NRB 1ST-5TH Petitioners Submissions-Housing-Nrb Pet E154 of 2024-DR - Magare Gikenyi VS CS Housing & 55 Others

REPUBLIC OF KENYA 147
THE HIGH COURT OF KENYA AT MILIMANI NAIROBI

CONSTITUTION AND HUMAN RIGHTS DIVISION
PETITION NO. E154 OF 2024 AS CONSOLIDATED WITH PET
E173,E176,E181,E191 & E011 ALL OF 2024
BETWEEN
DR. MAGARE-GIKENYI B……………..……………………….……….1ST PETITIONER
PAULINE NDUTA KINYANJUI………………….……….….………….2ND PETITIONER
PHILEMON ABUGA NYAKUNDI…………………………..….……….3RD PETITIONER
SHALLUM KAKA NYAKUNDI………………………………..……. ….4TH PETITIONER
JAMLICK OTONDI ORINA………………………………. ….……. ….5TH PETITIONER
TRADE UNION CONGRESS OF KENYA…………………..……. ….6TH PETITIONER
MOSES NTHURIMA…………………..………………………..……. ….7TH PETITIONER
SENATOR OKIYA OMTATATH OKOITI,MP ……………..……. …8TH PETITIONER
SENATOR STEWART MADZAYO ,MP……………………..……. ….9TH PETITIONER
SENATOR ENOCK KIIO WAMBUA,MP………………..……. ….…10TH PETITIONER
SENATOR LEDAMA OLE KINA,MP………………………….. …...11TH PETITIONER
SENATOR EDWIN SIFUNA,MP………………………………... …...12TH PETITIONER
SENATOR OKONG’O OMOGENI(SC) ………………..…..……. ...13TH PETITIONER
SENATOR KAJWANG MOSES OTIENO,MP…….……..……. ….14TH PETITIONER
SENATOR GODFREY OSOTSI,MP………………….…...……. ….15TH PETITIONER
SENATOR MOHAMED FAKI MWINYIHAJI,MP….…………. ….16TH PETITIONER
SENATOR JOHNS MWARUMA,MP………………….…………. ….17TH PETITIONER
SENATOR CRYSTAL ASIGE,MP………………………….……. ….18TH PETITIONER
SENATOR DAN MAANZO,MP……………………………..……. ….19TH PETITIONER
SENATOR AGNES KAVINDU MUTHAMA,MP…….…...……. ….20TH PETITIONER
SENATOR DR. OBURU ODINGA,MP………………..…..……. …..21ST PETITIONER
SENATOR RICHARD ONYONKA,MP………….…….…..……. ….22ND PETITIONER
BEATRICE A AYOMO,MP…………………………….……….…. ….23RD PETITIONER
SENATOR CATHERINE MUYEKA MUMMA,MP……..……. ….24TH PETITIONER
SENATOR HAMID KIBWANA,MP…………………….…..……. ….25TH PETITIONER
SENATOR HEZENA LAMALETIAN,MP………………...……. …..26TH PETITIONER
SENATOR DR. BETH KALUNDA SYENGO,MP……..…..…. …..27TH PETITIONER
SHAKILA ABDALLA MOHAMED,MP……………………...…. …..28TH PETITIONER
SENATOR EDDY GICHERU OKETCH,MP…………….……. ……29TH PETITIONER
ELUD KARANJA MATINDI…………………………..…..……. …...30TH PETITIONER
BENSON ODIWOUR OTIENO……………………………...……. ….31ST PETITIONER
BLAIR ANGIMA OIGORO……………………………..……. ……….32ND PETITIONER
VICTOR AKUNA………………………………………….…..……. ….33RD PETITIONER
FLORENCE KANYUA LICHORO…………….…………..……. …..34TH PETITIONER
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JUMA JOHN ISAAC………………………………………..……. …..35TH PETITIONER 148
HON. ALFERED KIPTOO KETER……………….……..……. …..36TH PETITIONER
KENYA HUMAN RIGHTS COMMISSION………….…..……. …..37TH PETITIONER
KATIBA INSTITUTE………………………………………..……. …..38TH PETITIONER
PETER OKIRO……………………………………………….……. …..39TH PETITIONER
KELVIN KINYUA ……………………………………....…….….….40TH PETITIONER
ANDREW MWENDWA……………………………………..……. …....41ST PETITIONER
HARON NZOMO………………………………………..…..……. …….42ND PETITIONER
=VERSUS=
THE CABINET SECRETARY LANDS, PUBLIC
WORKS, HOUSING AND URBAN DEVELOPMENT...……...….1ST RESPONDENT
THE CABINET SECRETARY, THE NATIONAL TREASURY
AND ECONOMIC PLANNING.…………………………....…….....2ND RESPONDENT
THE HON. ATTORNEY GENERAL………….………..………..3RD RESPONDENT
NATIONAL ASSEMBLY………………………...…….….……....4TH RESPONDENT
THE SENATE …………….…………………………………….…….… 5TH RESPONDENT
COMMISSIONER GENERAL KENYA REVENUE AUTHORITY …..….6TH RESPONDENT
SPEAKER NATIONAL ASSEMBLY………..….……...………….7TH RESPONDENT
THE MINISTRY OF LANDS, PUBLIC WORKS AND HOUSING
,URGAN DEVELOPMEN…………………………………..………….8TH RESPONDENT
NATIONAL HOUSING COPRPORATION RESPONDENT….…9TH RESPONDENT
KENYA UPGRADING, LOW COST HOUSING AND
INFRASTSRACTURE TRUST FUND ……….……….……..…10TH RESPONDENT
COMMISSION ON REVENUE ALLOCATION……………..…....11TH ESPONDENT
CONTROLLER OF BUDGET………………….……...…….……12TH RESPONDENT
AUDITOR GENERAL………………….……...……………..……13TH RESPONDENT
NATIONAL LAND COMMISSION………….…...…….………..14TH RESPONDENT
COUNCIL OF GOVERNORS………………………...……..……15TH RESPONDENT
AND
LAW SOCIETY OF KENYA……………………….…….…....1ST INTERESTED PARTY
OPERATION LINDA JAMII……….……………….…….... .2TH INTERESTED PARTY
KITUO CHA SHERIA………………………….………..….…3TH INTERESTED PARTY
KATIBA INSTITUTE……………………. ….………..………4TH INTERESTED PARTY
TUNZA MTOTO COALITION………….….…………..…....5TH INTERESTED PARTY
CONSUMERS FEDERATION OF KENYA……………...6TH INTERESTED PARTY
KENYA FEDERATION OF EMPLOYERS……………...…7TH INTERESTED PARTY
KENYA MEDICAL ASSOCIATION…………………….…..8TH INTERESTED PARTY
KENYA NATIONAL TEACHERS UNION………………….9TH INTERESTED PARTY
KENYA UNION OF POST -PRIMARY EDUCATION
TEACHERS ……………………………………………….…..10TH INTERESTED PARTY
KENYA MEDICAL PRACTITIONERS, PHARMACISTS
AND DENTISTS UNION……………………………………..11TH INTERESTED PARTY
KENYA NATIONAL UNION OF NURSES …………..…..12TH INTERESTED PARTY
KENYA UNION OF CLINICAL OFFICERS…………..….13TH INTERESTED PARTY
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1ST-5TH PETITIONER’S FINAL SUBMISSIONS (PET E154 OF 2024) 149
(Final submissions for Nairobi High Court Constitutional Petition E154 of 2024 filed
on 19th March 2022 as consolidated with PET E173,E176,E181,E191 and E11 all of 2024
1. We as Nairobi High Court Constitutional Petition E154 of 2024 filed on 19 th

March 2022 hereby tender our considered final submissions for your kind
consideration.
INTRODUCTION
2. THAT the petitioner, Dr.Magare Gikenyi J. Benjamin is a Consultant
Trauma and General Surgeon working for the county government of
Nakuru.He Kenyan Medic by profession and patriotic citizen of Kenya who
looks into a future of Kenya where society strictly follows rule of law for
betterment of society. All other the petitioners(Pauline Nduta Kinyanjui,
Philemon Abuga Nyakundi, Shallum Kaka Nyakundi, Jamlick Otondi Orina) are
public spirited youths(Gen-Z) suing in their personal capacity to uphold,
respect protect the constitution(2010) which protects rights and
fundamental freedoms of all Kenyans.
3. THAT the Respondents are entities/state organs involved in enactment of the

affordable hosing Act 2024(herein after know as AHA 2024).While interested
parties are entities in one or another that would be affected by the outcome of
this petition.
BACKGROUND SUMMARY OF THE CASE

4. THAT the Affordable Housing Bill, no 75 of 2024 was published in the Kenya
gazette supplement no. 236 of 4Th December 2023 and passed by the
National Assembly with amendments on 21 st February 2024. The bill was
passed by the senate on 12 th March 2024 and finally assented by the
President on 19th March 2024 to become law.
PETITIONER’S CASE
5. THAT the Act was initiated by the executive arm of government purportedly
to provide framework for development and ownership of affordable housing
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and institutional housing purportedly pursuant to article 43 of the 150
constitution.That in so doing, the Act introduced various sections which in
the plain & purposive interpretation of CoK violate express provisions of the
Constitution of Kenya 2010(CoK).That as result of the above, this petition
was filed on 19/3/2024
RESPONDENTS CASE
6. Its respondent’s case that all sections of the Affordable Housing Act 2024 are
lawful and constitutional pursuant o article 43(1)(f) of CoK and that
consolidated petitions are vexatious and need to be dismissed with costs to
the respondents.
7. THAT The petitioner requests this honorable court for following prayers
RELIEFS/PRAYERS SOUGHT
(a) THAT A DECLARATION is hereby made that there are

inherent natural law and constitutional limitations on the
power of the political arms of Government (the Executive and
the Legislature) to impose taxes, levies which limitations
protect taxpayers from capricious, unreasonable, arbitrary,
excessive, cruel, and significantly unpatriotic taxes/levies.
(b) A DECLARATION THAT action of legislating the Affordable

Housing Act 2024 which contains threats to the Constitution,
parliament (the National Assembly and senate) failed in its duty
to uphold the Constitution as required at Articles 93(2) and
94(4) of the Constitution and in effect the 4th and 5th
respondents failed the obligatory and constitutional duty of
legislating and over sighting and protecting Kenyans against
excessive and illegal taxation/levying.
(c) A DECLARATION THAT action of initiating/tabling the

Affordable Housing Act 2024 which contains threats to the
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Constitution, the Cabinet Secretary for the Cabinet Secretary 151
Lands, Public Works, Housing and Urban Development and
National Treasury and Planning failed in its duty to uphold the
Constitution as required at Article 153(4)(a) of the Constitution
(d) A DECLARATION that inter alia Section(s) 3(b), 4(2)(a), 4(2)(b),

4(3)(b),5,6,7,11(3),11(4)(a)&(c),12,14(5)(d),15(2)&(3),16,25,32,34,
41,42,43,44,45,48,49,51,52,58 and other unconstitutional
sections of the A f f o r d a b l e H o u s i n g A c t 2024 is contrary
to constitutional provisions inter alia article 1, 2, 3(1), 10, 19,
20, 21, 24, 25(A) & (C), 27(1) & (2),28,29, 36, 40, 43, 46(1)(C),
47(1), 48, 50(1) & (2), 93(2), 94(1), (4), (5) & (6), 109, 129, 131(2);
153(4),159(1),160, 185 (2), 186 (1) & 187 (2); 258 & 259(1) and
hence unconstitutional, invalid, null and void ab initio.
(e) THAT The court is pleased to issue an order of judicial review

by way of CERTIORARI, quashing inter alia the Section(s) 3(B),
4,5, 6, 7, 9, 11(3) (4), 12(2), 14(3), 15(2)(G), 23(1),30, 32,31, 33,
34, 35, 36, 38, 39, 42, 43, 46, 47, 48 and all unconstitutional
sections of the A f f o r d a b l e H o u s i n g A c t 2 0 2 4 .
(f) DECLARATION that the state/respondent’s actions of

improperly exercising powers pursuant to Article 209(4)
without due regard and conformity with Article 10(2) the
Constitution and part 3 of the bill of rights is unconstitutional
null and void.
(g) DECLARATION that at all times the respondents or any other

person must conduct meaningful (as opposed to cosmetic)
public participation for purposes of Article 10(2) of the
Constitution as held in many Supreme Court decisions inter
alia Petition 5 of 2017 -British American Tobacco Kenya, Plc
(Formerly British American Tobacco Kenya Limited) Vs And
Page 5 of 43
Cabinet Secretary For The Ministry Of Health & 5 others [2019] 152
eKLR and that the input of the said public participations must
at all times be meaningfully be considered for purposes of for
purposes of article 10(2) of the constitution.
(h) THAT the court is pleased to issue an order of judicial review

by way of MANDAMUS, compelling respondents or/and any other
person to strictly follow the finding of public participation
while enacting laws and/or any issue done pursuant to Article
10(2) of the Constitution.
(i) THAT the court is pleased to issue an order of judicial review

by way of PROHIBITION, prohibiting/barring them from evicting
Kenyans from public land ostensibly for purposes of Affordable
Housing Act and/or any other purpose except as provided by the
law/constitution.
(j) That any other order or/and modification of petitioner’s

prayer(s) which this honourable court may deem fit so as to a
achieve objects of justice for majority of Kenyans as a whole.
(k) Costs of this Petition to be borne by respondents.
8. Now let’s move on to submissions of the petition itself.
ISSUES FOR DETERMINATION

9. THAT In our considered view ,the issue that fall for determination is as
follows:
(a) introduction: What are the settled guiding principles used by
courts in interpreting and construing the constitution especially
when constitutional violations are alleged?
(b) Whether right to access housing is the same as right to own

housing and which right has the constitution granted in article 43
of the constitution
Page 6 of 43
(c) Whether the Affordable Housing Act 2024 disrupts the functional 153
assignment under devolution in the context of article 6 (2) as read
with articles 185(2), 186(1) & 187(2) and paragraph 8(d) of the 4Th
schedule of the constitution (2010)?
(d) Whether the Affordable Housing Act 2024 legal framework is

faulty and/or unconstitutional?
(e) Whether the Affordable Housing Act 2024 entrenches communism

ideologies and violates right to property as provided in article 40
of the constitution.
(f) Whether the Affordable Housing Act 2024 subjects kenyan people
to slavery and servitude contrary to the provisions of article 25(b)
of the constitution?
(g) Whether its legal and constitutional on issues of public land

allocation/alienation where the respondents builds on public land
and sells the housing units to private entities?
(h) Whether there was blatant dismissal of the results of the public
participation process carried out by virtue of articles 10,118 and
201 of the constitution;
(i) Whether the affordable housing act 2024 is discriminatory
(j) Whether the affordable housing act 2024 thwarted the legitimate
expectation of Kenyans?
(k) Whether the alleged president’s deal with Hon. Chief Justice
Martha Koome on enacting Affordable Housing Act 2024 need any
consideration by this honorable court
(l) What are other constitutional violations has been occasioned by

Affordable Housing Act 2024
(m) conclusion, orders, reliefs/orders
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(A)INTRODUCTION: WHAT ARE THE SETTLED GUIDING PRINCIPLES USED 154
BY COURTS IN INTERPRETING AND CONSTRUING THE CONSTITUTION
ESPECIALLY WHEN CONSTITUTIONAL VIOLATIONS ARE ALLEGED?
Sovereignty of the people

10. THAT It’s the petitioner’s case that Kenya is a sovereign state where
sovereignty belongs to the all the people who have constituent power and that
power has been given to the judiciary to protect Kenyans’ interest.
Guiding Principles
11. THAT We submit that rule of law should be maintained and that while
interpreting the constitution, the same should be in a manner that is in
consonant with article 259 of the CoK.The rights and fundamental
freedoms (Bill of Rights) belong to each individual and are not granted
by the respondents/State.
12. In Institute of Social Accountability & Another v National Assembly &

4 Others High Court, (2015) EKLR the principles in Article 259 were
summed as follows: -
“[T]his Court is enjoined under Article 259 of the Constitution to interpret the
Constitution in a manner that promotes its purposes, values and
principles, advances the rule of law, human rights and fundamental
freedoms in the Bill of Rights and that contributes to good governance.
In exercising its judicial authority, this Court is obliged under Article
159(2)(e) of the Constitution to protect and promote the purpose and
principles of the Constitution. In determining whether a statute is
constitutional, the court must determine the object and purpose of the
impugned statute for it is important to discern the intention expressed
in the Act itself (see Murang’a Bar Operators and Another v Minister of
State for Provincial Administration and Internal Security and Others
Nairobi Petition No. 3 of 2011 [2011]eKLR, Samuel G. Momanyi v
Attorney General and Another (supra)). Further, in examining whether
a particular statutory provision is unconstitutional, the court must
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155
have regard not only to its purpose but also its effect… [59] Fourth, the
Constitution should be given a purposive, liberal interpretation...Lastly
and fundamentally, it is the principle that the provisions of the
Constitution must be read as an integrated whole, without any one
particular provision destroying the other but each sustaining the other
(see Tinyefuza v Attorney General of Uganda Constitutional Petition No.
1 of 1997 (1997 UGCC 3)). We are duly guided by the principles we have
outlined and we accept that while interpreting the impugned
legislation alongside the Constitution, we must bear in mind our
peculiar circumstances. Ours must be a liberal approach that promotes
the rule of law and has jurisprudential value that must take into
account the spirit of the Constitution.” (Emphasis ours)
RULE OF LAW
Common Law Principle (Entick Vs Carrington)
13. THAT The respondents are only allowed to do or perform functions or
actions permitted by law.The respondents have acted in contravention of
common law principle established in ENTICK vs- CARRINGTON (1965) 2
WILS to the effect that the state or state agencies can only do that which is
permitted by the law. Also look Hardware & Ironmongery Vs Attorney
General (E.A) 1972
14. THAT In a matter Salaries and Remuneration Commission & another v

Parliamentary Service Commission & 15 others; Parliament & 4 others
(Interested Parties) [2020] eKLR, , the three judge bench(Nyamweya,
Korir, Mativo,JJ) of the high court emphasized the importance of rule of law:
“…168. The principle of the rule of law, which is a foundational

principle of the Constitution, requires the exercise of public power to
conform to the Constitution and the enabling statutes. The rule of
law requires that a decision, viewed objectively, must be rationally
related to the purpose for which the power was given. The rule of
law, is one of the constitutional controls through which the exercise
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of public power is regulated by the Constitution. 156
169. The task for the courts in evaluating whether a decision is
illegal is essentially one of construing the content and scope of the
instrument conferring the duty or power upon the decision-maker.
The instrument will normally be the Constitution or statute. The
courts when exercising this power of construction are enforcing the
rule of law, by requiring public bodies to act within the four corners
of their powers or duties. They are also acting as guardians of
sovereignty of the people by ensuring that the exercise of power is in
accordance with the scope and purpose of the instruments conferring
the power.
170. As Currie points out “the Constitution, premised as it is on the

doctrine of constitutional supremacy, attempts to reconcile two
conflicting goals: to establish a state system with enough power to
govern, and to find ways of constraining and regulating that power
so that it is not abused.” The rule of law, and the related principles
of legality and accountability are the central constitutional
doctrines governing the exercise of public power. (emphasis)
15. That in the matter of Umoja Rubber Products Limited V Kenya Power &
Lighting Company Limited (Civil Appeal 175 Of 2019) [2023] KEHC
19751 (KLR) (5 July 2023) (Judgment),at paragraph 48 the court through
Hon.Justice Magare DKN, J and quoting the case of Katiba Institute & 3
others v Attorney General & 2 others [2018] eKLR, where justice EC
Mwita, stated: -In the case of R v Big M Drug Mart Ltd [1985]1 SCR 295,
the Supreme Court of Canada observed;
• “Both purpose and effect are relevant in determining

constitutionality; either an unconstitutional purpose or an
unconstitutional effect can invalidate legislation. All legislation is
animated by an object the legislature intends to achieve. This object
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is realized through impact produced by the operation and application 157
of the legislation. Purpose and effect respectively, in the sense of the
legislation’s object and its ultimate impact, are clearly linked, if not
indivisible. Intended and achieved effects have been looked to for
guidance in assessing the legislation’s object and thus the validity.”
(See Olum and another v Attorney General [2002] 2 EA 508).
• 50. And In Ng Ka Ling & Another v The Director of

Immigration (1999) 1 HKLRD 315.the Court stated;
• “It is generally accepted that in the interpretation of a Constitution

such as the Basic Law, a purposive approach is to be applied. The
adoption of a purposive approach is necessary because the
Constitution states general principles and expresses purposes without
condescending to particularity and definition of terms. Gaps and
ambiguities are bound to arise and, in resolving them, the courts are
bound to give effect to the principles and purposes declared in, and to
be ascertained from, the Constitution and relevant extrinsic
materials. So, in ascertaining the true meaning of the instrument, the
courts must consider the purpose of the instrument and its relevant
provisions as well as the language of its text in the light of the
context, context being of particular importance in the interpretation
of a constitutional instrument.”
• 51. Guided by the above principles, we now turn to consider whether

the impugned provisions go against Articles of the Constitution as
contended by the petitioners. In doing so the Court should bear in
mind the principle stated in US v Butler 297 US 1 [1936] that;
• “When an Act of Congress is appropriately challenged in the courts as

not conforming to the constitutional mandate, the judicial branch of
the government has only one duty; to lay the article of the
constitution which is invoked besides the statute which is challenged
and decide whether the latter squares with the former. All the court
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does, or can do, is to announce its considered judgment upon the 158
question. The only power it has, if such it may be called, is the power
of judgment. This court neither approves nor condemns any legislative
policy. Its delicate and difficult office is to ascertain and declare
whether the legislation is in accordance with, or in contravention of,
the provisions of the constitution; and, having done that, its duty
ends.”
ILLEGALITY
16. THAT in a matter Republic v Vice Chancellor Moi University & 2 others
Ex parte Benjamin J. Gikenyi Magare [2019] EKLR as quoted in Pastoli v
Kabale District Local Government Council and others [2008] 2 EA 300
Court of Appeal case citing with approval Council of Civil Unions v Minister
for the Civil Service [1985] AC 1 and Re Application by Bukoba Gymkhana
Club (1963) EA 478 at 479 that:
• “..….illegality is when the decision – making authority commits an

error of law in the process of taking or making the act, ….or contrary
to the provisions of a law or its principles are instances of
illegality…..irrationality is when there is such gross
unreasonableness in the decision taken or act done, that no
reasonable authority, addressing itself to the facts and the law before
it, would have made such a decision. Such a decision is usually in
defiance of logic and acceptable moral standards
17. THAT While performing their duties, state and state agencies are supposed
to act within the law..It is trite that public bodies, no matter how well
intentioned, may, only do what the Constitution and the law empowers
them to do. That is the essence of the principle of legality, the bedrock of
our constitutional dispensation, which is enshrined in our
Constitution. Legality therefore exists to ensure that the repository of
public power stays within the vital limits of the power conferred and
being exercised. We are also guided by the holding in the South Africa case
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of AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and 159
another where it was held that: -
“…the doctrine of legality which requires that power should have a

source in law, is applicable whenever public power is exercised.Public
power . . can be validly exercised only if it is clearly sourced in law"
18. THAT from the going we submit, a keen global look at Affordable Housing Act
2024 using purposive interpretation of the constitution(purpose and effect)
leads anyone to one conclusion, that the various sections of the Act are
unconstitutional.
(B)WHETHER RIGHT TO ACCESS HOUSING IS THE SAME AS RIGHT TO OWN

HOUSING AND WHICH RIGHT HAS THE CONSTITUTION GRANTED IN
ARTICLE 4391)(B) OF THE CONSTITUTION
19. The respondents in their defense insinuate that the Affordable Housing Act
2024 and its related programs will assist in Kenyans owning homes. Then
one may ask, what has the constitution obligated the government to do as
provided in article 43 of the constitution. The article states
“43(1)(b) Every person has the right to accessible and adequate
housing, and to reasonable standards of sanitation
20. THAT article “43(1)(b) does not talk of forced ownership of housing and debt
recovery in case of failure to pay.Taxes/levies are never civil debt but levies
contemplated in article 209(4) of the constitution.This article does not
envisage a situation where everyone including those who already have
accessible and adequate housing are forced to pay to access housing.
21. THAT for example Article 43(1)(f) states 43(1)(f)Every person has the
right to education” while 43(1)(a) states Every person has the right to
the highest attainable standard of health, which includes the right to
health care services, including reproductive health care; This does not
mean that everyone is forced to have education or health even those who
Page 13 of 43
have already had education and/are healthy. This article is meant to make160
education/health accessible to everyone such that for those who have not
had the education or are sick can take advantage of that and acquire
knowledge/ get treated. This article does not envisage on forcing of all
Kenyans to have education or get treated by force.
22. THAT from the foregoing, we submit that Article 43(1)(f) of the
constitution provides right to access housing and not right to own or
rent.That the impugned action and/or omissions to the extent that the
respondents are forcing Kenyans to mandatorily contribute so that they can
own a house as opposed to access a house is unconstitutional. We invite the
court to find so.
(C)WHETHER THE AFFORDABLE HOUSING ACT 2024 DISRUPTS THE

FUNCTIONAL ASSIGNMENT UNDER DEVOLUTION IN THE CONTEXT OF
ARTICLE 6 (2) AS READ WITH ARTICLES 185(2), 186(1) & 187(2) AND
PARAGRAPH 8(D) OF THE 4 TH SCHEDULE OF THE CONSTITUTION (2010)?
23. THAT it’s the petitioner’s case that AFFORDABLE HOUSING

ACT(AHA) disrupts the functional assignment under Devolution in the
context of Article 6 (2) of the Constitution of Kenya 2010. Parts 1 & 2 of the
Fourth Schedule to CoK 2010 as read with Articles 185 (2), 186 (1) & 187
(2); assign the National Government exclusive function on Housing Policy in
Part 1, part III exclusive mandate on implementation function of Housing is
assigned to County Government in Part 2, paragraph 8(d)
24. THAT article 185(2) of the constitution states

185(2) A county assembly may make any laws that are
necessary for, or incidental to, the effective performance of the
functions and exercise of the powers of the county government
under the Fourth Schedule. (emphasis ours)
Page 14 of 43
25. THAT This means the county government can make laws for effective 161
performance of their function.The county government has neither requested
any assistance from the national govt to help the county in making laws to
govern housing as envisaged in article 185(2) of CoK nor has the county
governments transferred its housing function to the national government as
envisaged in article 187 of CoK.
26. THAT Article 186(1) of CoK assisgns specific roles for each level of
government as sanctity states:
186. (1) Except as otherwise provided by this Constitution, the
functions and powers of the national government and the
county governments, respectively, are as set out in the Fourth
Schedule.
27. THAT from the foregoing, housing is a function of County

Government and not National government. The involvement of National
Government on and above its role of policy formulation is contrary to 4TH
schedule paragraph (8)(d) which restricts national government to policy and
leaves housing as a function of county government.
28. In-fact a look at the affordable housing fund board further proves
this fact. The board as shown in section 15(2) &(3) together with its
composition as provided in section 16, is entirely made up of national
government appointees. That all the appointees except as provided in
(16)(3)(d)(i) are National government appointees. This essentially makes the
board a National Government affair. Then one wonders how the National
Government can run a housing fund which is a function of county
government.
29. THAT section 16(2)(b) state

The Board is a body corporate with perpetual succession and a
common seal and shall, in its corporate name, be capable of—
taking, purchasing or otherwise acquiring, holding, charging or
disposing of movable and immovable property; and
Page 15 of 43
30. The work of this board as shown in the proceeding paragraph which is162
undertaken by the affordable housing Board, which is largely made up of
National Government is no policy but implementation of housing, which is
supposed to be undertaken by the County governments.Further this is
contrary to Article 6(2) of the Constitution on separation of government
functions (That is between national and county government).
31. THAT from the going we submit that AFFORDABLE HOUSING

ACT(AHA) 2024 disrupts the functional assignment under Devolution in
the context of Article 6 (2) are read with Articles 185 (2), 186 (1) & 187 (2)
and paragraph 8(d) of the 4 th schedule of the Constitution (2010). We invite
the court to find so.
(D)WHETHER THE AFFORDABLE HOUSING ACT 2024 LEGAL FRAMEWORK

FAULTY AND/OR CONSTITUTIONAL?
32. The government introduced affordable housing Act pursuant to

powers granted by article 209 of the constitution allowing the government
raise revenue through taxation/Levy(Specifically at Section 3 of the
Act).However, the said powers are not carte blanche or a blank to force
Kenyans to raise money illegally and unconstitutionally.
33. THAT Forcing people(especially employees) to get deducted so as to

enable another person get a house, while the contributor/employee is not
benefiting is not constitutional. This is a “ponzi scheme”. A Ponzi scheme is
a form of fraud that lures investors and pays profits to earlier investors with
funds from more recent investors
34. THAT The respondents argue that there are many levies in
Kenya like fuel levy ,insurance levy, export levy, sugar levy etc and
that introducing housing levy is no big deal.However, the respondents
fail to appreciate that the common denominator in all these levies is
Page 16 of 43
that all those who pay these levies directly or indirectly have 163
impact/benefit on that sector such that Fuel levy benefits/impacts on
fuel users(auto-machine/fuel users),sugar levy benefit/impacts on
sugar partakers, export levy has impact on exporters.
35. For instance all those who pay fuel levy benefit by the levy
maintaining roads. Sugar levy is paid by pertakers of sugar and is aimed to
change the behaviour of consumers to choose a cheaper lower sugar drinks
over more expensive sugar options. Export levy is imposed on specific goods
imported into Kenya for domestic good to protect local industries from
certain imported goods
36. However, on the other hand, the legal framework on affordable

housing act(Housing levy) is faulty in the following manner
(a) That only the employees(contributors) X who suffers in terms of

contributing while another person Y benefits. It forces Person X
to contribute so as to enable Y benefit, whether the former
absolutely benefits nothing.
(b) If the legal framework was on such way that those willing to
contribute to the levy can do that so – so that they can get a
house, then it will be a constitutional levy affecting only those
getting houses.
(c) The problem with this faulty legal framework is the

MANDATORY NATURE OF THE LEVY which forces all people to
pay even for those who don’t need a house.
(d) Further, there No clear roadmap on how people in the informal

sector will pay this levy which brings discrimination Article
209(4) needs to be applied in a purposive manner and not on a
manner which punishes one sectors contrary to article 201 of
the constitution on fair and equitable distribution of tax burden.
Page 17 of 43
164
(e) The Affordable Housing Act 2024 legal framework does not
consider those already in mortgages, those already having a
house, issue of preference, timing, style, among others
(f) The fact of having faulty legal framework of levying Kenyans

renders the government’s insistence on still taxing the people an
arbitrary deprivation of their property contrary to the
provisions of Article 40 of the Constitution
37. That from the foregoing we submit that the affordable housing legal
framework is faulty due to among others burdening citizens who are not
benefiting from the housing programme in a discriminatory manner, issue
of right to property among other issues and hence the same is
unconstitutional. We invite the court to find so.
(E)WHETHER THE AFFORDABLE HOUSING ACT 2024 ENTRENCHES

COMMUNISM IDEOLOGIES AND VIOLATES RIGHT TO PROPERTY AS
PROVIDED IN ARTICLE 40 OF THE CONSTITUTION.
38. THAT the petitioners submit that the Affordable Housing Act 2024,
essentially entrenches communist ideologies yet, there is nowhere in the
constitution which allows government to introduce communist ideologies and
violates right to property as provided in article 40 of the constitution.
39. THAT Article 2(1) of the constitution talks of supremacy of the constitution.
Introducing communist ideologies when the constitution does not provide is
unconstitutional ab initio. Article 2(1) of CoK States
• 2(1). This Constitution is the supreme law of the Republic and binds all
persons and all State organs at both levels of government.
40. THAT the AHA threatens the freedom to own property Article 40(1) by
proposing to compel employees(contributor) to participate in a mandatory
Page 18 of 43
165
savings scheme disguised as a means to facilitate property acquisition “in a
Ponzi scheme way”. The proposal encroaches upon the constitutional
guarantee of freedom of property ownership, as stipulated in Article 40(1) of
the Constitution of Kenya 2010.
41. THAT a salary of an employee or an income of a person is his/her private

property since an individual has worked hard to earn it. Forced contribution
for someone to get affordable housing unit against his/her wish is contrary to
the constitution.
42. THAT Further and in particular:

(a) Article 40(1)(a) and (b) grants every person in Kenya the prerogative to
exercise independent judgment in determining the type, quality,
location, and timing of property ownership that aligns with their
unique circumstances and aspirations.
(b) The government’s intention to forcibly deduct a substantial 1.5% of

an employee’s basic salary and other incomes, with the purpose of
facilitating the citizen/employee’s property acquisition, is unjust
and morally repugnant as it imposes a one-size-fits-all approach to
property acquisition. Over and above, it disregards the diversity of
individual needs and preferences, denying employees the opportunity
to allocate their resources according to their own priorities and
circumstances.
43. That the respondents have been categorically been directed by the
constitution not to enact a law which deprives a person a property(e.g
salary)Further, the Act in section 48(2) outlaws the corporations from owning a
house, yet the same corporations pay tax and contribute to the economy. This is
discrimination of the highest order.
44. THAT Article 40(2) states

40(2) Parliament shall not enact a law that permits the State or any person
Page 19 of 43
(a) to arbitrarily deprive a person of property of any description or of 166
any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under
this Article on the basis of any of the grounds specified or
contemplated in Article 27 (4).
45. THAT limitation of rights and fundamental freedoms are only permitted
under article 24 of CoK and even then the constitution “limits” on how one
can limit rights and fundamental freedoms of citizens by stating
• 24. (1) A right or fundamental freedom in the Bill of Rights shall not
be limited except by law, and then only to the extent that the
limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account all relevant factors, including—
a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and
fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there
are less restrictive means to achieve the purpose
Limit ownership contrary to Article 40 of CoK (right to property)

46. THAT section 54 purports to limit/restrict ownership and use of a fully
owned house. The section unconstitutionally limits what the owner of the
housing unit can do with it by bringing in a precondition of getting consent of
the affordable housing board, yet he has absolute ownership. The section
states
• Except with a prior written consent of the board, a purchaser of
an affordable housing unit under this act shall not by contract.
agreement or otherwise, sell or agree to sell his or her unit or
any interest therein to any other person
Page 20 of 43
47. THAT This preposition is contrary to Sectional Property Act contemplated in 167
section 53(4) and various sections of the sectional property and goes against
the right to own property as envisaged in Article 40 of the Constitution and
Article 29 of right not to be deprived of freedom arbitrarily or without just
cause and Article 46 of consumer protection against economic interests, A
sectional owner has the same right as other property owners and that their
restrictions is not justiciable as provided in Article 24 of the Constitution.
48. THAT based from above we submit that the AHA has not provided the
rationale for limitation of enjoyment of rights nor is there any plausible and
justiciable explanation/justification provided by this AHA Act to limit
enjoyment of rights be individuals.
COMMUNIST IDEOLOGIES
49. THAT Communist ideologies (from Latin communis, 'common,

universal') is a left-wing to far left sociopolitical, philosophical,
and economic ideology within the socialist movement, whose goal is the
creation of a communist society, a socioeconomic order centered
around common ownership of the means of production, distribution, and
exchange that allocates products to everyone in the society based on need.A
communist society would entail the absence of private property and social
classes, and ultimately money and the state (or nation state).
50. THAT These ideologies were brought up by the ancient philosophers

the likes Karl Marx. According to Richard Pipes,the idea of
a classless, egalitarian society first emerged in Ancient Greece. Since
the 20th century, Ancient Rome has been examined in this context, as
well as thinkers such as Aristotle, Cicero, Demosthenes, Plato,Tacitus,
Mazdak among others
51. THAT essentially the ideology involves taxing those with resources ( “the
haves”) to support those who don’t have(the “don’t haves”) in effort to balance
the society. Resources are availed for common good of society. Communist
Page 21 of 43
abhors capitalism and the principle of private ownership. Whereas this idea 168
might be good in society, the same is not provided for in the
constitution.
52. THAT In addition forcing people to contribute for affordable housing units
against their wish so that others can get houses is repugnant to morality and
the constitution.This is because other citizens already “wameshajinga
ki’sawasawa” in that
(a) some of the employees/contributors already own houses or

(b) others are servicing mortgages,
(c) others own their houses
(d) others stay in staff houses provided by their employers
(e) others have been granted housing allowances paid by their employers
(f) While others are in chamas and are building on their pace and style
(g) While others completely don’t want to own a house-they are comfortable
where they are and dont intend to own any housing unit.
53. THAT for the foregoing we submit, that the Affordable Housing Act 2024
entrenches communism ideologies which is not provided in the constitution
and violates right property as provided in article 40 of the constitution.
Constitutional supremacy is Supreme.We invite the court to find so.
(F)WHETHER THE AFFORDABLE HOUSING ACT 2024 SUBJECTS KENYAN

PEOPLE TO SLAVERY AND SERVITUDE CONTRARY TO THE PROVISIONS OF
ARTICLE 25(B) OF THE CONSTITUTION?
54. THAT the government is deducting people through Affordable Housing

Act to give their hard earned money towards this levy without assurance of any
benefit they stand to gain by so contributing because the tax has been made
mandatory regardless of one’s true status in relation to housing.
Page 22 of 43
55. 169
THAT By forcing people to contribute to this levy/tax without their will, the
government seeks to subject its citizens to servitude contrary to Article 25(b)
which is explicit that freedom from servitude is a non-limitable right.
56. THAT Blacklaw dictionary defines servitude as a condition in which one

lacks liberty especially to determine one's course of action or way of
life. Purposive interpretation of CoK as provided in article 259 provides that
the constitution should be interpretated in a manner that promotes its
purposes, values and principles, advances the rule of law, human rights and
fundamental freedoms in the Bill of Rights and that contributes to good
governance
57. THAT Further and in particular, the AHA is unreasonable and

unconstitutional to the extent that it amounts to condemning workers
to service mortgages for unknown houses they don’t need and will never
own
58. THAT form the foregoing, working hard to earn a salary/income for you to
be deducted so that another person can get a house is slavery and servitude.
We submit that this Act entrenches slavery and servitude contrary to article
25(b) of the constitution(2010). We invite the court to find so.
(G)WHETHER ITS LEGAL AND CONSTITUTIONAL ON ISSUES OF PUBLIC

LAND ALLOCATION/ALIENATION WHERE THE RESPONDENTS BUILDS ON
PUBLIC LAND AND SELLS THE HOUSING UNITS TO PRIVATE ENETITIES?
59. THAT the petitioners submits that its illegal and unconstitutional to build
on public land and sell the units to private entities. At Section 41-45 , the Act
through the affordable housing fund purports to use public/community land
pursuant to Land Act 2012 and sell the said housing unit to a private
individual/corporate, Action which is unconstitutional in that:
Page 23 of 43
170
(a) That pursuant to Article 62(2) & (3) of the constitution, all public land
is held and managed and/or allocated by the national land
commission (NLC) and not any other body
(b) THE Act does not give the National Land Commission (NLC) on
allocation of land and process of processing of land acquisition. A
mention of Land Act per se does no cure this malady.
(c) That the procedure for disposal and/sale of public land whether with
or without housing units in it is governed by constitutional provisions
and as such an Act of parliament cannot purport to oust provisions of
the constitution where a house built on public and is sold to private
individuals/corporate.
(d) That the respondents have not told us the rationale and/or legality of
building on public land and then selling the same to the private
individuals/private companies (corporate).
(e) That pursuant to Article 63 of the constitution, all community land is
held and managed by held in trust by county governments on behalf
of the communities for which it is held and not any other body
(f) That one wonders the rationale for evicting Kenyans in public land in
the pretext of building affordable housing on the same and selling to
private individuals see example (see an example in annexure MG2)
60. THAT the Act does not explain whether the programme envisaged hereto is
affordable housing ownership or affordable rentals; (purchasing vs renting)
61. THAT the Act in sections 44 unconstitutionally purports to make contracts

with private institutions to build land on public land and sell the same to
private individuals/entities as provided at section 48-49. The Act has not
explained how the same is achieved since all public land is held and managed
by NLC. This provision in unconstitutional pursuant to Article 62(2) and (3) of
the Constitution (2010)
Page 24 of 43
62. THAT The Acts makes it mandatory for everyone (both tax/regulation 171
compliant and non-tax/regulation compliant people) to pay the levy. However,
during allocation of units, the Acts purports to discriminate these people into
tax/regulation-compliant viz-a-vis non-tax/regulation compliant groups
without rational justification as provided in article 24 of the constitution which
is only allowable “to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom”
63. THAT from the foregoing we submit that its legal and constitutional on
issues of public land allocation where the respondents build on public land
and sells the housing units to private entities?
(H)WHETHER THERE WAS BLATANT DISMISSAL OF THE RESULTS OF THE

PUBLIC PARTICIPATION PROCESS CARRIED OUT BY VIRTUE OF ARTICLES
10,118 AND 201 OF THE CONSTITUTION;
64. THAT it’s the petitioners’ submission that the respondents blatantly
dismissed/disregarded the results of public participation which rejected the
housing levy/by the majority during public participation hence rendering public
participation a cosmetic procedure and a waste of public resources contrary to
the provisions of Articles 10, 118 and 201 of the Constitution.
65. THAT The rejection of the said levy was on the basis that the same would
amount to over taxation of the people, who are already overburdened by a
multitude of taxes and levies, some of which have further been increased by the
Affordable Housing Act 2024.The taxpayers are already struggling with
mortgage payments and to literally force them to contribute to some levy
towards affordable housing is not only unfair, it is unreasonable and
unnecessary
66. THAT despite requesting parliament (National Assembly And The Senate) to
provide information of public participation pursuant article 35(1) &(2) of Cok
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172
as read with section 8 of Access Of Information Act, none was provided (see
annexure marked MG-3A &3B)
67. THAT In a matter, this court, Justice G.V Odunga (as he was), in Republic
=vs= Chief Licensing Officer & another Ex Parte Tom Mboya Onyango
(2017) eKLR (supra): - held as follows (See paragraph 70 below)-
o “……. The law is that in the ordinary way and particularly

in cases which affect life, liberty or property, the executive
should give reasons and if he gives none the court may
infer that he had no good reasons, similarly where the
reason given by the executive is not one of the reasons
upon which it is legally entitled to Act, the court is
entitled to intervene since the Action by the executive
would then be based an irrelevant matter….”
68. However a research conducted around that time by trends and insight
Africa(TIFA) showed 7 of 10 Kenyans(69%) rejected the housing levy.
✓ That a TIFA poll conducted on housing levy on Kenyans found

out that 69% of Kenyans (7 out of 10 Kenyans) are opposed to
the housing levy and feel the impact of high cost of living. (See
MG-4 AND link below)
https://www.tifaresearch.com/year-end-poll-kenyans-
reflections-of-2024-cost-of-living-economy-employment-
prospects-credit-access-and-political-climate
and
https://www.capitalfm.co.ke/business/2024/07/69pc-of-
kenyans-opposed-to-housing-levy-tifa-poll/
69. THAT From this, one can conclude that most Kenyans rejected this idea but
parliament overruled them. Although there are case laws supporting
parliament making amendments on what people have said, the said
amendments cannot not involve overhaul of the public sentiments.If this was
to be the case, there would be no need for public participation in the first
place.
Page 26 of 43
70. THAT Then it means that there is no meaningful reason to undertake 173
any public participation if the contents of the public participation are
not taken into account.
71. THAT the public participation was a charade and didn’t not follow
requirements of a public participation as held in supreme court case of 5 of
2017 -British American Tobacco Kenya, Plc (Formerly British American
Tobacco Kenya Limited) Vs Cabinet Secretary For The Ministry Of Health
& 5 others [2019] eKLR
95.Indeed the High Court, Odunga J, in Robert N. Gakuru & Others v

Governor Kiambu County & 3 others[2014] eKLR, in which case the Learned
Judged extensively borrowed from the South African jurisprudence in
Doctors for Life International vs. Speaker of the National Assembly and
Others,illuminated the law of public participation. He emphasized on the
seriousness with which public participation should be undertaken:
• “ 75. In my view public participation ought to be real and not

illusory and ought not to be treated as a mere formality for the
purposes of fulfilment of the Constitutional dictates.It is my
view that it behovest he County Assemblies in enacting
legislation to ensure that the spirit of public participation is
attained both quantitatively and qualitatively.Itis not just
enough in my view to simply leaveit to those who care to
scavenge for it.The County Assemblies ought to do whatever is
reasonable to ensure that as many of their constituents in
particular and the Kenyans in general are aware of the
intention to pass legislation and where the legislation in
question involves such important aspect as payment of taxes
and levies,the duty is even more onerous. I hold that it is the
duty of the County Assembly in such circumstances to exhort its
constituents to participate in the process of the enactment of
such legislation by making use of as may foras possible such as
Page 27 of 43
churches, mosques, temples, public barazas national and 174
vernacular radio broadcasting stations and other avenues
where the public are known to converge to disseminate
information with respect to the intended action.”
96. From the foregoing analysis, we would like to underscore that public
participation and consultation is a living constitutional principle that goes
to the constitutional tenet of the sovereignty of the people. It is through
public participation that the people continue to find their sovereign place
in the governance they have delegated to both the National and County
Governments. Consequently, while Courts have pronounced themselves on
this issue, in line with this Court’s mandate under Section 3 of the
Supreme Court Act, we would like to delimit the following framework for
public participation:
“Guiding Principles For Public Participation

(a) As a constitutional principle under Article 10(2) of the Constitution,
public participation applies to all aspects of governance.
(b) The public officer and or entity charged with the performance of a
particular duty bears the onus of ensuring and facilitating public
participation.
(c) The lack of a prescribed legal framework for public participation is

no excuse for not conducting public participation; the onus is on the
public entity to give effect to this constitutional principle using
reasonable means.
(d) Public participation must be real and not illusory. It is not a cosmetic
or a public relations act. It is not a mere formality to be undertaken
as a matter of course just to ‘fulfill’ a constitutional requirement.
There is need for both quantitative and qualitative components in
public participation.
Page 28 of 43
(e) Public participation is not an abstract notion; it must be purposive 175
and meaningful.
(f) Public participation must be accompanied by reasonable notice and

reasonable opportunity. Reasonableness will be determined on a case
to case basis.
(g) Public participation is not necessarily a process consisting of oral

hearings, written submissions can also be made. The fact that
someone was not heard is not enough to annul the process.
(h) Allegation of lack of public participation does not automatically

vitiate the process. The allegations must be considered within the
peculiar circumstances of each case: the mode, degree, scope and
extent of public participation is to be determined on a case to case
basis.
72. THAT the further the said charade of purported public did not have
components of meaningful public participation which include
Components of meaningful public participation include the following:
(a) Clarity of the subject matter for the public to understand;

(b) structures and processes (medium of engagement) of participation
that are clear and simple;
(c) opportunity for balanced influence from the public in general;
(d) commitment to the process;
(e) inclusive and effective representation;

(f) integrity and transparency of the process;
(g) capacity to engage on the part of the public, including that the public
must be first sensitized on the subject matter.
73. THAT form the foregoing we submit that there was blatant dismissal of the
results of the public participation process carried out by virtue of articles
10,118 and 201 of the constitution; we invite the court to find so.
Page 29 of 43
(I)WHETHER THE AFFORDABLE HOUSING ACT 2024 IS DISCRIMINATORY 176
74. That the Affordable Housing Act 2024 is discriminatory in that
(a) The act zeroes/emphasizes on employees (people with formal
employment).However it does not give clarity on collection of the levy form
other informal aspects of society
(b) The Act essentially discriminates the contributor fromm the beneficiary, where
the work of the contributor is to contribute money while the beneficiary is to
pay some small money to get a housing unit.
(c) further the act discriminates on who gets housing units as individuals and not
corporates despite both groups of people paying the said levy.
(d) That section 48 and 49(2)(d) discriminates people by introducing classes of
people in terms of tax compliance status such that its only people with tax
compliance who are supposed to be given housing units despite the fact the
same requirement is not required when being levied. This is discriminatory
contrary to Article 27 of the constitution.
75. THAT the housing act is discriminatory contrary to article 27 and 28 of the
constitution of the constitution(2010)
“DISCRIMINOMETER”-DISCRIMINATION TEST
76. THAT We submit that to determine whether an impugned action/statute is

discriminatory, the test to be applied is that laid down in Masai Mara (SOPA)
Limited v Narok County Government [2016] eKLR where the High Court,
Onguto J., stated as follows:
Discrimination has been defined generally as:-
“...a distinction, whether intentional or not but based on

grounds relating to personal characteristics of the individual or
group, which has the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed upon
others, or which withholds or limits access to opportunities,
benefits, and advantages available members of society”
Page 30 of 43
That was in the Canadian case of Andrews -v- Law Society of British 177
Columbia [1989] 1 SCR 143.
The court in Peter K. Waweru –v- Republic [2006] eKLR was even
terser in its definition of discrimination. The court defined
discrimination as
“… A failure to treat all persons equally where no reasonable

distinction can be found between those favoured and those not
favoured”
The grounds listed in Article 27(4) of the Constitution are intended to be

of illustrative and permissive application rather than strict and exclusive
application. The word ‘including’ as used in Article 27(4) has been used
as a word of enlargement to embrace not only the listed grounds but
also any other ground that leads to direct or indirect discrimination. The
essence of Article 27 is to ensure that no act or omission including
rules, law, practice, condition, policy or situation directly or indirectly
imposes burdens, obligations or disadvantages on or withholds benefits,
opportunities or advantages from any person on one or more prohibited
grounds. Laws, policies, rules, regulations, conditions or practice when
applied or enforced should ensure equality of outcome. In short,
achievement of substantive equality and not comparative or formal
equality is the goal of Article 27 of the Constitution.
Mere differentiation does not however amount to arbitrariness and the

impairment of the fundamental dignity of a person, the simple reason
being that it is generally impossible to regulate affairs of people without
differentiation. The categorization of park visitors with those who are not
residents must therefore not be deemed as discrimination without a
cautious further interrogation. The same no less applies to the
categorization or differentiation between foreign visitors who are to pay
in foreign currency and ‘local’ visitors who pay in local currency.
Page 31 of 43
The interrogation would even be more necessary in view of the fact that 178
the differentiation is not on any of the grounds specified under Article
27(4).
For purposes of the interrogation, the test to help establish

discrimination should truly be as was laid down in the case of Harksen
–v- Lane NO [1998] 1 SA 300 by the Constitutional Court of South
Africa when interpreting Section 8(2) of the Interim Constitution of
South Africa which is the equivalent of our Constitution’s Article 27. The
Court in Harksen v Lane NO (supra) stated as follows:
“[47] The question whether there has been differentiation on a

specified or an unspecified ground must be answered objectively.
In the former case the enquiry is directed at determining whether
the statutory provision amounts to differentiation on one of the
grounds specified…
Similarly, in the latter case the enquiry is whether the
differentiation in the provision is on an unspecified ground …If in
either case the enquiry leads to a negative conclusion then Section
8(2) has not been breached and the question falls away. If the
answer is in the affirmative, however, then it is necessary to
proceed to the second stage of the analysis and determine whether
the discrimination is “unfair”. In the case of discrimination on a
specified ground, the unfairness of the discrimination is
presumed, but the contrary may still be established. In the case of
discrimination on an unspecified ground, unfairness must still be
established before it can be found that a breach of Section 8(2) has
occurred.”
77. THAT In summary, applying the test to Kenya the question is firstly
whether the differentiation amounts to discrimination. If it is on a specified
ground, then discrimination will have been established. If it is not on a
specified ground, then whether or not there is discrimination depends on
Page 32 of 43
whether, objectively, the ground is based on attributes and characteristics 179
which have the potential to impair the fundamental human dignity of persons
as human beings or to affect them adversely in a comparably serious
manner.
78. THAT Secondly, if the differentiation amounts to ‘discrimination’ does it

amount to ‘unfair discrimination’? If it is found to have been on a specified
ground under Article 27(4) then unfairness is presumed. If however it is on
an unspecified ground then the complainant has to establish the unfairness,
and the test of unfairness focuses primarily on the impact of the
discrimination on the complainant and others in his or her situation.
79. THAT Finally, where the discrimination is found to be unfair then a

determination is to be made as to whether there can be any rational
justification under Article 24 of the Constitution and we submit there was no
rational justification for the same.
80. THAT Pursuant to the foregoing, we submit evidently , that there is an

unlawful differentiation without any justification contrary to article 27 and 28
of the constitution and that we invite the court to find so
(J) WHETHER THE AFFORDABLE HOUSING ACT 2024 THWARTED THE

LEGITIMATE EXPECTATION OF KENYANS?
81. THAT the petitioners and Kenyans being law abiding citizens have a
legitimate expectation that all state officers and state organs had to make the
law which are for Kenyans and not for themselves. This law is purely for the
executive and no one else. Kenyans have rejected the same in the
memoranda sent to the parliament. Despite this fact, the executive still wants
to do what it wants done, essentially making a mockery of public
participation. Kenyans has a legitimate expectation that that their views will
be followed as what they said in the public participation. Failure to follow this
Page 33 of 43
goes against the Constitution and statutory requirements and is contrary to 180
this expectation
82. THAT the petitioners and Kenyans being law abiding citizens have a
legitimate expectation that the respondents ought to respect the law on the
Kenyans’ voice since sovereignty belongs to the people and if there was
contrary to this expectation; Kenyans residents ought to be given legal
explanations and not innuendos
83. THAT In Oindi Zaippeline & 39 others v Karatina University & another
[2015] eKLR, the court of appeal (in paragraph 42-46 noted:
“42. “Legitimate expectation” is a doctrine well recognized within the realm
of administrative law. In re Westminster City Council, [1986] A.C. 668
at 692 (Lord Bridge):
“…the courts have developed a relatively novel doctrine in
public law that a duty of consultation may arise from a
legitimate expectation of consultation aroused either by a
promise or by an established practice of consultation.
Legitimate expectation applies the principles of fairness and
reasonableness, to the situation in which a person has an
expectation, or interest in a public body retaining a long-
standing practice, or keeping a promise. An instance of
legitimate expectation would arise when a body, by
representation or by past practice, has aroused an expectation
that is within its power to fulfill a promise.” (Emphasis ours)
43. A party that seeks to rely on the doctrine of legitimate expectation

has to show that it has locus standi to make a claim on the basis of
legitimate expectation. Wade and Forsyth in their work,
Administrative Law, 10th edition (pages 446-448), discuss the
relevant legal principles on legitimacy of an expectation. For an
expectation to be legitimate, it must be founded upon a promise or
practice by the public authority that is said to be bound to fulfill the
Page 34 of 43
expectation. Citing the House of Lords decision I R. v. DPP ex p. 181
Kebilene [1999] 3 WLR 972 (HL), the learned authors observe that a
statement made by a Minister cannot found an expectation that an
independent officer will act in a particular way. In R. v. DPP ex p.
Kebilene, (supra) it was stated that clear statutory words override
any expectation howsoever founded.
44. THAT The principle of legitimate expectation is well reflected in

judicial practice in Kenya. In Republic v. Nairobi City County &
Another ex parte Wainaina Kigathi Mungai, High Court Judicial
Review Misc. case No. 356 of 2013; [2014] eKLR it is stated that
legitimate expectation cannot override the law. In Republic vs.
Kenya Revenue Authority, ex parte Aberdare Freight Services
Limited [2004] 2 eKLR 530 it was held a public authority may not
vary the scope of its statutory powers and duties as a result of its
own errors or the conduct of others.
45. Legitimate expectation is founded upon a basic principle of

fairness - that legitimate expectation ought not to be thwarted –
that in judging a case a Judge should achieve justice and weigh the
relative strength of expectation. In South African Veterinary
Council v. Szymanski 2003 (4) S.A. 42 (SCA) at [paragraph 28]:
the Court held that “the law does not protect every expectation
but only those which are 'legitimate”. The requirements for
legitimate expectation include the following:
(a) The representation underlying the expectation must be 'clear,

unambiguous and devoid of relevant qualification': De Smith,
Woolf and Jowell (op cit -98- Petition No. 14 of 2014 [Judicial
Review of Administrative Action 5th ed] at 425 para 8-055).
(b) The requirement is a sensible one. It accords with the principle of

fairness in public administration, fairness both to the administration
Page 35 of 43
182
and the subject. It protects public officials against the risk that their
unwitting ambiguous statements may create legitimate expectations. It
is also not unfair to those who choose to rely on such statements. It is
always open to them to seek clarification before they do so, failing
which they act at their peril.
(c) The expectation must be reasonable: Administrator, Transvaal v.
Traub (1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and
Jowell (supra at 417 para 8- 037).
(d) The representation must have been induced by the decision-

maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050);
Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER
346 (PC) at 350h - j.
(e)The representation must be one which it was competent and

lawful for the decision-maker to make without which the
reliance cannot be legitimate: Hauptfleisch v. Caledon
Divisional Council 1963 (4) SA 53 (C) at 59E - G. This was also
referred to with approval in Walele v. City of Cape Town and
Others; 2008 (6) S.A 129 (C.C.) paragraph 41. -99- Petition No.
14 of 2014.
……46. The Kenya Supreme Court in Communications Commission of

Kenya & 5 Others .vs.Royal Media Services Limited & 5 Others,
Petition No. 14 of 2014 stated at paragraph 269 that the emerging
principles on legitimate expectation may be succinctly set out as follows:
(a) there must be an express, clear and unambiguous promise
given by a public authority;
(b) the expectation itself must be reasonable;
(c) the representation must be one which was competent and
lawful for the decision-maker to make; and
(d) there cannot be a legitimate expectation against clear
provisions of the law or the Constitution.
Page 36 of 43
84. THAT That we submit the above legitimate expectation had all the 183
principles of legitimate expectation in that the expectations were clear during
campaigns, and at swearing in that he would respect the constitution, was
reasonable, was made by a public official respondent(president and his
deputy), was lawful and was not against clear provisions of the law.
85. THAT We submit that the Affordable Housing Act 2024 thwarted the
legitimate expectation of Kenyans.
(K) WHETHER THE 21ST MARCH 2024 PRESIDENT’S ALLEGED DEAL WITH
HON. CHIEF JUSTICE MARTHA KOOME ON ENACTING AFFORDABLE
HOUSING ACT NEED ANY CONSIDERATION BY THIS HONORABLE COURT
86. THAT the president of the Republic of Kenya, (herein represented by the
Hon.Attorney General) in the month of 21ST March 2024 allegedly announced
while in Bomet on top of official presidential motorcade broadcasted by all
National Television(mass medial) that he had an agreements with
courts(Tumekubalina na mahakama tuwe na sheria ambayo itapanga mambo
ya housing) on enactment of a law dealing with housing. Although the said
sentiments was denied by the chief justice Hon.Justice Martha Koome, the
president all the same did not retract the said sentiments. He said this:
President Ruto: Tumekubalina na mahakama tuwe na sheria ambayo

itapanga mambo ya housing
CJ Marth Koome: The judiciary is not in any capacity able to enter

into any agreement with executive especially on
matters that is before court. The judiciary was not
a party in that cause…Am not a communication
expert, but what I can say or deduce from that
conversation is that it was taken out of context or
there was a misinterpretation
87. This can be found in CJ Koome rubbishes Ruto’s claims of housing tax
deal - YouTube in https://www.youtube.com/wach?v=TPJrQr-C64
Page 37 of 43
88. 184
Then one might ask if this can be considered by this honourable courts.That
article 1(1) & (3)(c) of the CoK, it states All sovereign power belongs to the
people of Kenya and shall be exercised only in accordance with this
Constitution and owing State organs, which shall perform their functions in
accordance with this Constitution—with Judiciary
89. THAT pursuant to article 1(3)(c),159,165, the judiciary is supposed to be

independent and not to be directed by any authority.Then even if those
involved in this issue are heads of 2 arms of government, the said statement
should be disregarded and not to be considered in this matter, since
considering it would be extra-judicial.
90. THAT From the foregoing, we submit that the courts should disregard the
“alleged deal” which was being being referred by the president. We invite the
court to find so.
(L)WHAT ARE OTHER CONSTITUTIONAL VIOLATIONS OCCASIONED BY

AFFORDABLE HOUSING ACT 2024?
91. THAT in addition to the issues submitted in the preceding paragraph, the
Affordable Housing Act and Levy is unconstitutional inter alia in the
following manner:
(a) THAT The fund has been established with faulty legal
framework and structures for implementation, making its
application a matter for the executive’s discretion and, therefore,
making it susceptible to abuse in violation of the principles of
public finance under Article 201 of the Constitution.
(b) THAT The fund has been established without any basis in
law, essentially making it a private fund that is being funded by
public resources.
(c) THAT There are no guarantees to contributors of benefits;
Page 38 of 43
there are very low penalties for stealing from the fund/board.For 185
all practical purposes, the fund subjects employees and other
income earners to cruel, inhuman and degrading treatment,
which is tantamount to servitude.
(d) THAT An individual’s salary is his or her private property

pursuant to Article 40 as read together with Article 260 of the
Constitution.
(e) THAT the way the respondents are using powers of Article 209(4) in
this Act seem not to fit with Article 10(2) the Constitution and part 3
of the bill of rights. The state is not allowed to have an illegal policy
of collecting levy while not considering Article 10(2) the Constitution
and part 3 of the bill of rights.
(f) THAT the act threatens right to consumer protections as envisaged in

Article 46(1)(c) of the Constitution on 46(1)(c) Consumers have the right
to the protection of their economic interests;
(g) THAT The Act does not explain on what happens to contributions
made by employed Kenyans who retire/ go out of employment for
instance persons remaining with 1-3months to retire. The issue which
arises as to what happens after the said person exits from the public
service and does not make any money afterwards. What happens to
his/her contributions? That to the extent that his/her contributions
are not accountable threatens right to property and its slavery and
servitude.
(h) THAT the Act is unconstitutional in that it grants free land to various
agencies as provided in schedule 3 of the Act. These agencies include
County government, National Housing Corporation, The slum
upgrading, Low cost housing and infrastructure trust fund
established under the government financial management (Kenya slum
upgrading, low cost housing and infrastructure trust fund) 2006,
Page 39 of 43
State department responsible for matters relating to affordable 186
housing, National social security fund, The private sector agencies as
may be approved by the board to support affordable housing and
institutional housing. However, once the Act has given land to these
entities, there is no mechanism of superintending it, essentially
giving rise to non-prudent use of scarce financial resources.
(M)CONCLUSION, ORDERS, RELIEFS/ORDERS

92. THAT in conclusion we have shown how the Affordable Housing Act 2024
has a myriad of provisions which are contrary to express provision of the
constitution. We do pray that you find that the consolidated petitions are
merited and allow is as prayed.
93. THAT The petitioner having put across the constitutional violations of
Affordable Housing Act 2024 which has caused gross violations of rights and
fundamental freedoms of defenseless Kenyans, the petitioner rests his case ;
now waiting the court to take up its role. We submit.END.
DATED at NAKURU this 22ND day of July 2024
1ST PETITIONER
PAULINE NDUTA KINYANJUI PHILEMON ABUGA NYAKUNDI

2ND PETITIONER 3RD PETITIONER
Page 40 of 43
187
SHALLUM KAKA NYAKUNDI JAMLICK OTONDI ORINA
4TH PETITIONER 5TH PETITIONER
DRAWN AND FILED BY
a) M/s Kamau Lagat & Co. Advocates,

Sakong House,Kenyatta Street, 2nd Floor,
Email:[email protected],
P.O Box 6128-30100,
ELDORET
b) DR.MAGARE GIKENYI J BENJAMIN

Consultant Trauma and General Surgeon
MBChB(UoN),Mmed(Mu),FCS(ECSA),Cert,HLM(Washington University)
Resma Plaza, 2nd Floor, Dr.Magare-Gikenyi Surgery Clinic
Email: [email protected]
Tel: +254721707151/0733705280
P.O Box 1805-20100
NAKURU
c) PAULINE NDUTA KINYANJUI

d) PHILEMON ABUGA NYAKUNDI

e) SHALLUM KAKA NYAKUNDI

f) JAMLICK OTONDI ORINA

TO BE SERVED UPON
(1) Eliud Karanja Matindi– [email protected]
(2) Okiya Omtatah Okoiti- [email protected]
(3) Okubasu & Munene Advocates-Email addresses -
[email protected] and [email protected]
(4) Benson Odiwuor Otieno– [email protected]
(5) Blair Angima Oigoro– [email protected]
(6) victor okuna- [email protected]
(7) Florence Kanyua Lichoro- [email protected]
(8) Juma John Isaac- [email protected]
(9) Hon. Alfred Kiptoo [email protected]
Page 41 of 43
(10) Charles Mutinda
Chief State Counsel
188
The Honourable Attorney General
Sheria House 7th Floor
Harambee Avenue
NAIROBI
[email protected],[email protected],
[email protected]
ADVOCATES FOR THE 1ST & 3RD RESPONDENT(AG &CS HOUSING)
(11) Wangeci Thanji, Advocate

P.105/8902/11-LSK/2024/01738
Protection House, 5th Floor
Parliament Road
P.O Box 41842-00100
Nairobi
ADVOCATES FOR THE 5TH INTERESTED PARTY(SENATE)
(12) Theuri Wesonga & Co. Advocates

Upperhill Gardens, 3rd Ngong Avenue
Block E, Suite No. 4
P.O. Box 50556-00200 Nairobi
Tel: 0740504535
Email: [email protected] ,[email protected]
ADVOCATES FOR THE 10TH INTERESTED PARTY(COFEK)
(13) The Cabinet Secretary Lands, Public Works, Housing and Urban
Development Email: [email protected]
(14) The Cabinet Secretary, The National Treasury and Economic
Planning , Email: [email protected], [email protected]
(15) National Assembly Email: [email protected].
(16) National Land Commission Email: [email protected]
(17) Kenya Revenue Authority , Email: [email protected]
(18) Controller Of Budget, Email: [email protected]
(19) Auditor General , Email: [email protected]
(20) Law Society Of Kenya email: [email protected]
(21) Operation Linda Jamii , email: [email protected]
(22) Kituo Cha Sheria , Email: [email protected]
(23) Katiba Institute, Email: [email protected]
(24) Tunza Mtoto Coalition
(25) Kenya Federation Of Employers , Email: [email protected]
(26) Kenya Medical Association , Email: [email protected]
(27) Kenya National Teachers Union , Email: [email protected]
(28) Kenya Union Of Post-Primary Education Teachers ,
(29) Email:[email protected],[email protected],
(30) [email protected]
(31) Kenya Medical Practitioners, Pharmacists and Dentists Union,
(32) Email: [email protected]
Page 42 of 43
(33)
(34)
Kenya National Union Of Nurses ,Email: [email protected]
Kenya Union Of Clinical Officers-Email:
189
[email protected],[email protected] state department for housing and
urban development- [email protected]
(35) THE NATIONAL HOUSING CORPORATION– [email protected]
and [email protected]
(36) The Kenya Slum Upgrading,Low Cost Housing And Infrastructure
Trust Fund (KENSUF)- [email protected]
(37) COMMISSIONER-GENERAL, KENYA REVENUE AUTHORITY-
[email protected]
(38) The Commission On Revenue Allocation- [email protected]
(39) The Controller Of Budget- [email protected] and [email protected]
(40) The Auditor [email protected]
(41) the national land commission- [email protected]
(42) the council of governors (CoG)- [email protected]
Page 43 of 43
PETITION NO. E154 OF 2024
IN THE MATTER OF: ILLEGAL AND IRREGULAR AFFORDABLE HOUSING ACT

2024 AND RIGHTS VIOLATIONS & ARTICLES 22(1) &
(2)(C), 23, 50(1), 159, 165(3)(D), AND 258(1) & (2)(C) OF
THE CONSTITUTION OF KENYA 2010.
IN THE MATTER OF: ALLEGED THREATS POSED BY SECTIONS OF 3(b),

4(2)(a),4(2)(b),4(3)(b),5,6,7,11(3),11(4)(a)&(c), 12, 14(5)(d),
15(2)&(3),16, 25,32,34,41,42,43,44,45,48,49,51,52,58
OF THE AFFORDABLE HOUSING ACT, 2024 TO
ARTICLES 1, 2, 3(1), 10, 19, 20, 21, 24, 25(A) & (C),
27(1) & (2),28,29 36, 40, 43, 46(1)(C), 47(1), 48, 50(1) &
(2), 93(2), 94(1), (4), (5) & (6), 109, 129, 131(2);
153(4),159(1),160, 185 (2), 186 (1) & 187 (2); 258 &
259(1) OF THE CONSTITUTION.
IN THE MATTER OF: ALLEGED FAILURES OF THE CS HOUSING & CS
NATIONAL TREASURY, THE NATIONAL ASSEMBLY &
SENATE TO UPHOLD THE CONSTITUTION AS EXPRESSLY
REQUIRED OF THEM, RESPECTIVELY, AT ARTICLES
153(4)(a), AND 93(2) AND 94(4) OF THE CONSTITUTION.
IN THE MATTER OF: RULE 4, 10, 11, 13 OF THE CONSTITUTION OF KENYA

(SUPERVISORY JURISDICTION & PROTECTION OF
FUNDAMENTAL FREEDOMS)- HIGH COURT PRACTICE
AND PROCEDURE RULES 2013
IN THE MATTER OF: INHERENT NATURAL LAW AND CONSTITUTIONAL
LIMITATIONS ON THE TAXING POWER OF THE
NATIONAL GOVERNMENT & RIGHTS VIOLATIONS.
IN THE MATTER OF: UPHOLDING CONSTITUTIONAL AND PROTECTING
TAXPAYERS FROM UNCONSTITUTIONAL TAXES/LEVY
IN THE MATTER OF: THE DOCTRINES OF NON-DISCRIMINATION, BILL OF
RIGHTS, NATURAL JUSTICE, CONSTITUTIONALISM, RULE
OF LAW AND LEGITIMATE EXPECTATIONS.
BETWEEN
DR. MAGARE-GIKENYI BENJAMIN……………………….………….1ST PETITIONER
Page 1 of 5
=VERSUS=
143
WORKS, HOUSING AND URBAN DEVELOPMENT...………….1ST RESPONDENT
AND ECONOMIC PLANNING.………………………………....….2ND RESPONDENT
THE HON. ATTORNEY GENERAL……………….……….….3RD RESPONDENT
NATIONAL ASSEMBLY……………………….……...…….……4TH RESPONDENT
THE SENATE …………….……………………………………………. 5TH RESPONDENT
AND
NATIONAL LAND COMMISSION…………………........... 1ST INTERESTED PARTY
KENYA REVENUE AUTHORITY…………………........... 2ND INTERESTED PARTY
CONTROLLER OF BUDGET…………………………......... 3RD INTERESTED PARTY
AUDITOR GENERAL…………………............................4TH INTERESTED PARTY
LAW SOCIETY OF KENYA…………………………….…….5TH INTERESTED PARTY
OPERATION LINDA JAMII……….….……………….…….6TH INTERESTED PARTY
KITUO CHA SHERIA………………….……………….…….7TH INTERESTED PARTY
KATIBA INSTITUTE……………………………. ….…….….8TH INTERESTED PARTY
TUNZA MTOTO COALITION………………….….………….9TH INTERESTED PARTY
CONSUMERS FEDERATION OF KENYA…………….10TH INTERESTED PARTY
KENYA FEDERATION OF EMPLOYERS………….……11TH INTERESTED PARTY
KENYA MEDICAL ASSOCIATION……………………….12TH INTERESTED PARTY
KENYA NATIONAL TEACHERS UNION…………….….13TH INTERESTED PARTY
TEACHERS ……………………………………………………14TH INTERESTED PARTY
AND DENTISTS UNION………………………………….….15TH INTERESTED PARTY
KENYA NATIONAL UNION OF NURSES ……………….16TH INTERESTED PARTY
KENYA UNION OF CLINICAL OFFICERS……….…….17TH INTERESTED PARTY
FURTHER AFFIDAVIT
(In support of petition Dated 19Th March 2024)
I, DR.MAGARE GIKENYI J BENJAMIN(MBChB(UoN), Mmed(Mu),

FCS(ECSA)Gen.Surg,Cert,HLM(University of Washington) is a Consultant Trauma
and General Surgeon working for the county government of Nakuru and is a
resident of Nakuru of postal address 1805-20100 Nakuru, being sui juris and
compos mentis do hereby make a solemn oath and state as doth”-
1) THAT I am a Kenyan National and the 1St petitioner herein hence competent
to make and swear this affidavit.
Page 2 of 5
144
2) THAT I am Kenyan Medic by profession, a parent and patriotic citizen of
Kenya who looks into a future of Kenya where society strictly follows rule of
law for betterment of society.
3) THAT I swear this affidavit in good faith, on my own behalf and, with their
authority, on behalf my co-petitioners in these proceedings, in support of our
Petition dated 19/3/2024
4) THAT I have perused the respondents replying affidavit. And I would wish to
add the following through this further affidavit
5) THAT the respondents have not provided the summary on what transpired
on the issue of housing levy despite requesting for the same on
20/1/2024(see MG-2).For instance how many Kenyans were for and how
many were against in terms of percentages to enable court make a just
determination. I have been advised by my advocate whose advise verily belief
to be true that failure to provide information is a sign that the respondents
are hiding something
6) THAT the president of the republic of Kenya, (herein represented by the

Hon.Attorney General) on 21ST March 2024 allegedly talked on National
Television(mass media) that he had an agreements(tumekubaliana) with courts
on enactment of a law dealing with housing. Although the said sentiments was
denied by the chief justice Hon.Justice Martha Koome, the president all the
same did not retract the said sentiments. He said this:
President Ruto: Tumekubalina na mahakama tuwe na sheria

ambayo itapanga mambo ya housing
CJ Marth Koome: The judiciary is not in any capacity able to enter
into any agreement with executive especially on
matters that is before court. The judiciary was not
a party in that cause…Am not a communication
expert, but what I can deduce say or deduce from
that conversation is that it was taken out of
context or there was a misinterpretation
Page 3 of 5
7) This can be found in (559) CJ Koome rubbishes Ruto’s claims of housing 145
tax deal - YouTube in https://www.youtube.com/wach?v=TPJrQr-C64
8) THAT these sentiments are matter of public notoriety and the court has take
judicial notice of the same. The downloading of the same was done
normally.These insinuations by the head of state on issues of the deal with
courts need to be disregarded.
9) THAT What is deponed to herein is true to the best of my knowledge, save

what has been deponed to on information and belief, the sources and
grounds whereof have been respectively specified.
SWORN at NAKURU this 19TH day of JULY 2024
Drawn & Filed By: -

DR. MAGARE GIKENYI J BENJAMIN
MBChB (UoN), Mmed (Mu), FCS(ECSA), Cert, HLM (Washington University) and
PAULINE NDUTA KINYANJUI, PHILEMON ABUGA NYAKUNDI, SHALLUM KAKA
NYAKUNDI AND JAMLICK OTONDI ORINA,
P.O Box 1805-20100
NAKURU
(a) DR. MAGARE GIKENYI J BENJAMIN
Page 4 of 5
(b) PAULINE NDUTA KINYANJUI
146
(c) PHILEMON ABUGA NYAKUNDI
(d) SHALLUM KAKA NYAKUNDI

