2022 Yearbook

Background

The Ministry of Education is responsible for the Government’s national policies and programmes that help Kenyans access quality and affordable education at school, post-school, higher education and academic research institutions.

The Ministry derives its mandate from the Constitution of Kenya, Chapter Four, Articles 43, 53, 54, 55, 56, 57 and 59, with provisions on children’s right to free and compulsory basic education – including quality services – and to access education institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person.

This includes the use of sign language, braille or other appropriate means of communication, and access to materials and devices to overcome constraints arising from the person’s disability.

There are also provisions for the youth to access relevant education and training; employment; participation and representation of minorities and marginalised groups in governance and other spheres of life; special opportunities in educational and economic fields; and special opportunities for access to employment.

The rights of minorities and marginalised groups to reasonable access to water, health services and infrastructure are also enshrined, as it is incumbent upon the Government to develop a culture of human rights, promote gender equality and equity, and facilitate gender mainstreaming in national development.

Educational and training functions are shared between the National and County governments, as contained in Schedule 4 of the Constitution. Functions of the National Government are: education policy; standards; curriculum; examinations; granting of university charters; universities; tertiary educational institutions; institutions of research; higher learning, primary schools; special education; secondary schools; special education institutions; and promotion of sports and sports education.

Functions of the County governments in relation to education are: pre-primary education; village polytechnics; home-craft centres; farmers training centres; and childcare facilities.

State departments under the Ministry of Education

Vocational and Technical Training

It oversees the following:

1. Technical and Vocational Education Policy Development and Management.
2. Technical Vocational Education Training.
3. Management of Institutes of Science and Technology.
4. Management of national polytechnics.
5. Management of educational training institutes (TVETs).
6. Management of technical training institutes.
7. Youth polytechnics and management of vocational training.
8. Apprenticeship and training management of vocational training.

Early Learning and Basic Education

It oversees the following:

1. Basic education (early childhood, primary and secondary schools) policy management.
2. Primary and secondary education institutions management.
3. School administration and programmes.
4. Registration of basic education and training institutions.
5. Administration of early childhood and pre-primary education, standards and norms.
6. Management of education standards.
7. Management of national examinations and certification.
8. Curriculum development.
9. Quality assurance in education.
10. Representation of Kenya in the United Nations Educational, Scientific and Cultural Organisation (Unesco).
11. Adult education management.

University Education and Research

It oversees the following:

1. University education policy.
2. University education management.
3. Management of continuing education (excluding TVETS).
4. Public university management.
5. Education research and policy.

Post Training and Skills Development

It oversees the following:

1. Institutional framework, national sectoral and workplace strategies to develop and improve the skills of the Kenyan workforce and to integrate those strategies within the National Qualifications Framework.
2. Skills development among actors and establishment of sector-specific skills council.
3. Establishment and management of institutional frameworks for linking industry skills development and training.
4. Implementation of the Industrial Attachment Policy.
5. Harmonisation of skills training at all levels of training.
6. Management of the National Skills Development Fund.
7. Implementation of the National Apprenticeship Policy.
8. Development and implementation of Employment Database System with linkages to all cadres of graduates and jobs in the market.
9. Assessment of industrial training, testing and occupational skills and awarding certificates, including Government Test Certificates.
10. Registration and approval of professional bodies.
11. Improvement of productivity in the workplace and competitiveness of employers.
12. Promotion of self-employment.
13. Delivery of social services.

Key data for FY 2019-2020

The new Competency Based Curriculum (CBC) covering pre-primary and primary Grades 1, 2 and 3 was rolled out, up to primary Grade 4, in 2020.

The teacher education curriculum framework has been aligned with the CBC and all primary teacher education (P1) colleges have been upgraded to offer diploma courses from September 2020. The Government is implementing a policy of 100 percent transition of all pupils from primary to secondary education.

Learners in primary and secondary schools have been registered in the National Education Management Information System (NEMIS) and efforts are being made to ensure every child has a birth certificate to enroll in the system.

Spending by the Ministry was projected to increase by 9.2 percent to Sh496.8 billion in 2019-20 from Sh455.1 billion in 2018-19. Recurrent expenditure was expected to go up by 9.4 percent from Sh428.2 billion in 2018-19 to Sh468.4 billion, and development expenditure by 5.5 percent to Sh28.3 billion over the same period.

The total number of schools dropped by 2.5 percent to 89,337. Primary and secondary schools declined by 14.7 percent and 8.2 percent to 32,344 and 10,463, respectively.

The number of pre-primary schools increased by 10.0 percent to 46,530 in the same period, and Technical and Vocational Education and Training (TVET) institutions by 10.3 percent to 2,191. The number of universities was constant at 63.

There were 2.7 million pupils enrolled in pre-primary 1 and 2 in the period under review, but the total enrolment in primary schools dropped by 4.5 percent to 10.1 million. Secondary schools saw total enrolment jump by 10.8 percent to 3.3 million in 2019 from 2.9 million in 2018.

There were 31,737 Kenyans enrolled as teacher trainees, a drop of 25.1 percent, while that of TVET institutions increased by 19.7 percent to 430,598 in 2019.

The number of students enrolled in universities dropped by 1.9 percent to 509,473 in 2019-20 compared to 519,462 in 2018-19.

The Ministry of Education saw its total spending rise by 9.2 percent to Sh496.8 billion in 2019 from 455 billion in 2018. Total recurrent expenditure was expected to increase by 9.4 percent to Sh468.4 billion in 2019-20, accounting for 94.3 percent of the total expenditure of the Ministry.

Ministry of Education Expenditure (Sh Million) 2018/19 2019/2020

Recurrent expenditure

• State Department for Early Learning and Basic Education 87,966.70 89,846.99
• Teachers Service Commission 240,738.30 252,651.67
• State Department for University Education 91,661.66 108,723.07
• State Department for Vocational and Technical Training 7,777.79 17,100.86
• State Department for Post Training and Skills Development 56.16 123.40

Total expenditure – 428,200.60 468,445.99

Development expenditure

• State Department for Early Learning and Basic Education 7,462.33 8,378.88
• Teachers Service Commission 16.69 945.00
• State Department for University Education 10,155.0 9,235.23
• State Department for Vocational and Technical Training 9,245.20 9,787.14

Total expenditure – 26,879.24 28,346.25

Source: National Economic Survey 2020

The number of girls enrolled in Standard 8 went up by 9.2 percent to 549,200 in 2019, while that of boys increased by 5.0 percent to 529,700 over the same period. The survival rate at Standard 5 for boys stood at 93.6 percent in 2019 while that of girls was 97.6 percent in the period under review.

The pupil completion rate (PCR) was 85.4 percent in 2019, from 84.2 percent recorded in 2018, while primary to secondary transition rate (PSTR) rose by 2.2 percentage points to 85.5 percent in 2019 from 83.3 percent in 2018. The number of candidates who sat for KCPE in 2019 was 1,088,989, out of which 1,072,867 were to enroll in Form 1 in 2020, raising the PSTR to 98.5 percent for the year.

The total number of teacher trainees declined by 25.1 percent to 31,737 in 2019. Teacher trainees enrolled in public primary (P1) colleges fell by half to 11,111 in 2019. Admission of students to all public primary (P1) colleges was stopped to enable the latter’s upgrading to offer diploma courses. As a result, the total number of diploma teacher trainees dropped by 5.6 percent to 2,037 in 2019 from 2,158 in 2018.

TVET institutions increased student enrolment by 19.7 percent to 430,598 in 2019 from 359,852 in 2018. Enrolment of students in national polytechnics went up by 35.5 percent to 102,078, while that of public technical and vocational colleges increased by 32.8 percent to 112,110 over the same period.

The Kenya Universities and Colleges Central Placement Service (KUCCPS) placed 89,488 students in public and private universities in 2019, an increase of 30.5 percent from 68,550 in 2018. The number placed in public universities rose by 28.8 percent in the period under review.

However, the decline in enrolment by candidates joining public universities through self-sponsored programmes dented total university enrolment, which declined by 1.9 percent to 509,473 in 2019 from 519,462 in 2018. Enrolment in public universities fell by 4.7 percent from 433,245 in 2018-19 to 412,845 in 2019-20.

Highlights of 2020 in Education Sector

National exams and schools reopening delayed by COVID-19

The Government restructured the calendar for national examinations and reopening of schools after new infections from the novel coronavirus 2019 (COVID-19) appeared to be on the upswing in July.

Saying that it would be difficult to control infections in primary and secondary schools, the Ministry opted to postpone all national examinations and push the reopening of schools to early 2021, although this will also be dependent on advice from health experts.

There will be no KCPE and KCSE examinations in 2020 because the current Standard 7 and Form 3 students will not be able to cover the curriculum load for five terms in one year to sit the examinations.

All pre-primary, primary and secondary school students will remain in their current classes when learning resumes in early 2021. This will apply to all children, including those in schools offering international curriculum.

“The 2020 school calendar year will be considered lost due to COVID-19 restrictions,” said Education Cabinet Secretary George Magoha. Affected were over two million pupils who were to sit secondary school and university entrance examinations at the end of 2020.

Instead, phased reopening of universities, colleges and vocational training institutions was scheduled for September, but will be subject to strict adherence to Ministry of Health guidelines on social distancing, sanitation and wearing of facemasks.

“The universities should continue holding virtual learning and graduations for students who have successfully completed their programmes and met graduation requirements set by their respective Senates,” said Prof Magoha.

President Uhuru Kenyatta ordered the closure of all learning institutions on 15th March 2020 as part of national measures to slow down COVID-19 infections. The Ministry moved quickly to comply and also unveiled virtual learning for children and youth through the national broadcaster KBC radio and via the internet to promote home-based learning.

The decision to reschedule national examinations and the reopening of schools was based on advice from the National Emergency Response Committee on coronavirus (NERCC) comprising public health specialists.

The Committee noted that schools are poorly equipped to promote Ministry of Health guidelines on social distancing, testing, hand washing and use of sanitisers and facemasks, which are necessary for safe reopening.

“Reducing physical contact in learning institutions by having fewer learners will have a greater impact on reducing COVID-19 cases and fatalities,” said Prof Magoha.

“Hand washing with soap, use of sanitisers, wearing of masks and monitoring of body temperature will be the minimum requirements for the health and safety of learners,” he noted.

And in July 2020, the CS said that only three teacher training colleges (TTCs) – Murang’a, Kericho and Asumbi – had put in place satisfactory COVID-19 containment measures as recommended by the Ministry of Health and the World Health Organisation (WHO).

The CS also made an appeal to parents with children in private schools to support the institutions as these rely solely on tuition fees to pay their teachers. Over 155,000 teachers work for private schools.

“I appeal to parents who are endowed financially not to allow private schools to disintegrate and affect the teachers. Ordinarily, the schools perform better and their teachers also develop content,” said Prof Magoha.

He encouraged the schools to conduct online learning and discuss with parents ways of maintaining the institutions until schools reopen countrywide.

In July 2020, the State Department for Early Learning and Basic Education issued guidelines on health and safety protocols for reopening of basic education institutions amid the COVID-19 pandemic.

The guidelines cover the following:

• Class/cohort sizes adjusted to ensure adherence to social distancing. Education institutional programmes reworked to avoid learners and trainees from gathering at one place in big numbers.
• Use of facemasks by all learners and trainees, teachers/non-teaching staff and parents/guardians/visitors at all times within the school environment.
• Supply of adequate, clean running water, liquid soap/hand sanitisers.
• Temperature monitoring and record keeping.
• Institutional health and hygiene practices.
• Referral systems for the provision of mental health and psychosocial support for learners/trainees and staff members.
• Continued learning and review of schools’ daily routine.
• Procedure for handling suspected COVID-19 cases.

In preparation for reopening of educational institutions, heads of institutions are expected to carry out the following:

1. Build the capacity of institutional staff, learners, boards of management and parents on the management of COVID-19.
2. Ensure adequate clean, running water and sanitation facilities in the institution and procure water tanks where applicable.
3. Develop awareness messages and build the capacity of learners, teachers, non-teaching staff, parents and the entire institution’s community on key infection prevention and control measures and promote good hygiene practices.
4. Develop protocols on hygiene and social distancing measures before re-opening.
5. Stock up on key supplies, including disinfectants, liquid soap, non-touch thermometers, facemasks and first-aid kit.
6. Collaborate with sponsors of the institution to ensure provision of psychosocial and spiritual services.
7. Map an emergency health facility that is within 10km and collaborate with the County Government to have some health personnel assigned to the institution for regular health monitoring and sensitisation.
8. Carry out risk assessment for suitability – focusing on space, water, sanitation, provision of meals, and transport of learners using the risk assessment matrix provided by MoE, and develop mitigation measures. A multi-sectoral team will conduct assessment on the feasibility and readiness of institutions to ascertain the levels of preparedness using the mapping of readiness checklist provided by MoE.
9. Ensure compliance to guidelines for issuance of letters of compliance to the institutions.

Communicate to parents, teachers, learners, trainees on:

• Health and safety measures put in place to guarantee the health and safety of learners and trainees, teachers, non-teaching staff, parents and the entire community.
• Re-opening of the institution to be based on the calendar released by the ministry.
• Sensitise parents and the entire communities on their role in ensuring health and safety of learners, trainees and staff.
• Sensitise parents, teachers, non-teaching staff and community members on the importance of hygiene practices and social distancing, both at home and in learning institutions.
• Sensitise all learners using age and gender appropriate Information Education Communication materials on COVID-19 prevention and control.
• Constitute institutional COVID-19 response committees to coordinate response strategies comprising five members: one being a learner/trainee, a non-teaching staff, one BoM member and teachers.
• Ensure there is a designated room within the institution for use as a sick bay or for temporary isolation in case presumed incidents occur in institutions.
• Collaborate with the Ministry of Health through the Sub-County education office to map quarantine centres – at least one per Sub-County, in case of recurrence of the pandemic.

Ministry relaxes NEMIS requirement for FY 2019-2020

In January 2020, the Government opted to suspend the rule requiring the details of up to 10 million learners in primary schools to be captured in the National Education Management Information System (NEMIS) in order to receive their annual capitation for FY 2019-2020.

Learners require birth certificates to be enrolled in Nemis. Instead, the schools were ordered to do a headcount of learners to ascertain their numbers for disbursement of funds to the institutions, with the Government noting that it was not the fault of students who lacked birth certificates and so they should not be deprived of learning.

Without the suspension of the requirement, many learners would not have been able to register for national examinations.

Guidelines on new Competency Based Curriculum (CBC) released

In November 2019, the Ministry released guidelines to schools on how to implement the new Competency Based Curriculum (CBC) for Upper Primary – Grades 4, 5 and 6. Following the circular, all schools rolled out CBC in Upper Primary in January 2020 in Grade 4. The roll out for Grade 5 in 2021, and Grade 6 in 2022, will follow. The Ministry had already rolled out the CBC for Early Years Education (EYE) – Grades 1 to 3.

TSC gives salary increases, promotions to teachers

The Teachers Service Commission (TSC) informed teachers that they would get job group promotions and salary increases following Parliament’s approval of the Commission’s budget. Up to 100,000 teachers were set to benefit in primary and secondary schools. In addition, TSC said it would spend Sh2 billion to employ new teachers and address a shortage caused by the policy on 100 percent transition from primary to secondary schools. Another Sh1.2 billion would be used to hire 10,000 interns. Parliament also allocated Sh1 billion for CBC implementation.

Elimu Scholarship gives hope to needy students

The Ministry’s partnership with Equity Bank saw thousands of needy students benefit from the Elimu Scholarship Programme and proceed to Form One. Launched in January 2020, the programme is supported by the World Bank-funded Secondary Education Quality Improvement Project (SEQIP) and implemented by Equity Bank. Over 38,000 primary school graduates across the country applied for the scholarships.

The beneficiaries are from 110 sub-counties and informal settlements in 15 urban centres who attained 280 marks and above in the 2019 KCPE. However, orphans and children from vulnerable communities, and those with special needs and disabilities, who got lower marks were also considered.

Education CS Magoha said at the launch that the Elimu Scholarship Programme would support 18,000 children from needy and vulnerable households with full secondary school scholarships.

“I feel fulfilled as I launch this programme today. This is perhaps the most transformative programme for education in this country because needy children now have an opportunity to get an education,” said Prof Magoha.

He said the rigorous selection criterion was free, fair and transparent.

“I sat through complete interviews and went on home verification visits in Kisumu, Thika and Nyeri. What I saw is a committed selection team made up of education officers, local administrators and local communities, coordinated by Equity Bank,” said Prof Magoha.

The Government picked Equity Group as the implementing agency of the Elimu Scholarship Programme due to the success of the Equity Group Foundation’s Wings to Fly Programme.

The Equity Group Foundation executive chairman, Dr James Mwangi, urged the scholars to live up to the vision behind the programme.

“For every Elimu scholarship you have received, four applicants were competing for it. You need to be responsible with the opportunity you have been given and work hard in school so that you can realise your dreams and transform your families and communities,” he said.

The programme shows the Government’s commitment to promoting access to education by boosting the transition of students from primary to secondary schools.

Ministry partners with M-Pesa Foundation on sanitary towels for schoolgirls

Over 800,000 girls sitting the KCPE and KCSE final examinations in 2019 were provided with sanitary towels, thanks to a partnership between the Ministry and the M-Pesa Foundation.

The Ministry and the Foundation partnered with local manufacturers to produce the sanitary towels at an affordable cost. The Government is committed to giving sanitary pads to girls, apart from providing free primary education and free day secondary education.

The Government spends a total of Sh470 million under the National Free Sanitary Towel Programme to provide pads to at least 1.4 million girls for a period of four months every year.

“The Ministry decided to partner with M-Pesa Foundation to meet the demand so that all girls can receive sanitary towels,” said Prof Magoha.

Local manufacturers produce the pads, which are then distributed by the Ministry of Education at an estimated cost of Sh281 million. The girls receive a menstrual health package of three packets of sanitary pads, enough to last three months. They also get three pieces of underwear and a menstrual health information booklet.

Menstruation, which is a natural occurrence, often turns into a moment of shame for girls unable to afford sanitary pads. Some resort to using bits of mattresses, old clothes, leaves or even sheets of newspapers as pads.

Others are lured into sex in exchange for money to buy pads. Many also stay away from school or skip classes during their menstrual cycles. The programme is meant to restore their dignity.

The programme also trains schoolgirls on hygienic use and disposal of sanitary towels. Over 450 girls benefited from free sanitary pads in refugee camps.

