August Issue - 3
August Issue - 3
August Issue - 3
2 AUGUST 2024
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AUGUST 2024 3
7 Extrajudicial killings: A blatant
violation of constitutional and
human rights
23 An Ode to Maj
4 AUGUST 2024
62 Voices of accountability and the
quest to be heard
76 From avoidance to
constitutionalisation of private law:
The puzzle of horizontality
AUGUST 2024 5
Join us in Malta
Addressing extrajudicial killings requires a multifaceted approach, including strengthening legal frameworks,
improving law enforcement practices, ensuring accountability, and fostering a culture of respect for human rights.
AUGUST 2024 7
violence had once again intruded into the unanswered questions. As fear takes root in
lives of ordinary people, igniting questions the hearts of those who live in the shadow
about safety, justice, and the state of human of these tragedies, the urgent call for justice
rights. Families, once filled with hope and and protection intensifies.
resilience, found themselves grappling with
a new, unsettling reality—a world where Communities rally together, seeking to
the sanctity of life seemed more fragile than reclaim their safety and dignity, demanding
ever. that such heinous acts never be normalised
or brushed aside. The specter of violence
In the wake of these horrific events, looms large, but amid the sorrow and
the community's calls for justice grew outrage, there remains a flicker of hope—a
louder. Local leaders and activists united, resilient spirit that refuses to be silenced. In
demanding accountability from the their pursuit of justice, the people of Kware
authorities, who had often been criticised and beyond echo a collective demand: no
for their inaction in addressing the more bodies should be left to rot in silence,
escalating violence and crime. The image of and no more lives should be taken without
the murdered individuals became a catalyst consequence.
for broader discussions about extrajudicial
killings, impunity, and the desperate need The constitutional framework
for effective law enforcement that respects
human rights. At the core of most democratic Constitutions
lies the principle of due process—a
This pattern of violence, which has seen safeguard intended to ensure fairness
innocent lives end in such gruesome fashion, and protect individuals from arbitrary
stands as a stark reminder of the fragility state action. This guarantees that every
of human dignity. Each hacked body tells person has the right to be heard and to
a story cut short—a life extinguished too defend themselves in a court of law before
soon, leaving behind grieving families and facing severe penalties, including capital
Efforts to reform the Kenya police service and improve accountability mechanisms have been proposed, including
changes to the legal framework and increased oversight. However, implementing these reforms effectively
remains a significant challenge due to issues like corruption, lack of political will, and systemic weaknesses within
the justice system.
8 AUGUST 2024
punishment. Extrajudicial killings bypass the Kenyan government accountable for
this essential legal process, stripping human rights abuses. The establishment
individuals of their rights and protections, of independent inquiries into alleged
and eroding the rule of law. extrajudicial killings is crucial to ensure
transparency and accountability.
Furthermore, the Kenyan Constitution
enshrines the right to life as inviolable. The Human rights organisations, too, play an
Universal Declaration of Human Rights, essential role in denouncing these practices
which serves as a global benchmark, states and advocating for the victims. Their
unequivocally, "Everyone has the right to documentation and reporting can galvanise
life, liberty, and security of person". When public opinion and mobilise action. In a
state actors engage in extrajudicial killings, world interconnected by information, the
they not only violate domestic laws but exposure of such violations can no longer
also contravene international human rights remain hidden from view.
norms that countries are obliged to uphold.
Extrajudicial killings strike at the heart of
Implications for human rights justice, legality, and human rights. They
reflect a stark failure of the state to uphold
Extrajudicial killings create a culture of its fundamental obligations to protect and
impunity, wherein those who commit such respect human life. As we advocate for a
acts face little to no consequences. This more just and humane society, we must
impunity emboldens further violence and reaffirm our commitment to the principles
abuse, perpetuating a cycle that often of due process and the inviolability of
targets marginalised communities, activists, human rights. The fight against extrajudicial
and dissenters. The chilling effect on civil killings is not just a legal battle but a moral
liberties is profound—individuals may imperative that demands the collective
refrain from exercising their rights to free action of citizens, governments, and the
speech, assembly, and protest for fear of international community. Only through
retribution. The resultant environment is vigilance and advocacy can we protect the
one where the state’s enforcement of law sanctity of life and the principles enshrined
instils terror rather than safety. in our constitutions and human rights
frameworks.
Moreover, extrajudicial killings frequently
violate the principle of non-discrimination. In light of the recent tragedies in Kware
Marginalised groups such as ethnic and the unwarranted killings of protestors,
minorities, the poor, and political dissenters it is imperative that justice prevails.
are disproportionately affected, revealing We authoritatively demand that those
systemic biases and often discriminatory responsible for these heinous acts be held
state practices. This exacerbates existing accountable for their actions. Accountability
societal inequalities and undermines trust is not just a legal requirement but a moral
between citizens and their governments. imperative to ensure that such atrocities
are not repeated. It is crucial that the
The role of the international community perpetrators face the full force of the law,
and that justice is served for the victims and
The international community has a their families. By doing so, we reaffirm our
fundamental role in addressing and commitment to upholding the rule of law
condemning extrajudicial killings in and protecting the fundamental rights of all
Kenya. Through diplomatic pressure, citizens. Let this be a solemn reminder that
economic sanctions, and international in our pursuit of justice, no one is above the
legal frameworks, global actors can hold law, and impunity will not be tolerated.
AUGUST 2024 9
IN MEMORIAM
JUSTICE MAJANJA
A distinguished jurist, mentor, role model
and cherished friend
10 AUGUST 2024
10 AUGUST 2024
By Miracle Okumu Mudeyi
O Justice! My Justice!
O Justice! My Justice! Our guide and our star,
The courts are quiet, though your light was far,
The gavel rests, the echoes fade,
In halls where your wisdom ever stayed.
O Justice! My Justice! The scales you did weigh, infusing his interactions with kindness,
With courage and truth, you paved the way, humour, and character. His zest for life was
When rules were harsh, and fairness strained, palpable, whether in his dedication to his
You spoke of rights, and justice gained. work, his passion for research, or his love
for food. Engaging in conversation with him
The banners flew, the people cheered, was always an adventure: he could captivate
For in your rulings, they held dear, with an insightful observation one moment
A beacon bright in darkest night, and delight with his wry humour the next.
Guiding us all with steadfast light. While he possessed a noble and serious
approach to his work, he never took himself
O Justice! Our Justice! We mourn your name, too seriously, a balance that endeared him to
Yet celebrate the truths you claim, all who knew him.
In times of doubt and legal test,
You stood for what is right and best. Justice Majanja's untimely passing on
10 July 2024, at the age of 51, leaves an
Rest now, O Justice! Your work is done, indelible void. It is almost inconceivable that
The battles fought, the victories won, he is no longer among us, yet we remain
Your legacy, a guiding call, forever grateful for the time he shared
For justice stands, where you did fall.'' with us and the indelible mark he left on
our community. Our deepest condolences
go out to his family, friends, and the entire
1. In Memory of a Unique and legal fraternity, who have lost not only
Cherished Jurist a remarkable jurist but also a cherished
companion.
To have known Justice David Amilcar
Shikomera Majanja and experienced his This piece aims to remember Justice Majanja
friendship was a rare and precious gift. A as both a friend and a mentor, celebrating
man of singular brilliance and profound the remarkable individual he was. His
warmth, Justice Majanja seamlessly blended intellect and judgements were not only
intellectual rigour with a generous spirit, impressive but also innovative, capable
The author has drawn inspiration from Walt Whitman's ''O Captain My Captain''
AUGUST 2024 11
of envisioning new pathways in the legal Modern judicial standards, such as the
field. His work drew on a broad spectrum Bangalore Principles of Judicial Conduct
of experiences, incorporating insights from established in 2002, distill these timeless
various disciplines and demonstrating virtues into six core tenets: judicial
a keen eye for emerging trends. Justice independence, impartiality, integrity,
Majanja's sensitivity to the practical propriety and the appearance of propriety,
applications of his research extended beyond equality of treatment to all before the
academia, offering tangible benefits to the courts, and competence and diligence.
broader community. These principles are the bedrock of judicial
conduct and have been pivotal in shaping
While we can only speculate on the further the judiciary's role in society. Justice David
contributions he might have made with Amilcar Shikomera Majanja epitomized
more time, we choose to honour and these virtues. His progressive judicial
celebrate the many accomplishments philosophy and landmark decisions reflected
and contributions he achieved in his his unwavering commitment to fairness,
distinguished career. Justice Majanja's legacy courage, and integrity. Through his work,
is one of brilliance, warmth, and a tireless Justice Majanja not only upheld these
pursuit of justice and knowledge, and it is values but also set a benchmark for judicial
with deep respect and admiration that we excellence. His legacy serves as a powerful
pay tribute to him. reminder of the critical importance of these
principles in maintaining justice and equity
1.1 The Legacy of Justice David Amilcar within the legal system.
Shikomera Majanja
2. A Deeper Exploration of Justice
"Without a judiciary which can and will Majanja's Jurisprudence
administer law fairly and fearlessly between
parties, no other guarantee given to the Justice Majanja has made a profound impact
litigants by the law is likely to be of value.” on Kenyan jurisprudence, influencing both
This adage highlights the indispensable teachers and students of the law, as well as
role of a judge's character and principles. those directly affected by the rule of law.
Throughout history, from ancient philosophy His numerous decisions, characterized by
to contemporary legal frameworks, the their clarity and deep understanding of
attributes of an ideal judge have been legal principles, spanned a wide array of
extolled. Socrates said “Four things belong substantive legal areas. I will capture some
to a judge: to listen courteously, to answer of those aspects in exploring his public law
wisely, to consider soberly and to decide thought through his decisions.
impartially”.1
2.1 The Public Law Legacy of Justice
In the book of Exodus, Jethro advises Moses Majanja at the High Court
to establish a judicial system to distribute
the burden of resolving legal disputes, Champion of Constitutional Integrity
which had become overwhelming for him to
handle alone.. Jethro advises Moses to seek Justice David Amilcar Shikomera Majanja
out “able men, such as fear God, men of was more than a jurist; he was a beacon of
truth, hating covetousness”. progressive thought in the Kenyan judiciary.
The origin of this quotation is unknown, yet it is frequently cited in judicial literature.
1
12 AUGUST 2024
Justice Majanja presided over numerous cases that have had a considerable impact on Kenyan law and
governance. His judgments are often cited for their adherence to constitutional principles and human rights.
His tenure on the bench was marked by reinforced the judiciary’s role as a protector
a thoughtful commitment to justice and of justice against procedural overreach.
the protection of constitutional rights. A
fundamental moment that encapsulates Majanja’s judicial pragmatism
Majanja’s judicial philosophy is his decision
in Wanjiku & another v Attorney General In Okoiti & 15 others v Attorney General &
& another.2 In this case, he scrutinized 7 others,3 Justice David Amilcar Shikomera
Order 22 rule 7 of the Civil Procedure Rules, Majanja's tenure exemplified a commitment
which allowed for the immediate arrest of a to upholding the Constitution of Kenya,
judgment-debtor within court precincts upon 2010. The bench's decision in this case were
an oral application by the judgment-creditor. grounded in the principles of leadership
Majanja astutely recognized this provision and integrity as enshrined in Chapter Six
as a potential threat to due process, as it of the Constitution. The court recognized
deprived the debtor of adequate notice that the people of Kenya, through this
and the opportunity to settle the debt, Constitution, sought to depart from a history
even if they had the means. By declaring marred by endemic corruption and the
the rule unconstitutional, Majanja not misuse and abuse of public office by their
only safeguarded individual rights but also leaders, both elected and appointed. This
2
See Wanjiku & another v Attorney General & another; Muna & another (Interested Parties) (Petition 190 of 2011) [2012] KEHC
5410 (KLR) (Constitutional and Human Rights).
3
See Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Parties)
(Constitutional Petition E090,E168,E221,E230,E234,E249, E017,E109 & E010 of 2022 (Consolidated)) [2022] KEHC 3209
(KLR) (Constitutional and Human Rights).
AUGUST 2024 13
vision necessitated an interpretation of issues, thus maintaining the integrity and
the Constitution that was aligned with its practical relevance of judicial proceedings.
purposes and principles, promoted the rule Additionally, the court addressed the
of law, fundamental rights, and freedoms, procedural aspects of pre-election disputes,
and contributed to good governance. such as the suitability and eligibility for
Article 259(1) of the Constitution guided the nomination of candidates. It affirmed
this interpretative approach, ensuring that that these matters fell within the primary
Chapter Six and the provisions governing jurisdiction of the Independent Electoral
the electoral process were read in a cohesive and Boundaries Commission (IEBC). The
manner that fully realized the Constitution’s High Court's jurisdiction would only be
objectives. invoked after the IEBC had rendered a
decision, ensuring a structured and orderly
The court’s pronouncement on the process for resolving electoral disputes. This
jurisdiction of the High Court was delineation of roles between the IEBC and
particularly significant. It affirmed that the the High Court highlighted a respect for
High Court possessed a broad mandate institutional competencies and procedural
to adjudicate matters concerning the efficiency.
Constitution, allowing any person to bring
forth questions regarding its interpretation. Justice Majanja's contributions in Okoiti
This expansive jurisdiction underscored the & 15 others v Attorney General & 7 others
court's role as a guardian of constitutional epitomized a judicial philosophy that valued
fidelity and a forum for addressing constitutional adherence, institutional
grievances related to constitutional respect, and the pragmatic resolution
breaches. However, the court also delineated of disputes. His interpretations and
clear boundaries for its role, emphasizing decisions provided a robust framework for
that its function was to resolve actual promoting integrity, accountability, and
disputes rather than engage in academic good governance in Kenya’s public sphere.
or abstract discourse. This limitation The bench’s decision in this case reflected
stemmed from the Constitution’s deliberate a deep understanding of the Constitution’s
exclusion of advisory jurisdiction from transformative intent and an unwavering
the High Court’s remit, ensuring that the commitment to fostering a just and equitable
court’s resources were dedicated to tangible society. Justice Majanja's legacy in this case,
conflicts requiring judicial intervention. and others like it, remains a testament to his
progressive judicial approach and dedication
Justice Majanja's bench further rejected to the rule of law.
the notion of creating a 'harmonization
jurisdiction,' which would enable the court Championing Human Dignity: Justice
to reconcile conflicting decisions in the Majanja's Progressive Decision in
absence of a live dispute. The court held Republic v S O M
that harmonization should only occur in
the context of an existing and active case In Republic v S O M [2018] eKLR,4 Justice
with concrete facts, specific allegations of Majanja once again underscored his
wrongdoing, and identifiable respondents. commitment to upholding the principles
This decision reinforced the principle of public law and human dignity. In this
that courts are forums for resolving real landmark decision, Majanja J. articulated
conflicts, not hypothetical or generalized the constitutional imperative of protecting
14 AUGUST 2024
High Court Principal Judge Eric Ogola congratulates JSC Commissioner and High Court Judge the late David
Majanja for being awarded Judge of the Year by LSK Nairobi Branch for espousing excellence in legal adjudication.
the rights of persons with disabilities, a the assessment of its severity, is inherently
tenet that is enshrined in Article 28 of the a judicial function, not an executive one.
Constitution, which guarantees the right to This principle was further supported by the
be treated with dignity. Further reinforcing Supreme Court’s decision in the Muruatetu
this right, Article 54(1)(a) stipulates that case, which stressed the judiciary's exclusive
individuals with disabilities must be treated role in determining the guilt of the accused
with respect and addressed in a manner that and the terms of their sentence.
is not demeaning. Majanja's decision was
not only grounded in national constitutional Majanja J. found the vesting of discretion in
provisions but also aligned with Kenya's the President regarding the treatment of the
international obligations under the accused post-conviction to be fundamentally
Convention on the Rights of Persons with inconsistent with the judiciary's
Disabilities, incorporated into domestic law constitutional mandate. This discretion, he
by Article 2(6) of the Constitution. argued, undermines the judiciary’s role and
violates the right to a fair trial as protected
Majanja J. critically analyzed the provisions under Article 25 of the Constitution. Article
of section 166 of the Criminal Procedure 2 of the Constitution invalidates any law
Code (CPC), which mandates that after a inconsistent with the Constitution to the
special verdict, the court's duty concludes extent of the inconsistency, and section
with the accused’s detention pending 7(1) of the Sixth Schedule empowers courts
the President’s decision. Drawing on the to modify existing laws to conform with
precedent set by Mativo J. in AOO and constitutional standards.
6 Others v Attorney General, Majanja
J. emphasized that the imposition of In his decision, Majanja J. declared section
punishment in criminal matters, including 166 of the CPC unconstitutional, to the
AUGUST 2024 15
extent that it transfers the judicial function public duties. Majanja upheld the notion
of determining the nature and consequence that the right to privacy, while fundamental,
of the sentence to the executive. To remedy is not absolute. This principle was
this constitutional defect, he directed that particularly relevant in the context of patient
references to “the President” in section confidentiality. Justice Majanja articulated
166 should be read as “the Court.” This that the right to privacy protects personal
modification ensures that the court, not the and family information from unnecessary
President, periodically reviews the detention disclosure, yet it can be overridden under
of the accused, taking into account expert certain circumstances, especially when
evidence and other relevant factors before public safety is at stake. The case illustrated
making appropriate orders within a defined this balance as he delineated clear principles
period of detention. under which a doctor could disclose
confidential information: a real and serious
Majanja J. recognized the antiquated risk to public safety, disclosure to a person
foundations of section 166, rooted with a legitimate interest, and limiting the
in 18th-century legal perspectives on disclosure to what is strictly necessary.
mental health. He acknowledged the
advancements in modern psychiatry At the heart of the case was the legal
and human rights standards that have conundrum surrounding the registration
significantly improved the treatment of of a child born through surrogacy, a matter
persons with mental disabilities within complicated by the absence of a specific
the criminal justice system. By declaring legal framework in Kenya at the time.
section 166 unconstitutional and mandating The petitioners, intending for the second
judicial oversight for periodic reviews, and third petitioners to be recognized as
Majanja J. not only aligned the law with parents, clashed with the hospital’s statutory
contemporary human rights standards but duty to record the first petitioner, the birth
also reinforced the judiciary's pivotal role in mother, as the parent under the Births and
the administration of justice. His decision Deaths Registration Act. Justice Majanja's
in Republic v S O M [2018] eKLR stands interpretation was meticulous, grounding
as a testament to his progressive judicial his decision in the statutory definitions and
philosophy and unwavering dedication to duties. He affirmed that the hospital acted
upholding constitutional principles and within the law, recognizing the birth mother
human dignity. as the immediate custodian and responsible
party for the child, in the absence of
Balancing Privacy and Public Duty: surrogacy legislation.
Justice Majanja’s Landmark Surrogacy
Judgment In a society increasingly turning to
surrogacy, Majanja’s decision emphasized
In the landmark case of JLN & 2 others the urgent need for legal structures
v Director of Children Services & 2 to address the complexities of such
others; Kenya National Human Rights arrangements. He acknowledged the distress
Commission & another,5 Justice Majanja caused by the Director of Children Services'
delivered a seminal judgment that actions, which, in attempting to navigate
underscored his deep commitment to the the legal vacuum, resulted in the violation
interplay between individual rights and of the petitioners’ and children's rights.
5
JLN & 2 others v Director of Children Services & 2 others; Kenya National Human Rights Commission & another (Interested
Parties) (Petition 78 of 2014) [2014] KEHC 7491 (KLR) (Constitutional and Human Rights).
16 AUGUST 2024
Justice Majanja was also known for his engagement with the public and various stakeholders on legal issues,
often participating in forums and discussions aimed at enhancing legal understanding and promoting justice.
The Director's failure to act in the best rights and duties, and his forward-thinking
interest of the children, as mandated by approach to evolving societal norms. His
the Children Act, was a significant point of decision not only resolved the immediate
critique. Justice Majanja asserted that even legal issues but also laid the groundwork for
in the absence of explicit laws on surrogacy, future legislative developments in Kenya,
decisions should be made based on the ensuring that children's rights and the
constitutional principle of the best interests dignity of all involved are upheld.
of the child, as enshrined in Article 57 of the
Constitution. A Beacon of Justice: Striking Down
Barriers to Access to Justice
Moreover, Majanja’s judgment highlighted
the international legal standards protecting Justice David Majanja’s obligation to public
children’s rights, referencing the United law principles was vividly illustrated in
Nations Convention on the Rights of the the landmark case of Okenyo Omwansa
Child and the African Charter on the George & Another v Attorney General
Rights and Welfare of the Child. These & 2 Others [2012] eKLR. Here, Justice
instruments underscore every child's right Majanja reaffirmed the Constitution's
to certainty of parentage, family, a name, preamble, which envisions a government
and freedom from discrimination. Justice founded on human rights, equality, freedom,
Majanja’s decision thus called for the state democracy, social justice, and the rule of
to establish a legal framework for surrogacy law. These aspirations are concretized in
to safeguard these fundamental rights. In Article 10 and the Bill of Rights, demanding
sum, Justice Majanja's decision in this case an accessible and informed legal system.
is a testament to his judicious balancing of Justice Majanja astutely observed that
AUGUST 2024 17
for Kenya to realize a just society, legal Majanja meticulously critiqued the Office
services must be both accessible and of the Attorney General for neglecting its
comprehensible to the populace. He constitutional duties, emphasizing the
posited that the prohibition on advocates’ paramount importance of the rule of law.
advertising impedes these constitutional He criticized the Attorney General for
objectives. Advocates, he emphasized, serve failing to fulfill his duty to notify relevant
as crucial conduits between the citizenry state agencies of court decisions and orders
and the law, facilitating the understanding affecting them.6
and exercise of legal rights and obligations.
This role is fundamental to justice, enabling He stated, “In my view, the Office
individuals to navigate legal complexities of the Attorney General bears great
in personal and professional spheres. By responsibility in ensuring that the rule
restricting advocates from disseminating of law is not undermined. Article 156 of
information about their services, Rule 2 of the Constitution imposes on that office
the Advocates (Practice) Rules effectively and all those officers who serve under
curtails access to justice. Justice Majanja it a specific obligation. Article 156(6) is
found this restriction inimical to the clear that, “the Attorney General shall
constitutional mandate of ensuring that promote, protect and uphold the rule of
every Kenyan has the necessary information law and defend public interest.” Clearly
to access legal services. He declared that by permitting the demolition to proceed
such a ban undermines the rights enshrined in light of a clear court order, the office
in Articles 35(b), 46, and 48 of the of the Attorney General did not live up
Constitution, which guarantee the right to to its responsibilities and failure to live
information, consumer rights, and access up to its responsibilities has undermined
to justice, respectively. Therefore, Justice the rule of law and the petitioners’ rights
Majanja ruled that Rule 2’s complete ban under Article 43. I would hold that it is
on advertising was unconstitutional. This the unconditional obligation of the Office
decision not only struck down an archaic of the Attorney General and those who act
regulation but also underscored the essential under it, to inform the every State organ,
role of legal practitioners in democratizing department, state organisation or any
legal knowledge and safeguarding the public officer affected by an existing of
public's right to justice. It was a profound a court order immediately it is made or
affirmation of the principle that access to known and ensure compliance therewith.
legal information is a cornerstone of a fair This is the duty cast upon by Article
and just society. 156(6) and it cannot be avoided by trick
or device.”
Upholding Constitutional Integrity:
Justice Majanja’s Stern Reprimand to the Furthermore, Justice Majanja expressed
Office of the Attorney General himself strongly in Kenya Bus Service Ltd &
Anor v Minister For Transport & 2 Others
Justice Majanja’s unwavering commitment [2012]eKLR as, “ Before I sign off this
to constitutionalism is vividly illustrated in judgment I must deprecate the conduct of
his decision in Joseph Ihugo Mwaura & the office of the Attorney General which
82 Others v Attorney General & 2 Others I have alluded to at paragraph 8 and 9
[2012] eKLR. In this decision, Justice of this judgment. The Office of Attorney
6
See Jill Cottrell and Yash P Ghai, The Legal Profession and the New Constitutional Order in Kenya (Strathmore University Press
2014) 161.
18 AUGUST 2024
General is a constitutional office with public participation a national value is a
special responsibilities under Article form of expression of that sovereignty.”
