the issues in dispute, and of the prevailing circumstances.
constitutional amendments bill which was the outcome b) Formalistic approaches to constitutional
of the BBI Steering Committee’s work; whether it was interpretation were not favoured. The Constitution
lawful for a constitutional amendment bill to set the could not be interpreted in the same way that a
number of constituencies and to effectively increase their statute would be interpreted.
number by 70 constituencies; whether it was lawful for c) The Constitution had provided its own theory of
a constitutional amendment bill to directly allocate and interpretation to protect and preserve its values,
apportion the constituencies that it had created without objects and purposes.
requiring the conduct of a delimitation exercise using d) Non-legal considerations were important in giving
the criteria and procedure set out in article 89 of the the Constitution its true meaning and value. The
Constitution; whether a referendum to effect proposed historical, economic, social, cultural and political
amendments to the Constitution could be undertaken context was fundamentally critical in discerning the
without the conduct of a nationwide voter registration various provisions of the Constitution.
process by the Independent Electoral and Boundaries
Commission; whether the Independent Electoral and The court noted that the process that culminated in
Boundaries Commission was properly constituted in the promulgation of the Constitution of Kenya, 2010,
terms of quorum for purposes of verifying signatures was participatory. The public participated directly and
for purposes of a popular initiative for constitutional meaningfully in the process and that was a different
amendment and submitting the proposed constitutional process from having experts write a constitution.
amendment bill to county assemblies and also conducting The High Court found that the 1963 independence
a referendum; whether a legal regulatory framework for Constitution was negotiated to mark the end of
the verification of signatures by the Independent Electoral colonial rule and to establish a government elected by
and Boundaries Commission and other processes required Kenyans and to ensure the devolution of powers among
under article 257(4) and 257(5) of the Constitution other checks and balances of excessive Executive and
was necessary and in existence; whether the conduct of Presidential power. However, by the end of 1980 Kenya
a referendum would provide an environment that was had effectively become an authoritarian state. By 1991
conducive to the spread of COVID-19 and whether it when Kenya officially became a multi-party state after
was a violation of the right to health under article 43 of close to a decade of being a de jure one-party state, the
the Constitution; whether the court should issue an order 1963 Constitution had been amended many times and
for the President to dissolve Parliament pursuant to the stripped of most of its initial democratic and social
Chief Justice’s Advice issued pursuant to Article 261(7) of justice protections. There had been a culture where the
the Constitution. Constitution had been amended and changed profoundly
The High Court held that the Constitution of Kenya, and rapidly to the point that it lost its value content and
2010, had a transformative character. Transformative significance.
constitutionalism was an enterprise of inducing large- The court noted that Kenyans intended to protect the
scale social change through nonviolent political processes basic structure of the Constitution they bequeathed to
grounded in law. In its transformative character, the themselves in 2010 from destruction through gradual
Constitution reconfigured the interplays between the amendments. That doctrinal illumination was discernible
State’s majoritarian and non-majoritarian institutions, by correctly interpreting both the history of constitution-
to the intent that the desirable goals of governance, making and the structure of the Constitution Kenyans
consistent with dominant perceptions of legitimacy, be made for themselves. The process leading to the
achieved. promulgation of the Constitution of Kenya, 2010, showed
The court also noted that transformative nature of that Kenyans wanted a Constitution in which an ordinary
the Constitution informed methods of constitutional citizen took center-stage in debating and designing.
10
Kenyans were clear about the need for informed public power was exercised by Parliament, which had
participation in the process. The 2005 Wako Draft was limited powers to amend the Constitution by
rejected because it failed the public participation test and following the procedures set in articles 255-257 of
verged on political elite consensus. the Constitution.
The court found that Kenyans intended that the The High Court found that the essential features of the
constitutional order that they so painstakingly made Constitution that formed the basic structure could only
would only be fundamentally altered or re-made through be altered or modified by the people using their primary
an informed and participatory process. They also constituent power. Primary constituent power was only
intended that the essence of the constitutional order they exercisable after four sequential processes had been
bequeathed themselves in 2010 would only be changed followed: -
in the exercise of primary constituent power (civic a) Civic education to equip people with sufficient
education, public participation, constituent assembly information to meaningfully participate in the
plus referendum) and not through secondary constituent constitution-making or constitution-altering
power (public participation plus referendum only) or process;
constituted power (Parliament only). b) Public participation and collation of views in which
the people – after appropriate civic education –
There was no clause in the Constitution that explicitly generated ideas on the type of governance charter
made any article in the Constitution un-amendable as the they wanted and gave their views about the
court noted. However, the scheme of the Constitution, constitutional issues;
coupled with its history, structure and nature created an c) Constituent assembly debate, consultations and
ineluctable and unmistakable conclusion that the power public discourse to channel and shape the issues
to amend the Constitution was substantively limited. through representatives elected specifically for
The High Court noted that the text, structure, history purposes of constitution-making or constitution-
and context of the Constitution of Kenya, 2010, all read alteration; and
and interpreted using the canon of interpretive principles d) Referendum to endorse or ratify the Draft
decreed by the Constitution yielded the conclusion that Constitution or changes to the basic structure of the
the basic structure doctrine was applicable in Kenya. The Constitution.
basic structure doctrine protected certain fundamental The court held that the basic structure of the Constitution
aspects of the Kenyan Constitution from amendment consisted of the foundational structure of the
through the use of either secondary constituent power or Constitution as provided in the Preamble; the eighteen
constituted power. chapters; and the six schedules of the Constitution. That
structure outlines the system of government Kenyans
The court noted that sovereignty of the people in
chose – including the design of the Judiciary, Parliament,
constitution-making was exercised at three levels: -
the Executive, the Independent Commissions and
a) The primary constituent power was the Offices and the devolved system of Government. It also
extraordinary power to form (or radically change) a included the specific substantive areas Kenyans thought
constitution; the immediate expression of a nation were important enough to pronounce themselves
and thus its representatives. It was independent of through constitutional entrenchment including land and
any constitutional forms and restriction and was environment, leadership and integrity, public finance and
not bound by previous constitutional rules and national security.
procedures.
b) The secondary constituent power was an abbreviated The court also found that it was not every clause in each
primordial constituent power exercisable by the of the eighteen chapters and six schedules which was
whole polity in an abbreviated process to alter inoculated from non-substantive changes by the basic
the constituting charter (Constitution) in non- structure doctrine. Differently put, the basic structure
fundamental ways, that was, without altering the doctrine protected the core edifice, foundational
basic structure. In Kenya, the secondary constituent structure and values of the Constitution but left open
power to amend the Constitution was exercisable certain provisions of the Constitution as amenable for
through a referendum subsequent to public amendment as long as they did not fundamentally tilt the
participation and parliamentary process. basic structure.
c) The constituted power was created by the
The High Court held that there were certain provisions
Constitution and was an ordinary, limited power,
in the Constitution which were inoculated from any
a delegated power derived from the Constitution,
amendment at all because they were deemed to express
and hence limited by it. In Kenya, the constituted
categorical core values. Those provisions were therefore,
11
unamendable: they could not be changed through the to amend the Constitution using the popular initiative
exercise of secondary constituent power or constituted route was reserved for the private citizen. Neither the
power. Their precise formulations and expressions in the President nor any State Organ was permitted under the
Constitution could only be affected through the exercise Constitution to initiate constitutional amendments using
of primary constituent power. Those provisions could also the popular initiative option.
be termed as eternity clauses.
The court noted that allowing the President to initiate
The court found that an exhaustive list of eternity clauses constitutional amendments through the popular initiative
was inadvisable in a vacuum. Whether a particular clause would have the effect of granting him both the roles of
consisted of an eternity clause or not would be a fact- promoter and referee. That was because article 257(5)
intensive determination to be made after due analysis of the Constitution provided that if a bill to amend the
of the Constitution, its foundational structure, its text, Constitution proposed an amendment of matter specified
its internal coherence, the history of the clause and the in article 255(1) of the Constitution, before assenting to
constitutional history and other non-legal considerations the bill, the President had to request the IEBC to conduct,
permitted by Kenya’s canons of interpretation. within 90 days, a national referendum for approval of the
bill.
The court also noted that the power to amend the
Constitution was prescribed in articles 255 to 257 The court held that article 257(5) of the Constitution,
of the Constitution. There were two ways in which a arguably, gave power to the President to determine whether
constitutional amendment could be initiated, either by or not a referendum was to be held. In circumstances
parliamentary initiative or by popular initiative. Since where the President, whether in his official or personal
under article 2(2) of the Constitution, no person could capacity was the promoter of the amendment bill, his role
claim or exercise State authority except as authorised in determining whether or not the bill was to be subjected
under the Constitution, it necessarily follows that, subject to a referendum could amount to a muddled-up conflict
to the role of the primary constituent assembly, there was of interest. The President could not be both a player and
no other constitutionally permissible avenue available to the umpire in the same match.
any person to initiate a constitutional amendment except
the prescribed ones. The court held that it had been argued that the President
was acting in his personal capacity and not as the Chief
The court found that the constitutional amendment Executive of the Republic of Kenya. That argument was,
bill was an initiative of the President. It could not be however, betrayed by the very fact that the BBI Steering
otherwise since the BBI Taskforce was set up courtesy of Committee was established via a Gazette Notice, an
his initiative and the subsequent BBI Steering Committee official publication of the Government of the Republic
was tasked with implementing the BBI Taskforce Report of Kenya and its report was addressed to the President in
and the membership of the two entities remained the his official capacity.
same.
The court noted that article 257 of the Constitution
The High Court held that under the Constitution, the was reserved for situations where the promoters of a
President was not a Member of Parliament and therefore constitutional amendment bill did not have recourse to
he could not directly, purport to initiate a constitutional the route contemplated under article 256. If the President
amendment pursuant to article 256 of the Constitution. intended to initiate a constitutional amendment, he could
That was because under article 94(1) of the Constitution, do so through Parliament.
the legislative authority of the Republic at the national
level, was vested in and exercised by Parliament. It follows The High Court noted that the popular initiative to
that the President had no power under the Constitution, amend the Constitution, being a process of participatory
as President, to initiate changes to the Constitution democracy that empowered the ordinary citizenry to
under article 256 of the Constitution since Parliament propose constitutional amendments independent of the
was the only State organ granted authority by or under lawmaking power of the governing body, could not be
the Constitution to consider and effect constitutional undertaken by the President or State Organs under any
changes. The President, if he so desired, could however, guise.
through the Office of the Attorney General, use the Previous constitution-making initiatives in 2005 and
parliamentary initiative to propose amendments to the 2010 were sponsored by the State as the court noted.
Constitution. That would not justify attempts to have the Constitution
The High Court noted that both a textual analysis of amended in a similar way because those previous initiatives
Kenya’s Constitution and a historical exegesis of the were undertaken under the repealed Constitution which
clause on popular initiative made it clear that the power did not make provision for its amendment in a similar
12
fashion as the Constitution of Kenya, 2010. whether the BBI Steering Committee and any actions
undertaken by it were constitutional. The judgment in
Sections 6 and 7 of the Civil Procedure Act governed the Third Way Alliance Case was incapable of answering
situations where a litigant raised issues that were either such questions because the court in that instance was not
sub judice or res judicata as the High Court held. The asked to answer those questions.
rationale for staying matters on grounds of them being
sub judice was that it was vexatious and oppressive for a The court was not estopped from discussing the
claimant to sue concurrently in courts. Where two courts constitutionality of the BBI Steering Committee and its
were faced with substantially the same issue, that issue mandate. That issue was not res judicata. Article 143(1)
should only be determined in one of the courts and the of the Constitution was to the effect that criminal
other court should stay the claim. proceedings were incapable of being instituted against the
President or a person performing the functions of that
The High Court noted that for a suit to be stayed on office, during their tenure of office. On the other hand,
grounds of sub judice, the matter in issue in the suit had article 143(2) of the Constitution provided that civil
to be directly and substantially in issue in the previously proceedings could not be instituted in any court against
instituted suit and the parties in the two suits had to the President or the person performing the functions
be the same parties or parties claiming under them or of that office during their tenure of office in respect of
litigating under the same title. anything done or not done in exercise of their powers
The court noted that the matters in issue in Petition under the Constitution. The correct position was that the
No 12 of 2020 (Omtatah Petition) were covered under President could be sued in any civil proceedings and the
the consolidated petitions. However, the consolidated only protection was against actions that were in respect
petitions covered a wider range of issues than the of anything done or not done in exercise of his powers
Omtatah Petition. Therefore, only a segment of issues in under the Constitution. In appropriate circumstances, for
the consolidated petition were directly and substantially example where the President took actions in violation of
in issue in the consolidated petitions. Additionally, the the Constitution and also destructive to the nation, any
parties in the Omtatah Petition were different from the person could invoke the jurisdiction of the court and sue
parties in the consolidated petitions. the President whether in his person or official capacity.
The court noted that the consolidated petitions were wider The BBI Taskforce which eventually morphed into the
in scope than the Omtatah Petition and could not be said BBI Steering Committee was the President’s and not the
to be an abuse of the process. There was no evidence that peoples’ initiative. The bill to amend the Constitution was
steps had been taken to prosecute the Omtatah Petition. as result of the proposals of the BBI Steering Committee.
The nature of the dispute that the consolidated petitions It was, therefore, quite clear that what has been presented
raised demanded an expedient determination and it was as a popular initiative to amend the Constitution was
in public interest that they be resolved at the earliest in reality the presidency’s initiative which was certainly
opportunity. contrary to article 257 of the Constitution. To the
extent that the BBI Steering Committee was created to
The court found that the provisions of section 7 of the perpetuate what was clearly an unconstitutional purpose,
Civil Procedure Act on res judicata were based on the it was an unlawful, and at any rate, an unconstitutional
fundamental doctrine that there had to be an end to outfit.
litigation. The doctrine of res judicata could be pleaded by
way of estoppel so that where a judgment had been given, The court noted that article 132(4)(a) of the Constitution
and it was a matter of record, an ‘estoppel by record’ arose. provided that the President could only establish an office
in the public service on the recommendation of the Public
The High Court found that the nature of an estoppel Service Commission. There was no evidence that the
pleaded by the Attorney General was an issue estoppel to President complied with that provision when he created
the effect that specific questions concerning the legality the BBI Steering Committee.
or constitutionality and the mandate of BBI Steering
Committee had been resolved by the High Court in The court noted that reading of the Constitution clearly
Third Way Alliance Kenya & another versus Head of Public showed that only Parliament could enact legislation.
Service & 2 others, Petition No. 451 of 2018, High Court However, that did not mean that only Parliament
at Nairobi (Third Way Alliance Case). The consolidated could draft bills. Therefore, anybody including the BBI
petitions asked questions that were not asked in the Third Steering Committee, if lawfully established, could draft
Way Alliance Case. For example, one question was on bills. Under article 257(2) of the Constitution it was
whether a popular initiative to amend the Constitution clear that the promoter of a popular initiative to amend
could be started by the President and the other was the Constitution was required to come up with a draft
amendment bill. The bill would then be submitted to the
13
IEBC which would then send it to the Speakers of County was required for the exercise or protection of a right or
Assemblies and Parliament for approval or rejection. fundamental freedom. Access to information was a critical
constitutional right for open and democratic conduct of
The court noted that public participation was one of the governmental affairs. The State or State organ responsible
principles of good governance; a constitutional right that was obliged to disclose information to citizens whenever
had to be complied with at every stage of a constitutional sought.
amendment process. The right to make political decisions
went beyond voting or deciding on whether to append a The High Court held that petitioner in Petition No. E416
signature on a constitutional amendment bill. The right of 2020 had a right to seek information from relevant
to make political decisions included the availability of authorities while complying with the procedure set out
information to citizens in order to enable them to make in the Access to Information Act. The petitioner had not
informed decisions. demonstrated that he had sought that information. He
only prayed for orders from the court for publication of
The High Court found that Kenyan voters were entitled, details of the budget and money allocated and used in
at a minimum, to copies of the Constitution of Kenya promoting the BBI activities.
Amendment Bill to read and understand what the
promoters were proposing to amend. At the very least, the In order to carry out the referendum process as
copies ought to have been in the constitutionally required contemplated under the Constitution; it was necessary that
languages namely, English, Kiswahili and Braille. The the legislation be enacted. The fact that the Constitution
copies also ought to have been made available in other did not provide for the enactment of such legislation
communication formats and technologies accessible to did not mean that the legislation was unnecessary. That
persons with disabilities including Kenya Sign Language legislation would deal with the manner in which County
as required under article 7(3)(b) of the Constitution. Assemblies would process a constitutional amendment
bill, including the number of readings for the bill, the
The only copy of the constitutional amendment bill that manner of conducting public participation, whether they
was availed was in English and it was not printed and could amend the bill before approving it and whether
distributed to the people, it was only available online. such a bill would be passed by a simple majority. It would
Since meaningful public participation and sensitization also contain provisions on the correct procedure to be
of people prior to collection of signatures in support of used by Parliament in approving the bill.
the constitutional amendment bill was not done, the
exercise of collecting signatures in support of the bill was The High Court found that legislation on the processing
constitutionally flawed. of a constitutional amendment bill and the referendum
necessary for its passage, would deal with questions
Before transmitting the bill to the County Assemblies for such as how an amendment bill that had proposals that
voting, the IEBC was obligated to ensure that the BBI included those that required a referendum under the
Steering Committee had complied with constitutional Constitution and those that did not require a referendum
requirements on public participation. Under article would be handled. Such legislation, if enacted would
226(5) of the Constitution, if the holder of public office, also answer questions as to whether specific aspects of the
including a political office, directed or approved the use bill required separate approval or rejection as opposed to
of public funds contrary to law or instructions, the person having the entire list of proposals in the amendment bill
was liable for any loss arising from that use and had to approved or rejected.
make good the loss, whether the person remained the
holder of the office or not. No evidence was tendered The High Court found that part V of the Elections
to show that the BBI Steering Committee spent public Act dealt with referendum. It did not adequately cover
funds on its operations. the process contemplated under the Constitution for
a referendum. For example, it did not address public
The court held that the President did through the BBI participation requirements and it did not provide for
Steering Committee was a clear attempt to stretch his how a constitutional amendment bill would be handled
authority under article 131(2)(c) of the Constitution to by county assemblies where the Constitution mandated
include power to initiate constitutional amendments. consideration of such a bill by county assemblies. The
The President’s role in promoting and enhancing lacuna in law was incapable of being addressed by Part V
national unity did not include initiating constitutional of the Elections Act.
amendments through a popular initiative.
The High Court held that absence of legislation to
The High Court held that article 35 guaranteed every operationalize a constitutional provision would not
citizen the right of access to information held by the render the provision inoperative or unenforceable. In
State and information held by another person, which the absence of enabling legislation for the conduct of a
14
referendum, a referendum could be undertaken as long as would have been justified in contending that it ought to
constitutional expectations, values, principles and objects have been afforded an opportunity of being heard. The
were met. Union’s claims that there was unreasonableness and unfair
administrative action had to be disallowed.
The court held that the terms “consideration” and
“approve” as used in article 257(5) and 257(7) of The court noted that constituency in Kenya was a unit of
the Constitution did not give room to the legislative representation that was at the heart of Kenya’s electoral
organs, whether at the national level or county level, to process. It went to the root of the enjoyment of the
alter and or “improve” the contents of a constitution democratic right to representation. It was seen as a unit
of Kenya amendment bill. Such alteration could mean for taking development to the people.
the constitutional amendment bill in the context of a
popular initiative would be hijacked and even turned The court held that constitutionality of the constitutional
into what it could have been if it had been promoted as a amendment bill in terms of the proposal to create 70
parliamentary initiative. new constituencies was challenged. The courts would
not exercise judicial restraint or apply the doctrine of
Depending on the proposed constitutional amendments, constitutional avoidance but would instead proceed
a multi-option referendum could be necessary as the to consider the merits of that question. Threatened
court found. What the Constitution contemplated under violations of the Constitution could found the basis of a
articles 255 to 257, was that each proposed constitutional constitutional petition. A litigant did not have to wait for
amendment had to be considered on its own merit an actual violation to occur before approaching the court.
and not within the rubric of other amendments. Some
proposed amendments could be agreeable to voters while The High Court held that the doctrine of separation of
the same voters could find that they did not agree with powers did not bar the court from exercising jurisdiction
other proposed amendments. under article 165(3)(d)(ii) of the Constitution. The court
could determine whether the state, in pursuing certain
The court noted that faithful reading of article 255(1) of policy decisions or undertaking certain actions, had failed
the Constitution showed that each proposed constitutional to fulfil constitutional dictates.
amendment clause ought to be presented as a separate
question. That would avoid confusion and allow voters The court noted that the argument by the Attorney
to decide on each presented amendment question on its General that the petitioners had alternative avenues of
own merit. Section 49 of the Elections Act supported redress, such as persuading Parliament and the Kenyan
the preposition that omnibus amendments ought to be people to reject the constitutional amendment bill,
presented as separate referendum questions. What should was a misapprehension of the doctrine of exhaustion.
be subjected to a referendum was those questions and not A party was only debarred from approaching the court
the entire constitutional amendment bill. where a statute or policy had created a mechanism for
determining a dispute related to the subject matter in
The court held that the fact that an entity was required to question. The political route of persuading Parliament,
consider public views did not necessarily mean that those County Assemblies and the Kenyan people, was not a
views had to be incorporated into the final decision. While dispute settlement mechanism within the meaning of the
the Kenya National Union of Nurses made proposals for doctrine of exhaustion.
the setting up of the Health Service Commission as a
constitutional commission, it was not the case that the The High Court found that the history and text of the
BBI Steering Committee made representations that their Constitution showed that Kenyans were not particular
proposals would be incorporated in their report. about the number of constituencies. They were more
concerned with the process, procedure, timelines, criteria
A legitimate expectation arose where a clear and and review process of the delimitation of electoral units.
unambiguous promise had been given by a public Article 89(1) of the Constitution – which provided for
authority as the High Court noted. That authority had the exact number of constituencies – was not an eternity
to have had the competence to make the promise and it clause and it was capable of amendment while following
would have to be lawful for it to make a promise. There the procedure set under articles 255 to 257 of the
could be no legitimate expectation against provisions of Constitution.
the law or the Constitution.
The court held that the provisions of the Constitution
The court noted that there been a representation made of Kenya Amendment Bill which directly allocated and
by the BBI Steering Committee that the views of the apportioned the 70 additionally without a delimitation
Kenya National Union of Nurses would be incorporated exercise as set out in article 89 of the Constitution, were
in the Constitution of Kenya Amendment Bill, the Union unlawful and unconstitutional for the following reasons: -
15
a) they impermissibly directed the IEBC on the The High Court held that verification of signatures and
execution of its constitutional functions; determining whether a constitutional amendment bill
b) they purported to set a criteria for the delimitation met constitutional requirements set out under article
and distribution of constituencies which was at 257(4) of the Constitution was a policy issue that required
variance with that created under article 89(5) of the determination by the IEBC as a commission. Such a
Constitution; serious constitutional question could not be determined
c) they ignored public participation as a key by a committee of the IEBC. The IEBC needed quorum
consideration in delimiting and distributing in order to make such a determination.
constituencies;
d) they imposed timelines for the delimitation The High Court found that IEBC did not have the
exercise which were at variance with those in the quorum of five members when it conducted verification
Constitution; of signatures and determined that the BBI Secretariat had
e) they took away the rights of those aggrieved by a met the constitutional threshold under article 257(4) of
delimitation exercise to seek judical review; the Constitution to move the constitutional amendment
f ) by having an additional 70 constituencies provided process to the next stage. Therefore, all the decisions made
for under the Second Schedule while using a pre- by the IEBC in relation to the proposed constitutional
set criteria, which did not accord with standards set amendments were invalid, null and void for lack of
in articles 89(4), 89(5), 89(6), 89(7), 89(10) and quorum.
89(12) of the Constitution, they had the effect of The court noted that the mandate of the IEBC under
amending or suspending the intended impacts of article 257(4) of the Constitution was a two-step process.
article 89 of the Constitution, which was part of First, it was to ascertain the numbers of registered voters in
the basic structure of the Constitution which was support of a popular initiative to amend the Constitution,
unamendable. and secondly, it was to verify the authenticity of the
The court noted that section 5(1) of the Independent signatures of registered voters claimed to be in support of
Electoral and Boundaries Commission Act provided the popular initiative.
that the IEBC had to consist of the chairperson and six
The court held that the existing regulatory framework was
other commissioners. Further, paragraph 5 of the Second
not sufficient for the verification of signatures by the IEBC
Schedule to the Independent Electoral and Boundaries
under article 257(4) of the Constitution. To fill the gap,
Commission Act provided for a quorum of at least five
the IEBC developed Administrative Procedures approved
members for the conduct of business at a meeting of the
on April 15, 2019. The Administrative Procedures were
IEBC. The existing composition of the IEBC was the
within the definition of statutory instruments provided
chairperson and two commissioners.
under section 2 of the Statutory Instruments Act but
The High Court held that the issue of quorum in the they were not gazetted as required by section 22 of the
IEBC was decided in the case of Isaiah Biwott Kangwony v Statutory Instruments Act. Therefore, the Administrative
Independent Electoral & Boundaries Commission & another Procedures were invalid for lack of public participation
[2018] eKLR (Isaiah Biwott Kangwony case). The court as well as failure to comply with the provisions of the
in that case held that lack of quorum limited the IEBC Statutory Instruments Act. They were also invalid for two
operations when dealing with policy issues but that the other reasons: -
IEBC could conduct by-elections as that did not require a) the Administrative Procedures were developed
quorum to make decisions. and revised without the IEBC having the quorum
necessary to conduct its business.
The High Court noted that the issue before the court
b) the Administrative Procedures did not have
was on whether the IEBC was properly constituted for
provisions or procedures for the authentication
purposes of verifying signatures and did not have quorum
of signatures which was a necessary step in the
to conduct a referendum. It was different from the issues
verification process required under article 257(4) of
in the Isaiah Biwott Kangwony case.
the Constitution.
The Independent Electoral and Boundaries Commission The court noted that in carrying out the verification
Act was clear in providing that a quorum of five process, the IEBC did not comply with the Administrative
commissioners was required in order for the IEBC Procedures. The IEBC published a list of persons who had
to conduct business. Therefore, the court respectfully appended their signature in support of the constitutional
departed from the holding in the Isaiah Biwott Kangwony amendment bill online and gave the public five days to
case as the statute did not distinguish between the need raise any issues they had with the list. The period allowed
for quorum in policy decisions as compared to other for that process would be two weeks if the IEBC had
business. complied with the Administrative Procedures.
16
The court noted that holding a referendum without voter Constituent Assembly debate and ultimately, a
registration, updating the voters register, and carrying referendum.
out voter education, would particularly disenfranchise ii. A declaration that civil court proceedings could be
citizens who had attained voting age but had not been instituted against the President or a person performing
given an opportunity to register as voters, thus violating the functions of the office of President during their
their constitutional right to vote and make political tenure of office in respect of anything done or not done
choices. Holding a referendum without first conducting contrary to the Constitution.
voter registration would violate the very essence of the iii. A declaration that the President did not have authority
right of a class of citizens who had not been given the under the Constitution to initiate changes to the
opportunity to register and vote in deciding their destiny. Constitution, and that a constitutional amendment
could only be initiated by Parliament through
The High Court found that article 43(1)(a) guaranteed a parliamentary initiative under article 256 or
every person the right to the highest attainable standard through a popular initiative under article 257 of the
of health, which included the right to health care services Constitution.
and reproductive health. The right to health was different iv. A declaration that the Steering Committee on the
from the right to be healthy. The right to health meant the Implementation of the Building Bridges to a United
right to enjoy a variety of goods, services and conditions Kenya Taskforce Report established by the President
that was necessary to one’s wellbeing. It was usually based vide Kenya Gazette Notice No. 264 of January 3, 2020
on government programmes and goals that were realized and published in a special issue of the Kenya Gazette
on a long-term basis, usually dependent on availability of of January 10, 2020 was an unconstitutional and
resources. unlawful entity.
The High Court held that the petitioner in Petition No v. A declaration that being an unconstitutional and
E416 did not provide evidence to support his contention unlawful entity, the Steering Committee on the
that the conduct of a referendum would provide an Implementation of the Building Bridges to a United
environment for the spread of Coronavirus. Kenya Taskforce Report, had no legal capacity to
initiate any action towards promoting constitutional
The court noted that the issue as to whether Parliament changes under article 257 of the Constitution.
could not consider the constitutional amendment vi. A declaration that the entire BBI Process culminating
because it should be dissolved by the President was raised with the launch of the Constitution of Kenya
in petition E416 of 2020. The basis for the dissolution Amendment Bill, 2020 was done unconstitutionally
of Parliament was the advice rendered by the Chief and in usurpation of the people’s exercise of sovereign
Justice on September 21, 2020, under article 261(7) of power.
the Constitution. That issue was however pending before vii. A declaration that Mr. Uhuru Muigai Kenyatta
another bench of the High Court. It was being canvassed had contravened Chapter 6 of the Constitution, and
in the case of Milimani High Court Petition No. 302 of specifically article 73(1)(a)(i), by initiating and
2020 Third way Alliance v Speaker of the National Assembly promoting a constitutional change process contrary to
& another (consolidated with JR No. 1108 of 2020 and the provisions of the Constitution on amendment of the
Petition Nos. E291 of 2020 and 300 of 2020.) The Constitution.
petitioner could apply to join that matter. viii. A declaration that the entire unconstitutional
constitutional change process promoted by the Steering
The High Court thus held the petition as partly allowed.
Committee on the Implementation of the Building
Orders: - Bridges to a United Kenya Taskforce Report was
unconstitutional, null and void.
i. A declaration that:
ix. A declaration that the Constitution of Kenya
a) the basic structure doctrine was applicable in
Amendment Bill, 2020 could not be subjected to a
Kenya.
referendum before the Independent Electoral and
b) the basic structure doctrine limited the amendment
Boundaries Commission carried out nationwide voter
power set out in articles 255 – 257 of the
registration exercise.
Constitution. In particular, the basic structure
x. A declaration that the Independent Electoral and
doctrine limited the power to amend the basic
Boundaries Commission did not have quorum stipulated
structure of the Constitution and eternity clauses.
by section 8 of the IEBC Act as read with paragraph 5 of
c) That the basic structure of the Constitution and
the Second Schedule to the Act for purposes of carrying
eternity clauses could only be amended through the
out its business relating to the conduct of the proposed
primary constituent power which had to include
referendum, including the verification of signatures in
four sequential processes namely: civic education,
support of the Constitution of Kenya Amendment Bill
public participation and collation of views,
17
under article 257(4) of the Constitution submitted by xvii. A declaration that Administrative Procedures for the
the Building Bridges Secretariat. Verification of Signatures in Support of Constitutional
xi. A declaration that at the time of the launch of the Amendment Referendum made by the Independent
Constitutional of Kenya Amendment Bill, 2020 and Electoral and Boundaries Commission were illegal,
the collection of endorsement signatures there was no null and void because they were made without quorum,
legislation governing the collection, presentation and in the absence of legal authority and in violation of
verification of signatures nor a legal framework to article 94 of the Constitution and sections 5, 6 and 11
govern the conduct of referenda. of the Statutory Instruments Act, 2013.
xii. A declaration that the absence of a legislation or a legal xviii. A declaration that article 257(10) of the Constitution
framework to govern the collection, presentation and required that all the specific proposed amendments to
verification of signatures and the conduct of referenda the Constitution be submitted as separate and distinct
in the circumstances of the case rendered the attempt referendum questions to the people.
to amend the Constitution of Kenya through the xix. A permanent injunction to restraining the Independent
Constitution of Kenya Amendment Bill, 2020 flawed. Electoral and Boundaries Commission from
xiii. A declaration that County Assemblies and Parliament undertaking any processes required under article
could not, as part of their constitutional mandate to 257(4) and (5) in respect of the Constitution of Kenya
consider a Constitution of Kenya Amendment Bill (Amendment) Bill 2020.
initiated through a popular initiative under article xx. The prayer for an order for Mr. Uhuru Muigai Kenyatta
257 of the Constitution, change the contents of such to make good public funds used in the unconstitutional
a Bill. constitutional change process promoted by the Steering
xiv. A declaration that the Second Schedule to the Committee on the Implementation of the Building
Constitution of Kenya (Amendment) Bill, 2020 in so Bridges to a United Kenya Taskforce Report established
far as it purported to predetermine the allocation of by Mr. Uhuru Muigai Kenyatta was declined.
seventy constituencies was unconstitutional. xxi. The prayer for the orders for the Honourable Attorney
xv. A declaration that the Second schedule to the General to ensure that other public officers who had
Constitution of Kenya (Amendment) Bill, 2020 in so directed or authorised the use of public funds in the
far as it purported to direct the Independent Electoral unconstitutional constitutional change process promoted
and Boundaries Commission on its function of by the Steering Committee on the Implementation
constituency delimitation was unconstitutional. of the Building Bridges to a United Kenya Taskforce
xvi. A declaration that the Second Schedule to the Report to make good the said funds was declined.
Constitution of Kenya (Amendment) Bill, 2020 in so xxii. The rest of the reliefs in the Consolidated Petitions not
far as it purported to have determined by delimitation specifically granted were deemed to have been declined.
the number of constituencies and apportionment xxiii. Parties had to bear their own costs.
within the counties was unconstitutional for want of
public participation.
18
Supreme Court
Recommendations made by the Commission on Administrative Justice to public
bodies are not binding.
Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others [2021] eKLR
Petition 42 of 2019
Supreme Court of Kenya
PM Mwilu, Ag CJ & Ag P, MK Ibrahim, SC Wanjala, NS Njoki & I Lenaola, SCJJ
March 24, 2021
Reported by Beryl Ikamari
Constitutional Law - constitutional commissions - Com- on Administration of Justice Act (CAJA). Generally, the
mission on Administrative Justice (CAJ) - mandate and High Court stated that since CAJ lacked coercive power
powers of CAJ - whether the recommendations made to to compel the implementation of its recommendations,
public bodies by CAJ were binding - Constitution of Kenya the court could also not compel a government agency to
2010, article 254; Commission on Administrative Justice implement the recommendations. An exception to those
Act, No 23 of 2011, section 43(3). rules which would allow the court to compel the imple-
Judicial Review – unfair administrative action - remedies mentation of such recommendations was where there was
- damages - whether the Court of Appeal could award dam- gross abuse of discretion, manifest injustice or palpable
ages in a judicial review appeal whose subject matter was a excess of authority equivalent to denial of a settled right
failure to implement the recommendations of the Commis- which the petitioner was entitled, and there was no other
sion on Administrative Justice. plain, speedy and accurate remedy. An appeal was lodged
against the High Court’s decision.
Brief facts
The Court of Appeal allowed the appeal and granted
The 3rd respondent was employed under a three-year emp-
the orders of mandamus as sought and also monetary
ployment contract by the Kenya Vision 2030 Delivery
compensation for violation of fair administrative action
Board (the Board) in the position of Director (Enablers
rights. The Court of Appeal stated that CAJ’s options in
and Macro). The contract was renewable six months be-
situations where its recommendations were not imple-
fore its expiry. The 3rd respondent’s employment contract
mented were not limited to reporting to the National As-
was not renewed on grounds that his performance was be-
sembly. It explained that article 254 of the Constitution
low par. The 3rd respondent appealed to the Minister for
did not suggest that recommendations had no force of
Planning and National Development and Vision 2030
law or were incapable of enforcement by a court of law.
(the Minister). The Minister renewed his contract for a
year but the Board declined to allow him back to work.
Issues
The 3rd respondent then sought the assistance of the i. Whether the recommendations of the Commission
Commission on Administrative Justice (CAJ). The con- on Administrative Justice were binding on public
clusions of CAJ were that the Board violated article 47 bodies.
and 59 of the Constitution as well as sections 2 and 8(a), ii. Whether the Court of Appeal had jurisdiction to
8(b) and 8(d) of the Commission of Administrative Jus- award damages in a judicial review appeal, where the
tice Act on fair administrative action. CAJ recommended said damages were a remedy sought for a failure to
the Board to pay the respondent the equivalent of twelve implement the recommendations of the Commis-
months salary and allowances in compensation for the sion on Administrative Justice.
one year period of the reviewed contract, to allow the 3rd
respondent to collect his personal effects from his former Held
office and offer him an unconditional apology for how
1. Section 5 of CAJA implied that the powers con-
they had treated him. The Board declined to implement
ferred upon CAJ were in addition to the power of
the recommendations and CAJ filed judicial review pro-
commissions in article 253 of the Constitution. Like
ceedings at the High Court.
any other constitutional commission, CAJ was re-
The High Court’s findings were that it could not compel quired as soon as practicable, after the end of each
the implementation of CAJ’s recommendations and that financial year, to submit a report to the President
the only thing that CAJ could do when an organization and to Parliament. It was wrong for the Court of
failed to implement its recommendations was to make a Appeal to conclude that the report required under
report to the National Assembly which would take ap- article 254(1) of the Constitution was different from
propriate action under section 44(4) of the Commission
19
reporting on its investigative reports made in dis- person to whom, or entity to which, it was ad-
charge of its mandate. dressed;
2. A reading of section 8 of CAJA which set out the c) A recommendation from a commission was
functions of CAJ indicated that CAJ was mandated only binding upon a public entity where it has
to investigate complaints of abuse of power, unfair been specifically provided for in the Constitu-
treatment, manifest injustice or unlawful, oppres- tion or in law;
sive, unfair or unresponsive official conduct within d) The manner in which a recommendation was
the public sector. Therefore, the finding by both su- to be implemented by a public entity was dis-
perior courts that CAJ had the mandate to entertain cretionary;
and make recommendations with regard to the 3rd e) Exercise of discretion in implementing a rec-
respondent’s complaint, were accurate. ommendation could only be interfered where
there was gross abuse of discretion, manifest
3. Section 29 of CAJA provided that after investigat-
injustice or palpable excess of authority;
ing a complaint about how administrative action
f ) Any recommendation by a commission which
had been undertaken by a public officer or public
was not implemented could be reported to Par-
body, CAJ was under a mandatory obligation to re-
liament for any further action, if necessary.
solve the complaint through conciliation, mediation
or negotiation. If the matter could not be resolved,
8. Since CAJ’s recommendations were not binding on
and CAJ found that administrative action was un-
the Board, there was no basis for the Court of Ap-
dertaken unjustly or unreasonably, CAJ would make
peal to award monetary compensation to the 3rd
recommendations as it deemed fit.
respondent.
4. Whereas CAJ had the requisite mandate to make 9. Under section 8(c) of the CAJA, CAJ had the man-
recommendations to public officers or public bod- date to award compensation but that provision
ies, the recommendations were not binding. A rec- should not be read in isolation. Section 41 of CAJA
ommendation could only be binding when its bind- provided for options that CAJ had after the con-
ing nature was specifically provided for under the clusion of an inquiry. They included referring the
Constitution or the law. Neither the Constitution matter to the relevant authority (which included the
nor CAJA provided that CAJ’s recommendations National Assembly) or recommending to the 3rd
were binding. Consequently, the Board had discre- respondent a course of other judicial redress, recom-
tion to determine the manner in which they were to mending to the complainant appropriate methods
implement CAJ’s recommendations. of settling the complaint or obtaining relief and pro-
5. Under section 42(4) of the CAJA, the remedy where viding a copy of the inquiry report to all interested
there had been non-compliance with the recom- parties or submitting summons as it deemed fit to
mendations of the CAJ, was for the CAJ to prepare fulfill its mandate.
a report of the Board’s failure to implement the 10. Since the dispute was an employer-employee dis-
recommendations to the National Assembly for ap- pute, CAJ ought to have recommended to the 3rd
propriate action. Not even a court of law could dic- respondent an appropriate method of settling the
tate the manner in which a CAJ recommendation dispute. One of those methods would be to seek
should be implemented. The only exception was redress at the Employment and Labour Relations
where there was gross abuse of discretion, manifest Court (ELRC).
injustice or palpable excess of authority equivalent 11. CAJ could not usurp the role of the ELRC over em-
to denial of a settled right which the aggrieved party ployment disputes and award compensation. CAJ,
was entitled and there was no other plain, speedy under section 8(g) of the CAJA, could only recom-
and accurate remedy. The 3rd respondent’s circum- mend compensation or other appropriate remedies
stances did not fall within the exception. against a person or bodies to which the Act applied.
6. Where exceptional circumstances were pleaded, the Appeal allowed.
party aggrieved by the alleged abuse of discretion by Orders
a public officer, had to prove that the exceptional
i. The petition of appeal dated November 6, 2019 and
circumstances existed. The 3rd respondent did not
filed on November 7, 2019 was allowed.
discharge that burden of proof.
ii. The judgment of the Court of Appeal sitting at Nairobi,
7. The following were the guiding principles on recom-
September 27, 2019 was quashed and set aside.
mendations from commissions to public bodies: -
a) Any power to make a recommendation ought iii. For the avoidance of doubt, the judgment of the High
to be specifically provided for in the Constitu- Court delivered on February 26, 2015, was upheld.
tion or in law; iv. Costs of the appeal were awarded to the appellant.
b) Recommendations did not necessarily bind the
20
COURT OF APPEAL
The running of a bar by a judicial officer is not in itself evidence of gross misconduct
and conflict of interest.
Judicial Service Commission v Joseph Riitho Ndururi [2021] eKLR
Civil Appeal 650 of 2019
Court of Appeal at Nairobi
W Karanja, SG Kairu & AK Murgor, JJA
March 5, 2021
Reported by Beryl Ikamari
Labour Law - employment - unfair or unlawful termination misconduct. The Vetting Board found him unsuitable to
of an employment contract - gross misconduct and conflict continue serving in office.
of interest - whether the running of a bar by a Principal The respondent applied for a review of the Vetting Board’s
Magistrate (judicial officer) was proof of gross misconduct or decision on various grounds including lack of jurisdiction
a conflict of interest warranting dismissal from employment. to hear the matters as the Board’s jurisdiction lapsed
Jurisdiction - jurisdiction of the Judicial Service Commission on March 28, 2013, errors apparent on the face of the
(JSC) - jurisdiction to consider allegations raised against record and discovery of new and important matters after
magistrates - whether the JSC had jurisdiction to consider the making of the Vetting Board’s determination. The
complaints about events arising in the year 2006, where the Vetting Board allowed only one ground for review which
complaints related to the conduct of a judicial officer. was the discovery of new and important matters and
Constitutional Law - constitutionality of statutes - the dismissed the rest. On grounds that it lacked jurisdiction;
Attorney General and Parliament as necessary parties the Vetting Board referred the matter to the Judicial
to a claim on constitutionality of statutes - where the Service Commission on June 29, 2016. The appellant
constitutionality of regulation 23 of the Third Schedule of the received complaints against the respondent and restarted
Judicial Service Act was challenged on the basis that it had a disciplinary process under the Judicial Service Act.
the effect of restricting the rights of a judicial officer facing While the disciplinary process was pending before the
disciplinary action to the minutes, reports and recorded Judicial Service Commission, the Chief Justice placed the
reasons for a judicial officer’s dismissal from employment was respondent on interdiction on August 21, 2017. After
unconstitutional - whether the claim on unconstitutionality being given an opportunity to defend himself before the
of statutory provisions was proved and the effect of non- appellant’s Human Resource Committee, the respondent
joinder of the Attorney General and Parliament in such a was dismissed from service. The reason for his dismissal
claim - Judicial Service Act, No 1 of 2011, regulation 23 was that the respondent had improperly and grossly
of the Sixth Schedule; Constitution of Kenya 2010, articles misconducted himself by running a bar against the
2(4), 10(2)(a), 35, 47(2), 232(e) and 232(f ). principle of impropriety contrary to articles 172(1)(a)(iv)
Labour Law - employment - remedies for unfair termination and 75 of the Constitution.
of an employment contract - reinstatement - circumstances The respondent lodged a claim before the Employment
under which reinstatement would be an appropriate remedy. and Labour Relations Court. He explained that the
Brief facts charges levelled against him (running a bar) were about
events occurring on or about the year 2006, and they were
The respondent joined the Judiciary in 2004 and he had
within the jurisdiction of the Vetting Board but not the
risen to the rank of Principal Magistrate when he was
JSC, as envisaged under the Constitution. He added that
terminated. Pursuant to section 23 of the Sixth Schedule
the appellant did not have the constitutional mandate to
to the Constitution, all judges and magistrates serving
act retrospectively. Further, he stated that the disciplinary
in the Judiciary at the time of the promulgation of the
process which took 19 months violated his rights to fair
Constitution of Kenya 2010, were to undergo a vetting
administrative action and fair labour practices. He also
process to determine their suitability to continue serving
said that he was not furnished with copies of the reports/
in the Judiciary. The Vetting of Judges and Magistrates
proceedings of the processes in breach of his right of
Act (Vetting Act) was passed into law to give effect to
access to information as provided for under article 35
section 23 of the Sixth Schedule in accordance with the
of the Constitution. Ultimately, the court found that
requirements of article 262 of the Constitution. The
although there were valid reasons for the respondent’s
respondent appeared before the Vetting Board established
dismissal, it was not fair because no evidence was adduced
under the Act and he responded to allegations of gross
to demonstrate any inherent conflict of interest in the
21
respondent running a bar. not.