Kenya, with a population of 47.56 million (2019 Census), covers 580,367 square kilometers of land. It borders the Indian Ocean and Somalia in the east, Ethiopia and South Sudan in the north, Uganda in the west and Tanzania in the south. It is the home of the picturesque Rift Valley geographical formation, but more importantly, Kenya is the cradle of humankind as evident in the fossils found in Turkana and surrounding areas.

The country attained independence from British colonialists in 1963 after a protracted struggle. The Founding Fathers dreamt of a country plenty in wealth, where all the disparate tribes and traditions lived in harmony and unity, where peace prevailed, and all lives and property were secure.

Sovereignty

“Sovereignty” means the absolute or supreme power of an authority.

According to the Kenya Constitution 2010, “all sovereign power belongs to the people of Kenya. And the people may exercise this sovereign power either directly or through their democratically elected representatives. This power is delegated to Parliament, National Executive and Executives of the 47 devolved counties that form the Republic, and the Judiciary; which perform their functions in accordance with this Constitution”.

The Constitution provides that every Kenya has the right to life; clean and healthy environment, equality, equal protection and equal benefit in law, enjoys human dignity, is free and secure, is protected from slavery, servitude and forced labour, has the freedom of conscience, religion, belief and opinion, is free to express themselves, freedom of association, freedom of movement and residence, assembly, demonstration and picketing.

The Supreme law also ensures freedom of expression, the right of access to information, political rights and protection of property, fair labour practices and the right to economic and social rights (health, housing, food, water, social security and education), right to use of language and culture of one’s preference, consumer rights, and right of access to justice

It is not gainsaid that The Constitution is the Supreme law of the land and a person may claim or exercise State authority except as authorised under this Constitution. Implicitly, any attempt to establish a government otherwise than in compliance with this Constitution is unlawful. That apart, the general rules of international law shall form part of the Law of Kenya, even as any treaty or convention ratified by Kenya shall form part of the Law of Kenya under this Constitution.

Self-determination

The people exercise this sovereignty during elections that are held every five years. The elections have to be free and fair, and should ensure that not more than two thirds of the members of the elective public bodies shall be of the same gender. Free and fair imply that the elections are by secret ballot and conducted by an independent body, transparent, and free of violence and intimidation.

The Executive

The Presidency comprises the Executive Office of the President (which includes that of the Deputy President), Office of the First Lady, the Constitution, and the Former Presidents.

President Uhuru Kenyatta is serving his second and final term, which will last until September 2022. He is deputised by Dr William Samoei Ruto, and both come from the Jubilee Party. The Big Four Agenda is the President’s priority during this second term, and it addresses universal health coverage (UHC), affordable housing, food sufficiency and boosting the manufacturing sector.

First Lady Margaret Kenyatta is the brains behind Beyond Zero, an initiative that realises that no woman should die while giving birth. Mrs Kenyatta has dedicated her time and effort to complement the government’s effort to eradicate maternal and child mortality, and HIV/AIDS-related deaths. This initiative has launched unique flagship fundraising and awareness campaigns by galvanizing the general public, private sector, international organisations, and the media towards the goal of improving access to quality healthcare.

Kenya is governed by a Constitution promulgated in 2010. A move to review the Supreme Law intensified in 2020 under the aegis of the Building Bridges Initiative (BBI).

Kenya plunged into grief and sorrow when, on February 4, 2020, retired President Daniel Toroitich arap Moi died, aged 95. Mr Moi, the second Independent President, ruled Kenya from 1978 — following the death of first President Jomo Kenyatta — to December 2002 upon retirement and being succeeded by Mr Mwai Emilio Kibaki. The man whose philosophy was Nyayo (in the footsteps of his predecessor Kenyatta) was buried at his farm in Baringo. Kenya has had four Presidents: Jomo Kenyatta (1963—1978); Moi, Kibaki (2002—2013), and Uhuru (2013—2022).

Executive Order: In early June 2020, President Kenyatta released Executive Order no.1 of 2020 which restructured the government’s portfolios and responsibilities. In the changes, the Cabinet — which hitherto didn’t exist as an institution — becomes an institution under the Office of the President. The Office of the President was renamed the Presidency, perhaps to remove some of the clamour once associated with the institution.

More importantly, the new structure accommodates the newly-formed Nairobi Metropolitan Services (NMS) that the President earlier formed to help in effective management of the capital city. The NMS, which is a national government establishment, takes some key functions from the Nairobi County Government.

Madaraka Day 2020: The annual June 1 holiday is celebrated nationally to mark Kenya’s attainment of self-rule. In this year’s address to the nation to mark the day in Narok, President Uhuru Kenyatta paid glowing tribute to the country’s Founding Fathers, among them Jomo Kenyatta (Kenya’s first post-independent President), Oginga Odinga (first post-independent vice president) and Tom Mboya (the architect of the economic blueprint, Sessional Paper no.10 of 1965, that’s considered the cornerstone document that has continuously defined Kenya’s economy). “To re-imagine our dream and nationhood, we must reflect on our history, because history has laws that show us the future,” he stated.

Sessional Paper no.10 envisioned Kenya as an Africanised economy, largely locally-owned; whose industries were producing for regional markets, and in which technology was the light and heat of commerce. Mboya’s book, Freedom and After, states that great things are a sum of a series of small steps.

Oginga Odinga’s book, “Not Yet Uhuru”, published in 1967, argues that Independence isn’t complete until the economy is in the hands of Africans. “Jaramogi envisioned a Kenya that was unapologetic about its “Kenyaness”, a Kenya that “could stand on its own feet in a world unfriendly to the African people”, and a Kenya that is “capable of enterprise and development in fields beyond our shambas”, said the President.

On his part, the Founding Father of the Nation, Mzee Jomo Kenyatta, imagined a free Kenya as far back as the 1930s, while at Manchester in the United Kingdom. His dream is painted in his book, “Facing Mount Kenya”, published in 1938. In this dream, he cautioned us that the seed of freedom will only take root if our mindset is focused on the right thing. In the business of building the nation, he warned, we must not focus on what has been done; our focus should be on what remains to be done.

Building Bridges Initiative (BBI): The move to review the Constitution 10 years since it was promulgated gained ground countrywide. The team jointly appointed by President Kenyatta and Opposition Leader Raila Odinga (leader of the Orange Democratic Movement party) to spearhead the collection of views continued with the exercise, even after presenting the two leaders with a draft document in November 2019. The proposals, which could lead to drastic restructuring of the Executive to make the country more cohesive and united, may see the creation of the Prime Minister seat.

About 5,000 delegates converged on Bomas of Kenya for the launch. Leaders spoke of the BBI offering the country a chance to speak to itself even as they called for a moment of reflection if the country was to make that important turn that the ‘handshake’ between President Kenyatta and ODM leader Raila Odinga sought to achieve when they came together early last year (2018).

“We cannot build Kenya in one day. Let us focus on what will put us together. We have 42 different cultures that we should be proud about. Let us embrace our culture and tradition,” President Kenyatta said at the launch. In his comments, Mr Odinga said: “This report is not about me or President Kenyatta. Today we are here, tomorrow we shall not be there, and Kenya will remain”.

Parliament

Parliament consists of the National Assembly and the Senate. Among its role is to protect the Constitution and promote the democratic governance of the Republic.

National Assembly: It plays a number of roles, including representing the people and enacting legislation. It determines allocation of national revenue between the levels of government, appropriates funds for expenditure by the national government and other State organs, and exercises oversight. It also approves declarations of war and extensions of states of emergency, even as it reviews the conduct of the office of the President, the Deputy President and other State officers and initiates the process of removing them from office.

It consists of 290 members elected by registered voters at constituency level, 47 women elected at county level, 12 members nominated by parliamentary political parties according to their strength in the House — to cater for special interests — and the Speaker.

Senate: It represents the counties, and serves to protect the interests of the counties and their governments, participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments, and participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office.

It consists of 47 members elected by voters at county level, two representatives (a man and a woman) of the youth, two representatives (a man and a woman) of people with disabilities, and the Speaker, who is an ex-officio member.

Status 2019/2020: The Jubilee Party and the National Super Alliance (NASA) undertook far-reaching changes in parliamentary leadership, for both the National Assembly and the Senate. The Deputy Speaker and the Leader of Majority in the Senate were replaced, while the composition and leadership of several House committees were reconstituted last June, in a move both parties — Jubilee and ODM — said were to streamline parliamentary business in readiness for the envisaged Constitutional changes. Also replaced were the Leader of Majority and the Majority Whip of the National Assembly.

Both Houses (Senate and National Assembly) debated and passed several legislative pieces in 2019/2020. The President assented to the Copyright (Amendment) Bill 2017 in November 2019, and the Physical Planning Bill 2017 in July 2019.

Impeachment: The Senate in March 2020 ratified the impeachment of then Kiambu Governor Ferdinand Waititu. He faced a number of accusations, among them violating the Constitution, misconduct, and grabbing of land. Three months later, the same Senate poured cold water on an attempt by the Kirinyaga County Assembly to impeach Governor Anne Waiguru. In its wisdom, the Senate came to the conclusion that Ms Waiguru hadn’t committed offences that warrant her dismissal, and instead asked the Ethics and Anti-Corruption Commission to investigate some of the charges the Members of the County Assembly (MCAs) had leveled against her.

Devolution

The Constitution of Kenya 2010 creates a decentralised system of government where two of the three arms of government — Legislature and the Executive (known as County Assembly) — are devolved to the 47 political and administrative counties. The primary objective of decentralisation is to devolve power, resources and representation down to the local level. To this end, various laws have been enacted by Parliament to create strategies for the implementation framework and the adoption on which objectives of devolution can be achieved.

According to the Constitution, the objectives of the devolution of government are:

1. Promote democratic and accountable exercise of power;
2. Foster national unity by recognising diversity;
3. Give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them;
4. Recognise the right of communities to manage their own affairs and to further their development;
5. Protect and promote the interests and rights of minorities and marginalised communities;
6. Promote social and economic development and the provision of proximate, easily accessible services throughout Kenya;
7. Ensure equitable sharing of national and local resources throughout Kenya;
8. Facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya, Nairobi; and,
9. Enhance checks and balances, and the separation of powers.

County governments shall be based on democratic principles and separation of powers, reliable sources of revenue to enable them to govern and deliver services effectively, and that no more than two-thirds of the members of representative bodies in each county government shall be of the same gender.

Council of Governors: A non-partisan organisation comprising the governors of the 47 counties. Its main functions are to promote visionary leadership, share best practices, and offer a collective voice on policy issues. It is currently chaired by Kakamega Governor Wycliffe Oparanya.

Ministry of Devolution: The National Government established a ministry responsible for Devolution matters in order to manage the process of implementation of the devolved system of government. The National Government thereafter provided administrative support through secondment of critical staff to assist in setting up county structures before counties acquired capacities to do so.

It has two departments — Devolution and Development of ASAL (Arid and Semi-Arid Lands).

Through the State Department for Devolution, the Government has been facilitating implementation of the devolved system of governance by developing the requisite policies, laws, guidelines and regulations in collaboration with the relevant institutions. Considerable progress has been made in the implementation of the devolved system of government since 2013.

The State Department for the Development of ASALs is a special vehicle for affirmative action, mainstreaming development issues of Arid and Semi-Arid Lands (ASALS), coordinating, implementing and fast-tracking investment for long term sustainable development.

Status 2019/2020: The year 2020 has been a race against time for county governments, as they move to build their respective capacity to manage the novel COVID-19 pandemic. By June 2020, the national government instructed all the devolved units to each set aside at least 300-bed isolation units for COVID-19 patients. At the time, June 30, 2020, Kenya had reported a countrywide tally of 6,366 positive cases from 169,836 people tested since the disease struck the country in March 2020.

Allocation: In the Budget proposals for 2020/2021, county governments were to receive Sh316.5 billion. Although the amount has been rising gradually, from Sh280 billion in 2016/17 to Sh302 billion and Sh314 billion in 2017/18 and 2018/19, respectively, the allocation for the year 2020/21 of Sh316.5 billion is about the same as of the previous year.

Nairobi Metropolitan Services (NMS): On March 18, 2020, President Kenyatta commissioned the Nairobi Metropolitan Services to deliver key services to the residents of Kenya’s capital city. This followed the transfer of some functions (among them waste collection and disposal, water and sanitation, housing and urban development, and transport and urban works) from the City County Government to the National Government, as made possible by the Constitution.

On June 30, 2020, the NMS marked 100 days of operation. In his assessment report, the President stated that progress had been made in implementing the Nairobi Urban Mobility Plan, effecting the Non-Motorised Transport Strategy, reviewing the development approvals process, improving solid waste management, streamlining urban renewal projects and reviewing and improving the governance and transparency models deployed in service delivery.

“The evidence of this progress can already be seen. Our neighbourhoods are beginning to look cleaner, hundreds of young people, especially those in poor and vulnerable communities in the city, are earning a living; thousands of households are receiving water closer to home; affordable housing projects are now ready to break ground; road infrastructure is beginning to see the much needed maintenance works; and pedestrian and cyclists corridors in our business districts are beginning to take shape,” stated the President.

Judiciary

According to the Constitution, Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals. And in exercising judicial authority, the courts and tribunals shall be guided by the following principles:

1. Justice shall be done to all, irrespective of status;
2. Justice shall not be delayed;
3. Alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms, shall be promoted, subject to clause (3);
4. Justice shall be administered without undue regard to procedural technicalities; and,
5. The purpose and principles of this Constitution shall be protected and promoted.

The Judiciary and its related institutions (Judicial Service Commission (JSC), Kenya Law; previously National Council for Law Reporting (NCLR), Tribunals and the Judiciary Training Institute (JTI) administer justice, formulate and implement judicial policies, and compile and disseminate case laws and other legal information for the effective administration of justice.

The court system has been decentralised, with the Supreme Court and the Court of Appeal having their own presidents and the High Court having a Principal Judge, as heads of the respective institutions. The High Court comprises a number of judges to be prescribed by an Act of Parliament, and has a Principal Judge, who is elected by judges of the High Court from among themselves.

The Judiciary also consists of the Environment and Land Court as well as the Employment and Labour Relations Court, which are courts of equal status as the High Court, and the Environment and Land Court. And then there are the subordinate arms consisting of the Magistrates’ Courts, Kadhis’ Courts, Courts Martial, and any other court or local Tribunal established by an Act of Parliament.

Status 2019/20: The Chief Justice is Mr David Maraga, who is the President of the Supreme Court. From July 2019 to May 2020, the Supreme Court had dispensed with 26 matters, including providing advisory opinions.

International law

In six years, Kenya finalised its national policy, which marked a milestone in crafting the country’s intended relations with the larger family of nations. This blueprint provides a broad framework on Kenya’s foreign relations and diplomatic engagements within a contemporary globalised environment. It further outlines the evolution of the country’s foreign relations and engagements with its partners. It drives Kenya’s Foreign Policy Agenda in the pursuit of a “peaceful, prosperous and globally competitive country” in order to “to project, promote and protect Kenya’s interests and image globally through innovative diplomacy, and contribute towards a just, peaceful and equitable world”.

To many Kenyans, the country’s recent elevation to the UN Security Council was the product of intensive lobbying at continental and overseas levels. But not many understood the elevation to mean an absolute trust in Kenya’s role in the family of nations. Over a half-decade since it attained self-rule, Kenya has been a beacon of peace, and a symbol of envy worldwide. Yet the nation has been fast in defending its territorial integrity if threatened. On occasions, terrorists from the neighbouring country of Somalia have been repulsed. But in all this, Kenya has acted with restraint.

Status 2019/2020: In March 2020, Kenya warned Somalia not to attack its sovereignty and territorial integrity. This followed a meeting of the National Security Council chaired by President Kenyatta, in response to an incursion into Kenya by the Somalia National Army on March 2, 2020. The Somali army had attacked and destroyed property in the frontier town of Mandera.

“This action amounts to an unwarranted attack by foreign soldiers with the intention of provoking Kenya. In keeping with our longstanding and distinguished tradition in peacekeeping and peacebuilding in the region and beyond, and in particular in Somalia, Kenya acted with total restraint,” said a dispatch from State House.

That apart, Kenya’s military contingent continued to secure its conflict-strewn neighbour as part of AMISOM (African Union Mission in Somalia) Command.

Maritime border feud: In May 2020, the International Court of Justice decided to delay to March 15, 2021 the public hearing of a case in which Somalia is claiming part of Kenya’s maritime territory. “The Court reached its decision, having duly considered the views and arguments of the parties, following Kenya’s request for a postponement of the oral proceedings in the case owing to the COVID-19 pandemic,” said The Hague-based court in a press release.

Defense and internal security

Kenya has pulled all stops to ensure that the country and its people are protected within and without its borders. The National Police Service is involved in maintenance of law and order, preservation of peace, protection of life and property, investigation of crimes, collection of intelligence, prevention of crimes, enforcement of laws, and apprehension of offenders.

The Kenya Defence Forces (KDF) is responsible for the defence and protection of the sovereignty and territorial integrity of the Republic. It assists and cooperates with other authorities in situations of emergency or disaster, and reports to the National Assembly whenever deployed in such circumstances; and may be deployed to restore peace in any part of Kenya affected by unrest or instability, but only with the approval of the National Assembly.

Status 2019/2020: In April 2020, General Robert Kariuki Kibochi succeeded General Samson Mwathethe as Chief of Defence Forces. Earlier, in December 2019, President Uhuru Kenyatta, who is the Commander-in-Chief of the Defence Forces, launched the newest infantry barracks (Modika Barracks) in Garissa County to serve the larger North Eastern region that is prone to terrorist attacks orchestrated mainly by al-Shabaab and their sympathisers. The new barracks will also provide a conducive environment for soldiers transiting to and from operational areas.

Conclusion

Kenya is a country of a people free to exercise their own choice. Indeed, in every five-year cycle, the people go to elections to exercise their sovereign power, in a multi-party democratic set-up. The next election is scheduled for August 2022. Thus the people will determine who will lead them in the following five years. The elections allow people to make their choice, and in the end be proud of their political determination. This tradition has lived on for decades.

The Judiciary and the court system are the guardians of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the Judiciary, through the courts and tribunals, to interpret and apply the Constitution and the laws of the land in a manner that promotes economic development and maintains good governance, the rule of law, social and economic rights, and peaceful co-existence in the society.

During the period under review, the courts made a significant development of a robust, indigenous and homogenous jurisprudence touching on various areas of law. The summaries below provide an overview of the development of law in the various courts.