156(4) particularly representing the Thus, Majanja J’s interpretation underscored
national government in court. By virtue the Constitution’s pivotal role in fostering
of Article 156(6), the Attorney General is genuine and participatory governance.
required to promote, protect and uphold
the rule of law and public interest. It Redefining Jurisdiction: Justice Majanja's
is imperative that in proceedings such Pioneering Decision on the Industrial
these that the voice of the Attorney Court's Role in Constitutional Rights
General is asserted in order to assist the
court. Failure to take this responsibility Determining jurisdiction over the
seriously by that office and its officers is a enforcement of rights and fundamental
dereliction of duty. I shall say no more.” freedoms has frequently presented a
complex challenge, especially when
The Sovereignty of the People: Majanja J's contrasting the roles of the High Court with
Vision of Public Participation in Kenya's those of the equal-status courts in the post-
Constitutional Framework 2010 Constitutional law dispensation. In
United States International University v
One of the most invigorating aspects of Attorney General & 2 Others (2012) eKLR,
the Constitution lies in its deep-seated Justice Majanja made a groundbreaking
commitment to national values and determination on the jurisdictional
principles of governance, vividly captured boundaries of the then newly established
in Article 10. This article embodies Industrial Court.This was one of the
the Constitution's ambitious vision pioneering judgments in this area that came
for transformative governance. In his from the Constitutional division of the High
jurisprudence, Justice Majanja skillfully Court, where the question of the Industrial
illuminated these foundational principles, Court's jurisdiction was critically examined.
placing them at the heart of Kenya's
democratic evolution. His judgment in Justice Majanja, addressed the issue of
Association of Gaming Operations Kenya & whether the Industrial Court possessed
41 Others v. Attorney General & 4 Others the authority not only to adjudicate
stands as a testament to this approach.7 labour rights enshrined in Article 41 of
Majanja J eloquently asserted that public the Constitution but also to extend its
participation is not merely a procedural jurisdiction to all fundamental rights
formality but a fundamental expression incidental to employment and labour
of the people's sovereignty, as enshrined relations. His decision is notable for
in Article 1. He articulated that Article its interpretation of the constitutional
10, which elevates public participation framework, emphasizing that the Industrial
to a national value, is intrinsically linked Court, upon its establishment, should be
to this sovereignty. He stated, “Public empowered to enforce a comprehensive
participation as a national value is an range of rights that intersect with
expression of the sovereignty of the people employment law. Justice Majanja’s
articulated in Article 1 of the Constitution. decision was a significant departure from
The golden thread running through the conventional interpretations, establishing
Constitution is one of sovereignty of the that the Industrial Court was not just a
people of Kenya and Article 10 that makes venue for labor disputes but also had the
Association of Gaming Operators-Kenya & 41 others v Attorney General & 4 others [2014] eKLR.
7
AUGUST 2024 19
Majanja’s contributions to the legal field will forever be a beacon of judicial integrity, ensuring that the principles
of fairness, accountability, and transparency remain at the forefront of administrative law in Kenya.
authority to address broader constitutional Court Act, 2011, and Article 165 of the
issues related to employment. Constitution did not explicitly address the
The High Court, following this decision, jurisdictional scope of the Industrial Court
undertook the task of transferring employment concerning constitutional interpretation
and labour relations matters that were and fundamental rights enforcement.
previously filed under its jurisdiction to He argued for a holistic view of the
the newly established Industrial Court. Constitution, asserting that its provisions
This procedural shift was grounded in the should be interpreted in a cohesive
constitutional stipulations of Articles 162(2) manner to avoid fragmentary applications.
and 165(5), which delineate the jurisdictional According to Majanja, the jurisdiction of
boundaries of various courts. The contention the High Court under Article 165 did not
highlighted a critical debate: whether the High necessarily preclude the Industrial Court
Court could transfer such matters, given that from addressing issues of constitutional
it retained constitutional responsibilities under interpretation and rights enforcement. The
Article 162(2) related to fundamental rights Judge posited that limiting the Industrial
enforcement. Court’s jurisdiction to purely labour and
employment matters could result in a
Justice Majanja's analysis was profoundly fragmented legal landscape, fostering
influential in shaping this discourse. parallel jurisdictions between the High
He noted that both the Industrial Court and the Industrial Court. Such
20 AUGUST 2024
fragmentation, he warned, would not administrative convenience and the
only encourage forum shopping but also imperatives of justice and transparency.
undermine the consistency and stability Justice Majanja’s decision resonated
essential for the fair administration of through the legal corridors, drawing from
employment and labour law. Justice cases like Total Kenya Ltd v Kenya Revenue
Majanja’s ruling underscored the necessity Authority and Suchan Investment Limited v
of a unified approach to the enforcement Ministry of National Heritage and Culture,
of rights and freedoms within the ambit of thereby reinforcing the judiciary's role in
employment law. By affirming the Industrial curbing arbitrary administrative actions. In
Court's broad jurisdiction, the judgment setting aside the Commissioner’s decision,
paved the way for a more coherent and Justice Majanja did not just correct an
predictable legal framework, ensuring administrative wrong; he strengthened the
that all related rights and constitutional jurisprudence that mandates accountability
interpretations were handled within a and transparency in public administration.
singular, competent forum. This approach His insistence that administrative bodies
reinforced the principles of legal certainty must provide cogent reasons for their
and integrity, fundamental to the effective decisions is a testament to his commitment
administration of justice. to upholding constitutional rights, ensuring
that every administrative action stands the
Justice Majanja's Legacy in Public test of legality and reasonableness. This
and Tax Law case stands as an example of his judicial
philosophy that administrative power
In Ndirangu t/a Ndirangu Hardware v must be exercised within the bounds of
Commissioner of Domestic Taxes (Tax fairness and justice. Justice Majanja’s
Appeal E070 of 2021,8 the Justice Majanja's legacy is etched in his relentless pursuit
decision highlighted his deep understanding of justice, his sharp legal acumen, and his
of the intersection between public law and unwavering dedication to protecting the
tax law. He found that the Commissioner’s rights of individuals against the excesses of
failure to provide reasons for rejecting administrative power. His decisions in tax
the appellant’s objection was more than a law and public law are not mere judgments;
procedural misstep; it was a stark violation they are enduring principles that continue to
of the principles enshrined in Article 47 guide and inspire the legal fraternity. Justice
of the Constitution. Justice Majanja's Majanja’s contributions to the legal field
decision was a thorough examination of the will forever be a beacon of judicial integrity,
constitutional mandate that administrative ensuring that the principles of fairness,
actions must be expeditious, efficient, accountability, and transparency remain at
lawful, reasonable, and procedurally fair. the forefront of administrative law in Kenya.
He articulated that the duty to give reasons,
as mandated by section 51(10) of the Tax 3. Concluding Thoughts
Procedures Act, is a cornerstone of fair
administrative practice, embedded in our I have highlighted some of the most notable
constitutional framework. His decision judicial contributions made by Justice David
highlighted that administrative decisions Amilcar Shikomera Majanja during his 13-
devoid of reasons are not only procedurally year tenure. These contributions reflect his
defective but also constitutionally infirm, significant impact on the legal landscape
drawing a clear line between mere and his unwavering commitment to justice.
Ndirangu t/a Ndirangu Hardware v Commissioner of Domestic Taxes (Tax Appeal E070 of 2021) [2023] KEHC 19357 (KLR).
8
AUGUST 2024 21
Justice Majanja's work will continue to be a significant part of Kenya's evolving legal landscape, contributing to
the country's efforts to strengthen the rule of law and uphold justice.
Simply listing these achievements without high standard for judicial conduct and has
context would not fully convey the depth of inspired many within the legal field. The
Justice Majanja’s influence. true significance of his contributions is
not found in a mere list of cases but in the
Justice Majanja’s rulings and judgements lasting effect his decisions have had on the
were more than just legal decisions; they justice system.
represented key moments in advancing
constitutional rights and maintaining Overall, the importance of Justice Majanja’s
judicial integrity. His time on the bench was contributions is clear. His judicial career
characterized by a strong commitment to serves as a compelling example of how
fairness and a deep respect for legal principles. thoughtful and principled adjudication
Through his landmark judgments and can shape the pursuit of justice. His legacy,
forward-thinking interpretations, he not only firmly established in our legal history,
resolved individual cases but also contributed continues to guide and inspire those who
to the broader evolution of the law. are committed to upholding the rule of law.
Considering his legacy, it is evident that Miracle Okoth Okumu Mudeyi is a lawyer, currently
Justice Majanja’s impact extends beyond studying at the Kenya School of Law, and serves as an
Editorial Researcher for this publication.
his judicial decisions. His work has set a
22 AUGUST 2024
An Ode to Maj
By Hon. Justice (Prof.)
Joel Ngugi
2024 23
AUGUST 2024
AUGUST 23
Tribute to
Justice David Majanja
In Samura Engineering Ltd & Others vs.
By Hon. Justice Martha Kenya Revenue Authority (2012), Justice
K. Koome Majanja acknowledged the new dawn of a
rule of law-based state and society brought
by the 2010 Constitution. He notably
observed: “By placing the values of rule
Justice Majanja lived by a mantra you
of law, good governance, transparency,
will find pinned on his X (formerly
and accountability at the center of the
Twitter) handle @kenyanjurist: “Law is
Constitution, we must now embrace the
my Life: Justice is my Blood.” This mantra
culture of justification which requires that
epitomised his distinguished career as a
every official act must find its locus in the
legal practitioner, his years of service as a
law and underpinning in the Constitution.”
Judge of the High Court, and his tenure
as a Commissioner of the JSC. It reflects
Justice Majanja was a diligent and hard-
his commitment to upholding the rule of
working judge. Despite his duties as a
law and ensuring the fair administration
Commissioner at the JSC, he consistently
of justice. He dedicated his life to these
delivered judgments on time and was
principles, applying the law impartially to
frequently among the judges with the
ensure equal justice for all.
highest number of judgments delivered in
the Judiciary.
Justice Majanja made significant
contributions to the administration of justice
At the JSC, he played a pivotal role
and the development of our jurisprudence.
in developing various policies and
Among his numerous landmark decisions,
programmes. He was passionately
two stand out for their emphasis on access
committed to institution-building initiatives
to justice and the rule of law. In Kenya Bus
aimed at making both the JSC and the
Service Ltd & Another vs. Minister for
Judiciary efficient and responsive to the
Transport & 2 others (2012), he held that
justice needs of the Kenyan people. Justice
the mandatory 30-day notice of intention
Majanja was a devoted servant of our
to sue the government violated the right
nation, and his death leaves an irreplaceable
of access to justice and constituted an
void. His profound impact on our justice
unjustified limitation in a democratic society.
institutions and the rule of law is indelible.
He poignantly noted: “By incorporating the
We have been privileged to witness his
right of access to justice, the Constitution
intense, abiding devotion to both.
requires us to look beyond the dry letter of
the law. The right of access to justice is a
We extend our prayers and sincere
reaction to and a protection against legal
condolences to his family, friends,
formalism and dogmatism…. Where the
colleagues, and the Judiciary and JSC family.
state is at the front, left and center of the
citizen’s life, the law should not impose
hurdles on accountability of the Government Hon. Martha K. Koome is the Chief Justice and President
of the Supreme Court of Kenya
through the courts.”
24 AUGUST 2024
Tribute to
the late
Hon.
Justice
Daniel
Ogembo
Ogola
By Hon. Justice Martha K. Koome
2024 25
AUGUST 2024
AUGUST 25
Tribute in memory of
Hon. Justice Daniel Ogembo Ogola
26 AUGUST 2024
Celebrating the life and
legacy of JSC Commissioner
Hon. Justice David Majanja
The untimely death of Commissioner Justice
David Majanja has left an immeasurable
void in the Judicial Service Commission.
We are deeply devastated by the loss of
a key pillar whose wisdom, dedication
and unwavering commitment registered
towering achievements in the administration
of justice in Kenya. During his tenure as
a Member of the JSC which lasted over
half a decade, Commissioner Justice
Majanja rendered exemplary service to
the commission and the nation. His tenure
was characterised by a relentless pursuit
of excellence, a profound understanding of The late Justice David Amilcar Shikomera Majanja
the law, and a genuine passion for ensuring
justice for all. He was compassionate,
a fountain of wisdom and a mentor to of justice and has left behind a legacy that
many. Commissioner Justice Majanja was a will continue to have a lasting impact on
colleague who inspired through his actions, the administration of justice in Kenya. As
and a Judge whose decisions reflected his we mourn his passing, we also celebrate a
deep sense of justice and equity. His legacy life dedicated to the noble cause of justice.
will continue to influence and inspire the Fare thee well Commissioner Justice David
commission and the administration of Majanja.
Justice for years to come. His re-election to
the commission on 25th May 2024 served The Judicial Service Commission is
as a testament to the trust and respect he established under Article Article 171(1)
commanded within the judicial community of the 2010 Constitution of Kenya to
and the recognition of his past contributions promote and facilitate the independence
and a hopeful anticipation of further and accountability of the Judiciary and
positive changes he was poised to bring. the efficient, effective and transparent
Commissioner Justice Majanja was a giant administration of justice.
AUGUST 2024 27
The life and legacy of Justice
David A. S. Majanja: The grand
master of Kenya’s jurisprudential
transformation project
the moral universe bends towards justice.
Justice David Majanja exemplified this
By Tioko Emmanuel Ekiru belief through his steadfast commitment
to the rule of law and the Constitution. As
one of the first-generation judges to serve
during the critical post-2010 constitutional
1.0 Introduction period, Justice Majanja will be remembered
for his meticulous application of the law,
On July 11, 2024, the Kenyan people, and always striving to do what was right. Even
indeed the world at large, were plunged under extremely difficult circumstances,
into mourning following the sad news of he preserved the edifice of the rule of law,
the demise of a deeply revered jurist of the constitutionalism, and equal access to
Kenyan High Court and a member of the justice. He interpreted statutes in conformity
Judicial Service Commission (JSC), Justice with the Constitution, thereby expanding
David Amilcar Shikomera Majanja. To his access to justice for all, regardless of social
countless admirers, and with a flood of status. He embodied the adage of Justice
goodwill messages and tributes, Justice David Oliver Wendell Holmes Jr. that it is possible
Majanja was seen as a visionary advocate for a man—or a woman, as he might have
for social justice, a principled workaholic, said—to live greatly in the law.1
and an idealistic jurist with a remarkable
combination of humility and brilliance, This essay is divided into three parts. The
graced with a solid understanding of the law. first part is an introduction. The second part
constitutes a non-exhaustive biography of
He was a devoted friend to many, a mentor, Justice David Majanja, highlighting his life,
a father, a husband, a patriot, a cherished experience and career trajectory before and
oracle of the law, and a historic figure who after his appointment to the judiciary to
served on the Kenyan bench during the the period he passed on. The second part
significant period following the enactment of surveys Justice Majanja’s jurisprudential
the 2010 Constitution. Chief Justice Martha philosophy and how it has shaped Kenya’s
Koome, in her eulogy for Justice Majanja, transformative project.
described him as a towering figure in the
development of Kenya’s transformative 2.0 Background and context: Justice
post-2010 jurisprudence and a crucial pillar David Majanja’s profile
in the institution-building of the JSC and
the Judiciary. The Reverend Dr. Martin Justice David Amilcar Shikomera Majanja
Luther King Jr. once said that the arc of was born in Kisumu on 7 April 1973 to the
See Oliver Wendell Holmes, Jr., The Profession of Law, in SPEECHES 22, 23 (1891).
1
28 AUGUST 2024
family of Gerishom and Bilha Majanja. He Association at the JSC on May 14, 2019, for
attended Hill School in Eldoret and Alliance a five-year term following the end of Judge
High School before attaining his Bachelor Aggrey Muchelule’s tenure as JSC male
of Laws (LLB) degree at the University of representative. After completing his term, he
Nairobi in 1996. he completed a postgraduate was re-elected for a second term and sworn
diploma in law at the Kenya School of Law in as a member (commissioner) of the JSC
and was subsequently admitted to the bar on May 28, 2024.
in 1998. He later earned a Master of Laws
(LLM) degree in International Trade and Justice Majanja also served in other
Investment Law in Africa from the University significant positions, including Chair of the
of Pretoria, South Africa, in 2005. Human Resource Management Committee of
the JSC, member of the Audit, Governance,
Justice Majanja began his legal career as an and Risk Management Committee, and the
Advocate, venturing into private practice Learning and Development Committee.
and specialising in civil and commercial He was a member of the Judiciary Rules
law. He worked for Mohammed and Committee and served as the Vice-
Muigai Advocates and Onyango and Ohaga chairperson of the Judiciary Working
Advocates before founding Majanja Luseno Committee on Election Preparations (JWCEP)
and Company Advocates in 2007. He also and the Presiding Judge at the Homa Bay
served as assisting counsel in public interest High Court and Migori High Court.
litigation cases, including the Commission
of Inquiry into the Post-Election Violence in 3.0 Understanding Justice David
Kenya (Waki Commission). Majanja’s contribution to Kenyan
jurisprudence and legal thought
Following his successful and distinguished
career in private practice, Justice Majanja Serving the judiciary during the profound
was appointed to the High Court in 2011. period of Kenya’s post-2010 constitutional
He served during a significant period of the order, Justice Majanja's decisions, whether
Kenyan post-2010 dispensation alongside as part of a multi-member bench or
colleagues such as Justice Daniel Musinga as a single judge, have had significant
(as he then was), Justice Mumbi Ngugi (as ramifications for both the current and
she then was), Justice Isaac Lenaola (as he future generations. This section examines
was), the late Justice Louis Onguto, and how Justice Majanja’s jurisprudence played
Justice Aggrey Muchelule. a pivotal role in shaping the post-2010
constitutional order.
Given his commitment to justice, he was
deployed to various court stations across 3.1 Constitutionalised administrative
the country, including the Homa Bay, actions should be justified in compliance
Migori, Kisumu, and Kisii High Courts, the with the law
Constitutional and Human Rights Division,
the Commercial and Tax Divisions, and the Since the widely acclaimed jurist and
Milimani High Court Civil Division, where scholar Etienne Mureinik coined the phrase
he served until his untimely demise. "culture of justification," it has gained
Justice Majanja held several leadership global momentum and is seen by leading
positions within the judiciary. He was first thinkers and constitutional theorists as
elected to be a commissioner representing an apt depiction of limiting and policing
the Kenyan Magistrate and Judges state power.2 Mureinik described a culture
see Walter Khobe, ‘commentary on Mr. Justice Mativo: Lion of the Constitution’, the Platform for Law, Justice and Society pp.14-22.
2
AUGUST 2024 29
of justification as "a culture in which every
exercise of power is expected to be justified; Article 20(4)(a) of the Constitution of Kenya
in which the leadership given by government provides that, in interpreting the Bill of
rests on the cogency of the case offered in Rights, the court should promote the values
defense of its decision, not the fear inspired underlying an open and democratic society
by the force at its command. The new order based on human dignity, equality, equity,
must be a community built on persuasion, not and freedom. Additionally, Article 21(3)
coercion." requires the court to address the needs of
vulnerable groups within society, including
With this understanding, Justice Majanja, women, older members of society, persons
in Samura Engineering Ltd & Others v. with disabilities, children, youth, members
Kenya Revenue Authority,3 underscored of minority or marginalised communities,
the importance of justifying the exercise and members of particular ethnic, religious,
of public power. This case concerns the or cultural communities.
statutory powers of search and seizure
exercised by officers of the Kenya Revenue Furthermore, to ensure equality and non-
Authority in executing their mandate discrimination for all individuals, regardless
and whether this exercise violated the of their status in society, the Constitution, by
petitioners’ rights and fundamental virtue of Article 27(6), obligates the State
freedoms. In determining the case, to fully realise the right to equality and
Justice Majanja recognised that the freedom from discrimination. This includes
2010 Constitution had constitutionalised taking legislative and other measures, such
administrative actions, requiring that all as affirmative action programs and policies,
exercises of public power be justified as designed to redress any disadvantages
being in compliance with the law. He further suffered by individuals or groups due to past
emphasized that by placing the values of the discrimination.
rule of law, good governance, transparency,
and accountability at the center of the In this regard, Justice Majanja recognised, in
Constitution, we must embrace a culture the case of Kenya Bus Service Ltd & Another
of justification, which requires that every v minister for Transport & 2 Others4, the
official act must find its basis in the law and place of social justice and access to justice in
underpinning in the Constitution. adjudication in the post-2010 era as follows:
This decision by Justice David Majanja “By incorporating the right of access to
is important for two reasons. First, it justice, the Constitution requires us to
underscored the necessity for tax authorities look beyond the dry letter of the law. The
to strictly adhere to all legal procedures in a right of access to justice is a reaction to
sound and transparent manner. Second, the and a protection against legal formalism
decision signifies the moral regeneration of a and dogmatism. (See “Law and Practical
new culture and discourse of administrative Programme for Reforms” (1992) 109 SALJ
law that is legally sound and lies at the heart 22) Article 48 must be located within the
of the post-2010 constitutional order. constitutional imperative that recognises
the Bill of Rights as the framework for
3.2 The right of access to justice as a social, economic and cultural policies.
reaction to and protection against legal Without access to justice the objects of the
formalism and dogmatism Constitution which is to build a society
[2012]eKLR.
3
[2012]eKLR.
4
30 AUGUST 2024
founded upon the rule of law, dignity, disabilities is crucial for their well-being, it
social justice and democracy cannot be requires a thorough lexical review to remove
realised for it is within the legal processes outdated derogatory terms, as mentioned in
that the rights and fundamental freedoms the case above. In this case, the High Court
are realised. Article 48 therefore invites the invalidated Section 166 of the CPC because it
court to consider the conditions which clog removed discretion from the courts, contrary
and fetter the right of persons to seek the to Article 160 of the 2010 Constitution, and
assistance of courts of law.” imposed an indeterminate sentence, violating
the right to freedom from torture, cruel,
In the above excerpt, Justice Majanja inhuman, and degrading treatment.5
addressed all consumers of justice, urging
them to move beyond their traditional According to the High Court, the mandatory
roles to effect justice for all, including wording of Section 166 of the CPC denied
underprivileged members of society such the court discretion to make a favourable
as women, older adults, persons with decision based on the nature of an accused
disabilities, children, youth, and members person’s mental health condition. Instead,
of minority or marginalised communities, to it vested discretion in the President to
enable them to lead dignified lives. The case determine the conditions under which an
underscores and emphasises the essential accused person would serve their sentence,
nature of access to justice as a fundamental whether in prison or a mental health
human rights pillar in a functioning institution. This finding was informed by
democracy like ours. the 2017 groundbreaking decision in Francis
Karioko Muruatetu and another v Republic,
3.3 Detention of persons with mental where the Supreme Court held that ‘it is
health at the pleasure of the President the judicial duty to impose a sentence that
is unlawful meets the facts and circumstances of the
case.’6
Like the Criminal Procedure Code (CPC),
the Penal Code has colonial origins, though Justice David Majanja understood this to
it has undergone some reforms to comply mean that a law leaving the length of the
with the 2010 Constitution. Similarly, the sentence to another authority violates the
Penal Code uses derogatory language when rights of the accused. It is in this context
referring to persons with intellectual and that he directed the reform of the Penal
psychosocial disabilities. For instance, in Code, finding that the detention of persons
Republic v SOM, Justice David Majanja with mental health conditions at the
lamented the use of words such as ‘lunacy,’ pleasure of the President was unlawful and
noting they reflect the 18th-century violated their right to human dignity.7
foundations of the current law.
5
Republic v SOM, para 10. Other judges, such as Justice Chitembwe in HM v Republic, High Court Criminal Appeal (HCCrA) 17
of 2017, Judgement of the High Court at Meru on 9 November 2017, eKLR, have concluded that indefinite sentences excessive
and violates the dignity of the accused person. Justice Mativo in AOO & 6 others v Attorney General & another, Constitutional
and human rights petition 570 of 2015, Judgement of the High Court at Nairobi on 12 May 2017, eKLR, found that detention
at the president’s pleasure vested judicial powers into the Executive to determine the duration of an individual’s sentence and
thus is in breach of the doctrine of separation of powers.
6
See Majanja in Republic v SOM, para 16.
7
Emphasis added.
AUGUST 2024 31
3.4 Statutes should be interpreted in a seem to have borrowed the leaf from the
manner that promotes access to justice clarion call of Ronald Dworkin9 and Robert
Alexy’s10 legal philosophy which calls
The case of Crown Beverages Limited v MFI the court of law not to disengage from
Document Solutions Ltd8 was an appeal from the Constitution whenever the Court is
a judgment of the Small Claims Court to interpreting statutes (which are normative
the High Court. The appellant asked the derivatives of constitutional principles).