On various grounds, the appellant lodged an appeal against 5. There was no evidence of any valid reasons for the
the decision and the respondent filed a cross-appeal. The respondent’s dismissal.
cross-appeal was premised on various grounds including 6. An explanation was offered as to why it took 19
the respondent’s contention that the trial court should months to complete the respondent’s disciplinary
have granted the remedy of reinstatement which was the process and therefore the process did not take too
most appropriate remedy. The respondent also contended long or compromise the respondent’s right to fair
that the trial court failed to consider his allegations about administrative action.
violations of his constitutional rights and to compensate
7. The allegation that regulation 23 of the Third
him for the violations.
Schedule of the Judicial Service Act ought to have been
Issues
declared unconstitutional by the trial court required
i. Whether the dismissal of a judicial officer (Principal the respondent to join the Attorney General and
Magistrate) from employment, on basis of allegations Parliament as parties. Furthermore, the respondent
of gross misconduct and conflict of interest arising did not prove the alleged unconstitutionality to the
from running a bar, was fair. satisfaction of the court.
ii. Whether the Judicial Service Commission had 8. The respondent did not provide proof that would
jurisdiction to entertain a matter arising as a result lay a basis for compensation for violation of
of activities that arose in the year 2006? constitutional rights. The trial court did not err in
iii. Whether regulation 23 of the Third Schedule of not awarding the respondent damages for breach of
the Judicial Service Act was unconstitutional as it his constitutional rights.
restricted a judicial officer’s rights to the minutes, 9. The complaint about running a bar had not been
reports and recorded reasons for dismissal. determined on merit by the Vetting Board and
iv. When would the remedy of reinstatement be for that reason it was referred by the Board to the
appropriate in a claim of unfair dismissal from appellant. The appellant had jurisdiction to deal
employment? with any disciplinary issues that were left hanging
Held by the Board. The appellant was also not constrained
1. The appellant had the burden of proving that the to only deal with complaints arising after its
running of a bar by the respondent, undermined reconstitution under the Constitution of Kenya
the respondent’s judicial office and the Judiciary 2010.
as a whole. An allegation that the running of a bar 10. The trial court did not address itself on the issue of
amounted to impropriety was insufficient; evidence reinstatement as prayed for by the respondent. It did
had to be adduced to prove the impropriety. not explain why reinstatement was not granted.
2. From the material on record, the district heads based 11. The respondent was dismissed from service on
in Busia were the patrons of the bar. The bar was not March 27, 2019 and it could not be said that, at
open to members of the public. There was no iota of the time the trial court made its judgment, the
evidence, or even a suggestion that the respondent respondent had been out of service for long. It was
used to serve litigants or other persons of dubious also not shown that the appellant’s and respondent’s
character in that facility. relationship was strained. The trial court ought to
3. The appellant failed to demonstrate any impropriety have considered reinstatement or given reasons as to
or appearance of impropriety on the part of the why reinstatement was not a suitable remedy.
respondent supervising the running of a bar which Orders: -
was exclusively patronised by other senior civil i. Appeal dismissed
servants in the area. Additionally, any conflict ii. Cross-appeal allowed in party. Orders of compensation
of interest arising from running the bar was not of 10 months’ salary granted by the Employment and
demonstrated. Labour Relations Court were substituted with an order
4. The Judicial Service Code of Conduct and Ethics that the respondent /cross appellant be reinstated to
2020, which came into force almost fourteen his employment with immediate effect to the office of
years after the alleged misconduct was committed Principal Magistrate without loss of back pay salary
could not be applied retroactively to condemn the and or benefits.
respondent. The appellant ought to have availed the iii. Costs of the appeal and cross-appeal were awarded to
code of conduct, if any, that was applicable in 2006 the respondent in the appeal and the appellant in the
and used it as the criteria to determine if indeed the cross-appeal.
conduct complained of was proscribed therein or
22
Advocate hurling intemperate and demeaning words at the court brought the
profession of law and administration of justice to disrepute
Alfred Mincha Ndubi v Standard Limited
Civil Application 74 of 2019
Court of Appeal at Kisumu
P O Kiage, F Sichale & J Mohammed, CAJ
March 19, 2021
Reported by Ribia John
Civil Practice and Procedure- reviews – review of Rules. They were not to be thought of as common
decisions at the Court of Appeal – power of the Court of place exercises to be sought as a knee-jerk response
Appeal to review its own decisions – what was the extent of to decisions of the court that did not flatter a party’s
the Court of Appeal to review its own decisions – Court of fancy. The Court of Appeal entertained applications
Appeal Rules, rule 32 for review only in exceptional circumstances where
Civil Practice and Procedure – judgements – delivery of it was apparent that the usual principle of finality
judgements by a bench of judges – whether each judge should could work injustice. The Court of Appeal ought
write his or her separate judgement – whether a judgement to be less inclined to revisit and review rulings
or a ruling written by a single judge and the rest of the bench made at interlocutory stages such as the one sought
agreeing with it without delving into their own analysis to be reviewed. The Court of Appeal existed to
amounted to a ground for review of that judgement – what determine appeals and did not have the luxury of
was the form or content of concurring judgements – Court of engaging in such applications. On point of principle
Appeal Rules, rule 32 therefore, the court ought not to grant of the instant
application.
Brief facts
2. On the merits of the instant application, whereas
The instant matter was an application for review of a
it was true that under rule 32(3) of the Court of
ruling rendered by the instant court on an application
Appeal Rules the statutory command was that
for injunction pending the determination of an intended
each judge should render his or her own separate
appeal from the judgment of the High Court. The
decision as a matter of course, there was room for
impugned ruling was delivered by two judges of the
single-judgments of the court to be given where the
instant court as the other judge had since retired. The
decision was unanimous and the presiding judge so
ruling dismissed the applicant’s application that had
directed. Where one judge delayed, died, or ceased
sought an injunction pending appeal. The applicant
to hold office or was unable to perform the function
submitted that the decision occasioned a great mistrial of
of his or her office because of infirmity of mind or
his application and a great miscarriage of justice as only
body, the rule required that separate concurring
one judge wrote the ruling, the other read it online and
judgments should be given by the remaining
the third said nothing. He averred that had the two judges
members of the court.
written their own rulings, the shortcomings/inadequacies
of a single judge would have been filled. The applicant 3. The rules did not prescribe the form or content of the
further stated that it was a cardinal principle that each concurring judgments and it was not uncommon for
ought to write their own separate ruling or judgment. a leading judgment to be written in which the other
According to the applicant, no ruling was delivered in the judge or judges concurred by separate judgments.
strict sense of the law as delivery online by Skype was a They could be as brief as a single sentence or could
system completely foreign to Kenyan law. be full-fledged judgments complete with analyses of
the law and a citation of authorities, it all depended
Issues
on the subject.
i. What was the extent of the power of the Court of
4. In the ruling sought to be reviewed, what was in
Appeal to review its own decisions?
issue was a simple application for stay of execution
ii. What was the form and content of concurring pending appeal under rule 5(2)(b) of the Court of
judgements? Appeal Rules. That was as simple a matter as could
iii. Whether a judgement written by a single judge be. The law on it was so settled it was an old hat. The
while the rest of the bench simply stated that they principles applicable were notorious and could be
concurred with that decision amounted to a ground recited by rote. There was nothing novel or engaging
for review of that leading judgment. about the application and there was no call to strike
Held any new ground or blaze new trails. It was just an
1. Reviews were not provided for in the Court of Appeal ordinary, unremarkable application. The complaint,
23
therefore, that the judge who wrote the ruling did execution was a mischievous and mendacious claim.
not go into any lengths to state her reasoning was It smacked of discourtesy to the learned judge and
misplaced and misconceived. The learned judge did to the court. The applicant and his counsel set out
not need to. There was nothing to add with any to deliberately besmirch the dignity of the court. If
utility to what the other judge had stated. they thought there were errors of law committed,
5. The applicant was misguided and misadvised in and there were none, the way to redress them was
his assertion that the retired judge ought not have certainly not by an application for review.
been part of the bench while his retirement was 7. There was concern at the tone and content of the
imminent. It was not in the applicant’s place to grounds, the affidavit and the submissions of
organize and dictate to the court the manner in what counsel. Counsel ought to remember that they owed
it did its business. It was enough that the law maker the court a duty of courtesy and respect. It reflected
did contemplate on the fact that judges could delay, terribly on counsel when they undertook a mission
die or cease to hold office (including by retirement) of hurling intemperate and demeaning words at the
or be struck by debilitating infirmity and therefore court with reckless abandon. Such a course did great
be unable to write or sign judgments or rulings in disservice to counsel and brought the profession
applications or appeals they could have heard. That of law and administration of justice to disrepute.
was why rule 32(3) of the Court of Appeal Rules Counsels ought to always remember that they were
kicked in and the two judges of the court who officers of the court and that respect and etiquette
penned judgments upon retirement of the other were marks of noble professionalism.
judge acted squarely within that rule. There was no Application disallowed with costs.
substance in the complaint.
6. The claim that the concurring judge restated but
failed to properly apply the principles for stay of
some rights reserved by jjjj56cp
24
High Court
Female genital mutilation cannot be rendered lawful because the person on whom the
act was performed consented to that act
Tatu Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties); Katiba Institute
& another (Amicus Curiae) [2021] eKLR
Constitutional Petition No. 244 of 2019
High Court at Nairobi
LA Achode, K Kimondo & MW Muigai JJ
March 17, 2021
Reported by Kakai Toili
Constitutional Law – fundamental rights and freedoms – nation – Constitution of Kenya, 2010, article 27.
right to human dignity – where the Prohibition of Female Words and Phrases – participation – definition of partici-
Genital Mutilation Act prohibited female genital mutilation pation - the act of taking part in something, such as partner-
(FGM) – whether the prohibition of FGM on consenting ship - Black’s Law Dictionary 10th Edition; Thomas Reuters,
adult women violated their right to human dignity - whether at page 1294.
FGM performed with the consent of the person whom the act
Words and Phrases – harm – definition of harm - injury,
was done was legal - Constitution of Kenya, 2010, article 28
loss, damage; material or tangible detriment -Black’s Law
and 44(1); Prohibition of Female Genital Mutilation Act,
Dictionary 10th Edition, page 832.
2011, section 19.
Words and Phrases – bodily harm – definition of bodily
Constitutional Law – national values and principles of
harm - physical pain, illness or impairment of the body -
governance – public participation - what was the nature of
Black’s Law Dictionary 10th Edition, page 832.
public participation – Constitution of Kenya, 2010, article
10. Words and Phrases – choice – definition of choice - an
act of choosing; the right of ability to choose; a range from
Constitutional Law - constitutional petitions - form and
which to choose; something chosen - Concise Oxford English
content - particulars to be pleaded - requirement that a pe-
Dictionary, 12th edition.
titioner set out with a reasonable degree of precision that
which he complained of, the provisions claimed to have been Words and Phrases – freedom – definition of freedom - the
infringed, and the manner in which they were alleged to be power or right to act, speak, think freely; the state of having
infringed - what was the effect of failure to state with speci- free will; the state of being free; the state of not being subject
ficity the provisions of the Constitution that were alleged to to or affected by (something undesirable) - Concise Oxford
have been violated in a constitutional petition. English Dictionary, 12th edition.
Constitutional Law – fundamental rights and freedoms – Words and Phrases – freedom of choice – definition of free-
limitation of fundamental rights and freedoms – factors to be dom of choice – unfettered right to do what one wants when
considered in the limitation of rights – limitation of freedom one wants, and do so. Also excluded was doing something
of conscience, religion, belief and opinion - whether the rights that would harm one’s self or another - Black’s Law Diction-
relating to culture, religion, beliefs and language could be ary, 2nd Edition.
limited - whether a cultural practice could be deemed to be Words and Phrases – discrimination – definition of dis-
a national heritage – Constitution of Kenya, 2010, articles crimination - differential treatment; esp. a failure to treat all
11, 32, 44 and 259. persons equally when no reasonable distinction can be found
Constitutional Law – fundamental rights and freedoms – between those favoured and those not favoured - Black’s Law
right to the highest attainable standard of health - what was Dictionary, 10th Edition at page 1566.
the nature of the State’s obligation with regard to the right to Brief facts
health – Constitution of Kenya, 2010, article 2(6) and 43. The petitioner challenged the constitutionality of the
Constitutional Law – fundamental rights and freedoms Prohibition of Female Genital Mutilation Act (No. 32
– equality and freedom from discrimination – claim that of 2011) and the Anti-Female Genital Mutilation Board
female genital mutilation (FGM) had been criminalized formed thereunder (the impugned Act and the Board re-
while male circumcision had not been criminalized - factors spectively). The petitioner pleaded that sections 2, 5, 19,
to be considered in deliberating upon an unfair discrimina- 20 and 21 of the impugned Act contravened articles 19,
tion claim - whether the criminalizing of FGM and allow- 27, 32 and 44 of the Constitution of Kenya, 2010, (Con-
ing male circumcision amounted to unreasonable discrimi- stitution) by limiting women’s choice and right to uphold
25
and respect their culture; ethnic identity; religion; beliefs; tal health; or
and, by discriminating between men and women. (b) a surgical operation on another person who is
The petitioner contended that section 19(1) of the im- in any stage of labour or has just given birth,
pugned Act expressly forbade a qualified medical prac- for purposes connected with the labour or birth.
titioner from performing female circumcision, thereby (4) The following are, for the purposes of this Act, ap-
denying adult women access to the highest attainable proved persons—
standard of health, including the right to healthcare. The
(a) in relation to an operation falling within para-
petition sought among other orders that a declaration be
graph (a) of subsection (3), a medical practitio-
issued that sections 5, 19, 20, 21 and 24 of the impugned
ner;
Act were unconstitutional and thus invalid.
(b) in relation to an operation falling within para-
Issues
graph (b) of subsection (3), a medical practitio-
i. Whether female genital mutilation performed with ner, a registered midwife or a person undergoing
the consent of the person whom the act was done a course of training with a view to becoming a
was legal. medical practitioner or midwife.
ii. What was the nature of public participation? (5) In determining, for purposes of subsection (3)(a),
iii. What was the effect of failure to state with specificity whether or not any surgical procedure is performed
the provisions of the Constitution that were alleged on any person for the benefit of that person’s physical
to have been violated in a constitutional petition? or mental health, a person’s culture, religion or other
iv. Whether a cultural practice could be deemed to be a custom or practice shall be of no effect.
national heritage? (6) It is no defence to a charge under this section that
v. What were the factors to be considered in the the person on whom the act involving female genital
limitation of rights and fundamental freedoms mutilation was performed consented to that act, or
and whether the rights relating to culture, religion, that the person charged believed that such consent had
beliefs and language could be limited? been given.
vi. What was the nature of the State’s obligation with Held
regard to the right to health? 1. The principles for interpreting the Constitution were
vii. What were the factors to be considered in deliberating well settled. The court should aim at promoting the
upon an unfair discrimination claim? purposes, values and principles of the Constitution
and to advance the rule of law, human rights and
viii. Whether the criminalizing of female genital
fundamental freedoms in the Bill of Rights. The
mutilation and allowing male circumcision
Constitution should be given a purposive interpre-
amounted to unreasonable discrimination?
tation where all provisions were read as a whole with
ix. Whether the prohibition of female genital mutilation each provision sustaining the other.
on consenting adult women violated their right to
2. Article 2(5) and (6) of the Constitution expressly
human dignity?
recognized treaties ratified by Kenya as part of its
Relevant provisions of the law domestic law but the treaties were subordinate to
Prohibition of Female Genital Mutilation Act (No. 32 the Constitution. The primary dispute remained
of 2011) as pleaded by the petitioner and as answered by the
Section 19 three respondents.
(1) A person, including a person undergoing a course of 3. The evidential burden to prove that the impugned
training while under supervision by a medical practi- Act or some of its provisions were unconstitutional
tioner or midwife with a view to becoming a medical fell squarely on the petitioner. Furthermore, there
practitioner or midwife, who performs female genital was a rebuttable presumption of constitutionality of
mutilation on another person commits an offence. statutes. Until the contrary was proved, a legislation
(2) If in the process of committing an offence under sub- was presumed to be constitutional. It was a sound
section (1) a person causes the death of another, that principle of constitutional construction that, if pos-
person shall, on conviction, be liable to imprisonment sible, a legislation should receive such a construction
for life. as would make it operative and not inoperative.
(3) No offence under subsection (1) is committed by an 4. The court was alive to the guiding values and prin-
approved person who performs— ciples of governance including the rule of law; ac-
countability; democracy; and, participation of the
(a) a surgical operation on another person which is
people enshrined in article 10(2) of the Constitu-
necessary for that other person’s physical or men-
tion. Public participation was a means by which
26
citizens took part in the conduct of public affairs, cation, youth affairs and three other members ap-
directly or through their chosen or elected represen- pointed by the Cabinet Secretary. The petition did
tatives. However, there were no fast and hard rules not plead with specificity the element of the func-
for public participation. The public could become tions of the Board that were unconstitutional. The
involved in the business of the National Assembly petitioner ought to have specifically set out the pro-
as much as by understanding and being informed visions of the Constitution that were alleged to have
of what it was doing as by participating directly in been violated; provided the particulars of the alleged
those processes. violation; and, how the respondent had violated
5. The petitioner failed to discharge the evidential bur- those rights.
den to demonstrate that there was inadequate or no 10. It was instructive that the petitioner had named the
public participation. From the proceedings in the Board as the 2nd respondent and stated that the
departmental committee and the debates by rep- Board served to infringe on the petitioner’s rights
resentatives of the people in the whole House, the and as such ought to be disbanded. However, no co-
court could not then say that the Bill did not receive gent evidence was placed before the court to demon-
any public participation. The court was also alive to strate how the activities of the Board had infringed
the general power to pass legislation delegated to on the petitioner’s rights.
Parliament by the people under article 94(1) and (5) 11. It was not entirely true that a cultural practice could
of the Constitution. not be deemed to be a national heritage because ar-
6. The impugned statute re-defined female circumci- ticle 11 of the Constitution posited that culture was
sion to the more graphic term of female genital mu- the foundation of the nation and as the cumulative
tilation (FGM) and to expand application to adult civilization of the Kenyan people and nation.
women. The proviso to section 19 of the impugned 12. The exception in section 19(3) of the impugned Act
Act was a contradiction. It was not clear how a sex- to a surgical operation on another person which was
ual re-assignment procedure that would totally alter necessary for that other person’s mental health had
the female genitalia be permissible or less invasive not been substantiated. Indeed, there was no evi-
than Type I FGM as classified in section 2(a) of the dence of a co-relation between circumcision of men
impugned Act. or women and mental health. However, there was
7. The impugned Act fell short of criminalizing Type clear expert evidence that male circumcision had
IV FGM. According to the Interagency Statement some health benefits including reduced rates of in-
by the World Health Organization, 2008, the rea- fection or reduced transmission of HIV.
sons, context, consequences and risks of the various 13. There were some merits in the exception for that
practices subsumed under Type IV varied enormous- other person’s physical health or in the course of
ly. Because the practices were less known than Types child birth under section 19(3)(b) of the impugned
I, II and III, examples included: pricking, piercing Act. However, therein also lay some gap that had
and scraping; stretching; cauterization, cutting into been exploited by traditional circumcisers. From the
the external genital organs; and, introduction of evidence, FGM/C was often disguised and carried
harmful substances. The World Health Organiza- out on women during their labour. It was also car-
tion (WHO) concluded that it was not always clear, ried out at a young age, sometimes as early as nine
however, what harmful genital practices should be years.
defined as Type IV. Some of the practices omitted
14. There was a conflict between the statute and the
by the impugned Act included cosmetic surgeries,
Constitution. However, the Constitution made
labiaplasty, piercing and burning of female genitalia
certain exceptions and allowed derogation of rights
with corrosive substances among others.
in some cases. When it came to beliefs or personal
8. It was not an idle point that the impugned Act fa- faith, the court could only undertake a limited in-
vored a miniscule of the population who practiced quiry into the genuineness of a person’s professed
aspects of Type IV FGM including women who faith. However, the petitioner was unable to demon-
could afford labiaplasty or the cutting favored by strate a clear nexus between FGM and her right to
some religious sects. manifest her religion or belief. The court was unable
9. Section 3 of the impugned Act established the Board to impeach the offences created by sections 19, 20
as a corporate entity with a seal and perpetual suc- and 21 of the impugned Act. The Board was proper-
cession. Its composition was made up of a chairper- ly created and its functions were in conformity with
son appointed by the President; the principal secre- the Act and the Constitution.
taries of the ministries for the time being responsible 15. FGM, female circumcision and female cut referred
for matters relating to gender, finance, health, edu- to all procedures involving partial or total removal
27
of the external female genitalia or other injury to the also suffered serious health complications while
female genital organs or any harmful procedure to those who refused to undergo it suffered the con-
the female genitalia for non-medical reasons. The sequences of stigma. Women were thus as vulner-
Act defined FGM to comprise all procedures involv- able as children due to social pressure and could be
ing partial or total removal of the female genitalia subjected to the practice without their valid consent.
or other injury to the female genital organs, or any The rationale for FGM/C varied from one commu-
harmful procedure to the female genitalia, for non- nity to another.
medical reasons. 21. Medicalization of FGM/C did not mitigate harm
16. The WHO included FGM Type IV which was un- on the girl/woman as demonstrated by the FGM/C
classified or any other procedure involving, genital survivors who deposed affidavits and/or testified in
pricking, piercing (and to adorn with jewelry or court were consistent and had similar experience af-
other decorations), scraping, cauterizing, incising ter FGM/C.
and stretching of the clitoris or labia (with tongs or 22. The Constitution was the most significant legal in-
scissors including razor blades). strument in the legal system. It impacted on com-
17. The Penal Code defined harm as bodily hurt, disease mon law, international laws, traditional African re-
or disorder whether permanent or temporary, while ligion and customary practices. Article 2(1) of the
grievous harm meant any harm which amounted Constitution stated that the Constitution was the
to a maim or dangerous harm, or seriously or per- supreme law of Kenya and bound all persons and
manently injured health, or which was likely so to all State organs at both levels of Government. Under
injure health, or which extended to permanent dis- article 2(4) any law, including customary law that
figurement, or to any permanent or serious injury to was inconsistent with the Constitution was void to
any external or internal organ, membrane or sense. the extent of the inconsistency and any act or omis-
It also defined dangerous harm as harm endanger- sion in contravention of the Constitution was in-
ing life. valid.
18. The phrase harmful cultural practice was not de- 23. Some harmful cultural practices were valued as tra-
fined by Kenyan statutes. However, articles 53 and ditional cultural heritage in some communities. Cul-
55 of the Constitution referred to harmful cultural tural rights intertwined with human rights in certain
practices in protection of children and the youth. social spaces, and were not easy to separate but the
The Maputo Protocol in article 1(g) defined harmful Constitution offered the first most important stan-
practices as all behavior, attitudes and/or practices dard against which the relevance of all other laws,
which negatively affected the fundamental rights of religions, customs, and practices were to be mea-
women and girls, such as their right to life, health, sured. The Constitution also restricted customary
dignity, education and physical integrity. Article 5 law and religions through certain other provisions
of the Maputo Protocol called for the elimination of whose overall effect was to rid of harmful traditional
harmful practices, by prohibiting and condemning practices.
all forms of harmful practices which negatively af- 24. FGM/C was harmful to girls and women due to
fected the human rights of women and which were the removal of healthy genital parts. The FGM/C
contrary to international standards. caused immediate, short term and long-term physi-
19. The definition of FGM/C and harm articulated the cal and psychological adverse effects. The purposes
negative effect of harmful practices on women and of FGM/C were community culture-centered and
girls’ right to life, health, dignity, education and not individual benefit centered. The culture custo-
physical integrity. That underlined how the com- dians in communities were clan/elders who deter-
mitment to eliminate harmful practices was linked mined when, where, how and for what FGM/C was
not only to promoting the health and well-being of conducted within the specific community.
women but also to women’s human rights. 25. The preamble to the Constitution recognized the
20. The assumption was that anyone above the age of 18 culture and customs of the Kenyan people. Articles
years underwent FGM voluntarily. However, that 21 and 27(6) of the Constitution directed the State
hypothesis was far from reality, especially for women to take legislative measures to redress the disadvan-
who belonged to communities where the practice tages suffered by individuals or groups due to past
was strongly supported. The context within which discrimination. Articles 27, 28, 43, 53 and 55 of the
FGM/C was practiced was relevant as there was so- Constitution protected all persons from all forms of
cial pressure and punitive sanctions. Those who un- discrimination and shielded the youth and children
derwent the cut were involved in a cycle of social from harmful cultural practices. They also guaran-
pressure from the family, clan and community. They teed the right to dignity and the right to the high-
28
est attainable standard of health and reproductive From the evidence of the survivors and those who
health. escaped the cut, they all confirmed the misinforma-
26. Article 25 of the Constitution prescribed funda- tion, deception and societal pressure they were sub-
mental rights and freedoms that should not be lim- jected to, to undergo the cut.
ited. The right to enjoy one’s culture religion and 31. The right to the highest attainable standard of health
belief as envisaged in articles 11, 32 and 44 were which included the right to health care services, in-
derogable. Article 24 prescribed that the right and cluding reproductive health care for every person
fundamental freedom could be limited to the extent was provided under article 43 of the Constitution.
the limitation was reasonable and justifiable based The right to the highest attainable standard of health
on human dignity equality and freedom. The limita- received mention in various international treaties
tion should be proportionate to the legitimate aim. and covenants which were part of the laws of Kenya
Despite the rights enshrined in articles 11, 32 and by dint of article 2(6) of the Constitution.
44 of the Constitution relating to culture, religion, 32. The State’s obligation with regard to the right to
beliefs and language, the rights could be limited due health encompassed not only the positive obligation
to the nature of the harm resulting from FGM/C to to ensure that her citizens had access to health care
the individual’s health and well-being. services and medication, but had to also incorporate
27. Section 2 of the impugned Act defined FGM/C Type the negative duty not to do anything that would in
I, II and III but excluded Type IV which the WHO any way affect access to such health care services and
included as unclassified. The latter included any medication. That included an obligation to ensure
other procedure involving, genital pricking, piercing that women had access to reproductive health care.
with tongs or scissors including razor blades, incis- The right to health bore upon other rights enumer-
ing and stretching of the clitoris/labia. Section 19 ated in the Bill of Rights.
of the impugned Act criminalized FGM/C except 33. Decisions on violation of constitutional rights
where it was a surgical operation for a person’s physi- should not be made in a factual vacuum. To attempt
cal and mental health or at any stage of labour or to do so would trivialize the Constitution and in-
birth. It further provided that culture, religion, cus- evitably result in ill-considered opinions. The pre-
tom or practice or consent would not be a defence. sentation of clear evidence in support of violation
28. From the stand point of criminal law there was a of constitutional rights was not a mere technicality;
lacuna created that hampered the effective enforce- rather, it was essential to a proper consideration of
ment of the impugned Act. The criminalization of constitutional issues. Decisions on violation of con-
the three types of FGM/C and not Type IV, which stitutional rights could not be based upon unsup-
was unclassified, made it difficult to effectively en- ported hypotheses.
force the Act. There seemed to be no objective or 34. The general principle governing determination of
professional process to distinguish between the vari- cases was that a party who made a positive allega-
ous types of FGM/C during investigation or pros- tion bore the burden of proving it. That was stipu-
ecution. lated under section 107 (1) of the Evidence Act. The
29. A reading of section 19(6) of the impugned Act re- onus was therefore on the petitioner to demonstrate
vealed that it was no defense to a charge under the that her ability to exercise the fundamental right
section that the person on whom the act involving had been infringed, and that the infringement or
FGM was performed consented to that act, or that conduct was not justifiable in a modern democratic
the person charged believed that the consent had state by dint of article 24 of the Constitution. The
been given. The implication of that was FGM/C petitioner failed to do so.
could not be rendered lawful because the person on 35. For a differentiation of treatment to be unconstitu-
whom the act was performed consented to that act. tional and impermissible, it had to meet the thresh-
No person could license another to perform a crime. old of article 27 of the Constitution which stipu-
The consent or lack thereof of the person on whom lated the grounds upon which discrimination was
the act was performed had no bearing on a charge prohibited. It therefore followed that the principle
under the Act. of equality of the sexes was recognized, and discrimi-
30. Article 44(1) of the Constitution provided that ev- nation on any basis prohibited under the Constitu-
ery person had the right to use the language, and tion and international and regional treaties to which
to participate in the culture, of the person’s choice. Kenya was a party.
Freedom was therefore an underlying element of the 36. In deliberating upon an unfair discrimination claim,
exercise of one’s right under the Bill of Rights, which the court had to interrogate:
included the right to participate in one’s cultural life. a. Whether the provision differentiated between
29
people or categories of people. If so, whether 39. The Constitution entrenched respect for human
the provision bore a rational connection to a dignity, the achievement of equality and the ad-
legitimate purpose. If it did not, then there was vancement of human rights and freedoms, as its
a violation of the Constitution. Even if it bore foundational values. Article 28 of the Constitution
a rational connection, it could nevertheless provided for the right to inherent dignity and the
amount to discrimination. right to have that dignity respected and protected.
b. Whether the differentiation amounted to un- Human dignity was that intangible element that
fair discrimination. That required a two-stage made a human being complete. It went to the heart
analysis; of human identity. Every human had a value. Hu-
i. whether the differentiation amounted man dignity could be violated through humiliation,
to discrimination. If it was on a speci- degradation or dehumanization. Each individual
fied ground, then discrimination would had inherent dignity which the Constitution pro-
have been established. If it was not on tected. Human dignity was the cornerstone of the
a specified ground, then whether or not other human rights enshrined in the Constitution.
there was discrimination would depend The impugned Act did not violate the Constitution
on whether, objectively, the ground was or women’s right to dignity.
based on attributes and characteristics 40. The Protection of Traditional Knowledge and Cul-
which had the potential to impair the tural Expressions Act No. 33 of 2016 defined cul-
fundamental human dignity of persons tural heritage. Under that Act, intangible cultural
as human beings or to affect them ad- heritage was defined as the practices, representa-
versely in a comparably serious manner. tions, expressions, knowledge and cultural spaces
ii. whether the differentiation amounted to associated therewith communities, groups and, in
discrimination, and whether it amounted some cases, individuals recognized as part of their
to unfair discrimination. If it was found social cultural heritage. Culture was dynamic and
to have been on a specified ground, then not static and would continue to grow respond-
the unfairness would be presumed. If on ing to new factors. It was also fluid and changes
an unspecified ground, unfairness would from time to time. It was susceptible to be swayed
have to be established by the complain- by many factors such as religion, education, and in-
ant. The test for unfairness focused pri- fluence from other communities, inter-marriage and
marily on the impact of the discrimina- urbanization. However, there were certain aspects of
tion on the complainant and others in culture that identified a particular group, their his-
his or her situation. If, at the end of that tory, ancestry and way of life and that diversity was
stage of the enquiry, the differentiation recognized and protected by the Constitution.
was found not to be unfair, then there
41. The Constitution granted the freedom to exercise
would be no violation.
one’s culture. However, that freedom had to be car-
c. If the discrimination was found to be unfair
ried out in line with the other constitutional provi-
then a determination would have to be made
sions. Culture entailed various modes of expression.
as to whether the provision could be justified
Therefore, what was limited was any expression that
under the limitation’s clause.
would cause harm to a person or by a person to an-
37. Mere discrimination, in the sense of unequal treat- other person. FGM/C fell into the latter category.
ment or protection by the law in the absence of a
42. While the Constitution had a general underlying
legitimate reason was an unacceptable phenomenon.
value of freedom, that value of freedom was subject
However, where there was a legitimate reason, then,
to limitation which was reasonable and justifiable.
the conduct or the law complained of could not
Additionally, it had not inscribed the freedom to in-
amount to discrimination. Consequently, the law
flict harm on one’s self in the exercise of those free-
which promoted differentiation had to have a legiti-
doms. That was why the Penal Code prescribed of-
mate purpose and should bear a rational connection
fences such as attempted suicide in section 226 and
between the differentiation and the purpose.
abortion and allied offences in section 158 to 160.
38. Whereas the evidence adduced pointed to discrimi-
Petition dismissed ; the Attorney General (1st respondent)
nation, the discrimination was not unreasonable.
to forward proposals to the National Assembly to consider
The evidence of the medical experts confirmed the
amendments to section 19 of the Prohibition of Female Geni-
grim reality of the challenges posed by female cir-
tal Mutilation Act (No. 32 of 2011) with a view to prohibit-
cumcision ranging from difficulty in consummating
ing all harmful practices of FGM as set out in the judgment;
marriages to difficulty in child birth, and in certain
each party to bear its own costs.
instances, death of the victims.
30
There is conflict of interest where an advocate who is a senator represents a person