Supreme Court

Removal of a judge from office

A complaint under Article 168 of the Constitution for removal of a judge cannot be withdrawn once a tribunal has been appointed by the President and is seized of the matter.

The applicable standard of proof in proceedings for the removal of a judge before a court or a tribunal is one that is between “beyond reasonable doubt” and “balance of probabilities”.

Justice Joseph Mbalu Mutava Vs the Tribunal appointed to investigate the conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya, (Supreme Court Petition No. 15 ‘B’ of 2016.)

Brief facts

The petitioner was appointed a judge of the High Court of Kenya on 23rd August 2011. Between March 2012 and March 2013, several complaints were lodged with the Judicial Service Commission (JSC) against the petitioner. Among the complaints were that the petitioner irregularly, inappropriately and knowingly, in collusion with other parties, caused a case, to wit Republic Vs The Attorney General and three others, Exparte Kamlesh Mansukhal Damji Pattni, Nairobi High Court Misc. (JR) Application No. 305 of 2012, to be allocated to himself and without the knowledge and consent of the duty judge and the presiding judge of the Judicial Review Division. He was also accused of proceeding to write a judgment in respect of the said case at a time when the JSC was inquiring into allegations of misconduct against him with regard to the same.

The petitioner was further accused of seeking to influence the ruling in the case of Sehit Investments Ltd Vs Josephine Akoth Onyango and three others, Nairobi High Court Civil Case No. 705 of 2009, in favour of the plaintiff therein through verbal and text messages from his cell phone to Justice Leonard Njagi (rtd) who was presiding over the hearing of the matter.

On 1st December 2012, the JSC constituted a committee to investigate those allegations. After the inquiry, the JSC found that prima facie, three out of the 13 complaints, disclosed sufficient grounds for removal of the petitioner from office under Article 168 of the Constitution.

The JSC subsequently sent a petition to the President recommending the suspension of the petitioner and the appointment of a Tribunal to investigate the allegations of gross misconduct and misbehavior levelled against him. The President consequently suspended the judge and appointed members of the Tribunal, who took the oath of office on 21st June 2013.

Aggrieved by the decision of JSC to petition the President to constitute the Tribunal, the petitioner moved to the High Court on 28th June 2013 and filed High Court Petition No. 337 of 2013 challenging the competence of the Tribunal, arguing that the JSC had not accorded him a fair hearing.

The High Court ruled in favour of the petitioner and declared the Tribunal proceedings void ab initio – for reasons that two of the members were appointed outside the prescribed 14-day period. That decision of the High Court was overturned by the Court of Appeal, holding that the appointment of the members of the Tribunal was in line with the Constitution and that the Tribunal ought to carry out its mandate as it was properly constituted.

At the commencement of the Tribunal proceedings, the petitioner filed a preliminary objection contesting its jurisdiction to inquire into complaints that had been allegedly withdrawn through letters to the Tribunal and the JSC. The Tribunal dismissed the preliminary objection and held that, once JSC has presented a petition to the President, the individual complaints that were being investigated by the JSC ceased to exist independently as complaints capable of being withdrawn. Therefore, their purported withdrawal could not affect the jurisdiction of the Tribunal to proceed with its mandate.

In a detailed report dated 20th September 2016, which was presented to the President, the Tribunal was of a unanimous view that allegations number 1, 3 and 5 against the petitioner had been proved to the required standard and that the petitioner’s conduct amounted to gross misconduct, contrary to Article 168(1) (e) of the Constitution. Consequently, the Tribunal recommended to the President that the petitioner ought to be removed from office.

The petitioner was dissatisfied by the Tribunal’s findings and filed a final appeal before the Supreme Court, raising among other issues the arguments that he was not accorded a fair hearing by both the JSC and the Tribunal. He also argued that the Tribunal lacked jurisdiction to determine his fate as it was not properly constituted and further that the standard and burden of proof required in proceedings of a Tribunal established under Article 168 (5) of the Constitution was not met.

Issues for determination

• Whether and at what stage can a complaint about removal of a judge brought under Article 168 be withdrawn?
• What is the burden of proof in a proceeding for the removal of a judge under Article 168 before a court or a tribunal?

Held

In dismissing the petition, the Supreme Court held that:

An improperly constituted Tribunal would have no competence to determine a question of jurisdiction or any other issue, and its proceedings are void ab initio;

Under Article 168 (8) of the Constitution, the Supreme Court has concurrent jurisdiction with the High Court with regard to determining the constitutionality of the body created under Article 168 (5), but where a party first approaches the High Court under Article 165 (3) (d) (ii) of the Constitution, that dispute must be determined through the contemplated appeal mechanism in the constitutionally provided hierarchy of courts;

As in any other disciplinary and quasi-judicial proceedings, a complainant can lawfully withdraw a complaint before a determination on it is made by the JSC but once the President receives a petition from the JSC he is constitutionally bound to appoint a tribunal and any withdrawal of a complaint upon setting up of a tribunal would not have the effect of stripping the tribunal of its powers. If there is tangible evidence to sustain the allegations made, the tribunal must make the consequent determination and present its recommendations to the President;

By the time a petition is presented to the President for appointment of a Tribunal, the individual complaints would have changed in form and substance such that it would no longer be a combination of individual complaints but rather a totality of the allegations raised, which in the opinion of the JSC disclose grounds for removal of a judge subject to investigation by a tribunal;

Tribunal proceeding being quasi-judicial in nature are not exempt from the constitutional safeguards of a fair hearing;

The applicable standard of proof in proceedings for the removal of a judge is one that is between “beyond reasonable doubt” and “balance of probabilities”, and when relying on circumstantial evidence a court or Tribunal must test that evidence against that standard.

Electoral Laws: Pre-election disputes

A party who has prior knowledge of the facts giving rise to the pre-election disputes, whose resolutions are vested in IEBC under Article 88(4)(e), such as one’s qualification or eligibility to vie in an election, is estopped from bringing such disputes for determination before an election court.

In the absence of a determination by the Court of Appeal on an issue, no appeal can properly fall before the Supreme Court in the exercise of its appellate jurisdiction. Issues of contestation before the Supreme Court must only involve questions that were the subject of determination by the court whose decision is being impugned.

Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamed and Others (Supreme Court Petition No. 7 of 2018)

Brief facts

In the General Election held on 8th August 2017, the petitioner, Mohamed Abdi Mahamud, was declared the Governor of Wajir County after garnering a total of 49,079 votes, beating six other contestants. His closest contestant, Ahmed Abdullahi Mohamed, the first respondent, garnered a total of 35,372 votes.

The first and second respondents were aggrieved by the declaration by the returning officer and filed an Election Petition No. 14 of 2017 at the High Court, Nairobi, challenging the results on the grounds, inter alia: that contrary to section 22 (2) of the Elections Act, the petitioner was not constitutionally and statutorily qualified to contest the seat of Governor; that the degree certificate he had submitted to the Independent Electoral and Boundaries Commission (IEBC) for nomination to vie was not genuine; and that, the conduct of the election was fraught with violence, intimidation, and numerous illegalities and irregularities which affected both the credibility and results of the election.

After the hearing of the petition in the High Court, the court found that contrary to section 22 (2) of the Elections Act, the petitioner did not have the requisite academic qualification to vie for election and that, in the conduct of the elections, the Returning Officer and the IEBC (third and fourth respondents) committed several irregularities and illegalities, the totality of which affected both the credibility and the result of the election.

The High Court, therefore, nullified the petitioner’s election as Governor of Wajir County and directed IEBC to conduct a fresh election in accordance with the Constitution and the Elections Act.

Being dissatisfied with that decision, the petitioner appealed to the Court of Appeal, mainly faulting the High Court for assuming jurisdiction in the pre-election nomination dispute, which Article 88 (4)(e) of the Constitution reserves for IEBC, and for determining that the petitioner was not academically qualified to contest in the election.

The petitioner further faulted the High Court for finding that the irregularities committed impugned the credibility and affected the result of the election.

The third and fourth respondents also cross-appealed on more or less the same grounds but mainly disputed the finding that the conduct of the election was fraught with illegalities and irregularities which undermined its integrity and affected the results.

After hearing the appeal, the Court of Appeal concurred with the High Court that the appellant did not possess the requisite academic qualifications to contest in the election and considered the other grounds in the cross-appeal to be moot. The Court of Appeal, therefore, dismissed the appeal with costs and the cross-appeal with no orders as to costs.

The Court of Appeal’s decision provoked two appeals before the Supreme Court; Petition No. 2 of 2018 by Mohamed Abdi (the appellant) and Petition No. 9 of 2018 by Gichohi Gatuma Patrick Vs IEBC. The two petitions of appeal were on 11th June 2018, by consent of the parties, consolidated but on 21st November 2018, the third and fourth respondents’ application to withdraw petition No. 9 of 2018 in accordance with Rule 19 of the Supreme Court Rules was allowed by the court.

The Supreme Court observed that there were conflicting decisions by Election Courts and the Court of Appeal on the question as to whether an Election Court has jurisdiction to determine pre-election disputes, with some courts holding that pre-election disputes, including those relating to or arising from nominations, are a preserve of the IEBC under Article 88 (4) (e) of the Constitution, with other courts holding that notwithstanding the provisions of Article 88 (4) (e) of the Constitution, Election Courts retain the jurisdiction to determine pre-election disputes.

Issues for determination

• Whether the High Court sitting as an Election Court has jurisdiction to entertain a pre-election dispute arising from pre-election nominations, notwithstanding the provisions of Article 88 (4) (e) of the Constitution and Section 74 (1) of the Elections Act.
• Whether the Supreme Court has jurisdiction to determine issues that were never addressed by the Court of Appeal.

Held

The Court in a majority judgment (Maraga, CJ & P and Lenaola SCJ dissenting) allowed the appeal, set aside the judgment of the Court of Appeal and upheld the results of the elections by the IEBC in respect of Governor for Wajir County.

Per, Ibrahim, Ojwang, Wanjala, Njoki SCJJ (majority):

The Court places a premium on whether a petitioner had prior knowledge of the facts giving rise to the pre-election dispute and therefore both the Election Court and the Court of Appeal wrongly assumed jurisdiction in determining what was clearly a pre-election dispute regarding the academic qualifications of the petitioner;

In the absence of a determination by the Court of Appeal on an issue, no appeal can properly fall before the Supreme Court in the exercise of its appellate jurisdiction.

Per, Maraga, CJ &P (dissenting):

Any dispute that questions one’s qualification or eligibility to vie in an election is a challenge of the integrity or validity of the election, and such dispute goes to the root of an election. Even though Article 88 (4) (e) of the Constitution vests IEBC with jurisdiction to handle this category of dispute, a purposive reading of other provisions of the Constitution would show that the Election Courts are also vested with jurisdiction to entertain them; and

When a matter is moot, the Court handling it should nonetheless determine it for ease and expeditious disposal of the matter in the event of an appeal, especially if it is of jurisprudential value and national importance.

Per: Lenaola, SCJ (dissenting): –

Where an election-related dispute is not prosecuted or heard on its merits, the same cannot be said to have been settled within the meaning of Article 88 (4) (e) of the Constitution and is therefore not barred by the doctrine of res judicata; and

Issues of contestation before the Supreme Court must only involve questions that were the subject of determination by the court whose decision is being impugned.

Appeal allowed by majority decision

Decisions of the Court of Appeal

Criminal Law – Rights of victims and family of victims of a crime

Victims or family of victims of a crime have a right to actively participate in person or through legal representation in a criminal trial.

Joseph Lendrix Waswa Vs Republic (In the Court of Appeal at Kisumu. Criminal Appeal No. 132 of 2016).

Brief facts

The appellant had been charged with the offence of murder, contrary to section 203 as read with section 204 of the Penal Code. The appellant pleaded not guilty to the charge and was released on bail pending the hearing and determination of the case.

The appellant was represented at the trial by three legal counsels while the father of the deceased was represented by two legal counsels. After nine witnesses had adduced evidence, the counsel for the family of the deceased, Mr George Murunga, while relying on Articles 2(5), 25(c) 50(1) 50(7) and 58(9) of the Constitution as well as the provisions of the Victim Protection Act 2014, made an oral application for leave to actively participate in the proceedings.

He submitted that the Constitution of Kenya 2010 recognises the rights of victims of offences and that Parliament enacted the Victims Protection Act to give effect to Article 50(a) of the Constitution. That the Victim Protection Act provides a guide on how a victim or complainant can participate in criminal proceedings and ensures that parties are accorded a fair hearing and that all the views of the affected parties to a trial are taken into account before a decision is made by a court of law.

The appellants’ counsel opposed the application and submitted that the role of a counsel watching brief in a criminal trial is limited to just observing the proceedings or addressing the court through the prosecution, except in exceptional circumstances. He argued that sections 213, 206, and 311 of the Criminal Procedure Code bars a counsel watching brief from actively

participating in the trial process and that the criminal justice system is focused upon the rights of an accused person and that the victim’s rights are not the primary focus.

On his part and while in support of the appellant’s argument, the Prosecutor submitted that under Article 157 of the Constitution, the DPP is not under the direction and control of any person, a counsel watching brief has no right of audience and can only actively participate in public with the permission of DPP or the Court; that under Section 12(2) of the Victim Protection Act, the views and concerns of the victim can be presented at the victim’s impact assessment stage, and that a watching brief counsel can only be an assistant to the prosecutor to liaise with him in a gentleman’s agreement on how best to bring out the truth.

The learned trial judge considered the submissions; the Constitution, the Victim Protection Act as well as the authorities relied on and ruled that the law had shifted and that the arguments advanced by the defence, if adopted by the court, would be contrary to the provisions of the Constitution, the Victim Protection Act and against Kenyan’s progressive jurisprudence.

The judge ruled that the victim’s counsel can no longer be considered a passive observer but noted that the Victim Protection Act gives the parameters of involvement during trial to include; the victim’s views and concerns at various stages as the court may determine, either directly by the victim or his/her representative; at plea bargaining; at the level of sentencing where a decision is likely to affect the rights of the victim, and not throughout the trial or parallel to the prosecution.

The judge, therefore, directed that counsel watching brief would only participate in the proceedings on submission at the close of the prosecution case whether there is a case to answer; final submission of the accused should he be put on his defence; on points of law should such arise in the cause of trial, and upon application at any stage of the trial for consideration by the court.

Aggrieved by the decision of the High Court, the appellant moved to the Court of Appeal, faulting the trial judge for, inter alia, failing to apply the words “protection”, “rights”, “welfare” in Article 50(a) in their proper perspectives; introducing a non-existent right and unrecognised fundamental right and freedom; elevating the position of a counsel watching brief to a status equal to the constitutional office of DPP; acting in ignorance, or in subversion of, Article 157 and thereby amending Article 157(6) by concluding that powers of DPP are to be exercised collegially with counsel watching brief; and in failing to acknowledge that Section 329A- 329E of the Criminal Procedure Code wholly and completely address the rights of a victim in the context of a criminal trial.

Counsel for the Appellant further argued that the trial judge opened the door for the victim to take over the trial; that the terms of the order made by the judge are not provided for in the law; that order No. (iv) opened a Pandora’s box; that the Constitution does not donate any right to a victim and that the victim is only given a right at the stage of plea bargaining and to make a victim assessment statement. The counsel added that orders of the judge were open-ended; that the orders were prejudicial to the appellant as he would face two prosecutors, which would affect the right to a speedy trial; that there is a disconnect between findings of the learned judge at paragraph 30 and orders made at paragraph 31, and that the views and concerns of a victim do not include the right of the victim’s counsel to cross-examine witnesses.

The prosecution counsel supported the appellants’ counsel submissions and stated that the law does not say at what stage the personal interest of the victim should be addressed and that a victim can only address the court at the stage of plea bargaining, bail hearing, and sentencing.

Mr Murunga, for the family, submitted that the concerns of the victims of offences have to be addressed at any stage of the trial; that the rights are determined on case-to-case basis; that counsel for a victim has even the right to cross-examine witnesses; that the Victim Protection Act does not usurp the powers of the DPP under Article 157 (6) but instead complements those powers; that according to Sathyavani’s case, a court should be careful and ensure that, an innocent person is not convicted, neither should a guilty person be allowed to escape, and that the purpose of the victim’s application before the High Court was to ensure that in the event that any issue, either of law or fact, which affects the victim arises, the victim would be allowed to participate.

Issues for determination

Whether victims or family of victims of a crime have a right to actively participate, either directly or through legal representation, in a criminal trial?

Held

In dismissing the Appeal, the Court of Appeal held, inter alia: –

Under Article 20 of the Constitution of Kenya 2010, every person is entitled to enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom and that the State was enjoined under Article 21(4) to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms;

The origin of the recognition of rights of victims of crime by the domestic laws is the United Nations General Assembly Resolution No. A/RES/40/34 of 29th November 1985 at its 96th plenary meetings which adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of power, which is designed to assist governments and the international community in their efforts to secure justice and assistance for victims of crime and victims of abuse of power;

Under Section 13 of the Victim Protection Act, a victim who is a complainant in a criminal case has a right either in person or through an advocate and subject to the provisions of the Act to adduce evidence which has been left out and give oral evidence or written submissions;

Under Section 12 of the Victim Protection Act, a victim of a criminal offence may make a victim statement in accordance with Section 329c of the code and that in accordance with section 329c of the Code, if the primary victim (that is a person against whom the offence was committed) has died as a direct result of the offence, a victim impact statement can be made by a family victim, i.e a member of the primary victim’s immediate family, including the victim’s spouse, parent, guardian, step-parents, child, step-child, brother, sister, step-sister or step-brother;

The concept of “watching brief” in a criminal trial where an advocate for the victim does not play an active role in the process is now outdated as the Constitution, as well as the Victim Protection Act, gives a victim of an offence a right to a fair trial and right to be heard in the trial process to assist the court, and not the prosecutor, in the administration of justice so as to reach a just decision in the case and that the right of the victim to be heard persists throughout the trial process and continues to the appellant process;

The constitutional and statutory role of the DPP to conduct the prosecution is not affected by the intervention of the victim in the process and it is the duty of the trial court to conduct a fair trial and to protect and promote the principles of the Constitution (Article 159(2) (e);

The rights granted to the victims of offences, just like the fundamental rights conferred by the Bill of Rights, are to be liberally construed;

It is not incompatible with the right of a fair hearing if an accused person or with the exercise of the prosecutorial powers of the DPP, if a victim of an offence either in person or through his advocate is allowed to exercise the full power of the court in the manner provided by Section 15 of the Code, as long as the safeguards in the proviso thereto are observed; and

The issue of victim’s participation would arise in infinite variety of factual situations where the trial court would be required to offer guidance to ensure a fair trial to an accused person and rigid prescription would limit the exercise of rights and the judicial discretion of the trial court but also impede the administration of justice and the development of law.