High Court to overturn the Small Claims
Court's decision on the grounds that it 3.5 Affirmation of the link between the
was delivered outside the statutory 60-day right to health and access to Information
timeline prescribed by the Small Claims
Court Act (SCCA) 2016. In the widely cited case of Mathew Okwanda
v Minister of Health and Medical Services
In determining the appeal, Justice Majanja & 3 others,11 Justice Majanja affirmed the
emphasized that although Section 34(2) relationship between the right to health and
of the SCCA is framed in mandatory terms, access to information. He stated that the
the court must consider the context of the General Comment [Committee on Economic,
provision in light of the guiding principles, Social and Cultural Rights (CESCR) General
which include, among other things, the Comment No. 14] recognises that the right
timely disposal of all proceedings before to health is closely related to economic
the court using the least expensive method. rights and depends on the realisation of
He further emphasized that the provision other rights, including the rights to food,
regarding the delivery of judgment is housing, water, work, education, human
intended to be directory, not mandatory, dignity, life, non-discrimination, equality,
as it is not the intention of the SCCA to prohibition of torture, privacy, access to
invalidate any proceedings that violate the information, and other freedoms.
statutory timelines. Adopting such a position
would undermine the statutory objectives Justice Majanja further appreciated that the
and cause injustice to the parties, as the case incorporation of economic and social rights
would have to be reheard. set out in Article 43 of the Constitution
encapsulates the desire of Kenyans to address
In other words, Justice Majanja was of the issues of poverty, unemployment, ignorance,
view that statutes like the SCCA should and disease. He emphasised that failing to
be interpreted in a manner that promotes address these conditions would undermine
access to justice in light of Article 48 of the the entire foundation of the Constitution.
Kenyan Constitution. Interpreting the statute
in this way would help the court avoid By acknowledging the interconnected
inordinate delays or grave injustices to the nature of rights, Justice Majanja was of
concerned parties. the view that the fulfillment of all rights
is essential for human endeavours if they
By deploying intellectual firepower and are interconnected. This decision, by all
a resolute mastery of the legal theory in standards, breathed fresh air into Article 43
interpreting the statute, Justice Majanja and Article 35 of the Constitution.
8
[2023) eKLR.
9
See “normative derivatives” as canvassed in Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977); See also
Ronald Dworkin, A Matter of Principle (Harvard University Press, 1986).
10
See Robert Alexy, A Theory of Constitutional Rights (Oxford University Press, 2010).
11
[2013] eKLR.
32 AUGUST 2024
3.6 The income of the church arising from (TAT), arguing that its income from offerings
tithes, offerings, and donations is not and tithes was exempt from tax under
subject to taxation paragraph 10 of the First Schedule to the
Income Tax Act (Cap 470 Laws of Kenya)
The taxation of churches has been a (ITA). The church further argued that any
contentious issue, generating polarising surplus realised in a given year would be
views in many Christian-affiliated societies rolled over to the following year and used
and states.12 This is because taxing churches for the benefit of church members, without
is a nuanced and complex problem being distributed to anyone in any form.
that demands balancing the right to
religious freedom with the need to ensure Conversely, the KRA stated that the
that religious institutions operate in a exemption under paragraph 10 of the First
transparent, accountable, and responsive Schedule is not automatic and would only
manner, as stated in Article 10 of the Kenyan be granted upon application, approval, and
Constitution.13 The right to conscience, issuance of an exemption certificate by the
belief, and opinion underscores church Commissioner. The KRA further asserted
autonomy, ensuring that church activities that the burden of proof lay with the church
are free from state interference, thus to demonstrate the existence of such an
justifying the tax exemption enjoyed by exemption.
churches.14
The Tribunal initially ruled in favour of
In a landmark decision likely to the church, holding that income from
influence Kenya's jurisprudence for tithes and offerings does not fall under the
years, Commissioner of Domestic Taxes vs. ambit of taxable income. Aggrieved by the
Thika Road Baptist Church Ministries15 Tribunal’s decision, the KRA appealed to
(HCCOMMITA/E024/2021) (an appeal by the High Court. Justice Majanja upheld the
the Commissioner against the decision of the Tribunal’s decision, ruling that the church's
Tax Appeals Tribunal), Justice Majanja was income from tithes, offerings, and donations
confronted with the question of whether does not fall within the meaning of taxable
the income of the Respondent (a religious income per Section 3(2) of the ITA and is
organisation registered under Section 10 of therefore not subject to tax. Furthermore,
the Societies Act – Cap 108 Laws of Kenya), the court held that only income chargeable
consisting of offerings, tithes, and donations, to tax in the first instance may be exempt
is subject to tax. from tax under Section 13, as read together
with the First Schedule of the ITA.
The case stemmed from an audit of the
church's books of account for the years 2015 The implication of this decision is that the
to 2017, during which the Kenya Revenue income of not-for-profit organizations,
Authority (KRA) assessed a tax of KES which does not fall within the ambit of
6,678,386 on the surplus amounts reported. taxable income and specific sources of
The church objected to and appealed against taxable income per the provisions of sections
the assessment to the Tax Appeals Tribunal 3(2) and 15(7)(e), is not subject to tax in
12
Laureen Mukami Nyamu, ‘The taxing Issue of church taxation: A legal analysis of the taxation of churches in Kenya’ https://
kabarak.ac.ke/klrb/the-taxing-issue-of-church-taxation-a-legal-analysis-of-the-taxation-of-churches-in-kenya-1 accessed (12
July 2024).
13
Laureen Mukami Nyamu, ‘The taxing Issue of church taxation.’
14
See Article 32, the Constitution of Kenya, 2010, which underscores the right to freedom of conscience, religion, thought,
belief and opinion.
15
Tax Appeal E024 of 2021, Judgment of the High Court at Nairobi, 31 May [2022] eKLR.
AUGUST 2024 33
Kenya. Such organizations are not required including Articles 10, 201, 206, and 210.
to apply for and obtain specific exemptions Consequently, he issued a declaratory
from the Commissioner for their income order on behalf of his colleagues, barring
to be exempted. This includes grants, the Commissioner of the Kenya Revenue
donations, tithes, offerings, and any other Authority from collecting or charging the
income of a similar nature. ‘Affordable Housing Levy’ based on Section
84 of the Finance Act, 2023.
3.7 The imposition of the housing levy
against persons in the formal sector is 3.8 The CDF Act breaches the normative
unfair, discriminatory, and a violation character of constitutional principles
of Articles 27 and 201 (b)(i) of the
Constitution The long struggle for constitutional reforms
in Kenya was ideally informed by two
Unlike many classical liberal Constitutions, objectives. First, the reforms were intended
the primary concern of the Constitution to transform the political governance
of Kenya, 2010 is to ensure that the full structures from authoritarianism to a culture
potential of all Kenyans is realised in a of democratic decision making where all
non-discriminatory and egalitarian manner exercises of public power were justifiable
within positive social relationships. Bearing and aimed at the attainment of the common
this in mind, it is important to remember a good of the nation. Secondly, the reforms
contested decision in consolidated Petition were aimed at the transformation of the
Nos. E181 of 2023, which marked the classical liberal constitutional, economic and
beginning of the dispute over the 1.5% social structures that entrenched endemic
housing levy intended to impose taxation on poverty and pervasive inequality, into the
individuals in the formal employment sector. promotion of an egalitarian, caring society
based on substantive equality, respect for
The three-judge bench, comprising Justices human rights and the improvement of the
David Majanja, Christine Meoli, and condition and the welfare of all Kenyans.16
Lawrence Mugambi, affirmed that the
imposition of the housing levy on persons Central to these reforms is the idea
in formal employment, to the exclusion of of incorporation of devolution in the
other non-formal income earners, to support constitutional architecture. Since the
the national housing policy is unjustified, onset of devolution, the courts have in
unfair, discriminatory, irrational, arbitrary, numerous instances demonstrated eagerness
and in violation of Articles 27 and 201(b)(i) in safeguarding the Constitution and in
of the Constitution. particular the provisions of devolution from
the proclivities of the old order.17
Justice Majanja, particularly while
reading the decision, pointed out that the In the decision of Institute for Social
introduction of the housing levy through Accountability (TISA) and another v The
an amendment of the Employment Act by National Assembly and 4 Others,18 the
Section 84 of the Finance Act, 2023 lacks petitioners in this decision brought a
a comprehensive legal framework and petition to the High Court challenging
violates various constitutional provisions, the constitutionality of the Constituencies
16
See Nicholas W Orago , ‘ Poverty, Inequality and Socio-economic rights: A theoretical Framework for the realization of socio-
economic rights in the 2010 Kenyan Constitution; p226.
17
Senate v National Assembly (2013) eKLR, para 161.
18
Petition No 71 of 2013
34 AUGUST 2024
Development Fund Act No.30 of 2013(CDF the key national values and principles of
Act). The petitioners in their submissions governance stipulated in Article 10 of the
before the court were of the view that the Constitution, including good governance
CDF Act is a breach of the constitutional and accountability.
principles, namely the rule of law, good
governance, transparency, accountability, Comparative constitutional scholars,
separation of powers and division of studying on the area of federal governance,
powers between the National and County have pointed out that this particular
Government and the public finance decision is important for two reasons. First,
management and administration. Justice the decision is an affirmation by the courts
Majanja (sitting with Justices Mumbi Ngugi on the place of counties in the entire scheme
and Isaac Lenaola) found that the CDF Act of division of powers and functions between
on its substantive nature is unconstitutional, the two levels of government. Secondly,
particularly for two grounds. First, the court and even more importantly, the decision
noted the involvement of the members of signifies the independence of the courts
the National Assembly and Senators in the and their commitment and the willingness
implementation and administration of CDF to fearlessly defend the functional
breaches the Constitution since the design autonomy of county government against
and objectives of the fund “threatened” the encroachment of other entities or state
to infringe on county functions. This is organs.21
because, the CDF Act, the legislation that
provided for the fund was vaguely worded. 3.9 Expanding the ‘definition’ of
As a consequence, the court concluded access to justice
that the creation and assignment of
roles to an entity outside the structures Access to justice is cardinal to the success
of governance established under the and well-being of any functioning
Constitution is antithetical to the principles democracy. Further, access to justice is a
of the Constitution as it threatens to violate fundamental human right that has gained
the functional competencies of the county prominence not only in the municipal law
government within which CDF operates.19 but also in other international instruments,
including the United Nations Charter
Besides the above, the court also found and the Universal Declaration of Human
that the Act infringed on the concept Rights.22 The Kenyan Constitution as we
of separation of powers since its design alluded to earlier, emphasises the essential
and implementation placed Members nature of ensuring access to justice for all
of Parliament (as fund patrons) at the individuals regardless of their social status
centre of service delivery, a function that in society.23 In doing this, the Constitution
traditionally belongs to the executive specifically underscores that any fees
branch of government.20 In this in mind, the associated with accessing the justice system
Court also found that the CDF Act violates must be reasonable and not serve as an
20
See Conrad M. Bosire, ‘The Emerging Approach of Kenyan Courts to Interpretation of National and County Powers and
Functions’ in (Conrad M. Bosire & Wanjiru Gikonyo eds,) Animating Devolution in Kenya: The Role of the Judiciary,’ International
Development Law Organization (IDLO) and Judicial Training Institute (JTI) and Katiba Institute,( 2015) p.120.
21
See Conrad M. Bosire, ‘The Emerging Approach of Kenyan Courts to Interpretation of National and County Powers and
Functions.’
22
See for example, UNDP which states that “everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the Constitution or by law.
23
Article 48 of the Constitution of Kenya, 2010.
AUGUST 2024 35
impediment to justice.24 Therefore, this had not been infringed since access to
underlines the government’s obligation to justice must be seen from a broader context
make sure that the legal system is accessible including affording justice without bias to all
to everyone, regardless of their financial parties( in this case both the petitioners and
situation, and that justice is not only the respondents).
available to those who can afford it.25
3.10 Upholding the centrality of the rights
In the path-charting decision of Dry and freedom of expression in ‘shackles of
Associates Ltd v Capital Markets Authority, doom’ play staged by Butere girls
Justice Majanja, just to borrow the timely
words of Duncan Okello,26 injected Freedom of expression is a fundamental
vital nascent doses of oxygen into the component and a capstone of Kenya’s
Constitution 2010 by succinctly expanding constitutional edifice under Article 33 of
the definition of access to justice by the Constitution. It provides every person
underscoring as follows: the freedom to hold diverse opinions and
express them, to obtain information, as well
Access to justice is a broad concept as to communicate information and ideas
that defies easy definition. It includes without interference from public authorities
the enshrinement of rights in the law; or private entities. In addition, this
awareness of and understanding of the fundamental right allows for the circulation
law; easy availability of information of different perspectives and beliefs, as well
pertinent to one’s rights; equal right to as free debate and discussion within society.
the protection of those rights by the law However, this right like many other rights
enforcement agencies; easy access to the in the Constitution is not absolute and thus
justice system particularly the formal it can be limited on the basis of criteria
adjudicatory processes; availability of stipulated in Article 24 of the Kenyan
physical legal infrastructure; affordability Constitution.
of legal services; provision of a conducive
environment within the judicial system; In the landmark decision of Okiya Omtatah
expeditious disposal of cases and v AG & 2 Others,28 Justice Majanja broke
enforcement of judicial decisions without new ground of jurisprudence in the
delay. controversial play titled, ‘shackles of doom’
when he removed the band and ordered the
From the above case, Dry Associates, who Ministry of Education to bear the transport
were allegedly accused of defrauding of ensuring the Butere Girls School attend
investors who brought a commercial paper the festival and also perform their play in
issued by Crown Berger failed to satisfy the the original composition at the national
Court that they have a compelling case in stage held at Mombasa County. The play
light of Article 22 of the Constitution.27 It from the playwriter’s point of view, depicts
is this context that Justice Majanja found the grim and gloom picture of obscene
that the petitioner’s right to access justice inequality in the distribution of resources
24
See Article 48, above.
25
See Kituo Cha Sheria & Another v Attorney General & Another [2017]eKLR.
26
See Duncan Okello, ‘ Justice David Majanja: A triple heritage of humanity, intellect and institutionalism’, available at
https://www.the-star-co.ke/news/realtime/2024-07-17-justice-david-majanja-a-triple-heritage-of-humanity-intellect-and-
institutionalism/ accessed on (12 July 2024).
27
Article 22 of the Constitution that provides for the enforcement of fundamental rights and freedoms under the Constitution.
28
Petition No.192 of [2013] eKLR.
36 AUGUST 2024
and dominance of main government within Plays are a medium of expression of ideas
main ethnic grouping which has been the which are sometimes subversive of accepted
epicenter evil in many societies. In addition, ideas. Plays may challenge long held
the play exposed the issue of favouritism, beliefs and conventional wisdom. Artistic
nepotism, ethnicity, and marginalisation as expression is not merely intended to gratify
the foundational ills that characterised an the soul. It also stirs our conscience so that
inequal society in our time. we can reflect on the difficult questions of
the day. The political and social history of
Considering this play in entirety intended our nation is replete with instances where
to promote the freedom of expression and plays were banned for being seditious or
nurturing of artistic talents as proclaimed subsversive. This is the country of Ngugi wa
by the Kenyan Constitution, Justice Majanja Thiong’o, Micere Mugo, Francis Imbuga,
agreed with the petitioners that the Court by Okoth Obonyo and other great playwrights
all means must step up to protect this hard- who through their writings contributed to
won right and freedom from any violation or the cause of freedom we now enjoy. Some
threat. He thus underscored as follows: plays were banned because they went
against the grain of the accepted political
“I am aware of the centrality of the rights thinking. Kenya has moved on and a ban,
and freedom of expression in a democratic such as the one imposed by the Kenya
state and the obligation of the court to give National Drama Festival must be justified
effect to the enjoyment of fundamental as it constitutes a limitation of the freedom
rights and freedoms to the fullest extent. I of expression. I am not convinced that
agree with the petitioner’s advocates that Kenya is such a weak democracy whose
such freedoms have been hard fought and foundation cannot withstand a play by
this court will scrutinise carefully any high school students. I am also of the view
action that will tend to undermine these that if our democracy is to flourish then it
freedoms. I am also aware that plays such is students of today who must at an early
as the one banned occur in a school setting age understand the meaning of freedom.”
with certain rules and standards but this of
itself does not limit or diminish the rights 3.11 Public participation as a requirement
of students to express themselves or exercise for Kenya’s involvement in international
their creative freedom or that of the public agreement
to receive or impart information and ideas.
In this case and on a prima facie basis it The commitment to principles of
is difficult to justify the disqualification as accountability, responsiveness and openness
the play must have passed several stages of is a justification that our constitutional
competition as evidenced by the fact that democracy is not only representative,
it qualified for the national competition. but also contains participatory elements
It was also watched by several audiences as defining feature that is apparently
in the zone, district and province and was prominent from the preamble of our
indeed scrutinised by the various expert constitutional enterprise.29
adjudicators at all levels. It has now been
disqualified on account of hate speech In Kenya Small Scale Farmers Forum & 6
pursuant to some provision of the rules and Others v Republic & Another,30 the petitioners
regulations governing the Kenya Schools challenged the decision by the government
and Drama Festival. of Kenya to enter into Economic Partnerships
See Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC.
29
AUGUST 2024 37
Agreements (EPAs) with the European female fully paid-up members of the Limuru
Union in ratification of a reciprocal free County Club and who had served in senior
trade agreement on account of its failure to positions at the said club brought a petition
involve the petitioners (Kenya Small Scale to the High Court to challenge a resolution by
Farmers Forum) as the main stakeholders the Board of Directors of the Club amending
into negotiation and engagement process. part of the Club’s by-law. They contend
Justice Majanja (sitting with Justice Mumbi that the amendment not only discriminates
Ngugi and Isaac Lenaola) affirmed that against the female membership contrary
public participation is at the heart of Kenya’s to the constitution of the club, but it is also
constitutional order, and it entails an in breach of their fundamental rights and
expression of the sovereignty of the people freedoms enshrined in the Constitution of
and also the manifest of their will. As a Kenya.
result, the court made orders compelling the
state to allow the petitioners to be involved The High Court which comprised of
in its negotiation with EPA before the the above three luminaries held that
agreement was signed. the chain of events leading up to
the suspension and expulsion of the
3.12 The resolution to exclude female petitioners from participating in golf
golfers was found discriminatory and club was not only discriminatory but also
against the imperatives of Article 27 of ran contrary to the Club’s constitution
the Constitution and the imperatives of Article 27 of the
Constitution, which underscores on the
One of the glaring impediments the need of non-discrimination and equality
Constitution of Kenyan, 2010, tend to for all regardless of the listed grounds. The
confront is social imperfection on account Court also rejected the flimsy argument
of discriminatory practices, or gender- of the club officials purporting that the
indifferent laws, policies and regulations rules that discriminate against women are
which in its foundations have created the widely in practice among private clubs. It
long-standing hierarchy of unequal power proceeded to state that it cannot be safe, in
relations between men and women in a progressive democratic society, to arrive
various spheres. at a finding that allows private entities to
hide behind the cloak of ‘privacy’ to escape
In Rose Wangui Mambo & 2 Others v Limuru constitutional accountability.
County Club & 17 Others,31 the High Court
bench comprises of Justice Majanja, Mumbi 3.13 The Constitution devoid of values
Ngugi and Isaac Lenaola set a new precedent and principles is like an empty tin
by barring member clubs from using
discriminatory rules that limit participation Values and principles have become
along gender lines. The facts of the case part of contemporary discourse on
arose from the internal wrangles in a private constitutionalism, for they function in
members club known as ‘the Limuru County important ways to affect the shape and
Club’. In this case, the petitioners who were substance of constitutional outcomes.32 In
29
See Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC.
30
Petition No. 1174 of 2007.
31
Petition No.160 of [2013]eKLR.
32
See the Report on Implementing the Total Constitution: Towards a Normative Approach A Report on the Status of
Constitutional Implementation to the Kenya Law Reform Commission’( 2015), Nairobi, available at https://www.klrc.go.ke/
index.php/bills/576-implementing-the-total-constitution-towards-a-normative-approach#:~:text=It%20creates%20a%20
framework%20for,including%20non%2Dimplementation%20of%20the accessed on( 12 July 2024).
38 AUGUST 2024
India as in Ireland, for example, principles Upendra Baxi highlighted how the Supreme
are explicitly enumerated within the Court of India, under the leadership of
constitutional text to serve as a directive Justice Praful N. Bhagwati, transformed
source for political, social and economic itself into the people's court. This
development.33 In South Africa, the transformation was marked by a strategic
elevated status of constitutional principles shift in legal culture, characterised by the
is traceable to their unique constitution- court's use of its constitutional power to
making process, in which the adoption alleviate the people's suffering caused by
of a final document was contingent government repression and oppression.
on certification by the constitutional
court that a set of mandated principled Similarly, Justice Majanja in Kenya was a
commitments had been scrupulously grandmaster of the country's transformative
followed by the constitutional assembly.34 project. His deep understanding of Kenya’s
In Kenya, the one important concern in transformative constitutional enterprise will
the constitution-making process was the be remembered and immortalised for ages.
need to develop a normative and structural Though he left us too soon, Justice Majanja
framework to facilitate the internalisation leaves behind an immutable legacy with far-
of constitutionalism and supervision of reaching jurisprudence that will continue to
constitutionality.35 shape the legal philosophy of Kenya’s 2010
Constitution.
With this in mind, Article 10 of the
Constitution was enacted to provide the Justice Majanja’s contributions to the legal
scheme of constitutional overarching norms, landscape mirror those of legal luminaries
values and principles that govern the such as Chief Justice C.B. Madan in post-
Kenyan state of affairs. authoritarian Kenya, Dikgang Moseneke
and Laurie Ackerman in post-apartheid
In COFEK v Attorney General,36 Justice South Africa, Chief Justice Jimly Asshidiqie
Majanja in a novel way captured the topos in post-authoritarian Indonesia, and Justice
of the 2010 Constitution. He underscored Antonio Lamer in post-charter Canada.
the fact that the Constitution devoid of His life and work in the legal field have set
values and principles is like an empty tin. He a high standard for legal innovation and
further emphasised the fact that these values transformative jurisprudence.
are anchored in the Constitution and they
give real meaning to the dry letter of the
Tioko Emmanuel Ekiru is a Tutorial Fellow at Daystar
law as they equally provide a vision of the School of Law. Thanks to Mr. Walter Khobe Ochieng for
kind of society we would like to build as the the constructive comments.
Kenyan people.
4.0 Conclusion
33
Ibid, See the Report on Implementing the Total Constitution’.
34
Gary Jacobsohn, “Constitutional Values and Principles,” in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of
Comparative Constitutional Law (Oxford: OUP, 2012).
35
See Walter Khobe Ochieng, The Jurisdictional Remit of the Supreme Court of Kenya Over Questions Involving the
‘Interpretation and Application’ of the Constitution,’ Kabarak Journal of Law and Ethics: Vol. 5 No. 1 (2020): Kabarak Journal of
Law and Ethics
36
2012]eKLR.
AUGUST 2024 39
Majanja, J.A to humanity:
A giant of the law, a legacy in
precedents; well written, well
read, well rested
High School’s spirit by the motto “Strong
to serve” that imbued him with a deep
By Christabel M. Eboso conviction that the joy and purpose of life
lay in service, and integrity in service. I
believe that how Justice Majanja always
cheerfully and tirelessly fulfilled his duties
Majanja, J.A, the person in every aspect of his life is what led
to his double-victory as the High Court
I am deeply saddened as we reflect on the representative to the Judicial Service
distinguished life and legacy of Justice Commission.