(e) JAMLICK OTONDI ORINA
TO BE SERVED UPON: -
1) The Cabinet Secretary Lands, Public Works, Housing and Urban
Development Email: cs@lands,[email protected]
2) The Cabinet Secretary, The National Treasury and Economic Planning ,
Email: [email protected], [email protected]
3) The Hon. Attorney General ,
Email: [email protected],[email protected]
4) National Assembly Email: [email protected].
5) The Senate Email: [email protected] and
6) National Land Commission Email: [email protected]
7) Kenya Revenue Authority , Email: [email protected]
8) Controller Of Budget, Email: [email protected]
9) Auditor General, Email: [email protected]
10) Law Society Of Kenya email: [email protected]
11) Operation Linda Jamii , email: [email protected]
12) Kituo Cha Sheria , Email: [email protected]
13) Katiba Institute, Email: [email protected]
14) Tunza Mtoto Coalition
15) Consumers Federation Of Kenya ,
Email: [email protected],[email protected]
16) Kenya Federation Of Employers , Email: [email protected]
17) Kenya Medical Association , Email: [email protected]
18) Kenya National Teachers Union , Email: [email protected]
19) Kenya Union Of Post -Primary Education Teachers ,
Email:[email protected],[email protected],
[email protected]
20) Kenya Medical Practitioners, Pharmacists and Dentists Union,
21) Kenya National Union Of Nurses , Email: [email protected]
22) Kenya Union Of Clinical Officers, Email: [email protected]
Page 5 of 5
PETITION NO. E154 OF 2024 AS CONSOLIDATED WITH PET
E173,E176,E181,E191 & E011 ALL OF 2024
BETWEEN
DR. MAGARE-GIKENYI B……………..……………………….……….1ST PETITIONER
TRADE UNION CONGRESS OF KENYA…………………..……. ….6TH PETITIONER
MOSES NTHURIMA…………………..………………………..……. ….7TH PETITIONER
SENATOR OKIYA OMTATATH OKOITI,MP ……………..……. …8TH PETITIONER
SENATOR STEWART MADZAYO ,MP……………………..……. ….9TH PETITIONER
SENATOR ENOCK KIIO WAMBUA,MP………………..……. ….…10TH PETITIONER
SENATOR LEDAMA OLE KINA,MP………………………….. …...11TH PETITIONER
SENATOR EDWIN SIFUNA,MP………………………………... …...12TH PETITIONER
SENATOR OKONG’O OMOGENI(SC) ………………..…..……. ...13TH PETITIONER
SENATOR KAJWANG MOSES OTIENO,MP…….……..……. ….14TH PETITIONER
SENATOR GODFREY OSOTSI,MP………………….…...……. ….15TH PETITIONER
SENATOR MOHAMED FAKI MWINYIHAJI,MP….…………. ….16TH PETITIONER
SENATOR JOHNS MWARUMA,MP………………….…………. ….17TH PETITIONER
SENATOR CRYSTAL ASIGE,MP………………………….……. ….18TH PETITIONER
SENATOR DAN MAANZO,MP……………………………..……. ….19TH PETITIONER
SENATOR AGNES KAVINDU MUTHAMA,MP…….…...……. ….20TH PETITIONER
SENATOR DR. OBURU ODINGA,MP………………..…..……. …..21ST PETITIONER
SENATOR RICHARD ONYONKA,MP………….…….…..……. ….22ND PETITIONER
BEATRICE A AYOMO,MP…………………………….……….…. ….23RD PETITIONER
SENATOR CATHERINE MUYEKA MUMMA,MP……..……. ….24TH PETITIONER
SENATOR HAMID KIBWANA,MP…………………….…..……. ….25TH PETITIONER
SENATOR HEZENA LAMALETIAN,MP………………...……. …..26TH PETITIONER
SENATOR DR. BETH KALUNDA SYENGO,MP……..…..…. …..27TH PETITIONER
SHAKILA ABDALLA MOHAMED,MP……………………...…. …..28TH PETITIONER
SENATOR EDDY GICHERU OKETCH,MP…………….……. ……29TH PETITIONER
ELUD KARANJA MATINDI…………………………..…..……. …...30TH PETITIONER
BENSON ODIWOUR OTIENO……………………………...……. ….31ST PETITIONER
BLAIR ANGIMA OIGORO……………………………..……. ……….32ND PETITIONER
VICTOR AKUNA………………………………………….…..……. ….33RD PETITIONER
FLORENCE KANYUA LICHORO…………….…………..……. …..34TH PETITIONER
Page 1 of 6
JUMA JOHN ISAAC………………………………………..……. …..35TH PETITIONER 191
HON. ALFERED KIPTOO KETER……………….……..……. …..36TH PETITIONER
KENYA HUMAN RIGHTS COMMISSION………….…..……. …..37TH PETITIONER
KATIBA INSTITUTE………………………………………..……. …..38TH PETITIONER
PETER OKIRO……………………………………………….……. …..39TH PETITIONER
KELVIN KINYUA ……………………………………....…….….….40TH PETITIONER
ANDREW MWENDWA……………………………………..……. …....41ST PETITIONER
HARON NZOMO………………………………………..…..……. …….42ND PETITIONER
=VERSUS=
WORKS, HOUSING AND URBAN DEVELOPMENT...……...….1ST RESPONDENT
AND ECONOMIC PLANNING.…………………………....…….....2ND RESPONDENT
THE HON. ATTORNEY GENERAL………….……..…..….…..3RD RESPONDENT
NATIONAL ASSEMBLY………………………...…….….……....4TH RESPONDENT
THE SENATE …………….…………………………………….…….… 5TH RESPONDENT
COMMISSIONER GENERAL KENYA REVENUE AUTHORITY …...6TH RESPONDENT
SPEAKER NATIONAL ASSEMBLY………..….……...…….…….7TH RESPONDENT
THE MINISTRY OF LANDS, PUBLIC WORKS AND HOUSING
,URGAN DEVELOPMEN…………………………………..………….8TH RESPONDENT
NATIONAL HOUSING COPRPORATION RESPONDENT….…9TH RESPONDENT
KENYA UPGRADING, LOW COST HOUSING AND
INFRASTSRACTURE TRUST FUND ……….……….……..…10TH RESPONDENT
COMMISSION ON REVENUE ALLOCATION……………..…....11TH ESPONDENT
CONTROLLER OF BUDGET………………….……...…….……12TH RESPONDENT
AUDITOR GENERAL………………….……...……………..……13TH RESPONDENT
NATIONAL LAND COMMISSION………….…...…….………..14TH RESPONDENT
COUNCIL OF GOVERNORS………………………...……..……15TH RESPONDENT
AND
LAW SOCIETY OF KENYA……………………….…….…....1ST INTERESTED PARTY
OPERATION LINDA JAMII……….……………….…….... .2TH INTERESTED PARTY
KITUO CHA SHERIA………………………….………..….…3TH INTERESTED PARTY
KATIBA INSTITUTE……………………. ….………..………4TH INTERESTED PARTY
TUNZA MTOTO COALITION………….….…………..…....5TH INTERESTED PARTY
CONSUMERS FEDERATION OF KENYA……………...6TH INTERESTED PARTY
KENYA FEDERATION OF EMPLOYERS……………...…7TH INTERESTED PARTY
KENYA MEDICAL ASSOCIATION…………………….…..8TH INTERESTED PARTY
KENYA NATIONAL TEACHERS UNION………………….9TH INTERESTED PARTY
TEACHERS ……………………………………………….…..10TH INTERESTED PARTY
AND DENTISTS UNION……………………………………..11TH INTERESTED PARTY
KENYA NATIONAL UNION OF NURSES …………..…..12TH INTERESTED PARTY
KENYA UNION OF CLINICAL OFFICERS…………..….13TH INTERESTED PART
Page 2 of 6
1ST-5TH PETITIONERS LIST OF AUTHORITIES(PET E154 OF 2024) 192
(Final submissions for Nairobi High Court Constitutional Petition E154 of 2024 filed
on 19th March 2022 as consolidated with PET E173,E176,E181,E191 and E11 all of 2024
1) Institute of Social Accountability & Another v National Assembly & 4 Others
High Court, (2015) eKLR
2) Hardware & Ironmongery Vs Attorney General (E.A) 1972
3) Salaries and Remuneration Commission & another v Parliamentary Service
Commission & 15 others; Parliament & 4 others (Interested Parties) [2020]
eKLR
4) Umoja Rubber Products Limited V Kenya Power & Lighting Company
Limited (Civil Appeal 175 Of 2019) [2023] KEHC 19751 (KLR) (5 July 2023)
(Judgment),
5) Republic v Vice Chancellor Moi University & 2 others Ex parte Benjamin J.
Gikenyi Magare [2019] EKLR
6) Pastoli v Kabale District Local Government Council and others [2008] 2 EA
300
7) Republic =vs= Chief Licensing Officer & another Ex Parte Tom Mboya
Onyango (2017) eKLR
8) British American Tobacco Kenya, Plc (Formerly British American Tobacco
Kenya Limited) Vs Cabinet Secretary For The Ministry Of Health & 5 others
[2019] eKLR
9) Masai Mara (SOPA) Limited v Narok County Government [2016] eKLR
10) Oindi Zaippeline & 39 others v Karatina University & another [2015] eKLR
Page 3 of 6
DATED at NAKURU this 22ND day of July 2024 193
1ST PETITIONER
PAULINE NDUTA KINYANJUI PHILEMON ABUGA NYAKUNDI

2ND PETITIONER 3RD PETITIONER
SHALLUM KAKA NYAKUNDI JAMLICK OTONDI ORINA

4TH PETITIONER 5TH PETITIONER
DRAWN AND FILED BY

M/s Kamau Lagat & Co. Advocates,
P.O Box 6128-30100,
ELDORET
a) M/s Kamau Lagat & Co. Advocates,

P.O Box 6128-30100,
ELDORET
b) DR.MAGARE GIKENYI J BENJAMIN

MBChB(UoN),Mmed(Mu),FCS(ECSA),Cert,HLM(Washington University)
Tel: +254721707151/0733705280
P.O Box 1805-20100
Page 4 of 6
NAKURU 194
c) PAULINE NDUTA KINYANJUI
d) PHILEMON ABUGA NYAKUNDI

e) SHALLUM KAKA NYAKUNDI

f) JAMLICK OTONDI ORINA

TO BE SERVED UPON
(1) Eliud Karanja Matindi– [email protected]
(2) Okiya Omtatah Okoiti- [email protected]
(3) Okubasu & Munene Advocates-Email addresses - [email protected]
and [email protected]
(4) Benson Odiwuor Otieno– [email protected]
(5) Blair Angima Oigoro– [email protected]
(6) victor okuna- [email protected]
(7) Florence Kanyua Lichoro- [email protected]
(8) Juma John Isaac- [email protected]
(9) Hon. Alfred Kiptoo [email protected]
(10) Charles Mutinda
Chief State Counsel
The Honourable Attorney General
Sheria House 7th Floor
Harambee Avenue
NAIROBI
[email protected],[email protected],
[email protected]
ADVOCATES FOR THE 1ST & 3RD RESPONDENT(AG &CS HOUSING)
(11) Wangeci Thanji, Advocate

P.105/8902/11-LSK/2024/01738
Protection House, 5th Floor
Parliament Road
P.O Box 41842-00100
Nairobi
ADVOCATES FOR THE 5TH INTERESTED PARTY(SENATE)
(12) Theuri Wesonga & Co. Advocates

Upperhill Gardens, 3rd Ngong Avenue
Block E, Suite No. 4
Page 5 of 6
P.O. Box 50556-00200 Nairobi
Tel: 0740504535
195
Email: [email protected] ,[email protected]
ADVOCATES FOR THE 10TH INTERESTED PARTY(COFEK)
(13) The Cabinet Secretary Lands, Public Works, Housing and Urban
Development Email: [email protected]
(14) The Cabinet Secretary, The National Treasury and Economic
Planning , Email: [email protected], [email protected]
(15) National Assembly Email: [email protected].
(16) National Land Commission Email: [email protected]
(17) Kenya Revenue Authority , Email: [email protected]
(18) Controller Of Budget, Email: [email protected]
(19) Auditor General , Email: [email protected]
(20) Law Society Of Kenya email: [email protected]
(21) Operation Linda Jamii , email: [email protected]
(22) Kituo Cha Sheria , Email: [email protected]
(23) Katiba Institute, Email: [email protected]
(24) Tunza Mtoto Coalition
(25) Kenya Federation Of Employers , Email: [email protected]
(26) Kenya Medical Association , Email: [email protected]
(27) Kenya National Teachers Union , Email: [email protected]
(28) Kenya Union Of Post-Primary Education Teachers ,
(29) Email:[email protected],[email protected],
(30) [email protected]
(31) Kenya Medical Practitioners, Pharmacists and Dentists Union,
(32) Email: [email protected]
(33) Kenya National Union Of Nurses ,Email: [email protected]
(34) Kenya Union Of Clinical Officers-Email:
[email protected],[email protected] state department for housing and
urban development- [email protected]
(35) THE NATIONAL HOUSING CORPORATION– [email protected] and
[email protected]
(36) The Kenya Slum Upgrading,Low Cost Housing And Infrastructure
Trust Fund (KENSUF)- [email protected]
(37) COMMISSIONER-GENERAL, KENYA REVENUE AUTHORITY-
[email protected]
(38) The Commission On Revenue Allocation- [email protected]
(39) The Controller Of Budget- [email protected] and [email protected]
(40) The Auditor [email protected]
(41) the national land commission- [email protected]
(42) the council of governors (CoG)- [email protected]
Page 6 of 6
Institute of Social Accountability & another v National Assembly & 4 others [2015] eKLR
196
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 71 OF 2013
BETWEEN
THE INSTITUTE OF SOCIAL ACCOUNTABILITY........1ST PETITIONER
CENTRE FOR ENHANCING
DEMOCRACY AND GOOD GOVERNANCE.................2ND PETITIONER
AND
THE NATIONAL ASSEMBLY......................................1ST RESPONDENT
THE SENATE............................................................2ND RESPONDENT

ATTORNEY GENERAL.............................................3RD RESPONDENT
CONSTITUENCIES DEVELOPMENT FUND BOARD....4TH RESPONDENT
AND
THE COMMISSION FOR THE
IMPLEMENTATION OF THE CONSTITUTION.......INTERESTED PARTY
JUDGMENT
Introduction
1. The petitioners seek declarations that Constituencies Development Fund Act, Act No. 30 of 2013
(‘CDF Act’) violates the Constitution. The legislation establishes a fund known as the Constituencies
Development Fund (CDF) which has for the past decade disbursed money to the constituencies to
finance and implement development projects.
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2. The petitioners challenge the constitutionality of the CDF Act on two fronts; the process leading to its
enactment and the substance of the legislation including the nature, administration and management of
the CDF. The petitioners contend that the CDF Act contravenes the constitutional principles of the rule
of law, good governance, transparency, accountability, separation of powers and the division of powers
between the national and county government and the public finance management and administration.
Parties to the Petition
3. The 1st petitioner, the Institute of Social Accountability, a registered trust whose objective is to promote
good governance, transparency and accountability mechanisms in local governance and in utilization of
financial resources filed Nairobi Petition No. 71 of 2013. The 2nd petitioner, the Centre for Enhancing
Democracy and Good Governance, is a civil society organization working to enhance democracy and
good governance. It filed Nakuru Petition No. 16 of 2013.
4. The 1st and 2nd respondents, the National Assembly and the Senate respectively, are State Organs
established under Chapter 8 of the Constitution. They collectively form Parliament which is the
legislative arm of the national government. The 3rd Respondent, the Attorney General is an office
established under Article 156 of the Constitution and is the principal legal advisor to the government.
5. The Constituencies Development Fund Board (“CDF Board”), the 4th respondent, is a body corporate
established under the provisions of section 5 of the CDF Act. It has the mandate of ensuring timely and
efficient disbursement of funds to every constituency, ensuring sufficient management of the fund and
addressing complaints and disputes relating to management of the Fund.
The Proceedings
6. Nairobi Petition No. 71 of 2013 was filed on 3rd February 2013 while Nakuru Petition No. 16 of
2013 was filed on 10th May 2013. The latter petition was transferred to Nairobi on 15th May 2013 and
consolidated with the Nairobi petition on 22nd May 2013 with the consent of the parties. On 3rd June
2013, the Chief Justice constituted a three judge bench comprising ourselves in accordance with Article
165(4) of the Constitution, to hear and determine the matter.
7. After the petitions were filed, the National Assembly passed an amendment to the CDF Act through
the Constituencies Development Fund (Amendment) Act, 2013 (Act No 36 of 2013) (“the CDF
(Amendment) Act, 2013”) on 6th August 2013. Following the amendment, the petitioners sought and
obtained leave to amend the consolidated petition. Thereafter the petitioners filed an amended petition
dated 29th January 2013 in which they sought the following orders;
a. That a declaration be issued under Sections 1, 2, 6(2), 10(1)(a), 186, 189(1)(a), 202(2) and Schedule
4 of the Constitution that the Act is unconstitutional, because it offends the principles of public finance,
division and separation of powers.
b. That a declaration be issued that the numerous provisions of the Act that violate the Constitution
cumulatively render the entirety of the Act untenable and therefore constitutionally invalid ab initio.
c. That a declaration be issued that any organ or body purportedly established by this Act is illegal as it
created without the authority of the law.
d. That a declaration be issued that failure to involve the Senate in the consideration, deliberation and
passage of the CDF (Amendment) Act 2013 was unconstitutional and therefore renders the CDF

198
(Amendment) Act 2013 as invalid.
e. That a declaration be issued that failure by the National Assembly to provide reasonable opportunity
for the members of the public to provide their views on the CDF (Amendment) Act, 2013 and failure by
the National Assembly to facilitate public participation in the passage of CDF (Amendment) Act, 2013 is
unconstitutional and therefore renders the CDF (Amendment) Act 2013 invalid.
f. That an order issue striking down the Act for being unconstitutional and so as to pave way for the
enactment of a valid legislation to administer conditional grants allocated to counties by the national
government.
g. That the costs of, and incidental; to, this petition be awarded to the Petitioner against the
Respondents.
h. That this Honourable Court be pleased to grant such further order or orders as may be just and
appropriate.
Factual Background
8. The factual background to this petition is uncontested. The petitioners’ case revolves around the
interpretation of the CDF Act in light of the Constitution.
9. The CDF was originally established by the now repealed Constituencies Development Fund Act,
2003 (“CDF Act, 2003”). The Act set aside a specific portion of the annual government budget for
financing of grassroots infrastructure within the Constituencies. The objective of the CDF Act as set out
in the preamble was, “to provide for the establishment of the Constituencies Development Fund and for
connected purposes”. The intendment of the Act was to ensure that the government set aside at least
2.5% of its ordinary revenue and channel it to the CDF to be utilized at the constituency level. For
purposes of administration of the CDF fund, a national CDF Board was established and at the
constituency level CDF committees were established with the respective Member of Parliament being
the Committee Patron.
10. The CDF Act, 2003 underwent major amendments in 2007. These changes included the formation
of a fully-fledged state corporation known as the CDF Board to replace the National Committee. This
Board was given the mandate to manage the Fund including the approval of projects.
11. On 22nd June 2009, the Minister of State for Planning, National Development and Vision 2030
through, Gazette Notice No. 6392, appointed the CDF Review Task Force to review all aspects of CDF
with a view to amending the laws governing it and giving recommendations on how to improve its
institutional framework. The Task Force handed over its report on 1st June 2010.
12. In January, 2013 Parliament passed the CDF Act, No. 30 of 2013 which effectively repealed the
CDF Act, 2003. On 2nd August 2013, the CDF (Amendment) Bill was published. The Amendment Bill
was introduced for the first time in Parliament on 6th August 2013. It went through the processes of
deliberation and was passed on the same day. The notification that the Amendment Bill had been
published was made in the Kenya Gazette of 8th August 2013 and the Bill assented to by the President
on 13th September 2013.
13. In the Amended Petition, the Petitioners are therefore impugning some of the provisions of the CDF
Act, 2013 and the CDF (Amendment) Act, 2013 and the process leading to its enactment. For

199
purposes of convenience, reference to the CDF Act in this judgment means the Act as amended by the
impugned amendment.
The Petitioners’ Case
14. The petitioners’ case is contained in the Amended Petition of 29th January 2013, the affidavits of
Wanjiru Gikonyo sworn on 4th September 2013 and 4th February 2014 and the written submissions dated
22nd July 2013.
15. The petitioners found their case on the principle of supremacy of the Constitution which means that
this Court is obliged to invalidate an Act of Parliament, omission or any law that contravenes the
Constitution. They cite several cases among them, Jayne Mati & Another v Attorney General and
Another Nairobi Petition No. 108 of 2010 [2011]eKLR, Samuel Momanyi v Attorney General and
Another Petition No. 341 of 2011 [2012]eKLR, Johnson Muthama v Minister for Justice and
Constitutional Affairs and Another Petition No. 198 of 2011 [2012]eKLR and the South African
Constitutional Court case of Minister of Health and Others v Treatment Action Campaign and
Others (2002) 5 LRC 216.
16. The petitioners submit that Article 202 of the Constitution has established a detailed formula for the
equitable sharing of revenue between the national government and the county government. That Article
203 of the Constitution provides the criteria for the equitable share of the funds and that the county
governments’ share of the budget shall not be less than 15% of the total budget. The petitioners take
issue with section 4(1)(a) of the CDF Act which establishes the CDF as a national fund consisting of
moneys of an amount not less than 2.5% “of all the national government ordinary revenue collected in
every financial year”. This phrase, the petitioners contend, bears the same meaning as the phrase
‘revenue raised nationally’ or ‘of all the revenue collected by the national government’ as contained
in Articles 202(2) and 203(2) respectively, which means that the CDF is created prior to the allocation of
the national revenues between the national and county governments. It was therefore their case that the
CDF Act has introduced new criteria for equitable sharing from that which is provided for under Articles
201, 202 and 203 of the Constitution.
17. The petitioners also challenge the manner in which the CDF is administered. It is their case that the
CDF Act has created the fund to be administered by individual MPs rather than through the machinery
of either the national government or the county government, thus in effect creating a third party which
can share in the equitable allocation of the national revenue. It is their case that section 24 of the CDF
Act is unconstitutional as it allocates certain administrative responsibilities to Members of National
Assembly who perform certain implementation and administrative roles as well as an oversight role
through the National Assembly Committee on CDF. This, they claim makes the MP both an executor of
the CDF projects as well as a legislator. They submit that arming the Members of the National Assembly
with the ability to play both of these roles violates the principle of separation of powers which is an
integral part of the Constitution as stated by the Supreme Court in the decision in In the Matter of the
Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 [2011]eKLR.
The petitioners further submit that the administration and implementation of projects for which the
National Assembly has determined the allocation of funds is not a function assigned to the National
Assembly and in any event such an arrangement undermines the principle of accountability under
Article 10 of the Constitution.
18. The petitioners contend that sections 4(1)(c), (1)(d) and 4(2) of the CDF Act characterizes the
money given to the CDF as a conditional grant, and even so the money is not remitted to the counties,
instead, the National Assembly has set its own structures to receive the money and implement projects.

200
This is without the involvement of the counties since there is no representation of county governments in
the CDF Board and CDFC. The petitioners further contend that it is irregular within the meaning of
Article 202(2) of the Constitution to describe the CDF as a conditional grant because counties are not
even involved in its implementation and therefore there is no need to impose conditions on the counties
in relation to CDF. They thus claim that the effect of sections 4(1)(c), (1)(d) and 4 (2) as read together
with section 3 of the CDF Act is to allow the national government to overstep its restricted constitutional
functional mandate by purporting to establish CDF as a conditional grant to the counties yet the counties
neither receive any monies nor have any role in the selection and implementation of the projects funded
through CDF.
19. The petitioners also take issue with the purpose of the CDF fund in terms of the development
projects to be financed through the CDF. They contend that the CDF Act has not identified the specific
types of projects that should be undertaken but has instead used broad terminology to describe the
projects which are allowed. They point to the language used in Schedule Four to the Constitution
dealing with division of functions between the two levels of government stating that it is instructive that
the functions assigned to Counties are localized and whatever functions undertaken by the counties are
limited to the geographic scope of the county. The petitioners maintain that that any projects undertaken
through CDF are local and are county projects and not a project of national function. The sum of their
argument is that the CDF Board, being a national organ, has unconstitutionally encroached on the
functions of the County government and as such, sections 3 and 22 of the CDF Act are invalid.
20. The petitioners further argue that the CDF Act is unconstitutional as its design is such that it locates
the CDF projects outside the county government planning processes. They contend that whereas the
national government may provide money to execute such projects, the only organ with the powers to
plan and execute the project is the county government. That therefore, the national government had
violated the Constitution by establishing a parallel development scheme in the form of CDF which usurps
the powers of the county governments.
21. Apart from the substantive provisions, the petitioners have also challenged the constitutionality of the
CDF Act on the ground that due process was not followed in its enactment. It is the petitioners’ case
that the National Assembly failed to facilitate meaningful participation in the enactment of the CDF
(Amendment) Act rendering it unconstitutional. The petitioners rely on the South African Constitutional
Court case of Doctors for Life International v Speaker of the National Assembly and
Others (CCT12/2005) 2006 ZACC 11 where the Court held that Parliament was under a public duty to
genuinely consider public views in the enactment of legislation.
The 1st Respondent’s case
22. The 1st Respondent, the National Assembly, opposes the petition through the affidavits sworn on 23rd
July 2013 and 3rd April 2014 by Hon. Moses K. Lessonet, the Chairperson of the National Assembly
Committee on the CDF established under section 28 of the CDF Act, 2013. It also filed written
submissions dated 14th May 2014 and further submissions dated 25th August 2014.
23. The position of the National Assembly is that the CDF Act has set out a clear demarcation of roles
for a Member of Parliament as an ex-officio member of the CDF Committee and also as a link between
the Committee and the people in the constituency. Counsel for the 1st respondent relied on the decision
by the Philippines Supreme Court in Greco Antonius Beba Belgica and 3 Others v Honourable
Executive Secretary Raquito n Ochoa JR Secretary of Budget and Management Florencio B.
Abad and Another (GR No. 208566) where it was held that the involvement of individual legislators in
post enactment measures such as project identification, release of funds and funds realignment of the

201
Priority Development Assistance Fund are not within the functions of congressional oversight but belong
to the execution of the budget. Counsel further submitted that the MPs assist the CDF Committees with
views and opinions and that it is the Committee which is the body mandated to disburse the CDF and
oversee the implementation of projects in the constituency.
24. On the question of separation of powers, the National Assembly submitted that a pure separation of
powers does not exist in any country nor is it desirable. In that regard, counsel relied on the Indian
Supreme Court case of Minerva Hills Ltd & Others v Union of India and Others [1980] 3 SCC 625
where the Court had held that there is no rigid separation of powers but there is a broad demarcation
and at times, each of the arm of government may perform the functions of the other. Counsel also
pointed to the situations in Tanzania and Germany to illustrate that separation of powers is not pure and
that one arm of government normally interferes with the functions of another arm of government.
25. The 1st respondent contends that there was public participation in the process of enactment of the
CDF (Amendment) Bill, 2013. Counsel submitted that the National Assembly has a broad measure of
discretion in how it achieves the object of public participation dependent on the circumstances of the
case. The case of Commission for the Implementation of the Constitution v The Parliament of
Kenya & Others Petition No. 454 of 2012 [2013]eKLR was cited in support of this proposition.
26. Furthermore, National Assembly argued that the impugned Amendment Bill did not require extensive
public participation upon publication because the Bill was short and precise as it dealt with the deletion of
section 4(2) of the CDF Act. That at the committee stage, an amendment was introduced to amend
section 20 of the Act so as to provide for the manner of equitable sharing of the fund among
constituencies and entrench the constitutional principles of equalization as set out under Article 204 of
the Constitution. The National Assembly submitted that the CDF Committee had received considerable
public opinion and as such, there was in effect public participation in passing the legislation. It was urged
that the CDF Committee had received overwhelming representations from the public that the fund was
not additional revenue to the county governments as the funds did not go to the county but to the
constituencies.
The 2nd Respondent’s case
27. The 2nd Respondent, the Senate, did not participate in these proceedings despite being served.
The 3rd Respondent’s case
28. The 3rd Respondent, the Hon. Attorney General did not file any response to the petition but filed
written submissions on points of law.
29. The Attorney General submitted that section 3 of the CDF Act providing for the object of the Act
resonates well with the Constitution especially with regard to development, equity and devolution of
resources and as such, the CDF Act and the Fund cannot be declared unconstitutional.
30. The Attorney General submits that under Article 1 (2) of the Constitution, the people’s participation,
which is a form of exercising their sovereign power may either be direct or through their democratically
elected representatives, and that the enactment of the CDF Act was done through the Members of
Parliament who are people’s democratically elected representatives. In that regard counsel representing
the Attorney General cited Consumer Federation of Kenya (COFEK) v The Public Service
Commission and the Attorney General Petition No. 263 of 2013 [2013]eKLR.

202
31. The Attorney General further submits that the various committees established under the CDF Act
are meant to ensure competitiveness and a people centered approach in the appointment of the
members. Counsel cited the provisions of section 24 of the Act, which provide for an elaborate
procedure for the appointment of the CDF Committees through a transparent and people centered
process in line with the constitutional principles of inclusiveness in decision making processes.
32. The Attorney General denies that there is a violation of the separation of powers principle as the
administration of the Fund is left to the Board and the Constituency Committees, whose membership
excludes Members of Parliament. The Attorney General submits that Members of Parliament can
exercise oversight over the fund and make their contributions in terms of the development of their
constituencies.
33. Regarding the division of powers and functions under the Constitution, the Attorney General submits
that the constituency is a unit of representation for the purpose of elections of the Members of the
National Assembly but nonetheless, it is taken as a sub-unit of the county and as such, for administration
and development purposes, it is under the County and therefore under the administration of the County.
In this respect, counsel for the Attorney General submitted that while the Constitution provides for the
distribution of functions between the national and county government, such function must be performed
in a manner the respects the functional and institutional integrity that respects each level of government
as provided in Article 189(1)(a) of the Constitution.
34. The Attorney General contends that the principles of public finance management under Article 201
of the Constitution such as accountability, transparency and public participation are inbuilt in the CDF
Act. That the Act has provided for clear accountability and transparent measures on the management of
the CDF Fund.
35. The Attorney General, in the written submissions, submitted that if the constituency is a unit of the
sub-county then it is squarely under the administration of the County and in that respect, administrative
roles that are imposed on national government officials are clearly unconstitutional. It is the position of
the Attorney General that the Act is not unconstitutional though the management and administration of
the CDF should be under the direction and control of the county government.
The 4th Respondent’s case
36. The 4th Respondent, the CDF Board, in response to the petition filed affidavits sworn by Yusuf
Mbuno, its Chief Executive Officer on 24th May 2013 and 5th May 2014 and also an affidavit sworn by
Clarah Kimeli, its Legal Officer on 13th February 2013.
37. Mr Mbuno deponed that the CDF Act, 2013 was enacted to repeal and replace the CDF Act, 2003 in
order to align it with the devolved government structure. He denied that the Act in any way interferes with
the functions of County Governments.
38. The CDF Board submits that under section 36 of the Act, the function of the County Committee is to
coordinate implementation of projects funded under the Act and ensure there is no duplicity in
implementation of projects funded within the County. The CDF Board distanced the National Assembly
members from project implementation financed by the CDF stating that this is done by a project
management committee established under section 31 of the Act and not Members of the National
Assembly as alleged by the petitioners. Further, that it is the CDF Board that administered the Fund and
not Members of Parliament as alleged by the petitioners. The Board points out that members of the CDF
Committee are elected by the constituents of the particular constituency. That the constituents nominate

203
five individuals from each ward to be forwarded to the Officer of the Board in the Constituency, and then
the National Assembly member of the area in consultation with the officer of the Board and sub-county
administrator appoints eight members from the nominated list. The CDF Board notes that membership of
the County Project Committee is representative and includes elected leaders at the county such as the
governors, senators in addition to the National Assembly member. The CDF Board contends that the
function of the National Assembly Select Committee is that of oversight like any other committee of the
National Assembly and as such, the role of the Member of the National Assembly must be viewed in the
context of the role of the National Assembly envisaged under Article 95 of the Constitution.
39. As regards allocation of revenue to the constituencies, the position of the CDF Board is that funds
are allocated to the Fund based on the formula established by the Commission on Revenue Allocation
and the National Assembly and that the Board does not have any role to play in the allocation process.
40. It is also the Board’s position that the CDF Act is complimentary to any development and it should
therefore be interpreted in the context of section 47 of the Act. That section 4(2) of the CDF Act does
not violate Article 202(1) of the Constitution because the characterization of the moneys from CDF fund
as revenue to county governments under Article 202(1) is meant to make it clear funds are allocated
from the national government share of revenue after taking into consideration the allocation formula set
out under Article 203 of the Constitution. In any event, it was his assertion that the CDF Act does not
violate the principle on division of functions of the national and county governments as provided for
under the Constitution but has instead created structures to align itself to the devolved governing
structures and organs under the Constitution. The Board also avers that it has used prudent financial
management as provided for under Article 201 of the Constitution.
41. As regards public participation, the Board submits that the CDF Act, 2013 was enacted as a result of
the Taskforce on CDF which recommended amendments to CDF Act, 2003 after having engaged
various stakeholders, through public hearings and other measures to collect public views. That following
the promulgation of the Constitution, a panel of six members from the previous Task Force and three
members of CDF Board was constituted to carry out a review of the CDF Act, 2003 and ensure it was in
line with the Constitution. Thereafter, a Special Committee was established to revise the
recommendations made by the Panel and to align them with the Constitution and other legislation on
devolved government. The Board maintains that throughout this process, the Committee engaged
various stakeholders including the petitioners in that task. It is the Board’s contention that there was
public participation that led to the enactment of the Act.
42. The Board further submits that the CDF (Amendment) Bill, 2013 was enacted to amend the primary
Act so as to correct an error and align it with the spirit of the Act and as such did not require public
participation. That in any event, it would be cumbersome, difficult and impossible that every time
Parliament intended to amend legislation to correct errors there would be public participation. Counsel
for the Board cited the case of Moses Munyendo & 908 Others v The Attorney General and Minister
for Agriculture Petition No. 16 of 2013 [2013]eKLR, where the court held that there is presumption of
public participation where legislation has been enacted in accordance with National Assembly Standing
Orders. It was therefore the Board’s position that the Bill was not hurriedly passed and was indeed
published in the Kenya Gazette of 8th August 2014.
43. The CDF Board refuted the claim that section 4(2) of the Act violates the Constitution because the
monies are allocated to constituencies from the national government’s share of revenue as a charge to
the consolidated fund. According to the CDF Board, section 4(2) was amended to appreciate that CDF
is not concerned with county governments and that money allocated under CDF Act, 2013 is not
additional revenue to county governments but funds allocated to constituencies. The Board therefore

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submits that it was not necessary to have the CDF (Amendment) Bill, 2013 forwarded to the Senate for
debate and passage and consequently the Bill and the Act does not contravene Articles 110 (3) and
114(2) of the Constitution as claimed. The Board also discounted the argument that the CDF does
interfere with devolved governance and division of functions between the national and county
government urging that the amendment of section 4(2) brought the Act into conformity with the spirit of
the Act as anchored under section 4(1) (c) of the Act.
44. The Board submits that the CDF (Amendment) Bill does not affect the functions and powers of the
county governments as stipulated under the provisions of Article 110 of the Constitution. Citing Re
Matter of the Interim Independent Electoral Commission (supra), the Board contended that the
petitioners had not demonstrated how the CDF Act or CDF (Amendment) Act bears significant impact
on the conduct of the County government.
45. According to the Board, the CDF Committees and the Board are responsible for the monitoring of the
implementation of projects in terms of sections 24 (7), 31(3) and 18 of the CDF Act and that allocation
of funds to the project is the responsibility of the Committee and that therefore, there is no duplication of
duties in the implementation of the CDF projects and each of the parties plays a distinct role. Further that
the National Assembly Select Committee on CDF plays an oversight role as provided for under section
5 of the Act.
46. As regards the petitioners’ contention that the CDF Act allowed the national government to encroach
on the functions of the County Governments, the Board responds that Article 95(1) of the Constitution
sets out the key function of the National Assembly as a representative of the people at the constituency
level and that the language of Article 95 was wide and encompassing in so far as constituencies are
concerned. That the parliamentary committee’s role under section 10(1) of the Act should be viewed in
the context of the National Assembly’s primary function as representatives of the people and its
oversight on national revenue. Additionally, that Parliament has powers to appropriate funds as
anchored under the provisions of Article 95(4)(b) and 206 of the Constitution and it has in fact set up
other funds such at the as Uwezo Fund, Youth Enterprise Fund without enacting an Act of Parliament.
The Board also submits that the CDF finances activities not supported by County governments such as
education through bursaries to needy students and security.
The Interested Party’s case
47. The case for the Interested Party, the Commission on the Implementation of the Constitution
(hereinafter “CIC”) is as contained in the written submissions dated 27th May 2013.
48. CIC submits that despite the intended objective to align the CDF Act with the Constitution, the Act as
enacted was fundamentally flawed and was unconstitutional in many respects. First, the Act violated the
provisions of section 14 of the Sixth Schedule as read together with section 2(3)(b) of that Schedule
which requires that before any laws relating to Chapter Eleven and Twelve are enacted, the CIC and the
Commission on Revenue Allocation (CRA) must be consulted and be given at least 30 days to consider
the proposed legislation.
49. Second, section 4(1) (a) of the Act violated the Constitution in that it failed to exclude the CDF from
the Consolidated Fund as provided for under Article 206(1) of the Constitution. CIC contended that it
was not clear whether the money towards the CDF Fund was to be disbursed by the national
government before or after the equitable sharing of revenue between the national and county
government as envisaged under Article 202(1) of the Constitution or whether it was an additional
allocation in line with Article 202(2) of the Constitution. That in any event, Article 202(2) of the

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Constitution leaves the discretion to the national government as to whether to grant allocations to county
government and that that discretion cannot be limited in the manner proposed under the CDF Act, 2013.
50. Third, that under Section 4(2) of the Act, monies allocated under the CDF Act do not qualify as
grants unless they are expressed as such by the national government. That there is an ambiguity under
the provisions of sections 4(1)(c) and 4(2) of the CDF Act which will lead to conflict between the
national and county governments. That in disbursing the monies directly to the constituencies bypassing
the county governments, the Act offends the provisions of Article 202(2) of the Constitution.
51. Fourth, that the CDF Act only excludes projects of a political and religious nature from the Act. As
such, the Fund’s activities include funding and overseeing the development of projects which relate to
functions which are contemplated as being within the exclusive mandate of the county governments as
provided for under the Fourth Schedule of the Constitution thus rendering the devolution concept
meaningless. Further, that section 48(1) (b) of the County Government Act has decentralized
counties into sub-counties which are equivalent to constituencies within the county therefore assignment
of funds to new structures outside those created by the county violates the devolved government
structure as contemplated under the Constitution. That section 36 of the CDF Act creates project
committees to coordinate the implementation of projects financed through the Fund. That under section
37, the membership to such committees includes officers who are not part of county governments. As
such, CIC submits that the role of the county project committee is in conflict with the constitutional and
statutory roles of county governments.
52. CIC also submits that the involvement of the members of the National Assembly in the management
of the CDF is a violation of the Constitution. That by giving them a role in the implementation of the CDF
directly conflicts with their oversight role as provided for under Article 95(4) of the Constitution.
53. Lastly, CIC submits that the Public Finance Management Act, 2012 has created elaborate
mechanisms for planning and funding of the county development projects as provided for under section
126 of the Act. That the planning process provided for under the CDF Act, 2013 is diametrically opposed
to that process and would in essence lead to duplication of projects and consequent misuse and
misapplication of public resources.
Determination
54. Looking at the parties’ pleadings and submissions, the core issue presented to us for determination
is whether the CDF Act as amended is constitutional. We have identified four key issues for our
consideration:
a. Whether the process leading to the enactment of the CDF Act is Constitutional;
b. Whether the CDF Act offends the principles of public finance and division of revenue provided under
the Constitution;
c. Whether the CDF Act violates the division of functions between the national and county government;
and
d. Whether the CDF Act offends the principle of separation of powers.
55. The parties do not dispute this Court’s jurisdiction to entertain this petition. Article 258 of the
Constitution grants every person the right to institute court proceedings claiming that the Constitution has

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been contravened or is threatened with contravention and such is the dispute before us. This task
demands that we deal with the issues involving the interpretation of the various provisions of the
Constitution as well as the impugned statute. In that regard, it is important to set out the relevant
principles that will guide us in the task ahead.
56. First, this Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a
manner that promotes its purposes, values and principles, advances the rule of law, human rights and
fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its
judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote
the purpose and principles of the Constitution.
57. Second, there is the general presumption that every Act of Parliament is constitutional and the
burden of proof lies on any person who alleges otherwise (see Ndyanabo v Attorney General of
Tanzania [2001] EA 495). We therefore reiterate that this Court will start by assuming that the CDF Act
2013 is constitutional and valid unless the contrary is established by the petitioners.
58. Third, in determining whether a Statute is constitutional, the Court must determine the object and
purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see
Murang’a Bar Operators and Another v Minister of State for Provincial Administration and
Internal Security and Others Nairobi Petition No. 3 of 2011 [2011]eKLR, Samuel G. Momanyi v
Attorney General and Another (supra)). Further, in examining whether a particular statutory provision
is unconstitutional, the court must have regard not only to its purpose but also its effect. The Canadian
Supreme Court in the R v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 enunciated this principle as
follows;
Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose
or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the
legislature intends to achieve. This object is realized through impact produced by the operation and
application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and
its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked
to for guidance in assessing the legislation’s object and thus the validity.
59. Fourth, the Constitution should be given a purposive, liberal interpretation. The Supreme Court in Re
The Matter of the Interim Independent Electoral Commission Constitutional Application (supra) at
para. 51 adopted the words of Mohamed A J in the Namibian case of State v Acheson 1991(20 SA 805,
813) where he stated that;
The Constitution of a nation is not simply a statute which mechanically defines the structures of
government and the relationship government and the governed. It is a mirror reflecting the “national
soul” the identification of ideas and ..... aspirations of a nation, the articulation of the values bonding its
people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside
and permeate the process of judicial interpretation and judicial discretion.
60. Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an
integrated whole, without any one particular provision destroying the other but each sustaining the other
(see Tinyefuza v Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC
3)).
61. We are duly guided by the principles we have outlined and we accept that while interpreting the
impugned legislation alongside the Constitution, we must bear in mind our peculiar circumstances. Ours

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must be a liberal approach that promotes the rule of law and has jurisprudential value that must take into
account the spirit of the Constitution. As this is a matter that concerns devolution, we recall what the
Supreme Court stated in The Speaker of the Senate & Another v Attorney-General & Another & 3
Others Advisory Reference No. 2 of 2013 [2013] eKLR;
[136] The Kenyan people, by the Constitution of Kenya, 2010 chose to de-concentrate State power,
rights, duties, competences – shifting substantial aspects to the county government, to be exercised in
the county units, for better and more equitable delivery of the goods of the political order. The dominant
perception at the time of constitution-making was that such a deconcentration of powers would not only
give greater access to the social goods previously regulated centrally, but would also open up the scope
for political self-fulfilment, through an enlarged scheme of actual participation in governance
mechanisms by the people – thus giving more fulfillment to the concept of democracy.
Whether due process adhered to in the enactment of the CDF Act
62. Where both the process and the substance of legislation are challenged, it is prudent to begin by first
examining the impugned process before proceeding to the substance. This is because if the process
leading to the enactment of an Act is constitutionally flawed, then the resulting legislation is also flawed
and that would be the end of the matter.
63. Article 93 establishes Parliament comprising the National Assembly and the Senate. Each of these
Houses is enjoined to, “perform their respective functions in accordance with [the] Constitution” and
where the Constitution prescribes a procedure that ought to be followed in enacting a law, that procedure
must be followed. Thus, while Parliament may legislate on any matter concerning the Republic (Article
186(4)), the legislation must conform to the Constitution both procedurally and in its substance. As was
observed in the Doctors for Life Case (supra);
[208] It is trite that legislation must conform to the Constitution in terms of both its content and the
manner in which it was adopted. Failure to comply with manner and form requirements in enacting
legislation renders the legislation invalid. And courts have the power to declare such legislation invalid …
this Court not only has a right but also has a duty to ensure that the law-making process prescribed by
the Constitution is observed. And if the conditions for law-making processes have not been complied
with, it has the duty to say so and declare the resulting statute invalid.
64. The petitioners challenge the constitutionality of the CDF (Amendment) Act on the basis that the
Senate was not involved in its passing yet it was a Bill concerning the County government. In response
to that submission, the National Assembly took the position that the CDF (Amendment) Act was not
considered by the Senate because it was resolved by the Speakers of the two Houses of Parliament that
the Act did not concern counties. It was contended that the CDF (Amendment) Bill concerned money
and not counties. Article 109(3) and (4) of the Constitution provides:
(3) A Bill not concerning county government is considered only in the National Assembly, and passed in
accordance with Article 122 and the Standing Orders of the Assembly.
(4) A Bill concerning county government may originate in the National Assembly or the Senate, and is
passed in accordance with Articles 110 to 113, Articles 122 and 123 and the Standing Orders of the
Houses.
Under Article 110(1) of the Constitution, ‘a Bill concerning county government’ means;

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a. A Bill containing provisions affecting the functions and powers of the County Governments set out in
the Fourth Schedule
b. A Bill relating to the election of members of a county assembly or a county executive; and
c. A Bill referred to in Chapter Twelve affecting the finances of county governments.
Article 110(3) of the Constitution then provides for the procedure for enacting a legislation concerning
counties in the following terms;
Before either House considers a Bill, the Speakers of the National Assembly and Senate shall jointly
resolve any question as to whether it is a Bill concerning counties and, if it is, whether it is a Special or
an ordinary Bill.
As to whether a Bill is one that concerns county or not, the Supreme Court in The Speaker of the
Senate Case (supra) at para 102 cited the Final Report of the Task Force on Devolved Government
Vol. 1: A Report on the Implementation of Devolved Government in Kenya [page 18] which stated as
follows;
The extent of the legislative role of the Senate can only be fully appreciated if the meaning of the phrase
‘concerning counties’ is examined. Article 110 of the Constitution defines bills concerning counties as
being bills which contain provisions that affect the functions and powers of the county governments as
set out in the Fourth Schedule; bills which relate to the election of members of the county assembly or
county executive; and bills referred to in Chapter Twelve as affecting finances of the county
governments. This is a very broad definition which creates room for the Senate to participate in the
passing of bills in the exclusive functional areas of the national government, for as long as it can be
shown that such bills have provisions affecting the functional areas of the county governments.
65. In this matter we recall that the respondents submitted that the Speakers of the two houses had
resolved that the CDF (Amendment) Bill was not a Bill concerning counties and as such, was not
supposed to be considered by the Senate. The Supreme Court in The Speaker of the Senate Case
(supra) stated as follows in respect to classification of Bills by the Speakers of the Houses;
Where the Speakers determine that a Bill is not one “concerning county government”, such a Bill is then
rightly considered and passed exclusively by the National Assembly, and then transmitted to the
President for assent. The emerging, broader principle is that both Chambers have been entrusted with
the people’s public task, and the Senate, even when it has not deliberated upon a Bill at all the relevant
stages, has spoken through its Speaker at the beginning, and recorded its perception that a particular
Bill rightly falls in one category, rather than the other. In such a case, the Senate’s initial filtering role, in
our opinion, falls well within the design and purpose of the Constitution, and expresses the sovereign
intent of the people, this cannot be taken away by either Chamber or either Speaker thereof.
66. Accordingly it is clear that if the Speaker of the Senate signifies concurrence with a Bill that it falls
within one category or another, it may well be said that would be the end of the matter. However, the
issue whether the matter is one for county government is of constitutional importance and the decision of
the respective speakers, while respected, cannot be conclusive and binding on the court whose
jurisdiction it is to interpret the Constitution and as the final authority on what the Constitution means.
Participation of the Senate in the legislative process is not just a matter of procedure, it is significant to
the role of the Senate in our constitutional scheme as the Senate’s legislative role is limited to matters
concerning county governments. Through its participation in the legislative process, the Senate is seized

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of the opportunity to discharge its primary mandate which is, to protect the interests of the counties and
county governments as mandated under Article 96(1) of the Constitution. It is a means of ensuring that
the county voice is heard and considered at the national forum and the interests of counties and their
governments secured. This way, the sovereign power of the people is duly exercised through their
democratically elected representatives. Therefore, when the speakers of both chambers classify bills
under Article 110, they are essentially resolving on the question as to whether and to what extent
provisions of a particular Bill affect the interests of county governments, and consequently whether
county input ought to be invited.
67. Under Article 165(3)(d) of the Constitution, the High Court has jurisdiction to hear any question
regarding the interpretation of the Constitution. The Court must therefore interrogate any legislation and
decide whether, on the principle laid out in The Speaker of the Senate Case (supra), it is a bill that falls
within the provisions of Article 110 of the Constitution.
68. On the issue of consultation between the Speakers of both Houses of Parliament, Hon. Moses
Lessonet deponed at paragraph 4 and 5 of his affidavit as follows;
[4] That I was the sponsor of the CDF (Amendment) Bill 2013 in the National Assembly. I moved the Bill
following receipt by the Committee on the CDF of various representations from members of the public
and various bodies, including the Petitioners herein in their submissions to court, that the CDF is not
additional revenue to county governments’. My Committee agreed with this position particularly taking
into account the fact that the funds are not disbursed to county governments’ but directly to the
constituencies under the mechanisms set out in the Act.
[5] That on the issue of whether the Bill should have been considered by the Senate, that is question for
determination by the Speakers of the two Houses of Parliament as provided for under Article 110(3) of
the Constitution. I verily believe that this issue was resolved by the two Speakers of Parliament and it
was resolved that the Bill was not a Bill concerning counties and therefore did not require to be
considered by the Senate.
69. In our view and we so hold, the fact that the legislation was passed without involving the Senate and
by concurrence of the Speakers of both House of Parliament, is neither conclusive nor decisive as to
whether the legislation affects county government. In other words, while concurrence of the Speakers is
significant in terms of satisfaction of the requirements of Article 110(3) of the Constitution, it does not by
itself oust the power of this Court vested under Article 165(3)(d) where a question is raised regarding
the true nature of legislation in respect to Article 110(1). The court must interrogate the legislation as a
whole and determine whether in fact the legislation meets the constitutional test of a matter, “concerning
county government.” We shall revert to this issue when we review the substance of the CDF Act and the
subsequent amendment to determine whether in fact the legislation is a matter concerning county
government.
70. The next procedural challenge was raised by the CIC which submitted that the CDF (Amendment)
Act violated the provisions of section 14 of the Sixth Schedule as read together with section 2(3)(b) of
that Schedule which requires that before any laws relating to Chapters Eleven and Twelve are enacted,
the CIC and the Commission on Revenue Allocation (CRA) must be consulted and given at least 30
days to consider the proposed legislation. The two chapters deal with devolved government and public
finance respectively. Section 14 of the Sixth Schedule to the Constitution provides as follows;
14. (1) The laws contemplated in section 2 (3) (b) and section 15 may be enacted only after the
Commission on the Implementation of the Constitution and, if it has been established, the Commission

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on Revenue Allocation, have been consulted and any recommendations of the Commissions have been
considered by Parliament.
(2) The Commissions shall be given at least thirty days to consider legislation under subsection (1).
(3) Subsections (1) and (2) lapse when the Commission on the Implementation of the Constitution is
dissolved.
71. The laws contemplated under section 2(3)(b) of the Sixth Schedule to the Constitution are the laws
relating to devolved government required to be enacted by the Sixth Schedule and Chapters Eleven
and Twelve of the Constitution within the period stipulated in the Fifth Schedule. In our view the CDF
(Amendment) Bill was not one of the laws contemplated under section 14 of the Sixth Schedule as it
was an amendment to existing legislation.
72. The third and last limb of argument challenges the process of the enactment of the CDF
(Amendment) Act on the ground of lack of public participation in the enactment process.
73. The petitioners contend that the CDF (Amendment) Act is unconstitutional because the National
Assembly failed to facilitate meaningful participation and genuinely consider public views in its
enactment. In response to that submission, the National Assembly submitted that it has a broad measure
of discretion on how it achieves the object of public participation and that the same varies from case to
case. That the Amendment to CDF did not require extensive public participation because the Bill was
short and precise dealing with deletion of only section 4(2) of the CDF Act and that the CDF Committee
had received considerable public opinion and as such, there was in effect public participation in passing
the legislation. On their part, the CDF Board submitted that the CDF (Amendment) Act did not require
public participation as it was enacted primarily to amend the CDF Act in order to align it with the
Constitution.
74. Public participation is anchored in Article 10(2) of the Constitution which establishes the founding
values of the State which include, among others, transparency, accountability and participation of the
people. The Constitution contemplates a participatory democracy that is accountable and transparent
and makes provisions for public involvement in legislative affairs hence Article 118 of the Constitution
provides thus;
118 (1) Parliament shall-
a. Conduct its business in an open manner and its sittings and those of its committees shall be open to
the public, and
b. Facilitate public participation and involvement in the legislative and other business of Parliament and
its Committees.
75. As to the nature and form of public participation, the South African Constitutional Court in Doctors
for Life International Case (supra) held that;
[105] The international law right to political participation encompasses a general right to participate in the
conduct of public affairs and a more specific right to vote and/or be elected into public office. The
general right to participate in the conduct of public affairs includes engaging in public debate and
dialogue with elected representatives at public hearings. But that is not all; it includes the duty to
facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary

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information and effective opportunity to exercise the right to political participation.
(See also Kenya Small Scale Farmers and Others v Republic and Others Nairobi Petition No. 1174
of 2007 [2013]eKLR)
76. How public participation is given effect will vary from case to case but it must be clear, upon
examination of the legislative process, that a reasonable level of participation has been afforded to the
public. In Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others 2006
(2) SA 311 (CC) at para. 630, Sachs J., noted that;
The forms of facilitating an appropriate degree of participation in the law-making process are indeed
capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is
offered to members of the public and all interested parties to know about the issues and to have an
adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each
case.
77. We are in agreement with the exposition of the law as stated above. Applying the same principles in
the instant case we find that the CDF (Amendment) Bill is dated 2nd August 2013. It was then first
introduced in the National Assembly on 6th August 2013. It was debated on the same day and passed. It
was then published in the Kenya Gazette Vol. CXV No. 114 dated 8th August 2013 and assented to by
the President on 13th September 2013. Prima facie, the short time within which the legislation was
passed would seem, did not afford an opportunity for public participation.
78. In response to the argument that there was no public participation, Hon. Lessonet depones as
follows;
[6] In this regard the CDF (Amendment) Bill 2013, did not require extensive public participation upon
publication for the following reasons:
a. The Bill was short and precise, dealing with deletion of only Section 4(2) of the CDF Act, being
Section 4(2) thereof. A minor committee stage amendment was introduced to amend Section 20 of the
Act to provide for the manner of equitable sharing of the fund among constituencies and to entrench the
constitutional principle of equalization as set out at Article 204 of the Constitution. This is also a matter
on which the Committee on the CDF has received considerable public fund.
b. The committee on the CDF had received overwhelming representations from the public that the Fund
is not additional revenue to county governments’ as the funds did not go to county governments’ but to
the constituencies. Funds allocated to county governments from the national revenue is dealt with by the
Division of Revenue Bill and Revenue Allocation Bill as set out at Articles 215, 216, 217, 218 and 219 of
the Constitution of Kenya 2010. The Repealed Section 4(2) of the CDF Act, 2013, was therefore
misplaced in law and required to be deleted. This is clear even from the report of the CDF Review Task
Force on the CDF Act made on 1st July 2010.
c. The object of public participation is to enable the public make known their views to Parliament so as to
guide and inform deliberations and legislation. The views of the public were already known with respect
to the repealed Section 4(2) and therefore there was no need for further public participation. Indeed, it is
instructive that the Petitioners herein have not given any contrary view to Section 4(2) of the principle
Act.
d. A house of Parliament is solely responsible for making its own procedure for enactment of laws as set

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out at Article 124 of the Constitution. There was nothing unconstitutional for the National Assembly to
shorten time for consideration and passing of the CDF (Amendment) Bill 2013.
77. The issue as to whether there was public participation is not merely a matter of form but one of
substance. The court must look at the process to determine whether it meets constitutional muster. In
Law Society of Kenya v Attorney General Nairobi Petition No. 318 of 2012 [2013]eKLR the court
observed that,
[51] In order to determine whether there has been public participation, the court is required to interrogate
the entire process leading to the enactment of the legislation; from the formulation of the legislation to
the process of enactment of the statute.
78. There is no dispute that the process of amendment of the CDF Act commenced through a task force
that engaged stakeholders. After the Task Force presented its report, the CDF Board undertook a further
review of the Act where stakeholders were engaged. There are instances that before legislation is
proposed, it is preceded by intensive public consultation. These consultation and other pre-legislation
activities ought to be taken into account in assessing whether there has been a modicum of public
participation. We therefore find that there was public participation in formulation of the law. In the actual
Committee Stage, the impugned amendment was moved and accepted. In light of the process of
formulation of the CDF legislation, we do not accept that there was no public participation to the extent
that the CDF Act was rendered invalid.
79. We are aware that during the legislative process, amendments to the Bill may be moved during the
Committee Stage and to hold that every amendment moved must undergo the process of public
participation would negate and undermine the legislative process. In this case, we are satisfied that the
amendment moved was in substance, within the parameters of what had been subjected to public
participation during the review process. We find that the public was involved in the process of enactment
of the CDF Act through the Task Force and review panel earlier set up by CDF Board. The amendment
was within the parameters of what was in the public domain and in the circumstances we find and hold
that the amendment bill did not violate the principle of public participation.
Whether Section 4 of the CDF (Amendment) Act offends the principles of public finance and
division of revenue
80. The principal question here concerns the nature of the CDF and whether it upsets the formula for
equitable sharing of national revenue provided under the Constitution. Is the CDF a conditional grant to
the counties"
81. That county governments, just like the national government, require money to perform the functions
allocated to them under the Constitution is unassailable. It is no wonder then that there are several
provisions in the Constitution governing how revenue is to be shared between the two levels of
government. Indeed, a key principle of devolved government is that county governments must have
reliable sources of revenue to enable them to govern and deliver services effectively in terms of Article
175(b) of the Constitution. Furthermore, an important principle of public finance as enshrined under
Article 201(b)(ii) is that revenue raised nationally is to be shared equitably among the national and
county governments. Similar provisions are echoed by Article 202(1) which lays emphasis on equitable
sharing of national revenue. County governments’ share of revenue must be at least fifteen per cent
of ‘all revenue collected by the national government’ in accordance with Article 203(2) of the
Constitution. The import of this provision is that any amount that reduces the amount of shareable
revenue or revenue collected by the national government effectively affects the amount available to the

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counties hence an infringement on the requirements of this provision. We must therefore agree with the
petitioners that the Constitution does not envisage any other organ, body or fund to have a share of all
the revenue collected by the national government before it is shared as between the two levels of
government established under Article 1(4) of the Constitution.
82. There are two levels of revenue sharing under the Constitution, vertical sharing between the national
government on the one part and the 47 county governments collectively on the other. This is done
annually through the Division of Revenue Bill. There is also the horizontal sharing of the county’s
shareable revenue among the 47 county governments under Article 217 of the Constitution in
accordance with the criteria set in Article 203 of the Constitution. This sharing amongst the 47 county
governments is done in form of an annual County Allocation of Revenue Act. A county government’s
share of revenue must then be promptly transferred to the county ‘without undue delay and without
deduction’ in terms of Article 219 of the Constitution. The Constitution also provides for the Equalisation
Fund established under Article 204 to which is paid one half per cent of all revenue collected by the
national government. This amount may be used by the government directly or indirectly through
conditional grants to county governments in areas where there are marginalized communities.
83. The Constitution permits national government to allocate monies in form of grants whether
conditional or unconditional to the county government. The germane issue here is whether the CDF
qualifies as a national government grant to county governments within the meaning of Article 202(2) and
whether it disturbs the equitable sharing of revenue between the two levels of government as envisaged
under the Constitution.
84. According to the petitioners, national revenue is only shareable between the national and county
governments and that the CDF Act ushers in a third party, the CDF, to the table of revenue sharing
unknown under the Constitution. The petitioners condemn the wording of section 4 of the CDF Act as it
demands that the CDF receives money prior to division of the national revenue between the two levels of
government. On their part the respondents contend that the CDF Act has not introduced new criteria for
sharing of national revenue.
85. Section 4 of the CDF Act provides thus;
4(1) There is established a fund to be known as the Constituencies Development Fund which shall—
(a) be a national fund consisting of moneys of an amount of not less than 2.5% (two and half per
centum) of all the national government ordinary revenue collected in every financial year;
(b) comprise of any moneys accruing to or received by the Board from any other source;
(c) disbursed by the national government through the Board to constituencies as a grant to be
channelled to constituencies in the manner provided for by this Act;
(d) be administered by the Board.
In order to determine the constitutionality or otherwise of section 4, the same must be examined through
the prism of the principles of public finance as set out under Article 201 of the Constitution as follows;
201. The following principles shall guide all aspects of public finance in the Republic—
(a) there shall be openness and accountability, including public participation in financial matters;

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(b) the public finance system shall promote an equitable society, and in particular—
(i) the burden of taxation shall be shared fairly;
(ii) revenue raised nationally shall be shared equitably among national and county governments; and
(iii) expenditure shall promote the equitable development of the country, including by making special
provision for marginalised groups and areas;
(c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably
between present and future generations;
(d) public money shall be used in a prudent and responsible way; and
(e) financial management shall be responsible, and fiscal reporting shall be clear.
Article 202 of the Constitution has then established for the equitable sharing of national revenue as
follows;
202. (1) Revenue raised nationally shall be shared equitable among the national and county
governments.
(2) County governments may be given additional allocations from the national government’s share of the
revenue, either conditionally or unconditionally.
86. As can be seen from the provisions we have outlined above, the equitable sharing of revenue among
the national and county governments is one of the principles established under Article 201 as part of the
principles and framework governing public finance in Kenya. This objective is achieved in accordance
with the criteria set out in Article 203(1) as follows;
203(1) The following criteria shall be taken into account in determining the equitable shares provided for
under Article 202 and in all national legislation concerning county government enacted in terms of this
Chapter—
(a) the national interest;
(b) any provision that must be made in respect of the public debt and other national obligations;
(c) the needs of the national government, determined by objective criteria;
(d) the need to ensure that county governments are able to perform the functions allocated to them;
(e) the fiscal capacity and efficiency of county governments;
(f) developmental and other needs of counties;
(g) economic disparities within and among counties and the need to remedy them;
(h) the need for affirmative action in respect of disadvantaged areas and groups;

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(i) the need for economic optimisation of each county and to provide incentives for each county to
optimise its capacity to raise revenue;
(j) the desirability of stable and predictable allocations of revenue; and
(k) the need for flexibility in responding to emergencies and other temporary needs, based on similar
objective criteria.
(2) For every financial year, the equitable share of the revenue raised nationally that is allocated to
county governments shall be not less than fifteen per cent of all revenue collected by the national
government.
(3) The amount referred to in clause (2) shall be calculated on the basis of the most recent audited
accounts of revenue received, as approved by the National Assembly.
87. We have already reproduced the provisions of section 4(1)(a) of the CDF Act which provides that
there shall, “be a national fund consisting of moneys of an amount of not less than 2.5% (two and half
per centum) of all the national government ordinary revenue collected in every financial year” [Emphasis
ours]. A plain and literal reading of this section establishes that the monies forming part the CDF shall
be 2.5% of all the national government ordinary revenue collected in every financial year. The issue
therefore is what happens after the sharing of national revenue between the two levels of government.
From a plain reading of Articles 202 and 206 of the Constitution, it is clear that the national government
has various ways in which it can deal with the revenue allocated to it. The starting point would be the
provisions of Article 202(2) of the Constitution which empowers the national government to give
additional revenue out of its share either conditionally or unconditionally to the county government.
88. National government money shall be dealt with in accordance with the provisions of Article 206 of
the Constitution as follows;
206. (1) There is established the Consolidated Fund into which shall be paid all money raised or
received by or on behalf of the national government, except money that—
(a) is reasonably excluded from the Fund by an Act of Parliament and payable into another public fund
established for a specific purpose; or
(b) may, under an Act of Parliament, be retained by the State organ that received it for the purpose of
defraying the expenses of the State organ.
89. We have combed through the provisions of Chapter Twelve of the Constitution which deals with
public finance and we must agree with the petitioners that nowhere is it contemplated that a constituency
shall be one of the beneficiaries of the national revenue before it is divided between the national and
county government. Article 206 (1)(a) and (b) of the Constitution excludes from the Consolidated Fund
such monies excluded by an Act of Parliament and is payable into another fund established for a specific
purpose. Counsel for the National Assembly emphasized the fact that the CDF was such a fund
established by an Act of Parliament.
90. We wish to emphasize once again that section 4(1)(a) of the CDF Act provides that the CDF shall
be a national fund consisting of moneys of an amount of not less than 2.5% (two and half per
centum) of all the national government ordinary revenue collected in every financial year. It is
therefore clear to us that the money paid into the CDF is 2.5% of all the national government ordinary

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revenue.
91. We recall that our system of governance like many other decentralised systems is such that it is the
national government that primarily finances the devolved units. Although counties have limited revenue
raising powers provided under Article 209(3) of the Constitution, the primary source of funding remains
the equitable share emanating from revenue collected by the national government. The money raised or
received by or on behalf of a county government is paid into a Revenue Fund for the respective county
government established under Article 207 of the Constitution.
92. Article 218(1)(a) of the Constitution which provides for the Annual Division and Allocation of
Revenue Bills talks of a Division of Revenue Bill which is to divide, ‘revenue raised by the national
government’ between the national and county levels of government. It is thus clear that it is the national
government’s revenue that is to be shared between the national and county governments. We therefore
find, for purposes of equitable sharing of revenue that the phrase ‘revenue raised nationally’ as used in
Articles 201(b)(ii), 202(1) and 203(2) to be equivalent to ‘revenue raised by the national
government’ within the wording of Article 218 of the Constitution. The implication of the wording of the
provisions we have cited is that the revenue shared between the national and county government and
amongst the counties is not received from anywhere else but from the revenue collected by the national
government. In other words all revenue collected by the national government must be pooled in a
common pot before it is shared by the level of government. It is in this light the wording of the impugned
section ought to be scrutinised.
93. We are in agreement with the CIC that the use of the phrase, ‘all the national government
ordinary revenue’ in the CDF Act introduces ambiguity. However, as case law has established, not all
ambiguity necessarily renders a statute unconstitutional, as such ambiguities can be solved by applying
rules of interpretation. In Ruturi & Kenya Bankers Association v Minister for Finance [2002] 1 KLR
84 [2001] EA 253 it was held that a statute or enactment worded in a language which is difficult to follow,
ambiguous, contradictory or impossible to apply, is not necessarily rendered unconstitutional since it only
gives rise to questions of interpretation by the Court.
94. We are aware that the amendment to section 4(2) of the Act which made the CDF a charge on the
Consolidated Fund to which is paid, ‘.. not less than 2.5% of all the national government ordinary
revenue collected.’ Again, it is not clear whether the money is after deduction of the equitable share or
not. The principle that must come out clearly is that the ‘revenue raised nationally’ within the wording of
Article 202 is the revenue raised by the national government and that the same is only shareable
between the two levels of government recognised under the Constitution which are the national and
county governments. The question as to whether the CDF violates the formula of equitable sharing can
only be properly assessed after establishing whether or not CDF is a conditional grant as envisaged
under Clause (2) of Article 202.
95. It was argued on behalf of the petitioners that since the national government does not remit CDF
moneys to county governments and that the implementing agencies are all creatures of national
government, the CDF is not a grant contemplated under Article 202(2) of Constitution and it would be
irregular to describe it as such as the Counties are not even involved in its implementation. In this
respect we are in agreement with the petitioners that the National Assembly that the CDF money is not
additional revenue to the County government within the meaning of Article 202(2) of the Constitution,
the reason that necessitated, we are told, the amendment to the CDF Act at section 4 by deleting
subsection (2) of the section which read, “(2) All moneys allocated under this Act is additional revenue
to the county governments under Article 202 (2) of the Constitution to be administered according to
section 5.” The subsection was replaced by one that reads, “(2) All monies allocated under this Act shall

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be considered as funds allocated to constituencies pursuant to Article 206 (2) (c) of the Constitution.”
96. Conditional grants are a feature of most fiscally decentralized countries. Through conditional grants,
the national government is able to achieve certain national governmental objectives within the
decentralized units. What is paramount though is that the nature and design of such grants must respect
the constitutional architecture. It is our finding that CDF is not a conditional grant to county governments
envisaged under Article 202(2) of the Constitution as it is not even expressed to be such.
97. Section 4(1) (c) of the CDF Act provides that the CDF money is to be, ‘disbursed by the national
government through the Board to constituencies as a grant to be channelled to constituencies in the
manner provided for by this Act.’ The section describes the CDF as a grant to the constituencies. This is
problematic as we shall see shortly. The constitutionality or otherwise of this subsection can only be
appreciated by examining the manner of implementation of the fund under the CDF Act. This leads us to
the next core question, whether the effect of the CDF is such that it interferes with the functional and
power sharing between the national and county government.
Whether the CDF Act, 2013 violates the division of functions
98. It was the petitioners’ case that the design and manner of implementation of the CDF infringes on
the Constitution. The petitioners contended that provisions of sections 3 and 22 of the CDF Act have
encroached on the functions of county governments. The impugned section 3 is one dealing with the
object and purpose of the Act and reads thus;
The provisions of this Act shall apply, as more specifically provided for in the Act, and shall ensure that a
specific portion of the national annual budget is devoted to the constituencies for purposes of
infrastructural development, wealth creation and in the fight against poverty at the constituency level.
99. The petitioners take issue with section 22 of the CDF Act which they claim has not specifically
identified the projects that should be undertaken but has instead used broad terminology to describe the
allowable projects. The section is one that provides for the nature of community based projects that the
CDF may be channeled to and reads as follows:
22 (1) Projects under this Act shall be community based in order to ensure that the prospective benefits
are available to a widespread cross-section of the inhabitants of a particular area.
(2) Any funding under this Act shall be for a complete project or a defined phase, of a project and may
include the acquisition of land and buildings.
(3) All projects shall be projects as defined under this Act and may include costs related to studies,
planning and design or other technical input for the project but shall not include recurrent costs of a
facility.
(4) Funds provided under this Act shall not be used for the purpose of supporting political bodies or
political activities or for supporting religious bodies or religious activities.
(5) Notwithstanding the provisions of subsection (4), the Constituency Development Fund Committee
may identify a religious body or organization as an appropriate specialized agency for purposes of
section 12 with regard to emergency support.
(6) A Constituency Development Fund Committee office project shall be considered as a development

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project for purposes of the Act and may include appropriate furniture and equipment for the office.
(7) Notwithstanding the provision of subsection (3), up to a maximum of six per centum of the total
annual allocation by the constituency may be used for administration, recurrent expenses of vehicles,
equipment and machinery and such use shall be listed in the First Schedule as a project.
(8) Projects may include the acquisition of vehicles, machinery and other equipment for the constituency
(9) Sports activities shall be considered as development projects for purposes of this Act but shall
'exclude cash awards provided that the allocation to such activities does not exceed two per centum of
the total allocation of the constituency in that financial year.
(10) Monitoring and evaluation of ongoing projects and capacity building of various operatives may be
considered as a development project provided that not more than three per centum shall be allocated for
this pulse.
(11) Environmental activities may be considered as `development projects for purposes of this Act
provided that the allocation to such activities does not exceed two per centum of the total allocation of
the constituency in that financial year.
(12) Each of the projects shall be listed on the First Schedule including the emergency item under
section 11 and, where applicable, the activities under subsections (6), (7); (8), (9), (10, and (11) of this
section.
100. On its part, the National Assembly submitted that Parliament has power to appropriate funds for
specific purposes through Funds such as Uwezo Fund and the Youth Enterprise Fund anchored in the
provisions of Article 95(4)(b) and 206 of the Constitution. It is therefore argued that through the CDF
Act, Parliament has created an oversight role over the funds allocated under CDF and that CDF
finances activities not supported by county governments such as education bursaries to needy students
and security.
101. Article 186 of the Constitution establishes the respective functions and powers of national and
county government as follows;
186 (1) Except as otherwise provided by this Constitution, the function and powers of the national
government and the county governments’, respectively, are as set out in the Fourth Schedule.
(2) A function or power that is conferred on more than one level of government of a function or power
within the concurrent jurisdiction of each of those levels of government.
(3) A function or power not assigned by this Constitution or national legislation to a county is a function
or power of the national government.
The Fourth Schedule to the Constitution has then specifically dealt with distribution of functions
between the national and county governments’. With those provisions in mind and looking at the
provisions of section 3 of the CDF Act, it is without a doubt that the CDF seeks to address issues
involving infrastructural development, wealth creation and fight against poverty at the constituency level.
Are these broadly enumerated functions within the purview of functions of county or national
government"

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102. We recall the submission made by the Attorney General that a constituency is a unit of
representation for purposes of election of National Assembly members and it is taken as a sub-unit of a
county and that its administration and development agendas are under the administration of the
Governors and the county government. We have deliberately discussed here the submission by the
Attorney General because he has, in our view answered and clarified the question at hand. We are in
agreement with the Attorney General that a constituency is a unit of representation of the people in the
National Assembly and in that context several constituencies form a county. How then is the CDF, which
is funded by the national government supposed to undertake projects within a constituency which is
under the administration of the county government and not interfere with the county government
functions"
103. Section 22 of the Act set out above demonstrates that the Act is not clear what projects the CDF is
supposed to fund and implement. The section broadly refers to unspecified projects which we are unable
at this point to determine to which level of government they belong into as per the Fourth Schedule to
the Constitution. Nevertheless, we take the position that the drafters of the Constitution did not envisage
that there would be a three tier system (national government, county government and constituency) that
would be charged with infrastructural development at the county level.
104. We do not think that from a plain and literal reading of the provisions of Article 186 and the Fourth
Schedule to the Constitution, it can be said that for instance, infrastructural development and wealth
creation at the Constituency level is solely a function of the national government. Infrastructural
development in our view is such a fluid term that may include county transport and development of
county health facilities which fall within the functions County government enumerated in Part 2 of the
Fourth Schedule.
105. Another aspect we wish to point out that entrenches county government is the specific provision
that vests executive authority of a county in a county executive committee comprising the governor,
deputy governor and members of the executive committee appointed by the governor with the approval
of the County Assembly in terms of Article 179 of the Constitution.
106. Executive authority of a county, including implementing legislation and managing and coordinating
the functions of the county administration are roles bestowed on the county executive committee (CEC)
under Article 183 of the Constitution. Indeed, both the Constitution and the law requires the CEC to
submit requires reports regarding affairs of the county to the county assembly. Further, Article 179(4) of
the Constitution designates the county governor and deputy governor as the chief executive and deputy
chief executive of the county respectively. Additionally, Part XI of the County Government Act has
provided for the statutory framework to be used in the county planning. Section 104 of that Act has
made it mandatory for counties to plan for everything being implemented in the County.
107. Article 186(1) of the Constitution has set out that national and county governments are to share
certain functions within the County and those functions are clearly stipulated in the Fourth Schedule to
the Constitution. The creation and assignment of roles to an entity outside the structures of governance
established under the Constitution is antithetical to the principles of the Constitution as it threatens to
violate the functional competencies of county government within which CDF operates.
108. While we have held that the CDF is not a grant to the counties, we find it necessary to stress here
that the national government may impose conditions on grants issued under Article 202(2) of the
Constitution. These conditions may include naming the specific projects to which such grants are
channeled. However, the conditions attaching to these grants, including the manner of implementation
must by themselves be in line with the devolution principles and constitutional values. Such conditions

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must not be such that they undermine the county government autonomy envisaged under the
Constitution. Article 6 establishes the principle of ‘distinctiveness’ which effectively means that each
level of government must be free from interference in performance of their functions. The two levels of
government are interdependent and are to conduct their mutual relations on the basis of consultation
and co-operation. The principle of co-operative governance under Article 189 of our Constitution
requires that each level of government performs its functions in a manner that respects the functional as
well as institutional integrity of government at the other level. Moreover, the spirit of co-operative
government requires that the national and county governments liaise and co-operate with each other in
coordination of policies and administration and performance of functions and exercise of their respective
powers.
109. The upshot of the foregoing is that we are in agreement with the petitioners that the national
government may only provide grants to county government or additional revenue but it is only the county
government that has the constitutional power to execute development within the county except for the
projects reserved for the national government as provided for under the Fourth Schedule to the
Constitution. Put another way, the national government, while free to infiltrate its policies at the county
levels, must do so through the structures recognised under the Constitution and not run parallel them. If
it so desires, the national government may channel grants, whether conditional or unconditional to the
county governments as additional revenue within the meaning of Article 202 and not any other entity
which performs the functions allocated to the county by the Constitution. The national government
cannot purport to channel grants to an entity whose intended projects effectively undermine the role of
the government at the county level unless the projects are specifically defined to exclude them from the
ambit of Part 2 of the Fourth Schedule.
110. Going back to the impugned provisions, section 3 of the CDF Act which encapsulates the object of
the Act and section 22 introduce a conflict of roles and in this way threaten to violate the division of
functions between the national and county governments. The scenario would have been different if the
implementation of the same was to be through the machinery of the county government. The problem is
compounded when one considers the manner in which the CDF is administered. The CDF Act has set
out parallel structures to the county government within which these funds are to be managed. This brings
us to the fourth and last limb of argument proffered against the CDF.
Whether the CDF Act 2013 violates the principle of separation of powers
111. The petitioners urged that the CDF Act violates the principle of separation of powers by involving
MPs in the implementation of projects funded by the CDF. The respondents on the other hand refuted
this argument, claiming that the Fund is run by committees and not the individual MPs. Further, that their
involvement reinforces their role under Article 95 of the Constitution including that of oversight.
112. The petitioners contended that section 24 of the CDF Act is unconstitutional on two fronts. First, it
allocates certain administrative responsibilities to Members of Parliament who play an oversight role
through the National Assembly Committee on CDF therefore making the MP both an executor of CDF as
well as a legislator. In that regard therefore, they claimed that arming the MP with the ability to play the
dual roles has directly violated the principle of separation of powers. Second, that the administration and
implementation of projects for which the National Assembly has determined the allocation of funds is not
a function assigned to the National Assembly and such an arrangement offends the principle of
accountability under Article 10 of the Constitution.
113. While submitting that there was no absolute separation of powers, the respondents contended that
section 24 of the Act has clearly demarcated the role for the Member of Parliament as an ex-officio

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member of CDF Committee and as a link between the Committee and the people in the Constituency.
That the MP’s role was limited to issuing opinions and the Committee was the body mandated to
disburse CDF and oversee the implementation of projects in the Constituency. The Attorney General
submitted that section 24 of the Act provides for an elaborate procedure in the appointment of CDF
Committees and as such the process is transparent, people centered and representative. On the
separation of powers, he submitted that the management of the fund is left to the Board and the
Committee to which MPs are not members thus does not violate the principle of separation of powers.
Similarly, the CDF Board submitted that under sections 24, 31 and 18 of the Act, the CDF Committees
and the Board are responsible for the monitoring of the projects and allocation of funds to the projects
was the responsibility of the Committee. Thus, the Board stated, there is no duplication of the CDF
projects within the counties.
114. Section 24 of the Act deals with the composition of the CDF Committee and the section as
subsequently amended provides in part as follows;
24.(1) There shall be a Constituency Development Fund Committee for every constituency.
(2) Each Constituency Development Fund Committee shall comprise-
(a) the national government official at the constituency as may be designated by the Cabinet Secretary
or an alternate;
(b) three men nominated by the ward development committees and one of whom shall be a youth at the
date of appointment;
(c) three women nominated by the ward development committees and one of whom is a youth shall be a
youth at the date of appointment;
(d) one person with disability nominated by the ward development committees;
(e) one person nominated from among the active Non-Governmental Organisations in the constituency;
(f) an officer of the Board seconded to the Constituency Development Fund Committee by the Board
who shall be ex-officio.
115. In our understanding, section 24 of the Act has been challenged as being unconstitutional because
of the role the National Assembly member is considered to play in the CDF administration under section
24(3) of the Act which provides thus;
24 (3) The eight persons referred to in subsection (2) (b), (c), (d) and (e) shall be nominated through the
following procedure-
(a) within forty-five days of being sworn in, each Member of Parliament for a particular constituency shall
convene open public meetings of registered voters in each of the elective wards in the constituency;
(b) each ward shall then elect five persons whose names shall be forwarded to the officer of the Board
in the constituency;
(c) upon receiving the names from all the wards in the constituency, the Member of Parliament in
consultation with the officer of the Board and the sub county administrator for the constituency, shall