Evidence: Issuance of Due Notices before warrants are issued – Advocate

Client Privilege

The prohibition of an advocate from disclosing communication made by his client or divulging information regarding documents that come to his attention in the course of his employment as the client’s advocate as provided under Section 134 of the Evidence Act, is for the protection of the client and not the advocate.

The EACC must issue a Notice to a person of interest or a suspect subject of investigations so that the person is made aware of the intended action of the EACC against him and that such person should be given a chance to voluntarily comply with the notice before any action is taken against him.

Director of Prosecutions Vs Tom Ojienda t/a Prof Tom Ojienda and Associates and three others (in the Court of Appeal at Nairobi, Civil Appeal No. 109 of 2016)

Brief facts:

The respondent filed a petition before the High Court complaining that the Ethics and Anti-Corruption Commission (EACC) had surreptitiously and without notice to him obtained warrants to investigate his bank accounts arising out of legal works he undertook since the year 2011 as an advocate of Mumias Sugar Company Limited. He argued that the EACC had abused the power entrusted to it and that it had violated his rights to privacy, property, fair administrative action and fair hearing as provided under Articles 31,40, 47 and 50 of the Constitution, this notwithstanding the fact that he had always executed instructions received from the company meticulously, diligently and with distinction; and that he was therefore entitled to all the legal fees charged.

The respondent had argued that the payment of his legal fees by the company was protected by the privilege of advocates, as provided under Section 134 and 137 and buttressed by Section 13(1) of the Evidence Act. He contended that Section 134(1) states that the privilege can only be waived upon express instructions from a client. It was his contention that EACC, therefore, had no basis of seeking the warrants issued under Kibera CMC. Misc. Application No. 168 of 2015. He asserted that the court had no legal basis either in granting such warrants, and that EACC had not demonstrated that the client had waived the privilege to warrant the breach of the privilege.

The respondent submitted that the issuance of the warrants violated Section 28(1), 28(2), 28(3) and 28(7) of the Anti-Corruption and Economic Crimes Act (ACECA) which placed an obligation on EACC to first issue a written notice to him of their intended application to the court for an order to access and investigate his bank records, which could have afforded him a fair chance to be heard by the court before the warrants were issued.

He contended that the omission by EACC was ultra vires and in violation of his rights under Article 47(1) and (2) and that since payments were covered by privilege, Section 28(10) and 27(5) of ACECA divests EACC of any locus to demand that he or the company disclose to them any information concerning the payment of the legal fees.

The respondent argued that the investigation of his advocate-client bank account by EACC without his consent or any legal basis, violated his right to privacy (Article 31); that the court by issuing the impugned warrants violated its mandate as provided under Article 159(2) of the Constitution; that the warrants were issued without according him a right to be heard, thereby violating his right under Article 50(1) of the Constitution and therefore violated his right to enjoy the use of his bank account and the right to property under Article 40(1) of the Constitution.

He further submitted that the EACC lacked any locus to investigate the alleged irregular payment of legal fees since being civil in nature, the same could only be determined by the Advocates Disciplinary Tribunal or the Advocates Complaints Commission, as provided under Section 60 A of the Advocates Act.

The EACC strenuously opposed the petition, stating that they had received an intelligence report on 16th February 2015 concerning fictitious payments made by Mumias Sugar Company to various advocates, including the respondent, as alleged legal fees.

The EACC contended that further investigations revealed that the company had made several suspicious payments amounting to Sh280 million to the respondent’s account held at the Standard Chartered Bank, and that Dr Evans Kidero, then managing director of the company, had allegedly caused the irregular payments to be made prior to his exit from the company.

In their view and in the circumstances, the application for issuance of warrants was necessary for the investigations into the fictitious payments which were at the time considered criminal in nature. The EACC contended that it was acting in tandem with its statutory mandate, which is to investigate all allegations that raise suspicion of corrupt conduct or economic crimes against any individual or Institution.

The EACC averred that it moved to the magistrate’s court under Section 180 (1) of the Evidence Act and Section 23 of ACECA and that the court was satisfied that such orders were necessary and issued them under Section 118 of the Evidence Act. The EACC contended that it was not obligated to give notice to the respondent of its intention since Section 27 of ACECA are not couched in mandatory terms. They further countered that the respondent was not a victim of discrimination as intelligence received had no allegation against any other law firm; that the law envisages instances where the right to privacy may be abridged in matters involving embezzlement of public funds; that the respondent’s right to property was not violated as at no time was he deprived of any property; that Article 40 of the Constitution does not extend to property unlawfully acquired; and that Article 50(1) of the Constitution cannot be involved where no trial had taken place, and that advocate-client privilege is not protected by illegality, fraud or where crime or fraud has been committed or suspected to have been committed.

The High Court in its considered judgment on 19th March 2013 allowed the petition, partially issuing a declaration that the warrants to investigate the respondent’s bank account at Standard Chartered Bank breached the respondent’s rights and fundamental freedoms under Articles 47(1), 47(2) and 50(1) of the Constitution, hence void for all intents and purposes.

Dissatisfied by the decision of the High Court, both the DPP and EACC filed two appeals which were consolidated. The respondent, also aggrieved by the partial success of his petition, filed a cross-appeal.

The appeal by the DPP was on the grounds that the judge erred in law and fact by:

1. Failing to uphold that the warrants to investigate Prof Ojienda were lawfully obtained under the provisions of Section 180 of the Evidence Act;
2. Failing to appreciate that Section 23 of ACECA, Section 180(1) of the Evidence Act and Section 118 of the Criminal Procedure Code, were available to EACC in discharging its mandate;
3. Holding that Prof Ojienda’s right to be given due notice prior to the application of the warrants violated Section 28 of ACECA and Article 47 of the Constitution; and,
4. Failing to uphold that Prof Ojienda’s rights were limited by Article 24 of the Constitution in favour of the protection of public interest.

The EACC’s memorandum of appeal contained grounds that the judge erred both in law and in fact by:

1. Failing to appreciate that the investigative process by EACC was not administrative, but both constitutional and statutory; and
2. Failing to appreciate EACC’s assertion on the threat of the issuance of notice to a suspect gives him an opportunity to conceal evidence that would have been otherwise necessary to create a case against him.

Prof Ojienda’s cross-appeal was based on grounds that the judge erred both in law and in fact by:

1. Failing to hold that his fundamental right to privacy, property, and not to be discriminated against, were violated;
2. Holding that EACC had a factual basis which warranted the issuance of the impugned search warrants;
3. Failing to hold that the bank account was not confidential communication and therefore not covered by privilege.

Held

In dismissing both the appeals, as well as the cross-appeal, the Court of Appeal held that:

The prohibition of advocate from disclosing communication made by his client or divulging information regarding documents that come to his attention in the course of his employment as the clients’ advocate, as provided under Section 134 of the Evidence Act, is for the protection of the client and not the advocate;

The client’s protection is however not absolute as there are instances where the advocate may be required, for compelling reasons, to disclose such communication or content and condition of documents;

Prof Ojienda had not demonstrated how he was deprived of his right under Article 40 of the Constitution since he still had control and ownership of the bank account during the investigation;

The issuance of notice in writing to a person in Ojienda’s position is a duty imposed by Section 27(3) of ACECA and, therefore, EACC’s action was improper;

EACC as a creation of Article 79 of the Constitution is governed by the dictates of Article 47 in executing its mandate and is, therefore, bound by the dictates of the Constitution;

All powers and functions given to EACC by the Constitution and ACECA are subject to be administered lawfully, reasonably and in a manner that is procedurally fair; and

By enacting Sections 26, 27 and 28 of ACECA, the legislature’s intention was for a person of interest or suspect to be aware of the intended action of EACC against him and that such person should be given a chance to voluntarily comply with the notice before any action is taken against him.

Electoral law jurisdiction

There is no second appeal from the High Court to the Court of Appeal with respect to a decision from the High Court reached in exercise of its appellate jurisdiction in a dispute for the position of a member of a county assembly.

Where there is a clear provision on the jurisdiction of the court, as in Section 75(4) and 85(A) of the Elections Act, then it is not permissible to resort to the general provisions of the Constitution such as Article 164(3) on the jurisdiction of the Court of Appeal.

Hassan Jimal Abdi Vs Ibrahim Noor Hussein, IEBC and two others (Election Petition Appeal no. 30 of 2018)

Brief facts

The applicant was one of the contestants in the race for the county assembly seat for Batalu Ward in Wajir North Constituency. He lost that election by the results announced by the Returning Officer, Wajir North Constituency, and successfully petitioned the magistrate’s court for an order nullifying the election. The first respondent, Ibrahim Noor Hussein, was aggrieved with this order and filed a first appeal to the High Court challenging that order, but that appeal was dismissed.

Aggrieved by the decision of the High Court, the first respondent preferred an appeal to the Court of Appeal seeking to reverse the decision of the High Court. Subsequently and pending the hearing of the appeal on merit, the applicant filed an application dated 23rd August 2018 seeking an order to strike out the notice of appeal and memorandum of appeal filed by the respondent on the ground that the Court of Appeal does not have jurisdiction to hear and determine a second appeal with respect to an election of a member of county assembly.

The applicant’s main argument was that Section 85A of the Elections Act and Rule 35 and 36 of the Elections (Parliamentary and County) Petition Rules 2017, as read together with Article 87 of the Constitution, gave the Court of Appeal limited jurisdiction to entertain an appeal from the judgment and decree of the High Court in an election petition concerning membership of the National Assembly, Senate or office of the County Governor only, and excludes any second appeal arising from election to office of member of county assembly.

As such, the applicant prayed for the court to find that, as jurisdiction flows from the Constitution or the law or both, and since the court can only exercise it within the limits set out in the law, then the court ought to strike out the appeal.

On his part, the first respondent contended that the dispute in the subject appeal regards the interpretation of the application of the principles of the Constitution, the Elections Act and the rules made thereunder and that it raises substantive issues of law. He further stated that election appeals filed in court are governed by the Constitution of Kenya 2010, the Elections Act, the Appellate Jurisdiction Act, and the rules made thereunder.

In his view, Article 164 (3) of the Constitution of Kenya gave the Court of Appeal jurisdiction to hear appeals emanating from the High Court, as well as any other court or tribunal that may be prescribed by Parliament.

He further submitted that Articles 48 and 50 (1), as read with Articles 24 and 25 of the Constitution, provide for a right of appeal which can only be ousted by an express provision in law, and in the absence of such a provision the Court of Appeal is clothed with jurisdiction to hear and determine the present appeal.

In the premises, he canvassed that neither section 85A of the Elections Act, nor any other piece of legislation can bar an appellant from lodging an appeal before the Court of Appeal if the subject matter of the appeal is the validity of the election of a member of country assembly.

The first respondent agreed that Article 87 (1) of the Constitution gives Parliament the power to enact legislation to establish mechanisms for the timely settling of electoral disputes. However, he argued that the said mechanisms include the Court of Appeal (Election Petition) Rules 2017 under the appellate Jurisdiction Act which governs this court’s jurisdiction.

In his view, the object of the rules, as outlined in rule 3 is to: “Facilitate the just, expeditious and impartial determination of election petition appeals in exercise of the Court’s appellate jurisdiction under Article 164 (3) of the Constitution, while rule 4 states that they apply “to the conduct of the appeals from decisions of the High Court in election petitions and matters relating thereto.”

He further countered that in this context, the word ‘appeal’, should take the meaning ascribed to it in rule 2 where it is provided that an appeal refers to an appeal from the decision of the High Court. It was his submission that any party aggrieved by the decision of the High Court in election disputes, whether in its original jurisdiction or appellate jurisdiction, has an unlimited right to lodge an appeal to the Court of Appeal. He urged the court to interpret this provision of the Constitution in line with Article 259 of the Constitution and do so in a manner that promotes its purposes, values, and principles and to advance the rule of law and human rights and fundamental freedoms in the Bill of Rights.

Issues for determination

Whether a party can resort to the application of general provisions where there are clear provisions on jurisdiction in the Election Act?

Whether there can be a second appeal from the High Court to the Court of Appeal with respect to an election petition for the position of a member of a county assembly.

The Court of Appeal, in its analysis of the applicable laws, observed from the outset that the application raised the single pertinent issue of jurisdiction of the Court of Appeal in election petitions. The court stated that with respect to disputes related to election petitions, the Constitution of Kenya at Article 87 (1) requires Parliament to enact legislation to establish mechanisms for the timely settling of election disputes. In fulfilment of this directive, Parliament enacted the Elections Act No. 24 of 2011, which contains various elaborate provisions on the manner in which disputes arising from election petitions ought to be settled.

In particular, section 75 of the Elections Act provides for county election petitions, and specifies that where there is a question “as to the validity of the election of a member of county assembly, such a dispute shall be heard and determined by the resident magistrate’s court designated by the Chief Justice.”

Appeals from these petitions are provided for under section 75 (4) of the Act as follows:

“(4) An appeal under subsection (1A) shall lie to the High Court on matters of law only and shall be –

• filed within 30 days of the decision of the magistrate’s court; and
• heard and determined within six months from the date of filing of the appeal.”

The other instance in the Elections Act the court noted where appeals are mentioned, is in section 85A which provides that:

“85A. An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of the County Governor shall lie to the Court of Appeal on matters of law only and shall be –

• filed within 30 days of the decisions of the High Court, and
• heard and determined within six months of the filing of the appeal.”

The court stated that the Elections (Parliamentary and County Elections) Petition Rules 2017 are similarly worded, with rule 34 providing for “an appeal from the magistrate’s court under section 75 of the Act”, while rule 35 makes provision for “an appeal from the judgment and decree of the High Court in a petition concerning the membership of the National Assembly, Senate or office of the County Governor.”

The Court noted that the availability of the right to a second appeal hearing has come to be expected by litigants in both civil and criminal matters. However, with regard to a second appeal for County Assembly, there is a glaring silence as to whether this right is available.

Section 85A does not list disputes by a petitioner in a County Assembly election as part of the election petition that can lie in the Court of Appeal.

The court then posed the question as to whether in the absence of specific provisions to provide for second-tier appeals on election petitions to the court, can recourse be had to Article 164 (3) of the Constitution?

It noted that this Article is a general provision that provides for jurisdiction to hear appeals from “any other court or tribunal as prescribed by an Act of Parliament.” Again, section 3 of the Judicature Act further enforces the court’s jurisdiction and states:

“Section 3. Jurisdiction of Court of Appeal (1) The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and any other court or Tribunal prescribed by an Act of Parliament in cases in which an appeal lies to the Court of Appeal under law.”

In light of the argument by the parties, the question that therefore arose is one, whether the appellate jurisdiction of the Court of Appeal in the Constitution enabling a right of the second appeal can be inferred in the Elections Act and, secondly, whether a party can find refuge in the general provisions of the Constitution in light of the clear provisions of the statute.

The learned judges of Appeal opined that where there is a clear provision on the jurisdiction of the court, then it was not possible to resort to the general provisions. The Elections Act sets the entry point for the jurisdiction of the courts to hear and determine appeals in section 75 (1A), with respect to disputes on the validity of the election of a member of the county assembly.

With regard to disputes arising out of elections for the other elective positions, the entry point for jurisdiction is found under section 75 (1) for an election petition with respect to the office of county governor and Article 105 with respect to a question of whether a person has been validly elected as a member of Parliament. Similarly, section 75 (4) provided for a ceiling with respect to appeals from the magistrate’s courts to the High Court; these appeals which must be filed within 30 days may only raise issues of law and must be determined within six months. In similar terms, section 85A provides for a ceiling for appeals from election petitions heard by the High Court.

Held

That the appeal envisaged in Section 85A of the Elections Act can only be for the membership of the three offices specifically mentioned in that section, that is, National Assembly, Senate or the office of the County Governor and no other.

There exists no provision therefore for a second appeal with respect to a decision from the High Court reached in the exercise of its appellate jurisdiction in a dispute on an election of a member of the county assembly.

Where there is a clear provision on the jurisdiction of the court, as in Sections 75(4) and 85A, then it is not possible to resort to the general provisions in the Constitution such as Article 164(3) on the jurisdiction of the Court of Appeal.

Criminal Law – Defilement – Defence of belief or deception

For a charge of defilement, contrary to section 8(1)(4) of the Act and the defence in section 8(5) and (6), a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception, and the more likely the belief that he or she is over the age of 18 years.

The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts.

Eliud Waweru Wambui Vs Republic (Criminal Appeal No. 102 of 2016)

Brief facts:

The appellant was arrested and arraigned before the chief magistrate’s court at Thika on 1st December 2010 on a charge of defilement, contrary to section 8(1)(4) of the Act. The particulars of the charge were that: “On the month of May 2009, at Makuyu Township in Muranga County within the Republic of Kenya, [he] committed an act that caused penetration to a child, namely ANK, a child aged 17 years and five months.”

He faced an alternative charge of an indecent act contrary to section 11(1) of the Act, that: “On diverse dates from January 2009 and 16th November 2009 at Makuyu township in Murang’a County within the Republic of Kenya [he] committed an indecent act with a child, namely ANK, a child aged 17 years, by touching her genital organs.”

The appellant denied the charges, leading to a trial in which the prosecution called five witnesses, at the end of whose testimony the trial magistrate found the appellant had a case to answer and placed him on his defence. He made an unsworn statement and called three brief witnesses.

In the ensuing judgment, the magistrate found the main charge proved against the appellant and convicted him. He was then sentenced to 15 years imprisonment.

Aggrieved by the conviction and sentence, the appellant preferred the first appeal against both conviction and sentence to the High Court. By a judgment delivered on 25th June 2014, the appeal was found to be devoid of merit and dismissed. He preferred a second appeal, raising the following grounds on the basis of which he asked the court to quash the conviction and set aside the sentence:

That the first appellate court erred in law and fact by failing to notice that essential ingredients/elements of the offence as charged were not proved.

That the first appellate court erred in law by failing to consider/subject evidence to fresh scrutiny, re-evaluate the same and analyse as required of it. If it did, the first appellate court would have discovered that:

1. There were material errors in the prosecution evidence contained in exhibit 1 in that the date of issue of the birth certificate took place before the complainant was born.
2. There was a likelihood that the charges against the appellant were borne out of malice and ill-will due to the fact that the appellant failed to pay the compensation required by PW2 (complainant’s father).