David Shikomera Amilcar Majanja, a jurist
whose intellectual prowess and dedication Majanja, JA the jurist
to the law has left an indelible mark on all
who had the privilege of knowing him. As His empathy in legal decision-making is
someone who had the honour of interacting only matched by his respect for justice. He
with Justice Majanja, he was not just a was alive to the fact that the law is a tool
judge. He was a mentor, a visionary in the for ordering lives and it should be alive
community, the nation, and a relentless to the lived experiences of the people and
seeker of justice as he defended the should not be blind to the effects it leaves
Constitution of Kenya by applying the law on the lives of the people. For example,
with integrity and fairness. his decision in the petition challenging
the constitutionality of the housing levy
In his passing, we mourn the loss of a brings out his empathetic rulings. As part
brilliant mind, a revered mentor, and a of the three-judge bench together with Her
dear friend. Yet, we also celebrate a life Ladyship Christine Meoli and His Lordship
dedicated to the pursuit of truth and justice. Lawrence Mugambi, Justice Majanja will
Justice Majanja’s contributions to the legal forever be remembered for fusing reason
profession will endure as a testament to with empathy to declare the housing levy
his unwavering commitment to intellectual unconstitutional.
honesty, fairness, judicial humility and the
highest ideals of the law. Before this brave decision on the
constitutionality of the housing levy, Justice
Justice Majanja’s life was led by a dedication Majanja had again shown that the law
to duty that transcended to his professional should not be applied mechanically when he
life where he had a high reverence for considered the issue of ethics and integrity
reason and personal conviction that in Community Advocacy and Awareness
fulfilling his duties was the true source of Trust & 8 Others v Attorney General,
joy and mark of a life well-lived in service. Interested Party National Gender and
Perhaps, this was him living the Alliance Equality Commission & 5 Others [2012]
40 AUGUST 2024
eKLR. In this case, he bravely forced us context of natural justice. In clarifying the
to confront our history as a nation by relationship between the High Court and
observing that previous public appointments a constitutional board set up to vet judges,
were shrouded in vices like ethnicity, Justice Majanja sympathized with the
tribalism, corruption, nepotism, and petitioner but observed that Schedules to the
political patronage. In so doing, he stressed Constitution were part of the Constitution
the importance of meritocracy and equal and the High Court was prohibited by the
and equitable access to opportunities. His Constitution from entertaining challenges
legacy is further entrenched by pioneering to the faithful implementation of provisions
reasoning on public participation in Petition in the Schedules to the Constitution. His
13 of 2013 where he was part of the bench original reasoning echoes the aspiration of
that clarified the need for meaningful public Kenya's judiciary to develop an indigenous
participation. jurisprudence that is contextual to Kenya
and future justice needs.
Interacting with Justice Majanja in his work
as a judge was a life privilege that exposed However, this commitment to nurture local
one to intellectual rigour and empathy. jurisprudence did not stop the good judge
Looking at his judgments, his commitment from drawing insights from other countries
to unwavering reason and logic saw him and other institutions. He expertly derived
scrutinize every argument and interrogate jurisprudential insights from other countries,
every precedent. He had profound respect including South Africa and Canada. For
for the certainty of law but left room for example, in his seminal judgment in
original thinking. He had an original but Beatrice Wanjiku & another v Attorney
rare ability to turn complex legal concepts General & 3 others (2012 eKLR), Justice
into simple legal principles that resonated Majanja conducted a masterly analysis of
with wisdom. His opinions were not just the constitutionality and reasonableness of
legal pronouncements but they contributed arresting and committing people to civil jail
to efficiency in courts. For example, it is for defaulting on debts. Recognising that
Justice Majanja in the case of J Harrison creditors have property rights but civil jail
Kinyanjui v Attorney General & another limits constitutional liberty, he remarked that:
[2012] eKLR who stated:
“Article 24 is not a checklist and the
the decision of a three-judge bench is weighing of these considerations is not to
of equal force to that of a single judge be approached mechanically.”
exercising the same jurisdiction. A single
judge deciding a matter is not obliged to This pronouncement against mechanical
follow a decision of the court delivered by approach to the law is evident in the
three judges. entire case as he had to balance questions
of morality of civil jail and commercial
That Justice Majanja saw the need for a sense. Still, it is through this judgment
single judge bench to deliver a powerful that he weighed in on the hard question
ruling is captured by his exceptional of the hierarchy of laws in relation to
expositions of different legal issues in civil, whether international laws forming part
criminal, tax, and constitutional matters. of Kenya's laws are superior to local
A look at Peter O. Ngoge V the Vetting legislation. In the context of the supremacy
Of Judges and Magistrates Board and clause, Justice Majanja expertly observed
Another shows his masterful analysis of that the supremacy clause recognises
jurisdiction. In this case, the petitioner the legal force of international treaties
challenged a constitutional process for and conventions, but this does not make
violating his procedural rights in the them superior to the Constitution or
AUGUST 2024 41
local legislations. Instead, a purposive Income Tax Act. Given that taxpayers often
interpretation means that international laws gruntled that taxes are complex in terms of
cannot render valid Acts of Parliament that content and administration, this was one of
are inconsistent with international legal Justice Majanja’s many simple but elegant
instruments unconstitutional. The question legal pronouncements that have brought
of hierarchy of laws and authoritativeness certainty to our laws.
of international laws relative to Acts of
Parliament remains unsettled but it is His commitment to fostering certainty
no doubt that Justice Majanja lay the extended even to criminal proceedings.
foundation for further judicial and scholarly For example, In re Estate of Philip Otieno
scrutiny of the hierarchy of laws in Kenya. Odhiambo (Deceased) [2015]eKLR, Justice
It is my hope that more research will be Majanja waded into the jurisdictional
conducted to build upon what Justice powers of magistrates to initiate criminal
Majanja boldly and creatively started when prosecutions after conducting death inquests.
he considered the issue of hierarchy of At issue, was the constitutionality of Section
laws in Kenya, in the context of applying 387(3) of the Criminal Procedure Code:
domestic laws that are inconsistent with
international laws. If before or at the termination of the
inquiry, the magistrate is of the opinion
As a person led by duty, Justice Majanja did that the commission by some known person
not tire of drawing from other institutions or persons of an offence has been disclosed,
to strengthen local capacity. In his position he shall issue a summons or warrant for
as the vice-chair of the Judiciary Committee his or their arrest, or take such other steps
on Elections, he insisted on the country’s as may be necessary to secure his or their
ability to pave its solutions in electoral attendance to answer the charge; and on
jurisprudence. He rightly observed that all the attendance of the person or persons the
Kenya needs is adequate preparation and magistrate shall commence the inquiry de
continuous internal mentoring to build local novo and shall proceed as if he had taken
capacity and share knowledge. The key cognizance of an offence.
thread seems that Justice Majanja believed
in our internal resourcefulness and resilience Majanja took judicial notice of the previous
to surmount challenges and build a self- constitutional order where magisterial
improving efficient system of delivering directions to prosecute did not erode
justice tempered with reason and empathy. the prosecutorial powers of the Attorney
General. However, he recognised the new
I cannot say much about a good judge’s constitutional order and directed that the
accomplishments as an Advocate in civil and powers to prosecute reside in the Office
commercial practice, but his enduring legal of the Director of Public Prosecutions
prowess manifested itself in the matters he (ODPP) as established by the Constitution
handled in the civil and commercial division and directed that magistrates should not
of the High Court as a Judge. He unfailingly commence criminal trials on their own but
brought clarity to complex litigation in they should forward such matters to the
matters ranging from taxation, contracts, ODPP as is required by Article 157(6)(a) of
employment disputes, to children's rights. the Constitution. Indeed, Justice Majanja
His 2022 decision in Commissioner of marked a break with the old without
Domestic Taxes v Thika Road Baptist really discarding the old constitutional
Church Ministries brought much-needed heritage and history of our country, but by
clarity when he directed that tax exemption using it as a springboard to develop a new
certificates are only applicable for income jurisprudence fully anchored on the 2010
that is taxable under Section 3(2) of the Constitution of Kenya.
42 AUGUST 2024
Justice David Majanja’s original and in the living room, with him bringing his
pioneering thinking in defining the nature experiences and personal dramas in Pretoria
and scope of public participation is a alive through his sharp memory, his acute
reminder that the Constitution has a soul powers of observation, and his fascination
but the health of the soul entirely rests on with peculiarities of human life. When I
us. Us, the people. Us, legal practitioners. mention the peculiarities of human life,
Us, who swore to defend the Constitution. those who knew Justice Majanja personally
Us, sworn to uphold the law. Justice Majanja will understand what a deep pleasure it was
served, defended the Constitution and to spend time with him, as he was liberal
upheld the law; it is our turn to respect and at home discussing various topics.
his legacy by defending the Constitution,
upholding the law, and interpreting it At this point, I sadly remember my last
purposively for the health and progress of meeting with him of 26th May, 2024, just
our motherland, Kenya. a day after his re-election to the Judicial
Service Commission. Though a short and
Majanja, J.A, the Mentor and Friend quick conversation, he insisted that I meet
him the following week, of which I promised
Justice Majanjas’ commitment to the people to look for him. However, because of life’s
he was mentoring was profound. I have commitments, he passed away before we
seen him provide detailed stage-by-stage could have our last coffee meeting. Looking
guidance to Alliance old boys community. back, I am honoured to have known Justice
I watched him provide mentorship and Majanja, interacted with him, and benefitted
grounding for many of our young colleagues from his diverse and exceptional knowledge.
in the legal profession; on his shoulders, I am equally honoured that through his
we have towered. He not only had this many mentees, the legal giant’s prowess
natural ability to point one to relevant lives with us.
actions but he would selflessly open his
contacts to his mentees. I had the privilege As we mourn our departed Justice Majanja,
of meeting him many times for a cup of let us carry forward his legacy in our own
coffee, seeing him mentor those I know, and lives and careers. Let us strive, as he did, to
many others right from their student days uphold the principles of fairness and equity
to their formative careers. He was fiercely that he championed so passionately. Though
supportive of his mentees and anyone he he may no longer be with us in person, his
nurtured irrespective of their profession, spirit will continue to guide us as we navigate
and he sustained the support he gave even the complexities of the law and strive to
when one had consolidated their position make a positive difference in the world.
and become secure. In my case, we had a
beautiful friendship that materialised into a Rest in peace, Justice David Shikomera
friend-daughter relationship. Amilcar Majanja. You have left a gap,
and your intellect, wisdom, and profound
I fondly remember how his wealth of impact on our constitutional jurisprudence
experience in South Africa benefitted him. and positive impact on lives will forever be
He was a man in his league, and did not remembered, honoured, and cherished.
shy in passing on new ideas and having his
mentees scrutinise his ideas. I remember, for Rest well champ!
example, how in 2020 during the Christmas
holidays, Justice Majanja spent time at Christabel M. Eboso is an Advocate of the High of Kenya.
my father’s rural home in Sabatia, Vihiga
County. My memory of that period is filled
lively images of very intense conversations
AUGUST 2024 43
Press statement: Defending
the vital role of civil society
organizations in Kenya
20th July 2024 unfounded accusations and reiterate our call
For decades, Civil Society Organizations for the government to remain true to the
in Kenya have been the backbone of our constitution and protect independent civil
nation, tirelessly safeguarding democratic society organizations and media in Kenya.
values and principles, amplifying the voices
of vulnerable communities, promoting CSOs have been instrumental in Kenya's
transparency and accountability, and development and play a pivotal role in
ensuring the rights of all Kenyans are upheld. protecting human rights, upholding the rule
Their contributions have been instrumental of law, promoting good governance and
in our nation's growth and stability, and fostering social and economic progress.
their efforts have consistently upheld the
principles of justice and democracy. We unequivocally condemn any unlawful
acts during protests. The allegations that
In the last three months, civil society CSOs are complicit in promoting illegal
and the media have engaged robustly in activities are false and undermine the
pushing for public finance management invaluable work they do to strengthen our
accountability, including public debt, society and are aimed at tarnishing the
protection of human rights, especially perception of CSOs to the citizenry we
freedom of expression and the right serve. In recent months, CSOs have risen
to assemble, including protest, active to initiate rapid response interventions to
citizenship, end of extrajudicial executions, meet the pressing and overwhelming needs
enforced disappearances, abductions, and and concerns of Kenyans affected by the
even theft of public resources. crisis through providing legal aid for those
arrested or abducted, medical assistance
Kenyans share these concerns and are now for those injured, and psychosocial support
pushing for an accountable government for individuals and families affected.
at all levels, especially the executive and Furthermore, they have continued to
legislative arms. The continued neglect of amplify advocacy on the human rights
the need for an accountable and transparent and governance concerns presented by
government that respects and values the Kenyans. These actions, which CSOs have
voices of the people of Kenya is the reason championed over a long period, should not
for the continued protests across several be misconstrued as support for the acts of
parts of the country. lawlessness and violence meted against
Kenyans and which CSOs have consistently
Against this background, we are deeply called out all through the protests.
concerned by the recent letter from the
Government of Kenya implying that CSOs The suggestion that young people,
fund and support unlawful behaviour and particularly the GenZ, are being funded
unruly protests, which starkly contradict to speak up and use their voices devalues
our work. We categorically repudiate these their genuine contributions to Kenya's
44 AUGUST 2024
development. Young Kenyans have shown human rights, and the rule of law. We
remarkable dedication and initiative in stand in solidarity with the civil society
advocating for positive change. Their voices organizations that continue to champion
are not just essential but inspiring in shaping these values, and we urge the government
the future of our nation, and they deserve to to recognize and respect their indispensable
be heard and respected. role in our nation's progress. In closing,
we continue that Kenyans stay woke and
We are alarmed by the unprecedented continue their role as active Citizens as the
violent crackdowns, abductions and people with direct power on the affairs of
disappearances of Kenyans who have the Kenyan state and, in turn, call on the
expressed concern over the state of government to keep all channels for direct
governance and human rights in Kenya. We participation of the people open even when
see the CSOs as an extension of the ongoing they cause discomfort to those in authority.
general repression against civic space and
human rights defenders. In recent weeks,
Name the organizations
prominent human rights organizations in the
1. Action Aid International Kenya
country have been subjected to an increase 2. Africa Centre for Open Governance (AFRICOG)
in acts of intimidation, harassment, and 3. African Forum for Debt and Development
threats by the authorities, as well as threats (AFRODAD)
4. Amnesty International Kenya
against partners that fund their human 5. Article 19 Easter Africa
rights work. These attacks and threats have 6.Badili Africa
also been unleashed upon the media and 7,Bajeti Hub
8. Centre for Enhancing Democracy and Good
individual journalists.
Governance
9. Centre for Rights Education and Awareness (CREA
We call upon the government and all W)
stakeholders to protect the Kenyan civic 10. CRAWN Trust
11. Civic Freedoms Forum (CFF)
space. CSOs must be allowed to operate
12. Christian Aid International Kenya
without undue interference or baseless 13. Coalition for Grassroots Human Rights Defenders
accusations. The constitution of Kenya Christian Aid International Kenya
guarantees the right to peaceful protest and 13. Coalition for Grassroots Human Rights Defenders
14. Community Aid International
freedom of expression. These rights must be 15. Democracy without Borders - Kenya
protected and honoured, not only for CSOs 16. Emerging Leaders Foundation
but for every Kenyan. 17. End Femicide-KE Movement
18. Feminists in Kenya
19. Federation for Women Lawyers Kenya (FIDA Kenya)
We reiterate the calls from young people 20. Human Rights Watch
and other advocates for the Constitution 21. Initiative for Equality and Non-Discrimination
of Kenya to be followed to the letter. 22. International Commission of Jurists Kenya
23. International Medical Legal Unit
Unlawful actions by goons, police, and other
24. Inuka Kenya Ni Sisi!
state agents must cease immediately. We 25. Institute for Public Finance Kenya
demand strict accountability in the budget- 26. Kenya Human Rights Commission
making process, a thorough constitutional 27. Law Society of Kenya
28. Mzalendo Trust
audit of public debt that has impeded 29. National Coalition for Human Rights Defenders
service delivery, and the interdiction 30. NAWI Collective
and prosecution of all people accused of 31. Open Institute
32. Siasa Place
corruption and theft of public money. The
33. SDG Forum Kenya
rule of law is paramount, and all parties 34. Shield for Justice
must be accountable for their actions. 35. The Institute for Social Accountability
36. Transparency International Kenya
37. Tribeless Youth
In conclusion, we reaffirm our unwavering
38. Trust Africa
commitment to supporting democracy,
AUGUST 2024 45
Administrative actions v judicial
decisions: The drawing line in
Supreme Court’s actions
Abstract
1
See Law Society of Kenya v Supreme Court of Kenya & another; Abdullahi SC & 19 others (Interested Parties) (Petition E026 of 2024)
[2024] KEHC 7819 (KLR) (Constitutional and Human Rights) <Available at http://kenyalaw.org/caselaw/cases/view/293543/ >
Accessed on 12th July 2024.
46 AUGUST 2024
that has sparked a lot of questions on the justice.3 In turn, our courts operate both
difference between an administrative action as administrative and judicial bodies. This
and a judicial decision, what do the acts then calls for an urgent need to distinguish
of the Supreme Court amount to? Can the between what is an administrative
High Court review an action by the Supreme action and a judicial decision to make
Court, and whether the Constitution of it clear in what instances the courts act
Kenya 2010 insulates judicial decisions from administratively and judicially. This is what
being challenged on account of threatening informs the argument in this section.
to contravene or contravening the Bill of
Rights? 2.1. Administrative Actions
This is what informs the argument in this There is a need to work out the relationship
paper. The paper introduces its topic, between common law, the constitutional
distinguishes between administrative right to administrative action, and the
actions and judicial decisions, discusses statute that purports to give life to it.4
the Supreme Court as the highest court in There has been a radical change in the
Kenya and the power of judicial review of definition of an administrative action
the High Court, explores the potential mala and Reagan notes that these changes are
fide in the Supreme Court’s action, and a fascinating study in themselves.5 Key
examines whether the Kenyan Constitution areas of interest include the court's work
insulates judicial decisions that threaten or in defining "administrative action," a term
violate the Constitution and constitutional absent in the 2010 Constitution, and the
rights from being challenged. It concludes detailed definition and elements provided
with recommendations on what ought to in the Act. As administrative actions are
have been done by the Supreme Court and now both constitutional and statutory
potential charges against SC Ahmednassir. issues, it is essential to examine them from
both perspectives. These arguments are
2.0. Administrative actions Vs. significant and will be revisited later in this
judicial decision paper.
2
Constitution of Kenya 2010, Article 47. Previously, the right to a fair administrative action was not a Constitutional right, it was
governed by Sections 8 and 9 of the Law Reforms Act and Order 53 of the Civil Procedure Rules.
3
See Hoexter C, ‘“Administrative Action” in the Courts’ p 1. < Available at https://d1wqtxts1xzle7.cloudfront.net/61775625/
Administrative_Action_in_the_Courts20200113-26207-633low-libre.pdf?1578986093=&response-content
disposition=inline%3B+filename%3DAdministrative_Action_in_the_Courts.pdf&Expires=1720462490&Signature=fbFiSKprBc
WFMPrKVxLLG4NeNdBRcdhh7pbjCg-8GJ-2ubVYbkIhc4nP8RupSlml8gFDmOKHLto-tJgXnvwYGZfZp6GfwLp5FcaI~mFdyILTB
rR5misf0UwWfhz0-QBBqU0IMDe02QFULenVxOBf3yhN06ODs1sGV2-R0a7RRjHzT~M62GcIvu7DCjHC8wLnSVzsUgsdcQFK
KdEGN~6IbxLkiDNl2zDYPXH2qXmExVrAK3N4WMCZIRRO0IOy~uCyvOR8ESV~BJf8Y3l59QCTYg2ZrnxUiZoOsl7jWCFqQS-
yElDSirlPDfJ0hPXuztJfhT0jNNO7cbId0HK2a1bzfw__&Key-Pair-Id=APKAJLOHF5GGSLRBV4ZA > accessed on 8 July 2024. She
argues in the context of Section 33 of the South African Constitution which is similar to Article 47 of the Constitution of Kenya
2010. This is what establishes this comparative analysis.
4
Ibid, p 2.
5
K O’Regan ‘Breaking ground: Some thoughts on the seismic shift in our administrative law’ (2004) 121 SALJ 424.
AUGUST 2024 47
constitutional rights to administrative
justice.6 The Supreme Court of Kenya in
EACC v Tom Ojienda stated that Article 47
of the Constitution offers insight into the
meaning of "administrative action”.7 They
held that it mandates that Parliament enact
legislation to ensure the rights in Article
47(1) are upheld, specifically promoting
efficient administration. They argued
that this implies that "administrative
actions" refer to actions related to the
management of institutional, organisational,
or agency affairs, rather than any general
action, omission, or exercise of power.
This distinction underscores why such
actions are termed "administrative". The
Supreme Court cited several dictionaries.8
The 9th edition of the Concise Oxford
Dictionary defines "administrative" as the
management of affairs. According to the Kisumu County Senator Prof. Tom Ojienda
11th edition of Black’s Law Dictionary,
"administrative action" refers to decisions
or implementations related to the implementation of legislation – which is a
executive function of the government or characteristic of administrative action – or
the management of a business. Burton’s the making of policy in the broad sense,
Legal Thesaurus, 4th edition, describes which is not.9 The court also emphasised
"administrative" as including terms such that the function matters more than the
as "directorial," "guiding," "managerial," functionary.10 However, these factors do not
"regulative," and "supervisory". make the work of drawing the difference
easy11 and the court noted that it is not
The South African court has noted that easy to decide what should and should not
the elements of determining whether an be termed as an administrative action.12
action is administrative are the nature of The courts in South Africa in interpreting
the power, its source, its subject matter, Section 33 of their Constitution,13 identified
whether it involves the performance of the principle of legality14 as an essential
public duty, and how closely it involves the tenet of the rule of law and a principle that
6
Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR < Available at https://
kenyalaw.org/caselaw/cases/view/101689/> Accessed on 7th July 2024. In para 355, the Supreme Court stated that Article 47
of the Constitution of Kenya 2010 has transformed judicial review into a pedestal that transforms the technicalities of common
law review.
7
EACC v Tom Ojienda {2019} eKLR. Para 56 and 57.
8
Ibid, Para 57.
9
President of the Republic of South Africa v South African Rugby Football Union (the SARFU case) 2000 (1) SA 1 (CC) at para 142.
< Available at https://www.saflii.org/za/cases/ZACC/1999/11.html > Accessed on 7th Juky 2024.
10
Ibid para 141.
11
Hoexter C, ‘“Administrative Action” in the Courts’ (n 3 above) p 3.
12
See SARFU case, (n 7 above) para 143.
13
It is important to take note that Section 33 of the Constitution of South Africa is similar to Article 47 of the Constitution of
Kenya 2010.
14
Fedsure Life Assurance v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC) at paras 32-45.
48 AUGUST 2024
is necessarily implicit in the Constitution.15 the meaning of an “administrative action”
They have stated that the principle of legality as it simply addresses the elemental
implies that the wielders of public power aspects of the phenomenon before
should stay within their powers,16 must act describing its nature. On the face of it,
in good faith, and must not misconstrue therefore, any power, function, and duty
their powers.17 The principle has developed exercised by authorities or quasi-judicial
to also include a minimum requirement of tribunals constitute an “administrative
objective rationality.18 Other aspects of the action”. Likewise, any act, omission, or
rule of law such as the requirement that decision of any person that affects the
laws be accessible, clear, and general, and legal rights or interests of any person to
the requirement that judges give reasons whom such action relates constitutes an
for their decisions have also been identified “administrative action”. Such definition,
as essential in construing the constitutional without more, would bring within the
administrative action.19 ambit of an “administrative action” just
about anything done, or any exercise of
2.1.2. Administrative action: Statutes power by an “authority” or “quasi-judicial
tribunal”.
An “administrative action” includes the
exercise of powers, functions, and duties In the South African context, an
by authorities or quasi-judicial bodies, as "administrative action" refers to any decision
well as any act, omission, or decision by any or non-decision by a state organ or a person,
individual, body, or authority that impacts that impacts someone's rights and has legal
the legal rights or interests of any affected consequences while exercising constitutional
party.20 It also includes any action related or public powers.22 These acts do not extend
to administration, such as decisions or acts to judicial actions undertaken by judicial
in public service, failures to fulfil public functions of a court established under
duties, recommendations to a Cabinet Section 166 of South Africa’s Constitution.23
Secretary, or actions taken following such This definition has been criticised for
recommendations.21 its undue complexity and its resultant
inaccessibility to users of the Act.24 I greatly
The Supreme Court of Kenya criticised this agree with this assertion as the Act tends to
definition by stating: shield some aspects of administrative actions
from review.25 A good example is a blanket
“Unfortunately, the foregoing definition shield to executive functions.26 As a result,
does not provide an accurate picture of in South Africa, we now have two distinct
15
Ibid, para 59.
16
Ibid paras 58 and 59.
17
See SARFU case, (n 7 above) para 148.
18
Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC). Para 85.
19
C Hoexter ‘The principle of legality in South African administrative law’ (2004) 4 Macquarie LJ 182-183.
20
Fair Administrative Actions Act, Laws of Kenya CAP 7L, Section 2.
21
Commission of Administrative Justice Act, Laws of Kenya CAP 7J, Section 2.
22
Promotion of Administrative Justice Act No. 3 of 2000, section 1.
23
Ibid.
24
See C Plasket, “The Fundamental Right to Just Administrative Action: Judicial Review of Administrative Action in Democratic
South Africa (unpublished PhD thesis, Rhodes University, 2002) 126 in Hoexter C, '"Administrative Action" in the Courts’ (n 3
above) p 4.
25
See what Nugent JA observed in Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works 7 2005 (6) SA 313 (SCA) para 21.