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appoint eight persons to the Board, taking into account the geographical diversity within the
constituency, communal, religious, social and cultural interests in the constituency and the requirements
of gender, youth and representation of persons with disabilities;
(d) the eight persons appointed under: subparagraph (c) shall elect from among themselves one person
to be the, chairperson of the Constituencies Development Fund Committee for the constituency;
(e) upon conclusion of the election of the chairperson in the manner stipulated in paragraph
(d) the officer of the Board shall forward the names of the ten members of the Constituencies
Development Fund Committee to the chief executive officer of the Board for onward transmission to the
Cabinet Secretary for gazettement;
(f) The Member of Parliament for the constituency shall be an ex-officio member of the Committee.
116. We are keen to note that the provision uses the term ‘Member of Parliament’ ostensibly in
reference to the National Assembly member who is the elected constituency representative under
Article 97(1) of the Constitution. This mix up in terminology also emerged in the parties’ submissions
whereby the term MPs was used in reference to the National Assembly Members hence need for the
Court to clarify here, if only in passing, that under the Constitution, “Parliament” encompasses both
Houses; the National Assembly and Senate. Thus, “Members of Parliament” is a collective term for
members of both Houses and “Member of Parliament” could mean either Senator or National Assembly
member.
117. Back to the substance, the petitioners challenged section 24 of the Act with regard to the manner
in which the CDF Act is to be implemented. We have read the CDF Act and there are other provisions
regarding the implementation of the CDF projects that are of concern to us apart from section 24 for
they have the effect of having Parliament get involved in the administration of the CDF. For instance,
Part V of the Act at section 28 establishes a National Assembly Select Committee which consists of a
Chairperson and not more than 10 other Members of the National Assembly. Section 28(5) sets out the
functions of the National Assembly Select Committee as follows;
28(5) The functions of the National Assembly Select Committee shall be —
(a) to consider and recommend to the National Assembly any matter requiring action by the National
Assembly pursuant to the provisions of this Act;
(b) to oversee the implementation of this Act and in this respect, shall after every two years submit a
report to the National Assembly and where necessary, propose any amendments to this Act, in
particular, with respect to the quantum of funds repayable into the Fund in accordance with section 4 of
the Act;
(c) to oversee the policy framework and legislative matters that may arise in relation to the Fund;
(d) to continually review the framework set out for the efficient delivery of development programmes
financed through the Fund;
(e) to consider and report to Parliament with recommendations, names of persons required to be
approved by Parliament under this Act; and

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(f) to carry out any other functions relevant to the work of the Fund.
118. In addition to the above functions, the Committee may make reports other than the statutory report
stated in sub section 5(b) in order to appraise the National Assembly on various matters relating to the
Fund and to seek various approvals as required by the Act. Under section 29, the CDF Board is
required to submit a quarterly report to the National Assembly Select Committee on CDF on a monthly
basis, detailing the following;
(a) a summary of the project proposals received from the constituencies in the preceding month and
indicating the approval status of such projects;
(b) a summary of the status of disbursements of funds to the constituencies for that preceding month
(c) a summary of the status of disbursements from the Treasury to the National Account; and
(d) any restriction imposed on a constituency account in accordance with the Act.
Lastly, under section 30 of the Act, it is the duty of the Board to ensure that the list of projects forwarded
to it by each constituency is funded upon approval. The Board and the Constituency Development Fund
Committee are responsible for monitoring implementation of projects in terms of section 31. The project
management committees are responsible for the implementation of the respective projects under the
Act, with the assistance of the relevant government department.
119. In addition to the above, Part VII of the Act establishes the County Project Committee whose main
function is to coordinate the implementation of the projects funded through the CDF. The County Project
Committee may even make official or impromptu visits to projects if it finds appropriate to do so
Membership to the County Project Committee under section 37 of the Act comprises among others the
senator, Members of Parliament from the County, a county women representative, the governor and a
national government official at the county. Section 24(3)(a), (b) and (c) of the CDF Act which ties the life
of the Committee to the life of Parliament leave no doubt in our mind that the CDF is a legislative
intrusion in the county government function.
120. We have dealt with some of these provisions of Part V and VII of the Act because they help in
understanding the operation of the CDF. What is clear from the above is that the CDF appears to be a
third entity grafted from the national government that operates within the county governments but outside
their structures. The involvement of the members of the National Assembly and Senators in the
implementation and administration of CDF, infringes the Constitution on in two ways. First, it threatens to
violate the division of functions between the national and county governments. We deliberately use the
term ‘threatens’ here because as we have ruled above, the purpose of the Act, coupled with the target
projects under section 22 are vaguely worded, and absent a specific cause, it is premature to
categorically class the enumerated projects as falling either under the national or county governments. It
is nevertheless a safe inference to make at this point that the reference to ‘community based projects’
within the wording of section 22 would at the very least cause a functional overlap with those of county
governments.
121. One of the objectives of devolution is to allow provision of proximate services to the grassroots and
allow the people to participate in the governance and decision making. A key underlying principle in this
being that of subsidiarity, that recognizes that ideally the local needs and communities are better
appreciated, prioritised and localized problems solved at the lowest level capable of dealing. The
Constitution requires that the county governments decentralize their functions and services “to the

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extent that it is efficient and practicable to do so” under Article 176(2). This principle is fortified by Part
VI of the County Governments Act, 2012 which sets out the decentralisation units in a county. We find
that with this cascading mechanism of governance, the Constitution envisaged that although power is
shared between the national and county government, the decentralized units within the county would
facilitate the achievement of the objects of devolution through to the grassroots. We do not read the
Constitution to authorize other competing governance structures outside the national structure, county
and sub units of the county government, driving development concerns at the county level.
122. Article 1(4) of the Constitution recognises two levels of government, the national and county
governments. Each of these levels exercises power derived from the Constitution itself. Under Article 1
of the Constitution, the county government does not derive its power from the national government but
directly from the People of Kenya and under the Constitution. These two levels of governments are
therefore, in theory, equal and none is subordinate to the other. MPs and cabinet secretaries involved in
the management or implementation of the CDF constitute the executive and legislative organs of the
national government. Their involvement in development activities at the county level not only threatens to
undermine the functions of the government at the county level but also blurs the executive and legislative
divide that underlies the principle of separation of powers. We therefore find that it is unconstitutional for
the national government to extend its mandate in the counties beyond its mandate under the Constitution
through the artifice of the CDF.
123. There are available means through which the national government can permeate its agenda into
counties within the purview of the Constitution. For instance, through conditional grants to county
governments. The national government could also assign or transfer its functions to the county
governments if it so desires within the terms set out under Articles 186(3) and 187 of the Constitution.
The structure of such grants could be tailored to meet specific need in constituencies.
124. The design and architecture of our Constitution is one that is founded on the principle of separation
of powers. There is a clear separation of powers between the legislature, executive and the judiciary.
Each of the two levels of government has its own executive and legislature, each with specific
constitutional mandates. One of the objects and principles of devolved government under Articles 174
and 175 is separation of powers. At the national level, under Article 93(1) of the Constitution, there is
established a Parliament consisting of the National Assembly and the Senate. In the same breath at the
county level, there is the County Assembly and the County Executive headed by the Governor. In our
view therefore, the arrangement introduced by the CDF of having Members of Parliament getting
involved in the implementation of the development agenda of a county undermines the county
government and especially the role of the county executive. At the County level the Governor and the
County Executive Committees are the executives in the county and in charge of development policies.
125. We heard the respondents’ claim that the MPs do not get involved in the day to day administration
of CDF but instead play an oversight role over the same. Far from the truth, we have reproduced
provisions of the CDF Act that reveal more than that. The provisions of section 24 of the Act
demonstrate that the Members of the National Assembly are charged with the responsibility of selecting
the members to the CDF Committee. They also sit in those committees as ex-officio members. Senators
are members of the County Project Committee whose primary role is to, “coordinate the implementation
of projects financed through the Fund.” We are thus constrained to ask, where do the Members of
Parliament derive such huge powers from" Certainly it is not from the Constitution. The argument that
involvement of MPs reinforces parliament’s oversight role is unconvincing. The principle of checks and
balances is one that is well embedded in the Constitution. Kenya adopted a largely parliamentary system
at both levels of government. Parliament checks on the executive at the national level while the county
assembly is the primary body charged with executive oversight at the county level. Chapter Eight of the

225
Constitution is crystal clear on the role of the Houses of Parliament and the executive function is not one
of those roles. The various roles of State organs are implicated in the doctrine of separation of powers.
126. The Constitution creates various institutions and vests them with State power dispersed both
vertically and horizontally. In Trusted Society of Human Rights Alliance v The Attorney General and
Others Nairobi Petition No. 243 of 2011 [2012] eKLR the Court observed as follows;
The Constitution consciously delegates the sovereign power under it to the three branches of
government and expects that each will carry out those functions assigned to it without interference from
the other two….this must mean that the Courts must show deference to the independence of the
Legislature as an important institution in the maintenance of our constitutional democracy as well as
accord the Executive sufficient latitude to implement legislative intent. Yet…the courts have an
interpretive role-including the last word in determining the constitutionality of all governmental actions.
That, too, is an incidence of the doctrine of separation of powers.
127. The principle of separation of powers is at the heart of the structure of our government; each organ
is independent of each other but acting as a check and balance to the other and also working in concert
to ensure that the machinery of the state works for the good of Kenyans. The Apex Court in the In the
Matter of the Interim Independent Electoral Commission (supra) expressed itself as follows;
The effect of the Constitution’s detailed provision for the rule of law in processes of governance, is the
legality of executive or administrative actions to be determined by the Courts, which are independent of
the Executive branch. The essence of separation of powers, in this context, is that the totality of
governance powers is shared out among different organs of government, and that these organs play
mutually-countervailing roles. In this set up, it is to be recognized that none of the several government
organs functions in splendid isolation.
128. The respondents argued that there can never be complete separation of powers and it is an
accepted fact in major constitutional democracies that the principle is not perfect. This state of affairs
was exemplified in the former Constitution where, for example, members of the executive were also
members of the legislature.
129. Under the current dispensation, the first port of call must be the Constitution and what it says about
the role of each State organ. In Speaker of the Senate case (supra), the Supreme Court observed
that;
[135] By a Constitution achieved after many false starts, the people have declared that “All sovereign
power belongs to the people of Kenya” [Article 1(1)]; and they have established institutions of
governance committed to named functions: the Executive; the National Assembly; the Senate; and
numbers of others.
130. Article 94 of the Constitution vests legislative authority of the people of Kenya in Parliament. The
roles of the National Assembly and the Senate are specifically delineated in Articles 95 and 96 of the
Constitution. Article 95(4) of the Constitution provides as follows;
95(4) The National Assembly—
(a) determines the allocation of national revenue between the levels of government, as provided in Part 4
of Chapter Twelve;

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(b) appropriates funds for expenditure by the national government and other national State organs; and
(c) exercises oversight over national revenue and its expenditure.
As regards the Senate, Article 96(1), (2) and (3) of the Constitution provides as follows;
96 (1) The Senate represents the counties, and serves to protect the interests of the counties and their
governments.
(2) The Senate participates in the law-making function of Parliament by considering, debating and
approving Bills concerning counties, as provided in Articles 109 to 113.
(3) The Senate determines the allocation of national revenue among counties, as provided in Article 217,
and exercises oversight over national revenue allocated to the county governments.
131. The respective roles of the Houses of Parliament are clearly stated. The oversight role of the
National Assembly and the role of the Senate in regulation of county government under the umbrella of
legislative authority do not permit the National Assembly and the Senate to get involved in the
administration and implementation of development projects in the counties. Members of Parliament
cannot legislate on county laws, play oversight role over the county funds in the case of the senators, set
policies on the counties and undertake and implement development projects at the constituency level
without impinging on the county government function and the all-important principle of checks and
balances.
132. In light of the specific grant and definition of legislative powers under the provisions of Articles
95 and 96 of the Constitution, we find that the involvement of the Members of Parliament in the CDF
implementation violates the core principle of separation of powers and to this extent, the CDF Act is
unconstitutional. We will also add here that, to the extent that the Act conflates the executive and
legislative functions, it obfuscates accountability mechanism envisaged under the Constitution
underpinned by the doctrine of separation of powers. In that respect, the Act violates key national values
and principles enunciated under Article 10 of the Constitution, to wit, good governance and
accountability and we so find.
133. Besides, the Constitution has set up mechanisms of ensuring that the county executive performs
their constitutional functions. At the county level, under Article 185 (3) of the Constitution, the County
Assembly exercises oversight over the County Executive committee and any other executive organs of
the county. At the national level, under the provisions of Article 96(1) of the Constitution, the Senate
represents the counties at the national level and serves to protect the interests of the counties and their
governments. The Senate also has an oversight role over the county resources allocated to the counties
from the national government. Articles 190(3) of the Constitution provides for intervention by the
national government in a county government if the latter is unable to perform its functions or does not
comply with a system of financial management set under the Constitution.
134. The history and role of the CDF has been noble and was a direct response to the concentration of
resources in the central government and development exclusion. In other words, the CDF was a
precursor to the devolution ushered in by the Constitution. While there may have been a rationale for the
existence of the CDF and the structures of the former Constitution accommodated it, the Constitution
founded on among others, the principle of devolution where power to govern the Republic is shared
between the national and county levels of government and organs within them does not permit the
formation of bodies that would otherwise dilute the principle of devolution. Today, the promise of

227
devolution established under the Constitution has brought development to the people through their
democratically elected Governor who implements development policies in the County and through the
County Executive under the oversight of the members of County Assembly.
135. Members of Parliament have a specific and clearly defined role under the Constitution. This role
does not include involvement bodies whose functions entail co-coordinating, project approvals or actual
implementation of projects as these functions are executive in nature. It is also untenable to permit
Senators, who are charged with the constitutional role of oversight over county resources from the
national government to the county government, to convene and chair County Project Committee as
established under Part VII of the Act.
136. Parliament is constitutionally bound to enact legislation that assists and strengthens the county
governments in the discharge of their roles rather than one that undermines them, as the CDF Act
effectively sets to do. The organs of the national government must trust and utilize the machinery that
the Constitution now ordains. Even with the noblest of intentions, any Act of Parliament must meet the
threshold of constitutionality for it to withstand the test of validity.
137. The submission that an MP as an ex-officio member of the CDF Committee acts as a link between
the CDF and the government and that an MP’s role is not limited to Parliament is misplaced, vague and
without any constitutional back up. It is important to enhance separation of powers, checks and balances
which are some of the core principles of governance crucial in achieving the objects of devolution. It is
therefore clear that for the above reasons the CDF Act violates the Constitution and we so find.
138. We have analysed the CDF Act and concluded that the CDF and the manner it is administered and
projects implemented impacts functions allocated to the county under the Fourth Schedule to the
Constitution. In terms of Article 96(2) and 110 of the Constitution, the CDF (Amendment) Bill as
legislation affecting the functions and powers of the county governments qualifies as, ‘a Bill concerning
county government’ within the meaning of Article 110(1) and ought to have passed by the Senate. The
purpose of the CDF (Amendment) Act was to amend a law that as we have found violates the division
of functions between the national and county governments. Thus, an amendment to the Act would have
necessitated the input of the Senate. The purpose of involving the Senate is to ensure that counties, as
far as possible, get to effectively participate in the legislative business at the national level in matters
substantially affecting interests of county governments. This calls for the court to look beyond the
substance or purpose of the statute expressed in the text. The court must unbundle the specific
provisions of the proposed legislation to see if and to what extent they satisfy the criteria set out under
Article 110(1) of the Constitution. An amendment to the Act affecting the manner in which money is
allocated to the CDF is the core part of the Act. As the availability of money affects the financing and
implementation of projects that fall within the competence of the county government, the provision
cannot be severed without undermining the entire Act. The CDF (Amendment) Bill is not an
insubstantial amendment. We therefore find and declare that the CDF (Amendment) Bill
unconstitutional for want of involvement by the Senate and we so declare.
Conclusion
139. From the many arguments and submissions made before this Court, we distilled four broad issues
that called for this Courts determination and we conclude by a summary of our key findings as follows;
a. Whether the process leading to the enactment of the CDF was constitutional.
i. The CDF (Amendment) Bill concerns county government and consequently we find and hold that it is

228
unconstitutional on the ground that the Senate was not involved in the enactment of the Bill.
ii. We find that there was sufficient public participation in the process leading up to the enactment of the
CDF (Amendment) Act.
iii. With regard to consultation of the CIC and the Commission on Revenue Allocation, we find that there
was no violation of section 14 of the Sixth Schedule to the Constitution.
b. The nature of the CDF and whether it violates principles of public finance and division of
revenue.
i. We have established that CDF is not a conditional grant to the county governments within the meaning
of Article 202(2) of the Constitution.
ii. That Article 202 envisages equitable sharing of the national government revenue between the
national and county governments. Nevertheless, if national government so desired, it could at its
discretion grant additional revenue, whether conditionally or unconditionally through the county
governments.
iii. Further, that such grants by national government must respect the structures established under the
Constitution. In other words, the national government must tap into the existing structures of the county
government.
c. Whether the CDF Act violates the division of powers and functions
i. The Court finds that power and functions are distributed at only two levels of government, the national
and county levels.
ii. That the purpose and design of the CDF Act is constitutionally flawed in a number of aspects: First,
the Act establishes CDF as a mechanism that runs parallel the constitutionally recognised governance
structures. By charging it with local projects under section 22 of the CDF Act threatens to upset the
division of functions between the national and county levels of governments and interfere with the county
government autonomy.
d. Whether the CDF Act 2003 offends the principle of separation of powers
By involving Members of Parliament in the planning, approval and implementation of the CDF projects,
the CDF Act violates the doctrine of separation of powers between the executive and legislative
functions. It also undermines some key national values and principles of governance including devolution
of power, accountability and good governance.
140. In making our findings, we are conscious of the fact that CDF has been important in addressing
development at the grass root level and has in the past been one of the most significant steps to
alleviate poverty and ensure community empowerment. The CDF Review Task Force states in its report
that that one of the main purposes of the enactment of the CDF Act and the subsequent establishment
of the CDF Fund was to devolve funds from the central government to the local communities. As noble
as the intention of the CDF was in 2003 when it was first established, the principle of devolution is now
one of the pillars of the Constitution anchored through the County governments. The Constitution has
made it clear at Article 1(4) that sovereign power is exercised between the two levels of government.
Indeed, some of the objectives of devolution under Article 174 of the Constitution include the promotion

229
of social economic development, protection of the rights of marginalised communities and equitable
sharing of national and local resources.
141. The Constitution has also set up other mechanisms of ensuring equitable development and sharing
of resources such as the Equalization Fund under Article 204 and the criteria for equitable sharing set
out under Article 203 of the Constitution. Devolution was a panacea to addressing the developmental
and equity gaps that exist in our communities. This is not however to say that the national government
cannot conceptualise and fund development initiatives at the local level; what is critical is that such
initiatives in both design and implementation, must respect the system of governance in existence and
the spirit and letter of the Constitution.
142. Good faith and well-meaning intentions are meaningless if the object and design are constitutionally
objectionable. As was stated in Executive Council of the Western Cape Legislature and Others v
President of the Republic of South Africa and Others (CCT27/95) [1995] ZACC 8 at para 100,
Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith
or on the basis that there was no objection to action taken at the time that it was carried out. It is of
crucial importance at this early stage of the development of our new constitutional order, to establish
respect for the principle that the Constitution is supreme. … Our duty is to declare legislative and
executive action which is inconsistent with the Constitution to be invalid, and then to deal with the
consequences of the invalidity in accordance with the provisions of the Constitution.” [Emphasis ours]
143. In coming to the conclusions we have, we draw inspiration from the words of Mutunga C.J., in the
Speaker of the Senate case (supra) where he stated as follows;
[161] The Court must patrol Kenya’s constitutional boundaries with vigor, and affirm new institutions, as
they exercise their constitutional mandates, being conscious that their very infancy exposes them not
only to the vagaries and fragilities inherent in all transitions, but also to the proclivities of the old order.
Remedies
144. Having reached the above findings, the next crucial action is what is the appropriate relief to grant"
Article 258 of the Constitution which entitles any person to institute court proceedings, claiming that the
Constitution has been contravened, or is threatened with contravention does not provide for specific
relief to be granted to the applicant or give the court any guidance on how its jurisdiction should be
exercised unlike a similar provision in Article 23 of the Constitution respecting the enforcement of
fundamental rights and freedoms which empowers the court to frame or grant, “appropriate relief.”
145. It is our view that in order to give effect to the right to enforce the Constitution, the power of the
court to award an appropriate remedy must be implied. We hold that the Court has the power to issue
any remedy as is necessary to ensure that the Constitution is not threatened or violated. Such relief may
include conservatory orders and a declaration of invalidity of any law that is inconsistent with the
Constitution.
146. We are also cognisant of our obligation under Article 2 of the Constitution to declare any law that is
inconsistent with the Constitution null and void. However, the court is empowered to deal with the
consequences of such invalidity bearing in mind its duty to interpret and apply the Constitution in a
manner that, inter alia, promotes good governance. Article 258 of the Constitution does not limit the
court’s jurisdiction to fashion an appropriate remedy to deal with the invalidity of the law. It is accepted
that the court may suspend the declaration of invalidity in order to deal with the consequences of such

230
invalidity. In Suleiman Shahbal v Independent Electoral and Boundaries Commission and 3 Others
Petition No. 3 of 2014 [2014]eKLR, the Supreme Court expressed the following position;
[42] The lesson of comparative jurisprudence is that, while a declaration of nullity for inconsistency with
the Constitution annuls statute law, it does not necessarily entail that all acts previously done are
invalidated. In general, laws have a prospective outlook; and prior to annulling-declarations, situations
otherwise entirely legitimate may have come to pass, and differing rights may have accrued that have
acquired entrenched foundations. This gives justification for a case-by-case approach to time-span
effect, in relation to nullification of statute law. In this regard, the Court has a scope for discretion,
including: the suspension of invalidity; and the application of “prospective annulment”. Such recourses,
however, are for sparing, and most judicious application – in view of the overriding principle of the
supremacy of the Constitution, as it stands.
147. While in that case, the court declined to hold that the annulment of a specific provision of the
Elections Act, 2011 prospective, the court noted that;
[53] In the case of Kenya, the High Court bears the primary responsibility for determining whether any
law is inconsistent with or in contravention of the Constitution. This discretion also vests in the Court of
Appeal as well as the Supreme Court. In the Joho and Mary Wambui cases, this Court considered the
impugned statutory provision in light of the entire scheme of the Constitution, before making the
declaration of invalidity and, further in the Mary Wambui case, before deciding upon the retrospective
application of that declaration. This is the appropriate approach, in our view, as regards the instant case.
148. We are convinced that in order to protect the Constitution, the court must be creative in fashioning
appropriate relief that is tailored to the facts of the case and is consistent with the values of the
Constitution. Suspension of the declaration of invalidity would be appropriate in these circumstances as
it would allow the Legislature time to correct the defective legislation while avoiding chaos and disarray
in a system that has been established for over a decade. Such a move supports good governance, a
core national value under Article 10 of the Constitution.
149. We have found the CDF Act is defective in many respects, from the manner it was enacted, its
objective, design and implementation. Are the defective parts severable" The test for severance has
been established elsewhere thus;
[I]f the good is not dependent on the bad and can be separated from it, one gives effect to the good that
remains after the separation if it still gives effect to the main objective of the statute. The test has two
parts: first, is it possible to sever the invalid provisions and second, if so, is what remains giving effect to
the purpose of the legislative scheme" (Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer, Port Elizabeth Prison, and others [1995] ZACC 7;
1995(4) SA 631(CC) at para 16).
In Premier: Limpopo Province v Speaker of the Limpopo Provincial Legislature and Others (CCT
94/10) [2012] ZACC 3 it was observed at para 24, “It cannot be over-emphasised that severance should
be reserved for cases where it is clear from the outset exactly which parts of the statute need to be
excised to cure the constitutional deficiency.”
150. We are satisfied that since the defect in the CDF Act, 2013 related to the Fund and the manner of
its administration and application, its substratum is lost. It is not possible to separate the wheat from the
chuff, the good from the bad in order to salvage the Act. The only option is to render the CDF Act, 2013
invalid in its entirety.

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151. The next question is what are the consequences of the declaration of invalidity" Ordinarily, orders of
invalidity take immediate effect but the court in framing appropriate relief must be mindful of the
circumstances of the case and in particular the need to avoid undue hardship. As the Supreme Court
demands, such a consideration must be judicious and dependent on the case. In discussing the issue of
suspension orders under South Africa law, Sachs J in Coetzee as cited in Premier: Limpopo Province
v Speaker of the Limpopo Provincial Legislature and Others (supra) had this to say;
[36]The words ‘in the interests of justice and good government’ are widely phrased and, in my view, it
would not be appropriate, particularly at this early stage, to attempt a precise definition of their ambit.
They clearly indicate the existence of something substantially more than the mere inconvenience which
will almost invariably accompany any declaration of invalidity, but do not go so far as to require the threat
of total breakdown of government. Within these wide parameters the Court will have to make an
assessment on a case-by-case basis as to whether more injustice would flow from the legal vacuum
created by rendering the statute invalid with immediate effect than would be the case if the measure
were kept functional pending rectification. No hard-and-fast rules can be applied.
152. The CDF is a system that has been running over the years and at the moment, the funds for the
financial year 2014/2015 have been disbursed and the budgetary process for the next financial year is in
progress. Obviously the Fund has entered into legal obligations that need to be dealt with. We must
accord leverage to public interest and good order while conscious of our country's political realities. We
are of the view that a temporary suspension of the invalidity of the Act is the appropriate relief in the
circumstances.
153. How long should the order of invalidity be suspended" It has been held that, “[v]arious factors must
be taken into account in determining the period of suspension, including: the government’s previous
conduct; whether there is any legislation in the pipeline; and the nature and severity of the continuing
infringement” ought to be taken into account (See Premier: Limpopo Province v Speaker of the
Limpopo Provincial Legislature and Others (supra) at para 46). In reflecting on this issue, the court
has to consider the fact and the circumstances of the case. In Kenya Country Bus Owners’
Association (Through Paul G. Muthumbi – Chairman, Samuel Njuguna – Secretary, Joseph Kimiri
– Treasurer) & 8 others v Cabinet Secretary For Transport & Infrastructure & 5 others NRB JR No.
2 of 2014 [2014] eKLR, the court made an order suspending invalidity of traffic regulations on the
ground that the breaches were minor and could be remedied while protecting the lives of road users
which would be at risk without the regulation in place pending re-enactment of the impugned
regulations. In this case, we take judicial notice of the government budget cycle and the fact that the
financial year ends in June of every year. We are also alive that there are ongoing projects that require
completion. In order to allow for transitional and corrective mechanisms, we are of the view that
suspension of the invalidity of the CDF Act for a period of twelve months from the date of this judgment
is a reasonable period. The national government is entitled to remedy the defects in the period either in
form of new legislation or other means within the Constitution taking into account the findings we have
made. For avoidance of doubt, the Act may be repealed earlier by an Act of Parliament or await the
expiry of the suspension, whichever comes first.
Costs
154. As this matter involves matters of public interest and concerns the manner in which the Constitution
is being implemented, we shall order that each party bears its own costs.
Disposition

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155. Before we make the final orders, we must apologise for the delay in delivering this judgment which
was caused partly by the heavy workload and other reasons beyond our control. We are also grateful to
all the counsel in this petition for their lucidity in submissions.
156. We find that that the CDF Act 2013 is unconstitutional for reasons stated above and as a result, we
make the following ;
a. A declaration is hereby issued that the Constituencies Development Funds Act, 2013 is
unconstitutional and therefore invalid.
b. The order of invalidity above is suspended for a period of twelve (12) months from the date of
judgment.
c. The national government may remedy the defect within that period and the Constituencies
Development Fund Act shall stand invalidated at the expiry of the twelve (12) months or may be
earlier repealed whichever comes first.
d. Each party shall bear its own costs.
DATED and DELIVERED at NAIROBI this 20th day of February 2015.
ISAAC LENAOLA MUMBI NGUGI DAVID MAJANJA
JUDGE JUDGE JUDGE
Mr Waikwa Wanyoike, Advocate instructed by the petitioners.
Mr Anthony Njoroge, Advocate instructed by the 1st respondent.
Ms S. Munyi and Mr Kaumba instructed by the Office of the Attorney General.
Mr W. Gatonye and Mr Naikuni instructed by Naikuni, Ngaah and Miencha & Company Advocates for the
3rd respondent.
Mr Nderitu instructed by Nderitu and Partners Advocates for the interested party.
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235
nd Remuneration Commission & another v Parliamentary Service Commission & 15 others; Parliament & 4 others (Interested Parties) [2
236
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSOLIDATED WITH
PETITION NUMBERS 185 OF 2019 AND 339 OF 2019
BETWEEN
SALARIES AND RENUMERATION COMMISSION............1st PETITIONER
OKIYA OMTATAH OKOITI...................................................2ND PETITIONER
VERSUS
PARLIAMENTARY SERVICE COMMISSION..................1st RESPONDENT
CLERK OF THE SENATE....................................................2nd RESPONDENT
JUSTIN MUTURI..................................................................3rd RESPONDENT
DR. NAOMI SHABAN...........................................................4th RESPONDENT
BETH MUGO..........................................................................5th RESPONDENT
ADAN KEYNAN......................................................................6th RESPONDENT
BENSON MOMANYI..............................................................7th RESPONDENT
GEORGE KHANIRI.................................................................8th RESPONDENT
AISHA JUMWA........................................................................9th RESPONDENT
AARON CHERUIYOT...........................................................10th RESPONDENT
DR. LORNA MUMELO.........................................................11th RESPONDENT
JEREMIAH NYEGENYE.....................................................12th RESPONDENT

237
THE CLERK OF THE NATIONAL ASSEMBLY..............13th RESPONDENT
THE CONTROLLER OF BUDGET....................................14th RESPONDENT
THE CABINET SECRETARY,
NATIONAL TREASURY......................................................15th RESPONDENT
THE HON. ATTORNEY GENERAL...................................16thRESPONDENT
AND
PARLIAMENT............................................................1st INTERESTED PARTY
MEMBERS OF PARLIAMENT..............................2nd INTERESTED PARTY
TRANSPARENCY INTERNATIONAL-KENYA..3rd INTERESTED PARTY
KATIBA INSTITUTE...............................................4th INTERESTED PARTY
LAW SOCIETY OF KENYA....................................5th INTERESTED PARTY
JUDGMENT
Introduction
1. This judgment disposes three consolidated Petitions, namely, Petition Nos. 185 of 2019, 208 of 2019, and 339 of
2019. The 1st Petitioner in the consolidated Petitions is the Salaries and Remuneration Commission (hereinafter
referred to as the SRC), a constitutional commission established under Article 230 (1) of the Constitution.
2. The 2nd Petitioner, Okiya Omtatah Okoiti is a resident of Nairobi City County. He states that he is a law-abiding
citizen, a public-spirited individual, and a human rights defender. He is the Executive Director of Kenyans for
Justice and Development (KEJUDE) Trust, a legal entity whose objective is to uphold the rule of law and
constitutionalism, defending human rights, promoting democratic governance, and agitating for sustainable
economic development for the prosperity and well-being of the general population.
3. The 1st Petitioner and the 2nd Petitioner are the Petitioners in Petitions Nos. 208 of 2019 and 185 of 2019
respectively.
4. At the time of consolidation of the Petitions, the court designated the Controller of Budget, The Cabinet
Secretary, National Treasury and the Attorney General who had initially been sued as Interested Parties in Petition
No. 208 of 2019, to be Respondents. In addition, Parliament and Members of Parliament, who initially had been
sued as Respondents in Petition No. 185 of 2019, were designated as Interested Parties.
5. The 1st Respondent in the consolidated Petitions is the Parliamentary Service Commission (hereinafter referred
to as the PSC), a constitutional Commission established under Article 127(1). The PSC is the Petitioner in Petition
No. 339 of 2019.
6. The 2nd Respondent in the consolidated Petitions is the Clerk to the Senate appointed under Article 128 (1). By
dint of Article 127 (3), he is the Secretary to the PSC.

238
7. The 3rd to the 12th Respondents in the consolidated Petitions are members of the PSC. It is alleged they exercised
State authority in a manner that is not authorized by the Constitution and usurped the constitutional powers of the
SRC.
8. The 13th Respondent is the Clerk to the National Assembly appointed under Article 128 (1). He is sued in his
capacity as the Accounting Officer of the National Assembly.
9. The 14th Respondent is the Controller of Budget appointed under Article 228 (1), and has the constitutional
mandate to oversee the implementation of the budgets of the national and county governments, and to ensure that
all withdrawals from public funds are authorised by law.
10. The 15th Respondent is the Cabinet Secretary, National Treasury appointed under Article 152 (2) of the
Constitution, and whose responsibilities and functions are specified in Article 225 and section 12 of the Public
Finance Management Act.[1]
11. The 16th Respondent is the Attorney General who by virtue of Article 156 (4) is the principal legal adviser to
the Government and inter alia represents the national government in civil proceedings.
12. There are a number of Interested Parties in the consolidated Petitions. The 1st Interested Party is Parliament
which is established under Article 93(1). It consists of the National Assembly and the Senate.
13. All the Members of Parliament (hereinafter referred to as MPs) who had been sued individually in Petition No.
185 of 2019 were made the 2nd Interested Party in the consolidated Petitions. The MPs are elected in accordance
with Article 101 of the Constitution.
14. The 3rd Interested Party, Transparency International-Kenya, is a not-for-profit organisation with the aim of
developing a transparent and corruption-free society through good governance and social justice initiatives.
15. The 4th Interested Party, Katiba Institute is incorporated as a non-profit company limited by guarantee under the
Companies Act. Its objective is to improve and implement the understanding of the Constitution.
16. The 5th and last Interested Party[2] is the Law Society of Kenya, a statutory corporate established under section
3 of the Law Society of Kenya Act.
17. The common thread between the three consolidated Petitions is that they all relate to a decision by the PSC to
set, approve and pay house allowance to MPs. The point of departure is that whereas Petitions Nos. 208 of 2019
and 185 of 2019 seek to invalidate the said decision, Petition No. 339 of 2019 seeks to sustain it.
18. In order to bring out the factual and legal foundation of each Petition, we shall proceed to summarize the
respective parties’ cases therein.
The Petitioners’ Cases
Petition No. 185 of 2019
19. The Petitioner in Petition No. 185 of 2019, Mr. Okiya Omtatah Okoiti, states that the PSC, without the
knowledge and approval of the SRC, secretly resolved to pay a monthly house allowance of Kshs. 250,000/= to
each of the 418 MPs backdated to August 2018. Further, that it paid backdated house allowances of Kshs. 2.25
million in April 2018 to each MP.

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20. Mr. Omtatah states that the said payment will cost taxpayers over KShs.1.2 billion annually. He further
contends that the payment is a double benefit as house allowance is already included by SRC in MPs’ gross pay.
He states that no state officer is paid a house allowance outside their gross pay, hence, any payment of house
allowance outside the gross pay is unconstitutional. He also states that MPs are entitled to a mortgage of Kshs. 20
million per term to cater for their housing needs, therefore, any further house allowance would be unreasonable.
21. Mr. Omtatah avers that only the President, the Deputy President, governors and deputy governors are entitled to
a housing benefit because of the State functions they perform. In addition, he states that the allowances awarded to
MPs will create inequity in remuneration and benefits for other State Officers, thus lead to demands for house
allowance by other State Officers. Therefore, Mr. Omtatah contends that all the monies already paid to the MPs as
house allowances should immediately be recovered with interest.
22. As a result of the foregoing, Mr. Omtatah prays for: -
a) A DECLARATION THAT the SRC is the only State organ empowered to determine the salaries and
remuneration of all State officers and, as a consequence, MP’s have no capacity under the Constitution to
determine their salaries and allowances.
b) A DECLARATION THAT the decision by the PSC to pay MP’s house allowances is unconstitutional and,
therefore, invalid, null and void ab initio.
c) A DECLARATION THAT the MP’s are not entitled to house allowances.
d) AN ORDER COMPELLING the PSC, the Cabinet Secretary, National Treasury, The Controller of Budget and
the Hon. Attorney General to recover all the money paid to MPs as house allowance.
e) AN ORDER COMPELLING the PSC/Parliament to pay the costs of this suit.
f) Any other relief the court may deem just to grant.
23. The SRC, the Petitioner in Petition No. 208 of 2019 dated 29th May 2019, states that on 31st January 2019 the
PSC wrote to it asking it to approve house allowance to be paid to each MP at the rate of Kshs. 250,000/= per
month, to enable them to rent houses within Nairobi in locations befitting an MP. Further, that the reasons given by
the PSC in support of their request were that firstly, Governors and Deputy Governors enjoy a housing benefit,
hence MPs too must be paid a housing allowance and that the failure to pay them a housing benefit discriminates
against them.
24. Secondly, that section 31 of the Employment Act[3] requires an employer to provide an employee with
reasonable housing accommodation near the place of employment. Thirdly, that in other jurisdictions, MPs are paid
an allowance to enable them hire a hotel room or lease a house where Parliament is located. Lastly, that a house
allowance of Kshs. 250,000 per month had been budgeted for each MP in the 2018/2019 financial year.
25. The SRC further states that on 23rd February 2019, the PSC wrote again justifying the request for the house
allowance, and on 13th March 2019, the SRC replied, advising that most of the issues raised in the Memorandum
were subject of pending court cases, hence, it could not decide on issues under litigation.
26. The SRC avers that it cannot approve the house allowance because: -

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a) “The housing benefit that SRC has prescribed for a selected group of State Officers-such as the President,
Deputy President, Speakers of the National Assembly and Senate, the Chief justice, Deputy Chief Justice, County
Governors, County deputy Governors and Speakers of County Assemblies-is distinct from a house allowance.
b) That a housing benefit is the physical building/house that is provided by the Government using taxpayers’ funds
to house a State Officer due to the unique nature of their work that require hosting of State functions. The costs of
constructing and maintaining the house is borne from public coffers within the limits set by SRC. A house
allowance on the other hand is paid as a cash benefit through the payroll. This benefit is available mostly to public
officers whose pay is not consolidated.
c) Vide Kenya Gazette Notice of 2886 of 2013, the SRC communicated its determination that MPs earn a
consolidated pay in which the basic salary and house allowance are combined and under section 31(2) of the
Employment Act, a house allowance cannot be paid where an employee receives a consolidated pay.
d) That the justification by PSC to pay MPs house allowance is not merited, and that SRC has set additional
benefits to MPs in form of mortgages at affordable interest rates to buy houses to address their housing needs.”
27. The SRC explained that the decision to set the remuneration and benefits of State Officers is highly technical,
and involves high policy considerations and the polycentric factors set out in Article 230 (5). SRC also states that
MPs earn a consolidated pay, which includes a house allowance. Moreover, MPs benefit from numerous
allowances paid from the public coffers.
28. It is the SRC’s case that in mid-May 2019, it learnt about a decision by the PSC made on 24th April 2019 to pay
MPs house allowance of Kshs. 250,000/= per month backdated to October 2018. Later it obtained correspondence
in which the National Treasury advised the PSC among other things to get approval from SRC before paying MPs
the house allowance. It also states that the National Treasury advised the Accounting Officer of the PSC not to
incur any expenditures unapproved by the SRC. According to the SRC, it later obtained correspondence showing
that despite the concerns raised by the National Treasury that the expenditure from public coffers must be lawful
and approved by SRC in accordance with its mandate under Article 230 (4) (a), the PSC went ahead and paid the
MPs the said house allowance.
29. The SRC contends that MPs are State officers by virtue of Article 260, hence, their remuneration and benefits
including allowances must be set and approved as required by Article 230(4) (a). Its case is that it has not set or
approved the disputed payment, hence, the payment violates Articles 1(1), 1(3), 2(1), 2(2), 2(3), 2(4), 3(1), 10,
73(1), 74, 94(1) & (2), 95, 96, 127, 201, 226(5), 228(4), (5), 230(4), and 259 (11).
30. The SRC also states that the PSC’s decision has resulted in the loss of public funds in excess of Kshs
99,500,000/= per month, and Kshs. 1.194 billion annually, hence, the said decision is a perverse exercise of State
power that sets a dangerous precedent in the management of public funds.
31. The SRC further states that the housing benefit afforded to certain State Officers was necessitated by the nature
of their work which requires hosting of State functions; hence, it is not discriminatory, irrational, or unfair. It also
averred, that it explained to PSC in a letter dated 12th June 2015 that the housing benefit for the Speakers of
Parliament was not remunerative, and the PSC should provide houses for the Speakers.
32. The SRC referred to the rationale for its establishment and its guiding principles, which include the
management of the fiscal sustainability of the public wage bill, ensuring equity in remuneration and benefits, and
fairness and transparency in the setting of remuneration and benefits in the public service. It is therefore the SRC’s
case that its position on the payment of house allowance to MPs is aimed at having a wage bill that is fiscally
sustainable. Furthermore, the capping of allowances at 40% of the consolidated pay for all State Officers was

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necessitated by the need to manage the rising wage bill.
33. The SRC therefore prays for the following orders: -
a) Declarations that by the decision of the Respondents to set, approve, and pay MPs a house allowance outside
the Constitutional structure of Remuneration and Benefits of all State Officers in Parliament that is set and
communicated by the SRC, and in disregard to the constitutional mandate of SRC;
i. the Respondents have exercised State authority not authorised by the Constitution contrary to the provisions of
Article 2(2) of the Constitution.
ii. the 2nd-12th Respondents have violated their oath of office prescribed by Article 74 of the Constitution.
iii. violates the binding national values and principles of governance prescribed in Article 10 of the Constitution to
wit: rule of law, integrity, transparency, accountability and participation of the people.
iv. the Respondents have made an unlawful and unreasonable decision that contravenes Article 47(1) of the
Constitution.
v. violates the provisions of Article 73(1) of the Constitution which provides that any State authority assigned to a
State officer is a public trust that ought to be exercised in a manner that is consistent with the purposes and objects
of the Constitution, demonstrates respect to the people, brings honour to the nation and dignity of the office and
promotes public confidence in the integrity of the office.
vi. the Respondents have acted outside the prescribed Constitutional powers of PSC contained in Article 127(6) of
the Constitution.
vii. without undertaking public participation, violates the provisions of Article 10 and Article 201(a) of the
Constitution which provide for the participation of the people in important decision-making processes including
public financial matters.
viii. the Respondents have unconstitutionally performed the functions that are exclusively vested to the SRC by
Article 230 (4) and (5) of the Constitution.
ix. violates the provisions of Article 259(11) of the Constitution that provides that the power of PSC to pay MPs
allowances in the circumstances of this case must be exercised only after the setting by or with the approval of
SRC.
x. the Respondents have exercised State power contrary to the provisions of Article 259 (11) of the Constitution as
read with Article 230 (4) of the Constitution.
b) An order of certiorari be issued to quash the decision of the Respondents to set, approve, and pay MP’s a House
Allowance outside the Constitutional structure of Remuneration and Benefits of all State Officers in Parliament
that is set and communicated by the SRC and in disregard to the constitutional mandate of SRC as required by
Article 230(4) (a) of the Constitution.
c) Orders of permanent injunction be issued to restrain the Respondents, their agents and persons acting under the
authority of the respondents-from setting, approving and paying any benefit or house allowance to MP’s outside
the Constitutional structure of Remuneration and Benefits of all State Officers in Parliament that is set and
communicated by the SRC and in disregard to the constitutional mandate of SRC as required by Article 230(4) (a)

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of the Constitution.
d) An order be issued directing the Clerk of the Senate and the Clerk of the National Assembly to recover from
salaries and allowances paid to MPs any allowance paid pursuant to the illegal and unconstitutional decision of
the Respondents to pay MPs house allowance - outside the Constitutional structure of Remuneration and Benefits
of all State Officers in Parliament that is set and communicated by the SRC and in disregard to the constitutional
mandate of SRC as required by Article 230(4) (a) of the Constitution.
Alternatively
An order be issued directing the 3rd to 12th Respondents to personally pay to the Consolidated Fund all House
Allowances paid to MPs pursuant to the illegal and unconstitutional decision of the Respondents to pay MPs house
allowance-outside the Constitutional structure of Remuneration and Benefits of all State Officers in Parliament
that is set and communicated by the SRC and in disregard of the constitutional mandate of SRC as required by
Article 230(4) (a) of the Constitution.
e) The Respondents bear the cost of the Petition.
34. Petition No. 339 of 2019 was filed on 26th August 2019 by the PSC against the SRC and the Attorney General.
At the time the said Petition was filed, Petitions Nos. 208 of 2019 and 185 of 2019 had already been consolidated,
and the PSC sued as a respondent in those Petitions, had already been designated as the 1st Respondent. Therefore,
notwithstanding the PSC being named as a respondent in the consolidated Petitions, its case will be detailed herein
below and we will deem it to be a cross-Petition and determine it on merits.
35. The PSC’s case is that on 1st and 8th March 2013, the SRC published the remuneration and benefits for State
Officers serving in Parliament, the Executive, Constitutional Commissions and Independent Offices, and County
Governments. Further, that the MPs’ remuneration was reduced from Kshs. 851,000/= to Kshs. 532,500/=, a
reduction of 37.4%. It states that the allowances payable to MPs was made subject to taxation unlike in the
previous regime under the National Assembly Remuneration Act,[4] under which they were tax-free.
36. The PSC states that it and the MPs were dissatisfied with the said remuneration and benefits structure. Further,
that despite a series of consultations between itself and the SRC, a number of issues remained unresolved, such as
the review and setting by SRC, of what the PSC considered as “services and facilities” falling within its mandate
under Article 127 (6).
37. The PSC also states that on 7th July 2017 the SRC gazetted a remuneration and benefits structure for State
Officers in the Executive, Parliament, County Governments and full-time constitutional commissions, in which it
abolished the car grant of Kshs. 5,000,000/- which the MPs were previously entitled to in a Parliamentary term and
various allowances. Further, PSC states that SRC also abolished sitting allowance for plenary sessions, and reduced
the sitting allowance for committee meetings and limited the meetings to a maximum of 16 meetings per month.
Lastly, SRC also reduced the number of children that could be covered by the medical cover from 5 to 4 children,
without providing any reasons, and abolished medical ex-gratia assistance to MPs and their families who exceeded
their medical cover entitlement.
38. In addition, the PSC states that SRC reduced the maximum mortgage entitlement for MPs from Kshs. 35
million to Kshs. 20 million without effecting a similar reduction for other State Officers such as Judges and Cabinet
Secretaries. Aggrieved by the SRC’s decision, and after failed consultations with the SRC, the PSC filed
Parliamentary Service Commission v Salaries Remuneration Commission; Attorney General & 3 others

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(Interested Parties)[5] (the PSC v SRC Case) in which the court quashed the Gazette Notice No. 6517 which was
on the remuneration and benefits of State Officers in Parliament for the reason that its publication was tainted with
procedural impropriety. However, that the court declined to interpret the mandate of the PSC and the SRC
regarding the expression “services and facilities” in Article 127 on the ground that it was not an issue before it.
39. The PSC avers that the interpretation of the expression “services and facilities” regarding its mandate under
Article 127 (6), vis-à-vis the SRC’s mandate under Article 230 is still alive, and, that, this court is the proper forum
to determine the issue. It also states that despite the decision in the PSC v SRC Case, SRC has remained adamant
that the provision of medical care and/or cover, medical ex gratia payment, the various allowances and a housing
facility to MPs are benefits falling within its mandate, and are not services and facilities which fall within the
PSC’s mandate.
40. PSC confirmed that the SRC, by a letter dated 14th May 2019, directed the Clerk of the Senate and Secretary to
the PSC and the Clerk of the National Assembly, as Accounting Officers, not to pay the “house allowance” to MPs.
This according to the PSC impedes the legislative mandate of Parliament under Articles 94, 95 and 96, and the
PSC’s mandate under Article 127(6) (a) and (e). Further, that the said letter was written pursuant to Gazette Notice
Nos. 6516 and 6519, both dated 7th July 2017, which only applied to remuneration and benefits of State Officers in
the Executive and Constitutional Commissions, because Gazette Notice No. 6517 of 7th July 2017, which applied to
State Officers in Parliament, was quashed by the Court. According to the PSC, the said letter was therefore made
without jurisdiction and is unlawful.
41. Consequently, the PSC prays for: -
a) A declaration be issued that the mandate and role of the SRC under Article 230 (4) (a) of the Constitution
requires it to provide all State Officers, including State Officers serving in the PSC and Parliament with housing
allowance.
b) A declaration be issued that the SRC has violated the MP’s right to equality under Article 27 of the
Constitution by failing to provide MPs with housing allowance for their housing in their respective constituencies.
c) An order of Mandamus be issued compelling the SRC to provide MP’s with housing allowance for their housing
in their respective constituencies.
d) A declaration be issued that the mandate and role of the PSC under Article 127 of the Constitution extends to
provision of services and facilities to ensure the efficient and effective functioning of Parliament.
e) A declaration be issued that the services and facilities that the PSC is mandated to provide to MP’s under
Article 127 of the Constitution as read together with the Section 2 of the Parliamentary Service Act, No. 10 of
2000, are services to ensure the efficient and effective functioning of Parliament as well as to ensure the wellbeing
of Members and staff of Parliament and are not remuneration.
f) A declaration be issued that the mandate and role of the SRC under Article 230 (4) (a) of the Constitution is
only limited to setting and reviewing the remuneration and benefits of State Officers serving in the PSC and
Parliament, and not to determining the number of remunerable meetings that the PSC and/or any Committees of
Parliament may hold in the exercise of their respective mandates.
g) A declaration be issued that the decision of the SRC to cap the remunerable meetings for MP’s to not more than
16 meetings in a month interferes with the constitutional mandate and administrative independence of the PSC and
therefore is in contravention of Article 249(2)(b) of the Constitution.

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h) A declaration be issued that the decision of the SRC to cap the remunerable meetings for Committees of
Parliament to not more than 16 meetings in a month interferes with the constitutional mandate of Parliament and
therefore is in contravention of Articles 93 (2) and 94 (1) of the Constitution.
i) A declaration be issued that the SRC has no mandate to direct the Petitioner’s Clerks of Parliament, whilst
exercising their respective roles as Accounting Officers of the PSC and/or the Senate and the National Assembly,
from paying “facilitative allowances” to Members of Parliament.
j) An order of Certiorari be issued, to remove to this Honourable Court and to quash, the SRC’s letter dated 14th
May, 2019, directing the Clerks of Parliament to refrain from paying “facilitative allowances” to MP’s.
k) An order of Certiorari be issued to remove to this Honourable Court and to quash, Gazette Notice Number 2886
of 1stMarch, 2013.
l) A declaration that pending a new job evaluation that takes into account the provisions of Chapter Seven and
Eight of the Constitution, MP’s shall be entitled to receive the remuneration and benefits that they were receiving
prior to publication of Gazette Notice Number 2886 of 1st March 2013.
m) An order of Prohibition (or alternatively by injunction or otherwise) be issued to prohibit the SRC from in any
way interfering with the work and constitutional independence of the PSC and Parliament.
n) This Honourable Court be pleased to issue any other appropriate order or relief as it may deem fit and just.
o) Costs of the Petition be awarded to the Petitioners in any event.
The Responses
42. Two types of responses to the consolidated Petitions were filed by the parties. The first type are those in support
of Petition Nos. 208 of 2019 and 185 of 2019, and in opposition to Petition No. 339 of 2019. The second type are
the responses in opposition to Petitions Nos. 208 of 2019 and 185 of 2019.
43. Mr. Thande Kuria, counsel for the 14th, 15th and 16th Respondents, Mr. Lempaa, counsel for the 4th Interested
Party and Mr. Nzamba Kitonga SC, counsel for the 5th Interested Party stated that they did not file any responses to
the Petitions. However, they all filed submissions in support of Petitions 208 of 2019 and 185 of 2019 and in
opposition to Petition 339 of 2019.
44. The responses by the other parties are summarized in the following sections.
The 1st to 13th Respondents’ Responses
45. The 1st to 13th Respondents filed two Replying affidavits in opposition to Petitions 185 of 2019 and 208 of
2019. The first one dated 1st October 2019, was sworn by Jeremiah Nyegenye in his capacity as the Secretary to the
PSC and Clerk of the Senate. Michael Sialai swore the second affidavit on 30th September 2019, in his capacity as
the Clerk to the National Assembly. The 1st to 13th Respondents also filed identical grounds of opposition, both
dated 30th September 2019, to the two Petitions.
46. The 1st to 13th Respondents aver that the PSC is a constitutional commission established under Article 127(1)
and specified as such under Article 248 (2) (d). They also aver that its membership is provided under Article 127(2)
and (3) and that its current members are the 3rd to the 12th Respondents who have been sued in their personal
capacities. They depose that the Clerk of the National Assembly has been enjoined in these Petitions yet he is not a

245
member of the PSC. They further aver that members of commissions and holders of independent offices have
immunity from personal liability for acts done in good faith in the discharge of their official functions pursuant to
Article 250(9).
47. It is the 1st to 13th Respondents’ case that the PSC is a body corporate whose mandate is provided under Article
127(6) and that the impugned decision was made by 3rd to 12th Respondents in their official capacity as members of
the 1st Respondent and they cannot be sued in their personal capacities. They cited Judicial Service Commission
v. National Assembly & 2 others[6] in support of their averment and urged the court to remove the 3rd to 12th
Respondents from the proceedings.
48. The 1st to 13th Respondents also aver that the secretary of a constitutional commission does not participate in
the commission’s decisions hence Mr. Nyegenye has been wrongfully sued in Petition No. 208 of 2019.
49. In defence of the 1st Respondent’s impugned decision, the 1st to 13th Respondents aver that under Article 260,
MPs are State Officers and are entitled to a housing benefit or a house allowance at the County or Constituency
level. Further, that the SRC has not set a housing benefit or house allowance for them contrary to its constitutional
mandate. It is their case that in Council of Governors v. Salaries & Remuneration Commission[7] (the CoG v
SRC case), the court faulted the SRC for failing to set a housing benefit or a house allowance for Deputy
Governors. Likewise, the SRC has denied MPs a housing benefit or a house allowance in violation of their
constitutional rights as State Officers and SRC has fallen short in the discharge of its constitutional mandate under
Article 230(4)(a).
50. The 1st to 13th Respondents explained that by the very nature of their constitutional mandate, MPs have two
work stations, which necessitate that they have a house at the County or Constituency level, and facilitative house
allowance for their accommodation in Nairobi when they are attending to legislative and other parliamentary
business. According to the 1st to the 13th Respondents, what was paid to MPs was a facilitative allowance and not
house allowance as alleged by the SRC.
51. The said Respondents further deposed that the SRC has failed to consider that the provision of a housing benefit
or house allowance is vital for the productivity and performance of MPs in the discharge of their constitutional and
legislative mandate. Further, SRC has not been transparent and fair, and it has discriminated against MPs contrary
to Article 27.
52. In support of their claim of discrimination and unfair treatment, the 1st to 13th Respondents cited various
circulars released by the SRC, which listed the grades and equivalent job groups for all State Officers and other
designated public officers. They gave the example that MPs who despite being graded at E5 are paid lower salary
and allowances than Chief Magistrates who are at the lower grade of E4. Likewise, that High Court judges who are
in the same grade like MPs are paid a higher gross monthly remuneration package.
53. The 1st to 13th Respondents maintain that the provision of a facilitative house allowance is in line with the
PSC’s mandate under Article 127 (6) (a) & (e) which enjoins it to provide services and facilities to ensure the
effective and efficient functioning of Parliament. Additionally, they aver that it does not make sense to incur
mileage costs transporting MPs from their constituencies or counties to Nairobi to attend parliamentary business,
but fail to provide for their accommodation expenses. The 1st to 13th Respondents supported their case by citing the
practice of payment of facilitative house allowance in other jurisdictions among them the United Kingdom and
India.
54. It is the said Respondents’ averment that services and facilities necessary for Parliament to function are not
remuneration or benefits within the meaning of Article 230 (4)(a), which must be read together with Article 127 (6)
which mandates the PSC to provide services and facilities to MPs. They supported their averment by stating that

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pursuant to Article 249(2), the PSC is not subject to control by any other State organ or person. Further, that the
PSC is under no obligation to consult with the SRC in the fulfilment of its constitutional mandate.
55. Lastly, the 1st to 13th Respondents denied the allegation made by the SRC and Mr. Okiya Omtatah that the
impugned decision led to loss of public funds. They aver that there has been no such loss because in performing
legislative and other parliamentary business in Nairobi, MPs are not engaged in private rendezvous but are
fulfilling a public function required of them by the Constitution. Additionally, that SRC cannot use the rationale of
minimizing wastage of public resources to interfere with the performance of their constitutional mandate.
The 1st Interested Party’s Response
56. Jeremiah Nyegenye the Clerk of the Senate and the Secretary to the PSC and Mr. Michael Sialai the Clerk of
the National Assembly swore the affidavits dated 1st October 2019 and 30th September 2019 respectively in
opposition to Petition Nos. 185 of 2019 and 208 of 2019. The said deponents are the Accounting Officers of their
respective houses of Parliament and responsible for administration and proper management of Parliament.
57. Mr. Nyegenye and Mr. Sialai explained that the Senate comprises of members elected from each County in the
country whereas the National Assembly is composed of members elected from each Constituency in the country.
Further, that these members are required to come to Nairobi to attend plenary sittings, committee meetings and
other businesses of the houses and also attend to their constituents in their respective counties and constituencies.
58. The said deponents aver that as Accounting Officers they are responsible for ensuring that the members have
the facilities that they require to transact parliamentary business and attend all committee as well as plenary sittings
and, in that capacity, they receive requests from members to facilitate them to attend Parliament in Nairobi.
Further, that they receive requests from members requesting that the PSC facilitates them to undertake their
constitutional duties in the counties and the constituencies, and other official business.
59. The deponents substantially reiterated the averments made by the 1st to 13th Respondents on the entitlement of
MPs to accommodation facilitation to enable them to effectively perform their constitutional roles, and that Article
127(6) (a) (e) mandates the PSC to provide MPs with such facilitation. Furthermore, that the accommodation
facilitation is not a benefit.
The 2nd Interested Party’s Response
60. The 2nd Interested Party adopted a similar position to that of the 1st to 13th Respondents. Their response is
contained in the replying affidavits sworn by Michael Sialai on 30th September 2019 and Jeremiah Nyegenye sworn
on 1st October 2019, and the grounds of opposition dated the same date. The 2nd Interested Party, just like the 3rd to
the 12th Respondents averred that they have been wrongly sued in their personal capacity for receiving facilitative
allowance from the PSC to enable them effectively and efficiently perform their constitutional mandate.
The 3th Interested Party’s Response
61. Samuel M. Kimeu, the Executive Director of Transparency International-Kenya swore the Replying Affidavit
dated 14th June 2019 in support of Petition No. 185 of 2019. He avers that TI-Kenya has been working with others
to ensure that political leaders in Kenya and State Officers uphold the national values and principles of governance
embodied in Article 10(2).
62. The 3rd Interested Party detailed the processes leading to the payment of the impugned house allowance to the
MPs as described by the Petitioners. Mr. Kimeu averred that pursuant to the express constitutional edict in Article
230 (4) (a), the SRC is tasked with the mandate of setting and reviewing the remuneration and benefits of all State

247
Officers including the MPs.
63. He further averred that SRC’s mandate has been the subject of various decisions of the High Court, including
the CoG v SRC case relied upon by the PSC to justify the payment of the impugned house allowance. According
to the 3rd Interested Party, the court in the said case declined to grant the housing benefit but directed the SRC to
discharge its exclusive constitutional mandate to set and review the remuneration and benefits of all State Officers
including the Deputy Governors.
64. The 3rd Interested Party also cited the PSC v SRC Case and averred that the said decision clarified the
constitutional mandates of the SRC and the PSC. Additionally, the 3rd Interested Party averred that the mandate of
the PSC is provided for under Article 127 (6) and that under the said Article, the PSC does not have mandate to set,
review and award any remuneration and benefits to State Officers.
65. Mr. Kimeu averred that the options available to the PSC was to request for a review of the MPs’ benefits from
the SRC as provided in the Constitution, the SRC Act and Regulations, or alternatively, to seek a court declaration
that MPs are entitled to a housing benefit.
66. In conclusion, the 3rd Interested Party averred that the PSC acted with impunity and disregarded the
Constitution, the law, High Court decisions and advice of the National Treasury in awarding and paying MPs the
Kshs. 250,000/= monthly housing benefit, and backdating it to 5th October 2018. Furthermore, that the PSC and
Parliament breached the national values in Article 10(2), and acted outside their constitutional mandates.
SRC’s Response to Petition No. 339 of 2019
67. The SRC filed grounds of opposition dated 22nd October 2019 in opposition to Petition No. 339 of 2019. It
reiterated that its mandate under Article 230 (4) (a) and section 11 of the SRC Act is to set and regularly review the
remuneration and benefits of all State Officers. Further, that this position has received judicial backing in various
court decisions including Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3
others.[8]
68. The SRC also states that Petition No. 339 of 2019 is unnecessary and intended to frustrate the functioning of the
SRC in its role of setting and regularly reviewing salaries. Further, it states that the Petition is an abuse of the court
process since the PSC knew that SRC had already filed Petition Nos. 208 of 2019 and 185 of 2019. According to
SRC, the PSC is misdirecting itself in the application of the law and the rules of res judicata in the factual
circumstances of this matter, and in particular relying on Gazette Notice No. 6517 published on 7th July 2017 which
was quashed by the PSC v SRC case.
69. The SRC explained the processes, tools and consideration that inform its job evaluation and grading of State
Officers and reiterated it is highly technical and polycentric in nature. It also denied that there was discrimination in
the reduction of the remuneration and benefits of MPs, and stated that it acted independently and within the
confines of its constitutional mandate by setting the salaries for MPs. Further, that the PSC is on a fishing
expedition for non-existent powers to pay its members additional house allowance, which is illegal and contrary to
public policy.
70. The SRC also stated that the limiting of the number of remunerable meetings of parliamentary committees to a
maximum of 16 per month does not interfere with the PSC’s independence and mandate. Further, that it only
provided for the maximum amount of allowances to pay or meetings on a monthly basis and it did not expressly
prescribe the number of meetings that should be held.
71. Further, the SRC states that it is wrong, absurd and unreasonable for the PSC to state that SRC’s mandate to set

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housing allowance is only limited to offering a house at the constituency or county level since MPs have 2 work
stations, and that it is PSC’s mandate to provide services and facilities at Nairobi. Additionally, SRC’s mandate is
to set and regularly review the remuneration and benefits notwithstanding the officer’s number of working stations
and its mandate is not limited by any locality. In SRC’s view, the claim by PSC that it provides services and
facilities to cater for accommodation in Nairobi is a scheme to confer exorbitant benefits to MPs at the expense of
the citizenry and is geared at wasting public resources, which is against public interest.
72. The SRC opines that the judgment in the CoG v SRC case is in personam and only declared that denying a
housing benefit to Deputy Governors is discriminatory. Further, that there was no finding that failing to set a
housing benefit for some State Officers amounts to discrimination. The SRC reiterated that a housing benefit
simply means constructing a residence for the particular State Officer as a result of the unique nature of their
functions, such as the President and Deputy President. In addition, where a housing benefit is not provided, a
housing allowance must be provided as a supplement and in the case of MPs, they are paid a house allowance,
which forms 40% of their consolidated pay.
73. The SRC also states that the alleged services and facilities to be provided by the PSC should not in any
circumstances be in monetary terms. It states that the Black’s Law Dictionary defines service as a product that is
not tangible while a facility is a physical building or product. Further, the SRC is performing its constitutional
mandate, which includes regulating the use of public finances to maintain a sustainable wage bill.
74. Lastly, SRC states that it took into consideration all factors the PSC is raising while setting the remuneration
and benefits package and if Petition No. 339 of 2019 is allowed SRC’s constitutional role under Article 230(4) (a)
will be rendered nugatory.
The Submissions
The Submissions in support of Petition Nos. 185 of 2019 and 208 of 2019
1st Petitioner’s Submissions
75. Mr. Wanyama, the counsel for the SRC filed submissions dated 1st October 2019 in support of Petition No. 208
of 2019. The counsel submitted that the Petition raises a fundamental question regarding the powers of the SRC vis
a vis the powers of the PSC as outlined in Articles 127 and 230 and section 11 of the SRC Act. Referring to
annexures 1, 2, 6 & 7 to the affidavit in support of the Petition, counsel argued that contrary to PSC’s contention
that they paid “a facilitative allowance,” the said documents are clear that what was paid was referred to as a house
allowance. Furthermore, that the payment offends Article 230, which confers exclusive mandate to the SRC to set
the salaries, and allowances payable to all State Officers, and the PSC cannot exercise a mandate expressly vested
upon the SRC by the Constitution. The counsel argued that Article 127 cannot be construed to vest the said
mandate to the PSC to pay MPs housing allowance without SRC’s approval.
76. Mr. Wanyama reiterated the reasons why the SRC declined to approve PSC’s request for the house allowance.
These were firstly, that the housing benefit that SRC has set for a selected group of State Officers is distinct from a
house allowance. Secondly that the housing benefit is the physical building/house provided by the Government and
not a cash benefit which is available mostly to public officers whose pay is not consolidated. Thirdly, that MPs earn
a consolidated pay [9]
which combines the basic salary and house allowance. Fourthly, under section 31(2) of the
Employment Act, a house allowance cannot be paid where an employee receives a consolidated pay. Lastly, that
the SRC has set additional benefits for MPs in form of mortgages at affordable interest rates to buy houses to
address their housing needs.
77. The counsel further submitted that MPs are State Officers as defined in Article 260 and by a letter dated 15th

249
November 2013 addressed to the Speaker of the National Assembly/Chairman of PSC, the SRC was categorical
that the set remuneration package for all State Officers is consolidated pay. Further, that for purposes of pension
management and computation, 60% of the set remuneration is to be considered as the basic salary while all other
allowances unless specified are consolidated into the 40% of the total set remuneration. He averred that MPs are
paid a house allowance in their consolidated pay and as such they are not entitled to any other additional housing
allowance.
78. Mr. Wanyama contended that there is no law which provides for a benefit/allowance/facility known as a
“housing or accommodation facilitation” and that in the correspondence between the Cabinet Secretary, the
National Treasury, and the PSC there was no reference to a “housing or accommodation facilitation.” He added
that in all the communications between the parties, the PSC indicated that it sought to pay MPs a housing
allowance and that the duplication of allowances is a huge loss of public funds.
79. The counsel submitted that PSC’s act of formulating and setting an allowance which is not provided in any
written law is a blatant breach of Article 230(4), and the paying and backdating of the additional house allowance
to MPs is in breach of Article 2(2). Additionally, he argued that the Respondents
[10]
have acted in contravention of the
common law principle of the rule of law established in Entick v Carrington to the effect that the state or state
agencies can only do that which is permitted by law.
80. Mr. Wanyama also argued that setting, approving and paying the housing allowance to MPs by the PSC does
not fall within the intendment of Article 127(6) (e). He submitted that performing a function necessary for the
wellbeing of the MPs does not include setting their benefits as and when they deem fit, hence the PSC acted
beyond its constitutional mandate. To buttress his argument, he cited Article 230(4)
[11]
(5) and section 11 of the SRC
Act and Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others which held that all organs created
by the Constitution are of equal importance and that where one organ is of the view that another organ has
overstepped its mandate, the aggrieved body should seek a solution as provided in the Constitution.
81. Mr. Wanyama also cited the PSC v SRC case which held that Article 230(4) mandates the SRC to set and
regularly review the remuneration and benefits of all State officers and to advise the national and county
governments on the remuneration and benefits of all other public officers who include the MPs.
82. The counsel addressed PSC’s reliance on the decision in the CoG v SRC case and submitted that the case has
not been
[12]
correctly applied. He cited Ekuru Aukot v Independent Electoral & Boundaries Commission & 3
others for the proposition that the language of a decision is to be construed not as a statement of abstract
propositions without limitations but in connection with the particular facts of the case, and the specific matters in
view when the language was used. Further, that when applied to an essentially different state of facts, it is to be
understood as subject by implication to many limitations and restrictions not expressly stated.
83. The counsel further argued that there is a distinction between judgment[13]in rem and in personam and cited the
decisions in Japheth Nzila Muangi [14]
v Kenya Safari Lodges & Hotels Ltd , Pattni v Ali & Anor (Isle of Mann
[15]
(Staff of Government Division) , Edward R. Ouko v Speaker of the National [16]
Assembly & 4 others and
George William Kateregga v Commissioner for Land Registration & Other for the position that a judgment
in personam ordinarily binds only the parties to it, and that a judgement which is conclusive not only against the
parties but is also against all the world is a judgement in rem.
84. According to Mr. Wanyama, the Respondents have misinterpreted the Judgement in the CoG v SRC
case which was a judgment in rem in that it is effective against the whole world but does not confer benefits upon
the whole world. He argued that the Deputy Governors were granted the house allowance because of the nature of
their work which involves hosting state delegations; hence, the judgment was with respect to the position of deputy
governors and not all state officers as interpreted by the Respondents.

250
[17]
85. Regarding the application of the Employment Act to MPs, the counsel submitted that section 2 of the Act
defines an “an employee” to mean a person employed for wages or a salary and includes an apprentice and
indentured learner and argued that the Act does not apply to a State Officer who is defined in Article 260. Further,
that the Act was enacted to govern the relationship between an employer and employee under a contract of
employment.
[18]
He cited the Court of Appeal in County Government of Nyeri & another v Cecilia Wangechi
Ndungu which held that the Employment Act[19] does not apply to State Officers.
86. Mr. Wanyama argued that paying MPs an additional house allowance without public participation offends the
national values and principles in Article 10, which bind all State organs, State officers and public officers. He also
argued that the courts have in many decisions pronounced themselves on the issue of public participation. He cited
the decisions in Nairobi [20]Metropolitan PSV Saccos Union Limited &25; others v County of Nairobi [21]
Government & 3 Others and Robert N. Gakuru & Others v Governor Kiambu County & 3 others as
examples.
87. Further reliance was placed on Article 259(11) of the Constitution, which provides that where the approval of a
body is required, it ought to be sought before any step of decision making is done. Mr. Wanyama added that the
PSC sought SRC’s approval to pay MPs a housing allowance, which approval was declined, but that despite the
provisions of Article 259(11), the PSC went ahead and authorized payment of the allowances. To buttress his
argument, he cited the Court of[22]Appeal decision in Teachers Service Commission (TSC) v Kenya Union of
Teachers (KNUT) & 3 Others which held that the advice given by SRC is binding on all State Organs and
independent commissions.
88. Mr. Wanyama argued that the powers and functions of the PSC are set out in the Constitution and that the law
frowns at the act of usurping powers and functions not specifically granted by the Constitution.
The 2nd Petitioner’s Submissions
89. Mr. Omtatah adopted Mr. Wanyama’s submissions. Additionally, he argued that there is no contradiction
between Article 127 (6) (e) (i) which provides for the role of the PSC and Article 250 (4) & (8) which provides the
mandate of the SRC. He submitted that Article 127 gives PSC power to facilitate an institution and not individuals.
He contended that the well-being of members of staff is not the same as benefits of State Officers and added that
the determination to pay must be made by the SRC before the payment is done.
90. Mr. Omtatah submitted that the composition of the PSC automatically excludes them from determining the pay
because they would be paying themselves. He argued that the Constitution created independent commissions and
urged the court to interpret the Constitution in a holistic manner and treat it as a living document as opposed to the
view taken by the PSC. He relied on the Supreme Court decision in In the Interim Independent Electoral
Commission[23] and urged the court to allow Petition Nos. 185 of 2019 and 208 of 2019 and dismiss Petition No.
339 of 2019.
The 14th, 15th and 16th Respondents’ Submissions
91. Mr. Thande Kuria, counsel for the 14th, 15th and 16th Respondents supported Petition Nos. 208 of 2019 and 185
of 2019, and opposed Petition No. 339 of 2019 in submissions dated 2ndDecember 2019. He submitted that the PSC
has no powers to review and alter MPs’ salaries and benefits. His position was that PSC’s mandate under
Article 127(6) is to ensure efficient and effective functioning of Parliament, to establish offices in parliamentary
service and appoint office holders, prepare annual estimates of parliamentary expenditure and exercise budget
control over such estimates and perform such necessary functions for the well-being of members and staff of
Parliament. He argued that the proper procedure is for the PSC to request the SRC to review their terms as provided
in the SRC Act.

251
92. Mr. Kuria cited Articles 230 (4) (a) & (b) and section 11 of the SRC Act and submitted that the impugned
decision made by PSC is unconstitutional. He argued that the functions set out under the said provisions can only
be exercised by the SRC, and that no organ of the state or commission can operate outside the parameters set by the
Constitution. He submitted that Rules 4 & 5 of the Salaries and Remuneration Commission (Remuneration and
Benefits of State and Public Officers) Regulations, 2013 mandates the SRC to undertake a review of salaries and
remuneration of state and public officers every four years. To fortify
[24]
his position, he cited Teachers Service
Commission v Kenya Union of Teachers (KNUT) & 3 others and Kenya Union of Domestic, Hotels,
Education And Allied Workers (Kudhehia Workers) v Salaries and Renumeration Commission[25]which
acknowledged the mischief the creation of SRC was intended to cure, and held that the advice of the SRC under the
Constitution is binding on national and county governments and any power or function exercised without that
advice is invalid.
[26]
93. He also relied on Okiya Omtatah & 3 others v Attorney General & others in which the court held that
Parliament had exceeded its mandate by purporting to annul a gazette notice issued by the SRC setting salaries for
MPs. Mr. Kuria also[27]cited and placed reliance on Kenya National Commission on Human Rights v Attorney
General & another in which the court considered the legal consequences of failure to seek advice from the SRC
in matters touching on remuneration and benefits payable to state and public officers, and held that the law
mandates the input of the SRC to be sought in such matters.
94. Mr. Kuria further relied on Article 259 (11) which provides that if a function or power conferred on a person
under the Constitution is exercisable by the person only on the advice or recommendation, with the approval or
consent of, or on consultation with another person, the function may be performed or the power exercised only on
that advise, recommendation, with that approval or consent or after that consultation, except to the extent that the
Constitution provides otherwise.
95. Additionally, Mr. Kuria cited Article 116 (4) which provides that an act of Parliament that confers a direct
pecuniary interest on MPs shall not come into force until after the next general elections. He submitted that the said
provision bars lawmakers from taking any action legislative or otherwise that would confer a pecuniary benefit on
themselves.
96. Mr. Kuria also submitted that Article 2 binds all persons; Article 93(2) directs the National Assembly and the
Senate to perform their respective functions in accordance with the Constitution, while Article 94 (4) obligates
Parliament to protect the Constitution. Furthermore, that the impugned decision is a violation of Article 73 (1)
(a) which provides that the authority assigned to a State Officer is a public trust to be exercised in a manner that is
consistent with the purpose and objects of the Constitution. He also relied on [28]
Director of Public Prosecutions v
Tom Ojienda T/A Prof Tom Ojienda & Associates Advocates & 3 others which held that state organs created
by the Constitution are bound by the dictates of the Constitution and therefore they are not at liberty to pick and
choose which of its actions are bound by the Constitution.
97. On the question of discrimination, Mr. Kuria faulted Prof. Ojienda’s reliance on the CoG v SRC case which
was specific to house allowance payable to Deputy Governors. He argued that MPs though State Officers perform
different constitutional roles from the Deputy Governors and comparing their roles and functions cannot be a basis
to lay a case for discrimination in terms of remuneration benefits. He additionally argued that the basis upon which
the SRC awards remuneration and benefits is based on an objective criterion, job description and overall economy
of the country and the public wage bill.
The 3rd Interested Party’s Submissions
98. Mr. Ouma, the counsel for the 3rd Interested Party, relied on written submissions filed on 20th June 2019 in
support of Petition No. 185 of 2019. He argued that the SRC has the exclusive mandate to set and review salaries

252
and allowances for State Officers including MPs. He relied on Article 230 (4) and section 11 of the SRC Act.
Counsel [29]relied on the decisions in Kenya National Commission on Human Rights v Attorney General &
another[30]; PSC v SRC case; and Judicial Service Commission v Salaries and Remuneration Commission &
another for the holding that commissions and independent offices ought to function without intrusion on their
mandate by any other state organ, authority or person.
99. Mr. Ouma pointed out that the High Court in the CoG v SRC case emphasized SRC’s exclusive mandate to set
and regularly review all remuneration and benefits (including the housing benefit) for all State Officers. Further,
that SRC’s mandate in that regard was upheld by the Court of Appeal in Teachers Service Commission (TSC) v
Kenya Union of Teachers (KNUT) & 3 others (supra). Therefore, that PSC acted ultra-vires its powers by
resolving to pay housing allowance to MPs, as the mandate of the PSC under Article 127(1) does not include
payment of MPs’ remuneration. Mr. Ouma also argued that by accepting payments not approved by the SRC, the
MPs violated Articles 73 and 94(4).
100. Mr. Ouma further argued that a housing allowance is a benefit to be set and regularly reviewed by the SRC,
hence, it cannot be a service, a facility or a programme to ensure efficient and effective functioning of Parliament,
nor can it fall within the parameters of an additional function for the well-being of MPs. He submitted that the PSC
is enjoined under Article 249(1) to protect the sovereignty of the people of Kenya, to secure the observance of the
democratic values and principles of the Constitution and promote constitutionalism. He submitted that all State
Organs must act in deference to the Constitution and cited Teachers Service Commission (TSC) v Kenya Union
of Teachers (KNUT) & 3 others for the holding that an action done by a state organ in usurpation of another State
Organ’s mandate is a fundamental jurisdictional error and such an action, is a nullity and liable to be set aside on
this ground alone. He[31]also relied on Communications Commission of Kenya & 5 others v Royal Media Services
Limited & 5 others which emphasized the need for a public body to be seen to be carrying out its functions free
of orders, instructions, or any other intrusions.
101. Additionally, counsel argued that the impugned decision was made in March 2019 and backdated to 5th
October 2018 without regard to an Appropriations Bill as required by Article 206(2) & (3). Further, he submitted
that the permission of the Controller of Budget under Article 206(4) was not obtained. [32]
Mr. Ouma relied on
Institute of Social Accountability & another v National Assembly & 4 others for the holding that the
Constitution should be interpreted in a manner that promotes its purposes, values, and principles, and advances the
rule of law, human rights and fundamental freedoms in the Bill of Rights and contributes to good governance.
Lastly, he argued that when a court intervenes under Article 165(3) (d) (ii), it does so to protect the Constitution
and ensure the legality of any act in exercise of public power.
The 4th Interested Party’s Submissions
102. Mr. Lempaa who appeared for the 4th Interested Party supported Petition Nos. 208 of 2019 and 185 of 2019,
and opposed Petition No. 339 of 2019. He adopted the submissions made by Mr. Wanyama, Mr. Omtatah and Mr.
Kuria, and highlighted his written submissions filed on 5th December, 2019. He adverted to SRC’s constitutional
mandate under Article 230(1) and section 11 of the SRC Act [33]
and cited the Supreme Court decisions in Re the
Matter of Interim Independent Electoral Commissions, [34]
Communication Commissions of Kenya & [35] 5
Others v Royal Media Services Limited & 5 others and Re the Matter of the National Land Commission
which underscored the importance of independent constitutional commissions.
103. Counsel further submitted that the mandate of the PSC is to provide services and to facilitate Parliament to
function effectively, and does not include setting salaries
[36]
and allowances for MPs. He relied on Okiya Omtatah
Okoiti & 3 Others v Attorney General & 5 others for the proposition that Parliament cannot and must not be
allowed to transgress into the mandate of other constitutional organs.
[37]
He also cited Teachers Service Commission
(TSC) v Kenya Union of Teachers (KNUT) & 3 others in which the Court of Appeal held that

253
recommendations of the SRC are binding on State organs.
104. Responding to Prof. Ojienda SC’s reference to the practice obtaining in comparable jurisdictions including
England and India on the provision of accommodation allowance to MPs, Mr. Lempaa submitted that the
Independent Parliamentary Standards Authority in England and the Salary, Allowances and Pension of Members of
Parliament Act of 1954 of India provide for house allowance. Further, that there are no bodies similar to the SRC in
those jurisdictions. He submitted that best practices from other jurisdictions must be applied in a holistic manner.
He also distinguished the decision in the CoG v SRC case on the ground that it targeted Deputy Governors, and is
therefore a decision in personam and not in rem.
105. Lastly, Mr. Lempaa submitted that Article 116(3) prohibits Parliament from enacting a law that confers direct
benefit to MPs during their term. He argued that the PSC’s actions fly in the face of the national values and
principles as was observed by the Supreme
[38]
Court in Communication Commission of Kenya & 5 Others v Royal
media Services Limited & 5 Others. He submitted that the PSC’s actions undermine the coexistence of
constitutional commissions and urged the court to demarcate the functions of each organ.
The 5thInterested Party’s submissions
106. Mr. Nzamba Kitonga SC, counsel for the Law Society of Kenya, filed written submissions dated 28th October
2019 in support of Petition Nos. 208 of 2019 and 185 of 2019. He gave a brief historical background of the issues
raised in the consolidated Petitions. He recalled that Parliament increased their own salaries and benefits by
amending
[39]
laws relating to their pay which was achieved by amending the then National Assembly Remuneration
Act, triggering public outcry which informed the provisions of Article 230.
107. Mr. Kitonga SC observed that Parliament has severally crafted resolutions aimed at undermining
Article 230, and thus usurping the powers of the SRC. He gave examples of how the 11th Parliament nullified the
Gazette Notices issued by the SRC on their salaries and benefits, and went ahead to use the obsolete National
Assembly Remuneration Act to determine their salaries and benefits. [40]
He stated that this led to the filing of Law
Society of Kenya v the National Assembly and others in which the court declared the resolution
unconstitutional, invalid ab intio, and reiterated the sacrosanct constitutional position that all powers to determine
the salaries and other benefits of state officers are vested in the SRC.
108. Mr. Kitonga SC observed that the 12th Parliament was also engaged in a scheme to challenge the abolition of
mileage allowance for MPs in the PSC v SRC case seeking to quash the decision of the SRC to impose a uniform
mileage allowance for all MPs. He stated that the court again reiterated the exclusive constitutional mandate of the
SRC to set salaries and benefits of State Officers. That the 12th Parliament then came up with the impugned
decision.
109. Mr. Kitonga SC maintained that there is no statute, regulation or law, which supports the decision, and that the
mandate to decide on the salaries and remuneration of a State Officer is solely vested on the SRC. Hence, the
PSC’s action is illegal, null and void ab intio and ultra vires because its functions are limited under Article 127 (6)
(a) to providing services and facilities, by ensuring that MPs have offices, staff, meeting rooms, stationery,
functioning audio and video equipment and travel arrangements.
110. The Senior Counsel further argued that the judgement in the CoG v SRC case relied upon by the PSC was
made in personam, and has no application to MPs or any other category of a State officers. Additionally, that the
PSC deliberately and illegally misinterpreted its mandate in order to procure an illegal benefit from public funds
and the withdrawal of public money without lawful authority, which constitutes abuse of office. Lastly, that the
MPs must refund the monies already paid or be surcharged for the recovery thereof.