accused of corruption and who is likely to appear before a committee of the Senate in
which the senator is a member
Office of the Director of Public Prosecutions v James Aggrey Bob Orengo; Daniel Ogwoka Manduku & 2
others (Interested Parties) [2021] eKLR
Constitutional Petition No. 204 of 2019
High Court at Mombasa
EK Ogola, J
April 27, 2021
Constitutional Law – state officers – members of Parliament conflicted with his roles of oversight.
as state officers –whether members of Parliament were full
time State officers – whether members of Parliament as State
Relevant provisions of the law
officers can engage in other gainful emloyment - whether
there exists a conflict of interest where full time State officers Leadership and Integrity Act, 2012
such as members of Parliament engage in other gainful Section 26
employment - Constitution of Kenya, 2010, article 77(1). (1) Subject to subsection (2), a State officer who is
Constitutional Law – Parliament – Senate – role of serving on a full-time basis shall not participate in
the Senate – investigation of corruption claims by Senate any other gainful employment.
committees – claim that an advocate who was a senator (2) In this section, “gainful employment” means work
represented a person accused of corruption and who was that a person can pursue and perform for money
likely to appear before a committee in which the senator was or other form of compensation or remuneration
a member – whether by representing accused persons charged which is inherently incompatible with the
with corruption in court, a member of Parliament conflicted responsibilities of the State office or which results
with his roles of oversight - whether it was against public in the impairment of the judgement of the State
interest for a State officer such as a member of Parliament to officer in the execution of the functions of the State
represent in court an accused person charged with corruption office or results in a conflict of interest in terms of
offences – Constitution of Kenya, 2010, articles 77(1) and section 16.
96; Leadership and Integrity Act, 2012, section 26. Held
Brief facts 1. The respondent was a State officer by virtue of him
The applicant’s case was that the respondent, by virtue being the elected Senator for Siaya County. Article
of him being the elected Senator of Siaya County and a 77(1) of the Constitution provided that a full-time
Minority leader of the Senate, was a full time State officer State officer should not engage in any other gainful
who was required by law not to engage in any other employment. Gainful employment was defined
gainful employment. The applicant averred that though under section 26 of the Leadership and Integrity
the respondent was entitled to practice law, such practice Act.
should not conflict with the public interest that he was 2. The respondent could not be said to be a full time
under a duty to protect. The applicant thus sought for State officer given that there existed no employer-
among other orders; that the court bars the respondent employee relationship between senators, members
or any other State officer from appearing for the 1st of Parliament and the Executive. As such members
interested party or any of the parties in the instant matter of Parliament were at liberty to engage in gainful
on account of conflict of interest. employment in as long as the nature of the gainful
Issues employment was not inherently incompatible with
i. Whether members of Parliament were full time State their duties and/or functions as State officers. The
officers. Constitution accepted that some State officers
could be engaged on part-time rather than full time
ii. Whether members of Parliament as State officers can
basis and the Constitution allowed that category to
engage in other gainful emloyment?
participate in any other gainful employment.
iii. Whether there exists a conflict of interest where full
3. Although the respondent was a State officer, he was
time State officers such as members of Parliament
free to engage in gainful employment pursuant to
engage in other gainful employment.
the provisions of section 16 of the Leadership and
iv. Whether by representing accused persons charged Integrity Act. However, in pursuance of that gainful
with corruption in court, a member of Parliament employment, the respondent was subject to the law
31
and the Constitution. Affairs Committee did not in itself lessen the fact
4. The roles of the Senate were enumerated under article or perception of conflict of interest. Therefore, the
96 of the Constitution. The Senate represented the applicant’s application was not speculative.
counties, and served to protect the interests of the 9. The 1st interested party was entitled to an advocate
counties and their governments at the national level. of his choice under articles 48 and 50 of the
It was mandated to participate in the law-making Constitution. There was no derogation to the right of
function of Parliament by considering, debating and the 1st interested party to choose an advocate of his
approving Bills concerning the counties. The Senate choice. In Kenya, there were over 10,000 advocates
also determined the allocation of national revenue and the 1st interested party was at liberty to choose
among counties and exercised oversight over national any of those advocates. In any event a public interest
revenue allocated to the county governments. outweighed private interests of an individual. The
5. The Senate participated in the oversight of the 1st interested party had, in fact, no right to demand
governors by considering resolutions with regard to be represented in court by a counsel who had
to their removal or impeachment under article 181 oversight over the 1st interested party’s public role.
of the Constitution. The Senate and the county 10. Determining what was a personal interest would
governments were constitutionally designed to not always be easy, and would often be made on a
work together in ensuring the fruits of devolution. case-by-case basis. It did not require any taxing of
The Senate, which was at the national level of the mind to find a glaring perception of conflict of
Government, had a critical role in ensuring that the interest. To the accused person he had the Senator
counties interests were protected at the national level (respondent) as his advocate; driven to court in a
of Government. state motor vehicle; chauffeured by a State provided
6. The respondent was required by law to sit in the driver; and the vehicle fueled by the State. To the
committee that would interrogate the 1st interested accused, despite facing grave charges of economic
party, in the event he was summoned by the Senate. crimes, his defense appeared to have the blessings
There appeared to be a conflict of interest since the of the State. To the counsel, the unsaid story to the
respondent on the one hand would be interrogating accused was that the accused had the best counsel,
the 1st interested party on complaints levelled who appeared to have State support, and therefore
against him and on the other hand, he would be the accused needed not unduly worry since he was
representing him before a court of law on the same in good hands; to the public tax payer, he or she was
issues raised before the Senate. That was a tenuous confused, stood akimbo and wondered where the
scenario where there was a very thin difference world was going: why had the accused been charged
between the interrogator and the advocate, hence when he was to be represented by a State officer who
against the principles of natural justice that; arrived in court using State resources?
a. no one should be a judge in his own cause; and 11. None of the perceptions was bad or was unlawful.
But all of them created scenarios of possible conflict
b. justice should not only be done, but manifestly
of interest, at least in perception. It was the duty of
and undoubtedly be seen to be done.
the court to interpret the Constitution wholesomely
7. It was arguable that in the event of a possible conflict and in a manner to bring out the mischief intended
of interest, a senator could easily recuse himself from to be cured by the Constitution. State officers, ever
such proceedings. That proposition was however a when free to pursue employment for private gain,
very simplistic way of reasoning, and could not cure had to avoid scenarios in which they were either
the mischief since as a matter of principle, the roles conflicted, or in which they created perception of
and/or functions of a State officer as provided for conflict of interest.
by Constitution and the Leadership and Integrity
12. There existed conflict of interest in the respondent
Act among other statutes were binding on each and
representing the petitioner. That perception was
every State officer and were not alienable.
highlighted by the fact that the 1st interested party
8. A decision by Senate was not only binding on could at one time be summoned to appear before
the committee members who made that decision a committee of Senate to answer to some of the
but on all Senators. Therefore, whether or not the matters the petitioner was being investigated on.
respondent or any other State officer sat in the Should that happen, the respondent would be in
committee interrogating a public officer did not attendance. Even if he recused himself from the
exempt them from the provisions of section 26 of committee, that alone would not alley the perception
the Leadership and Integrity Act. The fact that there of conflict of interest, or put bluntly, the perception
were no active proceedings in relation to the 1st that the petitioner had friends in the Senate. That
interested party before the Senate’s Justice and Legal
32
would be very unfortunate. In interpreting the for failure to conform to the mandatory provisions
Constitution, a literal interpretation approach, of section 26 of the Leadership and Integrity Act.
which avoided all doubts and rhymes with the spirit Application allowed; the 1st interested party was at liberty
of the Constitution took priority. to engage the services of another advocate other than the
13. The continued representation of the 1st interested respondent to represent him in the proceedings; no orders as
party by the respondent or any other State officer was to costs.
against the spirit of Chapter 6 of the Constitution
Meaning and scope of the legal concept of possession