He stated that section 1 of the PAJA serves to surround administrative action with a ‘palisade of qualifications’ rather than to
attribute meaning to the term.
26
Promotion of Administrative Justice Act (n20 above).
AUGUST 2024 49
concepts of administrative action: a broader only be challenged by way of appeal or an
one defined by the constitutional court and a application for review.34 After establishing
narrower one established by the Promotion what administrative actions and judicial
of Administrative Justice Act. The definition decisions are, the next section analyses the
offered in the Kenya context is much better issue of jurisdiction and review.
than the South African definition as it is
more expansive and it does not appear to 3.0. Supreme Court as the highest court
limit the application of Article 47 of the vis a vis the judicial review jurisdiction of
Constitution of Kenya 2010. the High Court
27
Mudeyi YP, ‘A Question of Jurisdiction: Administrative Actions vs Judicial Decisions in Law Society of Kenya v Supreme
Court of Kenya [Guest Post]’ (Constitutional Law and Philosophy7 July 2024) < Available at https://indconlawphil.wordpress.
com/2024/07/07/a-question-of-jurisdiction-administrative-actions-vs-judicial-decisions-in-law-society-of-kenya-v-supreme-
court-of-kenya-guest-post/ > accessed 10 July 2024
28
Opinion No. 11 of 2008 on the Quality of Judicial Decisions, ‘8 November 2007’ (Coe.int2024) < Available at https://rm.coe.
int/16807482bf#:~:text=The%20elements%20inherent%20to%20the%20decision&text=To%20be%20of%20high%20
quality,well%20as%20being%20effectively%20enforceable> accessed 10 July 2024.
29
Ibid.
30
See order 21 of the Civil Procedure Rules of 2010. < Available at http://kenyalaw.org:8181/exist/kenyalex/sublegview.
xql?subleg=CAP.%2021> Accessed on 10th July 2024.
31
See The Civil Procedure Act, Laws of Kenya CAP 21, Section 2, which defines a decree as the formal expression of an
adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties about all or any of
the matters in controversy in the suit and may be either preliminary or final.
32
See The Civil Procedure Act, Laws of Kenya CAP 21, Section 2, which defines an order as the formal expression of any
decision of a court which is not a decree.
33
See order 40 rule 5 which gives an instance in which the court may grant a ruling.
34
See Section 65-69 of the Civil Procedure Act for Appeals and Section 80 for review.
35
Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October
2022) (Judgment). < Available at http://kenyalaw.org/caselaw/cases/view/242944/> Accessed on 11th July 2024.
50 AUGUST 2024
litigation. They held that it is unacceptable that can be reviewed by the High Court
for parties to repeatedly request courts are only limited to administrative actions
to revisit and potentially overturn final and do not extend to judicial decisions
decisions issued by a higher court in the and pronunciations.40 The main question
judicial system.36 They further stated that that arises from the arguments in the case,
the High Court may not in any way purport thus, is where the line lies between an
to overturn or to order final decisions issued administrative action of the Supreme Court
by higher courts than itself to start de novo, and a judicial decision. My argument in this
especially on appeals that have been finally instance is the adoption of the definition of
concluded by the highest court at the time.37 the Kenyan Fair Administrative Action Act as
That said, however, it is important to note it is not limited. Later on in the paper, I will
that this is limited only to judicial decisions use the elements to classify the letter and
and does not extend to administrative the recusal order by the Supreme Court, and
actions. With that in mind, I shall first assess that makes it easier to draw the distinction.
the judicial review jurisdiction of the High
Court. 4.0. The Supreme Court’s mala fide:
Does the Constitution insulate any
3.2. Judicial review jurisdiction decision from being challenged on the
account of contravening or threatening to
Article 22 of the Constitution38 states that contravene the Bill of Rights
any person can approach the High Court
where their rights have been beached. Justice must not only be done but it must
Further, Article 23 states that the High be seen to be done.41 Furthermore, justice is
Court, when approached via Article rooted in confidence and confidence is lost
22, may grant any appropriate reliefs when right-minded people go away thinking
including an order of judicial review. The that the judge was biased.42 The Supreme
Fair Administrative Action Act39 states Court issued an order and after large public
that a person who is dissatisfied with an critique, that’s when they proceeded to
administrative decision has the right to issue a ruling. Malice is defined to mean, a
seek judicial review by promptly applying condition of mind which prompts a person
to the High Court or a subordinate court to do an act willfully, i.e. on purpose, to the
granted original jurisdiction under Article injury of another, or to do intentionally an
22(3) of the Constitution. Section 3 of the act toward another without justification or
act asserts that it applies to all state and excuse.43 The Supreme Court action, despite
non-state agencies or any person exercising it being out of the need to enforce the law,
an administrative action, a judicial or quasi- was more punitive as a way of getting rid
judicial function under the constitution, or of Senior Counsel Ahmednasir's critiques
whose actions or omissions affect the legal than to prevent or punish him for contempt
rights or interests of any other person. It is of court. This informs my position of mala
important to note that when applying this fide in the actions of the Supreme Court as
to the Supreme Court, the judicial functions it was not based on the principle of good
36
Ibid, Para 60.
37
Ibid, Para 55.
38
Constitution of Kenya 2010.
39
Fair Administrative Actions Act, Section 9,
40
Mudeyi YP, ‘A Question of Jurisdiction,’ (n 25 above).
41
R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)
42
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] EWCA Civ 5, [1969] 1 QB 577, Court of Appeal (England and Wales).
43
Black's Law Dictionary, 6th edition p. 956.
AUGUST 2024 51
faith. On the second aspect of whether the must be taken as a pronouncement on its
Constitution insulates judicial decisions from constitutionality’.50 Yekiso J emphasises
being challenged on account of contravening that in section 33(1), the term 'lawfulness'
the Constitution, it is important to note that comprehensively covers all aspects of
judicial decisions can only be challenged administrative legality, encompassing the
through an appeal or application for review.44 full range of requirements and grounds
Now the fact that the Supreme Court is the for invalidity detailed in section 6 of the
highest court and its decisions cannot be Promotion of Administrative Justice Act.51
appealed,45 the forum that remains is review.
I will establish the possibility of this in the With this comparative study, coupled with
recommendation section. the fact that Section 33 of the Constitution
of South Africa is similar to Article 47
Section 33 of the South African of the Constitution of Kenya, does this
Constitution46 which is similar to Article then mean that a constitutional claim
47 of the Constitution of Kenya 201047 of the infringement of the right to a fair
has been interpreted by the South African administrative action as a breach of a
Constitutional Court which has argued that constitutional right succeeds independently
the right to a fair administrative action without claiming the review jurisdiction?
does not apply to judicial decisions.48 In Kenya, one can approach the High
In another context, the South African Court under Article 22(1) and claim an
Constitutional Court in Zondi v MEC for infringement or threat to infringement of the
Traditional and Local Government Affairs49 right to a fair administrative action52 vide a
PAJA cannot be used to usurp Section 33 constitutional petition without relying on the
of the Constitution, and the reason for Fair Administrative Act. In this case, judicial
the direct application of Section 33 was review can be granted as a constitutional
that the Act cannot be used to evaluate a remedy without the court relying on the Act.
constitutional challenge. A constitutional This is because the Act provides that when
challenge must be evaluated under Section one approaches the court by applying for
33 of the Constitution. Generally, PAJA only review.53 However, note that the Act cannot
comes into the picture when it is sought simply be circumvented by resorting directly
to review administrative action. The Court to the constitutional rights in Article 47.
even took care to point out that it was not This follows logically from the fact that the
concerned with the constitutionality of the Fair Administrative Actions Act gives effect
Act, and that ‘nothing said in this judgment to constitutional rights.54
44
See The Civil Procedure Act, [n 32 above].
45
See Attorney General (On Behalf of the National Government) v Karua (Reference E001 of 2022) [2024] KESC 21 (KLR) (31
May 2024) (Advisory Opinion) < Available at https://kenyalaw.org/caselaw/cases/view/290499/> Accessed on 8th July 2024
and Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October
2022) (Judgment) para 55-60.
46
Constitution of South Africa, 1996.
47
Constitution of Kenya, 2010.
48
Nel v Le Roux NO 1996 (3) SA 562 (CC) at para 24. Available at https://www.saflii.org/za/cases/ZACC/1996/6.html
49
2005 (3) SA 589 (CC). para 99.
50
Ibid, para 101. Note that the PAJA’s narrow definition of administrative action limits the scope of review and remedies to
administrative actions only. If an exercise of public power doesn’t qualify under the PAJA, alternative relief must be sought
through special statutory review or the general principle of legality established by the Constitutional Court.
51
New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang & another NNO; Pharmaceutical Society of South Africa & others v
Tshabalala-Msimang & another NNO 2005 (2) SA 530 (C). para 61.
52
Constitution of Kenya 2010, Article 47.
53
Fair Administrative Actions Act, Section 9(1).
54
The Fair Administrative Actions Act itself can of course be measured against constitutional rights, but that is not the same
thing. See Hoexter C, '"Administrative Action" in the Courts' p 6.
52 AUGUST 2024
5.0. Classifying the letter and the recusal cannot be perceived as a fair and proper
order of the Supreme Court application of legal rules and reasoning.
Also, the letter was an aspect of institutional
5.1. The letter management since it was communicated
through the office of the Registrar. This then
The Supreme Court judges in Law Society means that the letter cannot be a judicial
of Kenya v Supreme Court of Kenya & decision and it is an administrative action.
Another55 argued that the letter was an
order under Rule 29(1) of the Supreme 5.2. The recusal ruling
Court Rules.56 The first important elements
to consider in determining whether it was On 23rd January 2024, during the hearing
an administrative action or judicial decision of Supreme Court Petition No. E021 of
– as noted above – are the nature of the 2022 (Zehrabanu Janmohamed & Another
power, its source, and its subject matter.57 v Nathaniel K. Lagat & 3 others), involving
Rule 29(1) provides that except for an SC Ahmednasir’s law firm, six Justices
advisory opinion, a decision of the court reiterated a previous communication and
on any proceedings shall be in the form of recused themselves from the case due
a decree or an order. Rule 29(3) further to the involvement of counsel from his
provides that the order shall be as set out firm and issued a ruling affirming their
in Form D of the First Schedule. The letter communication in the letter banning SC
that was addressed to SC Ahmednasir was Ahmednasir.59 The question then is, does
in no way close to, or its source attributed to this ruling meet the threshold of a judicial
Rule 29. The subject matter does not match decision? The first element is that a judicial
the subject matter of the form in the first decision is one made by a judge on a matter
schedule. The first clear argument is that before them and in this case, the Supreme
the letter was made by a state organ which Court judges gave an order on a matter
is an administrative body, the letter related that was presented before them.60 Secondly,
to the administration of the court, the state the recusal ruling was in the form of an
organ was performing a judicial function, order and it meets the definition in Section
and the letter affected the right to legal 2 of the Civil Procedure Rules as it is a
representation of the parties who were being formal expression of the Supreme Court’s
represented by SC Ahmednasir’s firm. decision. Third is that the Supreme Court
gave reasons such as disrespect towards
Secondly, a judicial decision must be based the bench and lastly is that they stated
on clear legal reasoning and analysis, that it was under the hand and seal of the
perceived by all parties and society as a court which then meets the element that a
fair application of legal rules, a proper decision must be made on the ground of law.
evaluation of facts, and enforceable in My argument thus is that the recusal order
practice.58 The letter was not based on meets the test of a judicial decision.
any clear legal reasoning and analysis and
55
See Law Society of Kenya v Supreme Court of Kenya & another; Abdullahi SC & 19 others (Interested Parties) (Petition
E026 of 2024) [2024] KEHC 7819 (KLR) (Constitutional and Human Rights) <Available at http://kenyalaw.org/caselaw/cases/
view/293543/>
56
Supreme Court Rules of 2020. < Available at http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%209B >
57
See note 7 above.
58
See note 26 above.
59
See note 1 above, para 3.
60
See note 25 above.
AUGUST 2024 53
Chief Justice Martha Koome said: the High Court had jurisdiction without
touching on the substance of the letter
"We are recusing ourselves from hearing the and the recusal ruling. The next part gives
matter as long as Ahmednasir Abdullahi solutions that can be adopted to avoid
Senior Counsel is appearing before the court future flaws.
or anyone is holding his brief. This is under
the hand and seal of the court." 7.0 Recommendations
61
Zehrabanu Janmohamed & Another v Nathaniel K. Lagat & Others, Supreme Court Petition No. E 021 of 2022.
62
Law Society of Kenya v Supreme Court of Kenya & another; Abdullahi SC & 19 others (Interested Parties) (Petition E026
of 2024) [2024] KEHC 7819 (KLR) (Constitutional and Human Rights) <Available at http://kenyalaw.org/caselaw/cases/
view/293543/>
63
See Mudeyi YP, ‘A Question of Jurisdiction (n 25 above)
64
Van Rooyen K, ‘Challenges to the Sub Judice Rule in South Africa’ (2014) 70 HTS Theologies Studies / Theological Studies <
Available at https://journals.co.za/doi/abs/10.4102/hts.v70i1.2714>
65
<Available at http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP.%209B>
66
See Attorney General (On Behalf of the National Government) v Karua (n 43 above)
54 AUGUST 2024
Supreme Court for review of its decision.67
He can raise the claim that the decision
was reached per incuriam and with mala
fide.68 The only hurdle will be the lack of
judicial humility,69 and the potential for
bias. A ruling is deemed per incuriam when
it has been made through oversight, failing
to consider essential legal instruments
or authoritative principles.70 A decision
rendered per incuriam is fundamentally
flawed, as it overlooks critical legal
provisions or established authorities.71
The test for determining per incuriam is
stringent, requiring that the decision has
failed to consider specific and applicable
legal instruments, rules, or authorities.72 In
this case, Senior Counsel Ahmednasir can
raise a claim that the court disregarded the
provisions of the Supreme Court Act on
the charge of contempt of court and out of Senior Counsel Ahmednasir
malice decided to punish him in a punitive
way that contravenes the provisions of the
law. in bad faith. The letter from the Registrar
qualifies as an administrative action, while
8.0. Conclusion the recusal ruling constitutes a judicial
decision. Recommendations include proper
This paper delineates the crucial difference procedural conduct by the Supreme Court
between administrative actions and judicial and avenues for Ahmednasir to challenge
decisions, using the Supreme Court of the actions taken against him.
Kenya's actions against Senior Counsel
Ahmednasir as a case study. It contends Youngreen Peter Mudeyi is a law student at Kabarak
University.
that the ban was punitive and executed
67
See Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR < Available at > where the Supreme Court
reviewed its decision in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited &Two Others, Sup. Ct.
Application No. 2 of 2011; [2012] eKLR but in that instance, they upheld the previous decision.
68
See Rai v Rai, para 50.
69
See Joshua Malidzo Nyawa, ‘Judicial Humility and Kenya’s Supreme Court “under the Table” Overruling of Precedents’ [2024]
Social Science Research Network < Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4842243> accessed 10
July 2024 where he argues that the Supreme Court is not a ‘paragon of judicial humility’ and cannot easily agree that they have
made a mistake. Walter Khobe wrote that ‘…if there is a group of people whose ideology is contrary to the spirit, values, and
principles of the 2010 Constitution, it is the judges of the Court of Appeal. If there is a group of people who are irredeemably
mired in a legal culture of liberal legalism (formalism, positivism, and rule-bound technical approach to adjudication)
associated with the pre-2010 dispensation and are oblivious to the demands of change in legal culture demanded by the 2010
Constitution, it is the judges of the Court of Appeal. A reading of Advocate Malidzo Nyawa’s paper makes me say that the term
Court of Appeal in the quote should be replaced with Supreme Court to match the current context and wave of events.
70
See Rai v Rai, para 50.
71
Ibid, para 51.
72
English House of Lords judgment in Cassell & Company Limited v. Broome [1972] 2 WLR 645. Here, the Court of Appeal's
assertion that Rookes v. Barnard [1964] AC 1129 was decided per incuriam was scrutinized. Lord Reid clarified that disagreement
with a decision does not equate to it being per incuriam. He emphasized that a thorough review of the law by the House, which
identifies and elucidates previously unclear principles, should not be described as per incuriam or ultra vires.
AUGUST 2024 55
Liberating Kenya by blood,
sweat and tears — My story
By Wanja Gathu
56 AUGUST 2024
Prof. Wangari Maathai camping at Uhuru Park, February 1991. Her courage helped protect Uhuru Park and Karura
Forest from powerful land grabbers.
AUGUST 2024 57
Being the only woman in the dingy, pitch-
dark cell, I feared for my life, thinking
someone would rape me or kill me and my
family would never know what became of
me.
With bullets flying about me all round and Before this, I could not stand the sight
people wailing in agony, I didn't get far of blood. I would faint but faced with so
58 AUGUST 2024
much blood, and with no place to hide, my the past few weeks are going through and
survival instincts kicked in. I tried to stave deeply commiserate with them. My heart
off the flow of blood from the injured man’s goes out to those killed and the bereaved
chest with my sweater to no avail, so I families. Their sacrifice is not in vain.
watched as his life ebbed away, knowing my
own life was also at stake. Remaining unbowed through humiliation
and torture
I don't know whether he lived or died
because when we arrived at the police The last thing I remembered was being
station, we found a fresh set of police armed stripped naked and forced to bend, twist
with whips and clubs, waiting to beat us and turn at every angle and being prodded
senseless and they did. When I came to, I in every crevice of my body as police, both
was in a huge police truck popularly known men and women, laughed and jeered.
as a Mariamu. My left wrist was cuffed to a
man, much taller and stronger than me, so They called me ‘Mungiiki wife’ and
when he moved, he dragged me along with forced my legs wide open to see if I was
him. circumcised, all the while laughing at me
and making lewd jokes about sex and
Not knowing where I was or where I would uncircumcised women. I was stripped of my
end up, I was gripped by the fear of death clothes and my dignity on that day.
and I cried desperately for my mother,
thinking about the message I would give my The objective of the oppressor is to
killers to take to my mother and siblings. dehumanise and reduce the victim to
nothing so that they become docile and
I wanted my family to know that I loved submissive. I refused to submit to the
them and that I had done nothing wrong. indignity and made up my mind right there
My dying wish was that my killers would to stand up and fight injustice whatever the
not show my mother my battered and cost.
broken body. I prayed they would have the
decency to clean me up and cover up my For those who may not know, the Mungiki
nakedness and wounds before presenting me is a proscribed group, notorious for murder,
to my distraught mother. I wondered how extortion and other heinous crimes. In 2017
colleagues at work would receive the news of Mungiki terrorised and killed many Kenyans
my death in the line of duty. I was distraught. and in the height of the post-election
violence of 2007/2008, in which more
I could taste dried blood, sweat and than 1200 Kenyans were killed, causing the
tears when I woke up next to find myself indictment for crimes against humanity by
sprawled on the ground, stark naked in a the International Criminal Court, of former
very cold mud room, where I would spend President Kenyatta and his deputy, William
many days and nights, in high security Ruto, now sitting President of Kenya—the
remand prison, alongside hardened female Mungiki has been implicated in macabre
criminals. My face was swollen and I had a killings across the country.
split lip and a black eye. I was sure my left
wrist was sprained if not broken because of Even though I was released with no case
the severe pain I felt there, but I was in pain to answer, my perceived association with
all over and did not receive any medical the Mungiki would irreparably hurt my
attention. career and self-image. It is why I shudder
and shiver when I see the architects of
Because of this, I understand perfectly what that murderous group cosying up to the
those young Kenyans brutalised by police in government today, along with other people
AUGUST 2024 59
While the ICC's proceedings against President William Ruto were a significant aspect of the post-election violence
saga, his acquittal did not end the broader discussions about accountability, justice, and reconciliation in Kenya.
of questionable character, with known links abuses, to defend people's rights, give voice
to violence and other dastardly acts. to the voiceless and support the quest for
justice for those treated unjustly by the
Trauma healing and search for justice system and its agents.
More than two decades later, I still suffer These activities have put me at loggerheads
the trauma of arrest, detention and torture. with powerful individuals and put me
This trauma has been triggered anew by in harms way on numerous occasions as
the happenings in Kenya these past few expected but I am a firm believer that
weeks, which seem to follow a familiar silence emboldens the evil and as such I
and dangerous pattern. Even though will not keep silent when innocent youth
my suffering was never acknowledged die by gunfire on the streets of Nairobi for
and I never received any restitution or exercising their democratic right to protest
compensation from the government, despite bad governance and oppression by corrupt,
efforts to seek justice through the legal inept, wasteful and selfish leadership, that is
systems. deaf to the needs of people they are sworn
That said, my experience taught me first- to serve.
hand, what can go wrong when those in I will speak out loud and condemn in the
positions of power are allowed to abuse strongest terms possible, the torture and
that power and use it to silence, torment killing of young men and women. Chopping
and persecute the people they are sworn to up, stuffing in dirty bags, pieces of their
protect. I am still learning how to take better bodies and dumping them in a quarry under
care of myself. the very noses of police who only yesterday
were so eager to shoot and kill defenseless
That experience also hardened my resolve youth.
to always speak up against human rights
60 AUGUST 2024
The GenZ revolution in Kenya represents a dynamic shift towards a more engaged, tech-savvy, and socially
conscious generation. Their influence is shaping the future of the country, driving new conversations, and
challenging traditional norms and systems.
Police who are paid by taxpayers’ money danger. That by their suffering, the youth
but fail spectacularly to tackle crime and are riled up so much that they stop at
insecurity, leaving Kenyans unprotected nothing in their quest to change Kenya
and vulnerable. I will not tire of reminding for the better; for their own sakes and for
police, the armed forces and all government generations to come. I hope that because of
security agents who kill civilians under orders this revolt, the current and outgoing crop
from above, that they will be held personally of leaders learn their lesson well. That no
responsible for their actions by law. man or woman without integrity will dare
to come even within a few feet of a public
Lessons from the trenches office because vigilant youth will henceforth
stand guard.
If this GenZ revolution does nothing else for
the youth and the people of Kenya, I hope I hope that when all is said and done,
that it hardens their resolve to challenge Kenya, my motherland will rise again in all
those in positions of power to do right by its glory and splendour and that justice will
the people. I hope that survivors rise up and once again be our shield and defender. God
demand justice for those whose lives were bless Kenya.
cut short and for those whose livelihoods
and futures have been stolen by the ruling Wanja Gathu is an award-winning freelance journalist
kleptocracy that is holding Kenya hostage. based in Toronto, Canada. She is also a human rights and
social justice advocate.
AUGUST 2024 61
Voices of accountability
and the quest to be heard
By Munira Ali Omar
62 AUGUST 2024
Accountability is indeed a fundamental pillar for achieving and sustaining peace in any society. It ensures
that individuals and institutions are held responsible for their actions, particularly in situations of conflict or
governance issues.
AUGUST 2024 63
Theirs is a strong call for real action and It is for this reason that the youth decided
profound change driven by the urgency to enough is enough and a time has come
address historical injustices and economic to demand inclusive institutions and
disparities. This movement understands equitable opportunities as guided by the
that true societal change requires the active values and principles enshrined in Kenya's
participation of ordinary citizens in decision- Preamble, Article 10, Chapter 6 and other
making processes, echoing the participatory constitutional provisions. These reflect
budgeting initiative in Porto Alegre. Kenya's diverse historical, economic, social,
cultural and political landscape shaping a
Accountability is the bedrock of vision where governance genuinely serves
sustainable peace the needs and aspirations of its people.
The parallels drawn between Brazil's labour Indeed, it is evident that we have reached
movement and Kenya's Gen Z movement a critical juncture where mere discussions
underscore a universal truth that sustainable no longer suffice. The time for our leaders
development and prosperity arise not from to move beyond promises and dialogues
top-down mandates but from the bottom- and to prioritise tangible steps towards
up efforts of empowered citizens striving accountability and progress for all is long
for inclusive institutions and equitable overdue.
opportunities. Unfortunately, Mr. Ruto’s
commitment to "bottom-up" progress has Munira Ali Omar is an Advocate at the High Court
ultimately been exposed as deceptive and of Kenya and the Land Program Officer at Haki Yetu
Organization.
misleading.
64 AUGUST 2024
Breaking executive chains:
A call for true autonomy
of Kenya's National Police
Service Commission
constitutional amendments to limit DPP
authority over police investigations, reform
By Youngreen Peter Mudeyi appointment processes, ensure financial
autonomy, and improve public perception
of NPSC’s independence. Additionally,
empowering the Independent Policing
Oversight Authority (IPOA) with prosecutorial
powers is recommended. These reforms are
By Valentine Kasidhi
essential for transforming the NPSC into a
robust institution that upholds the rule of law,
protects human rights, and fosters public trust
in Kenya’s democracy.