254
The Submissions in support of Petition No. 339 of 2019
111. Prof. Ojienda SC, counsel for the PSC filed submissions dated 30th September 2020 in support of Petition No.
339 of 2019. The counsel submitted that the PSC is an independent constitutional commission and its mandate
entails performing functions necessary for the well-being of members [41]
and staff of Parliament under Article 127 (6)
&
(a) (e). He also cited section 2 of the Parliamentary Service Act which provides for the definition of services
and facilities to include all means by which members of the National Assembly are officially assisted in performing
their parliamentary duties. He submitted that Parliament is an independent arm of government and its role is
stipulated in Article 94.
112. He submitted that on 1st and 8th March, 2013, the SRC published its first review of the remuneration and
benefits for State Officers serving in Parliament, the Executive, Constitutional Commissions and Independent
Offices, and in the County Governments vide Gazette Notices No. 2885-2888 of 1st March, 2013 and Gazette
Notice No. 3143 of 8th March, 2013. He argued that in the 2013 remuneration structure, the remuneration of MPs
was reduced from Kshs. 851,000/- to Kshs. 532,500/, a reduction of 37.4%, and allowances payable to MPs
[42]
were
made subject to taxation, unlike in the previous regime under the National Assembly Remuneration Act where
allowances were tax free. He argued that the SRC thereby purported to review and set what the PSC considers as
“services and facilities” falling within its mandate under Article 127 (6).
113. Prof. Ojienda SC stated that on 7th July, 2017, the SRC published its second review of the remuneration and
benefits structure for State Officers in the Executive of the National Government, Parliament, County Government,
and Full Time Constitutional Commissions and Independent Offices (Gazette Notices Number 6516-6519 of 7th
July, 2017). He submitted that the SRC by the said Gazette Notice unilaterally abolished various allowances
payable to State Officers serving in Parliament: despite the fact that its actions would negatively impact on the
remuneration and benefits of State Officers serving in Parliament, and without affording the MPs or the PSC an
opportunity to be heard. Further, that SRC did not give reasons for its decision, contrary to
[43]
Article 47(2) and (3) as
read together with Sections 3, 4, 5, 6, 7, 10 and 12 of the Fair Administrative Action Act.
114. In addition, that the SRC abolished sitting allowance for plenary sessions, reduced the sitting allowance for
committee meetings, and limited the committee meetings that may be paid to a maximum of 16 meetings per month
thereby trespassing into Parliament’s mandate under Articles 1, 93, 94, 95, 96 and 127 (6).
115. Prof. Ojienda SC submitted that being aggrieved by the SRC’s decision to abolish the allowances payable to
State Officers serving in Parliament, the PSC embarked on consultations with the SRC in vain, which prompted it
to sue the SRC in the PSC v SRC case and the court consequently quashed Gazette Notice No. 6517 on the ground
that its promulgation was tainted with procedural impropriety.
116. The Senior Counsel further submitted that by a letter dated 14th May, 2019, the SRC purported to direct the
Clerk of the Senate who is also the Secretary to the PSC and Clerk of the National Assembly, in their respective
roles as Accounting Officers of the Senate and the PSC, and the National Assembly, not to pay a house allowance
to facilitate MPs to carry out their constitutional mandate. He argued that the said directive was contrary to the
PSC's mandate under Article 127(6) (a) & (e). He further argued that the said letter was purportedly written
pursuant to Gazette Notice Nos. 6516 and 6519 both dated 7th July 2017 relating to the remuneration and benefits of
State Officers in the Executive and Constitutional Commissions, and which do not apply to State Officers in
Parliament.
117. According to Prof. Ojienda SC, when Gazette Notice No. 6517 relating to remuneration and benefits of State
Officers in Parliament was quashed in the PSC v SRC case the court declined to interpret the mandate of the PSC
and the SRC pertaining to the expression “services and facilities” under Article 127(6), because it was exercising
judicial review jurisdiction as opposed to interpreting the Constitution. He thus invited this Court to interpret the

255
expression “services and facilities” pertaining to PSC’s mandate under Article 127 (6) vis a vis SRC’s mandate
under Article 230(4), and to harmonise the two Articles.
118. In addition, Prof. Ojienda SC submitted that SRC is mandated to “set and regularly review the remuneration
and benefits of all State officers” including MPs who are State Officers under Article 260. He argued that the SRC
has not set a housing benefit or house allowance for MPs contrary to its constitutional mandate. He opined that
setting of “allowances” does not fall within the mandate of the SRC, whose mandate is limited to remuneration
and benefits and advising the national and county governments on the remuneration and benefits of all other public
officers.
119. He relied on the decision in the CoG v SRC case submitting that it interpreted the mandate of the SRC in the
context of SRC’s failure to set a housing benefit or a house allowance for Deputy Governors which the court held
amounted to unfair discrimination against Deputy Governors. He submitted that in the same manner the SRC
denied Deputy Governors housing benefit or a house allowance, it has denied MPs housing benefit or house
allowance. Placing reliance on the said case, he submitted that MPs are State Officers and like other State officers
they are entitled to a housing benefit or a house allowance at the County or Constituency level.
120. Senior Counsel further argued that the SRC has not adhered to the principles in Article 230(5) (c) & (d) that
requires it to take into account “the need to recognise productivity and performance” and “transparency and
fairness in the treatment of the issue of the housing benefits for MPs. Further, that the SRC has not considered that
the provision of a housing benefit or house allowance is vital for the productivity and performance of MPs in the
discharge of their constitutional mandate. Therefore, that SRC’s failure to set a housing benefit or house allowance
for MPs is a violation of their constitutional right, a failure by the SRC to discharge its constitutional mandate and
it is discrimination against MPs contrary to Article 27.
121. Prof. Ojienda SC submitted that under Article 230(4) the SRC has no mandate to provide MPs with facilitative
allowances since Article 127[44]
(6) (a) & (e) confers the said mandate upon the PSC. He referred to Section 2 of the
Parliamentary Service Act which provides that: “services and facilities” “includes all means by which members
of the National Assembly are officially assisted in performing their parliamentary duties” and reiterated that by the
very nature of their work, MPs require facilitative house allowance for their accommodation in Nairobi when they
are attending to legislative and other parliamentary business.
122. Therefore, as submitted by the Senior Counsel, the housing benefit or house allowance for MPs that falls
within the jurisdiction of the SRC under Article 230(4) (a) is for a house at the County or Constituency level, while
the facilitative house allowance provided to MPs by the PSC under Article 127(6) (a) & (e) is to facilitate MPs
with accommodation in Nairobi as they attend to legislative and other parliamentary business.
123. Prof. Ojienda SC further argued that payment of facilitative house allowances does not amount to loss of
public funds because parliamentary business is public business. He referred to Articles 1, 89, 93, 94, 95 and 96
which provides the mandate of MPs which entails undertaking legislative and other parliamentary business and
submitted that in performing legislative and other parliamentary business in Nairobi, MPs are fulfilling a public
function required of them by the Constitution.
[45]
He relied on Judicial Service Commission v Salaries and
Remuneration Commission & another for the proposition that the SRC cannot hide behind the rationale of
minimizing wastage of public resources as a reason to interfere with the constitutional mandates of the PSC and
MPs to the detriment of the performance of their public functions.
124. The need to harmonize Articles 127(6) (a) (e) and 230(4) (a) was urged by Prof. Ojienda SC, who submitted
that the said Articles must be read together to achieve the aspirations of the people of Kenya as set out in the
Preamble to the Constitution in conformity with the dictates of Article 259
[46]
(1). For this proposition he relied on
Marilyn Muthoni Kamuru & 2 Others v. Attorney General & Another and In the Matter of the Principle of

256
[47]
Gender Representation in the National Assembly and the Senate.
125. He further
[48]
relied on the Supreme Court decision in Speaker of the Senate & Another v. Attorney-General
& 4 others in which the then Chief Justice and President of the Supreme Court, Dr. Willy Mutunga, in his
concurring opinion acknowledged the role of the Court in the elimination of the legal penumbras that may emerge
because of the compromises made during the constitution-making
[49]
process. Further, that the Supreme Court cited
the decision in Tinyefuza v. Attorney-General for the proposition that the entire Constitution has to be read as
an integrated whole without one particular provision destroying the other but each sustaining the other, and that the
court should adopt a holistic approach of interpretation, with a view to protecting and promoting the purpose,
effect, intent and principles of the Constitution.
[50]
126. Prof. Ojienda SC also cited the case of In the Matter of Kenya National Commission on Human Rights,
in which the Supreme Court stated that a holistic interpretation of the Constitution means interpreting the
Constitution in context. He invited the court to consider the purpose, effect, intent and principles of the
Constitution that emerge from the interpretation of the specific mandate of the PSC under Article 127(6) (a) & (e)
viewed in relation to the mandate of the SRC under Article 230(4)(a).
127. The Senior Counsel urged the court to take judicial notice of the fact that both the PSC and the SRC are
constitutional commissions specified as such under Article 248(2)(d) & (h), and are independent of each other with
none being superior nor subservient to the other but both existing in a state of co-equality. He further submitted that
the PSC and Parliament are independent of the control of the SRC in the fulfilment of their respective constitutional
mandates. It was his argument that pursuant to Article 249(2), the PSC is a constitutional commission whereas
Parliament is an independent arm of government, hence, they are independent of the control of the SRC. He
submitted that the SRC has no mandate to determine the number of remunerable meetings that the PSC, and/or any
committees of Parliament may hold in the exercise of their respective mandates. In the same vein, he argued that
the SRC has no mandate to direct the PSC not to pay “facilitative allowances” to MPs.
128. To fortify
[51]
his argument, Prof. Ojienda SC relied on In the Matter of Interim Independent Electoral
Commission in which the Supreme Court expressed itself on the issue of independence of commissions under
Article 249(2). He [52]
also cited Communication Commission of Kenya & 5 Others v. Royal Media Services
limited & 5 others in which the Supreme Court explained the independence of commissions to mean a shield
against influence or interference from external forces and that the body in question must be seen to be carrying out
its functions free of orders, instructions, or intrusions from those forces.
[53]
129. Prof. Ojienda SC placed further reliance on In the Matter of the National Land Commission in which the
Supreme Court stated that the Constitution ordains that the commissions, and the holders of independent offices,
are subject only to the Constitution and the law, and are independent, and not subject to the direction or control by
any person or authority. Further, that the Supreme Court emphasised the need for constitutional commissions to
abide by and remain true to the specific constitutional mandate assigned them without digressing from the same, a
position he argued was reiterated in Republic[54]
v. Commission on Administrative Justice Ex-Parte National
Social Security Fund Board of Trustees which asserted that the starting point of resolving any conflict of
mandates between constitutional commissions is to consider the reasons behind the establishment of the
constitutional commissions.
130. Reliance
[55]
was also placed on Judicial Service Commission v Salaries and Remuneration Commission &
Another in which the court while setting aside SRC’s decision to cap the number of meetings the Judicial
Service Commission could hold in a month at eight held that the commissions and the holders of independent
offices—
(a) are subject only to the Constitution and the law;

257
(b) are independent and not subject to direction or control by any person or authority; and
(c) have operational, administrative, decisional and financial independence when discharging their constitutional
mandate and that they do not therefore seek direction or permission from any other person or authority on how they
should perform their constitutional mandate;
131. In conclusion, Prof. Ojienda SC submitted that the SRC intends to and has attempted to control the PSC in the
discharge of its mandate under Article 127(6)(a) & (e). Therefore, that SRC has attempted to control and limit
Parliament in the discharge of its constitutional mandate, and is ascribing to itself a mandate that does not belong to
it in violation of the Constitution.
The Submissions in Opposition to Petition Nos. 185 of 2019 and 208 of 2019
The 1st-13th Respondents’ and 2nd Interested Party’s Submissions
132. Prof. Ojienda SC made submissions in opposition to Petition Nos. 185 of 2019 and 208 of 2019 on behalf of
the 1st to 13th Respondents and 2nd Interested Party dated 30th September 2020 and supplementary submissions
dated 2nd December 2020, which were substantially similar to the submissions he made in support of Petition No.
339 of 2019.
133. In addition, Prof. Ojienda SC submitted that the Members of the PSC are immune from personal liability for
acts done in good faith in the performance of their constitutional mandate, and that the membership of the PSC is
provided for under Article 127(2) & (3) of the Constitution. Counsel contended that the members of the PSC had
wrongly been sued in their personal capacities, even though members of commissions and holders of independent
offices have immunity from personal liability for acts done in good faith in the discharge of their official functions
as provided for under Article 250(9).
134. Prof. Ojienda SC further submitted that the 3rd to the 12th Respondents made the impugned decision in their
official capacities as members of the PSC and not in their personal capacities. Counsel cited Judicial Service
Commission v National Assembly & 2 others (supra) where the court considered the independence of the
Judicial Service Commission and other independent offices and commissions and the immunity of members of
independent offices and commissions from personal liability under Article 250(9). He argued that the issue in these
Petitions was the collective decision of the 3rd to 12th Respondents acting in good faith in the fulfilment of their
constitutional mandate under Article 127(6) in order to facilitate MPs in the discharge of their legislative and
constitutional mandate under Articles 1, 89, 93, 94, 95 and 96.
135. Likewise, the Senior Counsel submitted that that the MPs had wrongly been sued in the Petitions in their
personal capacities for merely receiving facilitative house allowance from the PSC in order to efficiently and
effectively perform their constitutional mandate under Articles 1, 89, 93, 94, 95 and 96 and had not acted contrary
to the Constitution. Counsel therefore prayed for the removal of MPs from the Petitions.
The 1st Interested Party’s Submissions
136. Mr. Njoroge who appeared for Parliament, the 1st Interested Party herein, filed submissions on 2nd December
2019 in support of Petition No. 339 of 2019 and in opposition to Petition Nos. 208 of 2019 and 185 of 2019. He
submitted that Article 127(6) must be read together with Article 230(4) with each provision sustaining the other. He
submitted that the constitutional obligation on the PSC to provide services and facilities is of equal standing to the
role of the SRC to set remuneration and benefits for State Officers. He relied on Re the Matter of Interim
Independent Electoral Commission (supra) and Communication Commission of Kenya & 5 Others v Royal
Media Services limited & 5 others (supra) which espoused the importance independence of constitutional

258
commissions.
137. Emphasis as put on the importance of constitutional commissions as held in Judicial Service Commission v
Salaries and Remuneration Commission & Another (supra) by Mr. Njoroge, who argued that the PSC’s
decision to provide services and facilities did not infringe on the constitutional mandate of the SRC.
138. Mr. Njoroge further submitted that MPs have two work stations: at the Member’s Constituency/County, and
in Parliament, Nairobi. This, he argued is in line with Article 1 which requires that elected representatives exercise
the sovereign power on behalf of the people, as well as the functions and responsibilities of MPs as set out at
Articles 94, 95 & 96. He maintained that the PSC is responsible for providing services and facilities to MPs at their
work station, in Nairobi, or such other place as Parliament or any of its Houses or committees may elect to sit in
accordance with Article 126. He echoed Prof. Ojienda’s submission that the housing allowance that falls within the
jurisdiction of the SRC is for a house at the constituency or county as MPs have two work stations.
139. According to Mr. Njoroge, the allegation by the SRC that the gross remuneration package for MPs includes
40% allowances contradicts the decision in the CoG v SRC case which held that failing to set a housing benefit for
some State Officers amounts to discrimination contrary to Article 27. He argued that the SRC has refused to set the
allowances despite numerous requests by the PSC and this is contrary to the constitutional principles of good
governance, integrity, transparency and accountability as set out at Article 10(c). He faulted the SRC for refusing to
work with the PSC in contravention of the principle of consultation and cooperation as set out at Article 6. He
argued that such cooperation would not take away SRC’s independence nor would be an unlawful direction.
140. Lastly, Mr. Njoroge argued that even if 40% of the total remuneration of the MPs pay was to be taken to be
house allowance, it can only be for a Member’s house at their constituency or county, and therefore Article 127 (6)
(a) & (e) requires the PSC to provide services and facilities that are necessary for Parliament to function. He also
argued that the Court in the CoG v SRC case held that the SRC must demonstrate the specific housing allowance
set, and therefore the claim that 40% is allowances is unconstitutional and arbitrary.
The Submissions in Opposition to Petition No. 339 of 2019
SRC’s Submissions
141. In its supplementary submissions dated 25th November, 2019, which were essentially in opposition to Petition
No. 339 of 2019, the SRC submitted that PSC’s mandate under Article 127(6) does not include setting and
reviewing MPs’ remuneration and benefits. It was stressed that section 2 of the Parliamentary Service Act[56]
specifically defines services and facilities which does not extend to setting remuneration and benefits for MPs.
142. On the difference between services, facilities, house allowance and housing benefit, it was submitted that the
PSC is mandated under Article 127(6) to provide services and facilities to ensure efficient and effective functioning
of Parliament. Mr. Wanyama however submitted that the function does not in any way guarantee PSC a right to
usurp SRC’s right to set and regularly review remuneration and benefits for MPs.
143. In counsel’s view, a house allowance is a cash benefit paid through the payroll and it is mostly available to
public officers whose pay is not consolidated while a housing benefit is the physical building/house provided for by
the Government using taxpayers’ funds to house a State Officer due to the unique nature of their work that require
hosting of State functions.
144. Mr. Wanyama submitted that the PSC is creating a new term known as accommodation facilitation which term
is neither provided under any law or the Interpretation and General Provisions Act.[57] To buttress his argument,
counsel referred to the refusal by the President to assent to the Parliamentary Service Commission Bill of

259
2018 which contained clauses that gave the PSC powers to review travel allowances for MPs and Parliamentary
staff and to determine MPs and Parliamentary staff salaries and allowances without seeking the SRC’s advisory.
145. Counsel therefore invited the Court to determine the meaning of services, facilities, house allowance and
house benefit within the intendment of Articles 127 and 230 so that there is clarity on how the two commissions
conduct their functions without unnecessary conflict. He further urged the court to be guided by the principles of
constitutional interpretation as enunciated in Apollo Mboya v Attorney General & 2 others,[58] namely, that the
Constitution is not to be interpreted as an ordinary statute and secondly, the language of the Constitution should be
scrutinized to ascertain the purpose of the provision in question.
146. As to why MPs are paid a consolidated salary, it was submitted that the SRC set a consolidated remuneration
structure for all State Officers as a best practice in the management of remuneration and benefits. In addition, it was
argued that for purposes of calculating gratuity/ pension, where applicable, 60% of the consolidated pay should be
used as basic salary. Counsel also submitted that MPs are not employees who are governed by the Employment
Act,[59] but State Officers who are, pursuant to Article 260 strictly regulated by the Constitution as held by the
Court of Appeal in County Government of Nyeri & Another v Cecilia Wangechi Ndungu.[60]
147. Nevertheless, counsel urged that should the court determine that MPs are employees and are subject to the
Employment Act,[61]section 31 does not allow an employee who earns a consolidated pay to get an additional
housing allowance. Counsel further submitted that MPs receive a consolidated pay as opposed to other public
officers who receive a segregated pay. He defined a consolidated salary as a type of gross salary structure where the
basic salary and all other monthly remunerative entitlements and allowances are for work done and combined
together without specifically stating any breakups. It was explained that the policy serves to curb abuse and
proliferation of allowances in an effort to manage public service wage bill. Further, that the implementation of the
consolidated pay structure has facilitated wage bill management.
148. On the issue whether the MPs’ right to equality and freedom from discrimination has been violated, counsel
made reference to Article 27 and submitted that it is not every distinction or differentiation in treatment that
amounts to discrimination, as was emphasized in Federation of Women Lawyers FIDA Kenya & 5 Others v
Attorney General & another,[62] and Mohammed Abdula Dida v The Debate Media Ltd and the Media
Council of Kenya.[63] Counsel in this respect submitted that no State Officer is paid house allowance in addition
to the consolidated pay and that it is the duty of the PSC to demonstrate that MPs have been unequally treated and
discriminated and that there is unreasonable differential treatment accorded to them.
149. On the comparison made between the MPs’ and Judges’ salaries, SRC submitted that the said argument is
misplaced because of differentials in the job descriptions and tenure of service between the two cadre of State
Officers. As such, the PSC cannot use it to back its claims of discrimination. Reliance was placed on Jacqueline
Okeyo Manani & 5 others v Attorney General & another[64] where it was held that discrimination arises where
equal classes of people are subjected to different treatment, without objective or reasonable justification or
proportionality between the aim sought and the means employed to achieve that aim.
150. The CoG v SRC case, relied on by PSC to argue that they were discriminated against, was distinguished on
the ground that the job description for Deputy Governors is totally different from that of MPs because of the state
functions they are expected to host and that it was a judgment in personam.
151. Counsel contended that the SRC recognized productivity and performance, as well as transparency and
accountability, in the methodology used to set allowances and remuneration of MPs. It was also submitted that the
job evaluation conducted by the SRC is highly technical and polycentric in nature, which requires consideration of
multiple factors including the educational qualifications which the PSC was disputing.

260
152. Mr Wanyama additionally submitted that the SRC in setting a housing allowance for the MPs did not in any
way interfere with the PSC’s mandate. Counsel contended that this was the holding in the PSC v SRC case which
cited Okiya Omtatah Okoiti & 3 Others v Attorney General & 5 Others.[65]
153. Counsel further submitted that SRC in Gazette Notice No. 2886 of 2013 determined that MPs earn a
consolidated pay and, in this package, the basic salary and house allowance is combined with other allowances. It
was further submitted that PSC ought to have consulted SRC in case of any clarification, as it is SRC’s duty to
continuously review compensation of public servants in a transparent, objective and consistent manner.
154. On the argument by the PSC that SRC had interfered with its independence and mandate by purporting to set
the number of meetings to 16, the counsel submitted that the Gazette Notice No. 2886 dated 1st March, 2013 had
not in any way limited the number of meetings MPs ought to have. Instead, that the SRC had only allocated each
member a maximum of Kshs. 80,000 per month and limited the amount per meeting to Kshs. 5,000, in keeping
with the principle of affordability and fiscal sustainability envisaged in Article 230 (5).
155. Lastly, on the issue whether Gazette Notice No. 2886 dated 1st March, 2013 should be quashed, it was
submitted that prior to the 11th Parliament, MPs were remunerated through sitting allowances and were not subject
to taxation, unlike the current situation where they are paid fixed allowances, and their remuneration and benefits
are taxable. Further, the issue of taxation of MPs salaries was conclusively dealt with in Timothy Njoya & 17
Others v Attorney General & 4 Others[66]where it was held that there should be no class of citizens who are
exempted from payment of taxes, which decision has not been appealed.
156. Counsel further submitted that in the year 2013, the SRC set a remuneration and benefit structure for MPs for
the period of 2013-2017 which was applied with no opposition and upon review of the set structure in 2017, the
PSC sought to quash the Gazette Notice 6517 of 7th July 2017 in the PSC v SRC case while relying on Gazette
Notice of 2013. According to counsel, it is ironical that the PSC wants to quash the 2013 Gazette Notice which they
previously relied on and strongly supported.
157. Moreover, counsel argued that the quashing of the 2013 Gazette Notice was an issue already determined by
the court in Okiya Omtatah Okoiti & 3 Others v Attorney General & 5 Others[67]where the court held that the
National Assembly exceeded its mandate by purporting to annul the Gazette Notices issued by the SRC on 1st
March, 2013.
158. On the reliance by the PSC on Gazette Notice 6517 of 7th July 2017, counsel submitted that the doctrine of res
judicata precludes reliance on the said Gazette Notice which was quashed in the CoG v SRC case which decision
is the subject of a pending appeal. It was thus submitted that the 2017 Gazette Notice having been quashed, SRC
reverted to Gazette Notice No. 2886 of 2013.
The Determination
159. Upon considering the facts and the legal arguments presented by the parties, we find that the following issues
fall for determination: -
a. Whether the decision by the PSC to make a payment to MPs for their accommodation is ultra vires and
unconstitutional. There are five sub-issues which need to be determined under this issue.
i. What was the nature of the payment made by the PSC"

261
ii. Who as between the PSC and the SRC has the legal mandate to make the payment"
iii. Whether the SRC interfered with the constitutional mandate and independence of the PSC and Parliament.
iv. What legal instruments regulate the remuneration and benefits payable to MPs.
v. Whether the payments made by the PSC to the MPs ought to be recovered.
b. Whether the SRC has failed to set a house allowance for MPs and if so, whether it amounts to discrimination
against MPs.
c. Whether the SRC acted ultra vires its constitutional and statutory mandate in capping the number of
remunerable meetings the MPs and PSC could hold in one month.
d. Whether the suit against the 3rd to 12th Respondents & the 2nd Interested Party is incompetent.
e. Whether the reliefs sought in the consolidated Petitions are merited.
f. Who should bear the costs of the consolidated Petitions"
Guiding Principles
160. Before determining the above issues, it is useful to restate the guiding principles of constitutional and statutory
interpretation. A convenient starting point is Article 259 which obligates courts in interpreting the Constitution to
promote its purposes, values and principles, advance the rule of law, human rights and fundamental freedoms in the
Bill of Rights, permits the development of the law and contribute to good governance.
161. This approach has been described as 'a mandatory constitutional canon of statutory [69]and Constitutional
interpretation.' [68]As was held in Anthony Ritho Mwangi and another v The Attorney General, “our Constitution
is the citadel where good governance under the rule of law by all three organs of the state machinery is secured...”
162. In Institute of Social Accountability & Another v National Assembly & 4 Others High Court,[70] the
principles in Article 259 were summed as follows: -
[57] “[T]his Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that
promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in
the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged
under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution.
In determining whether a statute is constitutional, the court must determine the object and purpose of the impugned
statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and
Another v Minister of State for Provincial Administration and Internal Security and Others Nairobi Petition No. 3
of 2011 [2011]eKLR, Samuel G. Momanyi v Attorney General and Another (supra)). Further, in examining
whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but
also its effect…
[59] Fourth, the Constitution should be given a purposive, liberal interpretation...Lastly and fundamentally, it is
the principle that the provisions of the Constitution must be read as an integrated whole, without any one
particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of
Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3)). We are duly guided by the principles we have
outlined and we accept that while interpreting the impugned legislation alongside the Constitution, we must bear in

262
mind our peculiar circumstances. Ours must be a liberal approach that promotes the rule of law and has
jurisprudential value that must take into account the spirit of the Constitution.”
163. Constitutional provisions should therefore be construed purposively and in a contextual manner. Courts are
simultaneously constrained by the language used. Courts may not impose [71]
a meaning that the text is not reasonably
capable of bearing. The interpretation should not be “unduly strained” but should avoid “excessive peering at the
language to be interpreted without sufficient attention to the historical contextual scene,”
[72]
which includes the
political and constitutional history leading up to the enactment of a particular provision.
164. It is the duty of the court to promote the spirit, purport and objects of the Constitution, and to adopt a generous
construction instead of a merely textual or legalistic one in order to give effect to the intended constitutional
principles. It may also be necessary for the court to identify the mischief sought to be remedied by the specific
constitutional provisions, and to contextualize the provisions within the Constitutional architecture as a whole,
including its underlying values in Article 10. We are also required by the provisions of Article 159 (2) (e) to
promote and protect the purposes and principles of the Constitution.
165. Additionally, it is an elementary rule of constitutional construction that no one provision of the Constitution is
to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular[73]
subject are to be brought into view and be interpreted so as to effectuate the greater purpose of the instrument.
166. When interpreting the Constitution in a holistic manner, the court should also consider the historical
perspective and intent of the provisions in question. This principle was highlighted by the Supreme Court in Re the
Matter of Kenya National Commission on Human Rights[74] as follows: -
“[26] But what is meant by a ‘holistic interpretation of the Constitution’" It must mean interpreting the
Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against
other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of
its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not
mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired
result.”
(Also see Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5
Others[75], and The Speaker of The Senate & Another vs. Honourable Attorney General & Others.[76] )
167. Lastly, it is trite that public bodies, no matter how well intentioned, may, only do what the Constitution and
the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional
dispensation, which is enshrined in our Constitution.[77] Legality therefore exists to ensure that the repository of
public power stays within the vital limits of the power conferred and being exercised. We are also guided by the
holding in the South Africa case of AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and
another where it was held that: -
“…the doctrine of legality which requires that power should have a source in law, is applicable whenever [78]
public
power is exercised . . . Public power . . . can be validly exercised only if it is clearly sourced in law"
168. Similarly, the principle of the rule of law, which is a foundational principle of the Constitution, requires the
exercise of public power to conform to the Constitution and the enabling statutes. The rule of law requires
[79]
that a
decision, viewed objectively, must be rationally related to the purpose for which the power was given. The rule of
law, is one of the constitutional controls through which the exercise of public power is regulated by the
Constitution.

263
169. The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content
and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be
the Constitution or statute. The courts when exercising this power of construction are enforcing the rule of law, by
requiring public bodies to act within the four corners of their powers or duties. They are also acting as guardians of
sovereignty of the people by ensuring that the exercise of power is in accordance with the scope and purpose of the
instruments conferring the power.
170. As Currie points out “the Constitution, premised as it is on the doctrine of constitutional supremacy, attempts
to reconcile two conflicting goals: to establish a state system with[80]
enough power to govern, and to find ways of
constraining
[81]
and regulating that
[82]
power so that it is not abused.” The rule of law, and the related principles of
legality and accountability are the central constitutional doctrines governing the exercise of public power.
171. We now commence with a sequential analysis of the identified issues.
(a) Whether the decision by the PSC to make a payment to MPs for their accommodation is ultra vires and
unconstitutional.
172. At the centre of this issue are multifaceted arguments touching on the constitutional validity of the PSC’s
decision to set and pay MPs a monthly housing allowance of Kshs. 250,000/=. The crux of the Petitioners’ attack
on the impugned decision is premised on the doctrine of ultra vires. The Petitioners’ argument is that the function
of setting remuneration and benefits for all State Officers falls within SRC’s constitutional and statutory mandate.
On the other hand, the PSC maintains that it acted within its powers. It argues that provision of a housing allowance
or a housing benefit to MPs falls under the ambit of “services and facilities” a function it claims is allocated to it
under Article 127 (6) (a). According to the PSC the cited provision mandates it to provide services and facilities,
including a housing benefit, to ensure the efficient and effective functioning of Parliament.
173. In presenting their respective arguments, the parties raised various auxiliary justifications which informed the
basis of the following sub-issues.
i. What was the nature of the payment made by the PSC"
174. The PSC’s argument is that the words “services and facilities” in Article 127 (6) (a) should be construed to
mean that it is mandated to provide MPs with a housing benefit so as to facilitate them to effectively perform their
constitutional mandate.
175. On the other hand, the Petitioners’ argument is essentially founded on Article 230(4) (a) which provides that
the powers and functions of the SRC shall be to- (a) set and regularly review remuneration and benefits for all State
Officers; and, (b) advise the national and county government on the remuneration and benefits of all public
officers. This position is replicated in section 11 of the SRC Act which provides that in addition to the powers and
functions of the Commission under Article 230 (4), the Commission shall—
a. inquire into and advise on the salaries and remuneration to be paid out of public funds;
b. keep under review all matters relating to the salaries and remuneration of public officers;
c. advise the national and county governments on the harmonization, equity and fairness of remuneration for the
attraction and retention of requisite skills in the public sector;
d. conduct comparative surveys on the labour markets and trends in remuneration to determine the monetary
worth of the jobs of public offices;

264
e. determine the cycle of salaries and remuneration review upon which Parliament may allocate adequate funds
for implementation;
f. make recommendations on matters relating to the salary and remuneration of a particular State or public
officer;
g. make recommendations on the review of pensions payable to holders of public offices; and
h. perform such other functions as may be provided for by the Constitution or any other written law.
176. SRC’s position is that a house allowance is a cash benefit paid through the payroll while a housing benefit is
the physical building/house provided for by the Government using taxpayers’ funds to house a State Officer. The
SRC argued that the PSC is creating a new term known as accommodation facilitation which term is not provided
under any law and the act by the PSC of formulating and setting the said allowance is in blatant breach of Article
230 (4).
177. Determining the instant sub-issue requires this court to interpret the words and phrases relied upon by the
parties in advancing their positions. The SRC Act defines “salary and remuneration” to include the ordinary, basic
or minimum wage or pay and any additional emoluments and benefits whatsoever payable, directly or indirectly,
whether in cash or in kind, by an employer to an employee and arising out of the employment of that employee.
The Act does not define the word benefit.
178. The Parliamentary Service Act[83]on the other hand defines “services and facilities” to include all means by
which members of the National Assembly are officially assisted in performing their parliamentary duties. The SRC
Act does not have any definition for the phrase “services and facilities.” Similarly, the Parliamentary Service
Act[84] does not define the words “remuneration and benefits.”
179. The PSC argued that payment of housing allowance or benefit falls within its mandate. Advancing this
position, Prof. Ojienda SC urged the court to construe the words “services and facilities” in Article 127 (6) (a) to
mean that the PSC is mandated to provide MPs with housing so as to facilitate them to effectively perform their
constitutional mandate. Prof. Ojienda SC described the amount paid to MP’s as a “facilitative” allowance to enable
them to effectively and effectually perform their constitutional duty.
180. Although PSC’s argument is appealing, it collapses not on one but on several fronts. First, a reading of the
letter dated 22nd February 2019 signed by Mr. Nyegenye annexed to the affidavit in support of Petition 208 of 2019
and indeed all the correspondence on the subject between the PSC and the SRC, including the Memorandum of the
PSC to the SRC on the Remuneration Structure of State Officers serving in Parliament dated 31st January 2019,
show that the PSC only referred to a house allowance. There was no mention of a “facilitative allowance.” In fact,
the phrases “service and facilities” and “facilitative allowance” were only introduced in Petition No. 339 of 2019
after the impugned payment was challenged in the other two Petitions.
181. The excerpts from the letter herein below from the PSC secretary to the SRC’s secretary dated 22nd February
2019 is instructive in this regard.
“22nd February 2019
Mrs. Anne R. Gitau
Commission Secretary,

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Salaries and Remuneration Commission,
George Williamson House,
P.O. Box 43126-00100
NAIROBI
Dear Madam,
RE: ADDENDUM ON OUTSTANDING MATTERS CONCERNING THE REMUNERATION FOR STATE

OFFICERS IN PARLIAMENT- HOUSE ALLOWANCE FOR MEMBERS OF PARLIAMENT
Please refer to the consultative meeting held between our respective commissions on 31st January 2019 at the
Safari Park Hotel during which the Parliamentary Service Commission presented to your Commission its
memorandum on outstanding matters concerning the remuneration of State Officers serving in Parliament dated
25th January 2019.
You will recall that one of the issues addressed in the memorandum was the proposed payment of a house
allowance to Members of Parliament. This is a matter that is causing Members of Parliament particular hardship
and the Parliamentary Service Commission requests for your Commission’s urgent resolution. In this regard, it
has become necessary to forward this Addendum to you on the subject of members’ residential accommodation.
It is noteworthy that Members of Parliament are in a unique situation among officers serving in government in that
they have two work stations. The first work station is the constituency or county that the Members of Parliament
represent. It is recognized that the home of the Member of Parliament is at their constituency or county. The
second work station is at the Parliament in Nairobi. A Member of Parliament is obliged by the Constitution to
attend to sittings of their respective House of Parliament and its committees. This therefore necessitates travel to
Nairobi for purposes of attending Parliament. Members of Parliament also travel to Nairobi for purposes of
meeting national government officials in furtherance of constituency/county.
It is therefore not right that Members of Parliament are expected to pay their own accommodation while attending
to official business while in Nairobi. No other category of either State or Public Officers is expected to pay for their
own accommodation while away from home on official business…
The Parliamentary Service Commission therefore proposes that the Salaries and Remuneration Commission
considers the following three options:
1. House Allowance
As stated in our memorandum dated 25th January 2019, the Parliamentary Service Commission has in its budget
for the year 2018/19 an allocation for payment of house allowance to Members of Parliament at the rate of Kshs
250,000/= per month. This is a sum sufficient to enable them rent a house in a location befitting a Member of
Parliament. Members of Parliament may therefore be paid a house allowance of Kshs. 250,000/= with effect from
1st July 2018.
2. Payment of domestic (Nairobi) Per diem

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The second option would be for the Parliamentary Service Commission to Pay Members of Parliament a daily per
diem at the rates applicable for accommodation in Nairobi (or other place of sitting of Parliament) for each night
that they spend in Nairobi while on official duty.
3. provision of actual housing
The last option is for the Parliamentary Service Commission to provide actual accommodation of Members of
Parliament for the nights that they spend in Nairobi (or other place of sitting of Parliament) while in official duty.
Given the great hardship being endured by Members of Parliament while on official state duties in Nairobi, the
Parliamentary Service Commission would appreciate your urgent response on the matter of the facilitation of the
accommodation of members of Parliament when they attend to parliamentary and other legislative business.”
182. Regarding the request to the National Treasury to approve the impugned payments to MPs, the following
response dated 18th April 2019 is also indicative as to the nature of the intended payment.
“Mr. Jeremiah M. Nyegenye, CBS
Clerk to the Senate
Parliament Building
NAIROBI.
Dear Mr. Nyegenye,
RE: EXCHEQUER REQUEST TO FACILITATE PAYMENT OF
ARREARS OF HOUSE ALLOWANCE TO SENATORS
Reference is made to your letter Ref. No. COS/CORR/2019/51 dated 16th April, 2019.
We take note of the contents of the letter, particularly the resolution of the Parliamentary Service Commission of
22nd March 2019.
It is noted that the decision of the High Court issued on 5th October, 2018 in Petition No.328 of 2016 involved the
Council of Governors vs Salaries and Remuneration Commission. Accordingly, you are advised to seek advisory
opinion from the Attorney General on interpretation of the same, and whether this applies in the case of house
allowance of the Senators.
As indicated in our earlier letter AG3/037/VOL.V/17 dated 10th April, 2019, it is your responsibility as the
Accounting Officer to ensure that the proposed payment of arrears of house allowance to Senators is in accordance
with the law, including approval by relevant authorities.
Yours sincerely,
Signed
DR. KAMAU THUGGE, CBS

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PRINCIPAL SECRETARY/NATIONAL TREASURY.”
183. A similar response was sent to the clerk of the National Assembly.
184. Second, the operative words in Articles 127 (6) (a) and 230 (4) (a) are “services and facilities” and
“remuneration and benefits” respectively. In searching for the meaning of the said words, it is inevitable that we
will consult dictionaries, judicial pronouncements and consider their statutory context.
185. The practice of appealing to dictionaries simply as memory aids was deemed a function of judicial notice.[85]
Words should be given their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does
in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but
only as aids to the memory and understanding of the court.[86]
186. Dictionaries may also serve an instantiating function, that is, they may be used by the court to confirm that a
contested meaning has been employed in either speech or literature, and has thus been recognized as a valid
meaning by lexicographers. Of this instantiating function, Professors Hart and Sacks said, “Unabridged dictionaries
are historical records (as reliable as the judgment and industry of the editors) of the meanings with which words
have in fact been used by writers of good repute. They are often useful in answering hard questions of whether, in
an appropriate context, a particular meaning is linguistically permissible.”[87]In using a dictionary to instantiate a
contested meaning, a judge searches the dictionary to determine what meanings have attained currency in the
language at large and are thus linguistically permissible in a given context.[88]
187. The Oxford Advanced Learner’s Dictionary[89] defines remuneration as “an amount of money that is paid
for work done.” The same dictionary defines benefits as “advantages that you get from a company in addition to
the money that you earn.” The Biswas Encyclopaedic Law Dictionary (Legal & Commercial)[90] defines
remuneration to mean the basic wage or salary and any additional emoluments whatsoever payable either in cash or
in kind to a person employed in respect of employment if the terms of employment are fulfilled.
188. The Black’s Law Dictionary[91]defines remuneration to mean payment, compensation, the act of paying or
compensating. It defines a benefit as an advantage or privilege. It also defines fringe benefit to mean a benefit
(other than direct salary or compensation) received by an employee from an employer, such as insurance, a
company car, or a tuition allowance. Remuneration is the pay or other financial compensation provided in exchange
for an employee's services performed.[92]
189. Employee benefits include various types of non-wage compensation provided to employees in addition to their
normal wages or salaries.[93] Examples of these benefits include housing (employer-provided or employer-paid),
furnished or not, with or without free utilities; group insurance, disability income protection; retirement benefit;
day-care; tuition reimbursement; sick leave; vacation; social security; employer student loan contributions; and
other specialized benefits.[94]
190. Regarding the phrase “services and facilities,” the Black’s Law Dictionary[95] defines “service” as “to
provide service for.” The Merriam Webstar Dictionary defines “service” as the occupation or function of
serving, contribution to the welfare of others, active service.[96] The Collins Dictionary defines service as:-
“Something that the public needs, such as transport, communication facilities, hospitals, or energy supplies, which
is provided in a planned and organized way by the government or an official body.”[97]
191. According to the Black Law’s Dictionary[98] “allowance” is defined as “a deduction, an average payment, a
portion assigned or allowed: the act of allowing.” The Oxford Dictionary defines “allowance” as the amount of
something that is permitted, especially within a set of regulations or for a specified purpose; an amount of money
that is given to somebody regularly or for a particular purpose; an amount of money that can be earned or received

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free of tax; a sum of money paid [99]regularly to a person to meet needs or expenses; and, tolerance. The Oxford
Advanced Learner’s Dictionary defines allowance as an amount of money that is given regularly or for a
particular purpose; the amount that is allowed in a particular situation, an amount of money that can be earned or
received before you stary to pay taxes. The Merriam Webstar Dictionary online dictionary provides the legal
definition of an allowance as a sum granted as a reimbursement or payment for expenses.
192. The word “facilitate” is defined by the Black’s Law Dictionary,[100] as to “make easy or easier.” It defines
“facility” as “a building service or piece of equipment provided for a particular purpose; an additional feature of a
service or machine; natural aptitude; absence of difficulty or effort.” The Oxford Dictionary defines “facility” as
a place, amenity, or piece of equipment provided for a particular purpose; a special feature of a service or machine,
which offers the opportunity to do or benefit from something; a natural ability to do or learn something well and
easily; absence of difficulty or effort. Lastly, the same dictionary defines the word “facilitate” to mean to make an
action or a process possible or easier. The Oxford Advanced Learner’s Dictionary[101] defines “facilitate” to
mean to make an action or a process possible or easier.
193. Turning to judicial definitions, the terms “salary” and “remuneration” were also defined in Jimnah Muchiri v
Agricultural Society of Kenya[102] which held: -
“...14. It is also submitted that the Claimant was receiving a wage from the Respondent and rely on the definition of
salary contained in Mitra's Legal & Commercial Dictionary, 4th Edition, by A.N. Saha, at page 691, “salary"
means “ a recompense or consideration made to a person for his pains, industry or work for another person,
wages, allowances or other remuneration for work or service”; and at page 672, therein, “remuneration"
ordinarily means “reward, recompense, pay, wages or salary for service rendered". The learned Judges took the
view that “salary" or “wages" is the remuneration for a contract of service, and the definition of “salary" or
“wages" includes allowances payable to an employee for services rendered because these allowances are part of
the remuneration to which an employee is entitled under his contract of employment. “Salary" or “wages” or
“pay” means remuneration for service paid or payable in cash or capable of being expressed in terms of money,
including allowances. The word “remuneration" means “a reward or pay for service rendered";
15. That the word “remuneration " is a word of wide import and it includes allowances to which an employee is
entitled under his contract of employment; and those allowances are a part of the contract of employment to which
an employee is entitled as a reward for his services.”
194. In the CoG v SRC case, the court defined the words remuneration and benefits as follows: -
“… Remunerate” is defined to means “pay for services rendered or work done” and “benefit” means “a payment
made by the state to someone entitled to receive it.”
26. Taken in that context, therefore, remuneration means payment for services rendered or work done (salary)
while benefit means the allowance paid by the state to state officers and public officers...”
195. From the above definitions, it is clear that an allowance is a payment of money to an employee or officer to
meet work related expenses. A house allowance is a specific allowance payable as part of an employee’s
remuneration to cater for the housing costs. Therefore, whether it is named as accommodation allowance, a house
allowance or a facilitative allowance, the cross-cutting and relevant feature for our purposes is that the payment
made in the instant case was meant to cater the MPs accommodation during the performance of their official duties.
196. On the other hand, the words services and facilities refer to the amenities, offices and equipment which are
necessary for the MPs to perform their duties. This construction finds support in the statutory provisions which
implement Article 127 of the Constitution. Section 18 of the Parliamentary Service Act,[103] details the manner of

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provision of services and facilities to Parliament by PSC as follows: -
18. (1) The Commission shall, to the extent of its constitutional mandate, be responsible for fulfilment of the
provisions under Article 127(6)(a) and (d) of the Constitution and in particular shall formulate policies,
regulations, strategies and put in place mechanisms for the provision of such services and facilities as necessary
for the effective functioning of Parliament and the well-being of Members and the staff of the Commission.
(2) The Commission shall adopt comprehensive strategic plans that ensure the realization of Article 127(6)(b) and
(d) of the Constitution.
197. The distinction between allowances on one hand and services and facilities on the other, is made even clearer
by the provisions of sections 19 and 20 of the Act which demonstrates the services and facilities envisaged under
Article 127(6) (a) to assist the MPs in the performance of their duties are physical and logistical in nature, and not
in the nature of payment of funds. Sections 19 and 20 of the Act provides as follows: -
19. (1) The Commission shall ensure availability, accessibility, adaptability and acceptability of services and
facilities for use by Members and Staff of Parliament.
(2) The Commission shall put in place adequate infrastructure that would be necessary for provision of service for
the well-being of Members and staff of Parliament.
(3) The Commission may provide or designate exclusive use of certain facilities for Members.
(4) The Commission may outsource certain services and facilities for the welfare of Members.
(5) Despite subsection (1), the Commission may take measures to facilitate the use of facilities not available within
the precincts of Parliament by Members and Staff of Parliament.
20. The Commission shall take measures to facilitate Members to discharge their mandate as provided for in
Articles 94,95 and 96 of the Constitution including —
(a) equipping and allocating offices to Members;
(b) facilitating Members to conduct public participation in the performance of the duties;
(c) take any other measure as may be necessary.
198. Therefore, a “facilitative allowance” cannot be a service and facility as suggested by the PSC. The meaning
the PSC is trying to ascribe to Article 127 (6) (a) cannot be sustained by a faithful reading of the said provision nor
can it be supported by natural and literal interpretation of the said Article. By trying to construe the words “services
and facilities” in Article 127 (6) (a) to mean payment of a “facilitative house allowance,” the PSC is trying to
impose a meaning which the said provision cannot bear.
199. Third, if the PSC’s argument that “services and facilities” should be construed to mean “facilitative house
allowance” is accepted, it would amount to suggesting the existence of a contradiction between Articles 127(6) (a)
and 230 (4) (a). Where there are provisions in the Constitution that appear to be in conflict[104]
with each other, the
proper approach is to examine them to ascertain whether they can reasonably be reconciled. And they must be
construed in a manner that gives full effect to each. Provisions in the Constitution
[105]
should not be construed in a
manner that results in them being in conflict with each other. In S v Rens, the Constitutional Court of South
Africa held that “it was not to be assumed that provisions in the same constitution are contradictory” and that “the

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[106]
two provisions ought, if possible, to be construed in such a way as to harmonise with one another.” We have in
our interpretation herein above, succeeded in harmonizing the different functions of the SRC and PSC in
facilitation of MPs by clarifying that allowances are part of remuneration and benefits.
200. Fourth, where there are two provisions in the Constitution dealing with the same subject, with one provision
being general and the other being specific, the general provision must ordinarily yield to the specific provision. In
this regard, it is useful to recall that the heading to Part 6 of Chapter 8 of the Constitution where Article 127 falls is
“Miscellaneous” and is therefore a general and cross-cutting provision. The title to Chapter 12 is “Public Finance.”
The heading of Part 1 of this Chapter is “Principles and Framework of Public Finance” while Part 6 has two
sections, namely; “Control of Public Money” and “Financial Officers and Institutions.” The SRC is one of the
institutions established in this Part to enforce the financial control. Article 230 (4) lists its functions. A reading of
the said provisions shows that SRC's functions are specific and relate to among others, financial control of public
funds by setting and regulating remuneration and benefits of State Officers.
201. In Ex parte Speaker of the KwaZulu-Natal Provincial [107]

Legislature: In re Certification of the
Constitution of the Province of KwaZulu-Natal, 1996 the Constitutional Court of South Africa discussing
tensions in constitutional provision
[108]
held that a “general provision . . . would not normally prevail over the specific
and unambiguous provisions.” The specific provision must be construed as limiting the scope of the application
of the more general provision. Therefore, if a general provision is capable of more than one interpretation and one
of the interpretations results in that provision applying to a special field which is dealt with by a specific provision,
in the absence of clear language to the contrary, the specific provision must prevail should there be a conflict.
202. From the above analysis, it is our conclusion that the payment made to MPs was a remunerative allowance and
not a provision of a service and facility within the meaning of Article 127 (6) (a).
ii. Who, as between the PSC and the SRC has the legal mandate to make the payment"
203. Article 230 and section 11 of the SRC Act on the mandate of the SRC have been the subject of judicial
construction in numerous court decisions. In Judicial Service Commission v Salaries and Remuneration
Commission & another[109] the High Court held that under Article 230(4) (a) of the Constitution, the SRC’s
mandate is to set and regularly review the remuneration and benefits of all State officers and to advise the National
and County Governments on the remuneration and benefits of all other public officers.
204. In Kenya Union of Domestic, Hotels, Education and Allied Workers (KUDHEHIA Workers) v Salaries
and Remuneration Commission & Attorney General[110] the High Court held that: -
“Looking at the provisions of Article 230 of the Constitution as well as the provisions of Section 11 of the SRC Act,
it is clear that SRC has the mandate of setting and regularly review the remuneration and benefits of state officers
and advising the national and county on the remuneration of other public officers.”
205. In addition, in the CoG v SRC case the High Court held that the mandate of the SRC under Article 230(4) of
the Constitution is to set and regularly review remuneration and benefits of all State Officers and to advise the
national and county governments on the remuneration and benefits of all public officers. The Court further
observed that the mandate of the SRC is reinforced by sections 11 and 12 of the SRC Act which emphasizes SRC’s
constitutional mandate.
206. Additionally, addressing the same issue, the High Court in PSC v SRC held:
“122. In my view Article 230(4) of the Constitution is clear that it is the Respondent’s mandate to set and regularly
review the remuneration and benefits of all State officers and to advise the national and county governments on the

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remuneration and benefits of all other public officers. State Officer, it is therefore clear encompasses the Members
of Parliament on whose behalf this petition is filed by the Applicant herein. Unless that provision is amended, the
applicants must abide by the Respondent’s decision as long as the same is made in accordance with the
Constitution and the relevant statutory provisions. It does not matter whether such a decision is unpalatable to
those whose remunerations and benefits are subject to the mandate of the Respondent. Whereas the applicants and
the State Officers whose remuneration are subject to the mandate of the SRC are, in the exercise of their freedom of
expression, entitled to grit their teeth, express their sentiments atop the hills and down the valleys, at the end of the
day they have only one option: to lick their wounds and adhere to the said decision. As long as the law stays as it is
now any attempt to strip the Respondent of its Constitutional mandate is bound to suffer the same fate as was in
Petition No. 227 of 2013 as consolidated with Petition No. 281 of 2013 and 282 of 2013 - Okiya Omtatah Okoiti
& 3 Others vs. Attorney General & 5 Others [2014] eKLR.”
207. The Court of Appeal in Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3
others[111] reiterated the constitutional mandate of the SRC and went further to hold that advice by SRC under
Article 230(4) (b) of the Constitution is binding.
208. The mandate of the PSC is set out in Article 127 (6) as follows: -
(6) The Commission is responsible for—
(a) providing services and facilities to ensure the efficient and effective functioning of Parliament;
(b) constituting offices in the parliamentary service, and appointing and supervising office holders;
(c) preparing annual estimates of expenditure of the parliamentary service and submitting them to the National
Assembly for approval, and exercising budgetary control over the service;
(d) undertaking, singly or jointly with other relevant organisations, programmes to promote the ideals of
parliamentary democracy; and
(e) performing other functions—
(i) necessary for the well-being of the members and staff of Parliament; or
(ii) prescribed by national legislation.
209. Section 11 of the Parliamentary Service Commission Act[112] elaborates the PSC’s mandate as follows: -
11. (1) In addition to the functions set out in Article Functions of the 127(6) of the Constitution, the Commission
shall —
(a) direct and supervise the administration of the services and facilities provided by, and exercise budgetary
control over, the Service;
(b) determine and review the terms and conditions of service of persons holding or acting in the offices of the
Service;
(c) initiate, co-ordinate and harmonize policies and strategies relating to the development of the Service;
(d) initiate programmes —

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(i) for training and capacity building of members and staff of Parliament and other persons;
(ii) that promote ideals of parliamentary democracy as set out in Article 127(6)(d) of the Constitution; and
(iii) that promote public awareness and participation in the activities of Parliament; and
(e) do such other things as may be necessary for the well-being of the members and staff of Parliament.
(2) In the performance of its functions under the Constitution and this Act, the Commission shall apply —
(a) the national values and principles of governance set out in Article 10 of the Constitution; and
(b) the values and principles of public service set out in Article 232(1) of the Constitution.
210. In our constitutional architecture, the PSC is established as an independent commission so as to secure the
independence of Parliament as an organ of government within the framework of separation of powers. The more
practical role of the PSC however is to ensure that Parliament as an institution is well resourced and able to
function effectively, so as to achieve the needed parliamentary autonomy. The PSC therefore is the main vehicle
through which Parliament achieves its independency and autonomy.
211. The Constitution and the law give the PSC the means to achieve its mandate by giving it functions in three key
areas, namely; (a) parliamentary staffing and facilities; (b) budgetary control; and (c) organizational independence.
We must at this stage point out that neither does the Constitution nor the statues give the PSC any specific function
to set the salaries and allowances of MPs and parliamentary staff. On the contrary, Article 230 (4) specifically vests
this function on the SRC. The only financial functions allocated to the PSC by the Constitution are budgetary.
212. Any other function undertaken by the PSC for the well-being of MPs and parliamentary staff must be read in
light of its purpose as explained herein above, and holistically taking into account the constitutional mandate of
other bodies established under the Constitution. The PSC in this regard justified the payment of the accommodation
allowance to MPs on the ground that MPs have two work stations. While this may be a valid concern, the proper
constitutional channel which ought to have been followed was to present it to the SRC for consideration and advise.
213. It is not disputed that the PSC set a monthly housing benefit/allowance for MPs of Kshs. 250,000/=, and
backdated the payment without the approval of the SRC. It is also not disputed that the MPs were paid the
backdated house allowance. In addition, the evidence before us shows that the PSC was advised by the National
Treasury to obtain the approval of the relevant authorities before making any payments. Under the Constitution, the
relevant authority is the SRC. The PSC therefore acted contrary to the specific provisions of Article 230 (4).
214. In addition, Article 206 (2) provides that money may be withdrawn from the Consolidated Fund in accordance
with an appropriation by an Act of Parliament; in accordance with Article 222 or 223 of the Constitution; or as a
charge against the Fund as authorized by the Constitution or an Act of Parliament. “Appropriation” here means the
authority granted by Parliament to pay money out of the Consolidated Fund or out of any other public fund.
Article 222 contains provisions on expenditure before the annual budget is passed while Article 223 deals with
supplementary budgets. Article 206 (4) provides that money shall not be withdrawn from the Consolidated Fund
unless the Controller of Budget has approved the withdrawal. From the material presented before us, it is evident
that the PSC set and facilitated the said payment without the approval of the Controller of Budget in violation of
Article 206 (4).
215. Additionally, the PSC violated Article 259 (11) which provides that “if a function or power conferred on a
person under the Constitution is exercisable by the person only on the advice or recommendation, with the approval

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or consent of, or on consultation with, another person, the function may be performed or the power exercised only
on that advice, recommendation, with that approval or consent, or after that consultation, except to the extent that
this Constitution provides otherwise.” We have already found in this respect that PSC did not consult the SRC in
setting the impugned allowance and making the payment.
216. In addition, Article 116 (3) provides that “an Act of Parliament that confers a direct pecuniary interest on
members of Parliament shall not come into force until after the next general election of members of Parliament.”
Therefore, even if the PSC had the authority to set a housing benefit for the MPs, that decision could not legally
benefit the current Parliament. The membership of the PSC comprises of sitting MPs. The effect of the decision is
to award benefits to themselves during their term thereby evading the effect, spirit and purpose of the Article 116
(3).
217. A number of other Articles that are relevant in the exercise of PSC’s mandate were also alleged to have been
contravened. Article 94 (4) obligates Parliament to protect the Constitution while Article 73 (1) (a) (i) provides that
authority assigned to a State Officer is public trust to be exercised in a manner that is consistent with the purposes
and objects of the Constitution. Article 2 (1) provides for the supremacy of the Constitution which binds all persons
and all State organs at both levels of Government. Article 2(2) provides that no person may claim or exercise State
authority except as authorized under the Constitution, while Article 2(4) provides that any act or omission in
contravention of the Constitution is invalid. Article 3 places an obligation on every person to respect, uphold and
defend the Constitution. Lastly, Article 10 stipulates national values and principles of governance which bind all
State officers, State Organs and Public Officers.
218. It is our finding that by exercising a function not vested upon them by the Constitution, the PSC consequently
violated the various constitutional provisions identified above. As long as the impugned decision, viewed
objectively, is not founded on the law and not rationally related to the legitimate purpose of PSC’s constitutional
power, this court is justified to interfere.
219. It is further our finding that PSC’s argument that Article 127 (6) (a) vests them with the mandate to set and
provide a housing benefit to MPs is erroneous. The mandate to determine and set a housing or accommodation
allowance, is a function constitutionally vested in the SRC by Article 230 (4) (a) and the SRC Act. Hence, PSC’s
decision is found to be ultra vires its constitutional mandate and to offend the principle of legality which requires
that decisions by public bodies must have their source at the law.
iii. Whether the SRC interfered with the constitutional mandate and independence of the PSC and Parliament.
220. Prof. Ojienda SC submitted that by directing the Clerks of the Senate and the National Assembly not to pay
the house allowance, the SRC interfered with the constitutional mandate and independence of the PSC and
Parliament. On the other hand, SRC’s position is that its action accords with its constitutional mandate.
221. In the constitutional scheme of things, the court remains the ultimate guardian of the Constitution and has the
obligation to ensure through the principle of legality that the exercise of power by all branches of government
occurred within the bounds of their constitutional authorities.
222. We have already held that the PSC’s decision to set and facilitate the payment to the MPs is ultra vires its
constitutional and statutory mandate. We only need to add that the SRC is an independent constitutional
commission established under Article 230(1) and its mandate as provided for in Article 230(4) is to set and
regularly review remuneration and benefits of all State Officers and to advise the national and county governments
on the remuneration and benefits of all other public officers. This mandate is emphasized by sections 11 and 12 of
the SRC Act. Therefore, the SRC acted within its mandate by directing the Clerks of Parliament not to pay the
impugned allowance. We consequently find and hold that the SRC did not in any manner interfere with the

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constitutional independence and functions of Parliament and the PSC.
iv. What legal instruments regulate the remuneration and benefits payable to MPs.
223. The PSC in its Petition argued and sought a declaration that pending a new job evaluation that takes into
account the provisions of Chapters 7 and 8 of the Constitution, the MPs are entitled to receive the remuneration and
benefits that they were receiving prior to publication of Gazette Notice No. 2886 of 1st March 2013.
224. This question was determined in the PSC v SRC case where it was held that: -
“139. It is now contended by the Respondent that the Salaries and Remuneration Commission (Remuneration
and Benefits of State and Public Officers) Regulations, 2013 are void by virtue of Statutory Instruments
Act. With due respect that argument rings hollow. If the Respondent’s position is that the said Regulations were
void, then that argument begs the question on what basis were the Members of Parliament being remunerated at
that time" It is noteworthy that an attempt to render the said Regulations inoperative was declared by this Court to
have been unconstitutional. It is therefore my view that this Court cannot, without a proper suit being brought
before it for the said purposes make a declaration that the said Regulations are void.”
225. The court additionally stated: -
“141. That being the position, since the impugned Gazette Notice were meant to replace the 2013 Notices, it cannot
be successfully argued that the quashing of the Gazette Notice No.6517 would leave a lacuna in the remuneration
of the Applicants. The effect of a decision quashing the said Gazette Notice is that the status quo prevailing before
the publication of the said Gazette Notice would be revived. This position in my view would be curable by the spirit
of section 24 of the Interpretation and General Provisions Act which provides that:
Where an Act or part of an Act is repealed, subsidiary legislation issued under or made in virtue thereof shall,
unless a contrary intention appears, remain in force, so far as it is not inconsistent with the repealing Act, until it
has been revoked or repealed by subsidiary legislation issued or made under the provisions of the repealing Act,
and shall be deemed for all purposes to have been made thereunder.”
226. Whereas Gazette Notice number 2886 of 1st March 2013 was to cease applying from 8th August 2017, being
the effective date of Gazette Notice No. 6517 of 7th July 2017, the quashing the said Gazette Notice meant that the
Gazette Notice Number 2886 of 1st March 2013 would continue to apply until a new Gazette Notice is promulgated
by the SRC pursuant to Article 230 (4).
227. Additionally, agreeing with the PSC would amount to overturning the decision in Okiya Omtatah Okoiti & 3
Others v Attorney General & 5 Others[113]which declared unconstitutional the National Assembly Remuneration
Act, Cap 5, Laws of Kenya which regulated the setting of salaries and remuneration of MPs prior to the issuance of
the 2013 Gazette Notice. In any event as was held in the above case, the remuneration of the MPs of the 11th
Parliament and any other Parliament coming into existence thereafter (the current Parliament included) can only be
determined by the SRC.
v. Whether the payments made by the PSC to the MPs ought to be recovered.
228. The Petitioners urged the court to order that the amount paid to the MPs as house allowance be recovered.
PSC’s position was that MPs perform a public duty and the money paid to them in form of facilitative allowance to
enable them perform a public business cannot constitute waste of public funds.
229. Article 201 stipulates the principles on the management of public funds. These include: - (a) openness and

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accountability, including public participation in financial matters; (b) public money shall be used in a prudent and
responsible way; and (c) financial management shall be responsible, and, (d) fiscal reporting shall be clear.
230. Recovery of loss of public funds is specifically addressed by Article 226 (5) as follows: -
If the holder of a public office, including a political office, directs or approves the use of public funds contrary to
law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the
person remains the holder of the office or not.
231. To give effect to the constitutional provisions on the principles guiding public finance, Parliament enacted the
Public Finance Management Act.[114] Section 66 of the Act imposes a duty upon the accounting officers of
constitutional commissions among them the PSC to monitor, evaluate and oversee the management of public
finances in the commission.
232. Section 68 of the Act provides for specific responsibilities of accounting officers. The relevant responsibilities
for our purposes are the following: -
(1) An accounting officer for a national government entity, Parliamentary Service Commission and the Judiciary
shall be accountable to the National Assembly for ensuring that the resources of the respective entity for which he
or she is the accounting officer are used in a way that is—
(a) lawful and authorised; and
(b) effective, efficient, economical and transparent.
(2) In the performance of a function under subsection (1), an accounting officer shall—
(a) ensure that all expenditure made by the entity complies with subsection (1);
(b) ensure that the entity keeps financial and accounting records that comply with this Act;
(c) ensure that all financial and accounting records the entity keeps in any form, including in electronic form are
adequately protected and backed up;
(d) ensure that all contracts entered into by the entity are lawful and are complied with;
(e) ensure that all applicable accounting and financial controls, systems, standards, laws and procedures are
followed when procuring or disposing of goods and services and that, in the case of goods, adequate arrangements
are made for their custody, safeguarding and maintenance;
(f) bring any matter to the attention of the Cabinet Secretary responsible for the entity, or the Chief Justice or the
Speaker of the National Assembly if, in the accounting officer’s opinion, a decision or policy or proposed decision
or policy of the entity may result in resources being used in a way that is contrary to subsection (1);
233. Section 79 of the Act imposes similar obligations upon public officers. The section reads as follows: -
(1) Every public officer employed in a national government state organ or public entity shall comply with the
Constitution and all laws relating to the conduct of public officers when carrying out a responsibility or exercising
a power under this Act.

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(2) Without prejudice to provisions under subsection (1), a public officer employed in a national government state
organ or public entity shall—
(a) comply with the provisions of this Act so far as they are applicable to the officer; and
(b) ensure that the resources within the officer’s area of responsibility are used in a way which—
(i) is lawful and authorised; and
(ii) is effective, efficient, economical and transparent;
(c) within the officer’s area of responsibility—
(i) ensure that adequate arrangements are made for the proper use, custody, safeguarding and maintenance of
public property; and
(ii) use the officer’s best efforts to prevent any damage from being done to the financial interests of the national
government.
234. Also relevant is section 196 of the Act which provides that:-
(1) a public officer shall not spend public money otherwise than authorized by the Constitution, an Act of
Parliament or County legislation.
(2) A public officer shall not raise revenues other than in accordance with the Constitution, an Act of Parliament
or an Act of a County Assembly.
(3) A public officer shall not enter into any obligation that has financial implications for the national government
budget or a county government budget unless the obligation is authorised by the Constitution, an Act of Parliament
or an Act of a County Assembly.
(4) A public officer shall not borrow money, issue a guarantee, indemnity or security or enter into any other
transaction that binds or may bind the national government entity or a county government entity to any future
financial obligation, unless the borrowing, guarantee, indemnity, security or other transaction is authorised by this
Act or by any other written law and, in the case of loans or guarantees, is within the limits provided under this Act.
(5) A public officer shall not direct another public officer to do an act that constitutes a contravention of, or a
failure to comply with, this Act, the Constitution or any other written law.
235. Additional offences are provided under sections 197 and 198 of the Act. To underscore the scrupulous manner
in which the provisions of the Act are to be complied with, subsections (6) & (7) of section 196 creates a
punishable offence in addition to the provisions of Article 226(5) as follows: -
(6) A public officer who contravenes this section commits an offence and on conviction is liable to a term of
imprisonment not exceeding two years or to a fine not exceeding one million shillings, or to both.
(7) Where a national government entity or a county government entity—
(a) engages in an action that it is prohibited from doing by this Act; or

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(b) fails to comply with an obligation imposed on it by this Act, a public officer who assisted or facilitated the act,
or who was a party to, or contributed to, the failure, commits an offence and on conviction is liable to a term of
imprisonment not exceeding two years or to a fine not exceeding one million shillings, or to both in addition to
provisions under Article 226(5) of the Constitution.
236. Further, section 202 of the Act imposes personal liability on public officers for certain losses sustained by
national government. The section states as follows: -
(1) A public officer is personally liable for any loss sustained by the national government that is attributable to—
(a) the fraudulent or corrupt conduct, or negligence, of the officer; or
(b) the officer’s having done any act prohibited by section 196, 197 and 198.
237. A reading of the above provisions shows that an accounting officer is responsible for ensuring that public
finance is used lawfully and in a prudent manner. Fundamental to the use of public finance is regularity and
propriety. Regularity means compliance with the Constitution and the governing statute including obtaining
required consents/approvals from the relevant bodies. Propriety means meeting high standards of public conduct,
including robust governance, honesty, transparency, value for money, prudent use of resources and the relevant
parliamentary expectations, especially transparency.
238. The accounting officers are obligated by the law to comply with regularity and propriety and the need for
efficiency, economy, effectiveness and prudence in the administration and use of public resources and to secure
value for public money.
239. We have already held that the PSC failed to seek and obtain the approval of the SRC which is the only body
constitutionally mandated to set and pay salaries and remuneration of State Officers. We also held that PSC
contravened several constitutional provisions among them Articles 230(4), 206 (4) and 259(11) by setting and
facilitating the payment to the MPs of house allowance. The accounting officers for the PSC and Parliament are
therefore also culpable for failing to undertake their obligations under the Public Finance Management Act in this
regard. For this reason, we therefore find that the said accounting officers are under an obligation to recover the
money paid to MPs.
240. A specific prayer was made that in the alternative we find the 3rd to 12th Respondents who were the members
of the PSC, personally liable to pay to the consolidated fund the house allowances paid to the MPs. The
circumstances upon which a court can arrive at a finding of personal liability for loss of public funds are set out in
section 202 (1) (a) and (b) of the Public Finance Management Act. First, there must be a finding of bad faith, fraud,
corruption or negligence on the part of a public officer. Bad faith has been defined rarely, but an Australian case
defined it as ‘‘a lack of honest or genuine attempt to undertake the task and involves a personal attack on the
honesty of the decision-maker.’’[115] Bad faith is a serious allegation which attracts a heavy burden of proof.[116]
No evidence was placed, or argument was made before us to demonstrate bad faith, negligence, corruption or fraud
on the part of the 3rd to 12th Respondents to support such a finding.
241. Second, there must be a finding that the officers have done done any act prohibited by sections 196, 197 and
198. We have herein above concluded that the PSC violated several provisions of the Constitution and the Public
Finance Management Act. We have however, in our disposition considered and issued what we consider to be
appropriate remedies in the circumstances of this case.
(b) Whether the SRC has failed to set a house allowance for MPs and if so, whether it amounts to discrimination
against MPs.

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242. The PSC’s case is that it is an act of discrimination against MPs for the SRC to set housing allowance for the
President, the Deputy President, the Chief Justice and the Deputy Chief Justice, Governors, Deputy Governors,
Speakers of Parliament and their Deputies and Speakers of County Assemblies and their Deputies and fail to set a
housing allowance for MPs who are also State Officers. To fortify their argument, the PSC placed heavy reliance
on the CoG v SRC case where the High Court held that it was an act of discrimination for the SRC to set house
allowance for Governors and fail to set house allowance for Deputy Governors.
243. The PSC also argued that unlike other civil servants who have segregated pay package that includes a house
allowance, the MPs are paid a consolidated pay comprising their basic pay and all allowances. Lastly, a comparison
was made with the salaries paid to Judges, which PSC claims are higher than those paid to MPs despite being in the
same job group.
244. The crux of SRC’s argument is that it has set a house allowance for the certain categories of State Officers
such as the President, Deputy President, the Chief Justice, Speakers of both houses of Parliament, the Deputy Chief
Justice, Governors and Deputy Governors because of the nature of their work which includes hosting state
functions. They also argued that the house allowance entails provision of a physical house constructed by the State
and it is not necessarily a monetary payment. Reacting to PSC’s reliance on the CoG v SRC case, Mr. Wanyama,
Mr. Omtata, Mr. Ouma, Mr. Kuria and Mr. Lempaa argued that it is a decision in personam and not in rem.
245. On the issue of consolidated pay, the SRC responded that all State Officers are paid a consolidated pay as a
way of managing the public wage bill. SRC also contended that the nature of the work done by judges and their
tenure of service is different from that of MPs. SRC further explained that the pay structure was based on a
rigorous and technical job evaluation exercise which took into account multiple factors.
246. We will commence our analysis with an examination of the decision in the CoG v SRC case. Four pertinent
factors are discernible regarding its applicability. First, is the question whether the said decision is binding [117]
on this
court. The said decision was rendered by a court of coordinate jurisdiction and is therefore not binding, though
persuasive. This is because of the concept of judicial comity which is the respect one [118]
court holds for the decisions
of another. As a concept it is closely related to stare decisis. In R. v. Nor. Elec. Co., McRuer C.J.H.C. stated: -
“....The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock, in his First
Book of Jurisprudence, 6th ed., p. 321: “The decisions of an ordinary superior court are binding on all courts of
inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor
on the court itself, will be followed in the absence of strong reason to the contrary…” (Emphasis added).
[119]
247. Second, a case is only an authority for what it decides. This is correctly captured in the following passage: -
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not
every observation found therein nor what logically follows from the various observations made in it. ... every
judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality
of the expressions which may be found there are not intended to be expositions of the whole law, but governed and
qualified by the particular facts of the case in which such expressions are to be found. ...a case is only an authority
for what it actually decides...." (Emphasis added).
[120]
248. The ratio of any decision must be understood in the background of the facts of the particular case. It[121]is well
settled that a difference in facts or additional facts may water down the precedential value of a decision. Each
case depends on its own facts and a close similarity between one case and another is not enough, because a single
[122]
significant detail may alter its entire characteristic. To decide therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive.