Nicholas Kipngetich & 2 others v Republic [2021] eKLR
Criminal Appeal No. 20 of 2019
(Consolidated with Criminal Appeal No. 140 of 2017 and Cr Appeal No. 19 of 2019)
High Court at Nyahururu
C. Kariuki, J
March 4, 2021
Reported by Chelimo Eunice
Criminal Procedure – charges – framing of charges – qualified right in it, and either held personally or by another
defective charges – circumstances in which a charge could who exercises it in one’s place and name. that condition of
be considered defective – a claim that a charge was defective facts under which one can exercise his power over a corporeal
for being in variance with the evidence adduced in support thing at his pleasure to the exclusion of all other persons.
of the charge - whether a charge could be defective if it was Includes; not only having in one’s own personal possession,
in variance with the evidence adduced by the prosecution but also knowingly having anything in the actual possession
witnesses – Criminal Procedure Code, sections 34, 136 & or custody of any other person, or having anything in any
382. place (whether belonging to or occupied by oneself or not) for
Criminal Law – possession – meaning of the legal concept of the use or benefit of oneself or of any other person; If there are
possession – elements of possession – the doctrine of common two or more persons and any one or more of them with the
intention - elements of the principle of common intention knowledge and consent of the rest has or have anything in his
– where 3 accused persons were found in actual possession or their custody or possession it shall be deemed and taken
of wildlife trophies – whether common intention would be to be in the custody and possession of each and all of them -
inferred in such a case - Penal Code, section 4 & 21. Black’s Law Dictionary.
Evidence Law – evidence – adducing evidence in criminal Brief facts
cases - proving facts in criminal cases – whether a particular The appellants were charged with offence of being in
number of witnesses was required to prove any fact in possession of wildlife trophies contrary to section 95
criminal cases – where the prosecution failed to call all of Wildlife Conservation and Management Act. It was
the persons mentioned during the trial – whether in the alleged that they were jointly found in possession of 5
circumstances, the court could draw a negative inference pieces of elephant tusks weighing 44.5 kgs with a street
– circumstances in which a court would interfere with the value of Kshs. 45 million without permit. They pleaded
prosecution’s discretion on whether or not to call a witness – not guilty to the charge and the matter proceeded to full
Evidence Act, section 143. trial. After hearing the case, they were convicted and fined
Criminal Procedure – sentencing – sentencing for the Kshs. 24 million in default life imprisonment. They, thus,
offence of being in possession of wildlife trophies – where a filed the instant appeal claiming, among others, that the
fine of not less than Ksh. 1 million or imprisonment for a sentence was harsh excessive and illegal, that the trial was
term of not less than 5 years or to both such imprisonment a nullity having been conducted by a prosecutor who
and fine was provided for by statute– whether a fine of Ksh. was not qualified, that the charge sheet was incurably
24 million or life imprisonment imposed on first offenders defective and that the prosecution failed to call crucial
was illegal and/or excessive – whether being a first offender witnesses thus rendering the conviction unsafe.
was a mitigating factor - Wildlife Conservation and Issues
Management Act, 2013, section 95; Judiciary Sentencing i. What were the circumstances in which a charge
Policy Guidelines, paragraph 23. could be considered defective?
Words & Phrases - possession – definition of possession - ii. Whether a charge could be defective if it was
the detention and control, or manual or ideal custody, of in variance with the evidence adduced by the
anything which may be the subject of property, for ones use prosecution witnesses.
and enjoyment, either as owner or as the proprietor of a
33
iii. What was the meaning and elements of the concept considered curable under section 382 of the Code.
of possession? There was no variance between the particulars
iv. What was the meaning and elements of the doctrine of the offence as framed and the evidence by the
of common intention? prosecution witnesses. It was not a case where the
appellants were charged and tried with a non-
v. Whether a court could interfere with the
existent offence to occasion prejudicial or a failure
prosecution’s discretion on the choice and number
of justice. There was no misjoinder of parties or
of witnesses to be called in a trial.
defect in the charge-sheet to warrant the court to set
vi. Whether being a first offender was a mitigating it aside. The ground on the charges being defective
factor. was dismissed.
Relevant provisions of the Law 5. No evidence was adduced in court to show that
Penal Code: the ODPP counsel prosecuting the matter was
Section 4; not qualified or validly appointed to undertake
“Possession is to; (a) be in possession of or to have possession the prosecutorial mandate under the law and the
includes having in one’s own personal possession but also Constitution. Thus, the ground was baseless.
knowingly having anything in the actual possession custody 6. Section 95 of the Wildlife Conservation and
of any other person or having anything in any place whether Management Act described the offence of being in
belonging to or recapped by oneself or of any other person. possession of wildlife trophies. It prohibited any
(b) if there are two or more persons and any one or more of person from keeping or being found in possession
them with the knowledge and consent of the rest has or have of a wildlife trophy or dealing in a wildlife trophy,
anything in his or their custody of possession it shall be denied or manufacturing any item from a trophy without
and taken to be in the custody and possession of each and all a permit.
of them.” 7. The legal concept of possession was defined under
Held section 4 of the Penal Code. The definition of
1. In a first appeal, an appellate court was enjoined possession connoted two elements, being in physical
to analyze and re-evaluate afresh all the evidence control of the items of the offence and it included
adduced before the trial court and to draw own joint control with another and secondly, knowledge
conclusions while bearing in mind that it neither or intention of having the article, instruments,
saw nor heard any of the witnesses. thing or items constituting the offence. The scope
of the doctrine on common intention as defined
2. An appellant on a first appeal was entitled to expect
under section 21 of the Penal Code was to the effect
the evidence as a whole to be submitted to a fresh
that when two or more persons formed a common
and exhaustive examination and the appellate court’s
intention to prosecute an unlawful purpose in
own decision on the evidence. The first appellate
conjunction with one another, and in the prosecution
court had to itself weigh conflicting evidence and
of such purpose, an offence was committed of
draw its own conclusion. It was not the function of a
such a nature that its commission was a probable
first appellate court merely to scrutinize the evidence
consequence of the prosecution of such purpose,
to see if there was some evidence to support the
each of them was deemed to have committed the
trial court’s finding and conclusion, it had to make
offence. The onus was on the accused to disapprove
its own findings and draw its own conclusions.
possession of ivory tusks as stated under section 111
Only then could it decide whether the trial court’s
of the Evidence Act.
findings could be supported. In doing so, it had to
make allowance for the fact that the trial court had 8. The prosecution evidence pointed to the fact that
the advantage of hearing and seeing the witnesses. the accused persons were found in actual possession
of the wildlife trophies and that they had physical
3. The appellants had not raised the alleged issues
control of the elephant tusks. Each accused person
of defective charges and the prosecutor’s lack of
ought to have had knowledge of what they were
competence to prosecute the matter during trial and
carrying since the elephant tusks recovered were in
they were featuring in appeal for the first time. The
their custody.
way the charges were framed, none of the appellant
had demonstrated the defect which could go to the 9. The court could not draw a negative inference for the
root of the validity of the charges. prosecution’s failure to call any person mentioned
during the trial. Whether a witness ought to be
4. A perusal of the charge sheet viz-a-viz the provisions
called by the prosecution was a matter within the
of section 34 and 136 of the Criminal Procedure
discretion of the prosecution and the court could
Code (the Code) revealed that there were no
not interfere with that discretion unless it was shown
major irregularities. If any, they could be of a kind
34
that the prosecution was influenced by some oblique appeal on conviction.

motive. Furthermore, section 143 of the Evidence 12. The only sentence provided for under section 95
Act made it clear that no particular number of of the Wildlife Conservation and Management Act
witnesses was required to prove any fact in the under which the appellants were charged, was a fine
absence of any provisions of law to the contrary. of not less than Ksh. 1 million or imprisonment
10. On whether the appellants’ defences were for a term of not less than 5 years or to both such
considered, the trial court found that the defence’s imprisonment and fine. The appellants were first
evidence failed to convince it and found no reason offenders, thus, the fine of Ksh. 24 million or life
to disregard the prosecution’s evidence merely imprisonment imposed was not illegal but excessive
because of it. It found that the prosecution proved in the circumstances of the case. Under Judiciary
its case against the appellants in the first count to Sentencing Policy Guidelines, paragraph 23, being
the required standard of beyond reasonable doubt. a first offender was a mitigating factor. Thus the
The prosecution having discharged its burden of sentence was reduced and substituted with a lesser
establishing facts that proved to the required standard one.
of beyond reasonable doubt that the appellants were Appeal partly allowed.
found in actual possession of the luggage with the
Orders
ivory pieces, by carrying the same and later being
found while with them in a closed store, the burden i. The appeal failed on conviction and succeeded partially
of disproving knowledge that the items were not on sentence.
ivory pieces, or the existence of the ivory pieces was ii. The sentence of fine of Ksh. 24 million and in default
on each of the appellants as the same was especially life imprisonment for each appellant was set aside.
within their own knowledge and as required under iii. Appellants were each sentenced to a fine of Ksh. 5
section 111 of the Evidence Act. million and in default to serve a sentence of 10 years
11. The appellants’ defences lacked merit and were each to run from the date of conviction on January 10,
baseless. Thus, the court found no merit in the 2017.
A conviction for incest could not be converted into a conviction for defilement.
NAM v Republic
Criminal Appeal No. 3 of 2019
High Court at Kakamega
W Musyoka, J
May 21, 2020
Reported by Ribia John
Criminal Law – sexual offences – medical examinations children of tender years could be inferred to mean sexual
– role of medical examinations in convictions – where the intercourse.
survivor of a sexual offence was not subjected to a medical Criminal Law – incest – defilement – elements of incest and
examination - whether a court could convict an accused defilement – sentences of incest and defilement – where one
person of a sexual offence having not conducted a medical was charged of incest but convicted of defilement - whether
examination on the survivor of the sexual offence – Sexual a conviction for incest could be converted into a conviction
Offences Act, section 20(1) and 36. for defilement - whether there was an err in law considering
Criminal Procedure – pleas – plea taking process – role the offence incest, with respect to minors, an offence lesser to
of the court in plea taking - where the plea did not include defilement - Sexual Offences Act, section 8 and 20(1); Penal
the sex of the accused and did not explain the severity of the Code, section 20.
sentence to the accused – whether such a plea was valid. Brief Facts
Evidence Law – witness testimony – cross examination The appellant was charged and convicted of incest
– where the person to be cross examined is of tender age - contrary to section 20(1) of the Sexual Offences Act and
whether the court infringed on the accused right to challenge was sentenced to life imprisonment. Being dissatisfied
evidence where the accused was not permitted to cross- with the conviction and sentence the appellant appealed
examine a survivor of sexual assault who was of tender age and raised several grounds of appeal. He averred that the
– Criminal Procedure Code, section 211. trial court convicted him on the basis of a defective charge,
Words and Phrases – tabia mbaya – implication of the his mitigation was not taken into account, the report
word when used by minors in sexual offence cases - whether recorded in the police occurrence book differed from
the reference to the term ‘tabia mbaya’ (bad manners) by the evidence placed before the trial court, the medical
35
evidence was weak, the evidence was malicious fabricated (6) The belief referred to in subsection (5)(b) is to be
uncorroborated and doubtful, the court did not consider determined having regard to all the circumstances,
that there was a strategy planned to implicate him, his fair including any steps the accused person took to ascertain
trial rights were violated, age and penetration were not the age of the complainant.
sufficiently proved, and the court convicted on the basis (7) Where the person charged with an offence under this Act
of hearsay evidence. is below the age of eighteen years, the court may upon
Issues conviction, sentence the accused person in accordance
i. Whether at the appellate court, an accused could with the provisions of the Borstal Institutions Act (Cap.
challenge a charge by pointing the inconsistency of 92) and the Children Act (No. 8 of 2001).
the facts in the occurrence book vis-à-vis the charge (8) The provisions of subsection (5) shall not apply if
having not raised the same inconsistency before the the accused person is related to such child within the
trial court. prohibited degrees of blood or affinity.
ii. Whether a court could convict an accused person
Section 20 (1) Incest by male persons
of a sexual offence having not conducted a medical
1. Any male person who commits an indecent act or an
examination on the survivor of the sexual offence.
act which causes penetration with a female person who
iii. What was the role of the court in the plea taking
is to his knowledge his daughter, granddaughter, sister,
process?
mother, niece, aunt or grandmother is guilty of an
iv. Whether the court infringed on the accused right
offence termed incest and is liable to imprisonment for a
to challenge evidence where the accused was not
term of not less than ten years:
permitted to cross-examine a survivor of sexual
Provided that, if it is alleged in the information or
assault who was of tender age?
charge and proved that the female person is under the
v. Whether the reference to the term ‘tabia mbaya’
age of eighteen years, the accused person shall be liable
(bad manners) by children of tender years could be
to imprisonment for life and it shall be immaterial that
inferred to mean sexual intercourse.
the act which causes penetration or the indecent act was
vi. Whether a conviction for incest could be converted
obtained with the consent of the female person.
into a conviction for defilement?
vii. Whether there was an err in law considering the Held
offence incest, with respect to minors, an offence 1. Being an appellate court, the instant court re-
lesser to defilement. evaluated the evidence on record and drew its own
Relevant Provisions of the Law conclusions whilst bearing in mind that the instant
Sexual Offences Act, Act No. 3 of 2006 court did not have the benefit of observing the
Section 8 Defilement witnesses as they testified.
2. OB No. 02/06/12/2017 was not placed before the
(1) A person who commits an act which causes penetration
court. A trial court based the trial on the charge
with a child is guilty of an offence termed defilement.
sheet and the evidence presented to prove the charges
(2) A person who commits an offence of defilement with a made. Since OB No. 02/06/12/2017 was not placed
child aged eleven years or less shall upon conviction be before the court, there was no basis for the trial court
sentenced to imprisonment for life. to have any regard to it. There wasn’t any defect in
(3) A person who commits an offence of defilement with a the charge that the appellant faced. The appellant’s
child between the age of twelve and fifteen years is liable plea for OB No. 02/06/12/2017 to be called up
upon conviction to imprisonment for a term of not less to see that the evidence tendered in support of the
than twenty years. charge totally differed from what was recorded in
(4) A person who commits an offence of defilement with a that occurrence book should have been made before
child between the age of sixteen and eighteen years is the trial court, and not on appeal.
liable upon conviction to imprisonment for a term of 3. The trial court took into account the appellant’s
not less than fifteen years. mitigation, if at all what the appellant was recorded
to have had told the court can be treated as
(5) It is a defence to a charge under this section if—
mitigation. The appellant did not understand what
(a) it is proved that such child, deceived the accused
mitigation was. It was nothing more than a plea by
person into believing that he or she was over the age an accused person before the court, to be considered
of eighteen years at the time of the alleged commission by the court, before plea. Mitigation followed after
of the offence; and conviction, and, therefore, whatever was said in
mitigation could not possibly affect the conviction, it
(b) the accused reasonably believed that the child was
could only be considered for the purpose of sentence.
over the age of eighteen years. Secondly, the statement by the prosecution that the
36
appellant could be treated as a first offender did not mean that the appellant defiled her. However, the
exonerate him of the crime. It merely meant that testimony was in a language that was rather vague,
since the prosecution did not have previous records and which would have required other evidence to
relating to the appellant’s criminal history, the court support it. At age six, one would have expected that
could treat the conviction of December 7, 2018 any penetration of a vagina by a twenty-year-old
as his first criminal record. In any event, all those penis could cause tears and bruises that would lead to
factors were taken into account by the court, and, bleeding. Such encounter should have left PW1 with
therefore, the issue should not arise. grave injuries if any penetration had happened. PW3
4. The appellant had not elaborated on his argument would have been expected to dwell on that. PW3’s
that the medical evidence was weak. He had not testimony was equivocal on whether or not there was
sought to demonstrate the weakness of the medical penetration.
evidence. PW1 was taken for medical examination 8. It could not be said that the trial court convicted on
and treatment three days after the alleged incident. the basis of hearsay evidence, where the court heard
The assault happened on April 15, 2018, and PW1 from the mouth of the victim herself.
was taken to the health centre on April 18, 2018. 9. The plea taking process in the instant matter was
PW2 did not testify as whether or not she had bathed ambiguous. It was not clear whether the accused
the child in the intervening period, but PW3 did not person was male or female. There was also the
address her mind to that. She did the examination, issue of the severity of the sentence for the offence
and came up with findings. It was not clear whether that he faced. The court taking plea must go the
it was those findings that the appellant was raising extra mile, of explaining to the accused person the
issues with. He had opportunity to cross-examine consequences of being convicted of such an offence.
her on the findings, he did pose questions to her. He The court equated the responsibility of the court in
had opportunity to engage his own medical expert to such circumstances to that of an educator. The court
counter the opinion given by PW3 if he so desired. did not play that role. The appellant faced a charge
5. A trial court could convict in the absence of medical whose penalty was mandatory life imprisonment.
evidence, so long as it was persuaded that the The trial court should have addressed the appellant
testimony of the minor victim was believable and on the seriousness of the charge.
reliable. In the instant case, there was corroboration. 10. The appellant, after he was put on his defence, gave
PW1 informed her mother PW2 of what transpired, a sworn statement. He was, therefore, accorded
the same day. Unfortunately, PW2 did not appear the right to adduce evidence, after his rights under
to have had examined PW1, or confirmed her section 211 of the Criminal Procedure Code, were
story, or at least in her evidence in chief PW2 did read to him. He took advantage of that opportunity.
not say whether or not she examined the child. Her He could not be heard to complain in that regard.
story could not be compared or contrasted with the On the right to challenge evidence, the record was
findings of PW3, relating to finding bruises, broken clear, he confronted all the witnesses presented by the
hymen and discharges, and detecting a foul smell prosecution, and cross-examined them extensively,
from her vagina. except for PW1, the principal accuser. He had a
6. PW1 was only five or six years old, the appellant constitutional right to cross-examine her, to challenge
was said to be twenty years old or so. One would her testimony, her tender age notwithstanding. He
have expected blood from an encounter between the did not appear to have had been accorded that right,
two. PW1 and PW2 did not talk about any. PW3 and, therefore, his constitutional right to challenge
saw PW1 three days thereafter, she did not indicate evidence was violated.
whether or not the bruises were fresh or not, and if 11. The other fair trial rights were observed. He was
they were not, she did not estimate how old they were. furnished with the prosecution evidence ahead of
That would have been critical since she was seeing the actual trial. He was informed of his right to an
PW1 three or so days after the alleged defilement. advocate of his own choice. He was also informed of
The appellant’s misgivings with the medical evidence his right to an advocate at state expense for serious
tendered, given the time that had lapsed before PW1 defilement cases such as the instant one. The court,
was medically examined. The child had been defiled, however, did not appear to have had complied with
but the matter was handled in a rather inadequate section 43 of the Legal Aid Act, No. 6 of 2016, by
manner, and the evidence gathered may not have informing the relevant authorities of the need to
sufficed to convict. furnish the appellant with such an advocate.
7. Courts generally treated reference by children of 12. The inconsistency or contradiction of the date of
tender years to tabia mbaya as meaning intercourse. the appellant’s arrest did not go to the heart of the
The testimony of PW1 could be interpreted to matter. It was not a mandatory requirement under
37
section 36 of the Sexual Offences Act, that in all cases the Sexual Offences Act, defilement, as defined in
the accused ought to be subjected to such a medical section 8, was subject to mandatory sentences, incest,
examination. Medical evidence was not the only with respect to minors, was not subject to similar
basis for determining whether or not defilement had mandatory sentences, the sentences prescribed were
occurred. The matter was reported to the police after largely discretionary save for the minimum penalty
three or so days had lapsed, and it was likely that of ten years. So for all practical purposes incest was
such an examination would have yielded nothing. cognate to defilement. Under the circumstances,
13. The appellant had initially been charged with section 179 of the Criminal Procedure Code could
defilement, before the charge was substituted with not be applied to it. The court could not, therefore,
that of incest. Incest was committed where the convert a conviction for incest into one of defilement.
offender was related to the victim of the offence 15. The court did not quite understand the policy behind
within the degrees of relationship stated in the making incest, with respect to minors, an offence
provision, that was to say daughter, granddaughter, lesser to defilement. Yet, in the offence of incest,
sister, mother, niece, aunt or grandmother. In the with respect to minors, two offences overlapped,
instant case, according to the charge, PW1 was a defilement and incest. That alone should have made
granddaughter of the appellant, which meant that incest a much more serious offence compared to
the appellant was her grandfather. A grandfather defilement. Secondly, incest happens largely within
of someone was the father of either the mother or the home, between members of the same family, as
father of that other. In the instant case, the appellant opposed to general defilement which could happen
was not the father of either the father or mother of between persons who were not related to each other
PW1. It emerged from the evidence on record that or whose relationship was distant. It would mean in
the paternal grandmother of PW1 was his sister. He incest, with respect to minors, there was always that
was, therefore, not the grandfather of PW1, but her element of breach of trust. The person defiling the
granduncle. She was therefore, not his granddaughter, minor would be her elder relative, taking advantage
and he could not possibly commit the offence of of the familiarity between them to defile her under
incest with respect to her. The offence of incest could the cover of the family home, where she should be
only be committed against immediate relatives of the safest. The worst abusers of underage girls were their
offender, and not distant relatives. The appellant was immediate relatives, who preyed on the underage
not an immediate relative of PW1. The charge could girls under the safe cover of the home environment.
not, therefore, hold against him. The same ought not It was usually difficult to have such crimes uncovered,
to have been preferred in the first place. The decision because families make efforts to cover them up. No
to substitute the charge, therefore, dealt a serious doubt, in those circumstances, incest, with respect
blow to the case. to minors, ought to be a much more serious offence
14. Section 179 of the Criminal Procedure Code, Cap than defilement. It was about time that policy makers
75, Laws of Kenya, under which an accused person should direct their focus to afford better protection
could be convicted of an offence other than that to underage girls within families, by amending the
charged, so long as the facts disclosed that other penalties prescribed for incest where minors were the
offence, and that offence was cognate or predicate to victims.
the offence charged. Incest, with respect to a minor,
Appeal allowed, conviction quashed, sentence against the
was, strictly speaking, a defilement, of the said minor.
appellant set aside and the appellant was set free unless he
Yet, the language of section 20 of the Sexual Offences
was otherwise lawfully held.
Act made it a lesser offence to defilement. Under
38
A state corporation had no power to alter the statutory minimum requirements for
appointment of a state officer
Republic v Communications Authority of Kenya Ex parte Information Communication Technology
Association of Kenya (ICTAK) [2021] eKLR
Judicial Review Application No. 21 of 2020
Employment and Labour Relations Court at Nairobi
M. Onyango, J
April 9, 2021
Reported by Chelimo Eunice
Judicial Review – application for judicial review – purpose discriminatory. The ex-parte applicant further complained
of judicial review – boundaries of judicial review – grounds that timeframe for closing of the advertisement was
for grant of judicial review remedies - classification of the less than the 21 days provided by the law. The ex-parte
grounds for judicial review - illegality, irrationality and applicant, through its advocates, wrote a letter to the
procedural impropriety – meaning of illegality as a ground respondent demanding the immediate revocation and/
of judicial review – meaning of irrationality as a ground of or cancellation and/or withdrawal of the vacancy notice.
judicial review – meaning of procedural impropriety as a In its response, the respondent contended that the
ground of judicial review – whether state corporations had Mwongozo Code of Governance for State Corporations
powers to alter the minimum requirements for appointment (the Mwongozo) only prescribed the minimum
state officers. requirements for appointment of a Chief Executive Officer
Statutes – interpretation of statutory provisions – the State (CEO) and that Boards of state corporations had latitude
Corporations Act - the Mwongozo, Code of Governance for to make additional requirements for the appointment of
State Corporations – the Public Service Human Resource and a CEO. It, however, agreed to modify the advertisement
Policies Manual – interpretation of the State Corporations to indicate that the affiliation to a professional body be
Act and the Mwongozo, Code of Governance for State provided where applicable, while providing a similar
Corporations on the specifications for appointment of Chief timeframe as provided in the earlier advertisement of any
Executive Officers of state corporations – what were the new applications. It subsequently re-advertised for the
specifications for appointment of a Chief Executive Officer position. The ex-parte applicant was offended by the re-
of state corporations - where a state corporation enhanced the advertisement, hence the instant application.
requirements for the position of a director general – whether a Issues
state corporation had powers to alter the statutory minimum
i. What were the grounds for grant of judicial review
requirements for appointment state officers - interpretation
remedies?
of the Public Service Human Resource and Policies Manual
on the minimum number of days required before closing of ii. What were the specifications for appointment of
an advert for a vacant position – what was the minimum Chief Executive Officers of state corporations?
number of days required before closing an advert for the iii. Whether a state corporation had powers to alter the
position of a director general of a state corporation – whether statutory minimum requirements for appointment
the Public Service Human Resource and Policies Manual a state officer.
could supersede the provisions of the Mwongozo, Code of iv. What was the minimum number of days required
Governance for State Corporations - Constitution of Kenya, before closing an advert for the position of a director
2010, articles 10(2)(b) & 73; State Corporations Act, general of a state corporation?
sections 7 & 30. v. Whether the Public Service Human Resource and
Brief facts Policies Manual could supersede the provisions
Following the lapse of the contract for the immediate past of the Mwongozo, Code of Governance for State
director general of the respondent, the Communications Corporations.
Authority of Kenya Board (the Board) advertised for Held
the positon in the local daily newspapers on May 22, 1. The purpose of judicial review was to ensure that
2020 specifying the qualifications, duties and conditions public bodies executed their mandates within their
applicable for the position. The ex-parte applicant was statutory remit while at the same time ensuring
unhappy with the advertisement as in its view, the advert fairness by complying with the rules of natural
introduced qualifications that were not contained in justice. There was also the need to ensure that those
the law and that the alteration locked out its members decisions were rational.
and other member of the public who would otherwise 2. Judicial review had developed to a stage where one
be qualified to apply for the position and was, thus, could classify the grounds upon which administrative
39
action was subject to control by judicial review gave power to the President to give directions of a
under three heads. The three grounds being illegality, general or specific nature with regard to the better
irrationality and procedural impropriety. Illegality as exercise and performance of the functions of state
a ground for judicial review meant that the decision- corporations. Section 30 of the State Corporations
maker had to understand correctly the law that Act on the other hand gave power to the President
regulated his decision-making power and had to to make regulations for the better carrying into
give effect to it. Whether he had or not was per se effect of the provisions of the Act. Under those
a justiciable question to be decided, in the event of powers, the President promulgated the Mwongozo,
dispute by persons by whom the judicial power of Code of Governance for State Corporations (the
the state was exercisable. Mwongozo). Attachment 1 of the Mwongozo set out
3. Irrationality meant what could be succinctly referred the specifications for appointment of Chief Executive
to as Wednesbury unreasonableness. It applied to a Officers (CEOs) of state corporations being: -
decision which was so outrageous in its defiance of a) held a degree in the relevant field from
logic or of accepted moral standards that no sensible a university recognized in Kenya;
person who had applied his mind to the question
b) had at least ten years’ knowledge and experience
to be decided could have arrived at it. Whether
in the relevant field;
a decision fell within that category was a question
that judges by their training and experience could c) met the requirements of chapter six of the
be well equipped to answer, or else there would be Constitution;
something badly wrong with the judicial system. d) had served in a position of senior management
4. The third head was described as procedural for a period of at least five years;
impropriety rather than failure to observe basic rules e) met the requirements of the fit and proper test.
of natural justice or failure to act with procedural 7. Section 11 of the Kenya Information and
fairness towards the person who could be affected Communications Act provided that the director
by the decision. That was because susceptibility to general was the chief executive of the Commission
judicial review under it covered also failure by an and was, subject to the directions of the Commission,
administrative tribunal to observe procedural rules responsible for the day to day management of the
that were expressly laid down in the legislative Commission. The director general was an ex-officio
instrument by which its jurisdiction was conferred, member of the Board but had no right to vote at any
even where such failure did not involve any denial of meeting of the Board.
natural justice. 8. The original advertisement and the re-advertisement
5. The grounds upon which judicial review could be were the same word for word. Since the Kenya
granted were not limited. Judicial review was an Information and Communications Act did not
important tool which courts used to ensure that the set out the qualifications for director general of
officers and bodies vested with constitutional and the respondent, the qualifications set out in the
statutory authority exercised their powers in the best Mwongozo applied. The Mwongozo was issued jointly
interests of the society. Some of the grounds for grant by the Public Service Commission (PSC) and State
of judicial review orders were: - Corporations Advisory Committee (SCAC) under
a) where there was abuse of discretion; the President’s executive order pursuant to sections 7
b) where the decision maker exercised discretion and 30 of the State Corporations Act.
for an improper purpose; 9. An advisory from SCAC and the respondent’s
c) where the decision maker was in breach of duty Human Resource Policy Manual could not supersede
to act fairly; the provisions of the Mwongozo which had statutory
d) where the decision maker had failed to exercise underpinning. The averments about a policy of
statutory discretion reasonably; comply or explain was not anchored on any law
e) where the decision maker acted in a manner or regulation and could not supersede the explicit
to frustrate the purpose of the Act donating provisions of the Mwongozo.
power; 10. Parliament had conferred powers on public
f ) where the decision maker failed to exercise authorities and had clearly laid a framework on
discretion; how those powers were to be exercised and where
g) where the decision maker fettered the discretion that framework was clear, there was an obligation
given; and on the public authority to strictly comply with it to
h) where the decision was irrational and render its decision valid. The purpose of a court was
unreasonable. to ensure that the decision making process was done
6. Section 7 and 30 of the State Corporations Act fairly and justly to all parties and blatant breaches
40
of statutory provisions could not be termed as mere bound by the provisions of the Public Service Human
technicalities. Where a statute donated powers to Resource and Policies Manual in the absence of any
an authority, the authority ought to ensure that the other similar provisions in its own Act or regulations
powers that it exercised were within the four corners and was bound to give a minimum of 21 days before
of the statute and ought not to extend its powers closing the advert for interested persons to apply for
outside the statute under which it purported to the vacant position.
exercise its authority. 14. The respondent’s assertion that it published the
11. The respondent enhanced the requirements for the advertisement on May 22, 2020 and re-advertised on
position of director general thus locking out persons, June 17, 2020 with a closing date of June 23, 2020,
including the ex-parte applicant’s members who thus exceeding the 21 days’ requirement was not the
were qualified under the statutory requirements. correct position. The initial advertisement was on
The respondent had no powers to alter the May 22, 2020 and closed on June 9, 2020. The re-
minimum requirements for appointment. Enhanced advertisement was on June 17, 2020, long after the
qualifications could only be an added advantage to elapse of the original advertisement and could not
be considered during interview, among other unique be deemed to be a continuation or extension of the
qualifications of each of the candidates. It could not same. A person who only saw the re-advertisement
be used as a criteria to lock out persons who were and not the original one was entitled to the full 21
otherwise qualified for the position from applying or days before closure of the advertisement. Both the
from being shortlisted and given an opportunity to original advertisement and the re-advertisement
compete for the advertised position. The respondent, failed to meet the minimum requirements under the
therefore, acted without authority in enhancing the Public Service Commission Human Resource and
minimum qualifications set out in the Mwongozo, Policies Procedures Manual of a minimum of 21
hence it acted ultra vires. days.
12. By altering the requirements for the position of the 15. The Kenya Information and Communications Act
director general, the respondent also violated the further provided that the Board was to determine the
provisions of article 10(2)(b) of the Constitution terms and conditions of service of the director general
which provided for observance of human dignity, in consultation with the PSC. The respondent could
equity, social justice, inclusiveness, equality, human not, thus, detach itself from or avoid compliance
rights, non-discrimination and protection of the with the Human Resources Process and Procedures
marginalised. Persons who were qualified under the Manual for the Public Service. It was, thus, clear
Mwongozo were discriminated by the enhancement that the advertisement for the position of the
of the minimum requirements which locked them director general by the respondent failed to meet
out. The Board further violated article 73 of the the minimum statutory requirements in terms
Constitution on the guiding principles of leadership of both the qualifications of the position and the
and the Leadership and Integrity Act. process of advertisement. There was both procedural
13. According to the Public Service Human Resource impropriety as well as illegality in the advertisement
and Policies Procedure Manual, public service of the position of director general of the respondent.
incorporated the civil service, national police Notice of Motion dated July 3, 2020 allowed with costs.
service, teaching service, judiciary, Kenya defence
Order
forces, county governments, public universities,
parliamentary service, state corporations and An order of certiorari granted to remove into the court and
statutory bodies. The second last paragraph of the quash the vacancy notice for the position of Director General/
preamble thereto further provided that the policies Chief Executive Officer of Communications Authority of
would apply to the national government and other Kenya, referenced as CA.DG/HCA2020.
government agencies. The respondent was, thus,
41
Role of the court in examining an expert witness’ testimony