Abstract
1. Introduction
The Kenya National Police Service
Commission (NPSC), established under the Willy Mutunga notes that one of the
2010 Constitution, aims to ensure police most integral tenets of a transformative
accountability and democratic oversight. Constitution is having provisions for
However, its independence is compromised independent commissions.1 Independent
by executive influence, particularly in Commissions and Offices are established
appointments, operational directives from the as bodies separate from the three arms
Director of Public Prosecutions (DPP), and of government, which ought to act as
financial dependence. This paper examines constitutional watchdogs or people's
the NPSC's role as an independent watchdog, watchdogs to prevent the abrogation of
its historical and constitutional context, human rights.2 In Kenya, Commissions
and its performance in terms of functional, are not a separate government branch.
operational, financial, and perceived The Supreme Court highlighted that
independence. Findings show executive the Constitution's "independence
control undermines NPSC's autonomy, mainly clause" protects these bodies from
through DPP directives and presidential undue interference to prevent historical
appointments. The paper advocates for presidential power abuses.3 Independent
1
Willy Mutunga, ‘Transformative constitutions and constitutionalism: A new theory and school of jurisprudence from the Global
South?’ Transnational Human Rights Review Vol 8 (2021), 30-60, see also Willy Mutunga, In search and in defense of radical
legal education: A personal footnote, Inaugural Lecture, Kabarak University, page 40. < Available at https://kabarak.ac.ke/news/
inaugural-lecture-by-prof-willy-mutunga>
2
See In the Matter of the National Land Commission [2015] eKLR. (NLC Advisory Opinion)
3
In Re The Matter of the Interim Independent Electoral Commission, Constitutional application Number 2 of 2011, para 59. ( Re
IIEC case)
AUGUST 2024 65
Established by the Kenyan Constitution, the Kenya National Police Service Commission plays a crucial role in
ensuring the police force operates with integrity, accountability, and efficiency.
bodies, including several Commissions and This paper examines the history of the
the Judiciary, are tasked with safeguarding NPSC, the separation of powers doctrine,
democracy's core principles—the rule of and the concept of a fourth arm of
law, transparency, human rights, and public government composed of Independent
participation—acting as vigilant guardians Commissions. It analyzes the types of
for the people.4 constitutional independence and assesses
the NPSC's adherence. The paper discusses
The 2010 Constitution establishes the NPSC's role in checking government
autonomous constitutional commissions arms and how it should be checked,
and independent offices, governed by the concluding with recommendations to
Constitution and laws, to operate free operationalize NPSC independence and
from external control.5 While the textual ensure its effectiveness.
acknowledgment of their independence is
crucial, their effectiveness in promoting 2. History of the National Police
accountable governance hinges on their Commission and why Kenyans established
institutional design and the maintenance of it as an Independent Commission
their autonomy amidst political realities.6 To truly grasp the significance of
The NPSC is one of the crucial independent constitutional commissions and independent
commissions, and if it fails to perform its offices (collectively known as independent
duties well, it can lead to a significant institutions) in Kenya's constitutional
abrogation of the Constitution. framework post-2010, it is essential to
4
Constitution of Kenya 2010, Article 249.
5
Ibid, Article 249(2).
6
J Yeh ‘Experimenting with Independent Commissions in a New Democracy with a Civil Law Tradition: The Case of Taiwan’ in S
Rose-Ackerman & PL Lindseth Comparative administrative law (2010) 262.
66 AUGUST 2024
1986 Act removing job security for the
Attorney-General and others and the
1988 Act removing job security for Public
Service Commissioners and judges. These
amendments, noted by Ben Sihanya,
centralized power in the President and
weakened governance accountability10 of
which I agree with him to the extent that the
quasi-federal offices were also weakened.
The history of executive control of the
police in Kenya reflects a transition marked
by efforts to centralize authority under
the post-colonial bureaucratic executive
state.11 Kenya's independence constitution
decentralized power, but leaders like Jomo
The late Oginga Odinga
Kenyatta and Oginga Odinga pushed for
centralization. In 1964, KANU sought
examine their development within the constitutional changes to abolish regional
context of the country's constitutional governments, reinforcing executive
evolution.7 At independence in 1963, control over the police and administrative
Kenya's Independence Constitution aimed bodies.12 Under direct executive control, the
to build a unified nation that respected provincial administration suppressed dissent
individual rights and promoted social and and ensured executive dominance through
economic progress.8 This Constitution centralized, colonial-like governance
sought to replace the oppressive colonial and patronage networks. The police,
system with a limited government structure, functioning as part of the executive rather
balancing power across the Executive, than independently, lacked autonomy.
Legislature, and Judiciary. It also introduced Independent Commissions were created
a quasi-federal system and established to address governance's "accountability
independent offices, such as the Attorney- deficit" by checking the power and potential
General and Controller and Auditor- abuse of elected branches.13 Under the old
General,9 to ensure checks and balances Constitution, there was a common belief
further. that government officials lacked sufficient
oversight, necessitating the creation
The Independence Constitution was of independent institutions to ensure
amended to create an imperial presidency accountability.14 Khobe states this informed
with extensive executive control. Kenyans' desire for the constitutional
Fundamental changes included the entrenchment of ‘bodies that were separate
7
Khobe Ochieng , W. ‘The Independence, Accountability, and Effectiveness of Constitutional Commissions and Independent
Offices in Kenya. Kabarak Journal of Law and Ethics, (2021) 4(1) page 136. < Available at https://journals.kabarak.ac.ke/index.php/
kjle/article/view/178 >
8
K Murungi ‘Kenya’s Constitutional Theory and the Myth of Africanity’ in K Kibwana (ed.) Law and the Administration of Justice
in Kenya (1992) 58.
9
Independence Constitution, Section 86 and 128.
10
B Sihanya ‘Reconstructing the Kenyan Constitution and State, 1963-2010: Lessons from German and American
Constitutionalism’ (2010) 6(1) The Law Society of Kenya Journal 24
11
Bienen B. Kenya:The Politics of Participation and Control, Princeton: Princeton University Press (1974).
12
Odinga, ‘Not Yet Uhuru, Nairobi : : East African Educational Publishers (1964).
13
Khobe Ochieng , W. ‘The Independence, Accountability’ (n 7 above) p 140.
14
Y Ghai ‘A Journey around Constitutions: Reflecting on Contemporary Constitutions’ (2004) 122(4) The South African Law
Journal. p 815.
AUGUST 2024 67
from government and capable of applying concept of the separation of powers can be
and protecting the constitution.’15 interpreted in several ways.21 It advocates
against dual roles in government, such
Before the Constitution was promulgated, as ministers serving as MPs, stresses
Kenya had statutory commissions that independence between branches, and
lacked constitutional protection, rendering prohibits encroachment on each other's
them susceptible to executive influence functions. Montesquieu's framework
and financial dependence on the treasury.16 lacks accountability oversight. Kenya's
This compromised their independence and commissions align with global trends,
effectiveness, failing to enhance governance establishing a 'fourth branch' for rights
significantly. Including constitutional enforcement, accountability, and decision-
commissions and independent offices in making enhancement alongside traditional
the 2010 Constitution was a definitive branches.22
response to these historical shortcomings.
The rise of independent institutions in However, the Supreme Court of Kenya
Kenya addresses governance accountability rejected the idea of a fourth branch of
issues. The Constitution of Kenya 2010 government, emphasizing that while
categorizes the NPSC as one of these commissions and independent offices lack
independent commissions.17 It is supposed sovereign power under Chapter 15 of the
to act independently of all the other arms of Constitution, they serve crucial roles as
government and should not be subject to the watchdogs over government functions
control of any. That is why the Constitution separate from the Executive, Judiciary, and
labels the President as the Commander-In- Legislature.23 The Constitution establishes
Chief of the armed forces,18 of which the the NPSC as one of the Independent
National Police is not part of it.19 Studying Commissions.24 After establishing that
the separation of powers will be essential to the commissions, the National Police
determine where the National Police falls. included, are not parts of the three arms
of government and do not form a fourth
3. Separation of powers and the need for arm, it will be essential to consider how the
a fourth arm of government National Police can exercise different types
of independence.
The Constitution aims to transform Kenya's
legal, political, and economic landscape 4. Types of Independence: Does the
by instituting checks and balances on National Police Commission reflect them
governmental powers, mitigating the
unchecked authority of past presidencies The NPSC requires independence to hold
and the Executive branch.20 Montesquieu's the executive accountable and ensure
15
Khobe Ochieng , W. ‘The Independence, Accountability’ (n 7 above) p 140.
16
Khobe Ochieng , W. ‘The Independence, Accountability’ (n 7 above) p 142.
17
Constitution of Kenya 2010, Chapter 15. See also CM Fombad ‘Constitutional Reforms and Constitutionalism in Africa: Reflections
on Some Current Challenges and Future Prospects’ (2011) 59 Buffalo Law Review 1007 where he argues that the enactment of new
constitutions in the African continent is aimed at ushering in an era of constitutionalism. This appears to be an illusion in Kenya
when it comes to the NPSC which is independent only by perception.
18
Constitution of Kenya 2010, Article 131(1c).
19
Ibid, Article 241.
20
Khobe Ochieng , W. ‘The Independence, Accountability’ (n 7 above) p 138.
21
AW Bradley & K Ewing (eds) Constitutional and administrate law (1994) (11ed) 4.
22
D Olowu ‘Good Governance and Development Challenges in the South Pacific: The Promise of Ombudsmanship’ (2004) 8 in
LC Reif (ed) The International Ombudsman Yearbook 94-95.
23
NLC Advisory Opinion.
24
Constitution of Kenya 2010, Article 248(2j).
68 AUGUST 2024
adequate oversight. Recognizing it as part commissions under Articles 252 and 253
of the government could compromise its of the Constitution.29 These provisions
impartiality. The Supreme Court identifies safeguard independent institutions from
five factors for achieving independence: other state organs assuming their duties.
functional, operational, and financial Amendment affecting their independence
autonomy, perceived independence, and needs referendum approval under Article
collaboration with other state organs.25 255(1)(g). The Constitution allows the
Cabinet Secretary for police services to
4.1. Functional Independence direct the Inspector General on policy
matters for the National Police Service.30
Functional independence implies that Article 245 enables the Cabinet Secretary
independent institutions should enjoy to give non-binding policy directions to the
administrative independence, namely Inspector General (IG). Still, it prohibits
being subject to the constitution and the directions on specific criminal investigations,
law only.26 They should operate without prompting questions about the role of the
direction or control from external interests Office of the Director of Public Prosecutions
or individuals, adhering strictly to legally (ODPP) under Article 157 and the need for
mandated channels of accountability.27 judicial clarity.
This implies that independent bodies
exercise their autonomy by performing their 4.2. Operational Independence
functions independently, without being
directed or ordered by other state organs Operational independence ensures
or entities. This is where I note the first that constitutional commissions and
problem. The Constitution of Kenya 2010 independent offices have sole authority
states that the Director of Public Prosecution over their daily operations, free from
shall have the power to direct the Inspector political interference.31 This entails making
General of the National Service to decisions autonomously and maintaining
investigate any information, and the IG shall organizational infrastructure for efficient
comply with any of such directions.28 The functioning.32 It prevents legislative or
police service should be independent and executive branches from influencing
not under any organ's control. Despite the staffing,33 procurement, or investigations,
Office of the Director of Public Prosecutions preserving the final administrative control
(DPP) being institutionally independent within the independent institution. A
and part of the Executive chapter of the significant lacuna also arises here: the NPSC
Constitution, its perceived alignment with plays the most critical role in the control
the executive allows it to influence the of the National Police Service, yet all the
police, facilitating presidential control members of the Commission are appointed
through so-called "orders from above." by the President.34 The Constitution
conflicts with Article 252, which mandates
Functional independence aligns with the commissions and independent offices to
specific functions and powers granted to recruit their own staff—sarcastically asking
25
NLC Advisory Opinion, para 184.
26
Constitution of Kenya 2010, Article 249(2a).
27
Ibid, Article 249(2b).
28
Ibid, Article 157(4).
29
Khobe Ochieng , W. ‘The Independence, Accountability’ p 147.
30
Constitution of Kenya 2010, Article 245(4).
31
Khobe Ochieng , W. ‘The Independence, Accountability’ p 148.
32
See Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] eKLR.
33
Constitution of Kenya 2010, Article 252.
34
Ibid, Article 246(2).
AUGUST 2024 69
if the President is included. Additionally, the
President can remove the IG under Article
245(7), potentially compromising the IG's
independence by fostering subservience to
the President.
35
Khobe Ochieng W. ‘The Independence, Accountability’ p 151.
36
Constitution of Kenya 2010, Article 249(3).
37
National Police Service Commission Act, CAP 85 Laws of Kenya, Section 18.
38
Ibid, Section 116.
39
P de Vos ‘Balancing Independence and Accountability: The Role of Chapter 9 Institutions in South Africa’s Constitutional
Democracy’ in D Chirwa & L Nijzink (eds) Accountable Government in Africa: Perspectives from Public Law and Political Studies
(United Nations University Press, 2012) 165.
40
(2015) eKLR. Para 162-211.
70 AUGUST 2024
The Communications Commission of Kenya (CCK) was the regulatory body responsible for overseeing the
telecommunications and broadcasting sectors in Kenya. However, in 2014, CCK was restructured and its
functions were taken over by the Communications Authority of Kenya (CA).
the Supreme Court considered the notion watchdogs,' emphasizing their independence
of the Constitutional Commissions and and perceived independence as critical.
Independent Offices being categorized Article 249(2) ensures constitutional
as the fourth arm of government. The commissions' independence, shielding them
judges acknowledged that the notion of from external control, as emphasized in
a "fourth arm" of government deviates In Re the Matter of the Interim Independent
from the traditional separation of Electoral Commission.41 The clause
powers conceptualized by Montesquieu. safeguards against historical executive
They highlighted that Article 1(3) of dominance, aiming to empower commissions
the Constitution recognizes a tripartite as guardians of democracy's core values:
separation of powers, delegating sovereign rule of law, integrity, transparency,
power to Parliament, the national executive, human rights, and public participation.
and the Judiciary, including independent Commissions act as watchdogs, necessitating
tribunals. In the NLC Advisory Opinion, freedom from improper influences to fulfill
the Supreme Court confirmed that their governance mandates effectively.42
constitutional commissions are classified
as State organs under the Constitution. In the Communication Commission of
While Article 1(3) vests sovereign Kenya & 5 Others v Royal Media Services
power in the Executive, Legislature, and Limited & 5 Others,43 the Supreme Court
Judiciary, it does not exclude commissions emphasized independence as a shield from
from exercising public power. The Court government, political, and commercial
emphasized that commissions safeguard interference. It ruled that commissions
the people's sovereign power, crucial for must operate free from external instructions
the authority of the Executive, Legislature, or influence to maintain their integrity
and Judiciary. Therefore, they are regarded and effectiveness.44 The High Court was
as 'constitutional watchdogs' or 'people's emphatic in IPOA v AG45 by stating that
41
Sup. Ct. Application No. 2 of 2011; [2011] eKLR (Re IIEC case).
42
Ibid.
43
[2014] eKLR (CCK case).
44
Ibid.
45
Independent Policing Oversight Authority & Another v. Attorney General & 660 Others, Petition No. 390 of 2014; [2014] Eklr,
para 98.
AUGUST 2024 71
the NPSC must avoid any appearance of Constitution, the Supreme Court, in the
direction or control by external authorities NLC Advisory Opinion, referred to Langa
to uphold its independence under Article DP's wisdom in the South African case of
249(2)(b) of the Constitution, especially New National Party v. Government of the
in police recruitment. Nonetheless, the Republic of South Africa and Others,48 where
Supreme Court was swift in distinguishing the judge categorized independence into
independence from detachment In Re the financial independence, which means having
matter IIEC by stating that: access to necessary funds for constitutional
duties. Parliament, not the commissions,
“For due operation in the matrix, handles budgeting and must rationally
“independence” does not mean consider the commission's funding needs
“detachment,” “isolation” or while balancing national interests. As
“disengagement” from other players in stated by the South African Constitutional
public governance. Indeed, for practical Court, Parliament, not the executive,
purposes, an independent Commission must ensure adequate funding and allow
will often find it necessary to co-ordinate commissions to defend their budgetary
and harmonize its activities with those of needs before relevant committees.49 The
other institutions of government, or other South African court outlined the second
Commissions, so as to maximize results, in factor, "administrative independence,"
the public interest…” as control over matters related to the
commission's constitutional functions. The
The Supreme Court, from the interpretations, executive must assist the commission in
expects Constitutional Commissions maintaining its independence, impartiality,
to collaborate with other State organs dignity, and effectiveness but cannot dictate
for effective public service. Since most its operations. If the commission needs
commissions lack prosecutorial powers, government assistance, the government
working harmoniously with other governance must provide it if possible or fund the
offices is crucial for fulfilling their commission to meet its needs.50
constitutional roles. This view was reiterated
in the CCK case,46 where the learned In the NLC Advisory Opinion, the Supreme
judges emphasized that the constitutional Court established crucial principles of
commissions cannot be isolated from Constitutional Commission independence. It
other players in public governance. This defined functional independence as the need
perspective was also mirrored in the NLC for commissions to operate autonomously
Advisory Opinion, whereby the Supreme without external instructions or orders,
Court emphasized that independence of as outlined in Articles 252 and 253 of the
the Constitutional Commissions is not an Constitution. This concept, also known as
end in itself; of paramount importance is administrative independence, was affirmed
the operational benefits that flow from the in JSC v. Speaker of the National Assembly
Commission's role.47 and Others and the New National Party of
South Africa.
Now, considering the attributes of
independence contemplated in the The Supreme Court addressed operational
46
CCK case.
47
NLC Advisory Opinion.
48
New National Party v. Government of the Republic of South Africa and Others (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191;
1999 (5) BCLR 489
49
Ibid, para 98
50
Ibid, para 99
72 AUGUST 2024
IPOA investigates complaints against police officers and ensures accountability for any misconduct or abuse of
power. This includes handling cases of police brutality, misuse of authority, and corruption.
5. Checks and Balances: What role The 2010 Constitution creates independent
can the National Police Service institutions to safeguard the people's
Commission play sovereignty, ensure all State organs uphold
CM Fombad ‘The New Cameroonian Constitutional Council in a Comparative Perspective: Progress or Retrogression’ (1998)
52
AUGUST 2024 73
democratic values and principles, and and the rule of law. As guardians of the
advance constitutionalism.53 The joint Constitution and law under Article 165,
mandate of these independent institutions courts can intervene if independent
is to check government, thus ensuring institutions violate these principles, as
accountability in governance. The main confirmed in judicial rulings. Public Interest
question is whether or not the NPSC can Litigation plays a crucial role here. The Law
perform this role. Society of Kenya sets an example and should
sue the National Police Service Commission
6. IPOA: An institution of accountability for human rights violations during the
#REJECT THE FINANCE BILL period. Courts
The Independent Policing Oversight cannot initiate cases independently but
Authority operates independently in its require petitions, underscoring the need
functions and is not answerable to any for public awareness to enhance access to
individual, office, or entity.55 IPOA must judicial oversight over institutions like the
maintain impartiality and follow natural National Police Service Commission.
justice principles. The government must
support its independence and effectiveness 8. Recommendations
without interference. Parliament funds
IPOA for oversight of police, investigations, Fombad outlines four principles to
and advising victims.56 IPOA members safeguard the independence of these
are appointed independently of executive commissions: constitutional recognition
influence to ensure they can perform of their autonomy, their subjection solely
duties without fear. However, IPOA lacks to the constitution and law, support and
prosecutorial powers, limiting its role protection by other state organs, non-
to advisory. This allows corruption and interference in their operations by any state
undermines its constitutional defense role, entity, and accountability to Parliament.58
possibly due to presidential influence in In addition to separating powers among
appointments.57 The President approves the Executive, Legislature, and Judiciary,
the list that is sent to the selection panel. embedding independent institutions into the
This means that the selection process can constitution to promote accountability and
only move on with his approval. This will uphold democracy is essential for fostering
intimidate prospective IPOA board members constitutionalism.59 It is important to note
to bend to the Executive’s interests, fearing that creating independent institutions
that the President has nominating powers. that ensure accountable governance is a
significant challenge, demanding a legal
7. The Judiciary as an instrument for framework that explicitly safeguards
holding the Police Accountable their independence and impartiality,
including operational autonomy, to prevent
The Constitution mandates all state organs interference by other actors.60 It is a reality
and institutions adhere to its provisions that the enforcement of accountability
53
Constitution of Kenya 2010, Article 249(1).
54
Khobe Ochieng , W. ‘The Independence, Accountability’ p 142.
55
Independent Policing Oversight Authority Act, Section 4.
56
Ibid, Section 6.
57
Ibid, Section 11.
58
CM Fombad ‘Constitutional Reforms and Constitutionalism in Africa: Reflections on Some Current Challenges and Future
Prospects’ (2011) 59 Buffalo Law Review 1007.
59
Khobe Ochieng , W. ‘The Independence, Accountability’ p 141.
60
CM Fombad ‘Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties:
Lessons and Perspectives from Southern Africa’ (2007) 5 The American Journal of Comparative Law 6.
74 AUGUST 2024
discharged by independent institutions 9. Conclusion
threatens powerful interests that often make
a concerted effort to weaken their power From the foregoing, it is established
and influence.61 To address this situation, that independence, in all its forms, is a
legal and institutional frameworks should fundamental aspect of our Constitutional
ensure that independent institutions are Commissions and independent offices.
distinct from the President, preventing any Drawing from the wisdom of Chief Justice
Executive control over their agenda and Emeritus Dr. Willy Mutunga, Kenyans
operations.62 Appointment processes must promulgated a transformative and
be insulated from political interference progressive constitution on the promise
to bolster the legitimacy and autonomy of a “reconstitution or reconfiguration of
of these bodies.63 Maintaining a certain a Kenyan state from its former vertical,
independence from Parliament, which may imperial, authoritative, non-accountable
also face scrutiny, is crucial. It is in light of content under the former Constitution
this that I suggest the following: to a state that is accountable, horizontal,
decentralized, democratized, and responsive
First, functional independence requires to the vision of the Constitution.”64
amending the Constitution to remove the Additionally, the Constitution 2010
DPP’s power to direct the IG of the National strengthened institutions and created
Police Service. Operational independence institutions that provide checks and balances
involves reforming NPSC members' to remedy the historical injustices Kenyans
appointment and removal processes to suffered under an unfettered Executive.
minimize presidential influence. Financial Hence, constitutional commissions and
freedom can be achieved by allocating a independent offices were established
dedicated budget for the NPSC, which can for this purpose. Nonetheless, while
be managed independently of the executive. their independence is guaranteed in the
Enhancing the perception of independence Constitution, we advocate for wholesome
is also crucial; this can be done by institutional reforms that reinforce the
increasing public trust through transparency independence of constitutional commissions
and asserting the NPSC’s autonomy. and independent offices.
Lastly, oversight and accountability can be
reinforced by granting IPOA prosecutorial Crucial reforms to empower the NPSC
powers and removing the executive's role include removing DPP control, minimizing
in appointing IPOA board members. These presidential influence in appointments,
reforms are vital for empowering the NPSC ensuring financial independence, enhancing
to uphold the rule of law and protect human public trust, and granting IPOA prosecutorial
rights, aligning with Kenya’s constitutional powers. These steps will bolster the NPSC's
and democratic ideals. autonomy and accountability.
61
JM Ackerman ‘Understanding Independent Accountability Agencies’ in S Rose-Ackerman & PL Lindseth Comparative
Administrative Law (2010) 271, in Khobe Ochieng , W. ‘The Independence, Accountability’ p 146.
62
PL Strauss ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ (1984) 84(3) Columbia Law
Review 594.
63
Khobe Ochieng , W. ‘The Independence, Accountability’ p 147.
64
‘Mutunga, Willy “the 2010 Constitution of Kenya and Its Interpretation: Reflections from the Supreme Court’s Decisions” (Vol
1) [2015] SPECJU 6’ (Saflii.org 2015) <https://www.saflii.org/za/journals/SPECJU/2015/6.html> accessed 19 July 2024.
AUGUST 2024 75
From avoidance to
constitutionalisation of
private law: The puzzle
of horizontality
I. Introduction
1
Mattias Kumm, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalisation of
Private Law’ 7 German Law Journal 4.
2
Ibid, 341.
3
Ibid.
4
Ibid, 343.
5
Ibid, 344-5.