That the first appellate court erred in law by failing to notice that the appellant reasonably believed that the complainant had granted her consent and that she had the capacity to grant the said consent and he believed she was full of age (sic) and capacity to contract a marriage.”

In his written submissions, the appellant combined the first two grounds of appeal. He first argued that the fact that the complainant was school-going did not of itself mean, much less prove, that she was under the age of 18 years. It was upon the prosecution to conclusively prove her age; and whereas she stated that she was born on 3rd October 1991, and a birth certificate was produced, the same was a copy and not the original.

Moreover, the said document was false as it purported to have been issued on 1st October 1991, which was two days before the date the complainant was allegedly born. He also asserted that as the local chief is said to have led some negotiations between the appellant and the complainant’s father, which did not bear fruit since the appellant did not have the money demanded, it is not possible that the complainant was underage and the chief could not possibly have actively condoned an illegality. He thus submitted that PW2 must have decided “to fix” the appellant for failing to part with the sum of money requested.

On ground 3, the appellant contended that the complainant presented herself to him as a mature girl who was ripe for marriage and that she indeed testified that she and he were married. He went on to submit that:

“The mere fact that the complainant made the appellant her boyfriend, had sex by consent several times, and was willing to get married to the appellant, shows that the complainant presented herself before the appellant as a mature girl ready to get married. After the parents of the complainant were made aware of the same, they approached the appellant for discussions on the way forward and, if the appellant had agreed to pay the sum requested, they would not have reported. It is clear therefore that the charges facing the appellant were driven by ill-will and vendetta for non-payment of Sh80,000”.

Basing his submissions on section 8(5) and (6) of the Act, the appellant posited that he had a reasonable basis for believing the complainant was over the age of 18 years at the time of the alleged offence, which was “a subjective test with an objective element” which related to his capacity to evaluate the consent and, if so, reasonably believe it, which he did. He thus made the case that the evidence did create a reasonable doubt as to his guilt and was thus entitled to an acquittal in light of section 111 of the Evidence Act.

The principal prosecution counsel opened her brief objection to the appeal by submitting that “the offence was proved because the appellant impregnated the complainant and so it is obvious defilement occurred. The complainant was still school-going and so incapable of giving consent.” She referred to section 43(4)(7) of the Act for that proposition.

When the court asked her the exact date when the offence is supposed to have been committed, she was unable to pinpoint any but referred to the complainant’s pregnancy, whereupon the court asked why it took so long for the appellant to be charged, in fact long after the child had been born, but she was unable to offer any explanation and there was none on record.

She conceded that indeed there had been negotiations in which the complainant’s father had sought some Sh80,000 from the appellant, which he was unable to pay, before the charges against him were laid.

The senior principal prosecuting counsel concluded her submissions with the statement which captures the dilemma presented by cases such as the one before the court, by stating that: “It is unfair for the appellant to be sentenced to 15 years imprisonment but that is the law and there is nothing we can do about it.”

The court then countered the prosecution’s observation and questioned whether a court of law can declare itself powerless in the face of obvious injustice as conceded by the State.

The appellant, in his response, reiterated that the birth certificate produced misled the trial court, and the first appellate court failed to properly re-evaluate the evidence and; find that he did reasonably believe the complainant to have been over 18 years old; take issue with the non-production of the original birth certificate, and find that the complainant’s father would not have entered into negotiations and asked for Sh80,000 before the local chief, had the complainant been under age; find that had he paid the money the charges against him would not have been laid; and that it would not have been necessary for the complainant to be threatened and detained in custody by the police for three days to force her to record a statement and testify against him.

The appellant concluded by complaining that it was harsh and unfair for him to be jailed for 15 years, yet the complainant is his wife and he has responsibilities to take care of her and their child.

In its analysis of the law pertaining thereto, visa vis the evidence presented, the Court of Appeal noted that one of the appellant’s major complaints was that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There was no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt. That has been the consistent holding of this court as was in the case of Hadson Ali Mwachongo Vs Republic [2016] eKLR, where the court held that: “The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.

“In Alfayo Gombe Okello Vs Republic Cr. App. No. 203 of 2009 (Kisumu): This court stated as follows; “In its wisdom, Parliament chose to categorise the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).”

In the present case, the appellant complained that the prosecution did not produce the original birth certificate. Rather, what was produced was a photocopy of the alleged birth certificate, which copy was not certified as required by section 66 of the Evidence Act when permitting the production of secondary evidence if primary evidence, which is the document itself, is not produced for the inspection of the court and the contents of the document are sought to be proved by secondary evidence under section 64 of the Evidence Act. The appellant contended that the original document would have been the best evidence, failing which a certified copy should have been produced.

In the submissions opposing the appeal, the respondent’s counsel did not address that aspect of the appellant’s case at all, and the court felt it was plainly right in arguing that what was produced was not a document that could be relied on in proof of the complainant’s age.

Things were only made worse by the fact that the document itself purported to have been issued before the birth of the complainant, evidence of which was purported to be, which was a logical impossibility. The document, as is, was therefore of clearly no probative value.

There was no age assessment as such that was done on the complainant, while the P3 Form that was produced indicated 17 years as the approximate age of the person examined, namely the complainant. The other evidence of age was that of the complainant herself which, other than being hearsay in character, was no more illuminating. She stated that on 14th November 2009, she got married to the appellant and she was about 17 years, having been born on 3rd October 1991. Simple arithmetic showed that, as of that date, she would have been 18 years and one month old. She stated that she conceived in May 2009, which would place her age at 17 years and six months at the time but, one cannot speak competently on her date of birth as she cannot have witnessed it and the only document that was produced of the same was of no probative value, as earlier stated.

Her father’s testimony regarding her age was simply that she was born in 1991. He did not give an exact date. Neither did her mother, who was content to merely say that the complainant was 17 years and five months when she exhibited signs of pregnancy. The totality of the evidence on age was that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt. The court, therefore, agreed with the appellant’s complaint that had the judge gone into an analysis of the evidence with the thoroughness that was required of her, she would probably have arrived at a different conclusion. In failing to engage in that exhaustive re-evaluation, she fell into error and the lingering doubts must be resolved in favour of the complainant.

The next troubling issue was that the complainant’s evidence appeared to have been procured by duress from the police. She stated as follows;

“My parents chased me away when they realised that I was pregnant. I was then six months pregnant. I went and lived with the accused and, when I was arrested, I refused to tell the police anything. I was locked in for three days. I now did my statement and was released; I went home. The accused person was arrested. The accused had another wife but he rented for me a house in Makuyu. I was a second wife. I now have his child.”

The pressure also seems to have come from her parents to whom she wrote some two letters threatening to kill herself. The court wondered and questioned whether it is lawful for a girl who is already over 18 years of age and is a mother, and who has chosen not to testify against the father of her child, whom she considered to be her husband, to be locked up in police cells to force her to testify against the man. The court stated that such kind of conduct on the part of the police raised serious doubts as to the bona fides of the prosecution.

In this case, it was made worse by the admitted demand by the complainant’s father, in a meeting at the chief’s office, attended by two elders no less, for the sum of Sh80,000 from the appellant who, incidentally, had been his tenant.

His testimony was that; “After the girl cleared her exams, she went missing. After I had been told, I had the chief summon the accused and was told to move out of my houses. When she went missing, my wife saw her in the house of the accused. I went and informed the police and they went for her. This girl had written some letter while they were together but left after putting the letter on the door pigeon. The girl was born in 1991. She was not 18 years at the time she became pregnant. She became 18 years after the birthday. Later, the accused was arrested and charged.

The chief had said we agree and I asked for Sh80,000. He said that he cannot agree. If he paid, we could have sat and sorted out. The chief and the two elders were present. The child is now with me. She now gave birth. Even when she was in the maternity, the accused came to see her. He was arrogant and was stating that this is his child.”

During cross-examination the father stated that the Sh80,000 “was to take care of the education expenses” he had used on the complainant and not dowry, but the critical point was the admission that had it been paid the matter would have rested.

The court, after careful consideration, observed that the picture that emerges is of a father righteously indignant that his daughter has been seduced and put in the family way, and who would have the culprit prosecuted unless he would pay some kind of compensation.

This, too, raised questions as to whether the prosecution was for the proper purpose of enforcing the law or settling a score. The effect was to whittle the reprobate value of the father’s evidence and to lend credence to the appellant’s contention that both the father and the chief did know that the girl was of age.

The last issue for determination was the appellant’s defence that he believed that the complainant was over 18 years old. He maintained that he had a relationship with her and that she was of a marriageable disposition. When she got pregnant, she came to his house and in fact the investigating officer found her with the appellant’s wife. The complainant knew that he was married and she was prepared to be his second wife.

The Act provides as follows in section 8(5) and (6):

“(5) It is a defence to a charge under this section if-

1. it is proved that such child, deceived the accused person into believing that he or she was over the age of 18 years at the time of the alleged commission of the offence; and
2. the accused reasonably believed that the child was over the age of 18 years.

(6) The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

Subsection (5) states that it is a defence to a charge of defilement if the child deceived the accused person into believing that she was over the age of 18 years and the accused reasonably believed she was over 18 years. We think it a rather curious provision in so far as it is set in conjunctive as opposed to disjunctive terms, which would seem to be more logical as opposed to the current rendition.

The learned judges of Appeal stated that they would think that once a person has actually been deceived into believing a certain state of things, it adds little to require that his such belief be reasonably held. Indeed, a reading of subsection (6) seems to add a qualification to subsection (5)(b) that separates it from the belief proceeding from deception in subsection (5)(a). We would therefore opine that the elements constituting the defence should be read disjunctively if the two sub-sections are to make sense.

Whereas indeed the complainant was still in school in Form 4, that alone would not rule out a reasonable belief that she would be over 18 years old. It was also germane to point out that a child need not deceive by way of actively telling a lie that she is over the age of 18 years.

In a picturesque exposition of the need for law reform in this area of sexual offences, the court albeit in Orbiter rendered itself thus: We need to add as we dispose of this appeal that the Act does cry out for a serious re-examination in a sober, pragmatic manner. Many other jurisdictions criminalise only sexual conduct with children of a younger age than 16 years.

We think it is rather unrealistic to assume that teenagers and mature adults in the sense employed by the English House of Lords in Gillick Vs West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, do not engage in, and often seek sexual activity with their eyes fully open. They may not have attained the age of maturity but they may well have reached the age of discretion and are able to make intelligent and informed decisions about their lives and their bodies.

The Court of Appeal noted that where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons less than the age of 16, which is the age of consent, is criminalised and even then the sentences are much less stiff, at a maximum of two years for children between 14 to 16 years of age.

(See Archbold Criminal Pleading, Evidence and Practice, [2002] p1720).

The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.

Held

Taking the totality of the evidence and in all the circumstances of the case, the appellant reasonably believed that the complainant was over the age of 18 years.

The burden of proving that deception or belief fell upon the appellant, but the burden is on a balance of probabilities and is to be assessed on the basis of the appellant’s subjective view of the facts.

The appeal was allowed, the conviction quashed and the sentence set aside. The appellant was set free, unless lawfully held.

Decisions of the High Court

Criminal Law: Arrest and investigation by police officers

An arrest of a suspect by the police should only be made after the case has been investigated with sufficient evidence requiring an answer from the suspect, and the starting point for the investigating officer is not to depart from the enforcement of a right to a fair hearing;

Mohamed Feisal and 19 others Vs Henry Kandie and seven others (Kajiado High Court Petition No. 14 of 2017)

Brief facts

In this case, the petitioners were arrested by police officers around Tumaini Supermarket area of Ongata Rongai town, Kajiado County, on the evening of 4th June 2016 at around 9.00 pm while engaging in normal business. They were then bundled into a police vehicle and threatened by the police officers against making any calls. Two of the arrested persons defied this order and called the twentieth petitioner, who is an advocate of the High Court of Kenya, to come to their aid. Upon the advocate’s arrival, he explained to the police officers the reasons and circumstances for being at the scene, but was instead threatened with arrest and chased away by the police officers.

The petitioners were held in the police vehicle from the time of arrest until 12.20am on 5th June 2016, when they were taken to Ongata Rongai Police Station, booked in and placed in custody without being informed of the reasons for their arrest. The advocate pursued the police motor vehicle to the station where he pressed the officers for the reasons for the arrest of the petitioners, while at the same time trying to explain to the officers the rights of arrested persons.

That instead, the advocate was met with hostility and in the end was arrested on the charge of creating a disturbance in a Police Station vide OB 02/5/2016, while the other petitioners were booked for the offence of being idle and disorderly.

The 19 arrested persons were released unconditionally on 5th June 2016 at about 10.35am after spending a total of 15 hours in custody with no charge being preferred against them, while the advocate was released on a cash bail of Sh5,000 after spending 12 hours in police custody.

Aggrieved by the conduct of the police officers, the petitioners moved to the High Court on the grounds that the respondents had breached their fundamental rights, as guaranteed by the Constitution, by unlawfully arresting and detaining them. The petitioners argued that the offences for which they were arrested and detained are minor and ought not to have warranted their right of liberty and freedom of movement being violated through incarceration for up to 15 hours and thereafter being released without any charges being preferred against them.

They also argued that their constitutional right to representation by a person of their choice was infringed upon by the arrest and detention of their advocate, even after the advocate had intimated to the police officers that he would pay cash bail for all the petitioners as well as represent them in court.

For the above reasons, the petitioners sought the following remedies from the court:

1. A declaration that the conduct of the respondents is contrary, to and inconsistent with, the provisions of Article 10 of the Constitution of Kenya 2010;
2. A declaration that the respondents violated their constitutional rights and in particular Articles 20(1) and (2), 24(1), 25(c), 27(4), 29, 31, 39, 47, 50(i) and 51 of the Constitution;
3. A declaration that no person should be held in remand or custody for an offence punishable by fine only, or by imprisonment for not more than six months, and that no cash bail shall be imposed on such offender either by a police officer or any court of law;
4. An order that the arrests and incarceration of the first to 19th petitioners each for a period of 15 hours by the respondent for alleged offences of being idle and disorderly, and failure to produce them in court, was unconstitutional;
5. An order that the arrest and incarceration of the twentieth petitioner for a period of 12 hours by the respondents for an alleged offence of creating disturbance was unconstitutional;
6. An order for adequate compensation damage for unlawful arrest and incarceration, and for deprivation of their constitutional right to freedom of movement and their liberty by respondents.

The respondents, on their part, defended their action by stating that police officers could arrest any person upon reasonable grounds that the person either have committed, or are about to commit, a cognizable offence and that the petitioners had failed to demonstrate that the respondents acted maliciously or outside their powers or that the arrests were commenced without proper or reasonable foundation. They also contended that the petitioners had failed to specify the manner in which the respondents had violated or infringed on their fundamental rights and freedoms.

Issues for determination

Whether the arrest and detention of the petitioners was a violation of their fundamental rights and freedoms.

Held

In allowing the petition, the court held, among others, that:

• As a general rule, an arrest of a suspect should not be made unless and until the case has been investigated with sufficient evidence requiring an answer from the suspect and the starting point for the investigating officer is not to depart from the enforcement of a right to a fair hearing;
• The arrest or detention of a lawyer at a police station for the sole purpose of representing his or her client is a violation of the client’s right to a fair trial and to be represented by a person of his or her own choice.

Gender equality: Sexual orientation

Lack of definitions in the statute per se does not render the impugned provisions of a statute vague, ambiguous or uncertain where such phrases or words have been clearly defined in law dictionaries, judicial pronouncements and other legal reference sources.

Sections 162(a) (c) and 165 of the Penal Code (Cap 63), which criminalises unnatural offences and indecent practices between males, are constitutional.

EG and seven others Vs Attorney General; DKM and nine others (Interested Parties); Katiba Institute and another (Amicus Curiae) Petition No. 150 and 234 of 2016 (consolidated)

Introduction

These two consolidated cases emanated from the public debate that Kenya’s laws that discriminate against homosexuals (or more precisely Lesbians, Gay, Bisexuals, Transgender, Intersex and Queer (LGBTIQ) persons, based on their sexual orientation, are unconstitutional and therefore void. The basis of this has been the evolution of thinking around human rights, so that human rights are now considered to include LGBTIQ rights and that human rights cannot be implemented selectively. But others seem to reason that this kind of thinking is based on opportunism by the proponents of human rights for the LGBTIQ community and, therefore, has no place in law.

These views, behind which strong convictions indubitably lie, are varied. A lot of them are informed by the reality that the LGBTIQ community is hardly a popular or accepted group in the Kenyan society. This in turn makes the community subject to physical and sexual harassment and exposure to the risk of criminal prosecution and imprisonment because of the climate of social opprobrium towards them perpetuated by the criminalisation of their sexual orientation and identity.

The common thread in the two petitions is that they both challenged the constitutionality of sections 162(a) (c) and 165 of the Penal Code (Cap 63) on grounds that the provisions have in effect, or are in practice, applied to criminalise private consensual sexual conduct between adult persons of the same sex. The petitioners contend that the provisions are vague and uncertain, because they breach the principles of legality and rule of law and infringe the rights of Kenyan citizens.

The petitions question the constitutional legitimacy of the State in seeking to regulate the most intimate and private sphere of conduct of Kenyans, regardless of their sexual orientation. They argue that to the extent that the impugned provisions purport to criminalise the relevant conduct, they are unconstitutional, and by dint of Article 2 of the Constitution are null and void to the extent of the inconsistency because they: –

1. Violate Articles 27 (Equality and freedom from discrimination), Article 28 (Human dignity), Article 29 (Freedom and security of the person), Article 31 (Privacy) and Article 43 (Economic and social rights – specifically health);
2. Contravene common law and constitutional principles (including Articles 10 and 50 of the Constitution) relating to legal certainty on account of their vagueness and uncertainty and, consequently, cannot operate to create criminal penalties;
3. Violate International law, which has been incorporated as part of domestic law by virtue of Article 2 of the Constitution;
4. That the principle of legality requires that criminal offences be clearly, precisely and comprehensively drafted so as to be understood by ordinary Kenyan citizens.
5. That the impugned provisions fail intelligibly to define the conduct to which they relate, hence, they violate the constitutional principle of the rule of law in Article 10(2)(a) of the Constitution, the common law principle of legal certainty and the right to a fair hearing provided under Article 50(2)(n)(i) of the Constitution.