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249. Third, is the applicability of the judgment to the instant case. This calls for a close examination of the facts of
the said case. As we do so it is apposite to restate the guiding principles of interpreting court judgments. We cannot
think of a better
[123]
illumination than the exposition of the law expressed in Firestone South Africa (Pty) Ltd v
Genticuro AG which elucidated the subject as follows: -
“…the basic principles applicable to the construction of documents also apply to the construction of a Court's
judgment or order: the Court's intention is to be ascertained primarily from the language of the judgment or order
as construed according to the usual well-known rules. As in the case of any document, the judgment or order and
the Court's reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading,
the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to
contradict, vary, qualify, or supplement it. Indeed, in such a case not even the Court that gave the judgment or
order can be asked to state what its subjective intention was in giving it. But if any uncertainty in meaning does
emerge, the extrinsic circumstances surrounding or leading up to the Court's granting the judgment or order may
be investigated and regarded in order to clarify it….
It may be said that the order must undoubtedly be read as part of the entire judgment and not as a separate
document, but the Court's directions must be found in the order and not elsewhere. If the meaning of an order is
clear and unambiguous, it is decisive, and cannot be restricted or extended by anything else stated in the
judgment.”(Emphasis supplied)
250. Briefly, the facts in the CoG v SRC case were that the Council of Governors requested [124]the SRC to make
provision for housing for deputy county governors as required by the County Governments Act. The Council of
Governors’ case was that deputy county governors had been denied house allowance for 3 years after the 2013
elections, on grounds that the policy did not provide housing for deputy county governors. They pleaded inter alia
that the SRC’s action was unlawful since it was discriminatory and contrary to Article 27(5).
251. After analyzing the material before it the court held that no reasonable objective and acceptable justification
for that differential treatment had been given as to why the SRC had not set house allowance for Deputy
Governors. The court also noted that deputy governors were principal assistants to governors and assisted
governors in the running of county affairs and from the constitutional perspective, they were entitled to
remuneration and benefits which should include housing allowance to be regularly reviewed by the SRC. It is this
consideration on the role of Deputy Governors which informed the court’s decision in the COG v SRC case.
252. The facts in the CoG v SRC case as described above are clearly different from those in the instant case. In any
event, we were informed during the hearing of this case that the said decision is subject to a pending appeal, hence,
great caution must be employed as we consider its persuasive value.
253. The last question is whether the CoG v SRC case is a[125]decision in rem or personam. In Abukar G Mohamed
v Independent Electoral and Boundaries Commission the High Court observed that orders or judgements
which bind the whole world[126]
determine the state of affairs rather than the rights of the parties before the Court. The
court cited Conflict of Laws also cited by Mr. Wanyama which states thus: -
“An action is said to be in personam when its object is to determine the rights and interests of the parties
themselves in the subject-matter of the action, however the action may arise, and the effect of a judgement in such
an action is merely to bind the parties to it. A normal action brought by one person against another for breach of
contract is a common example of an action in personam.”
[127]
254. In Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others it was held that: -
“A judgment in rem determines the objective status of a person or thing…That kind of judgment has a public

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character that transcends the interests of only the litigating parties. It is a specific kind or example of a judgment in
rem.”
255. In Lazar Barlow v Regent Estates Co Ltd,[128] a judgment in rem was defined as follows: -
“A judgment in rem is a judgment which is conclusive as against all the world in whatever it settles as to the status
of a person or property, or as to the right or title to the property and as to whatever disposition it make of the
property itself, or of the proceeds of its sale.
All persons regardless whether or not they are parties to any legal proceedings are bound by a judgment in rem
and as such are estopped from averring that the status or things, or the right or title to property is other than what
the court has by its judgment declared or made it to be.
…A judgment in personam determines the right of the parties to an action and those who are privy to them in regard
to the subject matter in dispute…A judgment in personam does not affect the rights of third parties.”
256. Our reading of the decision in the CoG v SRC case is that it was informed by the specific rights of the parties
before it, and in particular on the specific role of the Deputy Governors who are principal assistants of the
Governors. It cannot be said to be a decision in rem because any other person citing discrimination as in this case
must demonstrate that he is in a similar job description with the governors or deputy governors.
257. This leads us to the question whether the SRC’s pay structure for the MPs is discriminatory. Article
27 guarantees the right to equality and freedom from discrimination in the following terms: -
27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political,
economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex,
pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief,
culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or
contemplated in clause (4).
258. The precise meaning and implication of the right to equality and non-discrimination has been the subject of
numerous judicial decisions in this country and other jurisdictions. In Jacqueline Okeyo Manani & 5 Others v.
Attorney General & Another (supra) the High Court stated as follows with respect to what amounts to
discrimination: -
“26. Black’s Law Dictionary, 9th Edition defines “discrimination” as (1)”the effect of a law or established
practice that confers privileges on a certain class because of race, age sex, nationality, religion or hardship” (2)
“Differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found
between those favoured and those not favoured”…
28. From the above definition, discrimination, simply put, is any distinction, exclusion or preference made on the
basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs

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political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of
opportunity or treatment between two persons or groups….
29. The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in
equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or
differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that
amounts to discrimination. Discrimination as seen from the definitions, will be deemed to arise where equal classes
of people are subjected to different treatment, without objective or reasonable justification or proportionality
between the aim sought and the means employed to achieve that aim.”
259. It is thus recognised that it is lawful to accord different treatment to different categories of persons if the
circumstances so dictate. Such differentiation, however, does not amount to the discrimination that is prohibited by
the Constitution. In John Harun Mwau v. Independent Electoral and Boundaries Commission &
Another[129], the court observed that: -
“[i]t must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of
the distinction made between the claimant and others, the claimant has been denied equal protection or benefit of
the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and
a violation of the constitution.”
260. The European Court of Human Rights has also observed that discrimination [130]
means treating differently,
without any objective and reasonable justification, persons in similar situations. From this observation, it is safe
to state that the law prohibits unfair discrimination. In EG & 7 others v Attorney General; DKM & 9 others
(Interested Parties); Katiba Institute & Another: Petition 150 & 234 of 2016 (Consolidated) the court held
that: -
“[288] From the above definition, it is safe to state that the Constitution only prohibits unfair discrimination. In
our view, unfair discrimination is differential treatment that is demeaning. This happens when a law or conduct,
for no good reason, treats some people as inferior or less deserving of respect than others. It also occurs when a
law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalization.”
261. With respect to the burden of proof on a claim that an action or law is discriminatory, it has been held that the
burden lies on a person alleging unfair discrimination to establish his claim. In Mohammed Abduba Dida v
Debate Media Limited & another,[131] the court stated as follows: -
“I must add that if the discrimination is based on any of the listed grounds in Article 27 (4) of the Constitution, it is
presumed to be unfair. It must be noted, however, that once an allegation of unfair discrimination based on any of
the listed grounds in article 27 (4) of the constitution is made and established, the burden lies on the Respondent to
prove that such discrimination did not take place or that it is justified.
On the other hand, where discrimination is alleged on an arbitrary ground, the burden is on the complainant to
prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination
is unfair.”
262. The court additionally observed that: -
“It is not every differentiation that amounts to discrimination. Consequently, it is always necessary to identify the
criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently,
differentiation is permissible if it does not constitute unfair discrimination.”

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263. Turning to the facts of the instant case, our understanding of PSC’s argument is that it is challenging the
rationale for the SRC’s failure to set housing allowance for MPs and the same pay structure as other civil servants
and comparable State Officers. Differently stated, is there a rational objective for SRC’s decision. As we address
this question, we are clear that it is not every differentiation that amounts to discrimination. Consequently, it is
always necessary to identify the criteria that separates legitimate differentiation from constitutionally impermissible
differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination.
264. Decided cases suggests that law or conduct which promotes differentiation must have a legitimate purpose and
should bear a rational connection between the differentiation and the purpose. The rationality requirement is
intended to prevent arbitrary differentiation. The authorities on equality suggest that the right to equality does not
prohibit discrimination but it prohibits unfair discrimination. The question that often arises is what makes the
discrimination unfair. To prove unfair discrimination, it is incumbent upon the person making the allegations to
plead the facts allegedly constituting discrimination and also must prove the discrimination to the required
standard.
265. The test for determining whether a claim based on unfair discrimination
[132]
should succeed was laid down by the
South Africa Constitutional Court in Harksen v Lane NO and Others cited above as follows: -
(a)Does the provision differentiate between people or categories of people" If so, does the differentiation bear a
rational connection to a legitimate purpose" If it does not then there is a violation of the constitution. Even if it
does bear a rational connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination" This requires a two-stage analysis:-
(i)Firstly, does the differentiation amount to ‘discrimination’" If it is on a specified ground, then discrimination
will have been established. If it is not on a specified ground, then whether or not there is discrimination will
depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to
impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably
serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’" If it has been
found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground,
unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of
the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry,
the differentiation is found not to be unfair, then there will be no violation……..
(c)If the discrimination is found to be unfair then a determination will have to be made as to whether the provision
can be justified under the limitations clause...”
266. Briefly, the guiding principles in a case of this nature are clear. The first step is to establish whether the
impugned decision differentiates between different persons. The second step entails establishing whether that
differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair.
267. In this regard, if the discrimination is based on any of the listed grounds in Article 27, it is presumed to be
unfair. It must also be noted, that once an allegation of unfair discrimination based on any of the listed grounds in
Article 27 is made and established, the burden lies on the Respondent to prove that such discrimination did not take
place or that it is justified.
268. Applying the above principles to the facts and the circumstances of this case, we note that the explanation
offered by the SRC to the claims that the MPs were differentiated by not being paid a house allowance are as

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follows: –
(a) The President, Deputy President, The Chief Justice, the Deputy Chief Justice, the Speakers of the two houses of
Parliament and their Deputies, the Governors and their Deputies, Speakers of County Assemblies and their
Deputies all perform functions which entail holding state functions, and which warrant a housing benefit as
opposed to MPs who do not have similar functions.
(b) The housing benefit accorded to the said category of State Officers does not necessarily entail a cash payment
but it can entail a house constructed with state funds.
(c) The MPs earn a consolidated pay, 40% of which constitutes allowances, inclusive of house allowance.
(d) The Employment Act, 2007, prohibits payment of a house allowance when an employee is paid a consolidated
pay.
269. It is our view that the PSC has not demonstrated unfair discrimination. This is because, firstly, the SRC has
demonstrated that MPs are actually paid a house allowance in their consolidated pay. Secondly, SRC has provided
an objective and a rational justification as to why a certain category of State Officers are entitled to and are given a
housing benefit. The PSC did not demonstrate that MPs undertake functions similar to this category of State
Officers. Thirdly, other than the decision in the CoG v SRC case relied upon which we have distinguished, the
PSC did not provide sufficient evidence to support its allegations on differentiated pay between the MPs and
Judges, Magistrates and other civil servants nor did it demonstrate that the criteria applied by the SRC in setting the
different pay structures was unfair. It follows that the PSC’s claim of alleged discrimination of MPs by the SRC
fails.
(c) Whether the SRC acted ultra vires its constitutional and statutory mandate in capping the number of
remunerable meetings the MPs and PSC could hold in one month.
270. Counsel for the PSC submitted at length on how the SRC had intruded into PSC’s functions and interfered
with the independence of Parliament by purporting to limit the number of sittings which the MPs and the PSC can
be paid to sixteen per month in Gazette Notices Nos. 2886 of 2013 and 6517 of 2017.
271. The response by the SRC was that the 2013 and 2017 Gazette Notices did not limit the number of sittings. The
SRC submitted that it only allocated each member a maximum of Kshs. 80,000 per month and limited the amount
per meeting to Kshs. 5,000, in keeping with the principle of affordability and fiscal sustainability envisaged in
Article 230 (5). Further, that the 2017 Gazette Notice had been quashed by the court and the constitutionality of the
quashed Gazette Notice cannot be litigated again in these proceedings. Additionally, SRC pointed out that the
decision that quashed the 2017 Gazette Notice is the subject of an appeal before the Court of Appeal and that issue
cannot therefore be reopened by this court.
272. The PSC relied on the decision in Judicial Service Commission v Salaries and Remuneration Commission
& another (supra), where the court found that the SRC’s act of capping the monthly remunerable meetings of the
Judicial Service Commission to eight was unconstitutional and ultra vires its mandate. The ratio decidendi of the
said decision was that the SRC capped the number of monthly remunerable meetings for members of an
independent constitutional commission contrary to Article 249 (2).
273. The court in the said case held as follows: -
“54. That being the position in law, there was no way the 1st respondent could assume mandate it does not have
and limit the petitioner’s monthly remunerable sittings through some resolution in violation of clear constitutional

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and statutory provisions. Any attempt by the 1st respondent to restrict the petitioner from holding more than eight
remunerable meetings a month is not only ultra vires her constitutional and statutory mandate but also clearly
unconstitutional and illegal. Any such move had to have a rational connection between the 1st respondent’s desire
to limit the meetings, the decision thereof and the reasons therefor which the Court is unable to fathom. To my
mind, the 1st respondent’s action was clearly aimed at stifling rather than enhancing the petitioner’s
independence. It is against not only the spirit of the constitution but violates the petitioner’s operational
independence too.
55. The 1st respondent cannot hide behind minimizing wastage of public resources as a reason for capping the
petitioner’s sittings. In the case of Judicial Service Commission v Speaker of the National Assembly & 8 Others
[2014]eKLR the Court held that ”JSC is a creature of the Constitution, an independent commission subject only to
the Constitution and the law and, as provided under Article 249 (2), is not subject to direction or control by any
person or authority. Like other constitutional commissions and independent offices, the JSC must however operate
within the confines of the Constitution and the law. The court did observe, and I agree with the observation, that
while enjoying financial and administrative independence, JSC is accountable to Parliament. To my mind, that is
the organ mandated to oversee how the petitioner expends it budgetary allocation and not the 1st respondent in the
form of restricting the petitioner’s number of remunerable monthly sittings as a way of reducing the petitioner’s
expenditure.”
274. In the present case, Gazette Number No. 2886 of 2013 in the section on allowances, provided for committee
sitting allowances in paragraph (b) thereof as follows: -
“Members of Parliament and Senate who serve in committees shall be paid committee sitting allowances as
follows: -
(i) Chairperson, Ksh. 10,000/= per day of meeting(s) subject to a maximum of 4 days per week and a maximum of
Kshs. 160,000/= per month.
(ii) Vice-chairperson, Ksh. 8,000/= per day of meeting(s) subject to a maximum of 4 days per week and a maximum
of Kshs.128,000/= per month.
(iii) Member, Ksh. 5,000/= per day of meeting(s) subject to a maximum of 4 days per week and a maximum of
Kshs. 80,000/= per month.”
275. Gazette Notice No. 6517 of 2017 had similar provisions for chairperson and members of parliamentary
committees.
276. Our analysis of the Gazette Notices in light of the arguments made by the parties on the limiting of
remunerable meetings, lead us to a number of findings. Firstly, it is evident from the said Gazette Notices that the
said capping only applied to MPs in parliamentary committees and not in the PSC. The remuneration and benefits
of the PSC as a constitutional commission was set by Gazette Notices Nos. 2887 of 2013 and 6519 of 2017 on
State Officers in Constitutional Commissions and Independent Offices which did not set any limits as to
remunerable meetings of the commission.
277. Secondly, in the present case, the number of remunerable meetings were being capped with respect to
parliamentary committee meetings and not with respect to meetings of a constitutional commission. Therefore, the
decision in Judicial Service Commission v Salaries and Remuneration Commission & another is inapplicable
in the circumstances of this case.
278. We also take cognisance of the fact that the PSC has not placed any evidence before this court to demonstrate

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that the SRC in setting the limits of number of remunerable meeting for MPs in both the 2013 and 2017 Gazette
Notices, acted in a manner that would attract the exercise of this court’s judicial review powers. This is the
standard of review that is ordinarily applicable with respect to parliamentary committee meetings. Put differently,
the PSC did not demonstrate that the SRC thereby acted illegally, unreasonably, in excess of its jurisdiction or
committed a procedural impropriety.
279. We have already found that the mandate to set and determine remuneration including allowances, is a function
constitutionally vested in the SRC by Article 230 (4) (a) and the SRC Act. No ground has therefore been
established by the PSC to merit this court’s interference in the manner in which the SRC set and determined the
number of MPs remunerable meetings.
280. Thirdly, in Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others[133] the petitioner was
challenging the decision of the National Assembly to overturn SRC’s Gazette Notice No. 2886 of 1st March 2013.
Parliament and PSC had an opportunity in that case to raise all matters connected with the Gazette Notice regarding
its independence but never did so. PSC is therefore estopped from raising any issue touching on Gazette Notice No.
2886 of 2013 at this point in time. The classic modern statement of the nature of[134]
issue estoppel is to be found in a
passage from the judgment of Diplock[135]LJ (as he then was) in Mills v Cooper, approved subsequently by the
House of Lords in DPP v Humphreys. Diplock LJ said:-
"This doctrine [namely of issue estoppel], so far as it affects civil proceedings, may be stated thus: a party to civil
proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal
consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same
assertion was an essential element in his previous cause of action or defence in previous civil proceedings between
the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous
civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the
assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has
since become available to him."
281. Furthermore, Gazette Notice No. 6517 of 2017 was quashed in PSC v SRC case. It is also noteworthy that
Gazette Notice No. 2886 of 2013 is only operational by default as result of the quashing of the 2017 Gazette
Notice.
282. Lastly, there was the unchallenged submission by the SRC that the PSC fully relied upon and supported the
2013 Gazette Notice when it filed the case seeking the quashing of the 2017 Gazette Notice. The PSC cannot
therefore be allowed to approbate and reprobate in respect of the 2013 Gazette Notice.
283. We are therefore unable to find in the circumstances of this case that SRC acted ultra vires its constitutional
and statutory mandate in limiting MPs remunerable parliamentary committee meetings.
(d) Whether the suit against the 3rd to 12th Respondents & 2nd Interested Party is incompetent.
284. The PSC argued that the 3rd to 12th Respondents are members of a constitutional commission and have
immunity from personal liability for acts done in good faith in the discharge of their official functions pursuant to
Article 250(9). It was therefore argued that the said members should not have been sued in their personal
capacities.
285. Mr. Wanyama, Mr. Omtatah, Mr. Ouma, Mr. Kuria, Mr. Lempaa & Mr. Kitonga did not address this issue.
286. Article 250 (9) provides that a member of a commission, or the holder of an independent office, is not liable
for anything done in good faith in the performance of a function of office. A reading of this Article leaves us with

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no doubt that the 3rd to 12th Respondents enjoy immunity for action performed in good faith in the performance of
their duties. The Petitioners in this regard did not endeavour to establish bad faith on the part of the 3rd to 12th
Respondents.
287. This being the position, we find and hold that the suit against the 3rd to the 12th Respondents in their personal
capacities offends Article 250(9), and hence is unsustainable.
288. There was also an almost similar submission by the MPs, who were joined as the 2nd Interested Party that they
had wrongly been sued in their personal capacities, and that the MPs therefore ought to be removed from this suit.
Again, there was no outright response by any of the Petitioners to this pleading.
289. It is our view that in the circumstances of this case, Mr Okiya Okoiti Omtatah, the second Petitioner made a
correct decision in enjoining each MP as a party in his Petition. This is because the MPs are the beneficiaries of the
impugned payments set and facilitated by the PSC, and will be directly affected by the decision of this court on the
said payment, particularly if it has adverse effects. Rule 2 of the Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013, in this regard defines interested parties as persons
who have an identifiable stake or legal interest or duty in the proceedings in a constitutional Petition.
290. We accordingly decline the 2nd Interested Party’s prayer to be excused from these proceedings.
(e). Whether the reliefs sought in the consolidated Petitions are merited
291. This Court is empowered by Article 23(3) to grant appropriate reliefs in constitutional petitions including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental
freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.
292. In addressing this final issue, we will provide a summary of the findings of this Court, and highlight the
applicable principles with regard to the remedies so as to determine the appropriate reliefs to grant in the
consolidated Petitions in our disposition.
(i) The Summary of Findings
293. The first substantive issue we considered was whether the decision by the PSC to make a payment to MPs for
their accommodation is ultra vires and unconstitutional. The first question the Court considered under this issue
was the nature of the payment made by the PSC, and found an allowance to mean a payment of money to an
employee or officer to meet work related expenses, while a house allowance is a specific allowance payable as part
of an employee’s remuneration to cater for the housing costs. Therefore, whether it is named as accommodation
allowance, a house allowance or a facilitative allowance, the Court found that the cross-cutting and relevant feature
of the payment made in the instant case was that it was meant to cater the MPs accommodation during the

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performance of their official duties.
294. On the other hand, the Court found the words services and facilities to refer to the amenities, offices and
equipment which are necessary for the MPs to perform their duties. Further, that the distinction between allowances
on one hand and services and facilities on the other, was made even clearer by the provisions of sections 18, 19 and
20 of the Parliamentary Service Act[136] which demonstrates the services and facilities envisaged under Article
127(6) (a) to assist the MPs in the performance of their duties are physical and logistical in nature, and not in the
nature of payment of funds. Therefore, that by trying to construe the words “services and facilities” in Article 127
(6) (a) to mean payment of a “facilitative house allowance,” the PSC imposed a meaning which the said provision
could not bear, and our conclusion thus was that the payment made to MPs was a remunerative allowance and not a
provision of a service and facility within the meaning of Article 127 (6) (a).
295. As regards the second question in this issue as to who between the PSC and the SRC has the legal mandate to
make the said payment, we noted that in our constitutional architecture, the PSC is established as an independent
commission so as to secure the independence of Parliament as an organ of government within the framework of
separation of powers. We also noted that the more practical role of the PSC is to ensure that Parliament as an
institution is well resourced and able to function effectively, so as to achieve the needed parliamentary autonomy.
The PSC therefore is the main vehicle through which Parliament achieves its independency and autonomy.
296. We considered the provisions of the Constitution and the law which give the PSC the means to achieve its
mandate by giving it functions in three key areas, namely; (a) parliamentary staffing and facilities; (b) budgetary
control; and (c) organizational independence. We found that the Constitution and statutes do not give the PSC any
specific function to set the salaries and allowances of MPs and parliamentary staff, and that on the contrary, Article
230 (4) specifically vests this function on the SRC. We note that the only financial functions allocated to the PSC
by the Constitution are budgetary.
297. It was therefore our finding that any function undertaken by the PSC for the well-being of MPs and
parliamentary staff must be read in light of its purpose and mandate, and holistically, taking into account the
constitutional mandate of other bodies established under the Constitution. As it was not disputed that the PSC set a
monthly housing benefit/allowance for MPs of Kshs. 250,000/=, and backdated the payment without the approval
of the SRC, we found that it therefore acted contrary to the specific provisions of Article 230 (4).
298. Other Articles found to have been thereby violated by PSC were Article 259 (11) to the extent that that PSC
did not consult the SRC in setting the impugned allowance and making the payment; Article 116 (3), to the extent
that PSC awarded benefits to MPs during their term; Article 206 (4) which provides that money shall not be
withdrawn from the Consolidated Fund unless the Controller of Budget has approved the withdrawal; Article 94 (4)
which obligates Parliament to protect the Constitution; Article 73 (1) (a) (i) which provides that authority assigned
to a State Officer is public trust to be exercised in a manner that is consistent with the purposes and objects of the
Constitution. Article 2(2) which provides that no person may claim or exercise State authority except as authorized
under the Constitution; Article 3 places an obligation on every person to respect, uphold and defend the
Constitution; and Article 10 which stipulates national values and principles of governance which bind all State
officers, State Organs and Public Officers.
299. Our conclusion therefore was that PSC’s argument that Article 127 (6) (a) vests them with the mandate to set
and provide a housing benefit to MPs is erroneous. Further, that the mandate to determine and set a housing or
accommodation allowance, is a function constitutionally vested in the SRC by Article 230 (4) (a) and the SRC Act.
Hence, PSC’s decision is found to be ultra vires its constitutional mandate and to offend the principle of legality
which requires that decisions by public bodies must have their source at the law.
300. The third question we answered in this issue was whether the SRC interfered with the constitutional mandate

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and independence of the PSC and Parliament by directing the Clerks of the Senate and the National Assembly not
to pay the house allowance. Flowing from our finding that the PSC’s decision to set and facilitate the payment to
the MPs is ultra vires its constitutional and statutory mandate, we reiterated that SRC’s mandate as provided for in
Article 230(4) is to set and regularly review remuneration and benefits of all State Officers and to advise the
national and county governments on the remuneration and benefits of all other public officers. Further, that this
mandate is emphasized by sections 11 and 12 of the SRC Act.
301. Therefore, our conclusion was that the SRC acted within its mandate by directing the Clerks of Parliament not
to pay the impugned allowance, and did not in any manner interfere with the constitutional independence and
functions of Parliament and the PSC.
302. The Court also considered a fourth question that arose, as regards the legal instruments that regulate the
remuneration and benefits payable to MPs in light of the pleading by PSC that MPs are entitled to receive the
remuneration and benefits that they were receiving prior to publication of Gazette Notice No. 2886 of 1st March
2013.
303. Our finding on this question was that whereas Gazette Notice number 2886 of 1st March 2013 was to cease
applying from 8th August 2017, being the effective date of Gazette Notice No. 6517 of 7th July 2017, the Court in
the PSC v SRC case quashed Gazette Notice of 7th July 2017, which meant that the Gazette Notice Number 2886
of 1st March 2013 would continue to apply until a new Gazette Notice is promulgated by the SRC pursuant to
Article 230 (4).
304. The last and fifth question considered under this issue was whether the payments made by the PSC to the MPs
ought to be recovered. The Court noted that recovery of loss of public funds is[137]
specifically provided for by Article
226 (5), and that various provisions of the Public Finance Management Act including sections 79, 66 and 68,
79, 196 which imposes a duties and responsibilities upon the accounting officers and public officers to ensure that
public finance is used lawfully and in a prudent manner.
305. Having found that PSC contravened several constitutional provisions among them Articles 230(4), 206 (4) and
259(11) by setting and facilitating the payment to the MPs of house allowance, we also found that the accounting
officers for the PSC and Parliament are therefore also culpable for failing to undertake their obligations under the
Public Finance Management Act in this regard. For this reason, we therefore find that the said accounting officers
are under an obligation to recover the money paid to MPs.
306. A specific prayer was made that in the alternative we find the 3rd to 12th Respondents who were the members
of the PSC, personally liable to pay to the Consolidated Fund the house allowances paid to the MPs. We noted that
personal liability for loss of public funds is contingent on a finding of the circumstances listed in section 202 (1) (a)
& (b) of the Public Finance Management Act, and that no evidence was placed, or arguments made before us to
demonstrate bad faith, negligence, corruption or fraud on the part of the 3rd to 12th Respondents to support such a
finding. We however concluded that there was evidence that the impugned payment was undertaken in total
disregard of the provisions of the Constitution and the Public Finance Management Act discussed herein above.
307. The second substantive issue we considered was whether the SRC has failed to set a house allowance for MPs
and if so, whether it amounts to discrimination against MPs. We examined the decision in the CoG v SRC case
which was substantially relied upon by PSC for this contention, and noted that facts in the CoG v SRC case are
different from those in the instant case, and was informed by the specific rights of the parties before it, and in
particular on the specific role of the Deputy Governors who are principal assistants of the Governors, and cannot be
said to be a decision in rem. Furthermore, the said decision is subject to a pending appeal, hence, its persuasive
value is limited.

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308. We also found that the PSC has not demonstrated unfair discrimination for the reasons that, firstly, the SRC
had demonstrated that MPs are actually paid a house allowance in their consolidated pay. Secondly, SRC had
provided an objective and a rational justification as to why a certain category of State Officers are entitled to and
are given a housing benefit, and the PSC did not demonstrate that they undertake functions similar to this category
of State Officers. Thirdly, other than the decision in the CoG v SRC case relied upon which we have distinguished,
the PSC did not provide sufficient evidence to support its allegations on differentiated pay between the MPs and
Judges, Magistrates and other civil servants, nor did it demonstrate that the criteria applied by the SRC in setting
the different pay structures was unfair. The Court therefore found that the PSC’s claim of alleged discrimination of
MPs by the SRC fails.
309. The third substantive issue we considered was whether the SRC acted ultra vires its constitutional and
statutory mandate in capping the number of remunerable meetings the MPs and PSC could hold in one month. Our
findings after analysing the relevant Gazette Notices were firstly, that the said capping only applied to MPs in
parliamentary committees and not in the PSC, as Gazette Notices Nos. 2887 of 2013 and 6519 of 2017 on State
Officers in Constitutional Commission and Independent Offices did not set any limits as to remunerable meetings
of the PSC.
310. Secondly, in the present case, the number of remunerable meetings were being capped with respect to
parliamentary committee meetings and not with respect to meetings of a constitutional commission. Therefore, the
decision in Judicial Service Commission v Salaries and Remuneration Commission & another is inapplicable
in the circumstances of this case. In addition, PSC did not place any evidence before this court to demonstrate that
the SRC in setting the limits of number of remunerable meetings for MPs in both the 2013 and 2017 Gazette
Notices, acted in a manner that would attract the exercise of this court’s judicial review powers, which is the
standard of review that would be ordinarily applicable, and having already found that the mandate to set and
determine remuneration including allowances, is a function constitutionally vested in the SRC by Article 230 (4)
(a) and the SRC Act.
311. Thirdly, PSC is estopped from raising any issue touching on Gazette Notice No. 2886 of 2013 at this
[138]
point in
time arising from the decision in Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others wherein
Parliament and PSC had an opportunity in that case to raise all matters connected with the said Gazette Notice.
Furthermore, Gazette Notice No. 6517 of 2017 was quashed in the PSC v SRC case, wherein the PSC fully relied
upon and supported the 2013 Gazette Notice. We were therefore unable to find in the circumstances of this case
that SRC acted ultra vires its constitutional and statutory mandate in limiting MPs remunerable parliamentary
committee meetings.
312. The last substantive issue we addressed was whether the suit against the 3rd to 12th Respondents & the 2nd
Interested Party is incompetent. We considered the provisions of Article 250 (9) under which the 3rd to 12th
Respondents enjoy immunity for action performed in good faith in the performance of their duties. We also note
that the Petitioners in this regard did not endeavour to establish bad faith on the part of the 3rd to 12th Respondents,
and therefore found that the suit against the 3rd to the 12th Respondents in their personal capacities offends Article
250(9) and is unsustainable.
313. We also considered similar submission by the MPs, who were joined as the 2nd Interested Party, that they had
been wrongly been sued in their personal capacities, and that the MPs therefore ought to be removed from this suit.
It was however our view that in the circumstances of this case, each MP was correctly enjoined as a party in the
consolidated Petitions, for the reason that the MPs are the beneficiaries of the impugned payments set and
facilitated by the PSC, and will be directly affected by the decision of this court on the said payment, particularly if
it has adverse effects. We accordingly declined the 2nd Interested Party’s prayer to be excused from these
proceedings.

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(ii) The Remedies
314. The Petitioners and 1st Respondent have sought remedies of certiorari, prohibition, mandamus, a permanent
injunction and various declarations as reproduced hereinabove. Various principles apply with regard to the issue of
these orders, that need to be considered in light of our findings as reproduced hereinabove.
315. Certiorari, prohibition and mandamus are judicial review orders. An order of prohibition restrains a public
body from acting in the manner specified in the order to restrain a threatened or impending unlawful conduct. An
order of certiorari on the other hand nullifies an unlawful decision or enactment. The Court of Appeal in the case of
Republic v Kenya National Examinations Council ex parte Gathenji & Others[139] explained the
circumstances under which the orders of prohibition and certiorari can issue as follows: -
“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not
bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the
rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or
whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the
decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the
making of a contemplated decision...Prohibition is an order from the High Court directed to an inferior tribunal or
body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in
contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a
departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of
an inferior tribunal, or a wrong decision on the merits of the proceedings...Only an order of certiorari can quash a
decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of
jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”
316. An order of mandamus on the other hand requires a public body to do some particular act as specified in the
order, to enforce public law duties. The Court of appeal in the above cited decision held as follows on the
applicable principles for an order of mandamus to issue:-
“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS" Once
again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89.
That learned treatise says:-
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High
Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some
particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its
purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all
cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in
cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial
and effectual.”
At paragraph 90 headed “the mandate” it is stated:
“The order must command no more than the party against whom the application is made is legally bound to
perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute,
which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the
obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
What do these principles mean" They mean that an order of mandamus will compel the performance of a public
duty which is imposed on a person or body of persons by a statute and where that person or body of persons has

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failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”
317. The remedy of a declaration is normally granted to state authoritatively the lawfulness of a decision, action or
failure to act, the consequences that follow from a quashing order, the existence or extent of a public body’s
powers and duties, the rights of individuals or the law on a particular issue.
318. The only limitations as to grant of declarations is in purely moral, social, or political matters in which no issue
of law or rights arises; where it will serve no practical purpose; or where a court has not heard contested argument
on the issue to which the declaration relates and it is likely to affect other parties who are not party to the case. (See
Jonathan Moffart et al, Judicial Review: Principles and Procedures (2013) at chapter 30.16 to 30.24).
319. The said remedies of certiorari, prohibition, mandamus and declaration are accordingly merited, to the extent
that we have found that PSC contravened several constitutional provisions by setting and facilitating the payment to
the MPs of house allowance, and that the accounting officers for the PSC and Parliament have a duty and
responsibility under the Public Finance Management Act to recover the said payments.
320. The Petitioners also sought a permanent injunction. An injunction is an order prohibiting a person from doing
something or requiring a person to do something. Injunctions are however normally in principle granted where
there has been a breach of private law rights, and not with respect to public rights or duties, and are therefore not an
appropriate remedy in the present Petitions. The Court of Appeal in Cortec Mining Kenya Limited vs Cabinet
Secretary, Attorney General & 8 others[140]. held as follows as regards the grant of injunction in judicial review
proceedings: -
“34. Can this court grant an order of injunction in a judicial review matter such as this one" For starters, to grant
an injunction would amount to giving a relief or remedy that was not even sought in the High Court in the first
place.
The High Court could only grant these three prerogative orders. It could not in the judicial review under Section 8
of the Law Reform Act grant an order of injunction such as is sought in the motion before us for the simple reason
that injunction is not authorized by and falls outside the amplitude of the reliefs available under Section 8 of the
Law Reform Act. An injunction is also not exclusively within the amplitude of public law remedies.”
321. Likewise, the Supreme Court of Kenya, when explaining the distinction between injunctions, and order of stay
and conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others[141] held as follows:-
“(85)These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is
somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others.
Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of
convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general,
and merely denotes that no party nor interested individual or entity is to take action until the Court has given the
green light.
(86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered
functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public
interest...”
322. The 1st and 2nd Petitioners have also sought orders seeking recovery of funds paid to the MPs as house
allowances through various means. This Court is in this regard empowered to grant appropriate relief necessary in
the circumstance of a constitutional petition. The definition of "appropriate relief" was given by the South African
Constitutional Court in Minister of Health & Others vs Treatment Action Campaign & Others[142] thus:-

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"...appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on
the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus, or
such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and
enforced. If it is necessary to do so, the court may even have to fashion new remedies to secure the protection and
enforcement of these all-important rights...the courts have a particular responsibility in this regard and are obliged
to "forge new tools" and shape innovative remedies, if need be to achieve this goal.”
323. The Supreme Court of Canada also established the considerations to be applied in the provision of a remedy in
a Constitutional violation case that is “just and appropriate” in Doucet-Boudreau v Nova Scotia (Minister of
Education).[143] These include provision of remedy that will: -
(1) meaningfully vindicate the rights and freedoms of the claimants;
(2) employ means that are legitimate within the framework of our constitutional democracy;
(3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and
4) be fair to the party against whom the order is made.
324. We have already considered the applicable provisions of the Constitution and Public Finance Management
Act on recovery of public funds that are unlawfully expended, and noted in this respect that the accounting officers
of PSC and Parliament have a constitutional and statutory obligation to recover any payments illegally made to the
MPS.
325. Lastly, both the Petitioners and the 1st Respondent also sought various orders as regards the question of who
should bear the costs of the consolidated Petitions. Section 27 of the Civil Procedure Act stipulates as follows on
the award of cost: -
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time
being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court
or judge shall have full power to determine by whom and out of what property and to what extent such costs are to
be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no
jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge
shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such
interest shall be added to the costs and shall be recoverable as such.
326. In the case of Supermarine Handling Services Ltd v Kenya Revenue Authority[144], this Court explained
the circumstances that would lead an appellate court to interfere with the trial court’s exercise of discretion thus:
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason
otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to
recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and
if it be so its exercise must be based on facts. If, however, there be, in fact, some grounds to support the exercise by
the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this
purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his
discretion in that instance...Thus, where a trial court has exercised its discretion on costs, an appellate court

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should not interfere unless the discretion has been exercised unjudicially or on wrong principles. Where it gives no
reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also
interfere where the reasons are given if it considers that those reasons do not constitute “good reason” within the
meaning of the rule....”
327. The applicable principles therefore are that costs follow the event; however, the award of the costs is also at
the discretion of the Court. As this is a matter which clearly raises public interest concerns, it is our view that each
party should bear its own costs. The rationale for the approach that a litigant pursuing a public interest litigation
will ordinarily not be punished in costs was explained in Harun Mwau & Others v Attorney General &
Others[145]as follows: -
“180. In matters concerning public interest litigation, a litigant who has brought proceedings to advance a
legitimate public interest and contributed to a proper understanding of the law in question without private gain
should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed. Costs
should therefore not be imposed on a party who has brought a case against the state but lost. Equally, there is no
reason why the state should not be ordered to pay costs to a successful litigant. The court also retains its
jurisdiction to impose costs as a sanction where the matter is frivolous, vexatious or an abuse of the court process.
181. Our Constitution places a premium on the values of social justice and rule of law, patriotism and
participation of the public. Without unhindered access by the public to the courts, these values would be
undermined. An award of costs is also one of the remedies the court may consider in granting appropriate relief
under Article 23(3) and Article 258.
182. Our approach to the issue of costs in cases concerning the enforcement of fundamental rights and freedoms
and for the enforcement of the Constitution is that the court has discretion in awarding costs. Like all forms of
discretion, it must be exercised judicially, in light of the particular facts of the case and giving due regard to the
values set out in the preamble of the Constitution and Article 10 in order to achieve the objects of Article 259(1)”.
328. We shall at this stage proceed to give our disposition in light of the foregoing principles.
The Disposition
329. Arising from the findings herein, our disposition is as follows: -
1. The prayers sought in Petition No. 339 of 2019 by the 1st Respondent are hereby declined, and the said
Petition is hereby dismissed with no order as to costs.
2. Petitions No. 208 of 2019 and Petition No. 185 of 2019 filed by the 1st and 2nd Petitioners respectively are
found to be merited to the extent of the following orders: -
I. A DECLARATION be and is hereby granted that the setting and approval of the payment of an
accommodation or house allowance to Members of Parliament is a function that is exclusively vested in the
Salaries and Remuneration Commission by Article 230 (4) and (5) of the Constitution.
II. A DECLARATION be and is hereby granted that the decision of the Parliamentary Service Commission to
set, and approve the payment of an accommodation or house allowance to Members of Parliament contrary to
the structure of Remuneration and Benefits of all State Officers in Parliament that is set and communicated by
the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration
Commission is in violation of by Article 230 (4) and (5) of the Constitution.

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III. A DECLARATION be and is hereby granted that the decision of the Parliamentary Service Commission to
Commission the functions that are exclusively vested to the SRC is ultra vires the prescribed Constitutional
powers of PSC contained in Article 127(6) of the Constitution.
IV. A DECLARATION be and is hereby granted that the decision of the Parliamentary Service Commission to
the Salaries and Remuneration Commission, and without the approval of the Salaries and Remuneration is in
violation of the provisions of Article 259(11) of the Constitution that required the prior approval of Salaries and
Remuneration Commission.
V. A DECLARATION be and is hereby granted that the decision of the Parliamentary Service Commission to
Commission was an exercise of state authority not authorised by the Constitution and in violation of the
provisions of Article 2(2) of the Constitution
VI. A DECLARATION be and is hereby granted that the decision of the Parliamentary Service Commission to
Commission the functions that are exclusively vested to the SRC was in violation of the provisions of Article
73(1) of the Constitution which provides that any State authority assigned to a State officer is a public trust that
ought to be exercised in a manner that is consistent with the purposes and objects of the Constitution.
VII. A DECLARATION be and is hereby granted that the decision of the Parliamentary Service Commission to
Commission the functions that are exclusively vested to the SRC was in violation of the binding national values
and principles of governance prescribed in Article 10 of the Constitution on the rule of law, transparency and
accountability.
VIII. An order of CERTIORARI be and is hereby issued to quash the decision the Parliamentary Service
Commission to set, and approve the payment of an accommodation or house allowance to Members of
Parliament contrary to the structure of Remuneration and Benefits of all State Officers in Parliament that is set
and communicated by the Salaries and Remuneration Commission, and without the approval of the Salaries and
Remuneration Commission in disregard of Article 230(4) (a) of the Constitution.
IX. An order of MANDAMUS be and is hereby issued directing the Clerk of the Senate and the Clerk of the
National Assembly to, within a period of twelve calendar months from the date of this order, recover in full from
the salaries and allowances of each Member of Parliament the entire amount of monies paid as accommodation
and/or house allowance to the Members of Parliament, pursuant to the illegal and unconstitutional decision of
the Parliamentary Service Commission to set, and approve the payment of an accommodation or house
allowance to Members of Parliament contrary to the structure of Remuneration and Benefits of all State
Officers in Parliament that is set and communicated by the Salaries and Remuneration Commission, and

295
without the approval of the Salaries and Remuneration Commission.
X. Each party shall bear their respective costs of the two Petitions.
330. Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS
10TH DAY OF DECEMBER 2020
P. NYAMWEYA W. KORIR J. MATIVO
JUDGE JUDGE JUDGE
FURTHER ORDERS ON THE MODE OF DELIVERY OF THIS JUDGMENT
In light of the declaration of measures restricting Court operations due to the COVID -19 Pandemic, and
following the Practice Directions issued by the Honourable Chief Justice dated 17th March 2020 and
published in the Kenya Gazette on 17th April 2020 as Kenya Gazette Notice No. 3137, this judgment will be
delivered electronically by transmission to the e-mail addresses of the Petitioners’, Respondents’, and
Interested Parties’ Advocates on record.
P. NYAMWEYA W. KORIR J. MATIVO
JUDGE JUDGE JUDGE
[1] Act No. 18 of 2012.
[2] Act No. 21 of 2014.
[3] Act No. 11 2007.
[4] Chapter 5 of the Laws of Kenya.

296
[5] High Court JR No. 686 of 2017; {2018} e KLR
[6] {2019} e KLR
[7] {2018} e KLR.
[8] {2015} e KLR.
[9]Act No. 11 of 2007.
[10] {1765} EWHC KB J98.
[11] {2014} e KLR.
[12] {2017} e KLR

297
[13] {2008} e KLR.
[14] {2006} UKPC 51.
[15] {2017} e KLR.
[16] Kampala High Court Misc. Appl. No. 347 of 2013.
[17] Act No. 11 of 2007.
[18] {2015} e KLR.
[19] Act No.11 of 2007.
[20] {2013} e KLR.
[21] {2014} e KLR.

298
[22] {2015} e KLR.
[23] {2011} e KLR.
[24] {2015} e KLR.
[25] {2014} e KLR.
[26] {2014} e KLR.
[27] {2015} e KLR.
[28] {2019} e KLR.
[29] {2015} e KLR.

299
[30] {2018} e KLR.
[31] {2014} e KLR.
[32] {2015} e KLR.
[33] {2011} e KLR
[34] {2014} e KLR.
[35] {2015} e KLR.
[36] {2014} e KLR.
[37] {2015} e KLR.
[38] {2014} eKLR.

300
[40] Constitutional Petition No. 281 of 2014.
[41] No. 10 of 2000.
[43] No. 4 of 2015.
[44] No. 10 of 2000.
[45] {2018} e KLR.
[46] [2016] e KLR.

301
[47] {2012} e KLR
[48] {2013} e KLR.
[49] Constitutional Petition No. 1 of 1996 (1997 UGCC 3).
[50] Supreme Court Reference No. 1 of 2012, [2014] e KLR.
[51]{2011}e KLR
[52]{2014} e KLR
[53] {2015} e KLR.
[54] {2015} e KLR.
[55] {2018} e KLR.

302
[56] Act No. 22 of 2019.
[57] Cap 2, Laws of Kenya.
[58] [2018] e KLR
[59] Act No. 11 of 2007.
[60] {2015} e KLR.
[61] Act No. 11 of 2007.
[62] {2011} e KLR.
[63] {2018} e KLR.

303
[64] [2018] eKLR
[65] {2014} e KLR.
[66] {2013} e KLR.
[67] {2014} e KLR.
[68] See Thirdway Alliance Kenya & another v Head of the Public Service-Joseph Kinyua & 2 others; Martin
Kimani & 15 others (Interested Parties) {2020} e KLR.
[69] Nairobi Criminal Application no. 701 0f 2001
[70] {2015} e KLR.
[71]Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001
(1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at para 24

304
[72] Johannesburg Municipality v Gauteng Development Tribunal and Others [2009] ZASCA 106; 2010 (2) SA
554 (SCA) at para 39, which quoted Jaga v Dönges, N.O. and Another; Bhana v Dönges, N.O. and Another 1950
(4) SA 653 (A) at 664G-H.
[73]Smith Dakota vs. North Carolina, 192 US 268(1940)
[74] {2014} e KLR.
[75] {2015} e KLR.
[76] {2013} e KLR.
[77] Please see Articles 2(1), (2), 3 (1), 10, 73 & 93(2) of the Constitution among others.
[78] AAA Investments (Pty) Ltd v Micro Finance Regulatory Council {2006} ZACC 9; 2007 (1) SA 343 (CC).
[79] See Democratic Alliance v President of the Republic of South Africa and Others [2012] ZACC 24; 2013
(1) SA 248 (CC); 2012 (12) BCLR 1297 (CC) at para 27 and Albutt v Centre for the Study of Violence and
Reconciliation and Others [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC) at para 49.

305
[80] 6 Currie I, The promotion of administrative justice Act in context (Cape Town: Siber Ink, 2007) 10.
[81] See President of the Republic of South Africa and Others v South African Rugby Football Union and
others 2000 1 SA 1 (CC) para 148 (SARFU).
[82] See Rail Commuters Action Group and Others v Transnet Ltd/t/a Metro Rail and Others 2005 2 SA 359
(CC) para 73-78; AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and another 2007 (1) SA 343
(CC) para 89.
[83] Act No. 10 of 2000.
[84] Ibid.
[85] See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States
Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227, 270–71 (1999).
[86] Ibid.
[87] Henry M. Hart, JR. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application
of Law 1375–76 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994).

306
[88] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 13 (1998).
[89] 6TH Edition, Oxford University Press.
[90] 3rd Edition, 2008.
[91] 10th Edition.
[92] WordReference.com Dictionary of English.
[93] Glossary. U.S. Bureau of Labor Statistics Division of Information Services. February 28, 2008. Accessed
on 21st May 2020.
[94] Bureau of Labor Statistics (2008). Online Glossary. Available at: http://www.bls.gov/bls/glossary.htm#
[95] 10th Edition.

307
[96] https://www.merriam-webster.com/dictionary/service
[97] https://www.collinsdictionary.com/dictionary/english/service
[98] 2nd Edition.
[100] 10th Edition.
[102] {2019} e KLR.
[103] Act No. 22 of 2019.
[104] See Matatiele Municipality and Others v President of the Republic of South Africa and Others 2006 (5)
BCLR 622 (CC) at para 51.

308
[105] 1996 (2) BCLR 155 (CC).
[106] Ibid Id at 156F-G.
[107] 1996 (4) SA 1098 (CC); 1996 (11) BCLR 1419 (CC).
[108] Ibid at para 28.
[109] {2018} e KLR.
[110] High Court Petition No. 294 of 2013.
[111] {2015} e KLR.
[112] Act No. 22 of 2019.

309
[113] {2014} e KLR.
[114] Act No. NO. 18 OF 2012.
[115] See SCA v Minister of Immigration [2002] F.C.A.F.C. 397 at [19].
[116] Daihatsu Australia Pty Ltd v Federal Commission of Australia (2001) 184 A.L.R. 576 (Finn J. at 587)
[117] R. v. Nor. Elec. Co., {1955} O.R. 431; R. v. Groves (1977), 17 O.R. (2d) 65.
[118] Ibid
[119] State of Orissa v Sudhansu Sekhar Misra MANU/SC/0047/1967
[120] Ambica Quarry Works v. State of Gujarat and Ors. MANU/SC/0049/1986
[121] Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59)

310
[122] In the High Court of Delhi at New Delhi February 26, 2007 W.P.(C).No.6254/2006, Prashant Vats Versus
University of Delhi & Anr. (Citing Lord Denning).
[123] 1977 (4) SA 298 (A) Trollip JA.
[124] Act No. 17 of 2012.
[125]{2017} e KLR
[126] 7th Edn. 1974 at page 98 by R H Graveson
[127] {2018} ZACC 33.
[128] {2018} ZACC 33.
[129] {2013} e KLR.

311
[130]Willis vs The United Kingdom No. 36042/97, ECHR 2002 – IV.
[131] {2017} e KLR.
[132] {1997} ZACC 12; 1998 (1) SA 300(CC); 1997 (11) BCLR 1489(CC) (Harksen) at para 48.
[133] {2014} e KLR.
[134] {1967} 2 All ER l00 at l04.
[135] {1976} 2 All ER 497
[136] Act No. 22 of 2019.
[137] Act No. NO. 18 OF 2012.
[138] {2014} e KLR.

312
[139] {1997} e KLR.
[140] (2015) eKLR
[141] (2014) eKLR
[142] {2002} 5 LRC 216 at p. 249.
[143] 2003 SCC 62.
[144] Civil Appeal No. 85 of 2006.
[145] Nairobi High Court Petition No. 65 of 2011 {2012} e KLR.

313
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL NO. 175 OF 2019
UMOJA RUBBER PRODUCTS LIMITED ………….………….. APPELLANT
VERSUS
KENYA POWER & LIGHTING COMPANY LIMITED ……. RESPONDENT
JUDGMENT
1. The appeal is a straight forward one. The appeal arose form the decision of
hon E Muchoki, in Mombasa SRMCC 1727 OF 2018 given on 6/8/2019. The
record of Appeal was filed on 21/9/2022 and I gave directions for hearing of
the appeal.
2. It is an appeal from the decision of the lower court declining jurisdiction. This
appeal is unique in that parties were busy arguing on repealed law and
convinced the court to strike out pleading on basis of repealed law.
3. Given the nature of the ruling, the court’s powers in respect hereto are
immense. Contrary to the normal situation where the court defers to the
finding of fact as held in the case of Selle & Another vs. Associated Motor
Boat Co. Ltd & Others [1968] EA 123, this court is dealing with the
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understanding on the points of law involved. In that case the court of Appeal
stated as doth: -
“This court is not bound necessarily to accept the findings of fact by the
court below. An appeal to this court ... is by way of retrial and the
principles upon which this court acts in such an appeal are well settled.
Briefly put they are that this court must reconsider the evidence,
evaluate it itself and draw its own conclusions though it should always
bear in mind that it has neither seen nor heard the witnesses and should
make due allowance in this respect..."
4. THE Court is not involved in the finding of fact as the suit was heard on a
preliminary objection. In hearing a preliminary objection, this court and the
court below have the same jurisdiction. They proceed on an understanding that
what is pleaded in the plaint is true. It is what the English common law used to
call a demurrer. The locus classicus case of Mukisa Biscuit Manufacturing Co.
Ltd V. West End Distributors Ltd [1969] E.A. 696, made this pertinent
observation. It said: -
"The first matter relates to the increasing practice o f raising points,
which should be argued in the normal manner, quite improperly by way
preliminary objection. The improper raising of points of preliminary
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315
objection does nothing but unnecessarily increases costs and, on
occasion, confuses issues. This improper practice should stop".
5. In a Tanzanian case of HAMMERS INCORPORATION CO. LTD VERSUS
THE BOARD OF TRUSTEES OF THE CASHEWNUT INDUSTRY
DEVELOPMENT TRUST FUND, where the Court of Appeal, (Rutakangwa,
N. P. Kimaro and S. S. Kadage JJA), sitting in Dar es salaam in their decision
given on 17/9/2015 regretted that the practice of raising preliminary objection
that was frowned upon by the court of appeal in kampala in the Mukisa biscuit
case(Supra) still persists. They stated as doth: -
“It was hoping against hope. We believe that had that Court survived to
this day it would have issued a sterner warning. This is because the
"improper practice" never stopped. Neither did it ebb away. On the
contrary, it is on the increase. This forced the Full Bench of this Court in
Karata Ernest & Others V The Attorney General, Civil Revision No. 10
of 2010 (unreported) to mildly urge all parties in judicial proceedings to
pay heed to what was aptly pronounced in the MUKISA BISCUIT case
(supra). The late call appears to be falling on deaf ears as this ruling will
demonstrate.”
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316
6. In the case of Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022]
eKLR, justice Kiarie Waweru Kiarie, summarized the preliminary objection
nicely as seen from two of the judges in Mukisa Biscuit Manufacturing Co.
Ltd(supra): -
“A preliminary objection must be on a point of law. The Court of
Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West
End Distributors Ltd [1969)EA 696 at page 700 paragraphs D-F Law JA
as he then was had this to say:
....A Preliminary Objection consists of a point of law which has been
pleaded, or which arises by clear implication out of pleadings and which
if argued as a preliminary point may dispose of the suit. Examples are an
objection to the Jurisdiction of the court or a plea of limitation, or a
submission that the parties are bound by the contract giving rise to the
suit to refer the dispute to arbitration.
At page701 paragraph B-C Sir Charles Newbold, P. added the following:
A Preliminary Objection is in the nature of what used to be a demurrer.
It raises a pure point of law which is usually on the assumption that all
the facts pleaded by the other side are correct. It cannot be raised if any
fact has to be ascertained or if what is sought is the exercise of judicial
discretion....”
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7. A Tanzania Court of Appeal sitting in Dar es Salaam, in Karata Ernest &
Others vs Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30
(29 December 2010),( Luanda, J.A. , Ramadhani, C.J. , Rutakangwa, JJA), put
the issue of preliminary objections in a more succinct manner: -
“At the outset we showed that it is trite law that a point of preliminary
objection cannot be raised if any fact has to be ascertained in the course
of deciding it. It only "consists o f a point of law which has been
pleaded, or which arises by dear implication out of the pleading obvious
examples include: objection to the jurisdiction of the court; a plea of
limitation; when the court has been wrongly moved either by non-
citation or wrong citation of the enabling provisions of the law; where an
appeal is lodged when there is no right of appeal; where an appeal is
instituted without a valid notice of appeal or without leave or a
certificate where one is statutorily required; where the appeal is
supported by a patently incurably defective copy of the decree appealed
from; etc. All these are clear pure points of law. All the same, where a
taken point of objection is premised on issues of mixed facts and law
that point does not deserve consideration at all as a preliminary point of
objection. It ought to be argued in the "normal manner" when
deliberating on the merits or otherwise of the concerned legal
proceedings.
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8. Justice prof J.B. Ojwang J (as he then was) succinctly addressed the issue of
preliminary objection in the case of Oraro vs Mbaja [2005] eKLR:
“I think the principle is abundantly clear. A preliminary objection as
correctly understood is now well settled. It is identified as, and declared
to be the point of law which must not be blurred with factual details
liable to be contested and in any event, to be proved through the
processes of evidence. Any assertion which claims to be a preliminary
objection, and yet it bears factual aspects calling for proof, or seeks to
adduce evidence for its authentication, is not, as a matter of legal
principle, a true preliminary objection which the court should allow to
proceed. I am in agreement that where a court needs to investigate facts,
a matter cannot be raised as a preliminary point.
9. It is therefore my view that a preliminary objection must be based on current
law, and be factual in its constitution. It cannot be based on disputed facts or
fats requiring further enquiry. In determining a preliminary objection therefore
only 3 documents are required in addition to the constitution. The impugned
law, the plaint and preliminary objection. If you have to refer to the defence,
then the preliminary objection is untenable
Page 6 of 32
319
Background
10. In this matter the defendant raised a preliminary objection dated 4/2/2019 in
the following term: -
a. The defendant shall raise a preliminary objection on the grounds that
pursuant to Article 159(2), sections 2,5,6,63, 108,110(1) of the energy act
2006, rule 2 and 4 of the energy complaint and dispute resolution rules
,2012, this honourable court lacks jurisdiction to entertain this matter
and the same should be summarily struck out with costs.
11. The court heard the preliminary objection through written submissions and
made its ruling on 6/8/2019. The court struck out the suit with costs.
Respondent’s submissions
12. The respondent relied on the decision of Samuel Kamau Macharia & another v
Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the supreme
court stated as doth: -
“(68) A Court’s jurisdiction flows from either the Constitution or
legislation or both. Thus, a Court of law can only exercise jurisdiction as
conferred by the constitution or other written law. It cannot arrogate to
itself jurisdiction exceeding that which is conferred upon it by law. We
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agree with counsel for the first and second respondents in his
submission that the issue as to whether a Court of law has jurisdiction to
entertain a matter before it, is not one of mere procedural technicality; it
goes to the very heart of the matter, for without jurisdiction, the Court
cannot entertain any proceedings. This Court dealt with the question of
jurisdiction extensively in, In the Matter of the Interim Independent
Electoral Commission (Applicant), Constitutional Application Number 2
of 2011. Where the Constitution exhaustively provides for the
jurisdiction of a Court of law, the Court must operate within the
constitutional limits. It cannot expand its jurisdiction through judicial
craft or innovation. Nor can Parliament confer jurisdiction upon a Court
of law beyond the scope defined by the Constitution. Where the
Constitution confers power upon Parliament to set the jurisdiction of a
Court of law or tribunal, the legislature would be within its authority to
prescribe the jurisdiction of such a court or tribunal by statute law.”
13. They relied on the decision of Speaker of the National Assembly v Karume
(Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling)
where the court of appeal stated as doth: -
“In our view, there is considerable merit in the submission that where
there is a clear procedure for the redress of any particular grievance
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321
prescribed by the Constitution or an Act of Parliament, that procedure
should be strictly followed. We observe without expressing a concluded
view that order 53 of the Civil Procedure Rules cannot oust clear
constitutional and statutory provisions.”
14. The respondent also relied on the decision of James Kibugi Githinji v Kenya
Power & Lighting Company Limited [2016] eKLR, where justice A.
MBOGHOLI MSAGHA, as then he was stated asdoth: -
“The dispute between the parties herein is related to charges. Going by
paragraph 6 of the plaint cited above, the offending action by the
defendant which the plaintiff has complained of was before the plaintiff
came to court. By then it had not been referred to the Commission. It
follows therefore that by the provisions of sub section (4) above, this
court is divested of jurisdiction which is clearly conferred upon the
Commission.”
15. The decision above is not in all fours with the case herein. There are no charges
nor are there issues of disconnection. The same applies to the case Royal
Reserve Management Company Ltd v Kenya Power & Lighting Company Ltd
[2017] Eklr, where the court stated as doth: -
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322
“19. Parliament in its wisdom set up the ERC to divest mainstream
courts of some off the cases it would hear relating to the provisions of
the Energy Act. The preliminary objection raised is grounded on the
provisions of section 61(3) of the Energy Act, 2006. The said section
provides as follows:-
“If any dispute arises as to –
(a) any charges; or
(b) The application of any deposit; or
(c) any illegal or improper use of electrical energy; or
(d) any alleged defects in any apparatus or protective devices; or
(e) any unsuitable apparatus or protective devices;
it shall be referred to the commission.” (emphasis added).
20. Section 61(4) thereof provides that:-
“Where any dispute referred to in sub section (3) has been referred to
the Commission, or has otherwise been taken to court before a notice of
disconnection has been given by the licencee, the licencee shall not
exercise any of the powers conferred by this section until final
determination of the dispute …” (emphasis added).
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323
21. Section 6 of the Energy Act provides that the powers of the
Commission include interalia, investigating complaints or disputes
between parties with grievances over any matter required under the
Energy Act.”
16. Finally in the case of Alice Mweru Ngai v Kenya Power & Lighting Co. Ltd
[2015] eKLR, the party therein was seeking compensation for lawful entry into
her land. The question was settlement of compensation.
17. In this appeal they have added the authority of Geoffrey Muthinja & another v
Samuel Muguna Henry & 1756 others [2015] eKLR, where the court stated as
doth: -
“We see this as the crux of the matter in this and similar cases. It is
imperative that where a dispute resolution mechanism exists outside
courts, the same be exhausted before the jurisdiction of the courts is
invoked. Courts ought to be the fora of last resort and not the first port
of call the moment a storm brews within churches, as is bound to
happen. The exhaustion doctrine is a sound one and serves the purpose
of ensuring that there is a postponement of judicial consideration of
matters to ensure that a party is first of all diligent in the protection of
his own interest within the mechanisms in place for resolution outside of
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courts. This accords with Article 159 of the Constitution which
commands Courts to encourage alternative means of dispute resolution.”
Appellant’s submissions
18. The appellant on the other hand refered to the decision of the Indian court in
his Highness The Gaekwar Sarkar of Baroda And Central India Railways
Versus Kachrabhai Kashturchand 1903) XXVI ILR to the effect that no statute
confers or clothes any body to act negligently.
19. They further refer to the authority of Modern Holdings (EA) Limited v Kenya
Ports Authority [2020] eKLR where the supreme court held as doth: -
“57. In concluding on this issue, it is trite that the question of
jurisdiction, can be raised at any stage of the proceedings but we have
shown that in the instant case, the Court of Appeal fell into error when
it closed its eyes to an express constitutional jurisdiction and relied on
another, conferred by a statute (as read with a general constitutional
provision) to dismiss the appeal before it. Neither Article 159(2)(c), on
which Section 62 is anchored nor Article 165(3)(a) should be read so as
to supersede the other and we have shown why. They are to be read
together and understood to confer concurrent jurisdiction. To that
extent, we agree with the appellant on the application of Article 165(3)(a)
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to this case while also agreeing with the respondent that Section 62 is
not unconstitutional.”
20. Threeways Shipping Services (K) Ltd v Kenya Ports Authority [2012] eKLR
that
“the law today is that the High Court has unlimited jurisdiction in all
causes save in matters reserved by the Constitution itself to the Supreme
Court, or to certain specialized courts. Consequently, the contention
that, in the suit herein, S.62 of the Kenya Ports Authority Act has ousted
the High Court’s jurisdiction is untenable”.
21. In the related appeal of Kenya Ports Authority v Threeways Shipping Services
(K) Limited [2019] eKLR, the court of appeal stated as doth: -
“31. The appellant submitted Section 62 of the Act ousts the jurisdiction
of the High Court. Section 62 of the Act should not be interpreted to
impede access to justice by denial of access to a court of law. Further,
the provisions of Section 62 of the Act is not aimed at shielding the
Authority from any and all liability particularly liability arising from
negligence. Section 62 should be interpreted and applied in a manner that
enhances efficiency in Port management and expeditious resolution of
disputes between the Authority and its customers. The Section is not a
carte blanche to escape liability from common law duty of care. In our
considered view, Section 62 (2) (a) and (b) of the KPA Act establishes an
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exception whereby a person is eligible to compensation if that person
was entitled to compensation otherwise than through the provisions of
the Act. The legal question is what forum would determine the loss or
damage suffered otherwise than through the provisions of the Kenya
Ports Authority Act? The answer to this question perforce incorporates
negligence as a cause of action that is not covered by Section 62 of
the KPA Act.
Convinced that Section 22 of the KPA Act impose liability for mis-
delivery of goods and satisfied that Section 62(2)(a) and (b) of the KPA
Act creates a negligence exception, we find the learned judge did not err
in his determination that the High Court had jurisdiction to entertain,
hear and determine the respondent’s claim which is founded on
negligence and want of care on the part of the appellant and or its
employees.
Analysis
22. Mmm
23. It is my understanding that jurisdiction is everything. The court is bound to
take jurisdiction where it has and down its tools where it does not have
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jurisdiction. My senior brother Nyarangi JA, as then he was, immortalised these
words, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
[1989] eKLR as follows: -
“Jurisdiction is everything. Without it, a court has no power to make one
more step. Where a court has no jurisdiction, there would be no basis
for a continuation of proceedings pending other evidence. A court of
law down tools in respect of the matter before it the moment it holds
the opinion that it is without jurisdiction. Before I part with this aspect
of the appeal, I refer to the following passage which will show that what
I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters
that are litigated before it or to take cognisance of matters presented in a
formal way for its decision. The limits of this authority are imposed by
the statute, charter, or commission under which the court is constituted,
and may be extended or restricted by the like means. If no restriction or
limit is imposed the jurisdiction is said to be unlimited. A limitation may
be either as to the kind and nature of the actions and matters of which
the particular court has cognisance, or as to the area over which the
jurisdiction shall extend, or it may partake of both these characteristics.
If the jurisdiction of an inferior court or tribunal (including an arbitrator)
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depends on the existence of a particular state of facts, the court or
tribunal must inquire into the existence of the facts in order to decide
whether it has jurisdiction; but, except where the court or tribunal has
been given power to determine conclusively whether the facts exist.
Where a court takes it upon itself to exercise a jurisdiction which it does
not possess, its decision amounts to nothing. Jurisdiction must be
acquired before judgement is given”
24. What was the claim before the court and what was the authority thereof. In the
plaint dated29/8/2018, the Appellant was seeking special damages of Ksh.
329,546. Loss adjustor’s fees of Ksh 31,320 totalling to 360,866. The claim had
been field through APA insurance for the right of subrogation.
25. The first tragedy was that the suit was struck on basis of repealed law. By dint
of section 224 of the Energy Act 2019, which came into force on 28/3/2019
repealed the Energy Act 2006. The sections referred to are all repealed. It is the
duty of the court to know the law. A suit cannot be struck down on basis of
repealed law.
26. The appellant Field a 9-paragraph memorandum of appeal. It is repetitive and
long winded. It should be concise. Under order 42 rule 1 of the Civil Procedure
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Rules, a memorandum of appeal should not be argumentative. The said
provision states as doth: -
“Form of appeal
(1) Every appeal to the High Court shall be in the form of a
memorandum of appeal signed in the same manner as a pleading.
(2) The memorandum of appeal shall set forth concisely and under
distinct heads the grounds of objection to the decree or order appealed
against, without any argument or narrative, and such grounds shall be
numbered consecutively.”
27. The court of Appeal had this to say in regard to rule 86 (which is pari mateira
with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge
Limo Langat [2020] eKLR: -
“We are yet again confronted with an appeal founded on a
memorandum of appeal that is drawn in total disregard of rule 86 of the
Court of Appeal Rules. That rule demands that a memorandum of
appeal must set forth concisely, without argument or narrative, the
grounds upon which a judgment is impugned. What we have before us
are some 18 grounds of appeal that lack focus and are repetitively
tedious. It is certainly not edifying for counsel to present two dozen
grounds of appeal, and end up arguing only two or three issues, on the
myth that he has condensed the grounds of appeal. This Court has
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repeatedly stated that counsel must take time to draw the memoranda of
appeal in strict compliance with the rules of the Court. (See Abdi Ali
Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri
Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court
lamented:
“We must reiterate that counsel must strive to make drafting of
grounds of appeal an art, not an exercise in verbosity, repetition,
or empty rhetoric…A surfeit of prolixious grounds of appeal do
not in anyway enhance the chances of success of an appeal. If
they achieve anything, it is only to obfuscate the real issues in
dispute, vex and irritate the opposite parties, waste valuable
judicial time, and increase costs.” The 18 grounds of appeal
presented by the appellant, Robinson Kiplagat Tuwei against the
judgment of the Environment and Land Court at Eldoret (Odeny,
J.) dated 19th September 2018 raise only two issues…”
28. Further in Kenya Ports Authority v Threeways Shipping Services (K)
Limited [2019] eKLR , the court of appeal observed that : -
“Our first observation is that the memorandum of appeal in this matter
sets out repetitive grounds of appeal. The singular issue in this appeal is
whether Section 62 of the Kenya Ports Authority Act ousts the
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jurisdiction of the High Court. We abhor repetitiveness of grounds of
appeal which tend to cloud the key issue in dispute for determination by
the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4
others, Civil Appeal No. 223 of 2013, this Court stated:
“The memorandum of appeal contains some thirty-two grounds
of appeal, too many by any measure and serving only to repeat
and obscure. We have said it before and will repeat that
memoranda of appeal need to be more carefully and efficiently
crafted by counsel. In this regard, precise, concise and brief is
wiser and better.”
29. The memorandum of appeal raises only one issue, that is,
“The court erred in finding that it had no jurisdiction to hear and
determine the case before him.”
30. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial
time. The question this court will have to deal with is whether the magistrate’s
court had jurisdiction to hear and determine this dispute. This is the only issue
addressed in submissions before the court below and before this court.
31. In the defence filed, the defendant denied negligence on their part and blamed
the plaintiff for the loss that occurred. What I understand is that there is
dispute whether the loss was caused by electric fault on part of the respondent
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or on part of the Appellant. The respondent also stated that they had no
contractual obligation to install protective devises. There is no agreement on
the actual facts forming the subject matter of the claim.
32. Further, judicial authority is vested in the court. Article 1 (3) of the constitution
states as doth: -
“(3). Sovereign power under this Constitution is delegated to the
following State organs, which shall perform their functions in
accordance with this Constitution
a. Parliament and the legislative assemblies in the county
governments;
b. the national executive and the executive structures in the county
governments; and
c. the Judiciary and independent tribunals.”
33. The judicature act and the magistrates court act gives the lower jurisdiction
over civil matters. However, there are claw backs in certain other acts. Section
9 of the Energy Act 2019 establishes the Energy and Petroleum Regulatory
Authority.
34. The long title of the repealed act, Energy Act ,2006 was “An Act of Parliament
to amend and consolidate the law relating to energy, to provide for the
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establishment, powers and functions of the Energy Regulatory Commission
and the Rural Electrification Authority, and for connected purposes.”
35. The long title of the Energy Act 2019 is “an Act of Parliament to consolidate
the laws relating to energy, to provide for National and County Government
functions in relation to energy, to provide for the establishment, powers and
functions of the energy sector entities; promotion of renewable energy;
exploration, recovery and commercial utilization of geothermal energy;
regulation of midstream and downstream petroleum and coal activities;
regulation, production, supply and use of electricity and other energy forms;
and for connected purposes.”
36. Dispute resolution related to negligence is not among the disputes the Energy
and Petroleum Regulatory Authority is vested with. The right to appear in court
is an inalienable right. It cannot be taken away by inference. Any act prohibiting
the court from doing a certain act shall say so expressly. Article 24(1) is more
explicit in that respect. It provides as doth: -
“1. A right or fundamental freedom in the Bill of Rights shall not be
limited except by law, and then only to the extent that the limitation is
reasonable and justifiable in an open and democratic society based on
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human dignity, equality and freedom, taking into account all relevant
factors, including
a. the nature of the right or fundamental freedom;
b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and
fundamental freedoms of others; and the relation between the limitation
and its purpose and whether there are less restrictive means to achieve
the purpose.”
37. From the nature of dispute, the parties involved in Energy and Petroleum
Regulatory Authority are the entities in that field. It is a highly specialized field.
Individual consumers are protected as a group. The Respondent, under the new
act is the user of energy. It is supplied with energy to connect its customers.
38. The act does not envisage, the end of the food chain, where small retailers are
to be before the tribunal. the tribunal has no capacity to handle disputes of the
nature that arise on a day to day.
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39. The courts including the court of appeal have dealt with the issue, even during
the regime the Electric Power Act, 1997 (No. 11 of 1997. This was repealed by
the energy act 2006. The later was repealed by the Energy act, 2019. The
energy and petroleum authority is not a tribunal envisaged under Article 1(3) of
the constitution. It has no judicial function.
40. It cannot purport to hear disputes on subrogation and the negligence dispute.
The act deals with the energy entities that have the means and wherewithal to
travel to Nairobi to deal with the upstream and middle stream energy issues
including down stream issues. Peripheral issues including positioning of poles,
removal of poles loses due to adulterated fuel, faulty power lines and such
minors issues shall remain within the province of this court and the magistrates
court.
41. In the case of Robai Kadili Agufa & another v Kenya Power & Lighting Co
Ltd [2015] eKLR, the court, E.C. MWITA stated as doth: -
“On the question of jurisdiction, counsel cited a decision of the Court of
Appeal in the case of Kenya Power and Lighting Company Ltd vs
Kiprino Kosgei Civil Appeal No.333 of 2005 (Eldoret), to show that the
court has the necessary jurisdiction to deal with the dispute before it. He
further submitted that the applicants are ready and willing to pay for
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electricity on pre-paid or postpaid basis during the pendency of this
appeal from the date of re-connection.
42. in James Mwaura Ndung’u v Kenya Power and Lighting Co. Ltd [2016] eKLR,
the court was of the view that the disputes related to certain disputes should be
referred to the commission (now authority) the court, justice Dr Sergon stated
as doth: -
“6. It was also argued that the Electric Power Act stood repealed as of
7th July 2007, therefore the suit which was dismissed was filed under the
regime of the Energy Act Cap 314 and not the repealed Electric Power
Act no. 11 of 1997. Section 61(3), states that when supply of electrical
energy may be refused or discontinued: if any dispute arises as to
a. Any charges or
b. The application of and deposit,
c. Any illegal improper use of electrical energy or
d. Any illegal defects in any apparatus or protective devices or
e. Any unsuitable apparatus or protective devices, it shall be
referred to the commission.
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43. That case turned on its own decision. The law which is binding on this court
and the court below is set of in Kenya Power and Lighting Company Ltd vs
joseph Kiprono Kosgei Civil Appeal No.333 of 2005.
44. The nature of the case filed by the plaintiff does not deal with metering,
disconnection or supply. It is a dispute in negligence. Whether the case has
merit by itself, it is the court below to decide
45. In Eldoret White Castle Motel Limited v Kenya Power And Lighting Company
Ltd [2010] eKLR, the court of appeal was of the view that matters outside the
metering are outside the remit of the tribunal. The court of Appeal stated as
follows: -
“The only issue before us is one of jurisdiction. Gacheche J. appears, in
our view, to have come to the conclusion that all disputes between the
respondent as supplier of electricity to various consumers, have first to
be handled by the Board. Whether or not Parliament by enacting section
87, above, intended to deny the High Court the original jurisdiction to
deal with even minor complaints on electricity bills by domestic
consumers, is to our minds, doubtful. This country has both large and
small consumers of electricity scattered all over the country. The Board
was based in Nairobi and had only 7 members. It is doubtful if the
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Board, as constituted would have the capacity to handle all disputes
arising from the supply of electricity by the respondent.
Besides, a careful reading of section 121 which sets out the functions of
the Electricity Regulatory Board, does suggest that section 87 has to be
read along with it in order to make out whether the disputes referred to
under section 87, above, include even those arising from complaints by
small domestic consumers.
Moreover, the wording of section 87, does suggest that it is only
concerned with the accuracy or otherwise of metres for ascertaining the
amount of electricity consumed by a given customer. The section, as
material, reads thus:
“87(1) If any dispute arises… as to whether any meter… is or as
to whether that value has been correctly registered in any case by
any metre
46. The reading of both the repealed act and the energy act 2019, I am certain that
the court below erred in disregarding binding court of appeal decisions. I also
noted that in spite of both parties referring to authorities, the court simply did
not refer to any in its decision.
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47. Before departing, I will need to deal with the reference to article 159(20 as a
constitution panacea to all infractions. The constitution is a living documents
moving with times with its articles working in harmony. It does not have one
section decapitating another. Therefore article 159 should be read with article
50 and 24 to produce a wholesome reading.
48. In the case of Katiba Institute & 3 others v Attorney General & 2 others [2018]
eKLR, justice EC Mwita, stated as doth: -
“48. It was stated in Ndyanabo v Attorney General of Tanzania [2001]
EA 495, that it is the duty of the person alleging constitutional invalidity
of a statute or statutory provision to prove that invalidity.
49. Fifth, the Court must also consider the cause- effect in interpreting
the Constitution. The purpose of enacting a statute and the effect of
implementing the statute will also determine the constitutionality of a
statute. In the case of R v Big M Drug Mart Ltd [1985]1 SCR 295,
the Supreme Court of Canada observed;
“Both purpose and effect are relevant in determining constitutionality;
either an unconstitutional purpose or an unconstitutional effect can
invalidate legislation. All legislation is animated by an object the
legislature intends to achieve. This object is realized through impact
produced by the operation and application of the legislation. Purpose

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and effect respectively, in the sense of the legislation’s object and its
ultimate impact, are clearly linked, if not indivisible. Intended and
achieved effects have been looked to for guidance in assessing the
legislation’s object and thus the validity.” (See Olum and another v
Attorney General [2002] 2 EA 508).
50. And In Ng Ka Ling & Another v The Director of
Immigration (1999) 1 HKLRD 315.the Court stated;
“It is generally accepted that in the interpretation of a Constitution such
as the Basic Law, a purposive approach is to be applied. The adoption of
a purposive approach is necessary because the Constitution states
general principles and expresses purposes without condescending to
particularity and definition of terms. Gaps and ambiguities are bound to
arise and, in resolving them, the courts are bound to give effect to the
principles and purposes declared in, and to be ascertained from, the
Constitution and relevant extrinsic materials. So, in ascertaining the true
meaning of the instrument, the courts must consider the purpose of the
instrument and its relevant provisions as well as the language of its text
in the light of the context, context being of particular importance in the
interpretation of a constitutional instrument.”
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51. Guided by the above principles, we now turn to consider whether
the impugned provisions go against Articles of the Constitution as
contended by the petitioners. In doing so the Court should bear in mind
the principle stated in US v Butler 297 US 1 [1936] that;
“When an Act of Congress is appropriately challenged in the courts as
not conforming to the constitutional mandate, the judicial branch of the
government has only one duty; to lay the article of the constitution
which is invoked besides the statute which is challenged and decide
whether the latter squares with the former. All the court does, or can do,
is to announce its considered judgment upon the question. The only
power it has, if such it may be called, is the power of judgment. This
court neither approves nor condemns any legislative policy. Its delicate
and difficult office is to ascertain and declare whether the legislation is in
accordance with, or in contravention of, the provisions of the
constitution; and, having done that, its duty ends.”
49. At the end result litigation and alternative dispute mechanism are given an
equal footing. They however, work at a different pedestal. Litigation is a
sacrosanct judicial duty that a party cannot easily be driven out of court without
an express provision stating so. To remove a legal dispute to a 7-man authority
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neither has capacity not the knowledge on negligence is to deny a party justice
and commit judicial atrocities.
50. It can be recalled that hon C.B. Madan, C.H.E Miller And K.D Potter, JJA in
D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina &
another[1980] eKLR had this to postulate: -
“Per Lord Justice Swinfen Eady in Moore v. Lawson and
Another (supra) at p. 419.
"It cannot be doubted that the court has an inherent jurisdiction to
dismiss an action which is an abuse of the process of the court. It is a
jurisdiction which ought to be very sparingly exercised. and only in
exceptional cases. I do not think its exercise would be justified merely
because the story told in the pleadings was highly improbable, and one
which it was difficult to believe could be proved". per Lord Herschell
in Lawrence v. Lord Norreys, 15. A.C. 210 at p. 219.”
51. The appeal has merit. The court had jurisdiction. The questions raised in
section 2,5,6, 63, 107,108 and 110 of the repealed act relate to disconnection
and use of illegal or substandard apparatus resulting in disconnection. Other
relate to metring. Therefore, the court erred in giving up jurisdiction it had.
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Whereas it feels nice to conclude matters, a court must take jurisdiction it had.
The court should also have noted that the defence accepted jurisdiction by
filing defence. The Respondent should have, if they thought that the matter
should be in a different fora, sought its referral before defending it.
52. Consequently, I find there is merit in this appeal and I allow the same.
Determination
53. THE upshot of the foregoing is that I make the following orders: -
a. I find there is merit in this appeal and I allow the same set aside ruling
and order striking out the suit in the lower court, that is Mombasa
SRMCC 1727 OF 2018 and reinstate the suit for hearing and final
disposal by a court other than hon Muchoki.
b. A copy of this judgment should be served upon the court.
c. The primary filed be fixed for hearing forthwith before the chief
magistrate’s court. Meanwhile the matter shall be fixed for mention on
21st July 2023 for directions before the Chief Magistrates Court.
d. The appellant shall have costs of Ksh 95,000/= for the Appeal which
shall be paid within 30 days, in default execution do issue.
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DELIVERED, DATED and SIGNED at MOMBASA on this 3rd day of July
2023. Judgment delivered through Microsoft Teams Online Platform.
……………………..
Kizito magare
JUDGE
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Republic v Vice Chancellor Moi University & 2 others Ex parte Benjamin J. Gikenyi Magare [2019] eKLR
345
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
JUDICIAL REVIEW NO. 1 OF 2018
IN THE MATTER OF AN APPLICATION BY DR. BENJAMIN J. GIKENYI MAGARE
AND
IN THE MATTER OF RULES AND REGULATION GOVERNING POST GRADUATE STUDIES OF MOI
UNIVERSITY
AND
IN THE MATTER OF THE UNIVERSITIES ACT NO.42 OF 2012
AND
IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION
AND
REPUBLIC.............................................................................APPLICANT
VERSUS
VICE CHANCELLOR MOI UNIVERSITY............1ST RESPONDENT
MOI UNIVERSITY....................................................2ND RESPONDENT
DEAN, SCHOOL OF MEDICINE
MOI UNIVERSITY.....................................................3RD RESPONDENT
AND
DR. BENJAMIN J. GIKENYI MAGARE……….. EX-PARTE APPLICANT
JUDGMENT
1. The applicant filed a notice of Motion dated 11th January, 2018 seeking for orders that:-
(a) The Honorable court be pleased to issue an order of certiorari to bring to the High court of Kenya, and quash the respondent’s

346
decision made on, and contained in a letter dated 19th December which had an effect of suspending the exparte applicant from
MMed general surgery programme with the 2nd Respondent.
(b) The Honorable court be pleased to issue an order of prohibition, prohibiting the Respondents jointly and severally, from
enforcing a suspension and any further disciplinary proceedings or any way barring the Ex parte Applicant from defending his
thesis, clinical work General Surgery Rotations or in any way from continuing with his research and academic work and eventual
graduation.
(c) The Honorable court be pleased to issue an order of mandamus compelling the Respondents to examine the Ex parte Applicant
and allow him to continue and complete his academic studies at Moi University School of Medicine for the course he is currently
undertaking, that is, Masters of Medicine, in General Surgery and if successful forward his name for graduation.
(d) Costs be borne by the Respondents.
2. The application is based on the grounds that the 2nd Respondent unilaterally suspended the Ex-parte Applicant from Moi
University, School of Medicine for a course leading to Masters of Medicine while remaining with two months of rotation, defence
of thesis and final examination without prior notification of any complaint against the Ex-parte Applicant.
3. The Respondents made a final determination that the ex-parte applicant is unfit to continue with his studies in MMed without
giving him prior notice or hearing him.
4. The ex-parte applicant worked and studied diligently for the last 4 years before proceeding on leave on 11/12/2017 which was
duly approved by the respondent on 29/12/2017.
5. That while on leave, and without any notice whatsoever, the 3rd Respondent, acting on behalf of the 1st and 2nd Respondents
caused the ex-parte applicant to be suspended by a letter dated 19/12/2017 but received on 9/1/2018.
6. The Respondent relied on a malicious complaint which has not been notified to the ex-parte applicant, he was denied an
opportunity to defend himself, he was denied a right to education without due process of the law, and that the charges were on basis
of gender and racial discrimination by a racial supremacist.
7. Lastly, that the ex-parte applicant has been subjected to unfair and inhuman treatment and has been denied his inherent right to
have dignity respected and protected.
8. In their replying affidavit, the Respondent stated that the decision to suspend the applicant pending the hearing and decision of the
post graduate studies committee was arrived at after receipt of a letter of complaint dated 15/10/2017 from Connie Keung, M.B
Assistant Professor of Surgery at Indiana University who raised serious issues about the professional competence and ethical
conduct of the applicant.
9. The allegations made were serious and in need of investigations to be undertaken and therefore the suspension was to allow for
investigation to be undertaken with regard to the complaints raised.
10. That the ex-parte applicant is reported to be diverting patients to his private clinic, he is on self-enrichment contrary to the rules
and regulations in place.
11. That there is a list of patients who have been reported to have been diverted by the ex-parte applicant to his private clinic and his
continued stay and/or visitation and/or undertaking rotations at Moi Teaching and Referral Hospital is to say the least prejudicial
and encouraging illegality contrary to the tenets of good practice.
12. That the acts complained about on the part of the Ex-parte applicant are unethical and unprofessional and contrary to the Moi
University Rules and Regulations governing Post Graduate Studies and the Respondent acted in accordance to the actions either
party may take in a situation where there are reasonable grounds to suspect that there are malpractices by post graduate students.