6
Joshua Malidzo Nyawa, ‘Justice Kiage and the Total Constitution: Judicial Protection of religious minorities in Kenyan School’
(2023) The Platform for Law, Justice and Society, 1; Kenya Law Reform Commission, ‘Implementing the Total Constitution:
Towards a Normative Approach’ (2015); Walter Khobe Ochieng, ‘From constitutional avoidance to the primacy of rights
approach to adjudication in Kenya: A case study of the interplay between constitutional rights and the law of contract’ (2022) 6
Kabarak Journal of Law and Ethics, 165.
76 AUGUST 2024
the foundational norm from which all other canon is reflected in Ashwander v Tennessee
norms draw their legitimacy. It also spells Valley Authority11 where Brandeis J in his
out the general normative standards for the concurring opinion said the following;
resolution of all legal disputes. It follows “When the validity of an act of the Congress
therefore that the Kenyan constitution is, is drawn in question, and even if a serious
borrowing the words of Ernst Forsthoff,7 doubt of constitutionality is raised, it is a
A juristisches Weltenei, meaning a special cardinal principle that this Court (Supreme
‘kind of juridical genome that contains the Court of the United States of America) will
DNA for the development of the whole first ascertain whether a construction of
legal system’.8 The Constitution of Kenya the statute is fairly possible by which the
therefore creates a value system that spreads question may be avoided.”
to all areas of legal conflict rocks cannot
withstand the volcanic outburst of the The South African conception of the canon
values that imbue the constitutional system. is that courts and litigants should not invoke
Nonetheless, Joshua Nyawa maintains that a constitutional norm or value where it is
the Constitution, in and of itself cannot possible to decide a case without reaching
transform the Kenyan society and thus a constitutional issue.12 Speaking to the
demands a ‘willing and able judiciary to referral of matters originating in inferior
enforce the progressive bill of rights.9 courts under section 103(4) of the South
African Constitution, the Constitutional
II. Constitutional avoidance Court of South Africa [Kentridge AJ] in S v
Mhlungu13 held that; … where it is possible
The doctrine of constitutional avoidance (for the inferior courts) to decide any
has various dimensions. These conceptions case, criminal or civil, without reaching a
are based on the progenitors of the constitutional issue, that is the course which
doctrine-the United States of America should be followed. This has been taken
and South Africa. In the American realm, to mean an indirect as opposed to a direct
avoidance varies along the lines of classic application of the Bill of Rights to private
and modern avoidance. Classic avoidance law disputes i.e., a court must apply the
is based on what kinds of interpretations a provisions of ordinary law to resolve the
judge can avoid i.e., those that are found dispute even when the Bill of Rights applies
unconstitutional or those that merely raise directly.14
constitutional ‘doubts. Modern avoidance is
based on how far the statutory meaning can In Kenya, the avoidance canon is primarily
be stretched in the name of avoidance i.e., understood from the position that although
whether the canon is merely a tiebreaker, a court could take up a matter and hear
or allows judges to choose the less plausible it, it would still decline to do so if there
meaning to avoid constitutional problems.10 is another mechanism through which the
The modern dimension of the avoidance dispute could be resolved.15 Therefore, if it
7
E Forsthoff, Der staat der industriegesellchaft 144 (2d ed. 1971).
8
Kumm (n 1), ‘Who is Afraid of the Total Constitution? 344.
9
Nyawa (n 6), 2.
10
Eric Fish, ‘Constitutional Avoidance as Interpretation and as Remedy’ (2016) 114 Michigan Law Review 7, 1281.
11
297 US 288, 348 (1936).
12
Walter Khobe Ochieng, ‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya: A case
study of the interplay between constitutional rights and the law of contract’ (2022) 6 Kabarak Journal of Law and Ethics, 160.
13
1995 (3) SA 867 (CC) [59].
14
Christine Noella Lubano, ‘The application of fundamental rights to private relations in Kenya: Striking a balance between
fundamental rights and the freedom of contract’ (LLM thesis, University of Cape Town 2013), 32.
15
KKB v SCM & 5 others [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) [32].
AUGUST 2024 77
is possible for a court to decide a case upon rules, the avoidance doctrine is not absolute.
a statute, common law, or customary law Therefore, in certain circumstances, litigants
then it should not determine constitutional can skirt legislation and base their cases
issues arising in the case.16 According to on constitutional provisions. These may
Walter Khobe Ochieng, avoidance demands be in cases of palpable, direct, and clear
that a litigant seeks recourse in secondary violations of the Constitution and where
norms first before invoking the constitution non-constitutional relief is insufficient to
since once a normative derivative of the fully vindicate a litigant's right. Defenders
constitution has been enacted in statute of the canon justify it on the ground that it
the constitution assumes a ‘background protects the function served by statutes in
role and ceases to be the primary avenue of implementing the Constitution. Professor
enforcement of constitutional aspirations Githu Muigai, for instance, argues for a
and demands’.17 minimalist interpretation of the Constitution
since the statutes play a subsidiary role in
In Communication Commission of Kenya & implementing the Constitution. Avoidance
5 others v Royal Media Services Limited & 5 equally seeks to enhance institutional comity
others,18 the Supreme Court of Kenya held through judicial deference to parliament’s
that where there are mechanisms other than role in constitutional implementation.
the Constitution through which a dispute It is also justified based on discouraging
can be resolved, the said mechanisms the development of dual systems of
ought to be utilized to resolve the dispute. law by estopping litigants from directly
Principally, avoidance is linked to the invoking constitutional provisions in
doctrine of separation of powers. In broad the insubordination of their normative
terms, separation of powers is meant to derivatives.22
‘ensure the protection of individual rights
by way of the distribution of political power Be that as it may, avoidance has been
between different institutional actors and condemned on various grounds. Firstly, it is
includes mechanisms to ensure that such carped for denying litigants constitutional
power is not unduly exercised’.19 In the remedies. This is because the doctrine is
context of avoidance, separation of powers often invoked to prevent the vindication of a
reflects the cooperation that courts owe constitutional right.23 Secondly, the doctrine
the legislature in breathing life into the of avoidance avoids a direct application
Constitution.20 of the Bill of Rights thus undermines not
only the Bill of Rights but also the rule of
Avoidance, therefore, is an instrument law.24 Thirdly, the doctrine is perceived to
of judicial restraint that is steeped in the lead to ‘unaccountable judicial law-making’
need to weigh judicial power together with since when interpreting a statute avoidance
legislative intent.21 As with other general demands that judges only take the path
16
SG v Standard Media Group & 3 others (Constitutional Petition E066 of 2021) [2022] KEHC 13633 (KLR) (6 October 2022)
(Judgment) [19]; Khobe, ‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya’, 160.
17
Khobe (n 12), ‘‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya’, 161.
18
(2014) eKLR [256]-[258].
19
Stu Woolman and Michael Bishop, Constitutional Law of South Africa (2013), 12-1.
20
Khobe (n 12).
21
Sharon Hofisi, ‘The doctrine of constitutional avoidance as a nemesis to the public interest and strategic impact litigation in
Zimbabwe: Thesis, antithesis and synthesis' (LLM thesis, University of Zimbabwe 2017), 29.
22
Khobe (n 12), ‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya’, 163.
23
Ibid, 60.
24
Stu Woolman, ‘The Amazing, Vanishing Bill of Rights’ (2007) The South African Law Journal 124, 762-794.
78 AUGUST 2024
that raises no constitutional concerns.25
Michelle Slack argues that dalliance with
the avoidance doctrine has elevated it to
a virtue leading to a 'passive-aggressive
(judicial) activism’ thus undermining judicial
independence.26 Kloppenberg maintains that
by embracing avoidance courts abdicate
their role of upholding the Constitution
thus undermining the development of the
law hence calling for the avoidance of the
avoidance canon.27
Private law is essential for the functioning of a society
III. Constitutionalisation of private law as it provides the legal framework for personal
interactions and transactions. It helps individuals and
businesses navigate their relationships and resolve
Fundamental rights and freedoms enshrined conflicts in a structured manner.
in the Bill of Rights were previously
understood as spelling the obligations that
the state and its organs owe individual and horizontal application of the Bill of
citizens i.e., in a vertical relationship Rights.
rather than a horizontal relationship.28 This
was premised on the inequality of power Constitutionalisation of private law,
between the state and the individual in therefore, implies that private law i.e.,
that the State is far more powerful than the the law of tort, property, and contract, etc
individual and has a monopoly of violence should be 'designed or developed by judges
within its territory thus it is necessary to in a way that aligns it with Constitutional
provide the individual with a defensive rights’.31 This is because the whole legal
mechanism against abuse of the State’s system derives its legitimacy from human
power.29 In recent times, fundamental rights or fundamental rights. The Bill of Rights
have evolved to include an obligation on therefore is not only the highest or
individuals and private entities to uphold supreme law but also the source or origin
fundamental rights in appreciation of of all the laws in the legal system.32 Collins
the fact that rights abuses can also be surmises that the requirement of alignment
instigated by private actors i.e., horizontal ‘signifies that although private law does
relationships.30 For instance, Article 20 (1) not have to duplicate constitutional rights
of the Constitution of Kenya recognizes exactly, it should not contradict or subvert
that the Bill of Rights applies to all laws constitutional rights’.33 Critics argue that
and binds all State organs and all persons. the application of fundamental rights to
Article 20(1) thus establishes both a vertical the private sphere may prove disruptive in
25
KG Young, 'The Avoidance of Substance in Constitutional Rights'; Michelle Slack, 'Avoiding avoidance: Why the use of the
constitutional avoidance canon undermines judicial independence-a response to Lisa Kloppenberg’ (2006) 56 Case Western
Reserve Law Review 4, 1057-1069.
26
Michelle Slack, 'Avoiding avoidance: Why the use of the constitutional avoidance canon undermines judicial independence-a
response to Lisa Kloppenberg' (2006) 56 Case Western Reserve Law Review 4, 1059.
27
Ibid.
28
Lubano (n 14), ‘The application of fundamental rights to private relations in Kenya’ 1.
29
Ibid.
30
Ibid.
31
Hugh Collins, ‘Private Law, Fundamental Rights, and the Rule of Law’ (2018) 121 West Virginia Law Review 1, 3.
32
Ibid, 13.
33
ibid
AUGUST 2024 79
thus constitutionalises private law since
fundamental values and principles inherent
in the constitution permeate all law whether
public or private. Khobe surmises that
instead of avoiding constitutional issues
Article 20 constitutionalises all legal matters
(including private law) thus introducing a
primacy of constitutional rights approach
to adjudication as opposed to constitutional
avoidance.36
34
Hugh Collins, ‘Private Law, Fundamental Rights, and the Rule of Law’ (2018) 121 West Virginia Law Review 1, 9.
35
Khobe (n 12), ‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya’, 179-180.
36
Khobe (n 12), ‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya’, 169.
37
Constitution of Kenya (2010), Article 20(4).
38
(2010) eKLR
80 AUGUST 2024
doctrine encompasses the interplay between
constitutional principles and empowers
courts to skirt constitutional issues where
non-constitutional grounds are available.39
In that regard, Articles 10 and 20 of the
Constitution limit the application of the
avoidance doctrine to Kenya since the value
system embedded in the Constitution calls
on the courts to adopt a maximalist as
opposed to a minimalist interpretation of
the Constitution. Nevertheless, each case Kenya's Bill of Rights is part of its Constitution, which
must be treated according to its peculiar was comprehensively revised and adopted in 2010.
circumstances. The Bill of Rights in the Kenyan Constitution is found
in Chapter Four of the Constitution and outlines a
broad range of fundamental rights and freedoms
IV. A case study of the interplay between guaranteed to all citizens.
the Bill of Rights and private law
The application of fundamental rights in the the freedom of expression and a violation
private sphere in Kenya is highly contested. of his rights and fundamental freedoms in
This section interrogates the approach the Bill of Rights.42 On its part, Nairobi Star
adopted by Kenyan courts in various cases objected to Mr. Kenyatta’s petition arguing
where it was alleged that the substratum of that the fundamental rights and freedoms
the suits was private law matters amenable set out in the Kenyan Constitution can only
for resolution through the interpretation and be enforced against the state and state
application of statutes and the common law. organs and not private individuals as sought
These are cases where Kenyan courts have by Mr. Kenyatta. Nairobi Star further argued
embraced both the canon of constitutional that Mr. Kenyatta’s claim if any, was a claim
avoidance and the primacy of rights under the tort of defamation and could only
approach (Constitutionalisation of private be remedied in a civil suit and not through a
law) to adjudication. constitutional petition.43
39
Sharon Hofisi, ‘The doctrine of constitutional avoidance as a nemesis to the public interest and strategic impact litigation in
Zimbabwe: Thesis, antithesis and synthesis' (LLM thesis, University of Zimbabwe 2017), 32.
40
High Court Petition No. 187 of 2012.
41
Uhuru Kenyatta v Nairobi Star Publications Limited, [3].
42
Uhuru Kenyatta v Nairobi Star Publications Limited, [1].
43
Uhuru Kenyatta v Nairobi Star Publications Limited, [2].
44
Uhuru Kenyatta v Nairobi Star Publications Limited, [12].
AUGUST 2024 81
thus violating its rights under Articles 20,
33(2) (d) and 27 of the Constitution. In
that regard, the petitioner prayed for, inter
alia, an order of compensation for harm
and loss caused to it by the constitutional
violations.46
45
Brookside Dairy Limited v Mohamed & another (Constitutional Petition E339 of 2022) [2022] KEHC 13627 (KLR) (Commercial
and Tax) (13 October 2022) (Ruling).
46
Brookside Dairy Limited v Mohamed & another, [2]-[7].
47
Brookside Dairy Limited v Mohamed & another, [8]-[10].
48
Brookside Dairy Limited v Mohamed & another, [11]-[13].
49
Brookside Dairy Limited v Mohamed & another, [20]-[29].
82 AUGUST 2024
determined as a civil cause rather than a as it did not conform with the initial court
constitutional petition. The Court was of the judgment. The petitioner argued that section
view that while the petitioner referred to 20 of the Crops Act was not complied with,
Article 33(2) (d) and 27 of the Constitution, as the right procedures were not followed.
fashioning its case as a constitutional It complained that it was not accorded
petition was not the only course that would the opportunity to air its views, as the
have given it the remedy it sought. Ong’udi location of the 2nd respondent’s mill was an
J reasoned that it was incumbent upon encroachment on its cane catchment area,
the civil court to determine whether the which was exposing it to loss, of over Kshs.
utterances were defamatory under the law 6,000,000,000.00. It further complained
of defamation before it could eventually that contrary to the aforesaid judgment, the
determine the issue of breach of the said 1st respondent issued West Kenya Sugar
Articles after granting effective remedies if it with a new licence, instead of transferring
agreed with the petitioner.50 the previous one.53
50
Brookside Dairy Limited v Mohamed & another, [30]-[44].
51
[2024] KEHC 1099 (KLR).
52
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [2].
53
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [2].
54
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [1].
AUGUST 2024 83
The 3rd respondent submitted that the claim Korongo Matheri (all minors) who stood
against it was founded on a breach of an beside her. Similarly, on page 3 of Nation
alleged duty of care, owed to the petitioner Media Group’s ‘The Daily Nation’ appeared
which made it a tort, whose right remedies pictures of Anne Mueni and David Njoroge
lay in an ordinary civil suit, and not a (Simon Matheri's children) under a headline
constitutional cause. The 3rd respondent thus titled 'The agony of being the wife of a
urged the court to strike off the petition on wanted man'.59
grounds of constitutional avoidance.55
According to the petitioner, the published
In determining the matter, Musyoka J stories, narrations, and images were
invoked constitutional avoidance noting that highly offensive and severely embarrassing
the petitioner had an alternative remedy by to the minors as they prejudiced their
way of an ordinary civil suit rather than the innocence and psychological integrity. The
constitutional cause.56 He appreciated that petitioner further argued that publication
the doctrine was mainly cited and applied in of the said stories pictures and narrations
cases where the dispute was between private was calculated, intentional, reckless, and
entities. Musyoka J abhorred the principle negligent since they failed to give due
of avoidance concerning the horizontal consideration to the general interests of the
application of the Bill of Rights noting that children and safeguard their constitutional
‘[t]he horizontal application of the Bill rights to privacy and dignity, thus
of Rights enabled the court, seized of a prejudicing their reputation, development,
constitutional cause, to determine disputes and growth. The petitioner thus prayed
that would have also been quite properly for, amongst others, a declaration that the
handled in ordinary suits.57 respondent failed to safeguard the best
interests of the child in the manner the
d) Jemimah Wambui Ikere v Standard newspaper reports were done in respect of
Group Limited & another58 their deceased father.
55
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [28].
56
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [94].
57
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [95].
58
(2013) eKLR.
59
Jemimah Wambui Ikere v Standard Group Limited & another, [2],[3].
84 AUGUST 2024
non-state actors that could be enforced by a
constitutional petition and that if any claim
arose, then the Petitioner ought to have
raised the same by way of a civil suit.60
55
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [28].
56
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [94].
57
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others, [95].
58
(2013) eKLR.
59
Jemimah Wambui Ikere v Standard Group Limited & another, [2],[3].
60
Jemimah Wambui Ikere v Standard Group Limited & another, [6]-[12].
61
Jemimah Wambui Ikere v Standard Group Limited & another, [15]-[28].
AUGUST 2024 85
the appellant, Baobab Beach Resort and Spa
Limited that sought to have a constitutional
petition filed by the 1st respondent, Duncan
Muriuki Kaguuru and the 2nd respondent,
Destination Africa DMC Limited dismissed
with costs. The preliminary objection was
premised on, amongst other grounds, that
the fundamental rights and freedoms set out
in the Bill of Rights applied vertically and
not horizontally and that the substratum
of the suit was private law amenable for
resolution through the interpretation and
application of statutes and the common law
not by way of a constitutional petition.64
In determining the matter, Githua J relied
on Article 2(1) and Article 20(1) of the The respondents, in their petition, sought a
Kenyan Constitution as a basis for finding declaration that their fundamental rights to
that the Bill of Rights 'applies to all laws equality and freedom from discrimination
and binds all state organs and all persons'. on grounds of race, colour, birth, and
In her view, state organs as well as private ethnic and social origin under Article 27
entities such as Nation Media were bound of the Constitution had been violated; an
to respect and obey all the provisions of the injunction restraining the appellant from
Kenyan Constitution. She therefore found further publication of defamatory words;
that the Kenyan Constitution imposed a compensation in general damages for
duty on all persons and not just the state to the violation of their rights; exemplary,
ensure access by persons with disabilities to aggravative and punitive damages for
all places, public transport, and information. defamation and compensation for loss of
In reaching this conclusion, Githua J stated business. The 1st respondent’s case was
that: 'The Constitution makes it clear that that he was discriminated against by the
there is both a vertical – state to citizen and appellant since he was denied entry into
horizontal – citizen to citizen application of the hotel precincts by the security personnel
the Bill of Rights…' who selectively and discriminatorily allowed
other persons to enter the hotel on the
f) Baobab Beach Resort and Spa grounds of race, colour, birth, ethnic and
Limited v Duncan Muriuki Kaguuru & social origin due to the hotel management’s
another63 policy to exclude small tour operators.
The 1st respondent further complained
The appellant was an operator of a hotel that following the incident, the appellant
resort in Diani. The respondents were went on to defame him by falsely and
tour operators. The appeal arose from a maliciously publishing articles on the social
ruling and order made by the High Court and local print media insinuating that he
(Mumbi Ngugi J) on 12th June 2014, that was a charlatan, a fraudster and a malicious
dismissed a preliminary objection filed by person, which exposed him to ridicule,
62
Cradle (The Children Foundation) suing as trustee through Geoffrey Maganya v Nation Media Group Limited, High Court Judicial
Review Miscellaneous Application No. 217 of 2011.
63
(2014) eKLR.
64
Baobab Beach Resort and Spa Limited v Duncan Muriuki Kaguuru & another, [1], [2].
86 AUGUST 2024
embarrassment and distress, as well as
harming his business.65
65
Baobab Beach Resort and Spa Limited v Duncan Muriuki Kaguuru & another, [2].
66
Baobab Beach Resort and Spa Limited v Duncan Muriuki Kaguuru & another, [7], [8].
67
Anthony Miano & others v Attorney General & others [2021] eKLR, [29], [33].
AUGUST 2024 87
Constitutional Court of South Africa
not, although all the doctrines are core However, constitutional avoidance operates
principles of judicial restraint.68 Ripeness when a court is properly seized with a
relates to the timing of the presentation matter but chooses not to determine it on
of a dispute for adjudication such that the ground that the matters raised therein
courts would normally refuse to adjudicate are amenable to resolution through the
matters that have not properly crystallized application of ordinary law rather than
into justiciable disputes.69 On the other the Constitution. The departure between
hand, the doctrine of exhaustion serves the avoidance and exhaustion is that ‘whereas
purpose of ensuring that a litigant follows the doctrine of exhaustion is limited to
the prescribed procedure for addressing alternative mechanisms outside of the
his/her grievances.70 In other words, court system, the principle of avoidance
exhaustion ensures the postponement of includes the courts as part of the
judicial consideration of matters to ensure alternative processes for legal redress’.71 It
that a party first seeks redress within the follows therefore that by wrongly linking
mechanisms in place for resolution outside constitutional avoidance to the doctrines
the Courts. of exhaustion and ripeness Kenyan courts
68
Heinz Klug, ‘Judicial Training and the Role of Judges in a Constitutional Democracy' (2018) 1 South African Judicial Education
Journal 1, 17.
69
National Assembly of Kenya & another v Institute for Social Accountability & 6 others, Nairobi Civil Appeal 92 of 2015 [2017] eKLR [73].
70
Speaker of National Assembly v Karume [1992] KLR 21
71
Busia Sugar Industry Limited v Agriculture and Food Authority & 2 others [2024] KEHC 1099 (KLR), [93].
88 AUGUST 2024
as seen in the Uhuru, Aliela, and Brookside law therefore Kenyan courts cannot skirt
cases squandered the opportunity of constitutional values and the Bill of Rights
‘infusing constitutional values and rights in by dangling constitutional avoidance on
private law matters thereby working against litigants. The point is that under the current
the goal of imbuing the legal system with constitutional dispensation, all legal issues
the ideals and aspirations that underpin the are constitutional. In that regard, Cameron
Bill of Rights’.72 J argued in Jordaan that ‘far from avoiding
constitutional issues whenever possible, this
In any event, the avoidance canon Court (South African Constitutional Court)
as expressed in Mhlungu related to has emphasised that virtually all issues –
the jurisdiction of the South African including the interpretation and application
Constitutional Court under the interim of legislation and the development and
Constitution. For that matter, only cases application of the common law – are,
where there was a palpable violation of ultimately, constitutional’.76
Constitutional rights could be used to invoke
the Constitutional Court’s jurisdiction. VI. Conclusion
Subsequently, only constitutional issues
reached the Constitutional Court. If The total nature of the Constitution of Kenya
anything, the South African Constitutional implies that no legal dispute is beyond its
Court in Jordaan v City of Tshwane,73 reach. Therefore, when presented with
disavowed Kentridge J’s statement ‘where disputes under private law courts are under
it is possible to decide any case without an obligation to read the provisions of
reaching a constitutional issue, that the private law in light of constitutional
course should be followed’.74 The context values and rights to ensure that they do
of Mhlungu was abandoned under the not contradict or subvert constitutional
final South African Constitution when the rights. If anything, the supremacy clause
Constitutional Court became the apex court in the Constitution implies that ordinary
on all matters such that in the current law (legislation and the common law)
dispensation, 'constitutional approaches cannot be elevated above the Constitution
to rights determination generally enjoy thus in all legal disputes it cannot assume
primacy’.75 a subsidiary role following constitutional
avoidance. The change brought by the
The changing views of the Kenyan courts Kenyan Constitution therefore envisages a
on the application of fundamental rights primacy of constitutional rights approach
in the private sphere are exemplified by to adjudication limiting the application
the Cradle, Jemimah Wambui Ikere, and of constitutional avoidance to Kenya.
Baobab Hotel cases. This points to the Penultimately, the avoidance canon runs
willingness by the Kenyan courts to align contra to the letter and spirit of the
private law with constitutional rights Constitution of Kenya.
thereby enabling private law to evolve in
ways that make it more consistent with Ronald Odhiambo Bwana studies LL.B at Mount
the values of the present generation. Kenya University, Parklands Law Campus.
Besides, constitutional values permeate all
72
Khobe (n 12), ‘From constitutional avoidance to the primacy of rights approach to adjudication in Kenya’, 179-180.