On their part, and in support of the first petition, the eight petitioners in Petition No. 234 of 2016 challenge the constitutionality of sections 162(a) (c) and 165 of the Penal Code. They argued that the two provisions violate Articles 27(4), 28, 29, 31, 32, 43, 50 of the Constitution.

They also contended that the impugned provisions undermine fundamental human rights guaranteed by Articles 1,2,3,7,9,12 and 28 of the Universal Declaration of Human Rights (UDHR); Articles 2.1, 17.1, 6.1, 7,9.1, 17, 17.1, and 26 of the International Covenant on Civil and Political Rights (ICCPR); Articles 2.2 and 12.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); Articles 2, 3, 4, 6, 10, 19 and 28 of the African Charter on Human and People’s Rights (ACHPR) and Resolution 275 of the ACHPR.

They also sought a declaration that sexual and gender minorities are entitled to the right to the highest attainable standards, including the right to healthcare services, as guaranteed in Article 43 of the Constitution.

On the basis of the foregoing, they asked the court to give meaning to the provisions of the Constitution that they claim are offended by section 162(a)(c) and 165 of the Penal Code by declaring them null and void. The petitioners also sought an order directing the State to develop policies and adopt practices prohibiting discrimination on grounds of sexual orientation and gender identity or expression in the health sector.

Brief facts

In the first petition, the petitioner EG deposed that he was emotionally, affectionately, sexually and spiritually attracted to persons of his own sex, that is, to male persons, and, as an openly gay person living in Kenya, he has experienced discrimination and hostility on several occasions. In 2011, he deposed that he was denied service at a barbershop at 20th Century Plaza along Mama Ngina Street, Nairobi, despite having patronised the shop for over one year. The reason given was that other patrons had complained about the barbershop providing services to him and that the clients did not want to be associated with Lesbians, Gay, Bisexuals, Transgender, Intersex, and Queer LGBTIQ persons; that he has been a target of numerous threatening, insulting and death messages on Facebook and other social media, and, that, on 10th May 2015, the Weekly Citizen posted an article claiming to unveil Kenya’s top gays, including him and other individuals, thus violating their right to privacy; that a client of the National Gay and Lesbian Human Rights Commission (NGLHRC) was on 18th December 2015 fired from his job by a flower handling company, and his employer told him: “People like you are not allowed in the office.

On another occasion, one of his friends had the word “shoga” (homosexual) written on his car and on the door to his house in Nairobi, and, feeling intimidated and threatened, he moved out of his home to avoid the stigma; that he has been forced to limit the stigma by keeping a low profile by limiting his social life and has lived in constant apprehension of the risk of arrest, prosecution and conviction for being a gay person.

That between November and December 2015, one of their clients and a founder of a lesbian and bisexual women’s group in Mombasa was targeted by a group of vigilantes in Shimo la Tewa area who assaulted her and threatened to kill her, forcing her to flee from her home; that on 24th May 2015, one of their clients was assaulted by police officers at Parklands Police Station, where he had gone to report loss of his property, for ‘dressing very gay”, while another person was assaulted on 28th February 2016 for working with LGBTIQ.

That on 27th December 2015, yet another client was assaulted and evicted by her landlord for watching a sex movie with her girlfriend while naked and, lastly; that on 18th February 2014, some parliamentarians issued a statement calling for the arrest of all homosexual persons and incited the public to arrest them where the police failed to do so.

The petition was supported by expert witness testimonies from Prof Dinesh Bhugra, Prof Chris Beyrer and Prof Lukoye Atwoli.

Prof Bhugra deposed that he was the President of the World Psychiatric Association (WPA) from 2014-2017 and that WPA considers same-sex attraction, orientation and behaviours as a normal variance for human sexuality; and recognises the universality of same-sex expression across cultures and that same-sexual orientation arises in all cultures worldwide.

Further, that WPA considers sexual orientation innate, and determined by biological, psychological development and social factors and recognises the multifactorial causation of human sexuality, orientation, behaviour, and lifestyle.

According to Prof Bhugra, considerable scientific research has been undertaken on the subject but that the exact mixture of factors giving rise to sexual orientation has not been conclusively established, and the same position statement states that approximately 4 percent of the world’s population identifies with same-sex orientation.

With literature support, he went on to quote the Position Statement which states, inter alia, that WHO accepts same-sex orientation as a normal variant of human sexuality, and that the United Nations Human Rights Council, 2012, values LGBT rights. In his opinion, modern scientific and medical standards recognised that there was nothing disordered about same-sex sexual orientation or behaviour, which was not any kind of illness or disorder but part of the variation of human beings, which occurs naturally by reference to multiple variations in fundamental characteristics and attributes. He also cited the Psychological Society of South

Africa and the Psychological Association of the Philippines, both of which upheld the same view.

Prof Bhugra argued that same-sexual orientation is a natural variation within human sexuality and not any kind of illness or disorder, is not a suitable subject matter susceptible to treatment, and that attempts to treat and change sexual orientation are harmful to the mental health of persons subjected to such attempts and, therefore, unethical. Prof Bhugra quoted the Position Statement to the effect that discrimination and stigmatisation have negative health consequences on LGBT people and that LGBT individuals show higher,

unexpected rates of psychiatric disorders and, once their rights and equality are recognised, this rate starts to drop.

Citing his own research and others, Prof Beyrer deposed that MSM (men who have sex with men) have been a vulnerable group throughout the global HIV epidemic and that laws criminalising consensual adult same-sex, social stigmatisation, and discrimination have exacerbated health risks facing MSM; promoted violence against them and restricted their access to adequate prevention and medical treatment.

According to research, data on this burden is incomplete; that individual country reports vary widely on HIV prevalence, incorporate exceedingly small samples of MSM for studies, and oftentimes provide very limited surveillance of how HIV impacts MSM.

Prof Beyrer deposed that HIV infection among MSM tends to be higher in countries criminalising same-sex, as compared with countries which do not criminalise. Further, he deposed that healthcare providers often carry their own biases against MSM, which can minimise or prevent access to appropriate healthcare for MSM. He also deposed that many MSM fear testing, counseling and treatment services due to social stigmatisation, potential conflict, violence, arrest, extortion, blackmail by the police, and other public authorities and tension within their households, families, and communities. He, however, also admitted that elimination of criminalisation laws was not sufficient to address all the health needs of MSM. Prof Beyrer concluded that decriminalisation of same-sex practices is not just a battle over legal doctrine or religious principle; but it is a fight for better health for all.

Prof Lukoye Atwoli testified that, from his experience as a psychiatrist and as an academic researcher, the scientific consensus in the fields of psychiatry and psychology and related social and medical sciences, on the nature of sexual orientation, is that human sexuality is considered on the basis of three related matters – sexual orientation, sexual identity and sexual behaviour.

Further, that all human beings can be placed somewhere on a spectrum encompassing heterosexual, bisexual, homosexual and asexual. In addition, he stated that sexual orientation cannot be predicted at birth, but an individual’s sexual orientation is largely fixed and immutable.

He testified that the determinants of sexual orientation are complex and have not been conclusively, scientifically established. However, he stated that the established scientific consensus is that, as with most matters relating to humans, the causation reflects a complex mix of biological, psychological and social or environmental factors.

He referred to the working definition of sexuality as given by WHO thus:

“…a central aspect of being human throughout life; it encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy and reproduction. Sexuality is experienced and expressed in thoughts, fantasies, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships. While sexuality can include all of these dimensions, not all of them are always experienced or expressed. Sexuality is influenced by the interaction of biological, psychological, social, economic, political, cultural, legal, historical, religious and spiritual factors.” [9]

Responding to the affidavit evidence tendered by the Kenya Christian Professionals Forum (seventh Interested Party), in respect of sexual orientation of identical twins, suggesting that sexual orientation may result from genetic or biological factors, Prof Lukoye contended that such conclusion is not supported by science. In his view, no two human beings, even where sharing the same womb, experience life in an identical manner. In support of his proposition, he cited the study by K. Richardson and S. Norgate where it was noted that “equal environment assumption” (EEA) in twin studies may not hold, even in identical twins.

In his view, it is possible that the intra-uterine hormonal exposure of one twin may differ significantly from another, resulting in identical twins being exposed to different biological factors. He further stated that genetics may be one aspect of the overall picture, but even in respect of genetics, the question as to which parts of a person’s DNA are activated and which are not is a product of complex environmental factors, including intra-uterine hormonal factors; and that the expression of the genetic code in any one individual depends on many different factors.

Prof Lukoye acknowledged, however, that other studies have established that identical twins do have a higher chance of both being homosexual than non-identical twins or other siblings. He cited the study carried out by K.S Kendler, L.M Thornton, S.E Gilman, and R.C Kessler which found that biometrical twin modelling suggested that sexual orientation was substantially influenced by genetic factors, but the family environment may also play a role.

Prof Lukoye further cited other studies that support a familial link, and do not support the idea that siblings of homosexuals may behaviorally ‘acquire’ homosexuality. He also stated that contrary to the suggestion in the affidavit by Dr Wahome Ngare, identifying identical twins where one identifies as having a homosexual sexual orientation and one as having a heterosexual sexual orientation does not prove any proposition with respect to the existence of genetic or biological factors among the determinants of same-sex sexual orientation.

In his view, criminalisation of same-sex acts leads to a wide range of mental health issues and relationship dysfunction. He stated that attacks, stigmatisation or violence on LGBT people might cause trauma to the individual, leading to post-traumatic stress disorder (PTSD), depression, anxiety disorders, and substance use disorders.

Prof Lukoye Atwoli concluded that, in respect of an individual who has suffered sexual abuse as a child, it is established that one of the consequences of the abuse is that the person may act in a less sexually inhibited way in the future, regardless of whether the abuse was caused by a heterosexual or homosexual.

The petitioner, supported by the first to sixth Interested Parties, concluded by submitting that to the extent that the impugned provisions declare the conduct as unnatural or grossly indecent and criminalise it, the provisions degrade the inherent dignity of the affected individuals by outlawing their most private and intimate means of self-expression. He claimed that sexual intimacy between consenting adults is a fundamental part of the experience of humanity and an essential element of how individuals express love and closeness to one another; and, establish and nurture relationships.

He further argued that to criminalise one’s conduct of engaging in sexual intimacy in private with another consenting adult, and in a manner which causes no harm to any third party or to the parties so engaging, amounted to a fundamental interference in the person’s experience of being human and their personal dignity and privacy and amounted to degrading treatment.

He was of the view that where the law criminalises consenting adult sexual intimacy only to persons of a certain sexual orientation, such a law was plainly discriminatory and fundamentally impaired access to adequate healthcare services and jeopardised public health generally. He stated that sexual orientation, which involved the expression of love and sexual intimacy between persons of the same sex (whether male or female), was an intimate and fundamental part of the human personality of a minority of persons across all places and times worldwide.

He further contended that sexual orientation was intimate and was determined by biological and psychological development, and that same-sex attraction, orientation and behaviour was considered a normal variant of human sexuality.

Lastly, the petitioner made a caveat to the extent that his petition neither concerned same-sex marriage, nor sought to legalise same-sex marriage; and, if successful, it would not have the effect of mandating or requiring Kenya to recognise same-sex marriage.

He maintained that the petition only challenged the criminalisation and severe punishment under the criminal law of a section of Kenyan society because of the fundamental and innate characterisation of their sexual orientation.

The Attorney General, in his response, maintained that the Constitution recognises marriage as a union of two consenting adults, that is, male and female, and, that the legislative function of the State is exercised by Parliament, hence, the court cannot compel the Government to legalise homosexuality by amending the impugned provisions. He also stated that the sexual orientation of an individual is fixed at birth latest and cannot be changed by any means.

The respondent further stated that the court would be overstretching its mandate if it granted the orders sought, and, if granted, the orders would have a drastic impact on the cultural, religious, social policy and legislative functions in Kenya as it would amount to legalising homosexuality through the back door.

The Kenya Christians Professionals Forum (seventh interest party) objected to the petition and contended inter alia that the Constitution confers the legislative mandate on Parliament, hence the Petition aims to use judicial craft to legitimise gay liaisons and such other indecent offences and create a new breed of rights which do not exist in the Constitution. In addition, it argued that no right confers a cover to an individual to engage in illegal criminal conduct.

It further stated that the very nature of criminal law is to circumscribe conduct that is considered wrong, the content often being moral, hence, the argument that morality cannot be used must fail. On the alleged vagueness of the impugned provisions, it submitted that the petitioners’ contention that the provisions offend the right to equal treatment for persons of homosexual orientation, is by itself an admission of the certainty of the provisions. It also states that the provisions clearly criminalise homosexual carnal knowledge.

It further contended that it is unsustainable to allege unfairness when society frowns upon persons who are deemed to engage in criminal conduct. In addition, it argued that the law is an expression of moral inclinations in the society; that in the realm of criminal law, there is no requirement that there has to be an individual victim for a crime to be complete; and, that the alleged violation of constitutional rights cannot arise since the conduct in question is illegal. Lastly, it submitted that no evidence has been adduced to show that persons engaged in homosexuality are denied medical care.

Its chairperson, Anne Mbugua, further deponed that criminalisation of homosexuality is within the confines of the law and that individual liberty is circumscribed where it offends common good and public policy and that the State has a duty to protect the morals and traditional values recognised by the community. Further, the quest to validate homosexual law is an assault on Article 45 of the Constitution. Moreover, that Article 24 provides for a limitation of rights, which limitation is justifiable on the basis of public interest and public policy, and that the Constitution does not legalise homosexual conduct nor does it envisage the use of an interpretation intended to circumvent the will of the people of Kenya.

The seventh Interested Party also filed a witness affidavit sworn by Dr Johnson Kilonzo Mutiso on 22nd February 2018, in response to the affidavits sworn by Prof Dinesh Bhugra and Mr Annand Grover, as well as that of Prof Lukoye Atwoli. In his view, matters relating to same-sex attraction should not be given a narrow reading or interpretation of medical or scientific literature without linking them to a wider knowledge and experience in the relevant fields, such as psychiatry and psychopathology.

According to Dr Kilonzo, there was no scientific and medical research that supports the claim that people are “born gay” or that same-sex attraction is innate. He contended that the popular literature from western countries that have decriminalised homosexual behaviour tended to be slanted or consistently interpreted to favour the social, legal or political situation preferred by the pro-homosexual groups (the gay lobby).

He highlighted some literature with a multi-textured view of the matter and contended that the phrase sexual orientation has never been accepted in any binding UN documents and is highly controversial, with nations deeply divided over the same. Based on his knowledge, professional experience and comparative review on the topic, Dr Kilonzo deposed that research is accumulating that stipulates that “people are not born gay”; and that no research has proven that same-sex attraction is an immutable condition like race or sex.

To debunk this fallacy, he cited the American Psychological Association, 2008, on the subject to contend that there is no consensus among scientists on the exact reasons why an individual develops a heterosexual, bisexual, gay or lesbian orientation.

According to Dr Kilonzo, reputable scientific research shows that same sex attraction develops because of complex interaction factors, including experience during childhood and adolescence. This “nurture” factors, in his opinion, were the environmental factors that were largely of influence as opposed to “nature” or genetic factors. Nurture factors are said to include the relationship with parents and peers during early childhood, sexual abuse and gender non-conformity.

Dr Kilonzo also referred to Floyd Godfrey’s Book titled ‘A young Man’s Journey; Healing for young men with unwanted sexual feelings’ where it is argued that there are a variety of different contributing factors toward the development of sexual orientation and that not everyone may have every single one of those contributing factors and that one can unlearn homosexuality through gender reparative therapy.

He argued that Prof Atwoli’s views present a theory of criminology and deviance, which is unique to pro-gay literature and not supported by general theories of crime. He also stated that contrary to Prof Atwoli’s statement there was no basis for the link between gay behaviour and sexual abuse of minors, and that studies have shown that gay lifestyle can promote same-sex pedophilia. He contended that the justification for decriminalisation of homosexuality and the argument that sexual conduct between consenting adults ought not be regulated by the State was merely a regurgitation of the liberal philosophy of John

Stuart Mill. Lastly, Dr Kilonzo argued that sexual behaviour is essentially social with consequences on society; hence, considerations relating to legalisation or criminalisation of such sexual behaviour should be left to Parliament.

Issues for determination

1. Whether sections 162 (a) (c) and 165 of the Penal Code are unconstitutional on grounds of vagueness and uncertainty;
2. Whether the impugned provisions are unconstitutional for violating Articles 27, 28, 29, 31, 32, 43 and 50 of the Constitution.

In an effort to answer the above questions, the court first observed that certainty is generally considered to be a virtue in a legal system while legal uncertainty is regarded as a vice.

Uncertainty undermines both the rule of law in general and the law’s ability to achieve objectives such as determining anti-social conduct.

Counsel for the petitioners, supported by the first to sixth and eighth Interested Parties, attacked the impugned provisions on grounds of vagueness, ambiguity, and uncertainty and submitted that the provisions failed the constitutional and common law muster. They cited Article 10(2) (a) and the preamble to the Constitution on the requirement of legal certainty.

They also argued that the provisions are so vague that they violate the right to a fair hearing under Article 50. Further, they argued that section 162 does not define the phrases, “Unnatural offences,” “against the order of nature.” They submitted that it is unclear whether the phrases mean sexual intercourse or include oral, anal, vaginal sex, or whether they include any other contact with the genital organ of another person.

Regarding section 165, they submitted that the phrases “indecency with another male person” and “any act of gross indecency with another male person” are unclear.

On the other hand, the respondent’s counsel, supported by the seventh, ninth, and tenth Interested Parties, contented that the provisions were clear. On her part, the respondent’s counsel cited the definition in Black’s Law Dictionary and contended that any other form of sexual act, other than what is in the order of nature capable of producing off-springs, is unnatural and therefore punishable under the impugned provisions.

On what indecent practices are, the counsel argued that section 2 of the Sexual Offences Act defines an indecent act and penetration, and contended that the anus is a genital organ.

Section 162 of the Penal Code provides as follows: –

Unnatural offences

Any person who:

1. Has carnal knowledge of any person against the order of nature; or
2. Has carnal knowledge of an animal; or
3. Permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for 14 years.

Provided that, in the case of an offence under paragraph (a), the offender shall be liable to imprisonment for 21 years if —

1. the offence was committed without the consent of the person who was carnally known; or
2. the offence was committed with that person’s consent but the consent was obtained by force or by means of threats or intimidation of some kind, or by fear of bodily harm, or by means of false representations as to the nature of the act.