347
13. Lastly, that the Honorable court ought to allow the disciplinary proceedings to be carried out and be completed as the
constitutional rights of the patients need to be considered to the highest standards or health care in public institutions as the 2nd
Respondent is a public institution.
ISSUES FOR DETERMINATION
Having gone through the ex-parte applicant’s notice of motion, the response by the respondent and the parties’ respective
submissions supported by authorities, I find the main issue for determination in this matter to be whether the ex-parte applicant is,
on the material placed before this court, entitled to the Judicial Review orders of certiorari, prohibition and mandamus sought.
The crucial questions to be considered in this case revolves around the disciplinary procedure undertaken by the respondent, Moi
University against the ex-parte applicant student Dr. Benjamin J. Gikenyi.
Certain matters are not in dispute including whether the applicant was a bonafide student of the Respondent, admitted in the MMed
Class. It is also not in dispute that the respondent had the power under the Rules and Regulations governing the organization
concerning conduct and discipline of students, to take disciplinary action against delinquent students, which issue has not been
impugned by the ex-parte applicant student.
The Respondent University has elaborate Rules and Regulations and procedures which the ex-parte applicant subscribed to on
admission to the University and this is not in dispute either.
The main question is whether the respondent in the undertaken disciplinary procedure of the ex-parte applicant, subjected him to
due process and or whether it complied with the stipulated disciplinary procedures in the process of arriving at the decision of
suspending the ex-parte applicant who was a 4th year Masters of Medicine- general Surgery student.
It is not within the jurisdiction of this court to determine whether or not there was sufficient evidence adduced by the respondent to
warrant the suspension of the ex-parte applicant from the University.
In other words, the court is alive to the well-established principle of law that in the exercise of Judicial Review jurisdiction, it is
exercising neither civil or criminal jurisdiction and therefore it is not acting as an appellate court.
That being the case, the court is prohibited from substituting the respondent’s decision with its own decision. What is expected of
this court is to satisfy itself that the disciplinary procedures adopted by the respondent met the threshold of what constitutes a fair
process.
The applicable principles which are now settled were laid down by Nyaranga JA (as he then was) in Nyongesa & others v Egerton
University College (1990) KLR 692 where the learned Judge of Appeal pronounced himself as follows:
“Having this stated, as I think to be desirable, the broad nature of the important issues and proposed procedure, I shall now state
that courts are very loath to interfere with decisions of domestic bodies and tribunals including college bodies.
Courts in Kenya have no desire to run universities or indeed any other bodies. However, courts will interfere to quash decisions
of any bodies when the courts are moved to do so where it is manifest that decisions have been made without fairly and justify
hearing the person concerned or the other side. What constitutes a fair process is dependent on the facts and circumstances of
each case. Implicit in the concept of fairness is flexibility”.
A University Disciplinary committee dealing with student’s disciplinary matters must have the necessary flexibility, having
regard to the college environment and the right to education, to deal with such disciplinary cases, provided that the process is
fair, that the students is given a hearing and an opportunity to defend himself (see Pearlberg vs Varty Inspector of Taxes (1972)
1 WLR 534; KNEC vs Geoffrey Njoroge & others Nairobi CA 266/1996 (UR); Commissioner General, Kenya Revenue authority
vs Vano Onema Omwaki t/a Marenga Filing Station Kisumu CA 45/2000, unreported.”
The parameters for judicial review remedies were set out in the Pastoli v Kabale District Local Government Council and others

348
[2008] 2 EA 300 Court of Appeal case citing with approval Council of Civil Unions v Minister for the Civil Service [1985] AC 1
and Re Application by Bukoba Gymkhana Club (1963) EA 478 at 479 that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is
tainted with illegality, irrationality and procedural impropriety….illegality is when the decision – making authority commits an
error of law in the process of taking or making the act, the subject of the complaint acting without jurisdiction or ultra vires, or
contrary to the provisions of a law or its principles are instances of illegality…..irrationality is when there is such gross
unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before
it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards….Procedural
impropriety is when there is a failure to act fairly on the part of the decision – making authority in the process of taking a
decision. The unfairness may be its none observance of the Rules of natural justice or to act with procedural fairness towards
one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a
statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”
In disciplinary matters, compliance with procedures is critical because due process has evolved over time as a way of ensuring that
accusatory proceedings produce accurate and truthful results. Due process has become one of the most vital components of a free,
decent, and fair society. Due process ensures the best chance of learning the truth during the trial process since the decision maker
is given the best chance of getting to the bottom of sophisticated factual matters.
The jurisprudence of due process is heavily concerned with identifying specific procedures that are effective in discovery of the
truth. The case of Republic v Institute of certified Public Accountants of Kenya (ICPAK) ex-parte Vipichandria Bhatt t/a JV
Bhatt & Company Nairobi HCC Miscellaneous Application 285/2006 (UR) settled the issue of powers and the procedure to be
adopted by disciplinary bodies thus:-
“…..An administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law….It is
axiomatic that that statutory power can only be exercised validly if they are exercised reasonably. No statute can ever allow
anyone on whom it confers a power to do so exercise such power arbitrarily and capriciously or in bad faith.”
On the consequences of failure to adhere to the procedural rules, the case of Resley vs The City Council of Nairobi (2006) 2 EA 311
is instructive interalia:
“In this case there is an apparent disregard of statutory provisions….and it is essential that bureaucracy should be kept in its
place….”
In adopting the decision in Pastoli vs Kabale (supra), the following paragraph is cited by Odunga J in Republic vs UON Eparte
Michael Jacobs Odhiambo.
“In my view where the action under challenge has the potential of restricting human rights and fundamental freedoms under the
Bill of rights, any procedural rule enacted with a view to ensuring the due process is adhered to before any adverse action is
taken ought to be considered seriously since under Article 19 of the Constitution, the Bill of Rights is the framework for social,
economic and cultural policies and the purpose of recognizing and protecting human rights and fundamental freedoms is to
preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all
human beings. Our Constitution appreciates that the rights and fundamental freedoms in the bill of Rights belong to each
individual and are not granted by the State. This position was restated with respect to the rules of natural justice by the Uganda
Supreme Court in The Management Committee of Makondo primary school and Another vs Uganda National Examination
Board, HC Civil Misc Application No. 18 of 2010, as follows:
“It is cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of
humankind. It was ordained by the divine hand of the Lord God hence the rule enjoy superiority over all laws made by
humankind and that any law that contravenes or offends against any of the rules of Natural justice, is null and void and of no
effect. The rule as captured in the Latin Phrase ‘audi alteram partem’ literally translates into ‘hear the parties in turn’, and
has been appropriately paraphrased as ‘do not condemn anyone unheard’. This means a person against whom there is a
complaint must be given a just and fair hearing.”

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Nyamu, J in Kenya Bus Service Ltd & 2 others vs Attorney General [2005] 1 KLR 787, eloquently asserted as follows:-
“ The only difference between rights and the restrictions are that the restrictions can be challenged on the grounds of
reasonableness, democratic practice, proportionality and the society’s values and morals including economic and social
conditions etc whereas rights are to the spiritual, God given, and inalienable and to the non-believers changeless and the eighth
wonder of the world. The exparte order could not have been spared in any event for the reason for all by blocking the 221
persons while the rivers of Constitutional Justice or any justice at all should flow pure for all to drink from them”.
The applicant is entitled to a right to education which must be promoted and protected. However, this is not to say that the right is
absolute. In the Oluoch Dan Owino v Kenyatta University HC Petition 54/2014, case the court stated:-
“As I understand it, the right to education does not denote the right to undergo a course of education in a particular institution
on one’s terms. It is my view that an educational institution has the right to set certain rules and regulations, and those who
wish to study in that institution must comply with such rules. One enters an educational institution voluntarily, well aware of its
rules and regulations, and in doing so commits himself or herself to abide by its rules. Unless such rules are demonstrated to be
unreasonable and unconstitutional, to hold otherwise would be to invite chaos in education institutions”.
The right to education is enshrined in Article 19 of the Constitution which is embedded in the Chapter on the Bill of Rights. It
therefore follows that the procedure to be adopted in any disciplinary proceedings that would adversely affect that right to
education, like all other rights guaranteed by the Constitution must adhere to the procedural underpinnings grounded in Article 47 of
the Constitution, Article 50 of the Constitution on the right to fair administrative action and the right to a fair hearing so as to
preserve the dignity of individuals and to promote social justice.
The courts should be cautious in interfering with internal mechanisms for administrative bodies in the exercise of their mandate
under the established rules and statutes, nonetheless courts would ordinary interfere to give prudence to the procedure adopted and
put on course a seemingly flawed disciplinary process in order to prevent the blatant violation of the respondent’s own established
disciplinary processes.
It is my opinion that talking of administrative action has serious constitutional imperatives as fair administrative action is now a
fundamental human right enshrined in Article 47 of the Constitution as implemented by the Fair Administrative Action No. 4 of
2015 and therefore enforceable as such right under Articles 22 and 23 of the Constitution.
In Geothermal Development Ltd v Attorney General & 3 others (2013) eKLR the court held inter alia:
“As a component of the due process, it is important that a party has reasonable opportunity to know the basis of allegations
against it.
Elementary justice and the law demands that a person be given full information on the case against him and given reasonable
opportunity to present a response. This right is not limited only in cases of a hearing as in the case of a court or before a
tribunal, but when taking administrative actions as well. (see Donoghere vs South Eastern Health Board [2005] 4 IR
217….Article 47 of the Constitution enshrines the right of every person to fair administrative action….Fair and reasonable
administrative action demands that the tax payer would be given a clear warning on the probable consequences of non-
compliance with a decision before the same is taken …. In my jurisdiction of the world. It has long been established that notice
is a matter of procedural fairness and an important component of natural justice. As such, information provided in relation to
administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any
forthcoming inquiry or action will be ….”
The emerging facts in this matter is that the applicant was suspended pending the hearing and decision of the Post Graduate Studies
Committee, after a complaint was raised against him via a letter dated 15th October, 2017 from Connie Keung, M.B, Assistant
Professor of Surgery of Indiana university who alleged that the applicants knowledge and skills are below training level and
programme expection; he had failed to organize adequate coverage and was absent from duty on 7th October, 2017 and he routinely
referred hospital patients to his own private practice, contrary to proper ethical practice expected of MMED students and a
registered Medical Practitioner. Of concern to this court is that while suspension is a negative action against the applicant, of which
affects his study plan and schedule, before the decision to suspend him was arrived at he was not given a hearing, whether orally or

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in writing. It was unfair and unjust for the respondent to just receive a complaint against the applicant and without giving him any
form of hearing acted on it in a manner which adversely affected his MMed studies. At that level, before suspension, he deserved a
hearing before proper deliberation of his case by the full Graduate Studies Committee, at the second level. The respondent’s
decision was therefore irrational and unreasonable; it is in clear violation of Article 47 of the Constitution on the right to a fair
administrative action. I accordingly find the application merited and is allowed as prayed. However, I wish make it vivid that the
Respondent is free to follow due legal process on the issue at hand.
S. M GITHINJI
JUDGE
DATED, SIGNED and DELIVERED at ELDORET this 27th day of March 2019
In the presence of:
Ms Wahome for the Respondent
Mr. Mwelem – Court assistant
And in the absence of other parties

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Republic v Chief Licencing Officer & another Ex-Parte Tom Mboya Onyango [2017] eKLR
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REPUBLIC OF KENYA
JUDICIAL REVIEW MISCELLEANEOUS APPLICATION NO. 524 OF 2017
REPUBLIC..................................................................APPLICANT
VERSUS
THE CHIEF LICENCING OFFICER.................1ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE...2ND RESPONDENT
EX PARTE: TOM MBOYA ONYANGO
JUDGEMENT
Introduction
1. In his Notice of Motion dated 28th August, 2017 filed in this Court on 29th August, 2017, the ex parte
applicant herein, Tom Mboya Onyango, seeks the following orders:
1. Prohibition to prohibit the 1st Respondent from revoking the Applicant’s Firearms Certificate;
2. Mandamus to compel the 1st Respondent to renew the Applicant’s Certificate;
3. Prohibition prohibiting the 1st Respondent either acting by himself or through his agents and
or servants from recalling the Applicant’s firearm;
4. Prohibition to prohibit the 2nd Respondent either acting by himself or through his agents and
or servants from arresting the Applicant for being in possession of firearm without a Firearms
Certificate.
5. The costs of this application be in the cause.
Ex Parte Applicant’s Case
2. According to the ex parte applicant, he is a Firearms Certificate and firearm holder having been issued
with the Firearms Certificate Number 6543 on 24th August, 2012. Upon issuance of the said Certificate,
the applicant deposed that he proceeded to purchase a firearm make one Taurus 9mm Pistol S/No. TGX
01269 and ammunitions 50 rounds of 9mm on 18th November, 213.
3. It was averred by the applicant that he has diligently renewed the said Certificate throughout the years

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since issuance and has always complied with all the conditions required under the Firearms Act Cap
114 of the Laws of Kenya (hereinafter referred to as “the Act”) without fail.
4. However on or about 14th November, 2014, the 1st Respondent revoked the applicant’s firearms
certificate and instructed him to surrender his said firearm and ammunitions to the Central Firearms
Bureau on the grounds that the applicant was prohibited under section 5(7) of the Act to possess a
firearm. However the said revocation was later cancelled and the certificate reinstated and the applicant
has continued to hold the same to date. It was the applicant’s case that he has not done act or
committed any omission that contravenes the law, nor has he been declared unfit to be entrusted with
the firearm nor done any act that would cause him to be repossessed of the firearm and or cause the
Certificate not to be renewed.
5. The applicant averred that on 23rd August, 2017 he attended the 1st Respondent’s offices and
presented the Certificate was due to expire for renewal. However upon presentation thereof the 1st
Respondent verbally directed him to leave it with him and declined to renew the same on grounds that
the same was not properly issued.
6. According to the applicant he was not notified in writing as required under section 5 of the Act and
neither was he accorded any hearing nor explained to the reasons for refusal to renew the said
certificate.
7. According to the applicant, he has been active in providing the police with valuable information which
has helped the police to act on issues affecting residents of Kibiko within Ngong Township and
elsewhere in particular the series of rampant attacks that have been witnessed in the past in the area.
The applicant revealed that it was as a result of the said attacks at his residence and on his person that
he was issued with the firearm certificate. He disclosed that his residence has been attacked at least
three times in the past and he has always reported the same to the police and the instances recorded in
the occurrence book.
8. It was therefore the applicant’s case that it is imperative that his certificate be renewed to enable him
secure himself and his family.
9. According to the applicant since 23rd August, 2017 when he presented his said certificate, the 1st
Respondent has failed to communicate with him in any way about the refusal to renew the same an
action which according to him is unjustified as the same was renewed under the 1st Respondent’s
tenure in August, 2016. It was therefore his case that the said action is unreasonable and will deprive
him of his right to protection of property, family and self.
10. Apart from reiterating the factual averments in the verifying affidavit and inappropriately introducing
other factual matters in the submissions, the ex parte applicant submitted that by not serving him with a
notice contemplated in section 5 of the Act, the 1st Respondent acted maliciously in retaining the
applicant’s certificate.
11. It was submitted that the 1st Respondent did not follow the procedure in revoking the certificate as
section 5(7) of the Act is clear on the reasons for revocation, and since the Certificate had already
expired, the 1st Respondent should be compelled to renew and reinstate the Applicant’s Certificate, and
specially with the new version certificates currently in use.
12. It was further submitted that the decision to revoke the applicant’s Firearms Certificate was similarly
irrational, unreasonable and without or in excess of jurisdiction.

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Respondent’s Case
13. The application as opposed by the Respondents.
14. According to the Respondents, the applicant herein claims to be a holder of a firearm certificate
No.6543 allegedly issued on the 24th August 2012 at the Central Firearms Bureau by the then Chief
Licensing Officer. On the basis of the certificate, the applicant purchased the following firearms; Taurus
pistol S/NP.TGX 01269 with 50 rounds of ammunition, Ceska Pistol S/No. a350666 with 50 rounds of
ammunition 9mm ammunition, Shotgun S/No. 14Y10104 with 50 rounds of ammunition of 12 gauge and
ceska pistol S/No. B395666 with 50 rounds of 6.35 ammunition.
15. It was averred that vide a letter dated 14th November, 2014, the Applicant’s Firearm Certificate was
revoked by the then Chief Licensing Officer with the further instruction that he surrenders to the Central
Firearms Bureau, the Taurus 9mm Pistol S/NO. TGX 01269 he was in possession of together with any
ammunition thereof. However, the Applicant, on 25th November 2014, appealed to the Chief Licensing
Officer seeking the reinstatement of his Firearm Certificate Number 6543 on grounds that there were
various attacks on his residence due to heightened insecurity in the area and his subsequent
involvement in community policing endeavours. Accordingly, the Chief Licensing officer cancelled the
revocation and renewed the firearm certificate stating clearly that the right process was not followed but
due to the applicant’s contribution in community policing and good work in support of the Police Service
the certificate was reinstated.
16. It was averred that the applicant continued to use the firearm certificate till 23rd August 2017, when
the Firearms Licensing Board was scrutinizing all the firearms certificates due for renewal with an aim of
replacing old certificates with new versions, discovered serious anomalies with the applicant’s
certificate. Accordingly, the Board deferred the renewal of the applicant’s certificate pending the
verification of his certificate and requested him to surrender the four firearms and ammunition to the
Board pending the said verification.
17. It was averred that based on the anomalies of the applicant’s certificate, the Board sought to verify
through the Government Printer which is the body that issues firearms certificates and the Government
Printer wrote back to the Board on 30th August 2017 confirming that the applicant’s firearm certificate
was not genuine and did not originate from their offices. Based on the letter form the Government Printer
confirming that applicant’s firearm certificate was not genuine, the Board deliberated on the matter and
revoked the applicant’s certificate on 8th September 2017.
18. It was averred that pursuant to the salient provisions of section 5(8) of the Firearms Act Cap 114,
Laws of Kenya, the Applicant was notified in writing of the revocation of his Firearm Certificate Number
6543 and asked to surrender all firearms and ammunition in his possession to the Officer Commanding
Ngong Police Station or the Firearms Licensing Board Secretariat.
19. On the allegation that on 23rd August 2017 the applicant attended the Chief Licensing Officer’s office
and presented the certificate for renewal and was instructed to surrender the certificate on grounds of
forgery, the 1st Respondent denied the same and contended that contrary to the Applicants allegations,
the Office of the Chief Licensing Officer ceased to exist after the establishment of the Firearms Licensing
Board which was established under section 3 of the Firearms Act through the Security Laws
Amendment Act 2014 and is mandated to issue, cancel, terminate or vary any license or permit issued
under the Act and register civilian firearm holders among other functions.
20. It was the Respondents’ position that there is no record of the applicant’s application for the firearm

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certificate as required under section 5(1) of the Firearms Act and that the applicant does not have a
grant letter issued by the then Chief Licensing Officer as proof of the approval for the application of a
firearm.
21. It was the Respondents’ contention that the right to own a firearm is not absolute and is thus subject
to the provisions of the Firearms Act Cap 114, Laws of Kenya which regulates the licensing and
controlling the manufacture, importation, exportation, transportation, sale, repair, storage, possession
and use of firearms, ammunition, air guns and destructive devices and for connected purposes. To the
Respondents, the refusal to renew the Applicant’s Firearms Certificate and its subsequent issuance of
the instruction to surrender the firearm and any ammunition thereof in his possession, the 1st
Respondent remained faithful to its powers as set out within the provisions of section 5 subsection 7 of
the Firearms Act Cap 114, Laws of Kenya.
22. It was the Respondents’ case that in cancelling the revocation and granting the renewal of the
Firearm Certificate, the Chief Licensing Officer clearly stated that the right process of acquiring the same
was not adhered to.
23. It was further contended that the applicant moved this Court prematurely before filing an appeal
against the revocation of the firearm certificate to the Cabinet Secretary as provided for under section 23
of the Firearms Act. Accordingly, the Respondents contended that the instant application is made in bad
faith, has no merit and is only calculated to discredit the credibility of the Respondents’ mandate and
function.
24. It was submitted on behalf of the Respondents that application herein is not within the purview of
judicial review proceedings as it seeks to challenge the scope of judicial review , the basic tenets of
which has been held in several precedents to include illegality, irrationality and procedural impropriety all
of which the application before this Court fails to clearly depict.
25. To the Respondents, Judicial review proceedings do not lay focus on the merits of the impugned
decision but rather on the process followed in reaching the decision itself and in that regard reliance was
placed on Republic vs. Director of Public Prosecutions & 2 Others, Exparte Francis Njakwe Maina
& Another [2015] eKLR, Republic vs. Attorney General & 4 others ex-parte Diamond Hashim Lalji
and Ahmed Hasham Lalji [2014] eKLR, Council of Civil Service Union vs. Minister for the Civil
Service {1985} AC at P. 410 and Hangsraz Mahatma Ganahi Institute & 2 Others [2008] MR 127:
26. According to the Respondents, granting of the orders as sought in the application would be
erroneous as such is limited to instances where there is an apparent error or omission that is self-evident
and thus not premised on an elaborate argument for its establishment. In this case, the impugned
decision by the 1st Respondent does not exhibit any blatant disregard or misinterpretation of the law that
would require the indulgence of the courts intervention vide the application and prayers sought herein
and in that respect the Respondents relied on Judicial Review Law, Procedure and Practice, 2009, at
page 128 by Peter Kaluma and Muyodi vs. Industrial & Commercial Development Corporation &
Another [2006]1 EA 243.
27. It was submitted that the application herein is an appeal disguised as a Judicial Review Application
and should therefore not be entertained since there is a clear distinction between an appeal and judicial
review proceedings. In Judicial review the court is only concerned with the fairness of the process under
which the impugned decision or action was reached. Judicial review does not allow the court of review to
examine the evidence with a view of forming its own view about the substantial merits of the case as is
the case in appeals and reliance was placed on The Code of Civil Procedure, Volume III Pages

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3652-3653 by Sir Dinshaw Fardunji Mulla.
28. It was submitted that the Ex-parte Applicant has failed to exhaust the available Dispute Resolution
Mechanisms in alternative to Judicial Review. To the Respondent, under the 2010 Constitution
dispensation and upon the enactment of the Fair Administrative Action Act No. 4 of 2015 in
implementation of article 47 of the Constitution, the Judicial Review court is no longer the first place to
seek refuge whenever a party is aggrieved by an administrative body. In particular, the Respondents
referred to section 9 subsections (2), (3) and (4) of the said Act. It was the Respondents’ case that this
application is therefore not lodged in the correct forum because the Ex-parte Applicant ought to exhaust
the alternative dispute resolution mechanisms established under sections 23 of the Firearms Act.
29. In this regard the Respondents relied on Republic vs. County Government of Nairobi & another
ex-parte Isfandiar Sohaili [2017] eKLR.
30. It was the Respondents’ case that the orders sought in the Notice cannot be issued as pleaded
since an order of prohibition is only issued to stop what has not happened. In the present case the
revocation has already taken place. They referred to Mureithi & 2 Others (For Mbari Ya Murathimi
Clan) vs. Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005, Kenya National
Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No.
266 of 1996 eKLR, Republic vs. University of Nairobi Civil Application No. Nai. 73 of 2001 [2002] 2
EA 572 and Republic vs. Kenya Revenue Authority & another Ex-Parte Bear Africa (K) Limited
where Majanja J. quoting with approval the decision of Githua J in Republic vs. Commissioner of
Customs Services ex-parte Africa K-Link International Limited Nairobi HC Misc. JR No. 157 of
2012 [2012] eKLR.
31. According to the Respondents since the applicant’s firearm Certificate is expired by operation of
time, even if the Court is minded to grant the orders it will be granting an expired certificate to the
applicant hence this application has been overtaken by events.
32. In the result, it was submitted that the application herein does not meet the basic tenets of Judicial
Review and should be dismissed in its entirety with costs to the respondent.
Determinations
33. I have considered the issues raised herein.
34. Section 5(7) of the Firearms Act, Cap 114 of the Laws of Kenya provides:
(7) A firearm certificate may be revoked by a licensing officer if—
(a) the licensing officer is satisfied that the holder is prohibited by or under this Act from
possessing a firearm to which the firearm certificate relates, or is of intemperate habits or
unsound mind, or is otherwise unfitted to be entrusted with a firearm; or
(b) the holder fails to comply with a notice under subsection (5) requiring him to deliver up the
firearm certificate. [Underlining mine].
35. This Court has had occasion to deal with the word “satisfied” in Republic vs Kenya Forest Service
Ex-parte Clement Kariuki & 2 Others [2013] EKLR, where the Court held that the catchword in the
above section is that the Board must be “satisfied”. For the Board to be said to have been satisfied, it is

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my view that it must consider all the relevant factors.”
36. The word “consider” was defined in Onyango Oloo vs. Attorney General [1986-1989] EA 456 in
which the Court of Appeal expressed itself as follows:
“To consider” is to look at attentively or carefully, to think or deliberate on, to take into account,
to attend to, to regard as, to think, hold the opinion...“Consider” implies looking at the whole
matter before reaching a conclusion...It is improper and not fair that an executive authority who
is by law required to consider, to think of all the events before making a decision which
immediately results in substantial loss of liberty leaves the appellant and others guessing about
what matters could have persuaded him to decide in the manner he decided.”
37. As was held by Warsame, J (as he then was) in Re: Kisumu Muslim Association Kisumu
HCMISC. Application No. 280 of 2003, that where an officer is exercising statutory power he must
direct himself properly in law and procedure and must consider all matters which are relevant and avoid
extraneous matters. The learned Judge further held that the High Court has powers to keep the
administrative excess on check and supervise public bodies through the control and restrain abuse of
powers. Concerning irrelevant considerations, where a body takes account of irrelevant considerations,
any decision arrived at becomes unlawful. Unlawful behaviour might be constituted by (i) an outright
refusal to consider the relevant matter; (ii) a misdirection on a point of law; (iii) taking into account some
wholly irrelevant or extraneous consideration; and (iv) wholly omitting to take into account a relevant
consideration. See Padfield vs. Minister of Agriculture and Fisheries [1968] HL.
38. In Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090, the Court expressed itself
as follows:
“The Minister for agriculture has the duty to ensure that all arable land is properly utilised for the
public benefit in the production of foodstuffs to feed the population and earn foreign exchange
required for the development of the country. Section 187 of the Agriculture Act is designed to
empower the Minister to take steps for preventing or delaying the deterioration of a holding due
to mismanagement. Such steps are in the words of section 75 of the Constitution “in the
interests of the development or utilisation of any property in such manner as to promote the
public benefit. The necessity of such provision is such as to afford reasonable justification for
the causing of any hardship that may result to any person having an interest in or right over the
property…The court can therefore interfere with the decision of a Minister if the Minister does not
act in good faith, or if he acts on extraneous considerations which ought not to influence him, or
if he plainly misdirects himself in fact or in law…The management order is based on
mismanagement and correctly follows the wording of section 187(1) of the Agriculture Act. In
order of sale, however, the reason given is inability to develop the holding. It is an extraneous
consideration, which ought not to have influenced the Minister, and it amounts to a misdirection
in law. The facts, which induced the Minister to find that the holding was mismanaged and that
the applicants were unable to develop it, were disclosed neither to the applicants nor later to the
court. In the ordinary way and particularly in cases, which affect life, liberty or property, a
Minister should give reasons and if he gives none the court may infer that he had no good
reasons. The Minister has given no reasons while the applicants have shown that there was no
inadequate management or supervision and that, in the circumstances prevailing in Nyanza, the
holding is fully developed. The conclusion is therefore that the Minister misdirected himself on
the facts…The provisions of section 187 of the Act, being aimed at depriving the owner of his
holding (even for good reason), should be construed strictly. Orders made must comply with the
Act, and if they do not so comply in important aspects, they will be null and void…The courts

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would be no rubber stamp of the executive and if Parliament gives great powers to the Minister,
the courts must allow them to him: but, at the same time, they must be vigilant to see that he
exercises them in accordance with the law. He must act within his lawful authority…An act,
whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the
courts on certain grounds. The Minister must act in good faith; extraneous considerations ought
not influence him; and he must not direct himself in fact or law…It is clear that both sections
187(1) and (4) require the Minister to be “satisfied”. It gives him a discretion; and it is his
discretion to act upon the facts before him, and not for the court to sit on appeal so as to impose
its judgement on the facts upon the Minister. There is no doubt that the Minister acted in good
faith. But the Minister had to have certain facts before him. The farms had to be managed and
supervised; that had to be done so inadequately that the result was necessity to prevent or delay
deterioration. The Minister did not give evidence but he swore an affidavit. From it the minister
was concerned with development and referred to his national concern relating to sugar
production. In his order for sale he said that the owners were not able to develop the farm. The
true test is whether the farm should be leased or sold to save it from deteriorating; the purpose
of showing the cause is to allow the Minister to decide whether, in view of the deterioration, the
farm had better be leased or sold. In either case, the owners are not going to be considered able
to develop the farm or to continue as they have been. They are indeed, nolonger in occupation. It
is clear that the reasons given in the order for sale illustrate that the Minister had asked himself
the wrong question; it being a question not enjoined upon him by the Act. He had therefore
misdirected himself in law and that order is null and void.”
39. In Republic vs. Institute of Certified Public Accountants of Kenya Ex Parte Vipichandra Bhatt
T/A J V Bhatt & Company Nairobi HCMA No. 285 of 2006, the Court held:
“If a tribunal whose jurisdiction was limited by statute or subsidiary legislation mistook the law
applicable to the facts as it had found then it must have asked itself the wrong question, i.e. one
into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported
determination not being a ‘determination’ within the meaning of empowering legislation was
accordingly a nullity…Error of law by a public body is a good ground for judicial review. An
administrative or executive authority entrusted with the exercise of a discretion must direct itself
properly in law…It is axiomatic that that statutory power can only be exercised validly if they are
exercised reasonably. No statute can ever allow anyone on whom it confers a power to exercise
such power arbitrarily and capriciously or in bad faith.”
40. In this case the applicant’s case was that it had complied with all the conditions necessary for one to
have the Firearms Certificate and that no case had arisen that would entitle the 1st Respondent to revoke
his said Certificate. According to him, it was only when he went to renew his said Certificate that the
same was impounded without him having been notified of the same.
41. Article 47(1) and (2) of the Constitution provides as follows:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by
administrative action, the person has the right to be given written reasons for the action.
42. What the Constitution requires in my view is the notification of the reasons for the withdrawal of the
Certificate since the reasons for the withdrawal thereof must depend on the peculiar circumstances of

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each case and it is those peculiar circumstances which ought to be considered which consideration must
under Article 47 of the Constitution entail an opportunity to the applicant Certificate holder to be heard on
the circumstances alleged to constitute satisfactory reasons for the withdrawal of the Certificate.
43. In Onyango Oloo vs. Attorney General [1986-1989] EA 456, it was held by the court of appeal as
follows:
“The principle of natural justice applies where ordinary people would reasonably expect those
making decisions which will affect others to act fairly and they cannot act fairly and be seen to
have acted fairly without giving an opportunity to be heard...There is a presumption in the
interpretation of statutes that rules of natural justice will apply and therefore the authority is
required to act fairly and so to apply the principle of natural justice...To “consider” is to look at
attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to
think, hold the opinion... “Consider” implies looking at the whole matter before reaching a
conclusion...A decision in breach of the rules of natural justice is not cured by holding that the
decision would otherwise have been right since if the principle of natural justice is violated, it
matters not that the same decision would have been arrived at...It is improper and not fair that an
executive authority who is by law required to consider, to think of all the events before making a
decision which immediately results in substantial loss of liberty leaves the appellant and others
guessing about what matters could have persuaded him to decide in the manner he decided...In
the course of decision making, the rules of natural justice may require an inquiry, with the person
accused or to be punished, present, and able to understand the charge or accusation against
him, and able to give his defence. In other cases it is sufficient if there is an investigation by
responsible officers, the conclusions of which are sent to the decision-making body or person,
who, having given the person affected a chance to put his side of the matter, and offer whatever
mitigation he considers fit to put forward, may take the decision in the absence of the person
affected. The extent to which the rules apply depends on the particular nature of the
proceedings...It is not to be implied that the rules of natural justice are excluded unless
Parliament expressly so provides and that involves following the rules of natural justice to the
degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of
an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in
Kenya would do well to follow, in carrying out their tasks of balancing the interests of the
executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in
a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard
renders any decision made null and void ab initio.”
44. The law is that in the ordinary way and particularly in cases, which affect life, liberty or property, the
executive should give reasons and if he gives none the court may infer that he had no good reasons.
Similarly where the reason given by the executive is not one of the reasons upon which it is legally
entitled to act, the Court is entitled to intervene since the action by the executive would then be based an
irrelevant matter.
45. In this case the applicant’s case was that on 23rd August, 2017 he attended the 1st Respondent’s
offices and presented the Certificate that was due to expire for renewal and it was upon presentation
thereof that the 1st Respondent verbally directed him to leave it with him and declined to renew the same
on grounds that the same was not properly issued. The Respondents have however produced a letter
dated 8th September, 2017 allegedly cancelling the applicant’s said certificate. The copy exhibited
before the Court however has only the first page without a signature. Apart from that there is no
evidence that the same was ever dispatched. To make matters worse the said letter was drafted after
these proceedings were commenced.

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46. Importantly, the said letter does not require the applicant to present his version regarding the
cancellation of the said Certificate as it is in effect the decision cancelling the Certificate.
47. In order to succeed in an application for judicial review, the applicant has to show that the decision or
act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the
decision-making authority commits an error of law in the process of taking or making the act, the subject
of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its
principles are instances of illegality. Irrationality is when there is such gross unreasonableness in the
decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before
it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable
moral standards. Procedural impropriety is when there is a failure to act fairly on the part of the decision-
making authority in the process of taking a decision. The unfairness may be in non-observance of the
Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It
may also involve failure to adhere and observe procedural rules expressly laid down in a statute or
legislative Instrument by which such authority exercises jurisdiction to make a decision. See Pastoli vs.
Kabale District Local Government Council and Others [2008] 2 EA 300, Council of Civil Unions vs.
Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963]
EA 478 at 479.
48. In my view before the applicant’s Certificate could be withdrawn the 1st Respondent had to be
satisfied that the provisions of section 5(7) of the Act were satisfied. It is not just enough to contend that
a report was received from the Government Printer contending that the Applicant’s Certificate was not
genuine considering that the said Certificate had been renewed regularly in the past by the 1st
Respondent. To my mind the report from the Government Printer could only form a basis from which the
Applicant could be called upon to answer. That report had to be considered amongst other evidence
from the applicant before a determination made as to whether the threshold under section 5(7) aforesaid
was met. To fully rely on a report by a third entity as a basis for arriving at a decision in my view amounts
to the Respondents abdicating their mandate.
49. Section 7(2)(a)(i)(ii) and (iii) of the Fair Administrative Action Act, 2015 provides that a court or
tribunal may review an administrative action or decision, if the person who made the decision was not
authorized to do so by the empowering provision; acted in excess of jurisdiction or power conferred
under any written law; or acted pursuant to delegated power in contravention of any law prohibiting such
delegation.
50. In Hardware & Ironmonery (K) Ltd vs. Attorney-General Civil Appeal No. 5 of 1972 [1972] EA
271, the Court expressed itself as follows:
“What matters is the taking of the decision and not the signature. If the Director had taken the
decision that the licence was to be cancelled, he then, properly, have told the Trade Officer to
convey the decision to the parties. But it is clear from the officer’s evidence that this is not what
happened. The fact that the Act makes express provision for delegation of the Director’s powers
makes it, if not impossible, at least more difficult to infer any power of delegation. There is no
absolute rule governing the question of delegation, but in general, where a power is discretionary
and may affect substantial rights, a power of delegation will not be inferred, although it might be
in matters of a routine nature. The decision whether or not the licence should be revoked
required the exercise of discretion in a matter of greatest importance, since it involved weighing
the national interest against a grave injustice to an individual. It was clearly a decision to be
taken only by a very senior officer and was not one in respect of which a power of delegation
could be inferred.”

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51. Lord Somervel in Vine vs. National Doc Labour Board [1956] 3 All ER 939, at page 951 held
that:
“The question in the present case is not whether the local board failed to act judicially in some
respect in which the rules of judicial procedure would apply to them. They failed to act at all
unless they had power to delegate. In deciding whether a person has power to delegate, one has
to consider the nature of the duly and the character of the person. Judicial authority normally
cannot, of course, be delegated…There are on the other hand many administrative duties which
cannot be delegated. Appointment to an office or position is plainly an administrative act. If
under a statute a duty to appoint is placed on the holder of an office, whether under Crown or
not, he would normally, have no authority to delegate. He could take advice, of course, but he
could not, by a minute authorise someone else to make the appointment without further
reference to him. I am however, clear that the disciplinary powers, whether “judicial” or not,
cannot be delegated.”
52. In Eliud Nyauma Omwoyo & 2 Others vs. Kenyatta University [2014] eKLR, the High Court cited
with approval the decision in Republic vs. Kenyatta University and 2 Others Ex Parte Jared Juma,
HC Misc Civil App No. 90 of 2009, where it was held as follows:
“Discipline at the Respondent’s University is necessarily an internal process conducted using

internal personnel. It would be impractical to sub-contract or delegate as it were, this function to
an outside agency.”
53. It is therefore clear that the manner in which the 1st Respondent purported to have cancelled he
Applicant’s Firearms Certificate was tainted with procedural irregularity.
54. Apart from the foregoing, the 1st Respondent by renewing the Applicant’s Certificate despite the said
misgivings created a legitimate expectation on the part of the Applicant that any irregularities in the
issuance of the same would not be detrimental to the applicant’s interest, at least not without affording
the applicant a hearing thereon. This was the position of Lord Diplock in CCSU vs. Minister for the
Civil Service [1984] 3 All ER, 935 where it was stated, at page 949 as follows:-
“To qualify as a subject for judicial review the decision must have consequences which affect
some person (or body of persons) other than the decision-maker, although it may affect him too.
It must affect such other person either (a) by altering rights or obligations of that person which
are enforceable by or against him in private law or (b) by depriving him of some benefit or
advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and
which he can legitimately expect to be permitted to continue to do until there has been
communicated to him some rational ground for withdrawing it on which he has been given an
opportunity to comment or (ii) he has received assurance from the decision maker will not be
withdrawn without giving him first an opportunity of advancing reasons for contending that they
should not be withdrawn.” (Emphasis supplied).
55. Therefore if a public authority is to depart from previous decisions in similar cases, it was submitted it
must then demonstrate good reason for that departure. Hence in R (Bibi) vs. Newham London
Borough Council 2001 EWCA CIV 607, it was held:
“Unless there are reasons recognised by law for not giving effect to those legitimate
expectations then effect should be given to them. In circumstances as the present where the
conduct of the Authority has given rise to a legitimate expectation then fairness requires that, if

366
the Authority decides not to give effect to that expectation, the Authority articulates its reasons
so that their propriety may be tested by the court if that is what the disappointed person
requires.”
56. It is therefore my view that in this case the applicant’s legitimate expectation was thwarted by the 1st
Respondent’s decision which was based on an alleged irregularity which the 1st Respondent had by its
words and action clearly waived.
57. It was however contended that the Applicant ought to have appealed the decision. This contention
was premised on sections 23 of the Firearms Act which provides that:
(1) Any person aggrieved by a refusal of a licensing officer to grant him a firearm certificate
under section 5 or to vary or renew a firearm certificate, or by the revocation of a firearm
certificate, or by a refusal of a licensing officer to grant him a permit under subsection (12) of
section 7, or by the revocation of such a permit, or by a refusal of a licensing officer to grant him
a permit under subsection (13) of section 7 or to renew such a permit, or by the revocation of
such a permit, or by the refusal of a licensing officer to register him as a firearms dealer, or by
the removal of his name from the register of firearms dealers by a licensing officer, or by the
refusal of a licensing officer to enter a place of business in the register of firearms dealers under
section 15 or by the removal of any such place of business from the register, may appeal to the
Minister, whose decision shall be final.
(2) An appeal under this section shall be lodged within fourteen days after the date on which the
appellant first received notice, whether written or oral, of the decision by which he is aggrieved.
(3) On an appeal under this section, the Minister may either dismiss the appeal or give such
directions as he may think fit to the licensing officer from whose decision the appeal has been
lodged, as respects the firearm certificate, permit or register which is the subject of the appeal.
58. In this case however, from the letter purportedly cancelling the Certificate it is clear that the said
decision was made after the Applicant had commenced these proceedings. Therefore the Applicant
could not have been expected to appeal against a decision which was yet to be communicated to him.
59. The Respondents submitted that since the decision to cancel the Certificate had been made an order
of prohibition cannot issue. As I have stated above, when the Applicant came to Court, the decision
cancelling the Certificate had not yet been communicated. Accordingly, the Applicant was within his
rights to seek a prohibitory order.
60. This Court appreciates that the 1st Respondent has now purported to have made a decision.
However section 11 of the Fair Administrative Action Act, 2015 provides as follows:
(1) In proceedings for judicial review under section 8 (1), the court may grant any order that is
just and equitable, including an order
(a) declaring the rights of the parties in respect of any matter to which the administrative action
relates;
(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon
the administrator under any written law or from acting or continuing to act in any manner that is
prejudicial to the legal rights of an applicant;

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(c) directing the administrator to give reasons for the administrative action or decision taken by
the administrator;
(d) prohibiting the administrator from acting in a particular manner;
(e) setting aside the administrative action or decision and remitting the matter for
reconsideration by the administrator, with or without directions;
(f) compelling the performance by an administrator of a public duty owed in law and in respect of
which the applicant has a legally enforceable right;
(g) prohibiting the administrator from acting in a particular manner;
(h) setting aside the administrative action and remitting the matter for reconsideration by the
administrator, with or without directions;
(i) granting a temporary interdict or other temporary relief; or
(j) for the award of costs or other pecuniary compensation in appropriate cases.
In my view by employing the word “including” the provisions empowers this Court to fashion appropriate
remedies which in my view must be effective remedies. As was held by the Constitutional Court of South
Africa in Fose vs. Minister of Safety & Security [1977] ZACC 6:
“Appropriate relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure
that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do
so, the courts may even have to fashion new remedies to secure the protection and enforcement
of these all important rights.”
61. In this case, section 5(4) of the Firearms Act provides that:
A firearm certificate shall, unless previously revoked or cancelled, continue in force for one year
from the date when it was granted or last renewed, but shall be renewable for a further period of
one year by a licensing officer, and so on from time to time, and the foregoing provisions of this
section shall apply to the renewal of a firearm certificate as they apply to the grant of a firearm
certificate.
62. In my view unless a certificate is previously cancelled or revoked, the same is, unless section 5(7)
applies, renewable. In this case the 1st Respondent has not satisfactorily proved that the conditions
under section 5(7) of the Act have been fulfilled in order to justify non-renewal.
63. As a parting shot I wish to restate this Court’s position in Bryan Yongo vs. Chief Licencing Officer
& 3 Others [2014] eKLR that:
“…a firearm is not a toy. It is a very lethal weapon and as such ought not to be brandished
anyhow as if it were a swagger stick or a flywhisk. Those who are privileged to be licensed to
hold firearms must exercise utmost responsibility and must guard against careless use of the
firearm. Therefore firearm licences ought to be granted only in situations where it is necessary to

368
do so and where the strict conditions for its grant are fulfilled. A firearm in my view is not a
symbol of power and ought not to be issued to those who simply want to use the same to
intimidate other members of society or to throw their weights around. Where a grantee or
licensee of firearm certificate abuses the privilege the same ought to be speedily withdrawn
before the society is exposed to the perils and vagaries of firearm abuse.”
64. Before issuing a firearm certificate, it behoves the authorities concerned to follow the laid down
procedure in order to ensure that such lethal weapons do not end up in the wrong hands. However after
issuing the same, the presumption is that the laid down procedure was duly followed and the same can
only subsequently be cancelled or its renewal denied in accordance with the due process of the law
which in my view does not allow for shortcuts. This must be so, so that the decision to withdraw or
decline the renewal of the certificate is not arbitrarily taken and used as a political weapon with a view to
exposing to harm those whose views are deemed to be contrary to the system’s or in order to settle
personal scores.
65. When a country opts to follow the path the democracy it must be prepared not only to enjoy the fruits
therefor but must also be prepared to pay the cost of doing so. As the Court of Appeal appreciated in
Judicial Commission of Inquiry Into the Goldenberg Affair & 3 Others vs. Job Kilach Civil
Application No. Nai. 77 of 2003 [2003] KLR 249:
“Democracy is normally a messy, and often times, a very frustrating, way of governance. In this
respect, dictatorships are more efficient.”
66. We have made a bed and we must lie on it however some people may feel uncomfortable with it.
This is the message in Article 2(1) of the Constitution where it is provided that:
This Constitution is the supreme law of the Republic and binds all persons and all State organs
at both levels of government.
67. In the premises I find merit in the Notice of Motion dated 28th August, 2017.
Order
68. Consequently and pursuant to section 11 of the Fair Administrative Action Act the orders which
commend themselves to me and which I hereby grant are as follows:
1. A declaration that the decision to cancel or revoke the Applicant’s Firearms Certificate was
unlawful.
2. An order setting aside the 1st Respondent’s decision to cancel or revoke the Applicant’s
Firearms Certificate.
3. An order compelling the 1st Respondent to renew the Applicant’s Certificate upon payment of
the requisite charges.
4. An order prohibiting the 1st Respondent from revoking the Applicant’s Firearms Certificate
unless otherwise lawfully revoked.
5. Prohibition to prohibit the 2nd Respondent either acting by himself or through his agents and
or servants from arresting the Applicant for being in possession of firearm without a Firearms

369
Certificate.
6. The costs of this application are awarded to the Applicant to be borne by the 1st Respondent.
69. It is so ordered.
Dated at Nairobi this day 15th day of December, 2017
G V ODUNGA
JUDGE
Delivered in the presence of:
Miss Opondo for the Applicant
CA Ooko

Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others;Kenya Tobacco Control Alliance & another (Interested Parties)
370
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
(Coram: Maraga CJ& P; Mwilu DCJ& V.P, Ojwang, Wanjala & Njoki, SCJJ)
BETWEEN
BRITISH AMERICAN TOBACCO KENYA, PLC
(Formerly
BRITISH AMERICAN TOBACCO KENYA LIMITED)..........................APPELLANT
AND
CABINET SECRETARY FOR THE MINISTRY OF HEALTH....1ST RESPONDENT
TOBACCO CONTROL BOARD......................................................2ND RESPONDENT
ATTORNEY GENERAL....................................................................3RD RESPONDENT
AND
KENYA TOBACCO CONTROL ALLIANCE....................1ST INTERESTED PARTY
CONSUMER INFORMATION NETWORK.....................2ND INTERESTED PARTY
AND
MASTERMIND TOBACCO KENYA LIMITED................THE AFFECTED PARTY
JUDGMENT
I. INTRODUCTION
[1] The Appellant moved the Court via a Petition dated 31st March 2017, being an appeal against the Judgment of the Court of
Appeal (Okwengu, Azangalala and Sichale, JJA) in Civil Appeal No. 112 of 2016, which decision upheld the Judgment of the High
Court, in High Court Petition No. 143 of 2015, British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of
Health & 4 others that judgment held that there was adequate consultation or public participation in the formulation of Tobacco
Control Regulations 2014 and that, except for Regulations 1, 13(b) and 45, the provisions are neither unconstitutional nor unlawful
nor do they violate any right of the Appellant, the affected party or the Tobacco industry players.

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[2] The Appellant sought the following reliefs (produced verbatim), that:
i. The appeal to be allowed.
ii. The Judgment of the Court of Appeal in Civil Appeal 112 of 2016 be set aside and judgement be entered as prayed in the petition
in the High Court on 15th April, 2015.
iii. The costs in this Appeal, Civil Appeal 112 of 2016 British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry
of Health & 4 others, and High court Petition Number 143 of 2015 British American Tobacco Kenya Limited v Cabinet Secretary
for the Ministry of Health & 4 others, be awarded to the Appellant.
iv. Any further or alternative relief this Honourable Court may deem fit to grant.
II. BACKGROUND
[3] In a Notice in the Kenya Gazette dated 5th December 2014, the 1st Respondent published the Tobacco Control Regulations 2014
(herein after referred to the Regulations) by way of Legal Notice No. 169 (Legal Supplement No. 161). The Regulations were made
pursuant to Section 53 of the Tobacco Control Act, 2007 (herein after referred to the Act) and sought to regulate various aspects of
the Tobacco sector in Kenya. Section 53 of the Act gives powers for making Regulations prescribing or prohibiting anything
required by the Act to be prohibited, or for the better carrying out of the objects of the Act.
(a) High Court
[4] The Appellant was aggrieved by the Regulations and filed at the High Court, Petition No. 143 of 2015 British American
Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 4 others on 15th April 2015. The Petition challenged the
lawfulness of the Regulations and Section 7 (2) of the Act on grounds that inter alia, they were made in contravention of the
provisions of the Statutory Instruments Act (SIA) and violated certain provisions of the Constitution. The Petition sought the
following orders:
1. A declaration that Tobacco Control Regulations, 2014 being Legal Notice Number 169 of 2014 published in the Kenya Gazette
Supplement 161, Legislative Supplement Number 156 of 2014 are void in their entirety having failed to comply with the applicable
provisions of the Statutory Instruments Act 2013 and Article 10 of the Constitution.
2. An order for judicial review by way of certiorari to remove into the High Court and quash the Tobacco Control Regulations
2014 in their entirety.
3. In the alternative to (2) above, an order for judicial review by way of certiorari to remove into the High Court and quash
Regulations 3 to 39 (both inclusive) and Regulation 45 of the Tobacco Regulations 2014.
4. In the alternative to (1) and (2) above:
a. A declaration that Regulation 1 of the Tobacco Control Regulations 2014 is not applicable to Part II of the Regulations.
b. A declaration that Part VI (Regulations 37 and 38) of the Tobacco Control Regulations 2014 is void.
c. A declaration that Part V (Regulations 20 to 36) of the Tobacco Control Regulations 2014 is void
d. A declaration that Part II (Regulations 3 to 7) of the Tobacco Control Regulations 2014 is void.
e. A declaration that Regulation 15(b) of the Tobacco Control Regulations 2014 is void.
f. A declaration that Regulation 45 of the Tobacco Control Regulations 2014 is void.

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g. A declaration be made that Section 7(2) (f) of the Tobacco Control Act 2007 is void.
5. Any further order or relief that this Court deems fit to make to meet the interests of justice.
6. The costs of this Petition be awarded to the Petitioner.
[5] The crux of the Appellant’s case was that the Cabinet Secretary (CS) for Health and the Tobacco Control Board (herein after
referred to the Board) did not engage with the Tobacco industry stakeholders in the process of developing the Regulations; and that
where there was such engagement, it was limited and entirely unsatisfactory. The Appellant invoked Section 5(1) of the SIA in
submitting that where a proposed Regulation is likely to have a substantial direct or indirect impact upon business or restrict
competition, the regulatory authority is required to consult with persons likely to be affected. It also argued that the Regulations
impose significant costs on the Tobacco industry generally and the community at large, yet there was no evidence of a Regulatory
Impact Statement (RIS) obtained by the Board as provided by Section 6 of the SIA.
[6] The Appellant also challenged the Regulations’ introduction of the Solatium Compensatory Contribution (the Solatium) alleging
that it was never heard on the basis for imposing the said contribution. It urged that the imposition was unconstitutional and
unlawful as it was not based on any lawful obligation to pay compensation. The amount was deemed discriminatory, as other
industries have not been subjected to such measures; and that the wording of Regulation 38, that the solatium shall be 2% of the
value of Tobacco products manufactured and/or imported, was vague and uncertain as it was not clear which information will be
used to ascertain the value of manufactured or imported Tobacco.
[7] Also challenged was the Regulations’ limitation of contact between public officers and Tobacco industry players. It is urged that
this limitation undermines the Appellant’s right to fair administrative action and offends the principles of good governance,
including public participation, inclusiveness and non-discrimination. As a result, it brings into question the constitutionality of
Regulation 3, as regards packaging and labelling of Tobacco products. The Regulations were impugned for being unreasonable,
disproportionate, irrational and onerous because there is an East African Standard, EAS 110: 2005, which provides the
specifications for cigarettes and is administered by the Kenya Bureau of Standards, which the Appellant submits to as its cigarettes
are submitted annually for testing and certification by that body.
[8] It was contended that the information required to be disclosed under Regulation 42 comprises manufacturer’s trade secrets or
sensitive information, which is ‘protected and that the information if released, may also mislead the public as it may deem one
product less risky than another, yet cigarettes with ingredients, are no more or less harmful than those with ingredients. It impugned
Regulations 13 on market share. It contended that Regulation 15 was unconstitutional as it prohibited smoking in streets, walkways
and verandas adjacent to public places. It urged that Regulation 15(b) had extended the restriction to areas not contemplated under
Section 33(7) of the Act.
[9] Regulation 45 which prescribes a penalty of a fine not exceeding five hundred thousand shillings or imprisonment for a term not
exceeding three years for breach of any provision of the Regulations was challenged for being unconstitutional. It was argued that it
is ultra vires Section 24(5) of the SIA which only allows a penalty for breach of any provision of Regulations to be a penalty not
exceeding twenty thousand shillings or imprisonment not exceeding six months or both. Lastly, the Appellant contended that neither
the CS Health nor the Board had any powers to make legislation to domesticate or implement Article 5.3 of the World Health
Organization (WHO) Framework Convention on Tobacco Control (FCTC) and the Guidelines thereto.
[10] The Respondents’ case on the other hand, was that as a signatory to the FCTC, Kenya is obligated to fulfil its commitment by
enacting and implementing legislation and Regulations compliant with the Convention. It was urged that under Section 9 (g) & (h)
of the SIA, a RIS need not be prepared for publication if the proposed Regulation is a matter arising under legislation that is
substantially uniform or complementary with legislation of the national government or of any county, similarly, a matter advance
notice of which would enable someone to gain unfair advantage.
[11] The Respondents stated that the Regulations were for the benefit of the community and shall not impose significant costs on the
community or part of the community. It was urged that there was public participation meetings held in over eight counties which
views were considered and that the Regulations were made in compliance with the provisions of the SIA. Therefore, the Regulations
were not unconstitutional. Further it was urged that the Regulations on limitation on contact between public officers and members of
Tobacco industry are in conformity with Chapter 6 of the Constitution. The imposition of 2% solatium compensatory contribution
was stated to be in conformity with the Constitution, Section 7(2)(f) of the Act and Article 6 of the WHO Framework Convention. It

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was argued that the solatium is meant to cater for any health perils caused by Tobacco.
[12] In its judgment the High Court, Mumbi J, delimited three issues for determination as follows:
(a) Whether the process leading to the enactment of the Tobacco Regulations, 2014 was lawful"
(b) Whether specific Regulations are unconstitutional for being arbitrary or unreasonable"
(c) Whether a violation of the Petitioner’s constitutional rights has been made out"
[13] Finally, the High Court made the following disposition:
“176. The Tobacco Control Act has very clear objectives of safeguarding individuals and the public from the dangers posed by
consumption of Tobacco, which as the Act states in its objectives clause, has been implicated in causing debilitation, disease, and
death. The Regulations impugned in this petition are intended to safeguard the public, those who smoke and those who do not,
and to provide certain information with regard to the contents of Tobacco products. Having considered the various arguments of
the parties, I have come to the following findings:
1. That there was sufficient public participation and consultation in the formulation of the Regulations and the process was
therefore in accordance with constitutional requirements on public participation;
2. No violation of the petitioner’s rights by the Regulations has been demonstrated;
3. Regulation 13(b) of the Tobacco Control Regulations, 2014 is null and void to the extent that it requires Tobacco
manufacturers and importers to disclose information pertaining to their market share in the Tobacco industry in Kenya;
4. Regulation 45 of the Tobacco Control Regulations, 2014 is ultra vires Section 24(5) of the Statutory Instruments Act and is
therefore null and void;
5. Regulation 1 is in conflict with Section 24 of the Act with respect to the period within which the Regulations should come into
force. Consequently, it is my direction that the Regulations shall come into force within six (6) months from the date hereof.
6. With respect to costs, I direct that each party shall bear its own costs of the petition.
[14] The Appellant was dissatisfied with the High Court decision, and lodged an appeal in the Court of Appeal.
(b) Court of Appeal
[15] In its Memorandum of Appeal, the Appellant raised 17 grounds on which it faulted the High Court judgment.
[16] Parties made their rival submissions before the Court, which to a large extent echoed what they had submitted before the High
Court. In its judgment delivered on 17th February 2017 the Court of Appeal delimited the following issues for determination:
(i) Whether the process leading to the making of the Regulations was vitiated by lack of public participation and consultation as to
render the Regulations unconstitutional or unlawful"
(ii) Whether the specified provisions of the Tobacco Act and Regulations are unconstitutional, ultra vires or otherwise illegal"
(iii) Whether the learned Judge’s findings on issue (i) and (ii) were correct"
(iv) Whether the learned Judge’s view on the health effects of the Tobacco products were relevant to the proceedings"

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(v) Whether specific Regulations identified by the appellant violated the appellant’s rights as alleged"
(vi) Arising from (i) to (v), whether the appeal should be allowed or dismissed"
[17] The Court of Appeal agreed with the High Court on public participation and consultation. The Appellate Court appreciated the
case law relied on by the High Court, buttressing that public participation is a mandatory requirement in the process of making
legislation including subsidiary legislation. It evaluated the affidavit evidence on record and found no reason to upset the High
Court findings. As regards the RIS, the Appellate Court also agreed with the High Court that it was not necessary to prepare the RIS
in this matter.
[18] As to whether specific Regulations violated the Appellant’s rights, the Court of Appeal held that while the provisions of Part V
of the Regulations appear to be discriminatory against the Appellant and others in the Tobacco industry as they seek to limit
interactions between players in the Tobacco industry and public officers and/or authorities, a situation not replicated in other
commercial industries, not all discrimination amounted to unfair discrimination. Noting the peculiar nature of the Tobacco industry
and having taken note of the side effects of the Tobacco products the Court held that “the inequality of treatment in limiting
interaction between the public officers/authorities and members of the Tobacco industry does not amount to discrimination as it is
dictated by the circumstances obtaining. Moreover, the limitation does not target only a specific group of players in the Tobacco
industry but applies to all players in the Tobacco industry.” It found the limitation of the Appellant’s rights justifiable, reasonable
and necessary under Article 24 of the Constitution to ensure the enjoyment of rights and fundamental freedoms by all individuals.
Article 37 was found not to have been violated. As the Regulations were found to have been made in accordance with the SIA and
the Constitution, it was held that the procedure was in line with the Fair Administrative Action Act with regard to public
participation, and there was no violation of Article 47 of the Constitution.
[19] On the solatium compensatory contribution, the appellate Court found that it was not a payment that goes towards the national
revenue, and could not be considered that is levied by the national government or county government for the purposes of national or
county revenue. It does not violate Article 210 of the Constitution and its imposition cannot amount to deprivation of the
Appellant’s property under Article 40 of the Constitution.
[20] As regards the Regulations on packaging and labelling, the appellate Court agreed with the High Court findings, that the
purpose of the Regulations, in prescribing health warnings through packaging and labeling of Tobacco products, was to achieve the
object of the Act by providing information and cautioning consumers and non-consumers of the side effects of Tobacco products.
They found the Regulations to be in accord with the parent legislation.
[21] On unconstitutionality of specific provisions, Regulation 15(b) which bars smoking in streets, walkways or verandas adjacent
to a public place was found not ultra vires the Act as it seeks to effect Section 32 of the Act. As regards Part III of the Regulations,
on disclosure of information, it was found that the disclosures required under Regulations 13(a), (c), (d) and (e) on Tobacco
produced, sales made and revenues earned, quantities exported and affiliated organizations or agents citing on behalf of a
manufacturer, are relevant in light of Regulation 37 that requires the payment of the Solatium compensatory contribution at 2% of
the value of the Tobacco manufactured or imported by the manufacturer or importer in that financial year. On the disclosure
requirements under Regulation 12, the appellate Court observed that there was a need to balance public health needs against
intellectual property rights of the appellant and other stakeholders in the Tobacco industry. It found that the limitation was
reasonable and justified under Article 24 of the Constitution.
[22] The Court of Appeal dismissed the appeal stating as follows:
“The sum total of the above is that the learned judge did not err or make wrong findings as contended in the grounds of appeal.
The meetings, consultations and communication prior to the Regulations satisfied the requirements of the Constitution and
Statutory Instruments Act with regard to public participation.
We find that except for Regulations 1, 13(b) and 45 that the learned judge found to be void and or ultra vires the Tobacco
Control Act and in regard to which finding there has been no appeal, the Regulations and the Tobacco Act provisions are
neither unconstitutional nor unlawful nor do they unlawfully violate any rights of the appellant, the affected party or the
Tobacco industry players; that in cases where the Regulations or the Act limits the rights of the industry players the same is
reasonable and justified in accordance with Article 24 of the Constitution.

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In conclusion, we find no merit in this appeal and do therefore dismiss it in its entirety. We direct that each party shall bear their
own costs.”
[23] It is this finding of the Court of Appeal that has aggrieved the Appellant and hence the Petition now before this Court.
III. THE PETITION BEFORE COURT
[24] Before the Supreme Court, the Appellant alleges that its claims raise the following points of law, reproduced verbatim:
a. What do the principles of ‘public participation’ under Article 10 of the Constitution and ‘appropriate consultations’ under
Section 5 of the Statutory Instrument Act 2013 (SIA) require in respect of the development of the Regulations"
b. Was there compliance with the requirement for consultation under the SIA and/or public participation under the Constitution in
making the Regulations"
c. What amounts to ‘a matter arising under legislation that is substantially uniform or complementary with legislation of the
national Government or any County’ within the exception under Section 9(g) of the SIA so as to exclude the requirement for
publication of a Regulatory Impact Statement (RIS) under Section 6 of the SIA"
d. What is the effect of non-compliance with the requirements for public participation and consultation; and/or the preparation of a
proper RIS on the Regulations"
e. What does the term ‘solatium compensatory contribution’ mean within Section 7(2)(f) of the Act"
f. What are the requirements for the determination of the ‘solatium compensatory contribution’ payable under Section 7(2)(f) of
the Act"
g. Does Section 7 (2)(f) of the Act provide for the imposition of an annual levy as contemplated by the Regulations"
h. Does the solatium compensatory contribution specified in Regulation 37 constitute a ‘tax or fee’ such that it violates Article 210
of the Constitution"
i. Is the wording of Regulation 37 that the solatium compensatory contribution shall be in every financial year the sum of two per
cent of “the value” of the Tobacco products manufactured or imported impermissibly vague and uncertain so as to be incapable of
compliance"
j. Is the Requirement for payment of a solatium compensatory (solatium contribution) of 2% of the value of Tobacco products
manufactured or imported as provided for under Section 7(2)(f) of the Act as read together with Regulation 37 within the powers
and Authorities conferred on the 1st Respondent, constitutional and proportionate"
k. Is part V of the Regulations which seeks to directly implement the guidelines to Article 5.3 of the FCTC to limit interactions
between the Tobacco industry and public officers and public authorities, within the powers and authorities conferred on the 1st
Respondent to make Regulations under Section 53 of the Act"
l. Is Part V of the Regulations a violation of the Constitution, including Articles 27 and 37 thereof, and otherwise invalid"
m. Is Regulation 15(b) which purports to ban smoking in “streets, walkways, verandas adjacent to a public place” within the powers
and authorities conferred on the 1st Respondent to make Regulations under Section 53 of the Act"
n. How is Article 24 of the Constitution to be applied by the Court"
o. Have the Respondents demonstrated that the requirements of Article 24 of the Constitution have been satisfied in respect of any

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limitation of the fundamental freedoms caused by the Regulations"
[25] The Petition is anchored on ten (10) grounds summarized as follows, that the Court of Appeal erred:
i. In holding that there was adequate consultation and/or public participation in the process of making the Regulations.
ii. In holding that the Regulations fall under the exception provided in Section 9(g) of the SIA as they are complementary to the Act,
and it was therefore not necessary for the 1st Respondent to prepare a RIS.
iii. In holding that the Act and the Regulations are anchored on the Constitution and no inconsistencies arise.
iv. In upholding Section 7(2)(f) of the Act and Regulations 37,38 and 39, which impose an annual payment (the solatium
compensatory contribution) on the Tobacco industry.
v. In failing to find that Section 7 (2) (f) of the Act and Regulations 37, 38 and 39 are ultra vires the Act, unconstitutional and
unlawful.
vi. In presuming that the Regulations are per se lawful and compliant with due process, the Act and the Constitution because of the
harmful effects of Tobacco, and in so doing justified clear violations of the Constitution and inconsistencies of the Regulations with
the Act.
vii. In upholding Part V of the Regulations which severely restrict interactions between public authorities or public officers and the
Tobacco industry.
viii. In failing to find that Part V of the Regulations is ultra vires the Act, unconstitutional and unlawful.
ix. In holding that Regulations 12 to 14 which relate to product disclosure and industry disclosure are justified and reasonable.
x. In holding that Regulation 15(b) is not ultra vires the Act but seeks to give effect to Section 32 of the Act.
IV. PARTIES’ SUBMISSIONS
[26] The Appellant filed its written submissions on 17th July 2017 and Submissions in Reply on 11th August 2017, while the
Affected Party filed its Submissions on 31st July 2017. The Respondents filed Grounds of Opposition on 7th June 2017 and written
submissions on 28th July 2017, while the Interested Parties filed a Reply to the petition and later Submissions on 28th July 2017. This
matter was orally canvassed before the Court on 26th April, 2018 where parties were represented by counsel.
a) The Appellant’s submissions
[27] The Appellant’s case was argued by Counsel, Mr. Kiragu Kimani who submitted that the Appellant is not opposed to
regulation of its activities and of the Tobacco industry but supports a regulatory framework that is constitutional, otherwise legal,
balanced and evidence based, and which actually helps to achieve the intended public health objectives.
[28] It was urged that pursuant to Article 94(1) of the Constitution, the power to make law is vested in Parliament, and only the
Constitution or Parliament through legislation can donate the power to any other person or body. Where Parliament has donated
such power, like it does under Section 53 of the Act, it must be exercised strictly within the limits of the legislation donating that
power. It cited the case of Resley v The City Council of Nairobi [2006] 2 EA 311, where it was held that where Parliament has
conferred powers on public authorities and has laid a framework on how the powers are to be exercised, and where that framework
is clear, the public authority has an obligation to strictly comply with it, in order for its decision to be considered valid.
[29] In that regard, it was urged that the Regulations herein must be under Section 53 of the Act. It was submitted that for any set of
Regulations to be legal, they must not only be consistent with the Constitution but also the parent Act under which they are made,

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and any other relevant Statute. This is in line with Section 31(b) of the Interpretation and General Provisions Act which stipulates
that “no subsidiary legislation shall be inconsistent with the provisions of an Act.”
[30] The Appellant urged that FCTC is a framework Convention that limits itself to the formulation of broad principles and
objectives and that substantive rules are to be developed in later steps at international and domestic levels; such steps taken to
implement the general principles must therefore be consistent with national laws. It submitted that the principles do not by
themselves impose any legal obligations. As parliament is the legislating arm, it was urged, the legislation to implement the FCTC
ought to be passed by Parliament and not the 1st Respondent as the case is alleged to have been in the present case.
[31] The Appellant categorized its submissions into two broad limbs, thus:
1) Whether the process leading to the making of the Regulations was unconstitutional or otherwise unlawful" and
2) Whether some specific provisions of the Regulations, and Section 7(2)(f) of the TCA, are unconstitutional or otherwise unlawful"
Challenge on the Regulations making process
[32] The Appellant submitted that courts have a duty to prevent violation of the Constitution and the law, and may exercise this
power to make orders that affect legislative process. It referred to the case of Doctors for life International v speaker of the
National Assembly and others (CCT 12/05), (relied on in Robert N. Gakuru & others v Governor Kiambu County & 3 others
[2014] eKLR) where it was held that:
“…when it is appropriate to do so, courts may-and if need be must-use their powers to make orders that affect the legislative
process. Therefore, while the doctrine of separation of powers is an important one in our constitutional democracy, it cannot be
used to avoid the obligation of a court to prevent the violation of the Constitution. The right and the duty of this Court to protect
the Constitution are derived from the Constitution, and this Court cannot shirk from that duty.”
[33] The Appellant invited the Court to examine the process leading to the making of the Regulations, whether it complied with the
requirements under the Constitution and the SIA. It urged that the process was unconstitutional and unlawful as there was a failure
to conduct appropriate and effective consultations, and a failure to prepare and publish a genuine RIS. It urged that meaningful
public participation is a principle recognized by Articles 10 and 118 of the Constitution as one of the principles of good governance.
Section 5(1) of the SIA further requires a Regulation making authority to make appropriate consultations with persons who are
likely to be affected by a proposed statutory instrument before making the statutory instrument.
[34] It urged that the mandatory obligation of consultation and public participation is not met by merely taking the perfunctory step
of involving the public and any affected persons, therefore the Court of Appeal erred in holding that there was adequate consultation
and public participation. Relying on the case of Doctors for life, it was urged that for public participation and effective consultations
to be said to have occurred, “[a]all parties interested in legislation should feel that they have been given a real opportunity to have
their say, that they are taken seriously as citizens and that their views matter and will receive due consideration at the moments
when they could possibly influence decisions in a meaningful fashion.”
[35] Citing the case of Samuel Thinguri Waruathe & 2 others v Kiambu County Government & 2 others [2015] eKLR, it was
urged that public participation and effective consultation are not a mere cosmetic venture. The product of the legislative process
ought to be the true reflection of the public participation so that the end product bears the seal of approval by the public. It faulted
the Court of Appeal in failing to note that while the Appellant (BAT) volunteered written representations, it did not get any response
and there is no evidence that the same was meaningfully considered. That from the minutes of the principal event it was clear that
there had been no genuine consultations before making the Regulations and that the Respondents were advised to start the process
afresh. It averred that the Court of Appeal erred in failing to find that the Respondents had pre-determined to introduce the
Regulations and had a closed mind when engaging in the process of public participation, hence no genuine consultations. It was
urged that the Respondents failed to give any conscientious consideration to the views expressed by the public, especially those of
the Tobacco industry.
[36] With this failure of meaningful consultations, it was urged that the Court finds the Regulations unlawful, null and void.
Reference was made to the Constitutional Court of Uganda case, Constitutional Court Petition No. 08 of 2014 Oloka-Onyango & 9

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others v Attorney General [2014] UGCC 14 (cited with approval in Coalition for Reforms and Democracy (CORD) & another v
Republic of Kenya & another [2015] eKLR) (CORD case) where it was stated thus: “we agree with Counsel Opiyo that the
enactment of the law is a process and if any of the stages therein is flawed, that vitiates the entire process and the law that is
enacted as a result of it… failure to obey the law (Rules) renders the whole process a nullity.”
[37] It was further urged that Section 6 of the SIA imposes an obligation on a Regulation making authority to prepare an RIS if a
proposed Regulation is likely to impose significant costs on the community or part of a community. The Appellant faulted the
superior Courts for finding that in view of Section 9(g) of the SIA, it was not necessary to publish an RIS, as the Regulations are
complimentary to the Act. That this finding negated the objectives of the SIA, especially Section 8. It faulted the Court of Appeal
for not noting that the Respondents first agreed that the RIS was prepared but submitted that they did not publish it since it was not
required. The Appellant wondered why the same was prepared if it was not required in the first place. It urged that the Court of
Appeal misdirected itself as to the scope of Section 9(g) of the SIA and submitted that Section 9(g) is a limited exception to be read
narrowly and not to be applied broadly as the Court of Appeal did. The Appellant submitted that the RIS is an essential part of
transparent, accountable and empirically-based regulatory system as required under Article 10(2)(c) and 47 of the Constitution. It
provides a formal method for ensuring that administrative action is justified and based on a clear understanding of cause and effect.
Challenge on specific provisions of the Regulations and Section 7(2)(f) of the Act
[38] The Appellant also impugned specific provisions of the Regulations for being unconstitutional or otherwise unlawful. Section
7(2)(f) of the Act and Regulations 37, 38 and 39 were said to be unconstitutional for imposing the Solatium Compensatory
Contribution (Solatium). Section 7(2)(f) of the Act provides that the Tobacco Control Fund shall consist of among others “a
solatium compensatory contribution payable by any licensed cigarette manufacturers or importers in the country as may be
determined by the Board.” Regulation 37 sets the solatium compensatory contribution at 2% of the value of the Tobacco products
manufactured or imported by the manufacturer or importer in that financial year.
[39] The Appellant submitted that the Court of Appeal erred in finding that Regulation 37 has a nexus with the Act. In this regard, it
relied on the meaning of the term ‘solatium’ in the New Shorter Oxford English Dictionary on Historical Principles, vol. 2, thus: “a
sum of money or other compensation given to a person to make up for loss, inconvenience, injured feelings etc, specifically, in law,
such an amount awarded to a litigant over and above the actual loss” and “a sum paid to an injured party over and above the
actual damage by way of solace to his wounded feelings.” It was submitted that a solatium compensatory contribution is
compensation payable for an established injury as opposed to a levy imposed on any activity or a service. An example of tis levy is
to be found under Section 105 of the Tourism Act. The Appellant submitted that no connection has been shown between the annual
levy and any wrong doing on its part or any Tobacco manufacturer or importer that occasioned an injury. Therefore, there is no
reason given why it should be 2% as set.
[40] It was argued that the Court of Appeal’s interpretation of the amount amounted to an ‘enlargement’ of the provisions of
Section 7 (2)(f) of the Act rather than its construction. It submitted that the imposition of the solatium compensatory contribution
amounted to a deprivation of the Appellant’s right to property under Articles 40(1) of the Constitution. It was averred that Article
260 of the Constitution defines property to include, “any vested or contingent right to, or interest in or arising from money, choses
in action or negotiable interests.” Therefore, this solatium deprives the Appellant of property without due process as no finding of
wrong on the part of the Appellant has been established.
[41] It was contended that the solatium is a form of dedicated orhypothecated tax. In this regard it was submitted that Section 7(2)(f)
of the Act is not sufficient ‘legislation’ imposing a tax or fee as required under Article 210 of the Constitution. It does not specify
the amount of tax or the basis of calculating the tax sought to be imposed. In this regard, the Appellant cited the case of Keroche
Industries Limited v Kenya Revenue Authority & 5 Others [2007] eKLR, where Nyamu, J observed that: “taxation can only be
done on clear words and cannot be on intendment.”
[42] The Appellant submitted that the finding on the contribution of 2% of the Tobacco products manufactured or imported was not
supported by any evidence, hence failed the necessary standard under Article 24 of the Constitution. It was argued that Article 24
requires an assessment of whether the limitation is reasonable and justifiable having regard to the matters set out in Article 24(1)
and also with respect to Article 24(2). It was argued that with no RIS, the Respondents have not shown that the requirements of
Article 24 have been met. Accordingly,, it was urged that the solatium does not satisfy any of the criteria of proportionality. It is
arbitrary, capricious and violates due process. It imposes an onerous and unjustified burden on the Appellant, when Tobacco
manufacturers and importers are already subject to many other taxes. For that reason, the Appellant argues that the Court of Appeal