73
[2017] ZACC 31, [6].
74
Klug (n 61), ‘Judicial Training and the Role of Judges in a Constitutional Democracy' (2018), 19.
75
Jordaan v City of Tshwane Metropolitan Municipality [2017] ZACC 31, [7], [8].
76
Ibid, [8].
AUGUST 2024 89
The cloudflare firing: A turning
point for workplace privacy and
data protection in Kenya?
By Esther N. Wasike
90 AUGUST 2024
Data protection in Kenya is governed by the Data Protection Act, 2019, which came into force on November
25, 2019. This Act provides a framework for the protection of personal data and privacy and aligns with global
standards like the EU’s General Data Protection Regulation (GDPR).
AUGUST 2024 91
The Kenyan government and various organisations continue to work on improving data protection practices
and raising awareness about the importance of data privacy. Compliance with the Data Protection Act is crucial
for organisations to build trust with customers and avoid legal and financial repercussions. ary principles in
data protection. Organisations must obtain explicit and informed consent from individuals before collecting,
processing, or sharing their personal data.
the other hand, focuses on criminal offenses, made for a legitimate purpose, such as
potentially applicable if the recording is documenting evidence of unfair dismissal or
defamatory, but doesn't directly address discrimination, it might be considered legal.
the act of recording itself. This legislative Even so, such evidence should be obtained
silence highlights the need for a clearer legal in a manner that does not violate any right
framework to navigate the complexities of or fundamental freedom in the Bill of Rights
the digital workplace and protect the privacy as such renders the trial unfair. This is as
interests of employers and the employees’ provided for under Article 50(4) of the
right of expression. Constitution.
92 AUGUST 2024
Data protection is increasingly crucial in the digital age, where vast amounts of personal information are collected,
processed, and shared. Proper data protection helps build trust between organizations and individuals and
ensures compliance with legal requirements.
Despite the general rule that illegally As Kenya's digital landscape evolves, it
obtained evidence is admissible provided is crucial to develop clearer guidelines
that it is relevant and does not cause and regulations on workplace recordings
injustice to the accused, the ghost continues and social media use. Striking a balance
to haunt jurisprudence as regards civil between transparency and privacy will
cases. Courts have been making different require existing data protection regulations
pronouncements on the matter, with some to be clarified or expanded to address the
holding that the rule on illegally obtained specific issue of workplace recordings and
evidence applies only to criminal cases employer privacy. Furthermore, in addition
where judges have discretion while others to amendments on the employment and
holding that in civil cases judges have no data privacy legislations, employers could
discretion but to admit it. consider including clauses in employment
contracts regarding recording restrictions
Sharing a recording of a layoff on social during disciplinary or termination meetings.
media without the consent of all parties
involved is a clear violation of the Data While there is a need for more legal
Protection Act. It infringes on the privacy clarity in this area, it's important to
rights of the individuals involved and remember that recording and sharing
could also be considered defamation if personal conversations, especially without
it harms the reputation of the employer. consent, can have serious legal and ethical
The Pietsch incident highlights the tension repercussions. It is advisable to exercise
between employee transparency and caution and prioritise open communication
employer privacy more so in Kenya. While with all parties involved.
employees may have a right to document
their experiences, especially in situations
Esther N. Wasike is a student at the University of Nairobi
of unfair treatment, employers also have a School of Law. She is also a legal assistant at Simba and
right to protect confidential information and Simba Advocates.
maintain a certain level of privacy in their
internal processes.
AUGUST 2024 93
A “pro-family” approach to the
irretrievable breakdown of marriages
in Kenya (I): Stating the problem
in which marriages can be dissolved only
upon proof of a matrimonial fault by either
By Adrian Nyiha of the spouses. The last ground, however,
is (perhaps intentionally) nebulous. In the
absence of sufficient proof of a matrimonial
In a judgment delivered at the High Court fault, the courts have tended to rely on the
at Nakuru on 18th April 2024, the court ground of “irretrievable breakdown” of
dissolved the Hindu marriage between NHS the marriage (whether or not either of the
and TSS. As a justification for this decision, parties brought it forward as a ground for
the Honorable Judge SM Mohochi, stated its divorce) to dissolve the marriage because, in
reasoning in the following succinct terms: the words of the Honorable Judge Wananda
“No man and woman can be bound by law in the High Court at Eldoret, “the couple
or religion where no love and feelings exist no longer benefits from or enjoys any
in holding the union of marriage together.” companionship”. In effect, this development
This single statement seems to encapsulate has transformed Kenya’s divorce system
the increasingly common view of courts into a no-fault divorce system, in which a
presented with divorce matters. marriage is dissoluble almost at the will
of the parties, culminating in the brief
The Marriage Act of 2014 provides for statement of Honorable Judge Mohochi.
five grounds of divorce: adultery, cruelty,
desertion, exceptional depravity, and Of course, Section 66 (6) of the Marriage
“irretrievable breakdown of the marriage”. Act lists conditions that a court may consider
The first four of these grounds belong to in finding that a marriage has irretrievably
a fault-based divorce system, that is, one broken down, including the first three
94 AUGUST 2024
grounds of divorce or matrimonial faults no hope of resumption of spousal duties”.
(adultery, cruelty, or desertion for a duration In a further attempt to clarify the meaning
of at least three years). The provision goes of “irretrievable breakdown”, the Court
on to add to this list “separation” for two of Appeal made a non-exhaustive list of
years, incurable insanity, willful neglect considerations that a court may take into
of the other spouse for at least two years, account in determining whether a marriage
and imprisonment of one spouse for a has irretrievably broken down:
term of seven years or more. However,
even in such cases, it is not always clear • the length of the period of physical
whether a marriage has irretrievably broken separation,
down. There do exist situations where, • the levels of antagonism, resentment,
for example, couples have reconciled or mistrust between the parties,
after one has committed adultery, or after • the concern of the parties for each
separation. The mere existence of these other’s emotional needs,
factual situations is not factually sufficient • the commitment of the parties to the
for a court to make a ruling that a marriage marriage,
is unsalvageable. Moreover, the provision of • the chances of the parties resuming
the Act adds to the ambiguity by adding that their “spousal duties”, and
“a marriage has irretrievably broken down if • the chances of the marriage ever
[there is present] any other ground that the working again.
court deems appropriate”.
Yet even then, it is not at all clear whether
In Kamweru vs Kamweru [2000] eKLR, a or when a marriage can be said to be
much-cited decision, the Court of Appeal “irretrievably” broken down, to have no
defined irretrievable breakdown as “the possible recourse by which to achieve
situation where one or both spouses are reconciliation, especially given the fact
no longer able or willing to live together that a marriage is built on the free (and,
and, as a result, the husband-and-wife therefore, unpredictable) decisions of a
relationship is irreversibly destroyed with man and a woman. And this lack of clarity
The Marriage Act, 2014 is a comprehensive piece of legislation in Kenya that governs various aspects of marriage,
including its formation, registration, and dissolution. The Act aims to provide a unified framework for marriage in
Kenya, accommodating different religious, cultural, and personal practices.
AUGUST 2024 95
is especially glaring when the parties have natural and fundamental unit of society and
made no attempts at reconciliation— the necessary basis of social order, and shall
without such attempts, it is difficult to enjoy the recognition and protection of the
say with any adequate level of certainty State.”
that reconciliation is impossible. However,
precisely such a lack of clarity is perpetuated This is not just an arbitrary dictum of
by the interpretation of the courts, a the Executive, or of the drafters of the
number of which deem marriages to be Constitution.
irretrievably broken down without deeming
it necessary to demonstrate any attempts Regarding the status of the family as the
at reconciliation. In fact, on 25th January biological foundation of society if founded
2024, the High Court at Kisii ruled in SKN on stable marriage, historical evidence
vs SSS [2024] eKLR that, when judging testifies to the truth of this claim. For
a marriage to be irretrievably broken example, in the Roman Empire, the family
down, it is simply unnecessary for a court was characterised by frequent divorce and
to satisfy itself that parties have tried to the (socially accepted) access of men to
salvage their union. Such an interpretation prostitutes and concubines. As a result,
of the provision seems erroneous, and childlessness prevailed and men and
much more so given the historical and women had recourse to available methods
contemporary precedents of unlikely marital of abortion, contraception, and even
reconciliations that even a cursory Google infanticide – which was most common.1
search will unearth. In light of this, it
appears that there is indeed reason to place Empirical evidence likewise demonstrates
much more hope in the marital promise of the enduring truth of the claim in our day
“Till death do us part” than the courts have and age. Changes in fertility or marriage
been doing recently. behaviour cause changes in the other
behaviour.2
In addition to this, there is a second and
complementary reason why it is erroneous to This fact also has economic implications.
deem a marriage to be irretrievably broken The natural fecundity of the marital union
down even in the absence of attempts to produces labour, one of the three main
salvage it. As the National Family Policy factors of the production of wealth. Indeed,
of October 2023 notes, the family is the at present, countries with low fertility rates
fundamental unit of society, both biologically rely, to an increasing extent, on immigrant
(through procreation, it is the source of new labour – that is, on labor produced by
members of the society) and socially (the countries with high fertility rates.3 The
family is the first school of social virtues fecundity of the marital union, then, is
such as fraternity and trust, without which necessary for the creation of wealth.
a society degenerates into a conflictive mass
of individuals). For this reason, the State Moreover, stable marriage is an
has an interest in protecting and promoting indispensable agent for an upright
the family and, indeed, a duty to do so. In distribution of wealth—this is an economic
recognition of this duty, Article 45 (1) of the and a moral implication. In a family
Constitution states that: “The family is the animated by the unconditional love of
1
Carlson, A. C. and Hurtado, R. (2022). The end of liberalism? The renaissance of the natural family? Conocimiento y Acción 2(3).
pp. 11-22.
2
Stone, L. and James, S. (2022, October). Marriage Still Matters: Demonstrating the Link Between Marriage and Fertility in the 21st
Century. Institute for Family Studies. https://ifstudies.org/ifs-admin/resources/reports/marriagestillmatters-final.pdf
96 AUGUST 2024
the spouses for each other, the children
too are loved unconditionally as the fruit
of the spouses’ union. Thus, the children
learn that people are not instruments to
be used but instead persons to be affirmed
in one’s action – including (eventually) in
one’s economic activity – even though this
requires sacrifice. They learn to put others
above themselves.4 Without this, children,
and the workers they will eventually
become, may easily lack the desire to
safeguard the vulnerable: the poor, the
elderly, the disabled, etc. They will also tend
to place higher values on so-called “goods In Kenya, the breakdown of a marriage can involve
various legal processes and considerations depending
and services” that reduce others to objects of on the nature of the marriage and the circumstances
use and accumulate self-centered material leading to its dissolution. The Marriage Act, 2014
wealth or pleasure. This shapes economic and related legislation provide the framework for
addressing marriage breakdowns, including divorce,
markets according to the mould of self- separation, and related matters.
centeredness.5
Rather than make the summary declaration and divorce, the details of which I will lay out
that a marriage is irretrievably broken down in the following articles in this series. Such an
even in the absence of attempts to reconcile, approach would both satisfy the requirements
the courts should attempt to encourage of the new National Family Policy and affirm,
the parties to pursue some form of with a well-grounded hope, that many
reconciliation, in their own best interest, for marriages that are dissolved can, in fact, be
the benefit of society, and in the fulfillment salvaged, and be stronger as a result of the
of the constitutional duty of the State to storms that assail them.
recognise and promote the family.
Disclosure: A substantial portion of this
Although the unconditional union of first part of the series has appeared on
marriage often entails difficulties, it the blog of the law firm at which Adrian
leads to profound fulfillment and lasting works, Nyiha, Mukoma, & Company
satisfaction – much more so than marriage Advocates.
as a conditional union. The State should
aim to help married couples overcome their Adrian Nyiha holds an LL. B from Strathmore University,
challenges and achieve enduring happiness and is also a candidate for a Masters' in Human Rights at
the University of Navarre (Spain). He has an avid interest
rather than undermine the marriage bond. in philosophy and African history and is the Managing
Editor of The AfroDiscourse, an online publication that
For this reason, I wish to propose that courts examines the worldviews of African peoples from a
philosophical perspective.
pursue a “pro-family” approach to marriage
3
Cave, D., Bubola, E., and Sang-Hun, C. (2021, May 22). “Long Slide Looms for World Population, With Sweeping Ramifications.”
The New York Times. https://www.nytimes.com/2021/05/22/world/global-population-shrinking.html
4
Alvira, R., and Hurtado, R. (2017). The truth about poverty and wealth: Reflections on the centrality of the natural family in
economics and politics. Metafísica y persona: Filosofía, conocimiento, y vida [Metaphysics and the Person: Philosophy, Knowledge, and
Life], 9(18), pp. 101-113.
5
Alvira, R., and Hurtado, R. (2017). The truth about poverty and wealth: Reflections on the centrality of the natural family in
economics and politics. Metafísica y persona: Filosofía, conocimiento, y vida [Metaphysics and the Person: Philosophy, Knowledge, and
Life], 9(18), pp. 101-113.
AUGUST 2024 97
The unconstitutionality of
the Kenyan Assembly and
Demonstration Bill 2024
provision is unconstitutional. It has long
been accepted in jurisdictions across
By Gautam Bhatia the world that in certain circumstances,
expressive rights (free speech, freedom
of assembly, freedom of association) are
meaningful only if individuals are able to
The Kenyan National Assembly is exercise them while protecting their privacy.
presently considering The Assembly This is especially true in situations where
and Demonstration Bill 2024. The people have a well-founded fear of reprisal,
consideration of this Bill has assumed from the State or otherwise. Thus, in NAACP
specific urgency in light of the ongoing vs Alabama, the US Supreme Court famously
nationwide protests around the Finance held that the NAACP need not reveal its
Bill 2024. This blog post will argue membership register to the authorities,
that key provisions of The Assembly as doing so in a deep South State such as
and Demonstration Bill ["the Bill"] are Alabama would leave its members open to
unconstitutional. Under the guise of State and non-State persecution. In other
imposing neutral time/place/manner words, the freedom of association included
regulations, the Bill in effect imposes within it the freedom to associate without
disproportionate restrictions upon the making yourself transparent to the State.
fundamental right to assembly and to
demonstrate, protected by Article 37 of the Especially with respect to the mask
Kenyan Constitution. mandate, there is direct precedent. In 2019,
the Government of Hong Kong passed the
This post will focus upon three sets of Prohibition on Face Covering Regulation
provisions: the "mask mandate", the "liability ["PFCR"] under the colonial-era Emergency
clauses", and the "permissions clauses" (the Regulations Ordinance. Let me start by
names are mine). saying that when the closest precedent
to what you are doing is a colonial-era
The mask mandate Emergency Ordinance, you may want to
stop and reflect on what you're doing! That
Section 11(c) of the Bill prohibits any apart, the PFCR was evidently targeted
person, at an assembly or a demonstration, at the Yellow Umbrella protests that were
from "wear[ing] a mask or any other sweeping Hong Kong at the time. It was
apparel or item which obscures his face promptly challenged before the High Court.
or prevents his identification." The intent In a detailed and closely reasoned judgment,
of the provision is obvious: it is to make the High Court struck down the PFCR as
protesters transparent to the State, and deny being a disproportionate and excessive
them anonymity in the exercise of their violation of the freedom of expression. At
constitutional rights under Article 37. the heart of the High Court's judgment was
Put this way, it is also obvious that the the doctrine of proportionality which - as
98 AUGUST 2024
we know - is codified in Article 24(2) of the justify the application of the restrictions, the
Constitution of Kenya, and is accepted as the lack of robust evidence on the effectiveness
doctrine that is to be applied in adjudicating of the measure, and lastly the importance
the validity of State-imposed restrictions that the law attaches to the freedom of
upon fundamental freedoms. expression, freedom of assembly, procession
and demonstration, and the right to privacy,
The Government of Hong Kong attempted we do not consider the restrictions of rights
to justify the face covering ban on the imposed by s 3(1)(b), (c) and (d) to be
ground that it would deter those who would proportionate to the legitimate aims sought
otherwise use the garb of anonymity to to be achieved by the imposition of those
break the law, and also ease the task of law restrictions.
enforcement. No doubt, the Government
of Kenya will deploy similar arguments to As I have argued in my analysis of the
defend the Bill. When asked why the ban was judgment, the High Court decided the
indiscriminate in nature - that is, it targeted way it did despite according substantial
both law-breakers and law-abiding citizens deference to the State, and acknowledging
- the Government of Hong Kong essentially that the existing spate of protests had
argued that in the course of protests, specific turned violent on occasion. Despite this, the
targeting of law-breakers was impossible, High Court found the blanket nature of the
and that law-breakers tended to infiltrate face covering ban to be unconstitutional.
law-abiding protesters, and influence them to It is important to note that neither the
break the law as well. Therefore, everyone's factual nor the doctrinal conditions apply
freedom had to be restricted. in Kenya: there is no "Emergency-like"
situation that exists (the protests have
The High Court gave short shrift to this been entirely peaceful), and after the 2010
argument. It categorically acknowledged Constitution, the Kenyan Courts do not
that protesters had legitimate reasons to adopt a deferential attitude on the question
wear face coverings at protests: in particular, of State interference with civil rights. The
the fear of reprisals and retribution. High Court's judgment - and its use of the
The ban, thus, interfered with their proportionality doctrine - therefore applies
constitutional rights, and it entirely failed to with even greater force to our analysis of the
achieve the State's goals in a proportionate Kenyan Bill. It is important to note, as well,
manner. The High Court's reasoning can that while the Hong Kong Court of Appeal
be crystallised in paragraph 166 of its eventually read down the High Court's
judgment, in words that are squarely judgment, the Kenyan Courts' use of the
applicable to the Kenyan Bill: proportionality doctrine is far closer to the
High Court's articulation of it. It is the High
… having regard to the reach of the Court judgment, therefore, that constitutes
impugned restrictions to perfectly lawful more persuasive precedent.
and peaceful public gatherings, the width of
the restrictions affecting public gatherings In my submission, therefore, the "mask
for whatever causes, the lack of clarity as mandate" is very clearly unconstitutional.
regards the application of the restrictions
to persons present at the public gathering The liability clauses
other than as participants, the breadth of
the prohibition against the use of facial Section 8(2)(b) of the Bill authorises the
covering of any type and worn for whatever Regulating Officer to impose, as part of the
reasons, the absence of any mechanism for conditions for allowing a demonstration,
a case by case evaluation or assessment of "the payment of the costs of cleaning up
the risk of violence or crimes such as would which may arise out of the holding of the
AUGUST 2024 99
assembly or demonstration." Section 12(1) specific mandate to be disruptive (or even
stipulates that in the case of damage to violent), and thus deprive the protest of
property in the course of an assembly or legitimacy. This is not conspiracy theorising,
demonstration, "every organisation and but documented fact, across countries and
every person participating" in the assembly times.
shall be "jointly and severally liable" for
the damage, unless they can satisfy certain In this context, the limits of what the
conditions (that they did not "permit" the organisers of a protest can reasonably
acts, that the acts were beyond the "scope" do is to clearly and publicly spell out
of the assembly, or that "reasonable steps" the objectives of the protest, and its
were taken to prevent the acts). Notably, the peaceful nature. The mischief of the Bill
section also stipulates that the mere fact that lies in the fact that via the proviso that
the person or organisation "forbade" the act we have discussed above, it specifically
would not be sufficient proof that they took states that doing so will not be sufficient
reasonable steps to "prevent" it. proof of all reasonable steps having been
taken to prevent damage to property!
I suggest that these provisions are Given that organisers cannot reasonably
designed to indirectly suffocate the right do more without the entire point of the
to demonstrate in two ways: (i) first, by demonstration being defeated, the chilling
targeting a demonstration's organisers; and effect is evident.
(ii) secondly, by imposing a set of conditions
that are fundamentally incompatible with Here, the judgment of the South African
how public protests happen on the ground. Constitutional Court in Commercial
When you combine (i) and (ii), what you get Stevedoring Agricultural and Allied
is a chilling effect upon people's willingness Workers' Union vs Oak Valley Estates
to sign up as the formal organisers of assumes significance. In this case, the
a protest. And since the Bill requires Constitutional Court rejected a general
protests to have registered organisers as a interdict imposed by the Labour Court upon
precondition for allowing them, what you certain striking workers on the basis that
end up with is a chilling effect on protests. doing so would cast a chilling effect upon
striking. The Constitutional Court held that
As everyone who has participated, witnessed, a clear link would have to be established
or read about a protest or demonstration between an interdict and specific unlawful
knows, these are inherently fluid events. action carried on by a particular participant
In particular, they are fluid with respect in the strike. In reasoning that is directly
to participants. When a person or an relevant to our analysis of the Kenyan
organisation gives a call for a protest, it is Bill, in para 23, the Constitutional Court
not akin to a guest list at a State banquet, observed that:
where liveried officials will check the ID
of everyone attending. Indeed, the entire If mere participation in a strike or protest
point of a demonstration will be defeated if carries the risk of being placed under an
you started checking IDs on the street. The interdict, this might well serve to deter
fluidity of demonstrations means two things: lawful strike and protest action. Moreover, if
first, that those who are formally "organisers" a participant in a strike or protest is placed
cannot control the behaviour of everyone under an interdict, despite having conducted
who attends; and secondly, demonstrations herself lawfully, she might well refrain from
invariably have agent provocateurs, or what further strike action out of the justifiable
are colloquially known as "spoilers": that is, fear of being swept up in contempt
individuals who are there at the behest of proceedings in the event that other persons
other parties (including the State), with a in the crowd act in breach of the interdict.
Section 6(2)(c), therefore, suffers from the about The Assembly and Demonstration
classic vice of overbreadth. It also falls foul Bill 2024. It is an unconstitutional
of the Grayned vs Rockford dictum that infringement of Article 37, albeit sought to
laws should not be giving implementing be achieved through a web of subtle and
officials (especially the police) wide swathes indirect provisions: preventing masks, or
of discretion (in this case, the discretion to making organisers liable for things they
deny permission for non-compliance with cannot prevent (and thus killing protests
section 6). It is therefore unconstitutional. altogether). That said, Kenyan constitutional
doctrine has enough tools in its arsenal to
As a final point, we may also note that the strike down this Bill, should it become law:
Bill's provision of imprisonment for non- let us see what happens.
compliance is also disproportionate. The
onus is upon the State to establish why civil This article was first published by the
liability for violating the provisions of the Indian Constitution Law and Philosophy
Bill would not be sufficient. This - I would Blog available at https://indconlawphil.
suggest - it will not be able to do. wordpress.com/2024/06/23/the-
unconstitutionality-of-the-kenyan-
Conclusion assembly-and-demonstration-bill-2024/
is established that the GLGA is ‘inconsistent’ under the GLGA. The clauses of Section
with the provisions of Limitation Act, 9 are pari materia to those of Andhra
it would not deter anyone from simply Pradesh, Karnataka and Assam. Hence, the
lodging a criminal complaint because the task before the Court was that in absence
Limitation Act does not apply to criminal of presidential assent, whether Section 9
proceedings. Hence, the real question is: survives as it falls under Entry 13 of List III
Whether, by creating “land grabbing” a (which states: Civil procedure, including
criminal offence, the State has circumvented all matters included in the Code of Civil
the Limitation Act which intended such Procedure…). However, the court only goes
disputes to be brought within 12 years? on to note that under Section 9 of the Civil
When no limitation period is prescribed Procedure Code, the Civil Court can be
in GLGA, it runs contrary to the limitation refrained from trying cases if it is “impliedly
period prescribed in the Limitation Act, or expressly barred”. The court fails to
which falls under Entry 13 of List III. Hence, reason why Section 9 of the GLGA is not
a presidential assent is required to solve the inconsistent with Civil Procedure Code.
inconsistency, or it needs to be struck down.
However, the Court fails to consider the The third provision that comes under the
same and simply accepts the Savings Clause Court’s scrutiny is Section 15 of the GLGA,
as the saviour of the provision. which states that, “the provisions of this Act
shall have effect notwithstanding anything
The second provision scrutinised by the inconsistent therewith contained in any other
court is Section 9(2) of the GLGA, which law for the time being in force or custom,
essentially takes away the jurisdiction usage or agreement or decree or order of a
from the Civil Courts. It states that cases court or any other tribunal or authority.”
involving “land grabbing” – disputes of title, This provision is also pari materia to the
ownership and interest, are to be triable by Andhra Pradesh and Karnataka statutes, but
the Special Court. Section 9(3) states that not to Assam, where the law is applicable to
the special court, in addition to try civil private lands as well.
cases, has jurisdiction to try all offences
By Gautam Bhatia