On the other hand, section 165 of the Penal Code provides that: –

Indecent practices between males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

The court observed that from the above provisions it is true that the Penal Code does not define the phrases “unnatural offences” and “against the order of nature” and proceeded to ask itself whether lack of definition renders the provisions uncertain, vague and unambiguous.

Placing reliance on the various treatise, texts, journals and comparative judicial experiences, the court stated that judicial pronouncements have construed the term ambiguity as having more than one interpretation: a highly general sense that pertains to language use, and a more restricted meaning that deals with some fundamental properties about language itself.

The words “ambiguous” and “ambiguity” are often used to denote simple lack of clarity in language. The word “ambiguous” means doubtful and uncertain.

The word “ambiguous” means capable of being understood in more senses than one; obscure in meaning through indefiniteness of expression; having a double meaning; doubtful and uncertain; meaning unascertainable within the four corners of the instrument; open to construction; reasonably susceptible to different constructions; uncertain because of being susceptible to more than one meaning; and the synonyms are “doubtful”, “equivocal”, “indefinite”, “indeterminate”, “indistinct”, “uncertain”, and “unsettled.”

According to the Black’s Law Dictionary, ‘carnal’ means ‘of the body’; relating to the body; fleshly; sexual. ‘Carnal knowledge’ is defined as the act of a man in having a sexual bodily connection with a woman. Carnal knowledge and sexual intercourse hold equivalent expressions.

The court cited with approval the Noble Vs State 22 Ohio St. 541 where it was held that from very early times, in the law, as in common speech, the meaning of the words ‘carnal knowledge’ of a woman by a man has been sexual bodily connections; and these words, without more, have been used in that sense by writers of the highest authority in criminal law, when undertaking to give a full and precise definition of the crime of rape, the highest crime of this character.

The phrase against the order of nature has been judicially defined. In Gaolete Vs State [1991] B.L.R. 325, the court had this to say on ‘carnal knowledge:

‘“Carnal knowledge” is not defined in the Penal Code, but its accepted meaning is “sexual intercourse”. There must be penetration, however slight, and emission of semen is not necessary. With particular reference to the offence with which the appellant was charged (otherwise known as sodomy), penetration per anum must be proved. The other party involved in the intercourse may be a man or a woman. It is the penetration through the anus that makes the intercourse “against the order of nature” and therefore provides the other element of the offence.’ (Emphasis added).

The Law Dictionary defines the term ‘unnatural offence’ as “the infamous crime against nature; for example, sodomy or buggery. The term buggery has been defined elsewhere to include both sodomy and bestiality. Sodomy, in its broadest sense, has been defined to include carnal copulation by human beings with each other or with a beast. Whereas the term bestiality is generally understood to mean an act between mankind and beast, some authorities refer to the act with an animal as buggery, and also define bestiality as including sodomy and buggery.

The phrase “indecent act” is defined in section 2 of the Sexual Offences Act [172] to mean any unlawful, intentional act which causes:-

1. any contact between the genital organs of a person, his or her breasts and buttocks with that of another person;
2. exposure or display of any pornographic material to any person against his or her will, but does not include an act which causes penetration.

The Constitution requires that judicial officers read the legislation, where possible, to give effect to its fundamental values. Consistent with this, when the constitutionality of legislation is in issue, courts are under a duty to examine the purpose of an Act and to read the provisions of the legislation so far as it is possible to conform with the Constitution.

After the above analysis, the court concluded that the phrases used in the sections under challenge are clear as defined above.

Second, the provisions disclose offences known in law.

Third, a person accused under the said provisions would be informed of the nature, particulars, and facts of the offence.

Article 27 prohibits all forms of discrimination in absolute terms. It stipulates:

1. Equality and freedom from discrimination
2. Every person is equal before the law and has the right to equal protection and equal benefit of the law.
3. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
4. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
5. The State shall not discriminate, directly or indirectly, against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
6. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
7. To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.
8. Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.
9. In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

The substance of the petitioners’ case was that the impugned provisions target the LGBTIQ community only. If understood correctly, their contestation is that the impugned provisions only apply to homosexuals and do not apply against heterosexuals.

Indisputably, there exists a presumption as regards the constitutionality of a statute. The rule of presumption in favour of constitutionality, however, only shifts the burden of proof and rests it on the shoulders of the person who attacks it. In this case, it is for the petitioners to demonstrate that there has been a clear transgression of their constitutional rights. However, this rule is subject to the limitation that it is operative only until the time it becomes clear, and beyond reasonable doubt that the legislature has crossed its bounds.

The guiding principles in a case of this nature are clear. First, the court has to establish whether the law differentiates between different persons. Second, whether the differentiation amounts to discrimination, and, third, whether the discrimination is unfair. In Willis Vs The United Kingdom no 36042/97, ECHR 2002-IV, the European Court of Human Rights observed that discrimination means treating differently, without any objective and reasonable justification, persons in similar situations. The court stated that discrimination is: –

“…a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to members of society.”

(See Andrews Vs Law Society of British Columbia [1989] I SCR 143, as per McIntyre J.)

From the above definition, it was safe to state that the Constitution only prohibits unfair discrimination. In our view, unfair discrimination is a differential treatment that is demeaning. This happens when a law or conduct, for no good reason, treats some people as inferior or less deserving of respect than others. It also occurs when a law or conduct perpetuates or does nothing to remedy existing disadvantages and marginalisation.

The principle of equality attempts to make sure that no member of society is made to feel that they are not deserving of equal concern, respect and consideration, and that the law or conduct complained of is likely to be used against them more harshly than others who belong to other groups.

The test for determining whether a claim based on unfair discrimination should succeed was laid down by the South Africa Constitutional Court in Harksen Vs Lane NO and Others] in which the court stated:

“At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on Article 9 (3), (equivalent to our Article 27). They are:

1. Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate purpose? If it does not, then there is a violation of the Constitution. Even if it does bear a rational connection, it might nevertheless amount to discrimination.
2. Does the differentiation amount to unfair discrimination? This requires a two-stage analysis: –

1. Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
2. If the differentiation amounts to ‘discrimination,’ does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation…
3. If the discrimination is found to be unfair, then a determination will have to be made as to whether the provision can be justified under the limitations clause.

The clear message emerging from these persuasive authorities, was that mere discrimination, in the sense of unequal treatment or protection by the law in the absence of a legitimate reason was a reprehensible phenomenon. But where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination.

In that regard, therefore, it is not every differentiation that amounts to discrimination. It is always necessary to identify the criteria that separate legitimate differentiation from constitutionally impermissible differentiation. Put differently, differentiation is permissible if it does not constitute unfair discrimination. The jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose.

From the above legal analysis, the learned judges observed that their reading of the challenged provisions suggested otherwise. The language of section 162 is clear. It uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.

Similarly, section 165 uses the words “Any male person.” A plain reading of the section reveals that it targets male persons and not a particular group with a particular sexual orientation.

The wording of the section left no doubt that in enacting the provision, Parliament appreciated that the offence under this section can only be committed by a male person.

In fact, the short title to the section reads: “Indecent practices between males.” The operative words here are “Any male person”, which clearly does not target male persons of a particular sexual orientation.

Held

Lack of definitions in Sections 162(a)(c) and 165 of the Penal Code does not render the impugned provisions vague, ambiguous or uncertain. The impugned phrases have been clearly defined in law dictionaries and in a catena of judicial pronouncements.

Sections 162(a) (c) and 165 of the Penal Code (Cap 63), which criminalises unnatural offences and indecent practices between males, are neither unconstitutional nor discriminatory by targeting a particular group.

The consolidated petitions were dismissed.

Decisions of the environment and land court

Compulsory acquisition of land for public use

Due diligence searches

Public land cannot be subject to compulsory acquisition under Part VIII of the Land Act 2012.

Based on the inherent danger of the search system, which is based on the Torrens System of Registration, a clear reading of Section 119 of the Land Act makes it clear that apart from a search, it is necessary for one to take further steps to ascertain the authenticity of the search and ownership of the land.

The National Land Commission Vs Afrison Export Limited and 10 Others (2019) eKLR

Brief facts

On 30th June 30, the National Land Commission (NLC) (the applicant in this case) caused to be published Gazette Notice No. 6322 announcing its intention to acquire 2.8255 ha and 2.7472 ha out of L.R No. 7879/4 for the benefit of Drive-in Primary School and Ruaraka High School. The Commission carried out a search at the Lands Office and established that the Title Deed over L.R No. 7879/4 was registered in the names of Afrison Export-Import Limited (first Interested Party) and Huelands Limited (second Interested Party) and that the same was held on freehold tenure.

The applicant claimed that it received letters dated 30th July 2015, 27th October 2015 and 16th August 2016, from Mr Francis Mburu, a director of the first and second Interested Parties, seeking compensation for their land which was compulsorily acquired by the Government way back in 1984. The land for which he sought compensation included the portion of L.R No. 7879/4 on which Ruaraka Secondary and Drive-in Primary School are currently situated.

The letters complained of historical injustices, with the first and second Interested Parties contending that the Government invaded their property and proceeded to construct schools, Government administrative offices, roads, and other support services without affording the first and second Interested Parties any compensation.

The applicant indicated that it conducted a search and also did a site visit to confirm the veracity of the first and second Interested Parties’ claims. It confirmed that indeed Drive-in Primary School and Ruaraka High School occupied 13.77 acres of L.R. No. 7879/4. The applicant stated that it reviewed the history of the land and established that the first and second Interested Parties were registered as owners of L.R. No. 7879/4 in 1981 through an indenture between Joreth Limited and themselves. It also established that Drive-in Estate

Developers Limited made an application for the subdivision of L.R. No. 7879/4 and was granted conditional approval on 28th March 1984 by the Director of Planning, Nairobi City Council.

The first and second Interested Parties wrote to the Director of City Planning on 7th February 2017, following up on Drive-in Estate Developers Limited’s letter dated 5th April 1984, through which it cancelled the subdivision scheme.

The applicant also stated that the Director of Development Management and Regularisation responded, stating that the application for subdivision of L.R No. 7879/4 was halted and no further processing took place following the letter dated 5th April 1984. It further averred that the Commissioner of Lands wrote to Drive-in Estate Developers Limited on 18th December 1984 expressing the Government’s intention to acquire L.R No. 7879/4. The Government then went ahead to construct Ruaraka High School on the land in 1984 and Drive-in Primary School in 1987.

The applicant claimed that after confirming that the land on which the two schools stood was private land, it wrote to the Ministry of Education on 29th August 2016, and 13th September 2016, seeking confirmation on the status of the schools. Through the letters, the applicant also sought compensation for the owners of the land if the schools were found to be public schools.

On 7th February 2017, the Principal Secretary, Ministry of Education, wrote to the applicant requesting that the land on which Ruaraka High School and Drive-in Primary Schools were situated be compulsorily acquired on the Ministry’s behalf. The applicant requested the Ministry of Education to have the request for compulsory acquisition made by the Cabinet Secretary, instead of the Principal Secretary. This was done vide the letter of 17th March 2017.

The applicant claims that it conducted due diligence as required by Sections 107 and 108 of the Land Act and established that the land sought to be acquired was registered in the names of the 1st and 2nd Interested Parties. The applicant also relied upon a judgment delivered by Mabeya J in Nairobi High Court Civil Case No. 617 of 2012 – Afrison Export Limited and Huelands Limited Vs Continental Credit Finance Limited, asserting that the first and second Interested Parties were the owners of L.R. No. 7879/4.

The applicant further clarified that it also put up several gazette notices expressing its intention to acquire the land for various uses, including the Outer Ring Road Improvement Project.

Further, the applicant contended that the Ministry of Education vide Gazette Notice No. 6322 dated 30th June 2017 expressed its intention to acquire parts of L.R No. 7879/4 measuring 2.8255 ha for Drive-in Primary School, 2.7472 ha for Ruaraka High School and 1.198 ha for access to the upgraded Outer Ring Road. The applicant stated that it conducted an inquiry over the land occupied by the two schools and that the first and second Interested Parties submitted a valuation report together with a claim for payment of Sh5,600,000,000 in compensation.

The applicant stated that it did its own valuation and impressed upon the first and second Interested Parties that its valuation was what would be used to determine the amount of compensation payable. The applicant’s valuation valued the land at Sh3,269,040,600 and the first and second Interested Parties had no objection to the amount. Subsequently, on 18th July 2017, the Ministry of Education wrote to the National Treasury requesting it to process the compensation in respect of the land. The sum of Sh1,500,000,000 was paid to the first and second Interested Parties, leaving a balance of Sh1,769,040,600 outstanding.

The acquisition drew a great deal of public controversy, which resulted in various entities inquiring into the matter, including the National Assembly’s Departmental Committee on Lands and Senate’s Committee on County Public Accounts. The Ethics and Anti-Corruption Commission (EACC) also launched investigations into the compulsory acquisition of the land on the basis that the compulsory acquisition undertaken by the applicant was unnecessary and not in the public interest because the land acquired was public land from the onset.

The National Assembly’s Departmental Committee on Land conducted investigations into the acquisition of the land and prepared a report dated 5th June 2018. The Committee concluded that the acquisition of the land was illegal and contrary to the Land Act; that it failed to secure the public interest by ensuring that the title to the land acquired was registered in the two schools’ names; and that it was contrary to Article 201 of the Constitution on responsible financial management. The Committee made various recommendations, including who should take responsibility for the loss of public funds.

Following these developments, the applicant brought a reference to the Court seeking a determination of, among other issues, whether the two schools sit on public land or private land; whether a search of a title deed at the lands registry is conclusive evidence of proprietorship and; what other steps, if any, the applicant and any other person should undertake to confirm the authenticity of a title deed before transacting on it.

The applicant sought a determination of these issues so as to enable it to complete the acquisition of the land occupied by the two schools, and to enable it resolve all issues pertaining to acquisition of the land. It further urged that the determination of this Reference will facilitate the preparation of the title documents in favour of Drive-in Primary School and Ruaraka High School.

Leading the other Interested Parties against the said acquisition, the Ethics and Anti-Corruption Commission challenged the process through which the compensation award was paid. It relied on the Recurrent Exchequer Issue Notification by the National Treasury dated 11th January 2018, which showed that a sum of Sh5,350,400,000 had been placed in the account for the State Department for Basic Education held in the Central Bank of Kenya.

Out of this amount, Sh1,500,000,000 was for compensation for the school land carved out of 7879/4. The EACC contended that the Ministry of Education had not budgeted for this and that Parliament did not approve the supplementary II estimates for the balance of the compensation.

Further, the EACC contended that the instructions given by the first and second Interested Parties to the applicant to pay the compensation award to Whispering Palms Limited was intended to circumvent a court order issued on 13th December 2016 in Nairobi, ELC Petition Number 1488 of 2016; Okiya Omtatah Okoiti and another Vs Afrison Export Import Limited and Others, which prohibited the applicant and other Government bodies from making further payments to the first and second Interested Parties in respect of L.R No. 7879/4.

The EACC argued that the surrender of a portion of L.R No. 7879/4 by the first and second Interested Parties, free of cost, was not a sign of goodwill and corporate responsibility but a requirement under Regulation 11 (2) of the Development and Use of Land (Planning) Regulations of 1961 promulgated under the Land Planning Act (now repealed) for approval of the subdivision scheme.

Based on the history of the land, the EACC surmised that there was no urgency necessitating the haste with which the transaction was undertaken, leading to a partial payment of compensation for the compulsory acquisition of the land on which the schools sit. The EACC believed that there was a conspiracy between the first and second Interested Parties on the one hand; and officers from the Nairobi City County, the Survey of Kenya, the Ministry of Education and the applicant to conceal the fact that the first and second Interested Parties had surrendered a portion of L.R. No. 7879/4 to the Government of Kenya as a condition for the approval of their subdivision plan in 1983.

It further faulted the applicant for failing to conduct due diligence to satisfy itself that the request for compulsory acquisition of the land occupied by the two schools met the constitutional threshold prescribed by Article 40 (3) of the Constitution, and failing to establish that the process leading to the acquisition was proper. The EACC also faulted the applicant for making the award without the surrender of the title to the applicant and the discharge of the charge registered against the title. It further contended that the applicant failed to conduct a public inquiry of persons interested in the acquisition of the land, contrary to Section 112 of the Land Act.

It urged the court to order the restitution of Sh500,000,000 and interest at commercial rates from the date of payment by the applicant to Whispering Palms Limited if the court found that the two schools sit on public land and that there was loss of public funds as a result of the part payment of the compensation award.

EACC’s further affidavit sworn on 22nd January 2019 by Mr Mwendwa gave further details on the survey of L.R No. 7879/4 undertaken by M/s Kamwere & Associates. He stated that M/s Kamwere & Associates, who had been instructed by the first and second Interested Parties prepared deed plans based on the survey of L.R No. 7879/4. The EACC averred that the preparation of the 506 deed plans, out of which 323 deed plans were submitted to Continental Credit Finance Limited, confirmed that a survey was carried out in 1985 which was based on the subdivision scheme approved in 1983.

It maintained that it was entirely upon the first and second Interested Parties, as the registered owners of the land, to complete the process of subdivision by preparing the deed of surrender and lodging it together with the mother title at the lands registry for registration and processing of the resultant titles. It further argued that the first and second Interested Parties have not lodged the mother title in respect of L.R No. 7879/4 for subdivision and creation of the titles in respect of the 196 maisonettes.

Mr Mwendwa deponed that the subdivision plan of 1983 was actualised and implemented, as can be discerned from the developments on the land, including the 196 maisonettes, the schools, the community centre, sewer lines and access roads which were included in that Plan. The EACC also contended that the first and second Interested Parties had received colossal amounts of money in compensation from the Office of the President for the 196 maisonettes.

In addition, the EACC argued that the first and second Interested Parties could have challenged the conditions set out in the approval by way of an appeal to the Minister pursuant to Section 21 of the Land Planning Act. If dissatisfied with the Minister’s decision, an applicant had the right of a second appeal to the High Court in instances where the applicant was aggrieved by the size of the land required to be surrendered for public purposes under Regulation 11(2) of the Development and Use of Land (Planning) Regulations of 1961.