George Karisa Fondo & 19 others v Said Ali Omar & 17 others [2021] eKLR
Petition No. 10 of 2016
Environment and Land Court at Malindi
JO. Olola, J
February 19, 2021
Evidence Law – witnesses – expert witnesses – examination Issues

of expert witnesses - what was the role of a court in examin-
ing an expert witness’ testimony. i. What was the role of a court in examining an expert
witness’ testimony?
Constitutional Law – locus standi – locus standi in envi-
ii. What was the rationale for the waiver of the
ronmental matters - what was the rationale for the waiver of
requirement to demonstrate locus standi in a suit
the requirement to demonstrate locus standi in a suit relating
relating to the protection of the environment?
to the protection of the environment – Constitution of Kenya,
2010, articles 42, 69(1)(a) and 70; Environment and Land iii. Whether the State could be held liable for unlawful
Court Act, 2011, section 18; Environmental Management invasion perpetrated non-state agents.
and Co-ordination Act, 1999. iv. What was the role of the court where an innocent
third party had information relating to unlawful
Jurisdiction – jurisdiction of the Environment and Land conduct?
Court Act – claim before the Environment and Land Court Held
that a third party had information relating to unlawful con-
duct - what was the role of the court where an innocent third 1. A reading of articles 42 and 70 of the Constitution
party had information relating to unlawful conduct. of Kenya, 2010 (Constitution) made it clear, that
one did not have to demonstrate personal loss or
Land Law – encroachment on land – encroachment by non- injury, in order to institute a cause aimed at the
state agents -whether the State could be held liable for un- protection of the environment. The waiver of the
lawful invasion perpetrated non-state agents. requirement to demonstrate locus standi in a suit
relating to the protection of the environment was
Brief facts
necessitated by the recognition that the protection
of the environment was not only for the benefit of
The petitioners contended that they were the owners of the current generation but also for the generations
various parcels of land located on the northern bank of to come.
the Sabaki River. They averred that the 1st to 13th re-
2. The court was enjoined under section 18 of the
spondents had trespassed onto their parcels of land,
Environment and Land Court Act and section
cleared large sections thereof and denuded it of all vegeta-
3(5) of the Environmental Management and Co-
tion upon which they commenced sand harvesting activi-
ordination Act (EMCA) aforesaid, to be guided
ties thereon. The petitioners asserted that when they met
by the principle of intergenerational equity while
the 1st to 13th respondents with a view to discuss the
dealing with environmental disputes. Section 2 of
enchroachment and illegal extraction of sand from their
the EMCA defined intergenerational equity.
parcels of land, the said respondents became unruly and
with the help of about 100 youth who were employed in 3. Rivers all over the world were under immense
the harvesting activities, they threatened to unleash vio- pressure due to various kinds of anthropogenic
lence upon the petitioners. activities among them indiscriminate extraction
of sand and gravel which many at times was
disastrous to the river’s ecosystem. Uncontrolled
The petitioners were apprehensive that the illegal extrac-
sand harvesting availability activities could lead to
tion of sand and the accompanying degradation of the
land degradation, low of and poor quality of water
land would continue to other portions of the Sabaki Riv-
in the affected rivers. In recognition of such harmful
er Estuary thereby leading to an environmental disaster
consequences, article 69(1)(a) of the Constitution
in the area. The appellant thus filed the instant petition
required the State to ensure sustainable exploitation,
seeking among others orders that a permanent order of
utilization, management and conservation of the
injunction be issued restraining the 1st to 13th respon-
environment and natural resources as well as to
dents, their servants and or agents from harvesting sand
ensure the equitable sharing of the accruing benefits.
from the suit land.
42
4. The 18th respondent had come up with the National circumstance would not only open floodgates of
Sand Harvesting Guidelines, 2007, (Guidelines) litigation against the Government but would also be
which required every county where sand harvesting detrimental to the public interest and impracticable
activities took place to establish a technical sand in the context of Kenya.
harvesting committee. That committee was under 9. It was incumbent upon the petitioners to
the Guidelines mandated to ensure that sand dams demonstrate that the police and other agents of the
and gabions were constructed in designated sand State had been negligent in the performance of their
harvesting sites; that lorries were using designated duties and or that they had breached any of their
access roads only to access the sites and that the sites statutory or constitutional duties. There was no
were rehabilitated appropriately. allegation, other than the fact that the police manned
5. The 15th respondent did not file any response to a nearby road-block that they knew in advance
the petition and none of the other respondents about the invasion of the 1st to 13th respondents
provided any evidence that the Guidelines had into the petitioners’ properties and or that they were
been complied with and/or implemented within involved or complicit in the illegal activities therein.
Kilifi County. However, the 1st to 13th respondents The petitioners knew and had identified the 1st
operated an unlicensed sand harvesting site and the to 13th respondents as the real perpetrators of the
18th respondent had neither licensed the same nor illegal activities in their properties.
carried out an environmental impact assessment 10. While the State had a constitutional obligation
of the activities being carried out on the site. The with regard to the protection and conservation of
harvesting of the sand in the Sabaki River Estuary the environment, the State could not be held liable
was not, prima facie, being done in a sustainable for the unlawful invasion perpetrated by the 1st
manner as envisaged under article 69(1) of the to 13th respondents in the circumstances therein.
Constitution. The perpetrators were not agents of the State and
6. There was nothing placed before the court to show the petitioners themselves had not placed anything
that the police officers stationed at a roadblock a few before the court to demonstrate any measures if any
meters from the turn off leading to the petitioner’s that they took to protect the parcels of land allocated
land had any prior knowledge of the illegal sand to themselves by the State from trespassers such as
harvesting before it commenced and/or that any the 1st to 13th respondents.
official report was made to the police and that they 11. While the 15th respondent did not enter appearance
failed to act on the complaint. and or respond to the petition, nothing was placed
7. It was a fundamental principle of law that a litigant before the court to demonstrate that the 15th
bore the burden (or onus) of proof in respect of respondent had collected any cess from the site.
the propositions he asserted to prove his claim. There was no evidence of any cess levied by the
Decisions on violation of constitutional rights 15th respondent at the site or anywhere else for that
should not be made in a factual vacuum. To attempt matter.
to do so would trivialize the Constitution and 12. From a copy of a letter dated February 24, 2016,
inevitably result in ill-considered opinions. The written by the petitioners’ former advocates and
presentation of clear evidence in support of violation addressed to the 15th respondent, it was evident that
of constitutional rights was not, a mere technicality; the parties had been engaged in some correspondence
rather, it was essential for a proper consideration over the 1st petitioner’s parcel of land. A reading
of constitutional issues. Decisions on violation of of the said letter informed the court that it was in
constitutional rights could not be based upon the response to a request from the 15th respondent
unsupported hypothesis. to be provided with a list of the vehicles said to
8. The general constitutional and statutory duty of have extracted sand from the parcel of land. That
the Government or police to provide security to an was because neither the letter dated December 30,
individual citizen or his property only crystalized in 2015, from the 15th respondent nor the petitioners
special individualized circumstances such as where advocate’s letter dated January 20, 2016, had been
a citizen had made an individual arrangement with exhibited in the proceedings to enable the court to
the police, or some form of privity existed or where discern the clear contents thereof.
from the known individual circumstances, it was 13. From the tone of the letter dated February 24,
reasonable for the police to provide protection for 2016, the question as to whether or not the 15th
the person or his property. Otherwise, imposing a respondent had collected any cess from the listed
limitless legal duty to the Government to provide lorries remained at best speculative some four
security to every citizen and his property in every months before the petition was filed. It was not clear
43
who had seen the lorries and made a record of the Petition partially allowed; costs of and incidental to the peti-
listed vehicles. tion to be borne by the 1st to 13th respondents.
14. The Norwich Pharmacal principles applied where
an innocent third party had information relating Orders:
to unlawful conduct and in such circumstances, the
court was enjoined to compel such third party to i. A permanent order of injunction was issued restraining
assist the person suffering damage by giving them the 1st to 13th respondents, their servants and or agents
that information. There was however nothing from harvesting sand from the suit land.
placed before the court to demonstrate that the 15th ii. A permanent order of injunction was issued restraining
respondent was possessed of such information. the 1st to 13th respondents, their servants and/or agent
15. The valuation report dated July 30, 2018 did not or anyone of them from damaging the mud flats, the
give the source of the figures used by PW2 and it sand dunes, fresh water pools and marshes, brushy
was not clear how he came to the conclusion on woodland, and the tidal land that formed the Sabaki
the number of tonnes of sand mined per day or River Estuary and its immediate environs.
even how he ascertained what he described as the iii. A judicial review order of mandamus was issued directed
fair market price for a ton of sand. The court was upon the 1st to 13th as well as the 18th respondents to
enjoined to examine the expert’s testimony in terms prepare and file an environmental impact assessment
of its rationality and internal consistency in relation report on the effects of the sand mining activities on
to all the evidence presented. the Sabaki River Estuary and its immediate environs
16. The court could not just allow an expert to present within six (6) calendar months form the date thereof.
his conclusion without presenting the analytical iv. An environmental restoration order was issued against
process by which the conclusion had been reached. the 1st to 13th respondents jointly and severally to, at
There was no evidence to support the alleged their own cost restore the environment to as near as
quantity of sand mined, the alleged number of days it could be to its original state prior to their actions
of mining and the stated sum of Kshs 45,910,000. complained of therein.
17. PW2 described himself as an expert property valuer v. An order of judicial review was issued directed at
and told the court he was a registered property valuer the 18th respondent requiring them to produce
and a graduate in land economics and statistics. environmental management plan for the Sabaki River
He was certainly neither a quantity surveyor nor Estuary with a view to prevent and control degradation
an expert in environmental impact assessment. of the Sabaki River Estuary as provided under
While his report was titled “Valuation Report of regulation 26 of the Environmental Management and
Sabaki Marereni Illegal Sand Mining and Extent Coordination (Wetlands, River Banks, Lake Shores and
of Destruction of Environment,” the court was not Sea Shore Management) Regulations, 2009.
persuaded that he was skilled enough in the area of
mining of sand or matters environment to be guided
by his opinion.
44
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Hon. Julius K. Ng’arng’ar This service has enabled me follow outcomes

CM-Kitale Law Courts. from previous stations with much ease.
Be blessed-Kenyalaw.
Hon. Justice Fred Thank You for making available to me, the
Ochieng’ Ruling by the Court of Appeal.
Presiding Judge
Kisumu High Court
Hon. Rosaline Adhiambo Thank you very much for sharing the decision with
Aganyo me.
SRM - Milimani Law
Courts
Hon. Robert M. Received with gratitude.

Oanda God bless .
PM - Kilgoris Law
Courts
Hon. Justice Byram

Ongaya Thank you for the caseback.
ELC, Mombasa
45
Legislative Updates
This article provides a summary of Legislative Supplements published in the Kenya Gazette on matters of general public
importance for the period between 1st day of March,2021 to 31st day of May, 2021.
By Brian Kulei, Laws of Kenya Department
DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
5th March, 2021 12 The Income Tax Act(Cap. The Cabinet Secretary for National Treasury and
470) Exemption, 2021 Planning in the exercise of the powers conferred by
section 13 (2) of the Income Tax Act directs that the
income which accrued in or was derived from Kenya
(L.N. 24/2021) by Spanish companies, Spanish consultants and Spanish
employees involved in—(a) the construction of the
Rabai — New Bamburi — Kilifi and New Bamburi —
Bamburi Cement Power Generation and Evacuation
Lines; and (b) the New Bamburi Cement Substation,
Extension of the Existing Rabai, Bamburi and Kilifi
Substations Project, shall be exempt from withholding
tax.
5th March, 2021 12 The Land Registration The Cabinet Secretary for Land and Physical Planning,
Act(No. 3 of 2012) in the exercise of the powers conferred by section 6 (1)
The Land Registration (Land of the Land Registration Act, 2012, in consultation with
Registration Units) Order, the National Land Commission, the Kajiado County
2021 Government and the Machakos County Government
makes the following Order The areas are constituted to
be land registration units.
Land Registra- Land Registry County
(L.N. 25/2021) tioin Unit
Olepolos Kajiado West Kajiado
Loitoktok Kajiado South Kajiado
Kithimani Yatta Machakos
5thMarch, 2021 12 The Partnership Act(No. 16 The Attorney-General in the exercise of the powers
of 2012) conferred by section 1 of the Partnerships Act, 2012
appoints the 8th March, 2021 as the date on which the
Commencement Partnerships Act, 2012 shall come into operation.
(L.N. 26/2021)
9 July, 2021
th
74 The Tax Procedures The Cabinet Secretary for the National Treasury and
(Settlement of Tax Disputes Planning in exercise of the powers conferred by section
out of court or Tribunal) 112 of Tax Procedures Act, 2015, makes the Settlement
Regulations, 2020 of Tax Disputes out of court or Tribunal Regulations
(L.N. 123/2020)
30th June, 2020 66 The Excise Duty Regulations, The Cabinet Secretary for the National Treasury and
2020 Planning in exercise of the powers conferred by section
45 of Excise Duty Act, 2015, makes Excise Duty
Regulations, Regulations.
(L.N. 113/2020)
46
25th March, 2021 14 Microfinance Bank Act (Sa- The Cabinet Secretary for the National Treasury and
laam African Bank) Exemp- Planning in exercise of the powers conferred by section
tion, 2021 19 (3) of the Microfinance Act, 2006 Exempts Salaam
African Bank from the provisions of section 19 (1)
(LN 29/2021) of the Act, for a period of four years, in connection
with the acquisition and direct or indirect holding of
ordinary shares in Uwezo Microfinance Bank Limited.
30th April, 2021 34 The County Allocation The Cabinet Secretary for the National Treasury and
Revenue Act - Conditional Planning in exercise of the powers conferred by section
Allocations for Disbursement 5 (2) (e) (iii), provides for the allocation of specified
to eligibility County Govern- amounts specified to be disbursed to the respective
ments county governments specified under the Kenya Urban
Support Programme- Urban Development Grants
(KUSP-UDG) to be spent on capital investments for
(L.N. 71/2021) the Financial Year 2020/2021.
30th April, 2021 34 The National Hospital Insur- The National Hospital Insurance Fund Board of
ance Fund Act -Approval of Management, in consultation with the Cabinet
Rebates Secretary for Health and in exercise of the powers
conferred by section 27 of the National Hospital
Insurance Fund Act, 1998, has approved the rebates for
(L.N. 72/2021) the specified hospitals..
30th April, 2021 33 National Hospital Insurance The National Hospital Insurance Fund Board of
Fund Act (Declaration of Management in exercise of the powers conferred by
Hospitals), 2021 section 30(1) of the National Hospital Insurance
Fund Act, 1998 and in consultation with the Cabinet
Secretary for Health and the Chairman of the Medical
(LN. 65/2021) Practitioners and Dentists Board, declares specific
hospitals to be hospitals for purposes of the Act.
National Hospital Insurance The National Hospital Insurance Fund Board of Man-
Fund Act (Revision of Re- agement in exercise of the powers conferred by Section
bates)(Change of Contract), 27 of the National Hospital Insurance Fund Act No. 9
2021 of 1998 and in consultation with the Cabinet Secretary
for Health, has revised the rebates of the hospitals as
provided for in this legal notice.
(LN. 66/2021)
National Hospital Insur- The National Hospital Insurance Fund Board of