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erred in not finding that the contribution violates Article 24 of the Constitution.
[43] It was further submitted that the solatium violates Articles 10(1) and 47 of the Constitution. Citing the case of Crywan
Enterprises Limited v Kenya Revenue Authority, [2013] eKLR, it was urged that “where the basis of deprivation is not founded on
law, or predetermined objective criteria, or is done without procedural propriety, it is ipso facto arbitrary.” Therefore, the
determination of this contribution is not based on any reason, it is done without procedural propriety and is ipso facto, arbitrary and
amounts to unlawful exercise of jurisdiction. Also cited in this regard are the cases of Trusted Society of Human Rights Alliance &
3 others v Judicial Service Commission & others [2016] eKLR, A.G vs Ryan (1980) A.C. 718 and Law Society of Kenya v
Attorney General & another [2009] eKLR.
[44] Invoking International law, the Appellant urged that the solatium compensatory contribution violates the East Africa
Community Treaty as it hampers free movement and trade of cigarettes between Kenya and other Treaty Members. It argued that
under the Treaty, State Parties are obliged to remove obstacles to the free movement of goods, services and capital. Subsequently, it
was urged that as the solatium applies to exports, it will impact on this cross-border trade.
[45] The Appellant questioned why the solatium has been pegged at 2% of the value of Tobacco products manufactured or
imported. The Appellant states that such value is vague and impossible to ascertain. Because of this vagueness, the Appellant, is
unable to regulate its conduct and is exposed to potential criminal prosecution under Regulation 45 for contravention of the
Regulations. Cited in this regard was the case of Aids Law Project v The Hon. Attorney General & 3 others, [2015] eKLR thus:
“For if the trumpet gives an uncertain sound, who shall prepare himself for the battle" So, if the law gives an uncertain sound,
who shall prepare to obey it" It ought therefore to warn before it strikes… Let there be no authority to shed blood; nor let
sentence be pronounced in any court upon cases, except according to a known law and certain law. Nor should a man be
deprived of his life, who did not first know that he was risking.”
[46] It was urged that while the health consequences of Tobacco are relevant, those consequences do not negate the obligation to
comply with the law in making Regulations, including undertaking the necessary balancing exercise required under Article 24 of the
Constitution.
[47] Part V of the Regulations that limits interaction between public authorities or officers and the Tobacco industry was impugned
as being unconstitutional, having been made without authority, and otherwise unlawful. It was urged that the Court of Appeal erred
in finding that Part V of Regulations was made within the scope of the powers of the 1st Respondent. The Appellant submitted that
Section 53 of the Act does not confer a broad power on the 1st Respondent to make Regulations that modify or extend the Act, but
the power is strictly limited to ancillary matters within the existing framework laid down in the Act. It cited Utah Construction &
Engineering Pty Limited v. Pataky (1966) A.C. 629 where the Privy Council adopted with approval the statement in the judgment
of the High Court of Australia in Shanqhan v Scott relating to the construction of a provision which provided for the making of
Regulations that are necessary or convenient for carrying out or giving effect to the Primary Act, thus:
“The result is to show that such a power does not enable the authority by Regulation to extend the scope or general operation of
the enactment but is strictly ancillary. It will authorize the provision of subsidiary means of carrying into effect what is enacted
in the statute itself and will over what is incidental to the execution of its specific provisions. But such a power will not support
attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan
which the legislature has adopted to attain its ends.”
[48] It was submitted that there is no provision in the Act for the Regulation of interactions between public authorities and none of
the objects of the Act prescribes the restriction of interactions between public authorities and the Tobacco industry. It was urged that
Part V of the Regulations could not have been made pursuant to the powers in Section 53 of the Act. It was submitted that this was
an attempt to implement Article 5.3 of the FCTC and the Guidelines, yet there is no power under Section 53 of the TCA to
implement the FCTC or the guidelines.
[49] The Court of Appeal was faulted for finding that the inequality of treatment in limiting interaction between the public officers
and or authorities and members of the Tobacco industry does not amount to discrimination and is justifiable under Article 24 of the
Constitution. It was submitted that the Court of Appeal erred in finding that the Tobacco industry cannot expect equal treatment
with other industries in relation to its interactions with public authorities and or officers: no other industry, including those dealing
with other harmful products, is subjected to similar limitations in their interactions with the public authorities and or officers, or

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exclusion from lawful business incentives that may be available to other industries.
[50] It was further urged that Part V of the Regulations does not satisfy any of the criteria of proportionality because any concerns
regarding the protection of the public health policies with respect to Tobacco Control can be met by the implementation of
appropriate provisions that promote government transparency so that the public knows who is lobbying regulators for what
outcomes, and by the implementation of sensible-conflict-of-interest rules, while not requiring the wholesale exclusion of the
Tobacco industry.
[51] The Court of Appeal, it was contended, erred in limiting Intellectual Property Rights (IP) and the right to privacy under
Regulations 12, 13 and 14, which is not justifiable under Article 24 of the Constitution. While the Court of Appeal held that
Regulation 12 limits the Appellant’s IP rights, it was submitted that it erred by holding that the limitation is reasonable and
justifiable under Article 24 of the Constitution without providing any analysis of how the criteria laid down in Article 24 are met. It
is urged that the disclosures required by Regulations 12, 13 and 14 include trade secrets, manufacturing processes and other IP
rights, and that Article 40(2)(a) of the Constitution prohibits Parliament from enacting a law that permits the State to arbitrarily
deprive a person of property of any description or of any interest in, or right over, any property of any description. Under Article
40(5), the State is obligated to support, promote and protect the IP rights of the Appellant, and therefore the disclosure required by
the Regulation may result in the deprivation of the Appellant’s IP rights.
[52] Lastly, it was urged that Regulation 15(b) is ultra vires the Act. This Regulation provides that no person shall smoke in streets,
walkways or verandas adjacent to a public place. The Appellant submitted that the streets and walkways are not designated public
places under the Act and Regulation 15(b) and could not give effect to Section 32 of the Act. Hence, the Court of Appeal erred in
failing to find that this Regulation is ultra vires the powers and authority of the 1st Respondent under the Act.
b) Affected Party’s Submissions
[53] Counsel Mr. Macharia argued the case of the Affected Party, Mastermind Tobacco Kenya Limited before the Court. It had filed
its written submissions on 31st July 2017 in which it agreed with and supported the Appellant’s case. It submitted that it is the only
indigenous company in East and Central Africa and that the Regulations would destroy the local Tobacco industry.
[54] It reiterated the submissions of the Appellant concerning lack of due process, particularly that of public participation, in the
making of the Regulations contrary to the Constitution and the SIA. It contended that it was not appropriately consulted on the
Regulations and the representations it made on its own motion on previous drafts were not responded to and there is no evidence
that they were meaningfully and genuinely considered. Further, that there is no evidence of the involvement of experts and or a
representation from a cross-section of the public in preparation of the Regulations. It also decried the lack of or failure to publish an
RIS by the 1st Respondent as required by the SIA.
[55] The Affected Party also urged that the solatium was illegal and amounted to taxation without representation. It argued that it is
ultra vires the power and authorities under the Act and it is unclear as to the mechanism used to compute, raise, collect and disburse
the fund. Counsel argued that the solatium therefore, amounts to unlawful imposition of tax or fee contrary to Article 210 of the
Constitution. In this regard, it reiterated that the solatium is a tax, yet imposition of tax or licensing fee is not provided for by
Section 7(2)(f) of the Act. It further urged that the imposition of such a tax was without due process of the law, that is, without
determination of a wrong on the part of the Affected Party that caused injury to the State, or damages suffered by the State. It is
therefore unlawful and amounts to taking of the Affected Party’s property rights under Article 40 of the Constitution. Further, there
is no determination of a legitimate purpose of the solatium and as such, the imposition of the solatium violates Articles 10(1) and 47
of the Constitution.
c) Respondents’ submissions
[56] The Respondents’ case was argued by Counsel Mr. Adan. The Attorney General had filed its submissions on 28th July, 2017. It
had also filed Grounds of Opposition on 7th July 2017. In arguing their case, the Respondents submitted that the Appellant and the
Affected Party were merely re-litigating their case and it was not shown how the Court of Appeal misapplied the law.
[57] It was submitted that the process of making the Regulations was strictly in accordance with the SIA as captured in the Replying
Affidavit of Mr. James W. Macharia dated 28th July 2015, a fact also found by the Superior Courts. They also urged that the

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Regulations were exempted from the need for a RIS under Section 9(g) of the SAI.
[58] It was urged that the Regulations are consistent with the Parent Act and that under Section 53 of the Tobacco Control Act,
2007, the Cabinet Secretary for Health, on the recommendations of the Tobacco Control Board, is empowered to make Regulations
for the purpose of realizing the objects of the Act. It was submitted that in determining whether the Regulations are inconsistent
with the Parent Act, where the dispute relates to the application of an international treaty, Article 2(5) & (6) of the Constitution and
Article 31 of the Vienna Convention on the Laws of Treaties, 1969 should be the guide. They urged that in determining the legality
of the Regulations, they must be subjected to the four corners of the Parent Act. The decision of the Supreme Court of India in
Maharashtra State Board of Secondary’ & Higher Secondary’ Education v Kurmarsheth & Others 1985J LRC (Const), which
case was cited by the Court of Appeal in Nature Foundation Limited v Minister for Information and Communication & another
[2015] eKLR was submitted to be instructive on this. In that case it was stated:
“The validity of Regulation is to be determined by reference to specific provisions of the Statute conferring the power of
delegated legislation and to its objects and purposes. Provided the Regulations have rational nexus with the object and purpose
of the Statute, the court should not concern itself with the wisdom and effectiveness… The court should not concern itself with the
merits or demerits of a policy pursued by means of delegated legislation, but only with the question whether the delegated
legislation falls within the scope of power conferred by Statute and is consistent with the Act and the Constitution.”
[59] Counsel further cited the case of U.S vs Butler, 297 U.S. 1 [1936] where it was held that, “when an Act of congress is
appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has
only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the
latter squares with the former”… that the “Court neither approves nor condemns any legislative policy.” Also cited were R vs Big
M Drug Mart Ltd, [1985] 1 S.C.R. 295 and Ndyanabo v s Attorney General of Tanzania [2001] EA 495 in urging that there is a
presumption that every Act of Parliament is constitutional, and the burden of proving the contrary lies on the one who alleges
otherwise.
[60] They submitted that the Court should strive to interpret the provisions of the Regulations in a manner that will realize the
intention of the Legislature: to regulate and control the growth, sale, distribution and consumption of Tobacco and its products.
They argued that there is need for a liberal and intentional based approach and that in interpreting a Statute or Regulations, the Court
should adopt a purposive approach to achieve the real purpose as was laid down in Heydon’s Case (1584) 300 where it was stated
that in the application of this rule, four things are to be discerned: what was the law before enactment of the Act; what was the
mischief or defect for which the old law did not provide; what remedy the Act or Law intended to cure the mischief or defect; and
the true reason of the remedy.
[61] The Respondents urged that the Regulations should be construed in a manner that enhances the purpose or objectives for which
the same are enacted for. They argued that the burden of proof lies with the Appellant and the Affected Party to show that the
Regulations are inconsistent with the Parent Act and the Constitution, and that the Regulations violate their rights. It is not enough
to say that the Regulations are ambiguous or unconstitutional as the Regulations were arrived at through a consultative process.
[62] They explained that the Regulations are divided into 8 parts, and that each is in conformity with the relevant Sections of the
Act. The Respondents then proceeded to link each Part of the Regulations and the particular Sections of the Act it conformed with.
They submitted that Part II of the Regulations conforms to Sections 16, 21, 22, 23, 24, 25 & 26 of the Act and that Part III of the
Regulations is in conformity with Section 4 of the Act. It was submitted that the disclosures required are meant for counteractive
measures to control and mitigate Tobacco related problems. The Respondents argued that the disclosure is reasonable and justifiable
in an open and democratic society based on the Bill of Rights, human dignity, equality and freedom. This disclosure is directly
supported by guidelines for implementation for Article 10 of the WHO FCTC (disclosure to government authorities), and Article
20.2 of the WHO FCTC (national health surveillance).
[63] Part IV of the Regulations was submitted to be in conformity with Sections 32, 33, 34 & 35 of the Act. Part V conforms to
chapter 6 of the Constitution, the Act, the Public Officer Ethics Act, 2003, the Leadership and Integrity Act and Article 5.3 of the
WHO FCTC and guidelines. Part VI of the Regulations which provides for the 2% Solatium is in conformity with Section 7(2)(f) of
the Act and Article 6 of the WHO FCTC and is meant to cater for the health perils caused by Tobacco use. The Respondents urged
that the solatium is not unconstitutional and is just like any other levy such as tourism levy fund under Section 105 of the Tourism
Act, Cap. 383. They urge that the Tobacco Control Act was enacted in 2007 through public participation processes and Section
7(2)(f) was operationalized by the Regulations.

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[64] It was urged that the Petition does not meet the threshold as per the principles in Anarita Karimi Njeru vs the Republic
(1976-1980) KLR 1272 as the Appellant failed to show even a single right that was violated and the manner in which that right had
been violated or even threatened. The Respondents wondered how Regulations which they believe are lifesaving and beneficial to
the public violates the rights of any one including the Appellant.
[65] As regards allegation of violation of the right to property, the Respondents cited among others, the case of Richard Dickson
Ogendo & 2 others v Attorney General & 5 others [2014] eKLR, where Majanja J held:
“Article 40 of the Constitution protects the person from arbitrarily deprivation of property. The petitioner has not shown how his
right to protection has been arbitrary taken away. In any case, the law does not prevent people from drinking alcohol at places of
their choice but driving when drunk.”
In that regard, it was submitted that the Regulations do not prevent people from smoking, they simply regulate how and when it can
be done; this does not amount to a constitutional violation. It was urged that the Learned Judges of the Superior Courts did not
misapply the law or the facts in arriving at their decisions.
[66] Submitting on public interest protection, it was urged that whereas there are no hierarchy of rights, there has to be a balance
between the competing rights of the Appellant, which are not absolute and are driven by profits, and the greater public health
interests in a mutually respectable manner. As such, there are instances where some private rights and interests have to give way to
greater public rights and interests. The Respondents argued that the Appellant makes no submission on the right to health vis a vis
it’s rights. The right to health is one of the most fundamental human rights which were a primary concern in developing the WHO-
FCTC. Article 21(2) of the Constitution, in mandatory terms, demands the State to provide legislative, policy and other measures to
achieve rights guaranteed under Articles 42 and 43 of the Constitution, including the right to a clean and healthy environment, and
the right to the highest attainable standard of health. To buttress this argument, the Respondent cited East African Cables Limited
vs The Public Procurement Complaints, Review & Appeals Board and another (2000) eKLR.
[67] They urged that Tobacco Control and Regulation is a global practice and Kenya being a respectable member of the
International Community and a Party to WHO FCTC cannot be exceptional. The purpose of the Regulations is to protect the global-
citizens those-who-smoke and those-who-do-not, from the harmful effects of Tobacco consumption and use, by informing them the
effects of the same. The WHO Framework Convention on Tobacco Control (FTCT), the first-ever public health treaty, provides a
framework and set of legally-binding measures to be implemented in countries that have ratified it and is an evidence-based treaty
that affirms the right of all people to the highest standard of health. The Respondents submitted that under Article 2 (6) of the
Constitution, Kenya is a signatory to the WHO FCTC, is duty bound to fulfil its obligations under the FCTC by enacting and
implementing FCTC compliant legislations and Regulations.
d) 1st and 2nd Interested Parties’ submissions
[68] Their case was argued by Counsel Mr. Nyamweya. They filed a Reply to the Petition and Submissions on 28th July 2018. They
supported the Respondents in opposing the petition of appeal. It was their case that there was adequate public participation in the
process of making Regulations. They submitted that there is no specific style in which public participation is to be modeled on.
They cited the case of Minister of Health v New Clicks South Africa (PTY) Ltd (2006) (2) SA in urging that the forms of
facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation.
[69] They urged that the complaint is neither that the Appellant was not consulted nor denied the opportunity to take part in the
deliberations about the proposed Regulations. Its complaint is that, it should have been consulted as a specific entity. In this regard,
they submit that public participation is for everyone and not an exclusive province of a solitary person or corporation however
influential or large. They referred to the case of Merafong Demarcation Forum v President of the Republic of South Africa
[2008] ZACC 10 and submitted that a person consulted or who participated in the forum would air his or her views but the
prerogative to adopt them remains with the law-making body. Where the views expressed by members of the public or those
interested in the matter are in direct conflict with the policies of the government, such views cannot be said to be binding on the law-
making authority.
[70] They agreed with the Respondents that the Regulations are exempted from the need for RIS under Section 9(g) of the SIA as
they were complimentary to the Act.

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[71] They submitted that the Appellant misconstrued the Superior Courts’ judgments on the effect of Tobacco products. They urged
that the Courts were emphatic that the negative effects of Tobacco necessitated the promulgation of the Regulations. Hence, the
State’s discharge of its duty to secure and promote health cannot be said to be a violation of private rights. They referred to the case
of British American Tobacco & Philip Morris v Secretary of State for Health in which the Court held that when it comes to
matters of public health, States have power to take pecuniary measures to protect their citizens; this is what the Tobacco
Regulations, 2014 seeks to do.
[72] It was their case that the Superior Courts correctly directed themselves on the standard to be applied in considering the
conformity of legislation with the Constitution as espoused in the CORD v R case, and Article 259 of the Constitution which
standard is: promotion of the purposes, values and principles of the Constitution; advancement of the rule of law; promotion of
human rights and fundamental freedoms in the Bill of Rights; securing good governance; and adopt a liberal purposive approach.
Public interest is at the core of the existence of the Regulations and the Appellant’s rights are therefore diametrically in competition
with those of the public.
[73] It also urged that as Lenaola, J (as he then was) stated in Nairobi Metropilitan PSV Saccos & Others v County of Nairobi
government & others, it is not for the court to decide what is appropriate or right or wise legislative provision. As was stated in
Poverty Alleviation Network & Others v President of the Republic of south Africa & others [2010] ZACC 5, a court cannot
interfere with legislation simply because it may disagree with its purpose or believes that it should be achieved in a different way.
Therefore, the Court should not entertain the Appellant’s attack on the Regulations on account of bad faith, pre-determined motives
and vindictiveness. The Interested Party submitted that the Regulations meet all the tests enunciated in the CORD case, that is: they
have been prescribed by the Parent Statute and are part of it; they are clear; their objective is pressing and the problem they are
aimed at addressing is substantial; they are proportionate to the magnitude of the effect of Tobacco on health.
[74] As regards the constitutionality of specific provisions of the Regulations, they agreed with the submissions of the Respondents
that Regulations limiting interactions between Tobacco industry and public officers are constitutional as they flow from the ethic
and integrity requirements in Chapter 6 of the Constitution, the TCA, Public Officers Ethics Act and the Leadership and Integrity
Act, Article 5.3 of the WHO Framework Convention and the Guideline thereto. It was urged that the Regulations are aimed at
achieving effectiveness of the Tobacco control legislation that is free of conflict of interest amongst the enforcement and
administration officers.
[75] They submitted that the power of the 1st Respondent to make these Regulations flows from Section 53 of the Act. The
enactment of the Act was in fulfilment of Kenya’s obligation under the WHO FCTC which Kenya ratified on 25th June, 20o4. The
same is also anchored in the Constitution under Article 2(6) of the Constitution. Further, that the Regulations are not discriminatory
as they affect all the players in the industry and do not target only the Appellant and the Affected Party.
[76] They agreed with the Court of Appeal findings on the solatium and submitted that it is in accordance with Section 7 of the Act
and not ultra vires. It does not violate Article 210 of the Constitution as it is not a tax or fee levied by the National or County
government for purposes of National or County revenue. It does not amount to deprivation of the Appellant’s property. It is a
payment that will be paid by all Tobacco manufacturers and importers. It will not solely come from the Appellant, hence not
discriminatory.
[77] They also submitted that the Court of Appeal was right in its findings as regards the disclosure Regulations, that the State has a
duty to secure and promote the health of its citizens and that the discharge of that duty cannot and can never be said to be in
violation of private rights. Private rights include those protected under municipal law and international law can legally be overridden
by public interest consideration. Finally, they urged that the petition be dismissed with costs.
e) Appellant’s Reply
[78] Upon the Respondents and the Interested Parties filing their Written Submissions on 28th July, 2017, the Appellant filed its
Submissions in Reply on 11th August 2017 responding to each and every submission made by the Respondents and reiterate its
submissions in support of the Appeal. They reiterated that the process of making the Regulations was flawed and that there is no
public interest in violating rights and fundamental freedoms in the Constitution. Therefore, the Respondents cannot justify using that
argument. Further, Mr. Kiragu urged that if the Court finds that it is inclined to uphold the Court of Appeal, it should give directions
as to when the directions should take effect. He urged that preferably, the Court should order that the Regulations become
operational after 6 months of the judgment.

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V. ISSUES FOR DETERMINATION
[79] In the Petition, the Appellant framed ten (10) issues for determination, which in its written submissions, it summarized into two
broad issues as follows:
(1) Whether the process leading to the making of the Regulations was unconstitutional or otherwise unlawful" and
(2) Whether some specific provisions of the Regulations, and Section 7(2)(f) of the TCA, are unconstitutional or otherwise unlawful"
[80] On their part, the Respondents, through the Attorney General’s Written Submissions filed on 28th July, 2017 framed four
issues for determination in the following terms:
(a) Whether the processes of making the Regulations was in accordance with the Statutory Instruments Act, 2013"
(b) Whether the Regulations are inconsistent with the Parent Act, i.e the Tobacco Control Act of 2007"
(c) Whether the Appellant’s Petition meets the threshold test of constitutional proof as per the Principles in Anarita Karimi Njeru
vs The Republic (1976-1980) KLR 1272" and
(d) Whether the Hon. Judges misapplied the law and the facts before them in arriving at the judgment of 17th February, 2017"
[81] While parties may propose issues for determination in a matter before the Court, it is the unfettered prerogative of the Court to
delimit the issues for determination that it will consider a matter before it. Consequently, the Supreme Court is not bound by the
issues as framed by the parties.
[82] Before delimiting the issues for determination in this case, however, we would like to underscore the jurisdiction under which
this matter is determined. The Appellant’s case is anchored on Article 163(4)(a) of the Constitution, that is, it has appealed to this
Court as of right that its matter “involves issues of constitutional interpretation and application”. We reiterate that under Article
163(4)(a) of the Constitution, not every case or issue determined by the Court of Appeal falls for appeal to this Court. In Gladys
Wanjiru Munyi v Diana Wanjiru Munyi, [2015] eKLR, this Court reiterated its earlier jurisprudence [Paragraph 12] thus:
“In Peter Ngoge v. Francis Ole Kaparo & 5 Others, Sup. Ct. Petition No. 2 of 2012 [2012] eKLR, we signalled the guiding
principle that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, do indeed have the competence
to resolve all matters turning on the technical complexities of the law, and that only cardinal issues of law, or of jurisprudential
moment, deserve the further input of the Supreme Court.”
[83] It follows that even where it is established that a matter or issue was before the High Court and rose to the Court of Appeal,
that matter or issue does not automatically qualify for appeal before the Supreme Court under Article 163(4)(a) of the Constitution.
The Court is under an obligation to undertake a forensic audit and sieve out matters so that only issues that rightfully involve the
interpretation and or application of the Constitution are presented and determined by the Supreme Court. Consequently, while the
Appellant, and to some extent the Respondents, have addressed this Court on a number of issues in this case, the Court warns itself
that some of these issues do not fall for determination before this Court in exercise of its appellate jurisdiction under Article
163(4)(a) of the Constitution. This is the foundation upon which we proceed to frame the issues for determination in this matter.
[84] Consequently, upon a thorough appraisal of the matter before us, and guided by the issues framed for determination before us
by both the High Court and the Court of Appeal, the following issues rightfully crystallize for determination:
(i) Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public
participation"
(ii) Whether specific provisions of the Regulations are unconstitutional for being discriminatory as against the Appellant"
(iii) Whether specific provisions of the Regulations violate the Appellant’s right to privacy and infringe on Intellectual Property

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rights"
(iv) Whether the imposition of the Solatium compensation contribution amounts to unlawful taxation"
(v) What are appropriate reliefs"
VI. ANALYSIS AND DETERMINATION
(i) Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public participation
and consultation "
[85] Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10
of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a)
applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions.
As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that
permeates the Constitution and in accordance with Article 1(4) of the Constitution is exercised at both national and county levels”.
[86] Article 118 of the Constitution provides for public participation in the legislation making process, as follows:
“Public access and participation
(1) Parliament shall-
(a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and
(b) Facilitate public participation and involvement in the legislative and other business of Parliament and its committees”.
Therefore, while the legislative mandate is delegated to Parliament, it must facilitate public participation as the onus of ensuring
public participation rests with it.
[87] Since the promulgation of the Constitution 2010, the question of the rationale, scope and application of public participation as a
principle of governance has been subject of numerous decisions by the courts. The High Court in this matter appraised itself of the
various decisions on the same, which appraisal the Court of Appeal readily endorsed. In the Matter of the National Land
Commission, the Supreme Court placed the principle of public participation at the core of the concept of checks and balances in
governance in the execution of their functions by the various arms of government, when we stated:
“[308] The conditioning medium within which these functions have to be conducted, is constituted by the national values and
principles outlined in Article 10 of the Constitution: in particular, the rule of law; participation of the people; equity;
inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It is to be noted
that, the very essence of checks-and-balances touches on the principles of public participation, inclusiveness, integrity,
accountability and transparency; and the performance of the constitutional and statutory functions is to be in line with values
of integrity, transparency, good governance and accountability…”
[88] The Retired Chief Justice, Dr. Willy Mutunga, in his concurring opinion expounded on the principle and traced the place of the
People in the Constitution making process thus:
“[320] In the entire history of constitution-making in Kenya, the participation of the people was a fundamental pillar. That is
why it has been argued that the making of Kenya’s Constitution of 2010 is a story of ordinary citizens striving to overthrow, and
succeeding in overthrowing the existing social order, and then defining a new social, economic, political, and cultural order for
themselves. It is, indeed, a story of the rejection of 200 Parliamentary amendments by the Kenyan elite that sought to subvert the
sovereign will of the Kenyan population. Public participation is, therefore, a major pillar, and bedrock of our democracy and
good governance. It is the basis for changing the content of the State, envisioned by the Constitution, so that the citizens have a
major voice and impact on the equitable distribution of political power and resources. With devolution being implemented under

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the Constitution, the participation of the people in governance will make the State, its organs and institutions accountable, thus
making the country more progressive and stable. The role of the Courts, whose judicial authority is derived from the people of
Kenya, is the indestructible fidelity to the value and principle of public participation.
[89] The Rtd Chief Justice drew from caselaw on the principles for public participation in various court decisions including Speaker
of the Senate & another v. Attorney General& 4 others Sup. Ct. Advisory Opinion No. 2 of 2013; [2013] eKLR; Thuku Kirori & 4
Others v. County Government of Murang’a Petition No. 1 of 2014; [2014] eKLR; Nairobi Metropolitan PSV Saccos Union
Limited & 25 Others v. County of Nairobi Government & 3 Others Petition No. 418 of 2013; [2013] eKLR; and Robert N. Gakuru
& Others v. Governor Kiambu County & 3 Others, Petition No. 532 of 2013 consolidated with Petition Nos. 12 of 2014, 35, 36
of 2014, 42 of 2014, & 72 of 2014 and Judicial Review Miscellaneous Application No. 61 of 2014; [2014] eKLR [Robert
Gakuru case](Most of these cases were also referred to by the High Court in this matter). He also referred to the jurisprudence from
the South African Constitutional Court decision, Doctors for Life International v. Speaker of the National Assembly and
Others [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) which also considered the role of the public in the law-
making process. It in part stated as follows:
“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It
encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government
and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their
voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce
laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the
people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling.
Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great
disparities of wealth and influence exist.
116. Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy.
The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and
transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in
accordance with the principles of our participatory democracy”
[90] Earlier on, the Supreme Court had reiterated the centrality of public participation as regards the issue of digital migration, in the
case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, [2014] eKLR. We stated
inter alia:
“Public participation is the cornerstone of sustainable development and it is so provided in the Constitution…
[381]Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the
Kenyan citizenry is adult enough to understand what its rights are under Article 34. In the cases of establishment, licensing,
promotion and protection of media freedom, public participation ensures that private “sweet heart” deals, secret contracting
processes, skewed sharing of benefits-generally a contract and investment regime enveloped in non-disclosure, do not happen.
Thus, threats to both political stability and sustainable development are nipped in the bud by public participation. Indeed, if they
did the word and spirit of the Constitution would both be subverted.”
[91] The High Court in this matter, as observed by the Court of Appeal, appropriately referred to several decisions on public
participation and consultation. All these cases are illuminating on the place of public participation in governance under the
Constitution 2010.
[92] In Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA)
Kenya & 6 others Judicial Review No. 378 of 2017; [2017] eKLR among the issues for consideration before the High Court was
whether the IEBC was constitutionally obliged to facilitate public participation as part of the tendering process. The High Court
allowed the Petition and quashed the award of the tender for lack of public participation. It ordered that the procurement process
begin de novo in accordance with the Constitution. IEBC appealed to the Court of Appeal. In upholding the appeal, setting aside the
High Court decision, the Court of Appeal considered the big issue of justifiability and enforceability of Article 10 of the
Constitution, which encompasses the principle of public participation. The Appellate Court in Independent Electoral and
Boundaries Commission (IEBC) v National Super Alliance(NASA) Kenya & 6 others, Civil Appeal No. 224 of 2017; [2017]
eKLR held that Article 10(2) and the principles therein are for immediate realization, thus:

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“80. In our view, analysis of the jurisprudence from the Supreme Court leads us to the clear conclusion that Article 10 (2) of the
Constitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused
in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not
directive principles.
We agree with this pronouncement and reiterate that the principle of public participation as anchored in Article 10 of the
Constitution is alive and the same is equally justiciable before our courts.
[93] While the Court of Appeal in the above matter was dealing, particularly, with the question of the place of public participation in
procurement, its pronouncement is illuminating on the principle of public participation in general. Having appraised several
decisions on the issue, the Appellate Court stated thus:
“164. Our analysis of the emerging jurisprudence from the Supreme Court and other superior courts as well as the reading of
the express provisions of Section 3 of the Public Procurement and Asset Disposal Act, 2015 as read with Articles 10 (2)
(b) and 227 of the Constitution lead us to find that as a general principle (subject to limited exceptions) public participation is a
requirement in all procurement by a public entity. The jurisprudence also reveals that allegation of lack of public participation
must be considered in the peculiar circumstances of each case. The mode, degree, scope and extent of public participation is to
be determined on a case by case basis.
165. What is critical is a reasonable notice and reasonable opportunity for public participation. In determining what is
reasonable notice, a realistic time frame for public participation should be given. In addition, the purposes and level of public
participation should be indicated. Reasonableness is also to be determined from the nature and importance of legislation or
decision to be made, and the intensity of the impact of the legislation or decision on the public. The length of consultation during
public participation should be given and the issues for consultation. Mechanisms to enable the widest reach to members of
public should be put in place; and if the matter is urgent the urgency should be explained.”
[94] Finally, the Court of Appeal found that subject to a few stated exceptions, public participation was a mandatory requirement in
all procurement done by a public entity. As regards lack of a framework on how to achieve public participation the Court observed:
“…
[189]. We have considered this submission in light of the provisions of Article 10 (2) of the Constitution and other relevant
Articles where public participation is constitutionally required. In our considered view, the absence of a legal framework for
public participation is not an excuse for a procuring entity or a State organ to fail to undertake public participation if required
by the Constitution or law. A State organ or procuring entity is expected to give effect to constitutional principles relating to
public participation in a manner that satisfies the values and principles of the Constitution.
[95] Indeed the High Court, Odunga J, in Robert N. Gakuru & Others v Governor Kiambu County & 3 others [2014] eKLR, in
which case the Learned Judged extensively borrowed from the South African jurisprudence in Doctors for Life International vs.
Speaker of the National Assembly and Others, illuminated the law of public participation. He emphasized on the seriousness with
which public participation should be undertaken:
“75. In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the
purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to
ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to
simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever
is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to
pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is
even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to
participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches,
mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are
known to converge to disseminate information with respect to the intended action.”
[96] From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional

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principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people
continue to find their sovereign place in the governance they have delegated to both the National and County Governments.
Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the
Supreme Court Act, we would like to delimit the following framework for public participation:
Guiding Principles for public participation
(i) As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of
governance.
(ii) The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and
facilitating public participation.
(iii) The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation;
the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv) Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality
to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and
qualitative components in public participation.
(v) Public participation is not an abstract notion; it must be purposive and meaningful.
(vi) Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be
determined on a case to case basis.
(vii) Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The
fact that someone was not heard is not enough to annul the process.
(viii) Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered
within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be
determined on a case to case basis.
(ix) Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
[97] With the above legal framework on public participation, we now proceed to consider whether the Tobacco Regulations 2014
are unconstitutional for limited or lack of public participation in the process leading to their enactment. In making this
determination, we reiterate that we are limited to issues of constitutional interpretation and/or application only.

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[98] Upon evaluation of the Court of Appeal judgment, we find that the Appellate Court rightly appreciated the constitutional
principle of public participation. The Court of Appeal endorsed the High Court’s analysis on several decisions on the issue, which
we have also endorsed in this Judgment. We find that the Court of Appeal did not err in its findings on the meaning, scope and
application of the principle of public participation. Having noted the law, the Court of Appeal considered the High Court’s
application of the affidavit evidence on record to the stated law and concluded that: “ given the facts that were before the learned
judge, we have no reason to fault the learned judge for finding that the stakeholder meetings, discussions and communications
constituted adequate public participation and consultation.” We find and hold that there is nothing of constitutional interpretation
and/or application in this finding, and/or conclusion by the Court of Appeal on how the High Court evaluated the Affidavit evidence
before it. Consequently, that issue rests as before this Court.
[99] The second ground upon which the Regulations making process was impugned was due to lack of a Regulatory Impact
Statement (RIS). While parties submitted at length on the issue before this Court, we find that issue is not for consideration by this
Court under Article 163(4)(a) of the Constitution. As submitted by both parties the requirement for an RIS is provided for by the
Statutory Instrument Act. It is statutory anchored. Hence, the question(s) as to whether the same was required, exempted and/or
published involves evaluation and interrogation of factual evidence; and a reading and interpretation of the Statutory Instruments
Act. All these are issues that fall well within the jurisdiction of the High Court and the Court of Appeal. However, they fall outside
the jurisdiction of this Court as there is nothing of constitutional interpretation and or application to invoke this Court’s jurisdiction
under Article 163(4)(a) of the Constitution. It is not being argued that the SIA itself is unconstitutional for requiring and/or waiving
the requirement of an RIS. Therefore, the Court of Appeal’s finding on this issue rests before this Court.
(ii) Whether specific provisions of the Regulations are unconstitutional for being discriminatory as against the Appellant"
[100] In this regard, what was impugned was Part V of the Regulations (20-36) which limits interactions between the Tobacco
industry and public officers and or authorities. The Appellant argued that this limitation infringes on Article 27 of the Constitution
that guarantees the right to equality and freedom from discrimination. In its judgment, the Court of Appeal agreed that a look at this
Part V of the Regulations indeed showed that they were discriminatory. However, the Appellate Court were of the opinion that not
all discrimination was unfair. It was persuaded by the case of President of the Republic of South Africa & Anor vs. John Philip
Hugo 1997(4) SAICC para 41, wherein it was stated:
“We need to develop a concept of unfair discrimination which recognizes that although a society which affords each human
being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting upon
identical treatment in all circumstances before the goal is achieved. Each case, therefore will require a careful and thorough
understanding of the impact of the discriminatory action upon the particular people concerned to determine whether its overall
impact is one which furthers the constitutional goal of equality or not. A classification which is unfair in one context may not
necessarily be unfair in a different context.”
[101] Also cited was the case of Federation of Women Lawyers Fida Kenya & 5 Others vs. Attorney General & Anor [2011]
eKLR where it was held that:
“In our view, mere differentiation or inequality of treatment does not per se amount to discrimination within the prohibition of
the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is
unreasonable or arbitrary, that it does not rest on any basis having regard to the objective the legislature had in view or which
the Constitution had in view. An equal protection is not violated if the exception which is made is required to be made by some
other provisions of the Constitution. We think and state here that it is not possible to exhaust the circumstances or criteria which
may afford a reasonable basis for classification in all cases”.
[102] We are in agreement that not all forms of discrimination are unfair. Each case where discrimination is alleged has to be
evaluated on its own peculiar facts. It is worth noting that the rights under Article 27 of the Constitution, equality and freedom from
discrimination are not non-derogable rights under Article 25 of the Constitution. They are subject to the limitation clause under
Article 24 of the Constitution. To this end, we agree with the Appellant that in limiting their rights under Article 27, the same can
only be done if the principles in Article 24 have been met. The Article provides:
“24(1) A right or fundamental freedom in the Bill of rights shall not be limited except by law, and then only to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking
into account all relevant factors, including-

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(a) the nature of the right or fundamental freedom;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and
fundamental freedoms of others; and
(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.”
[103] Comparatively, the Constitutional Court of South Africa in S v Manamela and Another (Director-General of Justice
Intervening) (CCT25/99) [2000] ZACC 5 had a chance to interpret Section 36 of the South African Constitution, which is pari
materia to Article 24 of the Kenyan Constitution. That Court stated:
“It should be noted that the five factors expressly itemised in Section 36 are not presented as an exhaustive list. They are
included in the Section as key factors that have to be considered in an overall assessment as to whether or not the limitation is
reasonable and justifiable in an open and democratic society. In essence, the Court must engage in a balancing exercise and
arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list. As a general rule, the
more serious the impact of the measure on the right, the more persuasive or compelling the justification must be. Ultimately, the
question is one of degree to be assessed in the concrete legislative and social setting of the measure, paying due regard to the
means which are realistically available in our country at this stage, but without losing sight of the ultimate values to be
protected.
Although Section 36(1) differs in various respects from Section 33 of the interim Constitution, its application continues to
involve the weighing up of competing values on a case-by-case basis to reach an assessment founded on proportionality. Each
particular infringement of a right has different implications in an open and democratic society based on dignity, equality and
freedom. There can accordingly be no absolute standard for determining reasonableness. This is inherent in the requirement of
proportionality, which calls for the balancing of different interests. The proportionality of a limitation must be assessed in the
context of its legislative and social setting. Accordingly, the factors mentioned in Section 36(1) are not exhaustive. They are key
considerations, to be used in conjunction with any other relevant factors, in the overall determination whether or not the
limitation of a right is justifiable.”
[104] We have evaluated the findings of the Superior Courts on this issue. The High Court found that the limitation was justified
and that it was within the mandate of the CS Health to make the Regulations. It stated:
“145. The intention behind this limitation is, in my view, to ensure effective enforcement and implementation of the Tobacco
control laws. It accords with the provisions of Article 24 of the Constitution as it allows differentiation in interactions with public
officers between the Tobacco industry and other industries which is permissible under the Constitution.”
[105] In reaching her decision, the Learned Judge was persuaded by the decision of State of Kesata and Another vs N.M. Thomas
and Others, 1976 AIR 490, 1976 SCR (17906):
“The principle of equality does not mean that every law must have universal application for all persons who are not by nature,
attainment or circumstances in the same position and the varying needs of different classes of persons require special treatment.
The legislature understands and appreciates the need of its own people, that its laws are directed to problems made manifest by
experience and that its discriminations are based upon adequate grounds. The rule of classification is not natural or logical
corollary of the rule if equality, but the rule of differentiation is inherent in the concept of equality. Equality means parity of
treatment under parity conditions. Equality does not connote absolute equality. A classification in order to be constitutional must
rest upon distinctions that are substantial and not merely illusory. The test is whether it has a reasonable basis free from
artificiality and arbitrariness embracing all and omitting none naturally falling into that category.”
[106] The Learned Judge was also persuaded with the dictum in S vs Makwanyane and Another, CCT 3/94 (1995) 2A CC3 as
regards limitation of rights thus:

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“[104] The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the
weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provision of
Section 33(1). The fact that difference rights have different implications for democracy, and in the case of our Constitution, for
“an open and democratic society based on freedom and equally”; means that there is no absolute standard which can be laid
down for determining reasonableness and necessity. Principles can be established, but the application of those principles to
particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which
calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the
right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which
the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly
where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less
damaging to the right in question.”
[107] On appeal, the Court of Appeal upheld the High Court stating:
“66. The inequality of treatment in limiting interaction between the public officers/authorities and members of the Tobacco
industry does not amount to discrimination as it is dictated by the circumstances obtaining. Moreover, the limitation does not
target only a specific group of players in the Tobacco industry but applies to all players in the Tobacco industry. We are satisfied
that in ensuring the delicate balance of rights, the limitation of the appellant’s rights is justifiable, reasonable and necessary
under Article 24 of the Constitution to ensure the enjoyment of rights and fundamental freedoms by all individuals.”
[108] We are persuaded that it is not enough for the Appellant to generally state that the requirements in Article 24 have not been
met in limiting the rights under Article 27. Those factors are not exhaustive but are mutually inclusive. They have to be evaluated
from within the society within which the Regulations are meant to operate. We disagree with the Appellant that the Superior Courts
were wrong in taking into consideration ‘extraneous factors’ such as the effects and ills of the Tobacco use on the health of the
users in justifying the discrimination, that is, the limitation of the contact between Tobacco manufacturers and public officers. We
find that there is no way the Regulations can be legitimately made without the CS for Health factoring in the consequences and/or
impact of Tobacco use. Such an approach will be akin to the proverbial ostrich burying its head in the sand. In any event, the effects
of Tobacco are now subject of much national and international documentation and discussions.
[109] Ultimately, we find that the Superior Courts correctly rendered themselves on the limitation of the Appellant’s right of
association as regulated by Part V of the Regulations. The Appellant’s appeal on this issue before this Court therefore fails.
(iii) Whether specific provisions of the Regulations violate the Appellant’s right to privacy and infringe on Intellectual Property
rights"
[110] It was the Appellant’s case that Part III of the Regulations (12-14), on disclosure of information infringed on its right to
privacy and Intellectual Property. It maintained that the disclosures required include, trade secrets, manufacturing processes and
other intellectual property rights. The High Court in its judgment weighed the Appellant’s intellectual property rights vis-à-vis the
public rights and held:
“In any event, it is my view that such requirements and disclosure outweigh the intellectual property rights pertaining to
Tobacco products, though it must be emphasized that the infringement thereof has not emerged from the petitioner’s case. At
any rate, I am guided in my consideration of this issue by the sentiments of the Canadian court in the case of Canada (Attorney
General) vs JTI-MacDonald Corp 2007 SCC 30 (CanLII) in which it was observed as follows:
“[T]obacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs. We now know that
half of smokers will die of Tobacco-related diseases and that the costs to the public health system are enormous. We also know
that Tobacco is one of the hardest addictions to conquer and that many addicts try to quit time and time again, only to relapse.”
Confronted with such a product and a need to balance the public health interests and the rights of the public against the
commercial interests of the petitioner and others in the Tobacco industry, the choice is fairly obvious.”
Therefore, the High Court found that the Part of the Regulations requiring disclosure was justifiable, save for the part requiring the
supply of information relating to their market share, which was found to be unreasonable.

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[111] On appeal, the Court of Appeal agreed with the High Court finding:
“87. We have considered the findings of the learned judge and the contending arguments in regard to Regulations 12 and 14.
Our reading of Regulation 12 reveals that they relate to product disclosures. The product disclosures relate to ingredients that
are used in the products and such disclosure may to some extent expose or compromise the interests of the appellant and other
players in the Tobacco industry by infringing on their intellectual property rights. The issue is whether the disclosure
requirement under Regulation 12-14 are justified and reasonable.
88. The appellants have not denied that Tobacco products have negative side health effects not only to the consumers but even
other innocent persons who become passive smokers by inhaling second-hand smoke. Therefore, there are public health needs
that have to be balanced against the intellectual property rights of the appellant and other Tobacco industry players, in order to
determine whether limitation of the appellant’s intellectual property rights is justified. This requires demonstration that the
societal need for the limitation of the intellectual property rights outweighs the individual right to enjoy the rights to intellectual
property.
90. We take the view that although Regulations 12 limits the intellectual property rights of the Tobacco industry players, that
limitation is reasonable and justifiable under Article 24 of the Constitution as they are meant for counteractive measures to
control and mitigate Tobacco related health problems. The disclosure requirements are therefore, neither unconstitutional nor
ultra vires nor unlawful.”
[112] The Superior Courts considered the balance between the Appellant’s intellectual property rights and the need to protect the
public health from the effects of Tobacco use. At play was the balance that has to be drawn in considering competing rights. The
concept of competing rights calls for utilization of the doctrine of proportionality so as to resolve the tension between such rights
where it arises.
[113] This concept of competing rights and how to harmonize that tension was well articulated by the High Court, Mativo J, in
Kenya National Commission on Human Rights & another v Attorney General & 3 others [2017] eKLR; thus (which we reproduce
at length):
“…
In considering decisions limiting fundamental rights, courts look at whether the government's decision is ‘reasonably
appropriate and adapted to serve a legitimate end.’ In this context, the phrase ‘reasonably appropriate and adapted’ does not
mean ‘essential’ or ‘unavoidable’, but has been said to be closer to the notion of proportionality.
When employing the language of proportionality the High Court would ask whether the end could be pursued by less drastic
means, and it has been particularly sensitive to laws that impose adverse consequences unrelated to their object, such as the
infringement of basic common law rights. I have no doubt that repatriation of refugees is a drastic measure that must be done
within the confines of the law and any measure that infringes on refugees constitutional rights must be held to be invalid on
account of contravention of such rights..
I may perhaps add that ‘Proportionality’ is… a fluid test which requires those analyzing and applying law and policy to have
regard to the surrounding circumstances, including recent developments in the law, current political and policy challenges and
contemporary public interest considerations.
The test for determining whether a restriction is appropriate should be one of proportionality as used in international, regional
and comparative human rights jurisprudence. A proportionality test is appropriate as it preserves rights, provides a framework
for balancing competing rights and enables other important public concerns, such as national security and public order, to be
duly taken into account.
What is reasonably justifiable in a democratic society is an illusive concept – one which cannot be precisely defined by the
courts. There is no legal yardstick save that the quality of reasonableness of the provision under challenge is to be judged

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according to whether it arbitrarily or excessively invades the enjoyment of a constitutionally guaranteed right.
[114] Comparatively, the Constitutional Court of South Africa in the case of Johncom Media Investments Limited v M and Others
(CCT 08/08) [2009] ZACC 5, had the following to say as regards dealing with competing rights:
“[25] To effect a proper balance, the right infringed must be identified, and its nature as well as its importance in a particular
context must be considered. The purpose of the limitation must be pin-pointed, together with its extent, so as to
determine the relation between the limitation and the purpose it is designed to achieve. We must also consider whether the
purpose could be achieved by less restrictive means.”
[115] Persuaded by the foregoing case law, we find that the Court of Appeal correctly applied the test of proportionality in resolving
the friction between the competing rights of the Appellant’s right to its intellectual property vis-à-vis the need to ensure a safe and
clean environment, free from the hazards of Tobacco use, for the public. Consequently, we find no reason to upset the Court of
Appeal findings on the issue.
(iv) Whether the imposition of the Solatium Compensation Contribution amounts to unlawful taxation"
[116] Several aspersions were cast as regards the Solatium compensation contribution. It was the Appellant’s case that the same is a
tax and as such having not been passed by Parliament, the arm of government charged with legislating for taxation under Article
210 of the Constitution, it is therefore unconstitutional. Further that its imposition amounts to deprivation of property of the
Appellant and that it was neither adequate and/or proportionate.
[117] First, we would like to state that to the extent that the Solatium compensation contribution is provided by subsidiary
legislation, it does not raise a constitutional question within the realm of Article 163(4)(a) of the Constitution. As correctly pointed
out by the Court of Appeal, the Parent Act, provides for the Tobacco Control Fund to which the Solatium compensation contribution
is paid. That Statute has not been impugned as being unconstitutional. For this Court to interrogate whether the Solatium is adequate
and proportionate, it must first determine whether it is indeed a tax. Taxation is a subject matter provided for by the Constitution.
However, if it is found that the Solatium is just a fee or a levy, then it is provided for within a legislative framework and therefore
not a matter of constitutional issue.
[118] The High Court did consider the narrow issue of the constitutionality of Section 7(2)(f) and Regulation 37 which created the
Solatium Compensatory Contribution and set the amount to be paid thereof. The High Court found that the legislative intent of the
Tobacco Control Fund, to assist in dealing with the adverse effects of Tobacco consumption, was indeed met by the establishment
of the Solatium. It considered that just as the Tourism Levy, the Solatium was provided for in legislation. It therefore found that it
was unable to find a violation of the Petitioner’s right to property or of the provisions of Article 210 of the Constitution.
[119] On appeal, the Court of Appeal affirmed the High Court agreeing inter alia that the Solatium was not a tax. It stated in this
regard as follows:
“70. Section 7 of the Tobacco Act and Part VI of the Regulations that provide for solatium compensatory contribution were
challenged as being unconstitutional and an attempt to irregularly apply the World Health Organization Framework Convention
on Tobacco Control (FCTC). We note that according to the UN Treaty Collection Depository accessed at treaties.un.org, Kenya
signed and ratified this convention on 25th June, 2004. The ratification of the treaty imposed an obligation on Kenya as a State to
implement measures to protect its present and future generations from the devastating social and environmental consequences of
Tobacco consumption and exposure to Tobacco smoke. It follows that the enactment of the Tobacco Act a few years later, in
2007 can only be viewed as an attempt to fulfil this obligation. In addition, the promulgation of the Constitution of Kenya in
2010 brought into effect Article 2(6) of the Constitution which provides that: “any treaty or convention ratified by Kenya shall
form part of the law of Kenya under this Constitution.” Thus, the enactment of the Tobacco Act and the Tobacco Regulations
are anchored on the Constitution of Kenya and no inconsistency arises.
71. Section 7 of the Tobacco Act provides for the establishment of a Tobacco Control Fund (Fund), that is under Section
7(2)(f) composed of inter alia “a solatium compensatory contribution payable by any licensed cigarette manufacturers or
importers.” The question is whether the solatium compensatory contribution is a tax. In Black’s Law Dictionary 9th Edition tax

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is defined as:
“A charge, usually monetary, imposed by the government on persons, entities, transactions, or property to yield public revenue.
Most broadly, the term embraces all governmental impositions on the person, property, privileges, occupations, and enjoyment of
the people, and includes duties, imposts, and excises. Although a tax is often thought of as being pecuniary in nature, it is not
necessarily payable in money.” (Emphasis added)
72. The solatium compensatory contribution is not a payment that goes towards the national revenue. Under Section 7(4) of the
Tobacco Act, the purposes for which the fund is to be used is specific as follows:
“(a) Research, documentation and dissemination of information on Tobacco and Tobacco products.
b. Promoting national cessation and rehabilitation programs.
c. Any other matter incidental to the matter stated in paragraphs
(a) and (b).”
[120] The fundamental finding of the Court of Appeal is that the solatium is not a tax. We find no reason to hold otherwise. The
Court of Appeal was emphatic that the contribution is not a payment that goes towards the national revenue. We add that neither is it
a payment that goes to county revenue. It is not a payment that is made to the consolidated fund so as to be part of the annual
government budgeting and appropriation. The solatium is provided under statutes anchored with a clear framework on its purpose.
The mere fact that a piece of legislation provides for the levying of a particular amount does not transform that payment into a tax.
[121] Consequently, having found that the Solatium is not a tax, and this appeal raises no constitutional issue as to how it was
enacted, we find that the other considerations raised by the Appellant as regards this fund do not fall for determination by this Court,
in exercise of its jurisdiction under Article 163(4)(a) of the Constitution.
(v) Appropriate reliefs
[122] In considering the appropriate relief in this matter, it was the Appellant’s prayer that the appeal be allowed. In the alternative,
Counsel Mr. Kiragu Kimani in his Reply, urged this Court, if it makes a finding that the Regulations are legal and legitimate, that
this Court considers ordering that they be effected six months after the date of this Court’s judgment. However, having found that
the Court of Appeal Judgment is sound, we see no reason why this Court should delve into determination of how the Superior
Courts’ judgments should be executed and or implemented. Consequently, we make no pronouncement on this issue.
[123] Lastly, on the issue of Costs, the Court of Appeal had exercised its discretion and ordered that each party bears its own costs,
we leave that order undisturbed. We equally exercise our discretion on awarding costs and order that each party bears its own costs
before this Court.
[124] Consequently, this Court finds that the Petition of Appeal dated 31st March 2017 has no merit and the same is dismissed in its
entirety.
ORDERS
1. That the Petition of Appeal No 5 of 2017 is hereby dismissed.
2. That the Judgment of the Court of Appeal of Kenya at Nairobi in Civil Appeal No. 112 of 2016, is hereby upheld.
3. Each party to the Appeal shall bear their own costs.
[125] Orders accordingly.

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DATED and DELIVERED at NAIROBI this 26th day of November 2019.
...................................................... .............................................................................
D.K. MARAGA P.M MWILU
CHIEF JUSTICE/PRESIDENT DEPUTY CHIEF JUSTICE / VICE
OF THE SUPREME COURT PRESIDENT OF THE SUPREME COURT
.................................................................. .....................................................................
J.B. OJWANG S.C WANJALA
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
.....................................................................
NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT
I certify that this is a
true copy of the original
REGISTRAR,
SUPREME COURT OF KENYA

Masai Mara (SOPA) Limited v Narok County Goverment [2016] eKLR
396
REPUBLIC OF KENYA
BETWEEN
MASAI MARA (SOPA) LIMITED …………………………….PETITIONER
AND
NAROK COUNTY GOVERMENT ….………..……....……….RESPONDENT
JUDGMENT
Introduction
1. The Petitioner, a limited liability company, operates various tourist facilities within East Africa. It
also owns and operates the Masai Mara Sopa Lodge (“the Lodge”) situate within the
administrative boundaries of the Respondent county. The Respondent also hosts the Masai Mara
Game Reserve (“the Park”). The Petitioner states, and it is not denied, that the Lodge is situate
on the boundaries but not within the Park.
2. Challenged by the Petitioner in this Petition is the Gazette Notice No. 16729 of 2010 of 24th
December 2010 (“the impugned Gazette Notice”) through which the Respondent’s predecessor
the County Council of Narok had reviewed the entry fees to the Game Reserve. The Petitioner
alleges violation of Articles 40 and 47 of the Constitution by way of challenge to the impugned
Gazette Notice and the resultant public notices. The Petitioner also alleges breaches of the
principles of legitimate expectation and proportionality.
3. The Respondent is one of the 47 devolved County Governments within the Republic of Kenya. It
has contested the Petition.
Factual Background
4. The events and facts leading to the Petition may be retrieved from the affidavit sworn in support
of the Petition by Kennedy Ayoti on 11th August 2015.
5. I may rehash the events briefly as follows.
6. In 1986 the Petitioner opened the Lodge. It was situated just outside the boundaries of the Park.
The Lodge is frequented by both local and foreign tourists. Some stay over-night, others pass
through. Most of the tourists seek to visit the Park and to do so they have had to pay park entry
fees. The park fees were regulated by the Respondent’s predecessor the Narok County Council.
The Respondent now regulates it. The Respondent also collects the revenue. Previously a

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singular payment would entitle a tourist to multiple entries in a day.
7. On 24th December 2010 the Respondent ( which for purposes of this ruling includes its
predecessor the Narok County Council) gazetted the new entry fees to the park. The Gazette
Notice being No. 16729 of 2010, pointed different rates for adults and children. Different rates
were also provided for East African residents and non-residents as well as for East African
citizens. Additionally, there were new rates for motor vehicles, trucks, camping, special
campsites and balloon service. The gazette notice also did away with the re-entry or multiple
entries in a day upon the payment of the single park fees. Visitors residing within the park were
now to pay a different park fees from those like the Petitioner’s patrons residing outside the park
in the sense that the outsiders were subjected to multiple payments in a day.
8. On 7th January 2011, the Respondent notified the public that the new park fees pursuant to the
impugned Gazette Notice would become effective and operational on 1st March 2011.
9. The new park fees became operational and by 2013 the Respondent was enforcing the same.
Parties obliged. Tourists paid. Some players in the tourism industry were however not happy.
One, Mada Holdings Ltd, complained then rushed to court. It obtained orders in its favour
restraining the Respondent from enforcing the new park entry fees against it and its patrons or
residents on tour.
10. The Petitioner held on but saw its business dwindle. It then also moved the court in 2015 as it
was now threatened with the decision to close its own business due to the alleged effect of the
new fees.
The Petitioner’s case
11. The Petitioner’s case as may be gathered from both the Petition and the Supporting Affidavit is
that the new park entry fees effected vide the impugned Gazette Notice are discriminatory and
contrary to Article 27 of the Constitution. The Petitioner states that as the visitors from lodges or
tourists outside the park including the Lodge were paying more than those who were resident
within the Park by way of daily multiple fees there was discrimination. This led to an unfair
advantage to those who operated lodges within the park with the result too that there was unfair
competition as between those who operated lodges outside the park and those who did so within
the park.
12. The Petitioner further contends that the new park entry fees were promulgated in complete
breach of the provisions of Article 47 of the Constitution. In this regard, the Petitioner states that
no consultations took place with any stakeholder prior to the introduction of the single entry rule.
In these regard as well, the Petitioner states that in so far as the park entry fees are different for
those resident within the park and those outside the park, the decision to impose such fees was
not only discriminating but also unreasonable.
13. Thirdly, it was also the Petitioner’s case that the new park fees have infringed on the Petitioner’s
right to own and acquire property contrary to the provisions of Article 40 of the Constitution. In
this regard, the Petitioner pointed out that its bed-occupancy plummeted from 60% before the
introduction of the new park fees to a current average of 19%. The Petitioner also stated that its
gross revenue nose-dived between 2011 and 2014.
14. Additionally, the Petitioner contended that the new park fees went against the Petitioners
legitimate expectations. In this regard, the Petitioner pointed out that since 2003 they had
operated only a single entry payment and further that the Petitioner had legitimately expected not
only that such arrangement would continue but further that the Respondent would act in public
interest to promote tourism. The Petitioner added that the new park fees were not proportionate
as they led to a loss of revenue through reduction of the number of tourists.
15. Finally, the Petitioner contended that the Respondent had contravened Article 232 of the
Constitution which dictated that the public service and servants adopt the value and principle of

398
responsive, prompt, effective and impartial and equitable provision of services.
16. For all its case, the Petitioner sought declaratory orders that the impugned Gazette Notice
contravened Articles 27, 40, 47 as well as 232 of the Constitution. The Petitioner also sought
mandatory orders to quash the Gazette notice . the Petitioner asked for prohibitory orders to
restrain the Respondent from enforcing the new park entry fees introduced through the impugned
gazette notice.
The Respondent’s case
17. The Respondent’s case may be discerned from the Replying Affidavit of Lenku Kanar Seki, the
Respondent’s County Secretary.
18. The Respondent contends that the Petitioner is guilty of an inexplicable delay in commencing
action. The impugned Gazette Notice became effective in January 2011 but the Petitioner did not
file action until nearly four years later.
19. The Respondent also states that the new park entry fees were duly approved by the then Cabinet
Secretary and were applicable to all entrants to the park and not limited to the Respondent and
consequently there can be no issue of discrimination.
20. The Respondent further asserts that the Petitioner has not adduced any evidence that the
Petitioner’s Constitutional rights and freedom as guaranteed under Articles 27, 40 and 47 have
been violated, while also contending that the park fees were approved pursuant to the law and
there was no requirement to consult with the Petitioner or any other person.
Arguments in court
21. The parties respective cases were urged via the medium of written submissions highlighted
before me by Ms. Irene Kashindi for the Petitioner and Ms.Melissa Ngania for the Respondent.
22. The factual aspects of the dispute were largely not in controversy.
Petitioner’s submissions
23. Making reference to the written submissions filed on behalf of the Petitioner on 13th October 2015
and 23rd November 2015, Ms. Kashindi submitted that there was evident discrimination
introduced by the Respondent through the application of the new park entry fees. The Petitioner
contended that effectively there were different rates applicable to lodgers within the Park and
those outside the park. Counsel also stated that there existed discrimination in so far as other
residents inside the Park paid once and were able to visit the park multiple times while others
had to pay several times or each time they set foot out of the Park. The new park entry fees and
the impugned Gazette notice demonstrated no equality at all and this was contrary to Article 27
of the Constitution, so submitted counsel.
24. Counsel then submitted that the lack of equality had led to reduced income or revenue for the
Petitioner and this meant that the right to property under Article 40 of the Constitution had been
violated. The evidence, the Petitioner asserted could, be found in both the reduced income and
devalued investments.
25. Counsel then submitted that the Respondent had no power to introduce different park fees
without giving the Petitioner any hearing and further that the new park fees were simply
unreasonable. This it was stated was contrary to Article 47 of the Constitution. Closely related to
this submission was that the lack of consultation by the Respondent prior to introducing the new
park entry fees meant that the new fees were void. This it was contended had been the court’s
finding in the case of Republic –v- County Council of Narok Ex p Mada Holdings Ltd t/a Fig
Tree Camp Misc. Appl. No. 122 of 2011 and the Respondent was now estopped from

399
contesting the court’s finding.
26. Ms. Kashindi further submitted that there was no issue of delay in instituting the claim herein as
the principles of limitations of actions did not apply where a party sought redress for alleged
violation of its fundamental rights and freedoms. For this proposition, counsel referred the court
to the cases of Gerald Juma Gichohi & 9 Others –v- Attorney General [2015]eKLR as well as
Republic -v- Judicial Commissions of Inquiry into the Goldenberg Affair & 3 Others Ex p
Mwalulu & 8 Others [2004]eKLR.
27. The Petitioner concluded by asking for all the reliefs prayed for on the basis that it had proved its
case.
Respondent’s submissions
28. Ms. Ngania advocating for the Respondent firstly submitted that the impugned Gazette Notice
was legal, constitutional and lawful as statute had mandated the Respondent to set various fees
including park fees.
29. Counsel then submitted that the Petitioner had been guilty of inordinate delay in bringing the
Petition before the court whilst also adding that as the orders sought by the Petitioner were
substantively judicial review orders, Order 53 of the Civil Procedure Rules was applicable
meaning that the Petitioner was already outside the six-month period.
30. It was Ms. Ngania’s submissions that the Petitioner had failed to prove violation of its rights and
freedoms under the Constitution. Making reference to the cases of Japan Export Vehicle
Inspection Center Co. Ltd -v- Kenya Bureau of Standards [2015]eKLR, counsel contended
that the Petitioner’s allegations and grounds of discrimination did not fall within any of the
grounds listed under Article 27(5) of the Constitution. A finding of discrimination could therefore
not be returned, so stated counsel. Besides counsel also stated that the pleadings were vague.
31. On the issue of Article 40 of the Constitution and alleged violation of the Petitioner’s property
rights, Ms. Ngania submitted that the Petitioner had not shown that any property owned by the
Petitioner had been interfered with by the Respondent. In this regard counsel referred the court
to the cases of Veronica Waweru & 4 Others -v- The County Council of Nairobi [2012]eKLR.
32. Counsel also submitted that no consultation was necessary or required to be made by the
Respondent prior to gazetting and implementing the new park entry fees. According to counsel,
the statute being the now repealed Local Government Act (Cap 286) at Section 148 permitted the
Respondent to impose fees. According to counsel, only the consent of the Cabinet Secretary was
necessary. Counsel referred the court to the case of Republic -v- County Council of Nairobi &
Another Ex p Outdoor Advertising Association [2012]eKLR where the court held that in the
discharge of its mandate under section 148 of the repealed statute, the Respondent did not need
to consult with any party. Counsel also referred to the case of Simon Wachira Kayiri -v- The
County Assembly of Nyeri & 2 Others [2013]eKLR for the same proposition.
33. On the issues of legitimate expectation and proportionality, it was the Respondent’s submission
that the same were not well founded. First, the Respondent submitted that no legitimate
expectation arose as there was no promise made to the Petitioner. On this point, the Respondent
referred the court to the case of Republic -v- Nairobi City County & Another Ex p Wainaina
Kigath Mungai [2014]eKLR for the proposition that for legitimate expectation to exist the
applicant ought to premise its case on some promise or assurance.
34. Secondly, the Respondent asserted that on the issue of proportionality the public interest
favoured the denial of the restraining or prohibitory orders sought. In this regard, the
Respondents counsel referred to various cases amongst them Kenya Pipeline Company Ltd
-v- Stanley Munga Githunguri [2011] eKLR.
35. The Respondent wound up by stating that the Petitioner had failed to prove its case.

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Discussion and Determination
Issues
36. The main issue for determination is the constitutionality of the new park entry fees as effected by
the impugned Gazette Notice and the subsequent public notice through the newspapers in
January 2011,so far as the Petitioner claims that the new park entry fees have violated the
Petitioner’s rights and freedoms guaranteed by Article 27, 40 and 47 of the Constitution.
37. Two corollary issues also arise.
38. Firstly, whether the Petition meets the requisite formal competency and, secondly whether by
reason of the Petitioner’s delay in commencing the claim the court is divested of jurisdiction to
entertain and grant the Petitioner the reliefs sought.
39. I will deal with the corollary issues shortly.
40. It is important to note that the facts were largely not in dispute in this Petition. It is not in dispute
that the Park is within the Respondent’s jurisdiction. It is also not in dispute that it was within the
Respondents mandate to set the park entry fees and that by the impugned Gazette Notice the
Respondent effectively revised the entry fees and further that such revised entry fees took effect
on 1st March 2011. It is additionally not in dispute that the new park entry fees did not allow any
re-entry and neither did they prescribe any multiple entry fees. It is further not in dispute that the
Petitioner’s lodge is situated outside the Park’s boundaries while there are lodges and hotels
within the Park. Residents of lodges and hotels within the park only pay the park fees once.
41. There is however controversy when the Petitioner alleges that its rights have been violated and
further that the new park fees are unconstitutional and unlawful.
Whether the Petition is formally competent
42. The Respondent contended that the Petition was lacking in material particulars and was largely
vague. In particular, the Respondent said there were no particulars for discrimination.
43. It is a true position in law that persons who allege any violation of their constitutional rights ought
to plead their case with reasonable precision by stating the specific Articles of the Constitution
allegedly violated and also the manner of violation: see the cases of Anarita Karimi Njeru –v-
Republic [1976-80] KLR 1272 and Mumo Matemu –v- Trusted Society Alliance & 5 Others
CACA No. 290 of 2012. The principle of law as to precise pleadings must however not be
applied to lock out parties with genuine disputes and claims. The principle ought not be applied
line,hook and sinker: see Samuel Gunja Sode & Another –v- The County Assembly of
Marsabit & 2 Others [2016] eKLR as well as the Court of Appeal in Peter M. Kariuki –v-
Attorney General [2014]eKLR.
44. In Nation Media Group Ltd –v- Attorney General [2007] 1 EA 261 the court observed as
follows:
“A Constitutional court should be liberal in the manner it goes round dispensing justice. It
should look at the substance rather than technicality. It should not be seen to slavishly follow
technicalities as to impede the cause of justice…As long as a party is aware of the case he is to
meet and no prejudice is to be caused to him by failure to cite appropriate sections of the law
under pinning the application, the application ought to proceed to substantive
hearing…”(emphasis)
45. The reasoning in Nation Media Group Ltd –v- Attorney General (supra) appears flawless and
I am in agreement.
46. In the instant case the Petitioner has clearly identified the provisions and Articles of the

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Constitution it alleges to have been violated. Articles 27, 40 and 47 have been identified and
expounded on in the Petition, not forgetting Article 232 of the Constitution as well. The Petitioner
has also detailed how it believes its rights have been affected including how it believes the new
park entry fees are discriminatory.
47. I was able to painlessly discern the Petitioner’s case. I am satisfied as well that the Respondent
understood with little or no difficulty the case it was faced with.
48. I find no merit in the Respondent’s claim that the Petition does not meet the reasonable
precision threshold. I hold that the Petition passes the formal competency test. It is not the sort
that leads one to succumb to technicality.
A question of delay
49. The Respondent also contended that the Petitioner was not entitled to the reliefs sought by
reason of the inexplicable delay on the part of the Petitioner in filing the claim. Further and still on
the issue of delay, the Respondent contended that the reliefs sought by the Petitioner were
mainly judicial review reliefs which were guided by Order 53 of the Civil Procedure Rules as to
judicial review applications. Accordingly, the claim having been filed more than six months
following the administrative action challenged, the Petitioner was caught up with the laws of
limitation.
50. The Petitioner, in rejoinder, contended that the orders sought were by way of Constitutional
Petition and consequently the provisions of Order 53 of the Civil Procedure Rules were
inapplicable. Alternatively, and placing reliance on the case of Republic -vs- Judicial Service
Commission of Inquiry Into the Goldenberg Affair & 3 Others Ex p Mwalulu & 8 Others
[2004]eKLR, the Petitioner contended that the six (6) month limitation period under Order 53 of
the Civil Procedures Rules were inapplicable where what was a challenge to regulation, law or
gazette notice.
51. The law thus far is that there is no provision for limitation of action where a party claims a
violation of the Constitution or of any specific individual rights or freedoms guaranteed by the
Constitution. The rider though is that an aggrieved party should always have some zeal and
motivation in enforcing his or her rights if the same are being deemed to be violated: see
Attorney General of Uganda & Another -v- Omar Awadh & 6 Others [EACJ] No. 2 of
2012 and also Gitau Njau & 9 Others -v- Attorney General HCCP No. 340 of 2012
[2013]eKLR.
52. In the instant case, the Petitioner has been faulted for delaying without any reason the filing of its
claim for a period of more than three years. I take into cognizance the fact that this was a
constitutional petition. I also take into account that where a party alleges discrimination there is
need to show that the discrimination was not only unfair but also had an unfair impact, on the
Petitioner.
53. A look at the Petition would reveal that over the three or four years period the Petitioner put
together evidence of its reduced revenue and income. I am not convinced that there was an
unreasonable delay that cannot be excused on the part of the Petitioner. I am also not convinced
that the delay, in the circumstances of this case, in anyway prejudiced the Respondent’s
defence to the claims by the Petitioner.
54. On the issue of the application of Order 53 of the Civil Procedure Rules to a constitutional petition
where a party seeks judicial review reliefs, I must hasten to point out that since the promulgation
of the Constitution in 2010, administrative law actions and remedies were also subsumed in the
Constitution. This can be seen in the eyes of Article 47 which forms part of the Bill of Rights. It is
safe to state that there is now substantive constitutional judicial review when one reads Article 47
as to the right to fair administrative action alongside Article 23(3) which confers jurisdiction, on
the court hearing an application for redress of a denial or violation of a right or freedom in the Bill

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of rights, to grant by way of relief an order for judicial review.
55. Order 53 of the Civil Procedure Rules do not consequently apply to Constitutional Petitions
where the court is expected to exercise a special jurisdiction which emanates from the
Constitution and not a statute.
56. I consequently decline to accede to the Respondent’s contention that the Petitioner ought to be
denied the reliefs sought on the basis that the Petition was filed more than six months after the
action complained of took place.
Violation of the Constitution
57. The Petitioner contended that the new park entry fees breached the Constitution and actually
violated the Petitioners rights and freedoms indexed in the Constitution. In particular, the
Petitioner pointed to Articles 27, 40, 47 and 232 of the Constitution as Articles called to question
by the promulgation of the new park entry fees.
58. I must first point out that the burden of proving a violation of a right or fundamental freedom
guaranteed by the Constitution always rests on the person alleging such a violation: see the
cases of Matiba -v- Attorney General [1990] KLR 666, Attorney General -v- Butambala
[1992] LRC 496 as well as Githunguri Dairy Farmers Co-operative Society Ltd -v- The A.G &
2 Others [2016]eKLR. The evidential burden is to be discharged on a balance of probabilities
and the Petitioner needs to show not only that the right existed but also that it has been violated
before the burden shifts to the state or the Respondent to show that the violation or alleged
violation was saved by the Constitution: see Catholic Commission for Justice & Peace in
Zimbambwe –v- Attorney General [1993] 2 LRC (Const) 279 as quoted extensively in
Githunguri Dairy Farmers Co-operative Society Ltd –v- AG & 2 Others (supra).
59. Where the Constitutionality of a statute or regulation or rule is challenged, the approach is similar
with the State or the Respondent only called to action once a Petitioner establishes that the
statute or subsidiary legislation ex facie contradicts the Constitution: see the cases of Attorney
General of Trinidad & Tobago -v- Morgan [1985] LRC 770, S -v- Zuma & Others [1995] 2 SA
(CC) 642, Ndyanabo -v- A.G [2001] EA 495 and Obondi Victor & Others -v- Law Society of
Kenya [2015]eKLR.
60. From the foregoing the approach for the court is to determine through the Petitioner’s evidence
whether the Bill of Rights applies to the instant dispute. Secondly, will be to answer the question
whether the Petitioner’s rights or freedoms have been impinged. Finally, if the rights have been
impinged, is to determine whether there is a justification for the limitation to the right in question
according to the criteria set out in Article 24 of the Constitution.
Discrimination
61. The Petitioner claims that it has been placed at a position of disadvantage relative to such other
persons who also own tourism enterprises including lodges and hotels operating from within the
Park. According to the Petitioner this equates discrimination.
62. Article 27 of the Constitution guarantees equality and freedom from discrimination either by the
state or any other person.It provides as follows:
(1) Every person is equal before the law and has the right to equal protection and equal benefit
of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities

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in political, economic, cultural and social spheres.…
(4) The State shall not discriminate directly or indirectly against any person on any ground,
including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age,
disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the
grounds specified or contemplated in clause (4).
(6) …
(7) …
(8) ….” (emphasis)
63. For purposes of Article 27 a person guaranteed the equal benefit of the law and freedom from
discrimination includes companies, associations as well as any other body of persons whether
incorporated or unincorporated: see Article 260 of the Constitution. The Petitioner is a company
duly incorporated and entitled to the benefit of the provisions of Article 27 of the Constitution.
64. Discrimination has been defined generally as:.
“...a distinction, whether intentional or not but based on grounds relating to personal
characteristics of the individual or group, which has the effect of imposing burdens, obligations,
or disadvantages on such individual or group not imposed upon others, or which withholds or
limits access to opportunities, benefits, and advantages available members of society”
That was in the Canadian case of Andrews -v- Law Society of British Columbia [1989] 1 SCR 143.
65. The court in Peter K. Waweru –v- Republic [2006] eKLR was even terser in its definition of
discrimination. The court defined discrimination as
“… A failure to treat all persons equally where no reasonable distinction can be found between
those favoured and those not favoured”
66. The grounds listed in Article 27(4) of the Constitution are intended to be of illustrative and
permissive application rather than strict and exclusive application. The word ‘including’ as used
in Article 27(4) has been used as a word of enlargement to embrace not only the listed grounds
but also any other ground that leads to direct or indirect discrimination. The essence of Article 27
is to ensure that no act or omission including rules, law, practice, condition, policy or situation
directly or indirectly imposes burdens, obligations or disadvantages on or withholds benefits,
opportunities or advantages from any person on one or more prohibited grounds. Laws, policies,
rules, regulations, conditions or practice when applied or enforced should ensure equality of
outcome. In short, achievement of substantive equality and not comparative or formal equality is
the goal of Article 27 of the Constitution.
67. In pleading discrimination, the Petitioner not only cited Article 27 but also stated that the new
park entry fees have disadvantaged the Petitioner relative to other private entities in the same
business as the Petitioner.
68. The Petitioner pointed out in particular to the fact that the new park entry fees introduced through
the impugned Gazette Notice distinguished between residents of lodges within the park and
those situate outside of the park. The residents of lodges within the park did not need to pay daily

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to visit the park, they only paid a one-off amount. On the other hand, residents outside the park
had to pay daily if they wanted to visit the park. The Petitioner and its patrons fell in the latter
category. The Lodge is situate outside the park’s boundaries.
69. The Petitioner further contended that the differences had led to a negative impact on the
Petitioner’s business leading to a drop in revenue and income as a result of the reduced bed
occupancy.
70. There is certainly a differentiation in the new park entry fees imposed by the Respondent. This is
not denied. Residents within the park pay a one off-fees and it matters not how long they reside
within the Park and visit various spots within the expansive Park. Those residing outside have to
pay the entry fees every time they exit the park and seek to re-enter. They include but are not
limited to the Petitioner’s patrons.
71. Mere differentiation does not however amount to arbitrariness and the impairment of the
fundamental dignity of a person, the simple reason being that it is generally impossible to
regulate affairs of people without differentiation. The categorization of park visitors with those
who are not residents must therefore not be deemed as discrimination without a cautious further
interrogation. The same no less applies to the categorization or differentiation between foreign
visitors who are to pay in foreign currency and ‘local’ visitors who pay in local currency.
72. The interrogation would even be more necessary in view of the fact that the differentiation is not
on any of the grounds specified under Article 27(4).
73. For purposes of the interrogation, the test to help establish discrimination should truly be as was
laid down in the case of Harksen –v- Lane NO [1998] 1 SA 300 by the Constitutional court of
South Africa when interpreting Section 8(2) of the Interim Constitution of South Africa which is
the equivalent of our Constitution’s Article 27. The Court in Harksen v Lane NO (supra) stated
as follows:
“[47] The question whether there has been differentiation on a specified or an unspecified
ground must be answered objectively. In the former case the enquiry is directed at determining
whether the statutory provision amounts to differentiation on one of the grounds specified…
Similarly, in the latter case the enquiry is whether the differentiation in the provision is on an
unspecified ground …If in either case the enquiry leads to a negative conclusion then Section 8
(2) has not been breached and the question falls away. If the answer is in the affirmative,
however, then it is necessary to proceed to the second stage of the analysis and determine
whether the discrimination is “unfair”. In the case of discrimination on a specified ground, the
unfairness of the discrimination is presumed, but the contrary may still be established. In the
case of discrimination on an unspecified ground, unfairness must still be established before it
can be found that a breach of section 8(2) has occurred.”
74. In summary, applying the test to Kenya the question is firstly whether the differentiation amounts
to discrimination. If it is on a specified ground, then discrimination will have been established. If it
is not on a specified ground, then whether or not there is discrimination depends on whether,
objectively, the ground is based on attributes and characteristics which have the potential to
impair the fundamental human dignity of persons as human beings or to affect them adversely in
a comparably serious manner.
75. Secondly, if the differentiation amounts to ‘discrimination’ does it amount to ‘unfair
discrimination’" If it is found to have been on a specified ground under Article 27(4) then
unfairness is presumed. If however it is on an unspecified ground then the complainant has to
establish the unfairness, and the test of unfairness focuses primarily on the impact of the
discrimination on the complainant and others in his or her situation.
76. Finally, where the discrimination is found to be unfair then a determination is to be made as to
whether there can be any rational justification under Article 24 of the Constitution.

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77. In the instant Petition, the alleged discrimination was not based in any of the specified grounds.
The Petitioner contends that the park entry fees structure or regulations have imposed burdens,
obligations and disadvantages on the Petitioner which have not been imposed on others. The
opportunity for the Petitioner’s patrons and other Kenyans to visit the park as many times as
those resident in hotels and lodges within the park has been denied. The Respondent on the
other hand insists that the new park entry fees have not discriminated against the Petitioner in
any way.
78. There is evidently a differentiation.
79. The facts as largely admitted by both parties reveal that one group of visitors to the hotels/lodges
have access to advantages and benefits which another group does not have. I am satisfied that
even without bringing itself to one of the specified or listed grounds, the Petitioner has been able
to demonstrate that the differentiation has had the effect of imposing burdens, obligations and
disadvantages on those who reside outside the pack with the result that opportunities, benefits
and advantages in so far as visiting the park is concerned have been limited.
80. As to whether or not the discrimination is unfair is dependent on the impact of the discrimination
on the Petitioner as I am unable to presume unfair discrimination as the proven discrimination is
not pegged on any of the grounds listed in Article 27(4).
81. The Petitioner’s contention was, however that the Petitioner’s business has been negatively
affected. The Petitioner provided instances of the alleged negative impact. These were basically
that there has been a substantial drop in the number of guests and patrons to the Petitioner’s
lodge from 60% to 19%. It was also stated that this has led to a loss of revenue leading to
amongst other factors loss of jobs and also inability to service back loans due to liquidity (fiscal)
problems. It was stated that the revenue dropped by nearly 40% over a period of three years
following the introduction of the new fees.
82. Secondly, the Petitioner also contended that the Petitioner’s assets and investments have been
heavily devalued.
83. I must admit that I was not exceedingly impressed by the evidence tendered by the Petitioner
with a view to establishing the negative and unfair impact of the differentiation. Firstly, and as had
been submitted by the Respondent, the reduction in bed occupancy leading to low revenue could
also have been occasioned by various factors. The Respondent did not however, strenuously
contest the fact that the new pack entry fees could have contributed to the reduction in revenue
as well, only stating that there could have been other factors. Secondly, the actual figures
presented also reveal that when the new pack entry fees were introduced in 2011, the
Petitioner’s revenue indeed increased but only for that one year. Thereafter the decline was also
heavy.
84. I however hasten to add that when it comes to discrimination, it is not about mathematical
accuracy when the two groups of people are compared or even when the impact is assessed. It
is enough for the complainant to show that there was or there has been an impact and this is to
be done on a balance of probabilities. I am satisfied in the circumstances of this case and on the
facts and evidence before me that the Petitioner has established that there was certainly an
impact, a negative impact for that matter, fetched upon the Petitioner and its business by the new
park entry fees introduced by the Respondent in 2011.
85. In the result, I find that the Petitioner has proven that in differentiating between those residing
within the Park and those outside, and in further levying different park entry fees with the persons
residing outside the Park having to pay multiple entry fees, there was on the part of the
Respondent an unfair discrimination with a negative and unfair impact on the Petitioner.
86. By way of justification of the differentiation, the Respondent through Ms. Ngania stated that the
resorts and lodges within the park are already burdened with levies and therefore to ask them to
pay the same amount would itself not equate equality.
87. I am not convinced that such a justification to a limitation of a constitutionally guaranteed right

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would stand the test of Article 24(1) of the Constitution. I do not see the rationale behind arguing
that there may be no equality when the limitation, as I have found, itself leads to inequality. The
nature of Article 27 rights and their core intent is to help achieve equality. In an open and
democratic society based on human dignity equality and freedom, all endeavors ought to be
made to ensure substantive equality difficult as it may be.
88. I am, on the other hand, satisfied that there is certainly a less restrictive means to achieve the
purpose of the limitation, which was/is to raise additional revenue for the Respondent. Besides,
the Petitioner’s lodge is situate within the administrative boundaries of the Respondent County
and I have little doubt, if any, that the Petitioner already pays levies to the Respondent.
89. In the end, on the question of discrimination, I find for the Respondent.
Right to property
90. The Petitioner also attacked the new park entry fees on the basis that they violated the
Petitioner’s rights under Article 40 of the Constitution.
91. Article 40 of the Constitution protects the rights to property. It is not an absolute Article, just like
Article 27. Article 40 essentially covers a claim to immunity against uncompensated expropriation
of private property. It also covers a claim of eligibility to hold or own property or to acquire
property. The Article protects both corporeal as well as incorporeal property rights, which
essentially means that an individual’s relationship with the physical property is protected. The
relationship includes the right to exclusively use the property as well as alienate it.
92. The Petitioner’s contention was that in introducing new park entry fees which do not meet the
Petitioner’s favour, the Respondent interfered with Petitioners right to property resulting in the
loss of revenue and the possibility of closing shop. In response, the Respondent was firm that the
Petitioner had not proven that its rights to property had been taken away as the fees charged
was never at any time owned by the Petitioner and the Respondent had not interfered with any of
the Petitioner’s property.
93. I would agree with the Respondent.
94. The Respondent levied new park entry fees, whether daily or multiple fees, on visitors to the park
and not on the Petitioner. The Park is also not owned by the Petitioner. I am unable to see how
the Petitioner’s rights guaranteed by the provisions of Article 40 could have been interfered with
or impugned by the Respondent in introducing the new park entry fees.
Of a fair administrative action
95. On two fronts the Petitioner attacked the new park entry fees levied by the Respondent since
2011. First, the Petitioner contended that the new park entry fees were unreasonable. Secondly,
it was also stated that no consultation took place between the Respondent and any of the
stakeholders, including the Petitioner before the new park entry fees were effected.
96. For the two reasons, the Petitioner asserted that the new park entry fees violate both the letter
and spirit of Article 47 of the Constitution as to fair administrative action.
97. Article 47 provides, inter alia, as follows.
“47 (1) Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair”
98. The Fair Administrative Action Act 2015 has effectively sought to promote and give effect to the
rights in Article 47. The Act, in not so many words, defines administrative action as any decision,
power or action taken or not taken by a state organ or natural person in exercise of public power
and which affects the legal rights of any person to whom such action relates. Evidently,

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administrative action does not include executive, legislative or judicial action.
99. There is no doubt that in introducing the new park entry fees, the Respondent was exercising
public power in terms of and pursuant to an empowering provision of the law. Section 148 of the
now repealed Local Government Act (Cap 265) mandated the Respondent to impose fees in
respect of any person or matter. The section read as follows:
(1) A local authority may—
(a) charge fees for any licence or permit issued under this Act or any other written law or in
respect of any person or matter, premises or trade, whom or which the local authority is
empowered to control or license;
(b) impose fees or charges for any service or facility provided or goods or documents supplied
by the local authority or any of its officers in pursuance of or in connexion with the discharge of
any duty or power of the local authority or otherwise.
(2) All fees or charges imposed by a local authority shall be regulated by by-law, or if not
regulated by by-law, may be imposed by resolution of the local authority with the consent of the
Minister and such consent may be given either in respect of specified fees or charges or may be
given so as to allow a specified local authority to impose fees or charges by resolution in respect
of a specified power or a particular matter.
(3) Save where the contrary is expressly or by necessary implication in any written law provided,
a local authority may authorize the remission in whole or in part of any fees due to it or charges
imposed by it under this Act or any other written law.
In exercise of such power the Respondent had to be reasonable and procedurally fair.
100. The Respondent contends that it was reasonable and procedurally fair in effecting the new park
entry fees. It is the Respondent’s assertion that consultation with stakeholders was not
necessary and further that due procedure having been followed the impugned Gazette Notice is
beyond rebuke. The Respondent relied on the two cases of Republic -v- City Council of
Nairobi & Another Ex P Outdoor Advertising Association [2012]eKLR and Simon Wachira
Kagia -v- The County Assembly of Nyeri & 2 Others [2013]eKLR for the proposition that
consultation was not necessary when the Respondent was exercising its mandate under Section
148 of the repealed Act (Cap 265). The only person whose consent was necessary was the
minister, now known as the Cabinet Secretary.
101. In the case of Republic –v- City Council of Nairobi & Another Ex P Outdoor Advertising
Association [2012] eKLR, the court stated that:
“As long as the council adheres to the land down process of reviewing its fees and charges as
stipulated under Section 148 of the Local Government Act, it is unlikely that the court will
interfere with such fees and charges”.
102. In the context of the challenge which had been advanced in Republic –v- City Council of
Nairobi & Another Ex P Outdoor Advertising Association()supra which was that the amount
of increase in fees was too high and unreasonable, I would wholly agree. It is not for the court to
substitute its judgment with that of state organs. However with regard to constitutional values and
principles, the dictates are that there ought always when public power is exercised a sense of
acceptance and ownership of any decision that affects individuals. It is for this reason that there

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is always the need to have public participation and consultation, if only to promote good
governance.
103. In the instant case, it is not for the court to determine whether the new amounts charged were
reasonable but it is certainly the courts business to ensure that public organs and servants
involve the public in as many a decision making process as possible. The need for public
participation and consultation can certainly not be gainsaid.
104. Both parties did not dispute the fact that there was no consultation. Indeed, collateral estoppel or
issue preclusion would be easily invoked by reason of the decision of the court in the case of
Republic –v- County Council of Narok Ex p Mada Holdings Ltd t/a Fig Tree Camp Misc.
Appl. No. 122 of 2011 where the court found as a fact that the Respondent herein had not
consulted the stakeholders who were to be affected by the new park entry fees.
105. While I am of the view that the Respondent ought to have consulted with stakeholders prior to
gazetting the new park entry fees, I am satisfied that the period between the gazettement of the
new park entry fees and the time when the new park entry fees were implemented or made
effective provided ample time for the Petitioner and other shareholders to make any
representations. It has not been indicated to the court that the Petitioner or any stakeholder for
that matter made any representations to the Respondent.
106. In the circumstances, I do not view it that the Petitioners rights under Article 47 were breached or
violated at all. The new park entry fees were lawful.
Of legitimate expectation and proportionality
107. The Petitioner’s case was further that the Respondent in effecting the new park entry fees acted
contrary to the Petitioner’s legitimate expectations. The Petitioner contended in these respects
that the Respondent did not only fail to give the Petitioner a hearing but also failed to take into
account the fact that since the year 2003 the Kenya Wildlife Service under whose jurisdiction the
park also fell had granted a twenty four hour access upon a singular park entry fees payment.
Additionally, the Petitioner added that it had carried on business under an old arrangement since
1986 on the basis that the Respondent would not do anything to affect the Petitioner’s business.
108. The Respondent’s answer was curt. Legitimate expectation did not arise because the law
allowed the Respondent to act as it had done and legitimate expectation could never override the
law. Secondly, no promise or assurance had previously been made to the Petitioner by the
Respondent to warrant the application of the legitimate expectation doctrine.
109. The English Law doctrine of legitimate expectation, first used by Lord Denning MR in the case of
Schmidt and Another –v- Secretary of state for Home Affairs [1969] 1 ALL ER 904, 906 in
the context of procedural fairness and not being deprived of an interest without hearing, is part of
Kenya’s common law. The doctrine had earlier received the House of Lord’s seal of approval in
the case of Council of Civil Service Unions and Others –v- Minister for the Civil Service
[1984] 3 ALL E R 935, 9434 where Lord Frazer stated as follows:
“But even where a person claiming some benefit or privilege has no legal right to it, as a matter
of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if
so, the courts will protect his expectation by judicial review as a matter of public law…Legitimate
or reasonable, expectation may arise either from an express promise given on behalf of a public
authority or from the existence of a regular practice which the claimant can reasonably expect to
continue (emphasis mine)
110. The doctrine of legitimate expectation clearly protects the procedural expectation to be accorded
a hearing as well as the substantive expectation that a regular practice giving some benefits,
privilege or advantage would be continued or be retained. As was stated by De Smith, Woolf

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and Jowell in Judicial Review of Administrative Action 5th Ed, legitimate expectation
“arises where a person responsible for taking a decision had induced in someone who may be
affected by the decision, a reasonable expectation that he will receive or attain a benefit or that
he will be granted a hearing before the decision is taken”.
111. Locally, the doctrine has been adopted and applied by the court in various cases. The
requirements for successful reliance on the doctrine were however well articulated by the Court
of Appeal in the cases of Oindi Zarppeline 39 others-v- Karatina University & Another
[2015]eKLR and even more clearly by the Supreme Court in Communications Commissions
of Kenya & 5 Others –v- Royal Media Services Ltd and 5 Others Petition No. 14 of 2014. In
the Royal Media Services’ case the court stated as follows at paragraph 269 that the emerging
principles on legitimate expectation may be succinctly set out as follows:
a. there must be an express, clear and unambiguous promise given by a public authority;
b. the expectation itself must be reasonable;
c. the representation must be one which was competent and lawful for the decision-maker to
make; and
d. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.
112. In the instant case, I agree with Ms. M. Ngania that the representations on which the Petitioner
seeks to rely do not meet the above or any of the requirements. First there was no clear
unambiguous representation devoid of any qualification. I state so because even the single 24
hour access fees by KWS had previously been revised. There is no suggestion by word or
conduct that the Respondent had promised or represented that the park entry fees in subsistence
as of January 2010 would not be revised. Secondly, there is the consensus between the parties
that the Respondent had the power to impose the fees, through law and in particular section 148
of the repealed Local Governments Act (Cap 265). Thirdly, there is evidence availed through the
Petitioner that revision of park fees has been done previously.
113. I must consequently decline the invitation by Ms. Kashindi to invoke the doctrine of legitimate
expectation in favour of the Petitioner.
114. I am now left with the issue of the relevance of the proportionality principle to this case. This truly
has more to do with the ultimate reliefs to be granted that the substantive merits of the case: see
Gatirau Peter Munya –v- Dickson Mwenda Githunguri & 2 Others [2014]eKLR. The principle
no doubt could also be relevant to the substance and merits of the case. In this case however, I
take the view that it is not.
115. In Kenya Pipeline Company Ltd-v- Stanley Munga Githunguri [2011]eKLR, the Court of
Appeal stated that
“… the ingredients of proportionality include the size of the claim, importance of the case,
complexity of issues and financial position of each party… and where the claims are so
disproportionate … the court must endeavor to achieve a proper balance by learning in favour of
proportionality”.
116. Evidently, proportionality is all about counsel of prudence where factors are lopsided. The court
must take into account all the circumstances including balancing both private and public interest
before making any final orders which may have practical effect or impact on the parties as well as

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others.
Summary of findings
117. I have come to the conclusion on the issues originally reserved for determination as follows:
a. As to whether the Petition meets the competency threshold, the answer is yes.
b. As to whether the Petition is defeated by reason of delay, the answer is no.
c. As to whether the new park entry fees are unfairly discriminatory with unfair impact on the
Petitioner, the answer is yes.
d. As to whether the new park entry fees violate the Petitioners right to property, the answer is
no.
e. As to whether the Respondent in effecting the new park entry fees violated the Petitioners right
to fair administrative action including the Petitioner’s legitimate expectation, the answer is no.
Reliefs and costs
118. The Petitioner has been partially successful and the only question now is what relief the court is
to grant.
119. The Petitioner sought sweeping orders to quash the Gazette Notice No. 16279 of 24th December
2010 and effectively prohibit or restrain the Respondent from applying and charging the rates
outlined in the Gazette Notice. The Petitioner also sought orders to restrain the Respondent from
continuing to implement the single entry rule to visitors resident in hotels and lodges from outside
the park.
120. I am conscious of the fact that the park fees collected is for the benefit of the residents of Narok
County. I am also conscious of the fact that the Respondent is entitled to raise revenue for its
own operations. I am further conscious of the fact that the park fees were lawfully imposed.
However, constitutional values also dictate that equality at all levels should be promoted and
where therefore the court has identified any sense of inequality, the court is duty bound to act. I
am not bound to only issue the reliefs sought by the Petitioner, the court may actually fashion
appropriate reliefs: see Nancy Makhoha Baraza -v- Judicial Service Commission & 9 others
[2102] eKLR.
121. Balancing all factors, I would deem it appropriate to grant such relief as may be tailored to
ultimately ensuring equity besides merely making a declaratory or injunctive order.
122. I would consequently make the following orders:

a. There shall be issued a permanent injunction restraining the Respondent whether by self
or its officers employees or agents from imposing and collecting the park entry fees set
out in Gazette Notice No 16729 of 24 December 2010 in so far as they impose a single
entry rule to visitors to Maasai Mara Game Reserve or daily entry fees to visitors and
establishments situated outside the Masai Mara Game Reserve and also in so far as it
imposes a different rate to visitors residing inside and outside the park.
b. The Respondent is further ordered to immediately engage other stakeholders with a view
to ensuring that the park fees are reviewed and a better arrangement availing multiple
entries worked upon .
c. Each party shall bear its own costs of the Petition.

411
123. I am grateful to Ms. Irene Kashindi as well as Ms. Mellissa Ngania who appeared for the
Petitioner and the Respondent respectively for their assiduous research and meticulous
submissions. If I did not capture any parts of their submissions, it was not out of derision.
Dated, signed and delivered at Nairobi this 29th day April, 2016
J.L.ONGUTO
JUDGE

Oindi Zaippeline & 39 others v Karatina University & another [2015] eKLR
412
IN THE COURT OF APPEAL
AT NYERI
(CORAM: VISRAM, KOOME & OTIENO-ODEK, JJ.A)
CIVIL APPEAL NO. 52 OF 2014
BETWEEN
OINDI ZAIPPELINE & 39 OTHERS.........................APPELLANTS
AND
KARATINA UNIVERSITY.................................1ST RESPONDENT
MOI UNIVERSITY...........................................2nd RESPONDENT
(An appeal from the judgment of the High Court of Kenya at Nyeri (Wakiaga, J.)
dated 5th September, 2014
in
H.C.C.C No. 13 of 2013)
********************
JUDGMENT OF THE COURT
1. The title in this appeal read that the appeal was lodged by Mr. Oindi Zaippeline & 39 others. During
the hearing, learned counsel for the appellant, Mr. Karweru, informed Court that there was an error in the
title to the extent that his instructions to appeal was from Mr. Oindi Zaippeline and not the 39 others who
were parties to the proceedings before the High Court. By consent of the parties, an order was recorded
that this appeal is by one appellant, Mr. Oindi Zaippeline; the appeal by the 39 others was marked as
withdrawn.
2. In preface, the legal issues in this appeal can be posited as follows: when a student is admitted to
study in a specific university, is there a legitimate expectation that upon successfully undertaking the
study and passing all examinations the student shall be awarded and conferred a degree of that specific
university" Can such a student be conferred a degree of any other university that did not admit, teach or
examine him" When a student is admitted by a parent university and placed to study in a constituent
college and later the constituent college becomes a full fledged independent university before the
student completes his study, to which degree is the student entitled to - a degree from the parent

413
university or a degree from the new full fledged university" Is it public policy that the law can be changed
to enable another university to confer a degree to a student that it has neither admitted, taught nor
examined"
Relevant Background Facts:
3. To appreciate the relationship between the appellant and each of the respondents and the issues
raised in the appeal, the background facts leading to the establishment of Karatina University, the 1st
respondent, should be stated.
4. The appellant was admitted as a student of Moi University (2nd respondent) in 2009. At the time of his
admission, Karatina University, the 1st respondent, did not exist in fact and in law. Upon his admission to
Moi University located in Eldoret Town, the appellant was required to undertake his studies at a physical
location known as “Moi University Central Campus” located in a town known as Karatina, part of the
then Central Province of the Republic of Kenya.
5. “Moi University Central Campus” at Karatina was a part of “Chepkoilel University College” which was
a constituent college of Moi University. “Chepkoilel University College” is now a fully fledged university
with its own Charter and has never been a party to these proceedings, both at the High Court and before
this Court.
6. In the year 2010, the “Karatina University College Order, 2010” was Gazetted vide Legal Notice No.
163 dated 1st October 2010. Paragraph 3 (1) of the Order established “Karatina University College” as a
constituent college of Moi University. By this Order “Karatina Central Campus” which was part of
Chepkoilel Campus was transformed into a constituent college of Moi University; i.e. the “Karatina
Central Campus” ceased to be legally part of “Chepkoilel University College”.
7. The appellant contends that he was admitted as a student of Moi University in 2009 and when the
Legal Notice No. 163 of 2010 was gazetted, his status as a student entitled to the degree of Moi
University was not affected; he remained a student of Moi University. In support of this contention
Paragraph 5 (1) of the Legal Notice was cited which stipulates:
“The degrees and Postgraduate diplomas to be awarded by the University College shall be the
degrees and postgraduate diplomas conferred by Moi University.”
8. The appellant contends that by virtue of his admission as a student of Moi University, his legitimate
expectation was to be awarded and conferred a degree of Moi University; that this legitimate expectation
was recognized and preserved by paragraph 5 (1) of the Legal Notice No. 163 of 1st October 2010; that
the respondents have violated this legitimate expectation by denying him award and conferment of the
degree of Moi University and purporting to award and confer him a degree of Karatina University, an
institution at which the appellant neither applied for admission nor was taught and; the respondents by
attempting and purporting to confer him a degree of Karatina University are perpetrating an academic
fraud by the 1st respondent conferring a degree to a student it neither admitted, taught nor examined.
9. The respondents submitted that the relevant background facts are that on 1st March 2013, the 1st
respondent was granted a Charter and it was transformed from a constituent college of Moi University to
a full fledged university known as Karatina University; that Paragraph 32 of the Charter revoked Legal
Notice No. 163 of 2010 which established Karatina University College as a constituent college of Moi
University; that Paragraph 33 of the Charter expressly states that “the students of former Karatina
University College who were pursuing degree, diploma and other certificate programmes…shall

414
be allowed to complete their courses and be awarded degrees, diplomas and certificates of
Karatina University”; that Section 74 of the Universities Act stipulates that constituent colleges of
universities existing before the commencement of the Act shall continue to be constituent colleges of
those universities and may apply for accreditation.
10. The respondents’ case is that the appellant is not entitled to an award or conferment of the degree
of Moi University; that if at all he had any legitimate expectation, the same was taken away by Statute
and the Grant of Charter to the 1st respondent to become full fledged Karatina University with powers to
award and confer its own degrees and diplomas. The Statute that took away any expectation of the
appellant is the Universities Act of 2012; Section 71 (1) (d) of the Act repealed the Moi University
Act, Cap 210A, upon which the appellant could derive any cause of action; paragraph 32 of the Karatina
University Charter revoked Legal Notice No. 163 of 2010 that established Karatina University College;
the grant of Charter to Karatina University had the effect of annulling the Legal Notice No. 163 of 2010
and paragraph 5 (1) thereof was not saved as a transitional provision that could confer any right to any
student who had been admitted by Moi University.
11. The appellant contends that the Universities Act as well as the grant of Charter to Karatina
University did not affect his status as a student of Moi University and he has a legitimate expectation and
entitlement to award and conferment of degree of Moi University. In support of this contention, the
appellant argued that Section 79 of the Universities Act preserved all registrations, notices or
information given or thing done under the repealed Moi University Act; students were not part of assets
and liabilities of the then Karatina University College that could be transferred to the new Karatina
University under the provisions of Section 80 of the Universities Act. Paragraph 32 (2) of the Karatina
University Charter saved all acts, orders, requirements and other things done under the Karatina
University College Order; paragraph 33 of the Karatina University Charter applies to former students of
Karatina University College and the appellant was never a student of the former Karatina University
College but a student of Moi University. There is no legal instrument that converted the appellant from
being a student of Moi University to a student of Karatina University College or Karatina University. The
appellant contend that it cannot be urged that the Universities Act and the grant of Charter to the 1st
respondent annulled, transformed and frustrated the student status of the appellant; that the doctrine of
frustration is inapplicable in this case.
Pleadings and submissions before the High Court:
12. By a Plaint filed in the High Court the appellant with 39 Others sought inter alia:-
A declaration that they are students of the 2nd defendant (2nd respondent) and are not
legally transferable to the 1st defendant (1st respondent).
A declaration that only the 2nd defendant can administer examinations and issue degree
certificates to the plaintiffs (appellants) to the exclusion of the 1st defendant.
A permanent injunction directed against the 1st defendant from purporting to arrogate to
itself, either by itself or in collusion with the 2nd defendant the role of examining and
issuing of degree certificates to the plaintiffs without their consent.
13. The appellant’s case is that he applied for university education through the Universities Joint
Admission Board and was admitted to Moi University, the 2nd respondent, to undertake a degree course.
The 2nd respondent placed him at its Central Kenya Campus in Karatina Town; the 2nd respondent taught
and administered examinations to the appellant based on courses and curriculum developed and

415
approved by itself to the exclusion of the 1st respondent; that there is a contractual obligation on the 2nd
respondent to award and confer upon the appellant its degree upon successful completion of studies. It
is the appellant’s contention that the 2nd respondent’s obligation cannot be delegated, negotiated or
transferred to a third party more particularly the 1st respondent.
14. The appellant avers that after the 1st respondent was granted a Charter on 1st March, 2013 and
became a fully-fledged university, the 1st respondent indicated to the appellants that it would henceforth
administer examinations. According to the appellants, the above conduct was an illegal abdication,
derogation and assumption of obligations by the respondents. It is the appellant’s contention that he
would be prejudiced in the job market if the 1st respondent awarded him a degree certificate as opposed
to the 2nd respondent; that most employers favour old and established universities as opposed to new
and recent ones.
15. The respondents filed their respective defences refuting the appellant’s case. While admitting that
the appellant had been admitted as a student of the 2nd respondent, the 1st respondent averred that at all
material times it was the 1st respondent that managed and administered all courses and examinations
undertaken by the appellant; that the 2nd respondent’s role was to monitor and oversee the program of
study.
16. The 2nd respondent maintained that since the 1st respondent had become a fully-fledged university,
the appellant’s suit had been overtaken by events. The 2nd respondent averred that pursuant to Section
5(a) of the Moi University Act (repealed) and vides Legal Notice No. 163 of 1/10/2010, Karatina
University College was established as a constituent college of the 2nd respondent; the said College was
established as a body corporate with perpetual succession and a common seal; that the only link
between the respondents is that they shared a Chancellor and the Senate. As a result of the foregoing
the 2nd respondent contends that the appellant and all students as well as staff (employees) were
transferred to the 1st respondent which took over all assets, liabilities and responsibilities save for the
examinations which were administered under the Senate of the 2nd respondent.
17. The 2nd respondent further averred that when the 1st respondent became a fully-fledged university, it
became completely independent from the 2nd respondent by having its own Senate. Consequently, the
1st respondent now has powers to administer its examinations.
18. Before the trial court, the appellant as PW1 Oindi Zaippeline (Oindi), testified that he was admitted to
Moi University on 27th July, 2009 and posted to the Central Kenya Campus. While he was in his second
year the Central Campus was converted into a constituent college of the 2nd respondent on 1st October,
2010; that the constituent college became a fully-fledged university on 1st March, 2013 when he was in
his fourth year second semester of study. He testified that he had a legitimate expectation that upon the
successful completion of his course the 2nd respondent would award and confer him with its degree
certificate.
19. DW1, Duncan N. Njoroge (Duncan), the 1st respondent’s Registrar, testified that he was the
Secretary to the 1st respondent’s Senate and responsible for admission of students. Prior to working for
the 1st respondent he worked for the 2nd respondent between the years 1990 to 2011. He testified that
prior to the 1st respondent being granted the Charter; the Principal of the constituent college went round
explaining the implication of the same to the students. He informed the appellant among other students
that they would be awarded degrees by the 1st respondent. He admitted that at the time the 1st
respondent became a fully-fledged university, the appellant was about to sit for his final examinations
which was based on a program develop by the 2nd respondent.

416
20. DW2, John Muguni (John), the Registrar of the 2nd respondent gave evidence that he supervises and
coordinates academic activities at Moi University. While admitting that the appellant had been admitted
by the 2nd respondent he maintained that awarding of degree certificates was not automatic; students
had to fulfill the academic requirements, pass exams and abide by the rules set by Senate. He testified
that when the 1st respondent was Central Kenya Campus it was part of the 2nd respondent. As soon as
the Central Kenya Campus became a constituent college the students, employees and assets were
transferred to Karatina University College which later became the 1st respondent. He testified that the 2nd
respondent cannot award degrees to the appellant since the 1st respondent is not affiliated to it.
21. Satisfied that the appellant had failed to prove his case to the required standard, the trial court vides
judgment dated 9th May, 2014 dismissed the suit with orders that each party bear its costs. The trial court
made a finding that the appellant was a former student of Karatina University College eligible under
Paragraph 33 of the Charter to be conferred a degree of Karatina University. The trial court further held
that if the appellant had any legitimate expectation to be conferred a degree by the 2nd respondent the
same was extinguished by operation of law. It is these findings that has provoked this appeal based on
the following grounds: -
The learned Judge erred in law and in fact in misconstruing, a charter to be granting any
rights and privileges under the law thereby arriving at the wrong conclusion in law
thereby occasioning miscarriage of justice.
The learned Judge erred in law in failing to note that education in Kenya, being voluntary
at the university level no order or charter could override the express provision of the
mother Act and as such, Article 33 in the Karatina University charter was inapplicable to
the appellants’ herein.
The learned Judge fell into error in law in failing to note that the 1st appellant herein was
never a student of Karatina University thereby leading to miscarriage of justice.
The learned Judge erred in granting a judgment whose effect would be to crystalize
academic dishonesty and fraud where a university purports to grant degree certificates
for students it never taught.
The learned Judge erred in law and in fact in being openly biased in his conclusions
without affording the plaintiff’s case any consideration.
The learned Judge erred in law and in fact in holding that the plaintiff had sued the wrong
parties.
The learned Judge erred in law by granting a judgment against the weight of the
evidence.
Submissions before the Court of Appeal and Re-evaluation of the Evidence on Record and
Applicable Law:
22. We remind ourselves that this is a first appeal. As a first appellate court, it is our duty to subject the
evidence and material tendered before the High Court to a fresh and exhaustive scrutiny and draw our
own conclusions bearing in mind that we have not seen or heard the witnesses and giving due allowance
for this. (See Selle vs. Associated Motor Boat Company (1968) E.A. 123).

417
23. At the hearing of this appeal, Mr. Karweru, learned counsel for the 1st appellant, submitted that this
was a case of ‘shattered dreams’. The appellant applied to get admitted by the 2nd respondent University
in the year 2009 in the full knowledge that there were other universities. The appellant’s choice
University was the 2nd respondent. He argued that the appellant’s position as a student of the 2nd
respondent did not in any way change when the 1st respondent became a constituent college of the 2nd
respondent and thereafter a fully-fledged university. According to Mr. Karweru, a Charter is a legal
instrument and not law; it could not derogate rights nor deviate from the original legal order. Under the
doctrine of legitimate expectation the appellant was entitled to be awarded a degree certificate by the 2nd
respondent.
24. Miss Mumbi, learned counsel for the 1st respondent, submitted that Section 71 of the Universities
Act 2012 repealed Moi University Act (Cap 210A) and all other individual University Acts. The purpose
of the said repeal was to bring all universities under one Statute and to grant Charters to all universities.
Under Section 20 of the Universities Act once a university is granted a Charter it becomes a body
corporate. Miss Mumbi argued that any contractual agreement between the appellant and the 2nd
respondent was frustrated when the 1st respondent became a university which was a distinct body
corporate from the 2nd respondent. The appellant paid fees and studied at Karatina University hence he
was the 1st respondent’s student. Miss Mumbi submitted that the doctrine of legitimate expectation was
not applicable because the appellant had been put on notice that the constituent college would become
a fully-fledged university. She finally submitted that individual rights could not override public interest of
the government to enhance higher education through increasing the number of universities by
transforming constituent colleges into full fledged independent universities. She urged us to dismiss the
appeal.
25. Mr. Simiyu, learned counsel for the 2nd respondent, in opposing the appeal, submitted that there was
a distinction between admission and registration of students; the appellant paid fees and was registered
by the 1st respondent; that the 2nd respondent had no control over the process by which the 1st
respondent was granted a Charter and is bound by the law. The appellant ought to have challenged the
process by which the 1st appellant became a fully-fledged university. He argued that there was need for
law reform to address the issue of transiting students of constituent colleges when such colleges
become full fledged universities.
26. We have analyzed the judgment of the High Court, considered the grounds of appeal as well as
submissions by learned counsel in this matter. We identify the following points of law as pertinent in the
determination of this appeal:
a. What is/was the nature of the relationship between the appellant and each of the respondents’
at all material times;
b. Does the appellant have an enforceable legitimate expectation to graduate as a student of Moi
University"
c. Was the appellant’s constitutional right to education violated by the respondents"
d. Did the grant of a Charter to Karatina University frustrate or annul the relationship between the
appellant and the 2nd respondent"
e. Save for honorary and posthumous awards, can a university confer a degree to a person it has
neither taught nor examined"

418
Relationship of the appellant to each of the respondents:
27. One of the issues for our consideration and determination is the relationship between the appellant
and each of the respondents. From the background facts, the appellant applied for university education;
his application was considered and he was admitted in 2009 to Moi University, the said Moi University
placed him to undertake studies at a physical location known as “Central Campus of Moi University”
situate at Karatina Town and which was part of the then Chepkoilel Constituent College of Moi
University. It is our finding that based on these facts, the relationship between the appellant and the 2nd
respondent is a contractual relationship. In so far as the 1st respondent, (Karatina University) is
concerned, in 2009 when the appellant was admitted to Moi University the 1st respondent did not exist de
facto and de jure; the appellant never applied to be admitted to a non-existent institution; although there
was a physical campus known as “Central Campus” located at Karatina Town, the same was simply a
locus of study designated by the 2nd respondent; it is our finding that the 1st respondent did not exist in
2009 and it had no capacity to admit and register any student and to conduct any degree program. On
record there is no application by the appellant to be admitted to Karatina University College or Karatina
University. On these facts, it is our finding that there is no contractual relationship between the appellant
and the 1st respondent in so far as his academic studies or status as a student is concerned.
28. We now turn to consider whether there is a legal relationship created between the appellant and the
1st respondent through Legal Notice No. 163 of 2010 or the Universities Act or the Karatina University
Charter. To understand the relationship one must determine whether the appellant was a student of the
1st or 2nd respondent. The trial Judge in dealing with this issue expressed as follows at paragraph 43 of
the judgment.
“Universities Act (2012) defines a student as any person registered in the university or an
institute offering university education. From the evidence tendered before the court, I find that
the plaintiffs were admitted to Moi University but were registered at the Central Kenya Campus
which subsequently became Karatina University College in which they continued to be registered
up to the time when Karatina University College became a full university…. It therefore follows
that the plaintiffs were registered students of Karatina University College as at the time when the
same was granted a Charter within the meaning of Section 2 of the Universities Act and Section 1
of the Karatina University Order. It therefore means that the plaintiffs were all subject to the
transitional provision of Article 33 of the Charter which stipulated that the students of former
Karatina University College, who were pursuing degree, diploma and certificate programs at the
commencement date of the Charter shall be allowed to complete their courses and be awarded
degrees of the University. The plaintiffs therefore became students of the 1st defendant by
operation of law and there being no exception clauses therein are subject to rights and
obligations created under the Statute.”
29. With due respect, we do not agree with the conclusions of the trial court as expressed above. DW1,
Duncan Njoroge, testified that there is a difference between admission to a university and registration
which is done every semester. If registration is a criterion to determine who is a student, we pose the
question how come the 2nd respondent graduated students registered with the 1st respondent in 2013
after the Legal Notice had come into force and the Charter had been granted" Upon what legal basis did
the 2nd respondent confer degrees of Moi University to students who were registered and undertaking
studies at Central Campus at Karatina despite the fact that the 1st respondent was a body corporate
under the Legal Notice" The answer is found in the witness statement of Prof. John Mugun Boit at
paragraph 14 wherein he stated that this was done because the 1st respondent did not have a Senate of
its own. If this is so, it follows that registration at the 1st respondent’s institution is not the determining
criteria to be awarded and conferred a degree of the 1st respondent.

419
30. We hasten to add that although the Legal Notice transferred all assets and liabilities of Central
Campus to Karatina University College, it is our view that students are neither assets nor liabilities to be
transferred to another corporate entity; there is no express provision in the Legal Notice transferring any
student. We concur with the statement by Prof. John Mugun Boit at paragraph 15 of his statement
wherein he states that despite Legal Notice No. 163 of 2010, examinations offered at Karatina University
College were administered under the Senate of the 2nd respondent. This being the case, on what legal
foundation did the 2nd respondent continue to administer examination to the appellant as a student
undertaking studies at Karatina University College" The answer is found in paragraph 5 of the Legal
Notice which provided that those students who were enrolled at Karatina University College would
continue to study and be conferred degrees of Moi University. We find that this paragraph has its legal
and logical underpinning that those students admitted by the 2nd respondent and placed to study for
degree programs previously at Central Campus and now at Karatina University College were students of
Moi University.
31. On a factual basis, we find that the appellant was never a student of Karatina University College or
Karatina University. Legal Notice No. 163 of 2010 at paragraph 5 acknowledges this position and
created an exception by stipulating that the degrees to be awarded by Karatina University College were
to be degrees of Moi University. The status of the appellant as a student of Moi University was preserved
by Paragraph 5 of the Legal Notice.
32. Paragraph 32 of the Karatina University Charter revoked Legal Notice No. 163 of 2010. What is the
legal effect of the revocation on the status of the appellant as a student of Moi University" Section 23 of
the Interpretation and General Provisions Act, (Cap 2 of the Laws of Kenya) is relevant in determining
the legal consequences of revocation of Legal Notice No. 163 of 2010. Section 23(3) provides as
follows:-
“Where a written law repeals in whole or in part another written law, then unless a contrary
intention appears, the repeal shall not:
“23(3)
a. …..
b.
c. affect a right, privilege, obligation or liability acquired, accrued or incurred under a written law
so repealed.
d. ………
e. affect an investigation, legal proceedings or remedy in respect of a right, privilege, obligation

and such legal proceedings or remedy may be instituted, continued or enforced as if the
repealing written law had not been made.”
33. The respondents contend that revocation of the Legal Notice brought to an end Paragraph 5 of the
Notice which was not saved and as such; the act of revocation made the appellant eligible for a degree
of Karatina University. The appellant contends that the revocation did not alter his status as a student of
Moi University eligible to be conferred a degree of that University.
34. It is our view that revocation of the Legal Notice did not affect the status of the appellant as a student

420
of Moi University. First, Section 23 (3) (c) & (e) of Interpretation and General Provisions Act is
explicit that a right, privilege or liability acquired, accrued or incurred is not repealed. In the instant case,
the appellant under the doctrine of legitimate expectation and pursuant to the provisions of Paragraph 5
of the Legal Notice No. 163 of 2010 had acquired a right to be conferred a degree of Moi University; the
2nd respondent had also incurred and acquired an obligation to confer the degree. It is our considered
view that revocation of the Legal Notice did not affect the acquired rights and accrued obligations of the
parties hereto. Second, the appellant became a student of Moi University upon admission in 2009 under
the provisions of Moi University Act (Cap 210A) and not vide the provisions of Legal Notice No. 163 of
2010. Revocation of the Legal Notice did not revoke the Moi University Act pursuant to which the
appellant became a student of the University; revocation of the Legal Notice had effect on those students
who were admitted by Karatina University College when it became a body corporate after Legal Notice
No. 163 of 2010 was gazetted; it is these students who became students of Karatina University pursuant
to Paragraph 33 of the Charter. Third, the Charter has no express provision converting students of Moi
University who were at the Karatina University College to become students of Karatina University.
Paragraph 33 of the Charter applies to students of “former Karatina University College” who were
pursuing degrees.
36. The legal issue is whether the appellant was a student of former “Karatina University College”.
There is no definition of who is a student in the Charter. However, Legal Notice No. 163 of 2010 at
paragraph 1 thereof defines a student to mean a person registered by the University College for
purposes of obtaining a qualification of the University College or any other person who is determined by
the Academic Board to be a student.
36. It is our considered view that from the time of his application for university education to his admission
in 2009, the appellant was a student of Moi University; the definition of a student in Legal Notice No. 163
of 2010 does not apply to the appellant because he was not a person eligible to obtain a qualification of
Karatina University College; under paragraph 5 (1) of the Legal Notice the appellant’s status was
preserved as a person eligible to obtain qualification of Moi University; it is our finding that paragraph 5
of the Legal Notice preserved the status of the appellant as a student of Moi University; it is also our
finding that paragraph 33 of the Charter applies to former students of Karatina University College and the
appellant was not a former student of Karatina University College under Legal Notice No. 163 of 2010.
Revocation of the Legal Notice No. 163 did not operate to convert students of Moi University to be
students of Karatina University; if this were so, it would lead to absurdity for example even students of
Moi University at Eldoret campus or any other campus would have been converted to Karatina University
students. We find and hold that former students of Karatina University College mean students who
applied and were admitted by Karatina University College after it became a body corporate by virtue of
paragraph 3 (2) of the Legal Notice and not students admitted by Moi University who were undertaking
studies at the Central Campus prior to the Legal Notice.
37. The appellant was not one of the students admitted to Karatina University College and neither was
he admitted or registered as a student of the College after the Legal Notice No. 163 of 2010 came into
effect. We hasten to add that unless expressly stated, Legal Notice No. 163 of 2010 and the Karatina
University Charter do not have retroactive effect and did not retroactively give Karatina University
students that it did not have prior to its establishment. The Charter under Paragraph 33 only transferred
students of Karatina University College to become students of Karatina University.
38. It is the 2nd respondent’s contention that its relationship with the appellant should not be construed
as based on the law of contract and enforcing such a contract would perpetuate an illegality. We have
considered this submission and pose the question if the relationship between the appellant and the 2nd
respondent should not be construed as based on contract, then on what is it based" The 2nd respondent

421
admits that it has some relationship with the appellant; a relationship cannot exist in vacuum, it must be
based on a legal concept from which specific rights and obligations ensue. On our part, we are satisfied
that the relationship between the appellant and the 2nd respondent is contractual.
39. Our analysis and re-evaluation of the pertinent facts and applicable law leads us to conclude that the
appellant has no contractual and legal relationship with the 1st respondent, Karatina University, in so far
as it relates to award and conferment of its degree to the appellant. The appellant’s contractual and
legal relationship for award and conferment of a degree is with the 2nd respondent, Moi University.
Legitimate Expectation, contractual relationship and doctrine of frustration:
40. The next issue for our consideration is whether the appellant has an enforceable legitimate
expectation to be awarded a degree of Moi University; a corollary to this is whether the relationship
between the appellant and Moi University was frustrated by Universities Act and the grant of Charter to
Karatina University.
41. The trial court in considering the appellant’s expectation to be awarded and conferred a degree of
Moi University expressed as follows at paragraph 49 of the judgment.
“From the evidence tendered by the defendant, it is clear that the role of granting a university a
charter is statutorily established by an Act of Parliament which gives the rights and liabilities of
the established institution. The plaintiffs’ rights to Moi University degree were extinguished by
an operation of the said Act which granted the 1st defendant a charter through a procedure
established…(emphasis ours).
At paragraph 53, the trial court continued
“From the evidence tendered herein, the plaintiffs were aware that the 1st defendant had applied
for a charter and it was evidence of DW1 that during the said period of processing the charter the
plaintiffs together with other students were duly informed of the process. There is also no
evidence tendered by the plaintiffs to show that the defendant had promised them that they
would be awarded its degree. I find no merit on the plaintiffs claim to legitimate execution (sic) as
against the defendants herein and would therefore dismiss the same (emphasis ours).”
42. “Legitimate expectation” is a doctrine well recognized within the realm of administrative law. In re
Westminster City Council, [1986] A.C. 668 at 692 (Lord Bridge):
“…the courts have developed a relatively novel doctrine in public law that a duty of consultation
may arise from a legitimate expectation of consultation aroused either by a promise or by an
established practice of consultation. Legitimate expectation applies the principles of fairness and
reasonableness, to the situation in which a person has an expectation, or interest in a public
body retaining a long-standing practice, or keeping a promise. An instance of legitimate
expectation would arise when a body, by representation or by past practice, has aroused an
expectation that is within its power to fulfill a promise.”
43. A party that seeks to rely on the doctrine of legitimate expectation has to show that it has locus
standi to make a claim on the basis of legitimate expectation. Wade and Forsyth in their work,
Administrative Law, 10th edition (pages 446-448), discuss the relevant legal principles on legitimacy
of an expectation. For an expectation to be legitimate, it must be founded upon a promise or practice by
the public authority that is said to be bound to fulfill the expectation. Citing the House of Lords decision in

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R. v. DPP ex p. Kebilene [1999] 3 WLR 972 (HL), the learned authors observe that a statement made
by a Minister cannot found an expectation that an independent officer will act in a particular way. In R. v.
DPP ex p. Kebilene, (supra) it was stated that clear statutory words override any expectation
howsoever founded.
44. The principle of legitimate expectation is well reflected in judicial practice in Kenya. In Republic v.
Nairobi City County & Another ex parte Wainaina Kigathi Mungai, High Court Judicial Review
Misc. case No. 356 of 2013; [2014] eKLR it is stated that legitimate expectation cannot override the
law. In Republic vs. Kenya Revenue Authority, ex parte Aberdare Freight Services Limited [2004]
2 eKLR 530 it was held a public authority may not vary the scope of its statutory powers and duties as a
result of its own errors or the conduct of others.
45. Legitimate expectation is founded upon a basic principle of fairness - that legitimate expectation
ought not to be thwarted – that in judging a case a Judge should achieve justice and weigh the relative
strength of expectation. In South African Veterinary Council v. Szymanski 2003 (4) S.A. 42 (SCA) at
[paragraph 28]: the Court held that “the law does not protect every expectation but only those
which are 'legitimate”. The requirements for legitimate expectation include the following:
i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant
qualification': De Smith, Woolf and Jowell (op cit -98- Petition No. 14 of 2014 [Judicial Review of
Administrative Action 5th ed] at 425 para 8-055).
ii. The requirement is a sensible one. It accords with the principle of fairness in public administration,
fairness both to the administration and the subject. It protects public officials against the risk that their
unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who
choose to rely on such statements. It is always open to them to seek clarification before they do so,
failing which they act at their peril.
iii. The expectation must be reasonable: Administrator, Transvaal v. Traub (1989 (4) SA 731 (A)] at
756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8- 037).
iv. The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell
(op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346
(PC) at 350h - j.
v. The representation must be one which it was competent and lawful for the decision-maker to make
without which the reliance cannot be legitimate: Hauptfleisch v. Caledon Divisional Council 1963 (4)
SA 53 (C) at 59E - G. This was also referred to with approval in Walele v. City of Cape Town and
Others; 2008 (6) S.A 129 (C.C.) paragraph 41. -99- Petition No. 14 of 2014.
46. The Kenya Supreme Court in Communications Commission of Kenya & 5 Others .vs.Royal
Media Services Limited & 5 Others, Petition No. 14 of 2014 stated at paragraph 269 that the
emerging principles on legitimate expectation may be succinctly set out as follows:
a. there must be an express, clear and unambiguous promise given by a public authority;
b. the expectation itself must be reasonable;
c. the representation must be one which was competent and lawful for the decision-maker to make; and

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d. there cannot be a legitimate expectation against clear provisions of the law or the Constitution.
47. In the instant case, we have examined the record to ascertain if there was any express, clear and
unambiguous promise or representation made to the appellant and given by the 1st or 2nd respondents
as public authorities. If there was any such promise or representation it falls to this Court to consider
whether such representations were predicated upon the relevant law.
48. As stated earlier, the appellant had a contractual relationship with Moi University. The nature of this
contractual relationship is underpinned by the fact that the appellant was admitted by the 2nd respondent
to undertake studies leading to the award and conferment of a degree of Moi University. It is our
considered view that by admitting the appellant to undertake studies at Moi University, the 2nd
respondent made a promise and representation to the appellant that upon successfully undertaking the
course of study, it shall award and confer its degree to the appellant. We find that a clear and
unambiguous promise or representation was made by the 2nd respondent to the appellant and the
doctrine of legitimate expectation is applicable. It would be an illegitimate expectation on the part of the
appellant to expect a degree from any other university except that which admitted him and who’s
program of study he undertook; it is also an illegitimate expectation for the 2nd respondent to admit
students and expect to confer them with degrees of another university.
49. As regards the 1st respondent, there is no evidence on record that any representation or promise was
made by the 1st respondent to confer its degree to the appellant. We find that the doctrine of legitimate
expectation is inapplicable to the relationship between the appellant and the 1st respondent.
50. The next issue for our consideration is whether the promise made by the 2nd respondent to the
appellant is well founded in law capable of giving rise to a right founded on legitimate expectation. For
this, it must be demonstrated that the 2nd respondent, Moi University, had lawful capacity to make such
promise or representations to the appellant.
51. Under the repealed Moi University Act (Cap 201A), one of the functions of the University was to
train qualified graduates leading to award and conferment of degrees. In line with this function, the
University was empowered to admit students to be provided with education and training. Pursuant to this
function, the 2nd respondent in 2009 admitted the appellant as its student. The 2nd respondent by
admitting the appellant as its student had a legal underpinning to make an express promise that gave
rise to legitimate expectation that upon successfully undertaking his studies the appellant shall be
conferred with a degree of Moi University. We hasten to add that an express promise need not be in
writing but can be by conduct or action. The promise or representation giving rise to legitimate
expectation made by the 2nd respondent to the appellant is fortified by a further assurance or
confirmation through Paragraph 5 of the Legal Notice No. 163 of 2010 which provided that “the degrees
and postgraduate diplomas to be awarded by the University College shall be the degrees and
postgraduate diplomas conferred by Moi University. We find that by admitting the appellant as its
student in 2009, the 2nd respondent by its action and conduct competently and lawfully made a promise
to the appellant that it would confer him with a degree of Moi University. We find that upon admitting the
appellant as its student in 2009, the appellant acquired a vested legitimate expectation that upon
successful completion of his studies, he shall be conferred a degree of Moi University. At the time the
Charter was granted to the 1st respondent, the appellant had a vested, existing right and legitimate
expectation to a degree of the 2nd respondent.
52. The respondents in rebutting the appellant’s case contend that it is government policy to expand
university education through establishment of constituent colleges which later become fully fledged
universities. It is contended that through this policy, students of constituent colleges are as a practice

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conferred degrees of the new fully fledged university whether or not they were initially admitted by the
constituent college. In line with the practice, the respondents urged this Court to find that the appellant
was not entitled to conferment of a Moi University degree. The respondents’ further contend that as a
matter of government policy, any legitimate expectation that the appellant had was frustrated by the
Universities Act and the grant of Charter to the 1st respondent.
53. What is the legal effect of such general policy statements" Can government policy take away
acquired, vested or existing rights and legitimate expectation and frustrate the contractual relationship
between citizens" Can government policy abrogate legitimate expectations that have been acquired and
vested in contract and recognized in law" On the specific facts of this case, Paragraph 5 of the Legal
Notice embodies the government policy that students who belonged to Moi University would be
conferred degrees of that University; likewise, the Karatina University Charter at paragraph 33 (2)
recognizes that only former students of Karatina University College were to be conferred degrees of
Karatina University. It is inherent that persons who were not former students of Karatina University
College could not be conferred degrees of Karatina University. Having found that the appellant was not a
former student of Karatina University College, we hold that government policy as espoused in the
Universities Act and the Karatina University Charter recognizes the doctrine of legitimate expectation
that the appellant, who was not a student or former student of Karatina University College could not be
conferred a degree of that University.
54. The respondents submitted that by virtue of operation of law the doctrine of frustration applied to
annul any legitimate expectation on the part of the appellant to be conferred a degree of the 2nd
respondent. In support of this submission, the 2nd respondent stated it was not in charge of the legal
instruments and the process that led to the grant of a Charter to the 1st respondent; that even if the
appellant was its student, their relationship was frustrated by a legal process and legislative action that
was not within the power and control of the respondent and the appellant; that as things stand now, the
Senate of Moi University cannot approve the award and conferment of a degree to the appellant who
undertook his studies at Karatina University which is now a full fledged University and an independent
body corporate; that Moi University Senate cannot satisfy itself for the award of degrees in relation to
courses taught and examined by Karatina University; that the relationship between the appellant and the
2nd respondent was frustrated by operation of law and there is impossibility of performance on the part of
the 2nd respondent.
55. The trial court at paragraph 50 of the judgment expressed as follows:
“Both defendants are creatures of statutes and having been established by statute they can only
do that which the statute creating them allows them to do and therefore this court is unable to
grant mandatory injunction against the 1st defendant as to do so will amount to directing it to
violate the law creating it…”
56. From paragraph 50 of the judgment noted above, it is not clear which specific law the trial Judge had
in mind that the 1st defendant would be violating. We deduce that the learned Judge alludes to the
transitional Paragraph 33 of the Charter which stipulates that the former students of Karatina University
College would be allowed to complete their studies and be conferred degrees of Karatina University.
57. At paragraph 60 of the judgment, the trial court alludes to the concept of frustration of contract and
impossibility of performance when it states that:
“Evidence was tendered by the 2nd defendant that the courses which are being taken by the
plaintiffs are no longer being offered by the 2nd defendant and therefore the plaintiffs can only

425
now lawfully graduate and be awarded the degrees of Karatina University….”
58. With due respect we disagree. The appellant was admitted in 2009 to undertake university education
offered by the 2nd respondent; the curriculum that the appellant studied was developed, taught and
examined by the 2nd respondent; when the appellant had two months to complete his studies, the 2nd
respondent disowns him and asserts that he can only be conferred a degree by the 1st respondent. In
our view, the 1st respondent is a stranger to the university academic curriculum and study undertaken by
the appellant. There is no evidence to support the contention that by virtue of operation of law, the 2nd
respondent is unable to fulfill its obligation or that there is frustration on the part of the 2nd respondent. As
earlier stated, the 2nd respondent conferred its degree to students who were registered at the 1st
respondent institution in 2013; if this was possible then, why not now" If it was not a violation of law then,
how can it be a violation of law now yet the law has not changed" It is our considered view that there is
no impossibility of performance on the part of the 2nd respondent; what was possible and performed in
2013 is still possible and can be performed now under the same legal framework.
59. As regards frustration, is there evidence on record to support the notion that the contractual
relationship between the appellant and 2nd respondent has been frustrated" Frustration is the occurrence
of an intervening event or change of circumstances so fundamental as to be regarded by law as striking
at the root of the agreement, and as entirely beyond what was contemplated by the parties when they
entered into the agreement. Lord Radcliffe in Davis Contractors Ltd v Fareham U.D.C. [1956] A.C.
696-729) stated that “frustration occurs whenever the law recognizes that without default of either party,
a contractual obligation has become incapable of being performed because the circumstances in which
the performance is called for would render it a thing radically different from that which was undertaken by
the contract.” When frustration succeeds, the party pleads “this is not what I promised to do.” To
determine whether a contractual obligation has been frustrated, the Court must act upon a general
impression attached to the occurrence of an unexpected event that changes the face of things. But even
so, it is not hardship or inconvenience or material loss itself which calls the principle of frustration into
play. There must be as well such a change in the significance of the obligation that the thing undertaken
would, if performed, be a different thing than that contracted for.
60. The criteria to determine frustration is the test of a radical change in the obligation. In the instant
case, we do not agree with the submission that the Universities Act or the grant of Karatina University
Charter annulled or frustrated the relationship between the appellant and 2nd respondent. Far from it, it is
the interpretation and application of the Charter by the respondents that seek to frustrate the legitimate
expectation of the appellant. There is no evidence on record to support frustration. The subject matter of
contract between the 2nd respondent and the appellant is still in existence; there is no dissolution or
intervening incapacity of either party; there is no supervening illegality or change in law or that the
method of the 2nd respondent performing its obligation has been rendered impossible or is radically or
fundamentally different; or that the purpose and objects of the 2nd appellant is fundamentally different
from that which was the substratum of its contractual relationship with the appellant or that there is a
frustration of purpose or a delay that is sufficiently long to frustrate the parties intention.
61. It is our finding that there is no conflict between the legitimate expectation made by the 2nd
respondent to the appellant and the grant of Karatina University Charter. It is not in dispute that the 1st
respondent as a fully fledged university never taught and examined the appellant; the appellant is not
seeking an honorary degree from the respondents; it is the 2nd respondent through its constituent college
located at Karatina that taught and examined the appellant. It is our considered view that fair
administrative action demand that the 2nd respondent be estopped from reneging on its promise that
gave rise to legitimate expectation on the part of the appellant. We hold that the doctrine of estoppel and
principle of legitimate expectation properly apply to the facts of this case. We find that the learned Judge

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of the High Court erred in failing to interpret the facts of this case and correctly apply the doctrine of
estoppel and the principle of legitimate expectation; a promise or representation need not be in writing; it
can be inferred from conduct and action. The trial Judge erred in failing to find that the action or conduct
of the 2nd respondent in admitting the appellant as its student was a promise or representation that upon
successful completion of his studies, the appellant would be conferred a degree of the 2nd respondent;
the learned Judge erred in invoking the concepts of illegality or impossibility of performance by operation
of law when there are no facts to support the application of the concepts; there is no evidence to support
the notion that it would be illegal for the 2nd respondent to confer its degree to the appellant who was and
is its student. Nowhere in the Universities Act or in the Karatina University Charter is it stated that
Karatina University is a successor to Moi University or that it assumes responsibility to award and confer
degrees to those individuals who were students of Moi University undertaking studies at Karatina
University College. Except for honorary or posthumous degrees, it would be against public policy and
morals and a violation of academic honesty for the 1st respondent to confer a degree to a student that it
never admitted, taught and examined. The doctrine of frustration or illegality of performance cannot be
used to promote or sanction academic dishonesty.
62. The respondents submitted that it is a practice in the history of establishment of universities in Kenya
that students who are enrolled in constituent colleges are conferred with degrees of the new fully fledged
universities and are not conferred degrees of the parent universities that initially admitted them. The 2nd
respondent through a witness statement dated 28th May 2013 by Prof. John Mugun Boit stated that the
transformation of Karatina University College into a full university is not unique but is as has been the
case with other institutions including Maseno University, Eldoret University, Masinde Muliro University of
Science & Technology as well as Kabianga University which were all initially constituent colleges of the
2nd respondent; the 2nd respondent to buttress its submissions urged this Court to note that in 1984 when
Moi University was established, the first batch of its students were transferred from the University of
Nairobi and they graduated in 1987 with degrees conferred by Moi University. Counsel submitted that
allowing the appeal would be disruptive and cause confusion to other students who have already been
conferred degrees of Karatina University; that allowing the appeal would open floodgates for all students,
whether current or former who graduated from institutions that were previously constituent colleges of
the 2nd respondent.
63. We have considered this submission and note that the transitional provisions in the Karatina
University Charter are very clear that former students of Karatina University College are the ones to be
conferred degrees of Karatina University. Any student who was not a student of the former Karatina
University College is not subject to award and conferment of the degree of Karatina University. The 2nd
respondent properly interpreted this provision as stated in paragraph 14 of Prof. Mugun’s witness
statement that all students of the 1st respondent who graduated before it attained University status were
conferred Moi University degree certificates. We find that the 2nd respondent and the learned Judge
erred in law when it was assumed that establishment of Karatina University Senate had the effect of
transferring all students of Moi University who were at Karatina to become eligible for conferment of
degrees of Karatina University. The establishment of a Senate neither transfers a student from one
university to another nor does it change the legal status of any student. As regards the historical
submissions as to how universities evolved in Kenya, it is our considered view that the legal instruments
establishing each of the universities alluded to were not tendered in evidence to enable the trial court
examine each of the transitional provisions to ascertain how students were transited, if at all, from the
constituent college to the new full university. In the absence of the legal instruments and the relevant
transitional provisions, the universities histories as captured in the witness statements have no evidential
weight; each case must be determined on its own merits based on its legal instrument and the relevant
transitional provisions.

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64. We note that at paragraph 51 of the judgment it is stated that the plaintiffs should have filed suit
against the Commission for Higher Education which granted a Charter to the 1st respondent; that the 1st
respondent should not have been sued. At paragraph 46 of the judgment the trial court states that:
“The plaintiffs had a remedy under rule 23 which provides that any person or institution who or
which is aggrieved by an act or decision of the Commission taken in accordance with any of the
provisions of the rules who desires to question that act or decision or any party of it (sic) may
within 30 days of the date of such act or decision appeal to the Minister who may give such
orders on institutions (sic) as he may consider necessary. The courts have held that where an
alternative remedy and procedure is provided for an aggrieved party must follow the said before
coming to court….Rule 23 is a remedy or procedure which the plaintiffs should have taken once
they were put on notice of the transition they should have appealed to the Minister of Higher
Education.”
65. We note the observations by the trial court as stated above. The trial court erred in contextualizing
the dispute between the parties in this case; there is no grievance relating to the decision by the
Commission to grant a Charter to the 1st respondent. The dispute and issue revolves around the
interpretation and administrative application of the provisions of Paragraph 5 of the Legal Notice No. 163
of 2010 and the implementation of the transitional provision in Paragraph 33 of the Charter.
66. At the beginning of this judgment, we posited the following issue: when a student is admitted to study
in a constituent college of a parent university and later the constituent college becomes a full fledged
independent university halfway before the student completes his study, to which degree is the student
entitled to - a degree from the parent university or a degree from the constituent college that is now a
new and full fledged university" The answer to this question lies in the transitional provisions contained in
the instrument transforming the constituent college into a full fledged university.
67. In the instant case, there are two transitional provisions relevant to the facts of this case: first is
paragraph 5 of Legal Notice No. 163 of 2010 and second is paragraph 33 (2) of the Charter establishing
Karatina University.
68. At the risk of repetition these two transitional provisions are reproduced hereunder; Paragraph 5 (1)
of the Legal Notice No. 163 of 2010 stipulates as follows:
“The degrees and Postgraduate diplomas to be awarded by the University College shall be the
degrees and postgraduate diplomas conferred by Moi University.”
Paragraph 33 of the Charter of Karatina University provides as follows:
“The students of former Karatina University College, who were pursuing degree, diploma and
certificate programmes as at the commencement date of this Charter shall:
a. be allowed to complete their courses and
b. be awarded degrees, diplomas and certificates of the University.
In the interpretation section of the Charter, University means Karatina University.”
69. The gravamen in this appeal pertains to interpretation and application of the transitional provisions to
the appellant. As regards Paragraph 5 (1) of the Legal Notice No. 163 of 2010, it is explicit that the

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degree to be conferred to the appellant by Karatina University College (a constituent college of Moi
University) was the degree of Moi University.
70. In relation to application of the transitional provision in Paragraph 33 of the Charter, the critical
question is how many categories of students did Karatina University College have as at the date of
commencement of the Charter" Which category of students were transited by paragraph 33 to be eligible
and entitled to a degree of Karatina University"
71. The evidence on record shows that there were two categories of students at Karatina University
College at the date of commencement of the Charter. The first category were students admitted by Moi
University who were undertaking studies at Karatina Central Campus of Chepkoilel University College
which was a constituent college of Moi University – these were students admitted prior to gazettment of
the Legal Notice No. 163 of 2010 and to whom paragraph 5 of the Legal Notice applied - the appellant
was one of these students. The second category were students of Karatina University College admitted
after Legal Notice No. 163 of 2010 which established Karatina University College as a body corporate
and a constituent college of Moi University.
72. Taking into account these two categories of students, the critical question is which students were
transited by Paragraph 33 of the Karatina University Charter" The initial question to be considered in
transiting students from a constituent college into a new university is to ask how many categories of
students exist in the college. This question was not asked when Paragraph 33 of the Charter was
crafted. Failure to ask the question made Paragraph 33 of the Charter capture the second category of
students existing at Karatina University College and declared them former students of Karatina
University College. Paragraph 33 failed to consider and transit the students of Moi University who were
pursuing their degree studies at the College. No dual mechanism was crafted into the Charter to
simultaneously transit the two categories of students. It is our considered view that the appellant being in
the first category of students was not transited and he remained a student of Moi University eligible for
award and conferment of the degree of the 2nd respondent.
73. Two transitional clauses relating to phase out and phase in should have been crafted into the Charter
to phase out the students who belonged to Moi University and phase in students of the former Karatina
University College; the present Paragraph 33 only deals with phase in and not phase out; the phase out
clause should have either transited students of Moi University at Karatina to become students of
Karatina University or provide that all students admitted by Moi University would continue to belong to
the said University until they successfully complete their programs of study. We observe that the
quandary in this particular case arose from fast-tracking the transformation of Karatina University
College into a full fledged University. The College was established in 2010 by Legal Notice No. 163 of
2010 and was converted into a full fledged University on 1st March 2013. This was done in less than four
(4) academic years leading to existence of two categories of students and one category was not factored
in the crafting of the transitional clause. It is recommended that converting a constituent college into an
independent university should take a minimum of four academic years to enable a practical phase out
and phase in of all students. We assuage the fear and concern by the 2nd respondent that in allowing this
appeal a floodgate shall be opened; this may not occur as other constituent colleges that were converted
into full universities were not fast-tracked and the students having graduated there is acquiescence;
delay and lapse of time and any dispute may have been overtaken by events.
74. We have been able to consider some persuasive authorities from the High Court relevant to the
appeal. Of relevance is a ruling delivered at Mombasa High Court by Kasango, J. on 25th June 2014, in
Daniel Muthoka Munyao & others vs. Technical University of Mombasa and Jomo Kenyatta
University of Agriculture & Technology, (Mombasa Constitutional Petition No. 32 of 2014). The

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relevant facts are as follows:
“The Petitioners after passing their high school examinations qualified for university admission.
The Petitioners were admitted to undertake various Engineering courses at the Jomo Kenyatta
University of Agriculture and Technology (JKUAT). The Petitioners, upon their admission were
placed at the Mombasa Polytechnic University College in Mombasa where they were to undertake
studies. During the pendency of the Petitioners studies, Mombasa Polytechnic University College
acquired a charter on 24th January 2013 and became a fully fledged university and was renamed
“Technical University of Mombasa”…. The Petitioners courses before and after the acquisition of
the charter were taught, moderated and supervised by lecturers from Jomo Kenyatta University
of Agriculture and Technology (JKUAT). The said JKUAT refused to graduate the Petitioners that
they were students of Technical University of Mombasa. The Court found that JKUAT was
unreasonable in refusing to include the Petitioners names in its graduation list. An order was
issued compelling JKUAT to graduate the Petitioners. In arriving at the decision compelling
JKUAT to graduate the Petitioners, the court posed the question why did JKUAT refuse to place
the Petitioners in its graduation list. The answer was found in an e-mail from the Vice Chancellor
of JKUAT to the Vice Chancellor of Technical University of Mombasa. In the e-mail, the Vice
Chancellor of JKUAT emphasized “the ones we graduated last year was the final group. You
better make arrangements with your senate for these students just like the others you have”. The
trial court while observing that JKUAT was saying the Petitioners did not belong to them found
that justice demands that the petitioners be placed on the JKUAT graduation list despite the fact
that Technical University of Mombasa had obtained a Charter.”
75. In Jesse Waweru Wahome & others vs. Kenya Engineers Registration Board and Egerton
University &Others, (2012) eKLR), Justice Majanja at paragraph 102 observed that-
“In a country like ours where citizens place a premium on university education, it is not right to
leave graduates in a suspended state where they do not know their fate especially where parents
have made sacrifices to educate their children, students have taken out loans from the Higher
Education Loan Board and are expected to re-pay these loans and the State has invested
taxpayers money….This is a situation that cries out for justice.”
In the instant case, the appellant has undertaken study and education as a student of the 2nd respondent
since 2009; he has invested time, energy and resources; two months to completion of his study the 2nd
respondent disowns him as its student and asserts that he is a student of the 1st respondent who was
neither in existence in 2009 nor taught and examined the appellant. This situation invites the Court to
intervene and injunct the 2nd respondent from reneging on its contractual obligations and the legitimate
expectation of the appellant.
76. The appellant contended that his constitutional right to education was violated; it is also contended
that the learned judge was biased in arriving at his decision. No constitutional provision was cited in
support of the right to university education; there is no evidence on record that justifies an inference of
bias on the part of the trial court. We find no merit in this contention. The appellant further made an
interesting submission on the status and legality of Paragraph 32 of the Karatina University Charter that
revoked Legal Notice No. 163 of 2010. It was submitted that Legal Notice No. 163 of 2010 was a
subsidiary legislation gazetted pursuant to the provisions of the now repealed Moi University Act (Cap
210A). In contrast, it was urged that the Karatina University Charter was nothing but an agreement
between the Commission of University Education and Karatina University; and an agreement cannot
revoke a legal instrument.

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77. We have considered the submission and observe that a Charter to a University is granted pursuant
to Sections 19 & 21 of the Universities Act (2012). Section 19 of the Universities Act stipulate inter
alia that the Cabinet Secretary shall recommend to the President the grant of a Charter and under
Section 21 of the Act, the Cabinet Secretary shall by notice in the Gazette, publish the Charter granted
under Section 19. We note that Legal Notice No. 163 of 2010 which established Karatina University
College was made pursuant to Section 5 of the now repealed Moi University Act (Cap 210A). The
contention by the appellant is that a Charter granted under the Universities Act is an agreement and
not a legal instrument. We disagree and hold that a Charter granted under the Universities Act is a
subsidiary legislation made pursuant to Sections 19 & 21 of the Act. This finding is in consonance with
Section 33 of the Interpretation and General Provisions Act, (Cap 2 of the Laws of Kenya) which
provides as follows:
“Section 33: Acts done under subsidiary legislation deemed done under Act which authorizes it.
An act shall be deemed to be done under an Act or by virtue of the powers conferred by an Act or
in pursuance or execution of the powers of or under the authority of an Act, if it is done under or
by virtue of or in pursuance of subsidiary legislation made under a power contained in that Act
.”
78. In arriving at our decision in this appeal, we are cognizant of the fact that the dispute between the
parties is of an academic nature. We are aware of the dicta in Republic .vs. Council of Legal
Education ex parte James Njuguna & Others Nairobi HC Misc. Civil Case No. 137 of 2004 where it
was stated that,
“In academic matters involving issues of policy, the courts are not sufficiently equipped to
handle and such matters are better handled by the Boards entrusted by statute or regulations.
Except where such bodies fail to directly and properly address the applicable law or are guilty of
an illegality or a serious procedural impropriety the field of academia should be largely non-
justiciable.”
79. However, in the instant case, we are convinced that the trial court erred and failed to properly
interpret and address the applicable law on transitional provisions relating to students of Moi University
and the doctrines of estoppel and legitimate expectation. As was stated in R (Bibi) .vs. Newham
London Borough Council (2001) EWCA Cin. 607; {2002} WLR 237, failure to consider a legitimate
expectation is a failure to consider a relevant consideration and this would in turn call for the courts
intervention in assuming jurisdiction and giving the necessary relief.
80. We note that the relationship between the appellant and the 2nd respondent is contractual in nature.
Just as any contract can be varied by consent or acquiescence, we leave it to the parties to either
consent or acquiesce to any variation of their initial contractual relationship and any expectations arising
therefrom.
81. At the hearing of this appeal counsel for the 1st respondent stated from the bar that he had received
a letter dated 12th March 2015 from the 1st respondent (which letter was lodged and filed at the court
registry on 18th March 2015) stating that the appellant’s name was on the graduation list of those
students who were conferred with a degree of the 1st respondent and the instant appeal had been
overtaken by events. Conversely, counsel of the appellant stated from the bar that the appellant never
attended the 2014 graduation ceremony and if at all the 1st respondent by its own action inserted the
appellant’s name on its graduation list, this was unilateral and not done with the consent of the appellant
and the instant appeal had not been overtaken by events. We observe that the statements made by

431
counsel were from the bar and no application was made before this Court to receive additional evidence.
82. Subject to the foregoing observation and based on the various reasons given above, we hereby
allow the appeal and set aside in entirety the judgment of the High Court dated 5th September 2014. We
take note of the consent order made on 8th August, 2013 whereby the appellant was to sit his final
exams and complete his course of study. Based on the submissions made before us we are satisfied
that the appellant is entitled to an order that he be granted a degree of Moi University in accordance with
his contract with the said university. A mandatory order be and is hereby issued against the 2nd
respondent to award and confer its degree to the appellant. The appellant shall have the costs of the suit
before the High Court and in this appeal.
Dated and delivered at Nyeri this 14th day of April, 2015.
ALNASHIR VISRAM
……………………….
JUDGE OF APPEAL
MARTHA KOOME
………………………
JUDGE OF APPEAL
J. OTIENO-ODEK
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR

432

NRB 1ST-5TH Petitioners Submissions-Housing-Nrb Pet E154 of 2024-DR - Magare Gikenyi VS CS Housing & 55 Others

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REPUBLIC OF KENYA 147

THE HIGH COURT OF KENYA AT MILIMANI NAIROBI

1. We as Nairobi High Court Constitutional Petition E154 of 2024 filed on 19 th

3. THAT the Respondents are entities/state organs involved in enactment of the

BACKGROUND SUMMARY OF THE CASE

(a) THAT A DECLARATION is hereby made that there are

(b) A DECLARATION THAT action of legislating the Affordable

(c) A DECLARATION THAT action of initiating/tabling the

(d) A DECLARATION that inter alia Section(s) 3(b), 4(2)(a), 4(2)(b),

(e) THAT The court is pleased to issue an order of judicial review

(f) DECLARATION that the state/respondent’s actions of

(g) DECLARATION that at all times the respondents or any other

(h) THAT the court is pleased to issue an order of judicial review

(i) THAT the court is pleased to issue an order of judicial review

(j) That any other order or/and modification of petitioner’s

8. Now let’s move on to submissions of the petition itself.

ISSUES FOR DETERMINATION

(b) Whether right to access housing is the same as right to own

(d) Whether the Affordable Housing Act 2024 legal framework is

(e) Whether the Affordable Housing Act 2024 entrenches communism

(g) Whether its legal and constitutional on issues of public land

(i) Whether the affordable housing act 2024 is discriminatory

(l) What are other constitutional violations has been occasioned by

(m) conclusion, orders, reliefs/orders

Sovereignty of the people

12. In Institute of Social Accountability & Another v National Assembly &

14. THAT In a matter Salaries and Remuneration Commission & another v

“…168. The principle of the rule of law, which is a foundational

170. As Currie points out “the Constitution, premised as it is on the

• “Both purpose and effect are relevant in determining

• 50. And In Ng Ka Ling & Another v The Director of

• “It is generally accepted that in the interpretation of a Constitution

• 51. Guided by the above principles, we now turn to consider whether

• “When an Act of Congress is appropriately challenged in the courts as

• “..….illegality is when the decision – making authority commits an

“…the doctrine of legality which requires that power should have a

(B)WHETHER RIGHT TO ACCESS HOUSING IS THE SAME AS RIGHT TO OWN

(C)WHETHER THE AFFORDABLE HOUSING ACT 2024 DISRUPTS THE

23. THAT it’s the petitioner’s case that AFFORDABLE HOUSING

24. THAT article 185(2) of the constitution states

27. THAT from the foregoing, housing is a function of County

29. THAT section 16(2)(b) state

31. THAT from the going we submit that AFFORDABLE HOUSING

(D)WHETHER THE AFFORDABLE HOUSING ACT 2024 LEGAL FRAMEWORK

32. The government introduced affordable housing Act pursuant to

33. THAT Forcing people(especially employees) to get deducted so as to

36. However, on the other hand, the legal framework on affordable

(a) That only the employees(contributors) X who suffers in terms of

(c) The problem with this faulty legal framework is the

(d) Further, there No clear roadmap on how people in the informal

(f) The fact of having faulty legal framework of levying Kenyans

(E)WHETHER THE AFFORDABLE HOUSING ACT 2024 ENTRENCHES

41. THAT a salary of an employee or an income of a person is his/her private

42. THAT Further and in particular:

(b) The government’s intention to forcibly deduct a substantial 1.5% of

44. THAT Article 40(2) states

Limit ownership contrary to Article 40 of CoK (right to property)

49. THAT Communist ideologies (from Latin communis, 'common,

50. THAT These ideologies were brought up by the ancient philosophers