ance Fund Act (Revision of Management in exercise of the powers conferred by
Rebates), 2021 section 27 of the National Hospital Insurance Fund
Act and in consultation with the Cabinet Secretary
(LN 67/2021) for Health, has revised the rebates for the hospitals
specified in this legal notice and for purposes of the Act.
National Hospital Insurance Notification for general information of the public that
Fund Act (Change of Loca- the hospital set out in this legal notice has changed its
tion) Schedule, 2021 locations
(LN. 68/2021)
National Hospital Insurance The National Hospital Insurance Fund Board of
Fund Act (Revocation of Management in exercise of the powers conferred by
Declared Hospital)(Facility section 30(3) of the National Hospital Insurance
for Degazettement), 2021 Fund Act, 1998, and in consultation with the Cabinet
Secretary for Health revokes the declaration of the
(LN 69/2021) hospital specified in this legal notice and for the
purposes of the Act.
47
7th April, 2021 22 The National Hospital The National Hospital Insurance Fund Board of
Insurance Fund Act - Management in exercise of the powers conferred by
Revision of Rebates section 27 of the National Hospital Insurance Fund
Act, 1998, in consultation with the Cabinet Secretary
for Health, has revised the rebates for the specified
hospitals for purposes of the Act.
(LN.42/2021)
The National Hospital The National Hospital Insurance Fund Board of
Insurance Fund Act - Management in exercise of the powers conferred by
Declaration of Hospitals section 30 (1) of the National Hospital Insurance
Fund Act, 1998, and in consultation with the Cabinet
(LN.41/2021) Secretary for Health and the Chairman of the Kenya
Medical Practitioners and Dentists Board, declares the
hospitals to be hospitals for purposes of the Act.
To view the list of the listed hospitals, please visit www.kenyalaw.org, click on the Laws of Kenya tab that
leads you to Legal Notices section.
31st March, 2021 19 The National Aids Control President Uhuru Kenyatta, President and Commander-
Council (Amendment) Order, in-Chief of the Kenya Defence Forces, in exercise
2021 of the powers conferred by section 3(1) of the State
Corporations Act, makes The National Aids Control
Council (Amendment) Order, 2021
(LN.36/2021)
5th March, 2021 13 The Public Finance The Cabinet Secretary for the National Treasury in
Management (National exercise of the powers conferred by section 24 (4) of
Drought Emergency Fund) the Public Finance Management Act, 2012, makes
Regulations, 2021 the Public Finance Management (National Drought
Emergency Fund) Regulations, 2021.
(LN. 27/2021)
7th February,2021 8 The National Youth Service The Cabinet Secretary for Public Service and Gender
(Disposal of Uniforms and in exercise of the powers Conferred by Section 64(1)
Decorations) Regulations, (G) of The National Youth Service Act, 2018 Makes
2020 the National Youth Service (Disposal of Uniforms and
Decorations) Regulations, 2020.
(LN.13/2021)
7th February,2021 8 The National Youth Service The Cabinet Secretary for Public Service and Gender in
(Stakeholder Engagement) Exercise of the Powers Conferred by Section 64 of The
Regulations, 2020 National Youth Service Act, 2018 makes The National
Youth Service (Stakeholder Engagement) Regulations,
2020.
(LN.12/2021)
7 February,2021
th
8 The National Youth The Cabinet Secretary for Public Service and Gender
Service (Missing Officers) in exercise of the powers conferred by section 64(1) (h)
Regulations, 2021 of the National Youth Service Act, 2018, makes the
National Youth Service (Missing Officers) Regulations,
(LN.11/2021) 2021.
7th February,2021 8 The National Youth Service The Cabinet Secretary for Public Service and Gender in
(Limitation of Fundamental exercise of the powers conferred by section 64(1) of the
Rights and Freedoms) National Youth Service Act, 2018, makes the National
Regulations, 2020 Youth Service (Limitation Of Fundamental Rights And
Freedoms) Regulations, 2020.
(LN.10/2021)
7th February,2021 8 The National Youth The Cabinet Secretary for Public Service and Gender
Service (Board of Inquiry) in exercise of the powers conferred by section 60 (4)
Regulations, 2021 and 64 (1)(k) of the National Youth Service Act, 2018,
makes the National Youth Service (Board of Inquiry)
(LN.9/2021) Regulations, 2021.
48
7th February,2021 8 The National Youth Service The Cabinet Secretary responsible for Public Service
(Disciplinary Procedure) and Gender in exercise of the powers conferred by
Regulations, 2020 section 64(1Xi) of the National Youth Service Act,
2018, makes the National Youth Service (Disciplinary
(LN. 8/2021) Procedure) Regulations, 2020.
5th February, 2021 7 The National Construction The National Construction Appeals Board in exercise
Appeals Board Rules, 2021 of the powers conferred by section 28 of the National
Construction Authority Act makes The National
(LN. 7/2021) Construction Appeals Board Rules,2021.
13th October, 108 The Registration of Persons The Cabinet Secretary for Interior and Co-ordination
2020 (National Integrated Identity of National Government in exercise of the powers
Management system) Rules, conferred by section 16 of the Registration of Persons
2020 Act, makes The Registration of Persons (National
Integrated Identity Management system) Rules, 2020.
(LN. 195/2020)
22nd
November, 62 Guidelines for delivery by The Speaker of the National Assembly and the Speaker
2019 the County Assemblies to the of the Senate pursuant to the provisions of Article 257
Speakers of the two Houses of the Constitution hereby make the Guidelines for
of Parliament of a draft Bill delivery by the County Assemblies to the Speakers of
for the Amendment of the the two Houses of Parliament of a draft Bill for the
Constitution by popular Amendment of the Constitution by popular initiative,
initiative, 2019 2019.
(LN. 175/2019)
19th February, 9 The Export Processing Zones The Cabinet Secretary for Industrialization, Trade
2021 Act - Declaration of Export and Enterprise Development in exercise of the powers
Processing Zone. conferred by section 15(1) of the Export Processing
Zones Act declares the piece of land known as MN/
III/821 measuring approximately 1.079 Hectares
situated in North of Mtwapa Creek, Kilifi County,
(LN.14/2021) specified in the schedule to be an Export Processing
Zone.
26th February, 10 The Income Tax Act – The Cabinet Secretary for National Treasury and
2021 Exemption Planning in exercise of the powers conferred by section
13 (2) of the Income Tax Act, directs that the income
which accrued in or was derived from Kenya by
Japanese companies, Japanese consultants and Japanese
employees involved in the projects under the Financing
Agreements specified in the second column of the
Schedule that were signed on the corresponding dates
specified in the second column of the Schedule shall be
(LN. 15/2021) exempt from income tax to the extent specified in the
Financing Agreements.
49
Legal Supplements
By Brian Kulei, Laws of Kenya Department.
This is a synopsis of Acts of Parliament and Bills introduced in both the National Assembly and the Senate. This legislative
update covers the period between 1st day of March, 2021 and 31st May, 2021.
A. ACTS OF PARLIAMENT
Act EARLY CHILDHOOD EDUCATION ACT, 2021

Act No. 3 of 2021
Assent Date 22nd March, 2021
Commencement Date: 9th April, 2021
Objective The principal object of this Act is to provide a framework for the implementation
of early childhood education by the county government in line with its functions as
set out under the Fourth Schedule of the Constitution. The Act also confers various
obligations on the county governments, parents or guardians and head teachers in
ensuring that the right to early childhood education is realised.
It further amends the Basic Education Act (No. 14 of 2013).
Act BUSINESS LAWS (AMENDMENT) (NO. 2) ACT, 2021
Act No. 1 of 2021
Assent Date. 30th March, 2021
Comemencement 30th March, 2021
Objective This Act makes amendments to the following statutes to facilitate the ease of doing
business in Kenya:
1. Law of Contract Act (Cap. 23)
2. Stamp Duty Act (Cap. 480)
3. National Hospital Insurance Fund Act (No. 9 of 1998)
4. National Social Security Fund Act (No. 45 of 2013)
5. Industrial Training Act (Cap. 237)
6. Companies Act (No. 17 of 2015)
7. Insolvency Act (Act No. 18 of 2015).
Act THE SUPPLEMENTARY APPROPRIATION ACT, 2021

Act No. 4 of 2021
Assent Date: 30th March, 2021
Commencement Upon publication in the Gazette
Objective The principal object of this Act of Parliament is 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, 2021, and to appropriate.
Act EMPLOYMENT (AMENDMENT) ACT, 2021
Act No. 2 of 2021

Assent Date: 30th March, 2021
Commencement 15th April, 2021
Objective The principal objective of this Act is to amend the Employment Act, 2007 in order
to provide for leave to pre-adoptive parents who apply for the adoption of children
who are not their natural children born to them by birth.
50
B. SENATE BILLS
SENATE BILL TREATY MAKING AND RATIFICATION (AMENDMENT) BILL, 2021

Dated 22nd March, 2021
Objective The purpose of the Bill is to amend the Treaty Making and Ratification Act, No. 45
of 2012, in order to set out the role of the Senate in the treaty making and ratifica-
tion process. The Constitution of Kenya at Article 2(6) states that “any treaty or
convention ratified by Kenya shall form part of the law of Kenya under this Con-
stitution”. Pursuant to Article 94(1) of the Constitution, the legislative authority of
the Republic is derived from the people and, at the national level, is vested in and
exercised by Parliament. Further, Article 94(5) provides that “no person or body,
other than Parliament, has the power to make provision having the force of law
in Kenya except under authority conferred by this Constitution or by legislation”.
Parliament consists of both the National Assembly and the Senate. Consequently, the
function of considering and approving the ratification of treaties is a function that
resides in both Houses of Parliament in exercise of their shared legislative authority
under Article 94 of the Constitution. The proposed amendments to the Treaty Mak-
ing and Ratification Act are therefore intended to bring the provisions of the Act into
conformity with the letter and spirit of the Constitution.
Sponsor Fatuma Adan Dullo, Senator.
SENATE BILL LAW OF SUCCESSION (AMENDMENT) BILL, 2021
Dated 12th March, 2021
Objective This Bill seeks to amend the Law of Succession Act (Cap. 160) to provide for gender
equity in succession matters. The Bill seeks to ensure that a widow and widower lose
their life interest in the whole of the remainder of the net intestate estate once they
re-marry. The Bill further seeks to exclude community land from the ambit of succes-
sion.
Sponsor Abshiro Halake, Senator.
SENATE BILL PRESERVATION OF HUMAN DIGNITY AND ENFORCEMENT OF ECO-
NOMIC AND SOCIAL RIGHTS BILL, 2021
Dated 23rd March, 2021
Objective The principal object of this Bill is to give effect to Article 43 of the Constitution in
order to ensure the preservation of human dignity as set out under Article 19 of the
Constitution. This Bill also seeks to establish a framework for national monitoring,
benchmarking and evaluation of progress made in fulfilling economic and social
rights by all actors in the Republic of Kenya
Sponsor Abshiro Halake,Senator.
SENATE BILL PERSONS WITH DISABILITIES (AMENDMENT) BILL, 2020
Dated 13th August, 2020
Objective This Bill proposes to bestow upon the County Executive Committee Member for the
time being in charge of matters relating to persons with disability the responsibility
to advise on and put in place measures to ensure the socio-economic development of
persons with disability in the county. The Bill further proposes to review the mem-
bership of the National Council for Persons with Disability to include a nominee
of the Council of County Governors in order to make the workings of the Council
more efficient and representative.
Sponsor Isaac Mwaura & Aaron Cheruiyot,Senators
51
SENATE BILL COUNTY STATISTICS BILL, 2021

Dated 10th February, 2021
Objective The principal objective of this Bill is to provide for the establishment, in each county
government, of a county statistics office headed by a county statistician. The Bill also
provides for the establishment of a National Consultative Committee on Statistics for
purposes of ensuring the implementation of uniform standards and methodologies in
the country. Finally, the Bill provides for the collection, access to and usage of statis-
tical information, in line with the Access to information Act (No. 31 of 2016) which
shall protect the integrity of the statistical data relating to a county.
Sponsor Haji Farhiya Ali, Senator
SENATE BILL STREET VENDORS (PROTECTION OF LIVELIHOOD) BILL, 2021
Objective The principal object of this Bill is to provide a framework to regulate the business of
street vending in the country.
Sponsor Abdullahi Ibrahim Ali,
Chairperson, Standing Committee on Tourism, Trade and Industrialization.
SENATE BILL PANDEMIC RESPONSE AND MANAGEMENT BILL, 2021
Objective This Bill seeks to provide a framework for the effective response to and management
of a pandemic in order to prevent the occurrence or spread of a pandemic when-
ever it arises. It also seeks to provide measures to mitigate against the effects of the
pandemic and provide a mechanism to cushion those that may be adversely affected
by the pandemic
Sponsor Johnson Sakaja, Senator.
SENATE BILL COUNTY VOCATIONAL EDUCATION AND TRAINING BILL, 2021
Objective This Bill seeks to put in place a legal framework to govern the establishment and
management of vocational education and training with the county. The Bill seeks to
provide for the procedure for the establishment and registration of vocational educa-
tion and training centres, the management of vocational education centres, and the
standards and quality of education and training
Sponsor Milgo Alice,
Chairperson, Standing Committee on Education.
SENATE BILL BASIC EDUCATION (AMENDMENT) BILL, 2021

Objective This Bill seeks to amend the Basic Education Act (No. 14 of 2013) to ensure that
school going children in Kenya are provided with milk. Through this amendment,
the national government shall be required through the respective County Directors
of Education to supply milk to all pupils in Kenya.
Sponsor Beatrice Kwamboka, Senator
SENATE BILL COMMUNITY GROUPS REGISTRATION BILL, 2021
Dated 30th April, 2021
Objective This Bill is intended to provide a regulatory framework for the mobilization,
registration, Co-ordination and regulation, of community Groups and for connected
purposes. It is divided into seven Parts, forty-one clauses and two Schedules.
Sponsor Samuel Poghisio, Senate Majority Leader.
52
SENATE BILL SUSTAINABLE WASTE MANAGEMENT BILL, 2021

Objective The principal object of the Bill is to establish the legal and institutional framework
for the sustainable management of waste; the realisation of the constitutional provi-
sion on the right to a clean and health environment. The Bill is divided into 9 Parts
and runs to 32 clauses and one Schedule.
Sponsor Samuel Poghisio, Senate Majority Leader.
SENATE BILL SALARIES AND REMUNERATION COMMISSION (AMENDMENT) BILL,

2020
Dated 4th December, 2020
Objective The principal object of this Bill is to amend sections 7 and 9 of the Salaries and Re-
muneration Act, No. 10 of 2011, to provide for notification of the expiry of term for
Commissioners in the Gazette and to provide for timelines for the filling of vacancies
in the Commission upon the expiry of term for Commissioners. This is in view of
the fact that the Salaries and Remuneration Act does not provide for timelines for
the process of selection of the Commissioners by the various nominating bodies set
out under Article 230 (2) (b) and (c) of the Constitution. There is therefore need for
the law to be amended to clearly specify the timelines for the nomination process to
ensure that the vacancies are filled as soon as possible, upon the expiry of term for
the existing Commissioners. Further, under section 9 of the Salaries and Remunera-
tion Commission Act, the “expiry of term for commissioners” is not listed as one
of the grounds for vacancy in the office of commissioner or chairperson. As such,
there is no express requirement for notification of a vacancy, resulting from expiry of
term, in the Gazette within fourteen days, as is provided for vacancies arising from
the circumstances contemplated under section 9 (I). A notification of vacancy in the
Gazette is necessary to prompt the simultaneous nomination processes by all bodies
required to nominate Commissioners to the Salaries and Remuneration Commission.
Sponsor Charles Kibiru,
Chairperson, Committee on Finance and Budget.
C. NATIONAL ASSEMBLY BILLS
NATIONAL ASSEMBLY IRRIGATION (AMENDMENT) BILL, 2021

BILL
Objective The principal object of the Bill is to make amendments to the Irrigation Act, 2019
and for connected purposes.
Sponsor Amos Kimunya, Leader Of Majority.
NATIONAL ASSEMBLY COMPUTER MISUSE AND CYBERCRIMES (AMENDMENT) BILL, 2021
BILL
Objective The principal object of this Bill is to amend the Computer Misuse and Cybercrimes
Act (No. 5 of 2018) to provide for the prohibition against the sharing of pornog-
raphy through the internet. The Bill further seeks to prohibit the use of electronic
mediums to promote terrorism, extreme religious or cult activities. The Bill also
seeks to provide an additional function of the National Computer and Cybercrimes
Co-ordination Committee which is to recommend websites that may be rendered
inaccessible within the country.
Sponsor Aden Duale,
Member of Parliament, National Assembly
53
NATIONAL ASSEMBLY KENYA ROADS (AMENDMENT) BILL, 2021

BILL
Objective This Bill seeks to amend the Kenya Roads Act (No. 2 of 2007) to align the Act with
the provisions of the Constitution with regard to the auditing functions of the Office
of the Auditor-General. The Act currently refers to the defunct office of the Control-
ler of Budget and the Auditor-General. The Bill further seeks to amend the term of
office of and the qualification for the Director-General of the Kenya Roads Board
appointed under the Act.
Sponsor David Pkosing,
Chairperson, Transport, Public Works and Housing Committee
NATIONAL ASSEMBLY COFFEE BILL, 2021

BILL
Objective The principal object of this Bill is to provide for the development, regulation and
promotion of the coffee industry, to provide for establishment, powers and functions
of the Coffee Board of Kenya. Further, the Bill provides for the Coffee Research
Institute, functions of the Coffee Research Institute, operations of the Institute,
Council of the Coffee Research Institute and the role of the Council.
NATIONAL ASSEMBLY FINANCE BILL, 2021
BILL
Dated 5th May, 2021
Objective This Bill seeks to amend the law relating to various taxes and duties. The Bill also seeks
to amend the following laws:
1. Capital Markets Act (Cap. 485A)
2. Insurance Act (Cap. 497)
3. Kenya Revenue Authority Act (No. 2 of 1995)
4. Retirement Benefits Act (No. 2 of 1997)
5. Central Depositories Act (No. 2 of 2000
Sponsor Gladys Wanga,
Chairperson, Departmental Committee on Finance and National Planning.
NATIONAL ASSEMBLY TAX APPEALS TRIBUNAL (AMENDMENT) BILL, 2021
BILL
Dated 3rd May, 2021
Objective The purpose of the Bill is to amend the Tax Appeals Tribunal Act, 2013 to address
the challenges affecting the performance of the Tax Appeals Tribunal to facilitate the
expedition of tax disputes in the country.
NATIONAL ASSEMBLY DIVISION OF REVENUE BILL, 2021
BILL
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 government 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.
Sponsor Kanini Kega,
Chairperson, Budget and Appropriations Committee.
54
NATIONAL ASSEMBLY NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND

BILL (AMENDMENT) BILL, 2021
Dated 23rd February, 2021
Objective The principal objective of this Bill is to amend the National Government Constitu-
encies Development Fund Act, 2015 to provide for the opening and operating of
constituency accounts in order to facilitate third party transactions. The proposed
amendment shall facilitate timely and efficient disbursement of funds to constituen-
cies and establish structures for the efficient and prudent management of the Fund.
Sponsor Wafula Wamunyinyi,
Member of Parliament, National Assembly
NATIONAL ASSEMBLY PUBLIC PRIVATE PARTNERSHIPS BILL, 2021

BILL
Dated 26th February, 2021
Objective The principal object of this Bill is to provide for the participation of the private sector
in the financing, construction, development, operation or maintenance of infrastruc-
ture or development projects through public private partnerships and to streamline the
regulatory framework for public private partnerships. Further, the Bill seeks to repeal
the Public Private Partnerships Act, 2013 (No. 15 of 2013).
Sponsor Amos Kimunya,
Leader of the Majority Party, National Assembly
NATIONAL ASSEMBLY FOREIGN SERVICE BILL, 2021

BILL
Objective The principal object of this Bill is to provide for the establishment, management,
administration, accountability and functioning of a professional foreign service of the
Republic of Kenya.
Sponsor Katoo Ole Metitto,
Chairperson, Defence and Foreign Relations Committee.
NATIONAL ASSEMBLY COMMUNITY GROUPS REGISTRATION BILL, 2021

BILL
Dated 5th May, 2021
Objective The Community Groups Registration Bill, 2021 is intended to provide a regulatory
framework for the mobilization, registration, co-ordination and regulation of com-
munity groups; and for connected purposes.
Sponsor AMOS KIMUNYA,Leader of Majority Party.
NATIONAL ASSEMBLY SUPPLEMENTARY APPROPRIATION BILL, 2021

BILL
Dated 22nd March, 2021
Objective The Supplementary Appropriations Bill, 2021 makes provision for giving statutory
sanction for public expenditure for the year ending on the 30th June, 2021 on the
basis of the Supplementary Estimates for the financial year 2020/21 and for the ap-
propriation of those amounts.
Sponsor Kanini Kega,
Chairperson, Budget and Appropriations Committee.
55
International
Jurisprudence
The Supreme Court of Appeal of Malawi holds the death penalty sentence as
unconstitutional for being a derogation from the right to life and thus impermissible
KIhoviwa v Republic
MSCA Miscellaneous Criminal Appeal No 12 of 2017
Supreme Court of Appeal of Malawi
AKC Nyirenda, CJ; EB Twea, JM Ansah, RR Mzikamanda, AC Chipeta, LP Chikopa, FE Kapanda, DF
Mwaungulu, AO Kamanga, SCJJA
April 28, 2021
Reported by Faith Wanjiku
Statutes – interpretation of statutes – interpretation of sentence of death for murder, was unconstitutional. The
section 210 of the Malawi Penal Code – where section Supreme Court of Appeal fully considered the grounds
section 210 of the Malawi Penal Code provided for the death of appeal and found that the trial court did not err when
sentence which violated the sanctity of life - whether section directing the jury on the defence of provocation and
210 of the Penal Code of Malawi was unconstitutional for indeed confirmed that the defence was not applicable.
abolishing a Part IV right and being a derogation from The Supreme Court of Appeal found that the appellant
the right to life hence impermissible - Constitution of the pursued the deceased, who was unarmed and running
Republic of Malawi, sections 5, 16, 44, 45 and 46; Penal away from a fight, and fatally stabbed him. For the said
Code of Malawi,1994, section 210 reasons the Supreme Court of Appeal found that the
Statutes – interpretation of statutes – interpretation conduct of the appellant and his colleague was inexcusable
of legislative provisions alleged to have infringed on and confirmed the death sentence.
constitutional rights – what was the proper way of There was no reference, in that judgment, that the President
interpreting a legislative provision alleged to have infringed commuted the sentence of death to imprisonment for life.
on constitutional rights – Constitution of the Republic of The Supreme Court of Appeal was not made aware that
Malawi, sections 44, 45, 46 and 108 the appellant’s sentence of death had been commuted by
Constitutional Law –sentences – constitutionality of the President. The appellant then brought the case again
sentences – where courts were required to pass sentences before the High Court seeking a sentencing re-hearing on
especially those with restrictions on them - what was required the basis of the decision of the Supreme Court of Appeal
of the courts when considering that a particular sentence was in the case of Maclemonce Yasin v The Republic (Yasin). The
not unconstitutional High Court refused to grant him a sentence rehearing on
the grounds stated by the Supreme Court of Appeal. The
Brief facts
appellant then appealed for a sentence rehearing at the
The appellant and another, who was not brought to Supreme Court of Appeal.
trial, were charged at the High Court with the offence
Issues
of murder. He was convicted on September 16, 2003
i. Whether section 210 of the Penal Code of Malawi
and sentenced, under section 210 of the Penal Code
was unconstitutional for abolishing a Part IV right
then, to a mandatory sentence of death. The sentence
and being a derogation from the right to life hence
of death was commuted, by the President, to a sentence
impermissible.
of imprisonment for life on April 9, 2004. In 2007, the
ii. What was required of the courts when considering
appellant appealed against the conviction and death
that a particular sentence was not unconstitutional?
sentence to the Supreme Court of Appeal. The ground
iii. What was the proper way of interpreting a legislative
of appeal, against the conviction, was that the trial court
provision alleged to have infringed on constitutional
did not fully explain the possible defence of provocation
rights?
to the jury.
Relevant provisions of the law
The ground of appeal against the death sentence was based
on the decision in the case of Kafantayeni and Others v Constitution of the Republic of Malawi 1994 as
The Attorney General (Kafatanyeni); that the mandatory amended to 2017
56
Section 5 –Supremacy of this Constitution Constitution, did not subject, as it should, section
Any act of Government or any law that is inconsistent with 210 of the Penal Code to Part IV of the Constitution
the provisions of this Constitution shall, to the extent of such validation to which Part the substance and process
inconsistency, be invalid. or procedure of section 210 of the Penal Code
was a limitation (section 44 of the Constitution),
Section 16 – The Right to Life
derogation (section 45 of the Constitution) or
Every person has the right to life and no person shall be abridgment (section 46 of the Constitution).
arbitrarily deprived of his or her life:
3. Section 46 (1) of the Constitution invalidated
Provided that the execution of the death sentence imposed any legislation and action by the executive and
by a competent court on a person in respect of a criminal Government agencies that abolished a Part IV right.
offence under the laws of Malawi of which he or she has been It proscribed the legislature from making such law
convicted shall not be regarded as arbitrary deprivation of his and prohibited the executive from taking action that
or her right to life abolished a right. The Constitution, save for non-
Section 45 (1) – Derogation and public emergency derogable rights under sections 45 (1) and (2) and
No derogation from rights contained in this Chapter shall rights that could not be abridged or abolished under
be permissible save to the extent provided for by this section section 46 (1) of the Constitution, allowed limitation
and no such derogation shall be made unless there has been of rights following a certain process. Under section
a declaration of a state of emergency within the meaning of 44 (1) of the Constitution, the process began by
this section. asking whether the limitation of a Part IV right was
There shall be no derogation with regard to— by law. Rights could only be limited by law. Law,
according to the General Interpretation Act, meant
the right to life;
written law (the Constitution, Acts, subsidiary
Malawi Penal Code, 1994 legislation) and common law, customary law and
Section 210 – Punishment of Murder international law.
Any person convicted of murder shall be liable to be punished 4. International human right standards did not
with death or with imprisonment for life. necessarily mean international human right law. Not
Held by majority all standards were laws but all laws were standards.
1. Courts had a constitutional responsibility to ensure Section 44 (1) of the Constitution referred to both,
that a particular sentence was constitutional and laws and standards. They were not one and the same
was not a violation of the right against inhumane, thing. The legislature did not employ or deploy in
degrading treatment. The duty pervaded even vain the words or diction it chose to express its clear
where the sentence was fixed and a court had no will or intention. The use of the word standards,
discretion in the matter. That duty arose from the when juxtaposed with the word law was condign
Constitution. Every sentence passed was on the and soigne. It presupposed that international human
face of it unconstitutional; it involved a restriction rights standards could be reverted to other than
on, in case of a death sentence, the right to life, those standards actually set by law.
property or liberty. In considering constitutionality 5. Section 210 of the Penal Code, being a Part IV of the
of a particular sentence, courts were not exercising Constitution should have been invalidated under
discretion. They were testing constitutionality and sections 44, 45 and 46 (2) and not section 5 of the
that was not a discretion. Constitution. Or, at least, section 5 should have been
2. Mandatory was not per se unconstitutional. Section 5 invoked because the validity of a Part IV validity
of the Constitution of the Republic of Malawi 1994 was established. Section 46 of the Constitution
as amended to 2017 (Constitution), therefore, never was a comprehensive scheme where any act of law,
applied to discretion or lack of it in sentencing. That among other things, resulted in violation of the right
was because there was no constitutional provision enshrined in the Constitution.
for mandatory or discretion on sentencing in the 6. It was salutary that, for the High Court, in Kafantayeni
Constitution. The High Court however, proceeded the mandatory in the death penalty in section 210
to consider mandatory in terms of violating other of the Penal Code became unconstitutional because
rights of the Constitution, those were, the right to it violated the right to fair trial and the right
dignity under section 19, access to justice under against inhuman, degrading and cruel treatment
section 41, and fair hearing under section 42 (2) (f ) or punishment. The unconstitutionality of section
without, of course, regarding that mandatory was a 210 of the Penal Code, therefore, hinged on or
matter for the legislature. In doing so, however, the was itself a violation of the rights in Part IV of the
High Court, resorting, as it did, to section 5 of the Constitution. The invalidation of section 210 of
57
the Penal Code was, therefore, based on section those who had not yet appealed or never appealed.
46 (I) of the Constitution, rather section 5 of the Yasini should have stressed that those who had
Constitution. not appealed and wanted to raise Kafantayeni as
7. Section 46 (3) of the Constitution, therefore a ground for not imposing a death penalty would
empowered a court to make any orders that were have to apply for extension of time. Perhaps, for
necessary and appropriate to secure the enjoyment those whose appeals pended in the Supreme Court
of those rights and freedoms and where a court of Appeal, the appeals could have been withdrawn to
found that a threat existed to such right of freedom allow for applications under sections 46 (2) and 108
the court had powers to prevent or contain such (2) of the Constitution. Yasini therefore, overlooked
violation. The section, therefore had a present and that, for those whose appeals were already decided
future application. For the future, a court had to by the Supreme Court of Appeal, no appeal could
make an order that prevented future violation. lie to another court from a decision of the Supreme
For the present, a court had to make an order that Court before or after. They would, therefore, be
promoted the enjoyment of those rights. without remedy, but for an application to challenge
the Supreme Court of Appeal’s decision for
8. Section 108 (2) of the Constitution altered aspects
constitutionality. That right could not be removed
of stare decisis in some way. Section 108 (2) of
by the Supreme Court of Appeal.
the Constitution, read together with section 108
(I), empowered the High Court to review any 12. The Supreme Court of Appeal, rather than leave it to
law – legislative, precedent or customary law for prisoners to apply wanted to have all prisoners under
constitutionality. The Supreme Court of Appeal’s the death penalty to be brought to court. It was
decisions, in so long as they never considered unclear, however, why it was the duty of the Director
constitutionality, were amenable to review by the of Public Prosecutions to bring the prisoners to
High Court. When the High Court was exercising what the court renamed as a sentencing rehearing.
the section 108 (2) of the constitutional power, stare After conviction, without an appeal, the Director
decisis did not apply. The High Court’s determination of Public Prosecution was functus officio. The matter
on the constitutionality of a decision of the Supreme was properly commenced against the Attorney
Court of Appeal, however, could be appealed from. General. It was never the duty of the Director of
The High Court was bound, by stare decisis, by a Public Prosecution but other Government agencies
decision of the Supreme Court of Appeal on the to execute the sentence and, therefore, by extension,
constitutionality of its reviewed decision. the sentencing rehearing order.
9. When the High Court exercised its powers under 13. If the prisoner was not sentenced to the death
section 108 (2) of the Constitution, it was not sitting penalty under the mandatory provision of section
on appeal. The Supreme Court of Appeal therefore, 210 of the Penal Code, there would be no rehearing.
in Yasini, when stating that prisoners could appeal, That would be the case of many cases decided
could not, in relation to those whose appeals the in cognizance of Kafantayeni and Yasini and the
Supreme Court of Appeal determined, have been amendment to section 210 of the Penal Code. First,
referring to an application to the High Court under the death penalty, passed based on the defunct
section 108 (2) of the Constitution. Proceeding section 210 of the Penal Code, was tainted by the
under section 108 (2) of the Constitution, therefore, unconstitutionality discussed. Secondly, as happened
could only have been by an application. in the case, there was no evidence proffered in
mitigation. Thirdly, the Supreme Court of Appeal
10. Yasini should have stressed that the parties including
never received any evidence in mitigation. The High
those that had appealed to the Supreme Court
Court was presumptuous in suggesting that counsel
of Appeal and had their matters determined or
for the appellant provided such evidence or that such
pending, had a right to apply to the High court for
evidence could be mesmerized from the judgment.
constitutionality of the death penalty. It was not,
correct as the appellant submitted, therefore, that 14. Evidence received in mitigation had to, as it had to be,
Kafantayeni never provided a procedure for those have included any post-conviction evidence, at least
who wanted to impugn the death penalty. First, for those who were applying after being sentenced
Kafantayeni did not have to set the procedure as it was to death. The contamination of the mandatory
in sections 108 (2) and 46 (2) of the Constitution. sentence could not be atoned by the Supreme Court
Secondly, Kafantayeni actually laid the procedure, an of Appeal conducting a re-sentencing hearing itself.
application under sections 46 (2) and 108 (2) of the Ordering that prisoners should be brought in the
Constitution. High Court for resentencing, the Supreme Court of
Appeal divested itself of the power to do so. Neither
11. An appeal lay and the right to appeal only applied to
58
could that be inferred from just that the Supreme blanket release on bail was improper. Each case,
Court of Appeal said resentencing hearing should be therefore, had to be individualized. The appellant’s
in the High Court. It was a matter of principle. If case was well known. On balance, on a resentencing
the question was, as would be in all those cases, that hearing, there would be a reduction or release for
the death penalty and mandatory death penalty in the reasons advanced. All postconviction evidence,
section 210 of the Penal Code was unconstitutional, victim’s evidence etc., was in situ.
the first port of call, should, as it had to be under Per EB Twea, SCJJA (Dissenting)
sections 108 (1) and 108 (2) of the Constitution.
1. Convicts dissatisfied with their conviction and
15. To the extent that the remedy sought, a resentencing sentence had the option to appeal the conviction
hearing, arose from the constitutionality of a law, and sentence. That was what happened in the
the Supreme Court of Appeal could not be the first first appeal, in the instant case, and in the case of
to deal with it. Were constitutionality of a hearing, Yasini. In both cases the appeals against conviction
for some reason, to arise in the Supreme Court of and sentence were dismissed. The appeals against
Appeal, the Supreme Court of Appeal would all sentence were dismissed because the appellants
the same have to proffer an adequate remedy, a did not offer any arguments in mitigation of the
rehearing. That rehearing could only be in the High sentence. They just cited the decision in Kafantayeni
Court. The nature of a rehearing was that it could and or Yasini and sought a sentence rehearing.
not be subjected to stare decisis or res judicata. All Both did not succeed. It was open to the appellants
issues were open for reconsideration without the to offer submissions or apply to call evidence, in
issue estoppel arising. Commencing proceedings mitigation of sentence. None of that was done.
under section 108 (2) of the Constitution gave the In both cases therefore, the Kafantayeni and others
applicant a chance to exercise the right to appeal scenario did not apply. Notwithstanding that, the
under section 42 (2) (t) (viii) of the Constitution Supreme Court of Appeal had powers to remit a
from a decision of a court of first instance to a review case to the High Court for further hearing. Under
or appeal court. section 16 (d) of the Supreme Court of Appeal Act,
16. The Supreme Court of Appeal under section 23 of the there had to be proper arguments and justification
Legal Aid Act recommended to the Director of the for such an order.
Legal Aid Bureau that legal aid be granted to all who 2. A convict’s right to appeal was alternative to a right
were ordered for a sentence re-hearing. Ultimately, to rehearing in the sense that an appeal to the
the right in section 44 (2) of the Constitution inured Supreme Court of Appeal was by way of re-hearing.
to them. Rather than wait for the Attorney General The appellant could call evidence in mitigation of
or the Director of Public Prosecutions take up their sentence. That right could be subject to restrictions
cases, those affected, had to, if they wanted to, in for failure to call witnesses at the trial stage. However,
their own right, make an application to the High after the decision in Kafantayeni and others, the law
Court and challenge the constitutionality of the changed. The court was duty bound to take that into
death penalty and be afforded a sentence re-hearing. consideration. The appellant did not exercise that
17. The legal aid had to include an urgent and immediate option.
application to be released on bail with or without 3. The Supreme Court of Appeal did not act per
a bond. The death penalty was unconstitutional. incuriam. The death penalty was not unconstitutional.
Sections 25 (a) and section 26 in prescribing death The directive to the OPP, in the case of Yasin to call
as one of the sentences and sections 38 (1) (for up cases of convicts who were sentenced to death
treason), 63 (I) (for piracy), 133 (for rape), 210 (for under the mandatory provision was to ensure that
murder), 217A (2) (a) (for genocide) and 309 (I) and convicts, who qualified for a sentence re-hearing,
(2) (for housebreaking and burglary, respectively) should be heard. That was deemed equitable than to
of the Penal Code had to be read as meaning the place the onus on such convicts to apply for sentence
maximum prison sentence – life imprisonment. If rehearing individually.
life imprisonment became the maximum sentence,
4. The presumption at law was that a litigant was
where it was not mandatory, by fiction, it could not
properly advised, by counsel, of the legal choices
be imposed, reserved as it were for the worst instance
available and made an informed decision on how
of a crime. Courts were, therefore, likely, to pass a
to conduct the case. The conduct of the case was
prison term of years. Those who had served long
therefore directed by the litigant on advise of his or
periods of their life or long sentences were likely to
her counsel. The court could not be held responsible
get shorter terms or immediate release.
for the action taken on the advise of counsel.
18. The circumstances would be so variegated that a
5. Evidence in mitigation was anticipated under
59
the statute. The liaison between the Judiciary, the the violation of this right. Article 4, paragraph 2, of the
office of the President, the Secretary for Justice and International Covenant on Civil and Political Rights
the Committee on the Prerogative of Mercy was provides that exceptional circumstances such as internal
testimony that it was the intention of the law that political instability or any other public emergency may
the execution of the death penalty would only be not be invoked to justify any derogation from the right to
had where all stakeholders were satisfied that there life and security of the person.
were no exculpating factors. The failure to plead The Constitution of Kenya, 2010 provides for its
in mitigation of sentence, in murder cases, did not supremacy in article 2 and goes ahead to state that any
have statutory or legal backing. law, including customary law, that is inconsistent with this
6. In the instant case the President exercised his Constitution is void to the extent of the inconsistency, and
prerogative of mercy within the confines of his any act or omission in contravention of this Constitution
mandate: to commute a lawful sentence of death is invalid.
to life imprisonment. The courts had no inherent Article 23 (1) provides that the High Court has
power to review the Presidential discretion. After jurisdiction, in accordance with Article 165, to hear and
the President had exercised the prerogative of mercy determine applications for redress of a denial, violation
on April 9, 2004, it was not open to the Supreme or infringement of, or threat to, a right or fundamental
Court of Appeal or the High Court, in the absence freedom in the Bill of Rights. Article 24 provides that a
of any valid cause, to re-open the case. The result right or fundamental freedom in the Bill of Rights shall
of re-opening the case, was that the Supreme Court not be limited except by law, and then only to the extent
of Appeal’s judgment of July 1, 2010 confirmed that the limitation is reasonable and justifiable in an open
the death sentence when, in fact, the appellant’s and democratic society based on human dignity, equality
sentence had been commuted to imprisonment for and freedom, taking into account all relevant factors…
life by the President.
Article 26 goes on to state that every person has the
7. After a decision by the Supreme Court of Appeal, right to life and that a person shall not be deprived of
the appellant could not re-open the case. The life intentionally, except to the extent authorised by this
decision was final as found by the High Court. In Constitution or other written law. Lastly article 165
the present case, the final position therefore, was (3) (b) provides that the High Court has jurisdiction to
that the President, having exercised his prerogative determine the question whether a right or fundamental
of mercy, within the law, it was not open to the freedom in the Bill of Rights has been denied, violated,
appellant or any court to re-open it. infringed or threatened.
The Penal Code of Kenya, No. 81 of 1948 provides in
Appeal allowed; each party to bear its own costs section 203 as read with section 204 that any person who
Orders of malice aforethought causes death of another person
by an unlawful act or omission is guilty of murder and
i. A rehearing was ordered in the High Court and the
that any person convicted of murder shall be sentenced
Registrar of the High Court was to set a sentence
to death.
rehearing within 21 days of the order. The rest was
to apply for bail within the next 21 days. Kenya has not abolished the death penalty although it has
ruled that the mandatory nature of the death penalty is
ii. The Director of Public Prosecutions and the
unconstitutional.
Attorney General would continue to act according
to the directions in Yasini v Republic. During or In Godfrey Ngotho Mutiso v Republic [2010] eKLR, the
before a sentence rehearing, the Director of Public Court of appeal held that section 204 of the Penal Code
Prosecutions and the Attorney General could apply which provided for a mandatory death sentence was
for bail if the prisoners were willing to make bail. antithetical to the Constitutional provisions on protection
against inhuman or degrading punishment or treatment
iii. The High Court could act suo motu and consider
and fair trial. While the Constitution itself recognized the
granting bail in appropriate circumstances.
death penalty as being lawful, it did not say anywhere
Relevance to Kenya’s legal system that when a conviction for murder was recorded, only the
Under international law, article 2 of the Universal death sentence would be imposed. Section 204 would,
Declaration of Human Rights, 1948, and articles 2 to the extent that it provided that the death penalty was
and 26 of the International Covenant on Civil and the only sentence in respect of the crime of murder be
Political Rights,1966, provide that everyone is entitled inconsistent with the letter and spirit of the Constitution,
to the protection of the right to life without distinction which made no such mandatory provision.
or discrimination of any kind, and all persons shall be In Jackson Maina Wangui & another v Republic [2014]
guaranteed equal and effective access to remedies for eKLR, the High Court held that should the people find
60
that the death penalty was unacceptable, the responsibility whether the laws passed by Parliament contravened the
to abolish it lay with the people of Kenya, through Constitution.
their elected representatives. It was imperative, and as The Supreme Court further gave orders that:
soon as possible, that the ambivalence that the society
(a) The instant matter was remitted to the High Court
demonstrated towards the death penalty was resolved one
for rehearing on sentence only, on a priority basis,
way or the other.
and in conformity with the instant judgment.
This was also seen in the landmark case of Francis Karioko
(b) The Attorney General, the Director of Public
Muruatetu & another v Republic [2017] eKLR where
Prosecutions and other relevant agencies would
the petitioners’ case was that the mandatory nature of
prepare a detailed professional review in the context
the death penalty under section 204 of the Penal Code
of the instant judgment and order made with a view
jettisoned the discretion of the trial forcing it to hand
to setting up a framework to deal with sentence re-
down a sentence pre-determined by the Legislature thus
hearing cases similar to that of the Petitioners. The
fouling the doctrine of separation of powers and also
Attorney General was granted twelve (12) months
violated the right to fair trial under article 50 of the
from the date of the Judgment to give a progress
Constitution. The Supreme Court held that what section
report to the Court on the same.
204 of the Penal Code was essentially saying to a convict
was that he or she could not be heard on why, in all the (c) The judgment was to be placed before the Speakers of
circumstances of his or her case, the death sentence should the National Assembly and the Senate, the Attorney-
not be imposed on him or her, or that even if he or she General, and the Kenya Law Reform Commission,
was heard, it was only for the purposes of the record as at attended with a signal of the utmost urgency, for any
that time of mitigation because the Court had to impose necessary amendments, formulation and enactment
the death sentence nonetheless, as illustrated by various of statute law, to give effect to the judgment on
Court of Appeal decisions. The Supreme Court could the mandatory nature of the death sentence and
not decipher the possible rationale for that provision. the parameters of what ought to constitute life
A person facing the death sentence most deserved to be imprisonment.
heard in mitigation because of the finality of the sentence. The justice system globally is thus moving towards
Further it found that any court dealing with the offence abolition of the death penalty as it is a derogation of
of murder was allowed to exercise judicial discretion the right to life. Judicial systems are looking towards
by considering any mitigating factors, in sentencing an international human rights laws and standards s.
accused person charged with and found guilty of that Regionally, Malawi’s highest court has ruled on the same
offence. To do otherwise would render a trial, with the and the jurisprudential judgment is of great importance
resulting sentence under section 204 of the Penal Code, to Kenya in development of its human rights law.
unfair thereby conflicting with articles 25 (c), 28, 48 and
50 (1) and (2) (q) of the Constitution. The mandatory
nature of the death sentence provided for under section
204 of the Penal Code long predated any international
agreements for the protection of human rights. It was a
colonial relic that had no place in Kenya today. Whereas
it was the duty of Parliament to make laws, it was the
duty of the Court to evaluate, without fear or favour,
61
Uber drivers are not independent contractors but workers of Uber who are entitled to
all accruing employment rights as the transportation service they perform and offer
to passengers through the Uber app is very tightly defined and controlled by Uber.
Uber BV and others v Aslam and others
[2021] UKSC 5
Supreme Court of the United Kingdom
Reed, P; Hodge, DP; Arden, Kitchin, Sales, Hamblen & Leggatt, SCJJ
February 19, 2021
Reported by Faith Wanjiku
Employment Law – worker – definition of – where it in London and did so using the Uber app. Their claim
was contended that Uber drivers were not workers under was brought in the employment tribunal as a test case to
Uber but independent contractors performing services establish their employment status. They claimed that they
under contracts made with passengers through Uber as their were workers under the Employment Rights Act 1996,
booking agent - whether an Uber driver was a worker for the National Minimum Wage Act 1998 and the Working
the purposes of employment legislation, which gave workers Time Regulations 1998. They thus also claimed that they
rights to be paid the national minimum wage, to receive were entitled to the minimum wage, paid leave and other
annual paid leave and legal protections for workers - what legal protections.
was considered, as working time, if the drivers were workers, The Employment Tribunal found that the claimants
for the purpose of the relevant employment rights to workers satisfied the test of being workers under section 230(3)
- Employment Rights Act, 1996, section 230(3); Working of the Employment Rights Act, 1996 and worked under
Time Regulations, 1998, section 2 (1). worker’s contracts for the 2nd appellant. The Employment
Statutes – interpretation of statutory provisions – canons Appeal Tribunal and the Court of Appeal (by a majority)
of statutory interpretation – intent of the relevant statutory dismissed the appellants’ appeals who argued that the
provisions to a transaction - what was the modern approach respondents were independent, third party contractors
to statutory interpretation in order to give purpose to a and not workers hence the appeal to the Supreme Court.
particular provision). Issues
Statutes – interpretation of statutory provisions – section i. Whether an Uber driver was a worker for the
230 (3) of the Employment Rights Act – definition of worker purposes of employment legislation, which gave
- whether an Uber driver was a worker for the purposes of workers rights to be paid the national minimum
employment legislation, which gave workers rights to be paid wage, to receive annual paid leave and legal
the national minimum wage, to receive annual paid leave protections for workers.
and legal protections for workers - Employment Rights Act, ii. What was considered as working time, if drivers
1996, section 230(3) were workers, for the purpose of the relevant
Contract law – authority - principal and agent – employment rights to workers?
establishment of actual or ostensible authority through iii. What was the modern approach to statutory
a contract – where rider terms merely stated that they interpretation in order to give purpose to a
constituted an agreement between the rider, the 1st appellant particular provision?
and the relevant local Uber company and neither purported iv. Whether there could be said to be a contract
to record an agreement to which any driver was a party - established through the rider terms to which
where Uber drivers had not received nor consented to the Uber drivers were a party in order to give rise to
rider terms - whether there could be said to be a contract a contract between a rider and a driver for the
established through the rider terms to which Uber drivers provision to the rider of transportation services
were a party in order to give rise to a contract between a rider by the driver.
and a driver for the provision to the rider of transportation Relevant provisions of the law
services by the driver. Employment Rights Act, 1996
Brief facts Section 230(1) - employee
The appeal concerned the employment status of private an individual who has entered into or works under a contract
hire vehicle drivers who provided their services through of employment
the Uber smartphone application (Uber app). The Section 230(2) -contract of employment
1st appellant was a Dutch company which owned the a contract of service or apprenticeship, whether express or
technology behind the Uber app. Uber London Ltd implied, and (if it is express) whether oral or in writing.
(2nd appellant) was a UK subsidiary licensed to operate Section 230(3) – worker
private hire vehicles in London. The respondents, at the “an individual who has entered into or works under (or,
relevant times were licensed to drive private hire vehicles where the employment has ceased, worked under) -
62
(a) a contract of employment, or to [the rider] of transportation services between [the

(b) any other contract, whether express or implied and (if it rider] and the transportation provider.
is express) whether oral or in writing, whereby the individual 3. Authority could be conferred by a contract between
undertakes to do or perform personally any work or services principal and agent. It could not be said, however,
for another party to the contract whose status is not by virtue that the rider terms established a contract between
of the contract that of a client or customer of any profession or drivers and the 2nd appellant. There was no evidence
business undertaking carried on by the individual; that drivers were ever sent the rider terms let alone
and any reference to a worker’s contract shall be construed consented to them. In any case the rider terms
accordingly.” stated that they constituted an agreement between
Working Time Regulations, 1998 the rider, the 1st appellant and the relevant local
Section 2 (1) - working time Uber company: they did not purport to record
“working time”, in relation to a worker, means— an agreement to which any driver was a party. In
(a) any period during which he is working, at his employer’s accordance with basic principles of contract and
disposal and carrying out his activity or duties, agency law, therefore, nothing stated in the rider
National Minimum Wage Act 1998 terms was capable of conferring authority on the
Section 54 – Meaning of “worker”, “employee” etc. 2nd appellant to act as agent for any driver (or
(3)In this Act “worker” (except in the phrases “agency other transportation provider) nor of giving rise
worker” and “home worker”)means an individual who to a contract between a rider and a driver for the
has entered into or works under (or, where the employment provision to the rider of transportation services by
has ceased, worked under)—(a)a contract of employment; the driver.
or(b)any other contract, whether express or implied and (if 4. The only written agreements to which drivers were
it is express) whether oral or in writing, whereby the parties were agreements with the 1st appellant, the
individual undertakes to do or perform personally any Dutch parent company. No other Uber company was
work or services for another party to the contract whose status a party to those agreements. In any case, although
is not by virtue of the contract that of a client or customer clause 2.2 of the Services Agreement described what
of any profession or business undertaking carried on by the was to happen if a driver accepted a trip request
individual; and any reference to a worker’s contract shall be either directly or through an Uber affiliate in the
construed accordingly. territory acting as agent, there was no provision
Held which purported to confer the driver’s authority
1. There was no written agreement between the 2nd on any Uber affiliate to accept such requests on
appellant and drivers. In those circumstances the his behalf. An agency relationship needed not be
nature of their relationship had to be inferred from contractual. What was required was an overt act by
the parties’ conduct, considered in its relevant the principal conferring authority on the agent to
factual and legal context. It was an important act on the principal’s behalf.
feature of the context in which, as the Employment 5. The task for the tribunals and the courts was not,
Tribunal found, the 2nd appellant recruited and unless the legislation required it, to identify whether,
communicated on a day to day basis with drivers under the terms of their contracts, the claimants
that: should be paid at least the national minimum wage
a) It was unlawful for anyone in London to accept or receive paid annual leave. It was to determine
a private hire booking unless that person was whether the claimants fell within the definition of
the holder of a private hire vehicle operator’s a worker in the relevant statutory provisions so as to
licence for London; and qualify for those rights irrespective of what had been
b) the only natural or legal person involved in contractually agreed. In short, the primary question
the acceptance of bookings and provision of was one of statutory interpretation, not contractual
private hire vehicles booked through the Uber interpretation.
app which held such a licence was the 2nd 6. The modern approach to statutory interpretation
appellant. It was reasonable to assume, at least was to have regard to the purpose of a particular
unless the contrary was demonstrated, that the provision and to interpret its language, so far as
parties intended to comply with the law in the possible, in the way which best gave effect to that
way they dealt with each other. purpose. The approach required the facts to be
2. The rider terms on which Uber contracted with analysed in light of the statutory provision being
passengers included a term which stated that the 2nd applied so that if, for example, a fact was of no
appellant (or other local Uber company) accepted relevance to the application of the statute construed
private hire bookings acting as disclosed agent for the in light of its purpose, it could be disregarded. The
transportation provider (as principal) and that such ultimate question was whether the relevant statutory
acceptance gave rise to a contract for the provision provisions, construed purposively, were intended to
63
apply to the transaction, viewed realistically. from establishing a relationship with a passenger
7. It would be inconsistent with the purpose of the that might generate future custom for the driver
legislation to treat the terms of a written contract personally. Uber also fixed the amount of its own
as the starting point in determining whether an service fee which it deducted from the fares paid to
individual fell within the definition of a worker. drivers. Uber’s control over remuneration further
To do so would reinstate the mischief which the extended to the right to decide in its sole discretion
legislation was enacted to prevent. It was the very whether to make a full or partial refund of the fare
fact that an employer was often in a position to to a passenger in response to a complaint by the
dictate such contract terms and that the individual passenger about the service provided by the driver.
performing the work had little or no ability to 10. The contractual terms on which drivers performed
influence those terms that gave rise to the need for their services were dictated by Uber. Not only were
statutory protection in the first place. The efficacy drivers required to accept Uber’s standard form of
of such protection would be seriously undermined written agreement but the terms on which they
if the putative employer could by the way in which transported passengers were also imposed by Uber
the relationship was characterised in the written and drivers had no say in them.
contract determine, even prima facie, whether or 11. Although drivers had the freedom to choose when
not the other party was to be classified as a worker. and where (within the area covered by their private
Laws such as the National Minimum Wage Act hire vehicle (PHV) licence) to work, once a driver
were manifestly enacted to protect those whom had logged onto the Uber app, a driver’s choice about
Parliament considered to be in need of protection whether to accept requests for rides was constrained
and not just those who were designated by their by Uber. Unlike taxi drivers, PHV operators and
employer as qualifying for it. drivers were not under any regulatory obligation to
8. In many cases it was not in dispute that the claimant accept such requests. Uber itself retained an absolute
was doing work or performing services personally for discretion to accept or decline any request for a ride.
another person but there was an issue as to whether Where a ride was offered to a driver through the
that person was to be classified as the claimant’s Uber app, however, Uber exercised control over the
employer or as a client or customer of the claimant. acceptance of the request by the driver in two ways.
The situation in the instant case was different in that One was by controlling the information provided to
there were three parties involved: Uber, drivers and the driver. The fact that the driver, when informed
passengers. But the focus had to be on the nature of a request, was told the passenger’s average rating
of the relationship between drivers and Uber. The (from previous trips) allowed the driver to avoid
principal relevance of the involvement of third low-rated passengers who could be problematic.
parties (i.e. passengers) was the need to consider The driver was not informed of the passenger’s
the relative degree of control exercised by Uber destination until the passenger was picked up and
and drivers respectively over the service provided to therefore had no opportunity to decline a booking
them. A particularly important consideration was on the basis that the driver did not wish to travel to
who determined the price charged to the passenger. that particular destination.
It was necessary to consider who was responsible 12. The second form of control was exercised by
for defining and delivering the service provided monitoring the driver’s rate of acceptance (and
to passengers. A further and related factor was the cancellation) of trip requests. A driver whose
extent to which the arrangements with passengers percentage rate of acceptances fell below a level set by
afforded drivers the potential to market their own Uber London (or whose cancellation rate exceeded
services and develop their own independent business. a set level) received an escalating series of warning
9. The remuneration paid to drivers for the work they messages which, if performance did not improve,
did was fixed by Uber and the drivers had no say in led to the driver being automatically logged off the
it (other than by choosing when and how much to Uber app and shut out from logging back on for
work). Unlike taxi fares, fares for private hire vehicles ten minutes. That measure was described by Uber
in London were not set by the regulator. However, in an internal document quoted by the employment
for rides booked through the Uber app, it was Uber tribunal as a penalty, no doubt because it had a
that set the fares and drivers were not permitted to similar economic effect to docking pay from an
charge more than the fare calculated by the Uber employee by preventing the driver from earning
app. The notional freedom to charge a passenger less during the period while he was logged out of the
than the fare set by Uber was of no possible benefit app. Uber argued that that practice was justified
to drivers, as any discount offered would come because refusals or cancellations of trip requests
entirely out of the driver’s pocket and the delivery caused delay to passengers in finding a driver and led
of the service was organised so as to prevent a driver to customer dissatisfaction. The question, however,
64
was not whether the system of control operated by a choice among different drivers and their request
Uber was in its commercial interests, but whether it was simply directed to the nearest driver available.
placed drivers in a position of subordination to Uber Once a request was accepted, communication
which it plainly did. between driver and passenger was restricted to
13. Uber exercised a significant degree of control over information relating to the ride and was channeled
the way in which drivers delivered their services. The through the Uber app in a way that prevented either
fact that drivers provided their own car meant that from learning the other’s contact details. Likewise,
they had more control than would most employees collection of fares, payment of drivers and handling
over the physical equipment used to perform their of complaints were all managed by Uber in a way
work. Uber vetted the types of car that could be that was designed to avoid any direct interaction
used. The technology which was integral to the between passenger and driver.
service was wholly owned and controlled by Uber 16. The transportation service performed by drivers
and was used as a means of exercising control over and offered to passengers through the Uber app was
drivers. Thus, when a ride was accepted, the Uber very tightly defined and controlled by Uber. It was
app directed the driver to the pick-up location and designed and organised in such a way as to provide
from there to the passenger’s destination. Although a standardised service to passengers in which drivers
it was not compulsory for a driver to follow the were perceived as substantially interchangeable
route indicated by the Uber app, customers could and from which Uber, rather than individual
complain if a different route was chosen and the drivers, obtained the benefit of customer loyalty
driver bore the financial risk of any deviation from and goodwill. From the drivers’ point of view, the
the route indicated by the app which the passenger same factors, in particular, the inability to offer
had not approved. a distinctive service or to set their own prices and
14. A further potent method of control was the use of Uber’s control over all aspects of their interaction
the ratings system whereby passengers were asked to with passengers meant that they had little or
rate the driver after each trip and the failure of a no ability to improve their economic position
driver to maintain a specified average rating would through professional or entrepreneurial skill. In
result in warnings and ultimately in termination practice the only way in which they could increase
of the driver’s relationship with Uber. It was of their earnings was by working longer hours while
course commonplace for digital platforms to invite constantly meeting Uber’s measures of performance.
customers to rate products or services. Typically, The claimant drivers were workers who worked for
however, such ratings were merely made available Uber London under worker’s contracts within the
as information which could assist customers in meaning of the statutory definition.
choosing which product or service to buy. Under 17. The employment tribunal found that a driver was
such a system the incentive for the supplier of the working under such a contract during any period
product or service to gain high ratings was simply when he:
the ordinary commercial incentive of satisfying a) Had the Uber app switched on;
customers in the hope of attracting future business. b) was within the territory in which he was
The way in which Uber made use of customer authorised to use the app; and
ratings was materially different. The ratings were c) was ready and willing to accept trips.
not disclosed to passengers to inform their choice The Employment Tribunal was entitled to conclude
of driver: passengers were not offered a choice of that, by logging onto the Uber app in London, a
driver with, for example, a higher price charged for claimant driver came within the definition of a
the services of a driver who was more highly rated. worker by entering into a contract with Uber
Rather, the ratings were used by Uber purely as an London whereby he undertook to perform driving
internal tool for managing performance and as a basis services for Uber London. The third condition
for making termination decisions where customer identified by the tribunal that the driver was in fact
feedback showed that drivers were not meeting the ready and willing to accept trips could not properly
performance levels set by Uber. That was a classic be regarded as essential to the existence of a worker’s
form of subordination that was characteristic of contract; nor indeed did the tribunal assert that it
employment relationships. was. But it was reasonable to treat it, as the tribunal
15. Uber restricted communication between passenger did, as a further condition which had to be satisfied
and driver to the minimum necessary to perform the in order to find that a driver was working under such
particular trip and took active steps to prevent drivers a contract.
from establishing any relationship with a passenger 18. If the reality was that Uber’s market share in
capable of extending beyond an individual ride. London was such that its drivers were, in practical
When booking a ride, a passenger was not offered terms, unable to hold themselves out as available
65
to any other PHV operator, then, as a matter of employment cases and those relevant to the circumstances
fact, when they had the Uber app switched on they of the UK case include:
were working at the 2nd appellant’s disposal as part In Christine Adot Lopeyio v Wycliffe Mwathi Pere [2013]
of the pool of drivers it required to be available eKLR, the court defined a contract of service as one where
within the territory at any one time. If, however, it an employee was subordinate or under the guidance
was genuinely the case that drivers were able to also and dependence on another for their employment. The
hold themselves out as at the disposal of other PHV court went ahead to give several tests for distinguishing
operators when waiting for a trip, the same analysis a contract of employment and one a contract for service
would not apply. which include:
19. No evidence was adduced at the hearing in the a) The control test whereby a servant was a person who
employment tribunal in 2016 that there was at was subject to the command of the master as to the
that time any other app-based PHV transportation manner in which he or she did their work.
service operating in London or that drivers logged b) The integration test in which the worker was
into the Uber app were as a matter of practical reality subjected to the rules and procedures of the employer
also able to hold themselves out as at the disposal of rather than personal command. The employee
other PHV operators when waiting for a trip. No was part of the business and his or her work was
finding was made by the Employment Tribunal on primarily part of the business.
that subject. Time spent by the claimants working c) The test of economic or business reality which took
for Uber was not limited to periods when they were into account whether the worker was in business
actually driving passengers to their destinations, but on his or her own account, as an entrepreneur, or
included any period when the driver was logged worked for another person, the employer, who took
into the Uber app within the territory in which the the ultimate risk of loss or chance of profit.
driver was licensed to operate and was ready and d) Mutuality of obligation in which the parties
willing to accept trips. That therefore constituted made commitments to maintain the employment
working time for the purpose of the Working Time relationship over a period of time. A contract of
Regulations 1998. service entailed service in return for wages, mutual
Appeal dismissed. promises for future performance. The arrangement
Relevance to Kenya’s legal system created a sense of stability between the parties.
The employment sector in Kenya is legally controlled by The challenge was that where there was absence of
the Constitution of Kenya, 2010 particularly article 41 mutual promises for stable future performance, the
on labour relations’ rights which provides in sub-article worker thereby ceased to be classified as an employee
(2) that every worker has the right to fair remuneration, as would have been the case for casual workers.
reasonable working conditions, to form, join or participate The court further found under the particulars of the case
in the activities and programmes of a trade union and to that the practice between the claimant and respondent
go on strike; and the Employment Act, No. 11 of 2007. was one of a tenant collecting rent for and on behalf
The Employment Act in section 3 states that it applies to of the landlord as an ‘agent’ and which was rife and
all employees employed by any employer under a contract acknowledged. It was a contract for an occasional
of service. Section 2 provides that an employee means a service, for which the tenant was compensated by free
person employed for wages or a salary and includes an accommodation and payment of a commission. The
apprentice and indentured learner; and a contract of tenant was neither subjected to any particular rules and
service means an agreement, whether oral or in writing, procedures of the landlord, nor was there economic
and whether expressed or implied, to employ or to serve as dependence upon the landlord as the service was only
an employee for a period of time, and includes a contract part of the tenant’s economic activities. That did not
of apprenticeship and indentured learnership. confer the same definition as outlined under section 2
Part IV of the Employment Act provides that an employer of the Employment Act or the Employment and labour
shall pay the entire amount of the wages earned by or Relations Court Act, as an employment or contract of
payable to an employee in respect of work done by the service, but stood out as a contract for a service and so the
employee in pursuance of a contract of service directly. claimant did not fit into the definition of an employee.
Part V also provides for other various rights and duties In Linus Simiyu Wamalwa v Bridge International
in an employment relationship. The rights employees Academies [2018] eKLR, the court found the claimant to
working under a contract of service are entitled to include be employed under a contract of service and not as an
annual leave, sick leave, housing, medical attention, notice independent contractor under a contract for services in
of termination, all which constitute basic minimum that it was admitted by the respondent that the claimant
conditions of employment. Further to that, an employer was being paid Kshs.500 wage for every day he worked.
regulates the working hours of each employee. It was also obvious that the employer exercised control
The Kenyan judicial system has dealt with a lot of over the working of the claimant through supervision and
66
repeated instructions. It was also clear that the claimant’s statute had a key function of creating certainty in law.
time to report and leave work was fixed by the respondent Certainty in law enabled planning of human affairs in
who also provided the tools of trade (computers) and office reliance on the law, and the realisation of expectations
space. It was also clear that the claimant was restricted to based on such planning. It made for uniformity in the
work from the employers premises only under the watch administration of justice, and prevented the unbridled
of a supervisor. Finally, it was clear that issuance of staff discretion of the judiciary. It made available the tested
card, the claimant was regarded as part of the respondent’s legal experience of the past.
establishment. In Mugambi Imanyara & another v Attorney General & 5
In Charles Mutua Mwanzi v Invesco Assurance Company others [2017] eKLR, it was held that in interpreting the
Limited [2016] eKLR, the court found that even where law, the court ought to consider changing and adapting
the claimant may have been sourced and remained at the law to new and unforeseen conditions.
the service of the respondent for the court to infer an In applying generalised legal doctrine, such as statutes,
employment relationship, and despite the very well- to the facts of specific cases uncertainties and unforeseen
choreographed evidence to lead to that fact, the claimant problems arose. As conditions changed with the passage of
lifted his own cover when he admitted to having been at time, some established legal solutions become outmoded.
the service of other employers, was allocated work similar The courts should resolve those uncertainties and assist in
to work he did for the respondent for other law firms. The adapting the law to new conditions. While interpreting
claimant served such employees for service of summons the law, the Court was to bear in mind that it was to
and other court related matters. make laws when necessary to make the ends of justice.
The claimant became removed from the exclusive Legal systems world over could not grow as had been the
subordinate direction of the respondent. His employment case without a great amount of judicial law making in all
therefore was not of the nature of a contract of service, fields, Constitutional law, Common Law and statutory
rather a contract for a service as directed. Given the interpretation. However, to the extent that judges made
circumstances prevailing between the parties, they laws, they were to do so with wisdom and understanding.
did not confer employment for the claimant to earn Judges were to be informed on the factual data necessary
the entitlements set out. There was no employment to good policy making. That included not only the facts
relationship between the parties. peculiar to the controversy between the litigants before
There is also the case of Kanuri Limited & 34 others v Uber them, but also enough of an understanding of how the
Kenya Limited [2017] eKLR, where the court in trying to society works so that they could gauge the effect of the
find out whether the plaintiffs’ allegations of violations various alternative legal solutions available in deciding a
of fraud, scheme of secrecy and conspiracy and abuse of case.
dominant position and restrictive trade practices by the The UK case therefore reflects the Kenyan legal system in
defendant and its principals held that it would be too relation to how a contract of service between litigants is
early to take out the name of Uber Kenya Ltd without deciphered by the courts and how the courts also interpret
a further interrogation as to the exact and nature of statutory provisions in the way which best gives effect to
relationship it had with Uber B.V and, further, its role their purpose. Further to these, Uber operates in Kenya
in Kenya in the implementation of the contract entered and has its shared number of drivers under Uber Kenya
between Uber B.V and the plaintiffs. It would be haste to who will then forthwith use this judgment as a precedent
dismiss the plaintiff’s claim against Uber Kenya Limited in proving that they are not working as independent
without further scrutiny as to whether Uber Kenya bore contractors but as employees of Uber under their implied
separate civil culpability (from Uber B.V) in the manner conduct in their employment relationship who are thus
in which the contract had been implemented in Kenya. entitled to all the employment rights that accrue therein.
When it comes to interpretation of statutory provisions,
the court has held for example in Adrian Kamotho Njenga
v Kenya School of Law [2017] eKLR, that in interpreting
statutes, it was also a requirement that the court looked
at both the text and context in order to ascertain the true
legislative intent. The court had to as much as possible
bear in mind the golden rule principle when interpreting
statutes. The purpose of a statute played a pivotal role in
determining the context, scope and the intended effect of
the legislation. While applying contextual or purposive
reading of a statute, it was important that the court
remained faithful to the actual wording of the statute.
In Council of County Governors v Attorney General &
another [2017] eKLR, the court while interpreting a
67
LAW REFORM ISSUES APRIL-JUNE, 2021

Compiled by Faith Wanjiku
LAW REFORM ISSUE BRIEF FACTS & METADATA OF HOLDINGS PERTINENT TO LAW
JUDGMENT REFORM
B. NAM v Republic 1. Section 179 of the Criminal Procedure Code,
Policy makers need to focus on Criminal Appeal No. 3 of 2019 Cap 75, Laws of Kenya, under which an accused
the fact that incest is a more High Court at Kakamega person could be convicted of an offence other
serious offence than defilement W Musyoka, J than that charged, so long as the facts disclosed
to afford better protection to May 21, 2020 that other offence, and that offence was cognate
underage girls within families, or predicate to the offence charged. Incest, with
by amending the penalties Brief facts respect to a minor, was, strictly speaking, a
prescribed for incest where The appellant was charged and convicted defilement, of the said minor. Yet, the language
minors are the victims of incest contrary to section 20(1) of the of section 20 of the Sexual Offences Act made
Sexual Offences Act and was sentenced to it a lesser offence to defilement. Under the
life imprisonment. Being dissatisfied with Sexual Offences Act, defilement, as defined in
the conviction and sentence the appellant section 8, was subject to mandatory sentences,
appealed and raised several grounds of appeal. incest, with respect to minors, was not subject
He averred that the trial court convicted to similar mandatory sentences, the sentences
him on the basis of a defective charge, his prescribed were largely discretionary save for the
mitigation was not taken into account, the minimum penalty of ten years. So for all practical
report recorded in the police occurrence purposes incest was cognate to defilement. Under
book differed from the evidence placed the circumstances, section 179 of the Criminal
before the trial court, the medical evidence Procedure Code could not be applied to it. The
was weak, the evidence was malicious court could not, therefore, convert a conviction
fabricated uncorroborated and doubtful, for incest into one of defilement.
the court did not consider that there was a 2. The court did not quite understand the policy
strategy planned to implicate him, his fair behind making incest, with respect to minors, an
trial rights were violated, age and penetration offence lesser to defilement. Yet, in the offence
were not sufficiently proved, and the court of incest, with respect to minors, two offences
convicted on the basis of hearsay evidence. overlapped, defilement and incest. That alone
should have made incest a much more serious
offence compared to defilement. Secondly,
incest happens largely within the home, between
members of the same family, as opposed to
general defilement which could happen between
persons who were not related to each other or
whose relationship was distant. It would mean in
incest, with respect to minors, there was always
that element of breach of trust. The person
defiling the minor would be her elder relative,
taking advantage of the familiarity between
them to defile her under the cover of the family
home, where she should be safest. The worst
abusers of underage girls were their immediate
relatives, who preyed on the underage girls under
the safe cover of the home environment. It was
usually difficult to have such crimes uncovered,
because families make efforts to cover them up.
No doubt, in those circumstances, incest, with
respect to minors, ought to be a much more
serious offence that defilement. It was about time
that policy makers should direct their focus to
afford better protection to underage girls within
families, by amending the penalties prescribed
for incest where minors were the victims.
68
JUDGMENT REFORM
B. Cyprian Andama v Director of Public 1. A legal provision which created a criminal
Section 66 of the Penal Code Prosecutions & 2 others; Article 19 East offence, should be clear, concise and
declared unconstitutional Africa (Interested Party) [2021] eKLR unambiguous. Section 66 of the Penal Code
for violating the freedom of Petition No. 3 of 2019 was excessively broad as it was capable of
expression under Article 33 High Court at Nairobi prohibiting the publishing of false statements as
and the right of an accused to W Korir, J well as opinions honestly believed to be truthful
be presumed innocent until the May 13, 2021 hence limiting the citizens’ right under article
contrary is proved under Article 35 of the Constitution to access information.
50 (2) Brief facts A law that limited constitutional rights without
The petitioner was an accused person at the any justification violated the Constitution and
Kiambu Chief Magistrate’s Court having ought to be removed from the penal laws.
been charged under section 66 of the Penal 2. The impugned law was in contravention
Code, Cap. 63 with the offence of publishing of article 50(2) of the Constitution which
alarming information. The particulars of the provided that every accused person had the
charge being that he published a false rumor right to be presumed innocent until the
on his twitter handle to the effect that Kenya contrary was proved. The impugned section
power was being looted by jubilee through required an accused person to prove lack of
its managing director who got the job with knowledge of the falsity of his statement, report
fake papers and that Kenya was being led by or rumour and to show that he took reasonable
criminals. The petitioner filed the instant measures to verify the truthfulness of his
petition to challenge the constitutionality of statement, rumour or report. The general rule
section 66 on the ground that it limited his was that in a criminal trial, the onus of proof
rights to freedom of expression and fair trial. remained on the State throughout and did not
It was the petitioner’s averment that the shift to the defence.
words “likely to cause fear and alarm to 3. In the pretext of providing a defence, the
the public or to disturb public peace” in impugned section 66 of the Penal Code at
section 66 of the Penal Code were vague subsection (2) disingenuously shifted the
and overboard in that it left a margin for burden of proof from the prosecution to
subjective interpretation of the provision the accused person. The provision placed
and could easily be misused to charge the burden of establishing innocence on
people. The petitioner also alleged that the accused person by stating that it was a
he was arrested and detained without defence to a charge under section 66(1) if the
charge beyond the 24 hours allowed by the accused proved that, prior to publication, he
Constitution hence resulting in a violation took such measures to verify the accuracy of
of his rights. The petitioner therefore prayed the statement, rumour or report as to lead
for among others a declaration that section him reasonably to believe that it was true.
66 was unconstitutional and invalid for The requirement shifted the responsibility of
unjustifiably violating the right to freedom proving innocence upon the accused person.
from expression. Once the legal burden shifted it presented an
issue of unconstitutionality for contravening
the principle of presumption of innocence until
the contrary was proved.
4. If the State(prosecution) could not prove the
falsity or otherwise of a statement with all the
resources available to it, how could an accused
person be able to do so? What the impugned
provision did was to excessively limit the
freedom of expression without any justification
and to that extent it became unconstitutional.
69
JUDGMENT REFORM
C. Felix Kiprono Matagei v Attorney 1. The Fair Administrative Action Act was enacted
It was necessary for the Chief General; Law Society of Kenya (Amicus pursuant to article 47 of the Constitution. It
Justice to make rules under Curiae) [2021] eKLR brought the practice of judicial review into
section 10(2) of the Fair Petition 337 of 2018 conformity with the Constitution and it
Administrative Action Act High Court at Nairobi recaptured and expanded the common law
and the Cabinet Secretary for W Korir, J grounds of judicial review. Section 12 of the
the time being responsible for May 13, 2021 Fair Administrative Action Act provided that
the administration of justice, the Act added to and did not derogate from the
in consultation with the Brief facts general principles of common law and the rules
Commission on Administrative The petitioner, a lawyer, sought to of natural justice.
Justice, to make regulations under challenge the constitutionality of sections 2. A perusal of the Fair Administrative Action Act
section 13(1) of the Act. The 8 and 9 of the Law Reform Act and order showed that Parliament intended to substitute
National Assembly also needed 53 rule 1 of the Civil Procedure Rules. He common law judicial review with statutory
to formally repeal sections 8 and contented that those statutory provisions judicial review. It was unclear why Parliament
9 of the Law Reform Act so make violated the principle of the supremacy of did not go to the extent of repealing sections
the Fair Administrative Action the Constitution, the right to equality and 8 and 9 of the Law Reform Act. The failure
Act the only law upon which freedom from discrimination, the right to repeal those provisions of the Law Reform
applications for orders of judicial to access to justice and the right to a fair Act led to confusion about the procedure for
review would be anchored hearing. Section 8 of the Law Reform Act institution of judicial review proceedings.
mandated the High Court to issue judicial 3. The Fair Administrative Action Act did not
review orders where those orders could be make provision for leave to be obtained before
issued by the High Court of England and judicial review proceedings could commence.
section 9(1)(b) of the Law Reform Act Section 10(1) of the Fair Administrative Action
made it mandatory for leave to be obtained Act provided that an application for judicial
from the High Court before judicial review review had to be heard and determined without
proceedings were commenced. Order 53 undue regard to procedural technicalities.
of the Civil Procedure Rules provided for 4. All law had to conform to the provisions of the
the procedure in relation to judicial review Constitution and therefore the provisions of
proceedings. sections 8 and 9 of the Law Reform Act and
order 53 of the Civil Procedure Rules had to
be construed with such adaptations, alterations
and modifications so as to conform with the
Constitution. Section 20(3) of the Constitution
mandated fundmental constitutional values to
influence common law. The Constitution was
the sole standard guiding the application of
statutory or common law rules in the settlement
of disputes. As a result, common law rules in
judicial review that fell short of the purport,
tenor and spirit of the Constitution, ought
to be developed to meet the constitutional
standard.
70
JUDGMENT REFORM
D. Steve Isaac Kawai & 2 others v Council of 1. The failure to amend section 12 of the Advocates
Section 12(a) of the Advocates Legal Education & 2 others [2021] eKLR Act to include citizenship in South Sudan as
Act, which failed to include Petition 393 of 2018 one of the qualifying criteria for admission to
citizens from South Sudan High Court at Nairobi the Roll of Advocates, created a situation where
as persons that could qualify W Korir, J citizens of states within the Community were
for admission to the Roll May 20, 2021 not treated equally. It was clear that the provision
of Advocates in Kenya, was was meant to bring on board the citizens of the
discriminatory. Brief facts Partner States of the Community in respect of
The petitioners were citizens of South Sudan the provision of legal services in line with article
who had been admitted to the Advocates 126 of the Treaty but the legislature overlooked
Training Program (ATP) at the Kenya the fact that the membership of the Community
School of Law. For purposes of sitting for was not closed.
the final examinations, they had been issued 2. The petitioners found themselves in a position
with examination cards. However, they were where they were denied a benefit that was
precluded from sitting for the examinations available to other citizens within the Community
on the basis that they were South Sudan without any justification. The citizens of South
citizens. The petitioners successfully applied Sudan should not be denied the benefits of the
for conservatory orders and were allowed to Treaty to which South Sudan was a signatory.
sit the bar examinations. However, they were 3. It was not necessary to leave the interpretation of
denied their results when the examination the Treaty to the East African Court of Justice.
results were released. They moved the court The interpretation of article 126 of the Treaty
again and orders were issued directing the was not the subject of the court’s determination.
release of their examination results. The It was within the court’s jurisdiction to interpret
1st petitioner was admitted to the Roll of the Advocates Act and the Constitution.
Advocates. 4. Section 12(a) of the Advocates Act was
The petitioner’s case was that section 12(a) inconsistent with article 27 of the Constitution
of the Advocates Act was unconstitutional in so far as it did not mention South Sudan, as
as it limited eligibility for admission to one of the countries, whose citizens could be
the Roll of Advocates to citizens of Kenya, admitted to the Roll of Advocates in Kenya.
Rwanda, Burundi, Uganda and Tanzania. The petitioners should enjoy the benefits of the
The petitioners explained that South provisions of section 12(a) of the Advocates Act
Sudan joined the East African Community before the legislature aligned the provision to the
(Community) in April 2016 and article 126 vision of the Treaty and made it compliant with
of the Treaty for the Establishment of the the Kenyan Constitution.
East African Community (Treaty) required
the harmonization of legal training. The
petitioners stated that they were entitled
to equal treatment with citizens of Kenya,
Rwanda, Burundi, Uganda and Tanzania.
The petitioners further alleged that the 1st
respondent’s decision violated article 22 of
the 1951 Refugees Convention, article 4
of the 1969 OAU Convention Governing
the Specific Aspects of Refugee Problems in
Africa, and section 16 of the Refugees Act,
2006 which gave them the right to education
to the same extent as to the citizens of the
host country. They also alleged that the
respondent’s actions violated articles 19, 22,
27, 43 and 47 of the Constitution. They also
said that their legitimate expectation to sit
the bar examinations after undertaking the
necessary training was violated.
71
72
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committed to Law Reporting and Law Revision by providing
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In pursuit of this commitment, Kenya Law shall comply

with all the applicable requirements and continually improve
on its effectiveness by implementing a Quality Management
System based on ISO 9001:2015.
Kenya Law’s top Management shall on an annual basis review

the established quality objectives and this policy to ensure
sustainability.
L Terer
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May, 2019
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Issue 53

April - June 2021

High Court declares that the BBI Steering Committee is

The running of a bar by a judicial officer is not in itself evidence of gross

LAWS OF KENYA VOLUMES

Hon. Lady Justice Martha K. Koome, EBS

Ms Jennifer Gitiri Mr Michael Muchemi

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

Ms Anne Amadi Mr Michael Sialai, EBS

SPEECH BY JUSTICE MARTHA KOOME ON BEING SWORN IN OFFICE AS THE 16th

In our daily endeavours:

1. Let us embrace the various methods of alternative dispute resolution mechanisms;

I thank you all.

Hon. Lady Justice Martha K. Koome, EBS

What they said

Supreme Court of Appeal of Malawi Judge – DF Mwaungulu in Khoviwa v Republic

Petition No E426 of 2020 According to the petitioner, there was no regulatory

respondent running a bar. not.

some rights reserved by jjjj56cp

There is conflict of interest where an advocate who is a senator represents a person

Meaning and scope of the legal concept of possession

that the prosecution was influenced by some oblique appeal on conviction.

Role of the court in examining an expert witness’ testimony

Evidence Law – witnesses – expert witnesses – examination Issues

Feedback For Caseback Service

Hon. Julius K. Ng’arng’ar This service has enabled me follow outcomes

Hon. Robert M. Received with gratitude.

Hon. Justice Byram

DATE OF LEGISLATIVE CITATION PREFACE

National Hospital Insur- The National Hospital Insurance Fund Board of

Act EARLY CHILDHOOD EDUCATION ACT, 2021

Act THE SUPPLEMENTARY APPROPRIATION ACT, 2021

Act No. 2 of 2021

SENATE BILL TREATY MAKING AND RATIFICATION (AMENDMENT) BILL, 2021

SENATE BILL COUNTY STATISTICS BILL, 2021

SENATE BILL BASIC EDUCATION (AMENDMENT) BILL, 2021

SENATE BILL SUSTAINABLE WASTE MANAGEMENT BILL, 2021

SENATE BILL SALARIES AND REMUNERATION COMMISSION (AMENDMENT) BILL,

C. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEMBLY IRRIGATION (AMENDMENT) BILL, 2021

NATIONAL ASSEMBLY KENYA ROADS (AMENDMENT) BILL, 2021

NATIONAL ASSEMBLY COFFEE BILL, 2021

NATIONAL ASSEMBLY NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND

NATIONAL ASSEMBLY PUBLIC PRIVATE PARTNERSHIPS BILL, 2021

NATIONAL ASSEMBLY FOREIGN SERVICE BILL, 2021

NATIONAL ASSEMBLY COMMUNITY GROUPS REGISTRATION BILL, 2021

NATIONAL ASSEMBLY SUPPLEMENTARY APPROPRIATION BILL, 2021

(a) a contract of employment, or to [the rider] of transportation services between [the

LAW REFORM ISSUES APRIL-JUNE, 2021

The National Council for Law Reporting (Kenya Law) is

In pursuit of this commitment, Kenya Law shall comply

Kenya Law’s top Management shall on an annual basis review

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