Issues for determination

The applicant set out six questions for determination in this Reference. Arising from those questions, together with the Interested Parties’ responses, the following were the key issues for determination:

1. What is the construction, validity, or effect of the title over L.R No. 7879/4 and do Drive-in Primary School and Ruaraka Secondary School sit on public or private land?
2. Did the acquisition of the land occupied by Ruaraka Secondary School and Drive-in Primary School, as undertaken by the applicant, meet the threshold of public purpose? Was there loss of public funds as a result of the payment of the compensation?
3. At what stage should the applicant take possession of land that has been compulsorily acquired?
4. Is a search of a title deed at the Lands Registry conclusive evidence of proprietorship, or should one undertake other steps to confirm the authenticity of a title before transacting on it?

In an effort to answer these questions, the court noted that contrary to the assertions by the first and second Interested parties, there was evidence that the first and second Interested Parties implemented the subdivision scheme on the ground, and there were physical developments on the ground. Therefore, the planning purposes for which the public amenity plots were set aside and surrendered exist on the ground and the schools which were contemplated were duly developed and are serving that purpose.

The court observed that its view on the purported cancellation of the subdivision plan would have been different had the first and second Interested Parties demonstrated that the approved subdivision scheme was never implemented on the ground and that the intended developments were not carried out on the ground.

From the evidence tendered, the court noted that the subdivision scheme giving rise to the establishment of the two schools was processed under Section 24 of the repealed Town Planning Act and Regulation 16 of the Development and Use of Land (Planning) Regulations of 1961, which enjoined the regulatory authorities to seek the surrender of land for public utilities before approving a subdivision scheme.

The totality of the foregoing is that a registered proprietor of land under the various land regimes which existed in Kenya prior to 2012 held land subject to the written regulatory legal framework governing physical planning in the country at the time. This legal scenario obtains to date. The net legal effect is that every registered title to land is held subject to the provisions of the prevailing physical planning laws The court did not agree with arguments that there was no surrender because no instrument of surrender was executed and registered in respect of the public utility plots. To that extent, the said opined that:

“Our understanding of the physical planning laws at that time is that, once the subdivision scheme was approved and implemented on the ground, then the public utility plots were deemed to have been surrendered for the designated public amenities. The proponent of the subdivision scheme cannot rely on his failure to execute the surrender instrument to defeat the public purpose for which the plots were planned.”

“Our determination on the question of the construction, effect and validity of the title over L.R No. 7879/4 therefore is that, although L.R No. 7879/4 is still registered in the names of the 1st and 2nd Interested Parties, the title is held subject to the interest of the Government in the public amenity plots, which interest crystallised upon the Government’s approval of the 1st and 2nd Interested Parties’ subdivision scheme and subsequent implementation of the scheme on the ground. The public amenity plots include the land on which Drive-in Primary School and Ruaraka High School sit.

Similarly, the title is held subject to the interest of the State in the land occupied by the GSU. It is therefore our finding that the two schools sit on public land. Further, it is our finding that being public land, the land on which the two schools sit could not be the subject of compulsory acquisition under Part VIII of the Land Act”.

On the issue as to whether a search of a title at the lands registry is conclusive evidence of proprietorship, or should one undertake other steps to confirm the authenticity of a title before transacting on it? The court noted that once a search is issued by the Lands Office, it should be conclusive evidence of proprietorship in light of the fact that our title registration system is based on the Torrens System of registration. However, a search may not always be a true reflection of the position, as in this case where two searches carried out in the same year showed different results.

In this case, the two searches were done in the same year, emanated from the same registry and are in respect of the same piece of land. It is inconceivable that one search that was done in January 2018 would show that there were no encumbrances and yet another one done in August 2018 showed that there were two mortgages dated 29th December 1981, and 7th July 1986 respectively. The two contradictory searches showed that a search and the records held at the lands registry can be manipulated to achieve certain objectives, which in most cases are intended to deceive those relying on the search to transact on the land in question.

The court then held that:

“Based on the inherent danger of the search system which is based on the Torrens System of registration, it is necessary for one to take further steps to ascertain the authenticity of the search and ownership of the land. If the applicant had bothered to delve into the history of the title, it would have discovered that the title had two mortgages besides other entries in the register and the other transactions in respect of L.R No. 7879/4 which were not noted on the register. We appreciate the fact that searches are generated by the Registrar of Titles but the applicant being the National Land Commission, which works closely with the

Ministry of Lands under which the Registrar falls, the applicant should have, in the spirit of the Advisory Opinion of the Supreme Court in the matter of National Land Commission [2015] eKLR, gone a step further to ascertain the true status of the title to the land in question.”

The Court declined to entertain the applicant’s contention that it solely relied on the search when undertaking the compulsory acquisition of the land on which the two schools sit, was diligent and pragmatic. This is because the theme of due diligence runs throughout Part VIII of the Land Act. Section 119 of the Land Act underscores the need to undertake due diligence before payment is made. Before compensation is paid, the applicant is expected to ensure that a final survey is carried out and the acreage, boundaries, ownership, and value of the land determined. A reading of this section makes it clear that apart from a search, there were other steps that the applicant was expected to undertake.

Section 8 (2) of the Land Act obligates the applicant to establish and maintain a register containing various particulars, including the names and addresses of all persons whose land has been converted to public land through compulsory acquisition or reversion of leasehold.

It will be necessary for someone wishing to transact on land to also extend the due diligence to the register of public land maintained by the applicant. We note that the applicant did not mention the register of public land in this Reference.

Section 28 of the Land Registration Act lists overriding interests that subsist and affect land but which need not be noted on the register. One of these interests is rights acquired, or in the process of being acquired, by virtue of any written law relating to the limitation of actions or by prescription. In undertaking due diligence, one must go further and ascertain if there are any overriding interests affecting the land they wish to transact on. In light of the foregoing, our finding is that a search is not conclusive evidence of ownership. One needs to go further than a mere search.

Held

1. Drive-in Primary School and Ruaraka High School sit on public land.
2. Public land cannot be the subject of compulsory acquisition under Part VIII of the Land Act 2012.
3. Based on the inherent danger of the search system, which is based on the Torrens System of registration, a clear reading of Section 119 of the Land Act makes it clear that apart from a search, it is necessary for one to take further steps to ascertain the authenticity of the search and ownership of the land.

Decisions of the employment and labour relations court

Unfair dismissal: Remedy after three years out of work

On a successful claim of unfair dismissal by an employee who has been out of work for over three years, the remedy for reinstatement will be commuted to a normal retirement with full pension benefits under the Pensions Act and Regulations with effect from the date of the unfair dismissal.

Joyce Gesare Mainye Vs Public Service Commission & AG, ELRC Cause No. 1501 of 2015

The Claimant had joined the Civil Service as a copy typist in 1984 and rose through the ranks to the position of personal secretary I, Job Group L. She served diligently with a clean record and never received any reprimand in her long service. On 6th August 2014, the claimant was dismissed from Civil Service on account of gross misconduct.

The case against her was that an undercover officer from the Ethics and Anti-Corruption Commission, posing as a person in need of a Kenyan passport, visited her office and made enquiries on how to acquire a passport. She then requested him to present the application forms and supporting documents, and Sh4,000 for facilitation fee. Further, the undercover officer bargained and they settled for Sh3,000, which was paid and the passport was processed within three days. The undercover report was communicated to the respondent by the Ethics and Anti-Corruption Commission on 21st November 2013, addressed to the Principal Secretary, Ministry of Energy and Petroleum. The show-cause notice and interdiction letter was dated 23rd October 2014 and issued by the Ministry of Interior and Co-ordination of National Government (Immigration and Registration of Persons).

The Claimant’s response was that she took the opportunity to absolve herself from the accusations, which were defamation, as she was a law abiding citizen full of integrity. As of 13th to 14th November 2013, she worked at the Ministry of Energy until 22nd November 2013, when she was deployed to the Immigration Department, and reported on 29th November 2013.

She stated that at the time of the accusations, she was a stranger at the Immigration Department and that it was unreasonable and not conceivable that someone needing a passport would have gone to the Ministry of Energy. In her defence, she stated that it was astonishing that the undercover officer failed to take action against her at the time of the alleged accusations and instead lodged a complaint two months later.

In her view, if the investigation was carried out in good faith to unearth corruption and unethical behaviour on the Claimant’s and other civil servants’ part, the undercover officer should have apprehended the Claimant immediately it is alleged she demanded a bribe and allegedly received the bribe. The claimant concluded that the accusations were baseless, false and malicious as they were being brought at the time she had been deployed to the Immigration Department. She urged that the complaint be dismissed and she be allowed to continue in civil service.

The Ministerial Human Resource Management and Advisory Committee at the Ministry of Interior and Co-ordination of National Government considered the claimant’s case on 12th March 2014. The record of the meeting’s proceedings reproduced the history of the case and that the Director of Immigration had reviewed the case and found the claimant had merely denied her complicity in the illegal activities, which are criminal in nature and actionable in a court of law. Further that the claimant had provided no evidence to support her denial of the accusations in a bid to exonerate herself from the charges. The Director for

Immigration further noted that the Ethics and Anti-Corruption Commission forwarded to the Ministry audio/video recordings of the incident, which doubtless confirmed the charges.

The Committee concluded that the claimant’s integrity could not be trusted to perform a public duty, especially in the security department. The Committee recommended that the Claimant be dismissed from service on account of gross misconduct. The Claimant was not invited to the Committee hearing and she was subsequently dismissed from Civil Service by the first respondent vide a letter dated 19th August 2014, signed for the secretary, Ministry of Interior and Coordination of National Government (Directorate of Immigration and Registration of Persons).

The Claimant applied for a review of the dismissal decision but the first respondent disallowed the application, as vide a letter dated 25th March 2015.

In her evidence before the court, the Claimant stated that she was employed in Civil Service on 20th June 1984 and worked until her dismissal on 14th January 2014. She had served for about 30 years. Her case was that after replying to the show-cause letter she was never given a hearing and she was not given the audio/video evidence or other evidence relied upon to make the dismissal decision.

She was also not supplied with reports about the allegations. Thus, it was her case that she was dismissed without due process, the allegations being established and, in circumstances whereby she denied the accusations. She lamented that she was not given an opportunity to cross-examine her accusers or to view and listen to the audio/video that was alleged to form the basis for her dismissal.

The respondent’s witness (RW) Avisa Kiguhi Harold evidence was that in Civil Service, if misconduct involves alleged crime, the criminal matter is investigated separately and the first respondent as the employer takes administrative action separately. In cross-examination he stated that the claimant was dismissed on the basis of the report by the Ethics and Anti-Corruption Commission and not any other evidence – that the audio/video or other evidence implicating the claimant was not made available to the first respondent.

Further, the Claimant never attended the disciplinary hearing. He confirmed that he had never seen the audio/video in issue and it had not been filed in court. He testified that the main reason for dismissal was assisting the undercover agent to get a passport and that the undercover agent was never interrogated by the Ministry or the first respondent or the claimant. RW confirmed that the Claimant was dismissed without being given the record of evidence leading to her termination. RW confirmed that he had never seen the statement by the undercover agent and such a statement had never been filed in court. RW confirmed that the Claimant’s dismissal was effective 4th January 2014, whereas she was interdicted on 23rd January 2014.

Held

The court considered the evidence and the submissions and made a finding that the termination was unfair for want of due process and a genuine reason for the dismissal.

Article 236 of the Constitution of Kenya required that the Claimant is accorded due process prior to the dismissal. Section 41 of the Employment Act 2007 provided that the Claimant be accorded notice and a hearing. In the present case, it was clear that the allegations against the Claimant were serious and criminal in nature, as was reckoned by the Director of Immigration.

Nevertheless, the matter was treated casually and no criminal investigations and proceedings were undertaken in that regard. The Claimant denied the allegations and the court finds the denial to have been her complete defence so that it was not her burden to provide evidence to establish her denial as the Ministerial Committee misdirected itself in the matter.

The court considered the claimant’s age and the more than three years which had lapsed since her dismissal and held that reinstatement would not be a practical and convenient remedy in the circumstances of the case.

The dismissal was termed unfair and unlawful. The claimant was deemed to have retired normally (having attained the age of over 50 years) and with effect from the date when the first respondent made the unfair dismissal decision and the retirement is with full pension benefits under the Pensions Act and Regulations accordingly.

Claim Allowed

Statutes and Sections of the law that were declared unconstitutional by the courts during the reporting period, 2018-2019

Contempt of Court Act

Kenya Human Rights Commission Vs Attorney General and Another, High Court at Nairobi, Constitutional Petition No 87 of 2017

Brief facts

The petitioner challenged the constitutionality of the Contempt of Court Act. It said that in purporting to limit the powers of the court to punish for contempt, it took away power from the courts and eroded their independence. The petitioner added that the Act violated the constitutional principle wherein judicial power was vested in the Judiciary and that the Act was enacted without public participation.

Specifically, the petitioner said that section 10 of the impugned Act was vague and it denied a contemnor defences available under the Act and it was therefore a violation of the right to a fair hearing. Section 30 of the Act, according to the petitioner, in shielding accounting officers of State organs and Government departments, ministries or corporations by requiring courts to issue a show cause notice of not less than 30 days before contempt proceedings were commenced against them, violated the right of access to justice.

Further, the petitioner faulted section 10 of the Act for creating inequality by providing that no State officer should be convicted for contempt for execution of his duties in good faith.

The petitioner said that section 34 of the Act limited the right to a fair hearing by stating that the limitation period for contempt proceedings was six months. Also, the petitioner contended that in disallowing proceedings for contempt in relation to decisions made by Speakers in the performance of their official responsibilities, the Act elevated Speakers above the law.

Held

The limitation of the right to a fair hearing that section 10 of the impugned Act entailed was justifiable. Judicial officers would not be swayed by what they heard about a given party but the general public would be and that could prejudice the right to a fair trial.

Restricting such publications as was done in section 10 of the Act ensured the right to an unbiased and fair public hearing. The limitation was justifiable in an open and democratic society.

Section 19 of the impugned Act prohibited electronic recording of court proceedings by parties to the suit or case, and made that recording a form of contempt of court. If one sought to record proceedings, provision was made for the court to exercise discretion whether to grant that leave. Recording court proceedings would not advance the right to a fair trial. It was not necessary to record proceedings and failure to record proceedings would not infringe on the parties’ rights.

Section 30(1) of the Act provided that if a State organ, Government, department, ministry or corporation was guilty of contempt, the court should serve a 30-day notice on the accounting officer requiring the accounting officer to show cause why contempt proceedings should not be commenced against him/her. The maximum fine for such officers for contempt of court was set at Sh200,000.

Further, the Act provided under section 30(6) that no State officer would be convicted for contempt of court for execution of his duties in good faith. The provisions of section 30 were discriminatory and aimed at hampering the court’s ability to enforce its processes for the benefit of those it had awarded. There was no legitimate, reasonable or justifiable Government purpose to be served by that differential treatment accorded to public officers as opposed to private citizens under the impugned provision.

The fine imposed in section 30 of the Act was clearly protectionist in favour of Government officials yet they could commit similar offences as other citizens. That was a form of unjustifiable discrimination that was outlawed by the Constitution.

One could not act in good faith in willfully disobeying or disrespecting court orders.

Good faith could not be a defence for contempt of court. Section 30 of the impugned Act was therefore unconstitutional.

Section 34 of the Act provided for six months as the limitation period for instituting contempt proceedings. Limitation periods served public interest. People were expected to pursue their claims with reasonable diligence and the lapse of time could mean that crucial evidence could be lost. The six-month limitation period would not hinder the course of justice.

Limitation periods had the purpose of ensuring that litigation was brought to a quick conclusion. Where a court order was violated, an aggrieved party could not wait for six months to commence contempt proceedings, as in waiting for that long the aggrieved party would be deemed to have condoned the contemptuous act. There was no unconstitutional purpose or effect in the limitation period provided for in section 34 of the Act.

Section 35 of the impugned Act disallowed the initiation of contempt proceedings in relation to a decision made or directions given by a Speaker of a house of Parliament in the performance of his or her official responsibilities. Courts punish for deliberate and willful disobedience of their orders or processes and not for the mere discharge of duties or functions. The power to punish for contempt of court was a constitutional power and section 35 in so far as it attempted to limit that power was inconsistent with the Constitution and invalid.

Section 14 (4) of the National Land Commission Act

Mwangi Stephen Muriithi Vs National Land Commission & three Others, High Court at Nairobi, Petition No. 100 of 2017

Brief facts

The National Land Commission (NLC), after reviewing the legality of the petitioner’s title, revoked and replaced the petitioner as the proprietor of the suit land. Aggrieved by that decision, the petitioner petitioned the Court arguing, among others, that the entire process carried out by NLC, including the purported exercise of power to review grants and dispositions of public land, the publication of the notice calling for hearing, the conduct of the hearing and the purported revocation, was conducted in an unconstitutional manner that offends the principles of natural justice, that the Constitution did not vest NLC with power to revoke titles, that the NLC was not the body contemplated under article 68 (c) (v) of the Constitution and that section 14 of the National Land Commission Act was unconstitutional to the extent that it purported to grant powers to the NLC that it could not constitutionally perform.

Held

Article 67(2)(e) of the Constitution empowered the NLC to initiate investigations into present or historical land injustices and recommend appropriate redress. Article 68(c) (v) of the Constitution empowered Parliament to enact legislation to enable the review of all grants or dispositions of public land to establish their propriety. The legislation anticipated was the National Land Commission Act (the Act). The Act provided at section 14 for the review of grants and dispositions, pursuant to article 68(c)(v) of the Constitution. The said section outlined the procedure for the review of grants and disposition of public land to establish their propriety and legality. Where the NLC under section 15 of the Act found that the title was acquired in an unlawful manner, it should direct the Registrar to revoke the title.

There was no provision empowering the NLC to revoke titles even where it was established that the same were unlawfully or irregularly acquired. The power to revoke titles was vested in the Registrar and not the NLC, which could only recommend.

The provisions of article 67 (2) of the Constitution were clear and overrode the provisions of section 14 (4) of the Act, which empowered the NLC to make a determination after hearing the parties. The Constitution was the supreme law as espoused under article 2 (4) of the Constitution. To the extent that the NLC rendered a determination as opposed to a recommendation, the decision was tainted with illegality.

Section 17(1) (a) and (b) of the National Cohesion and Integrations Act

Okiya Omtatah Okoiti Vs Attorney General & Another [2018] eKLR, High Court at Nairobi, Petition No. 385 of 2018

Brief facts

In November 2018, the 2nd respondent embarked on the process of recruiting persons for appointment as commissioners of the National Cohesion and Integration Commission (NCIC). Aggrieved by the 2nd respondent’s actions, the petitioner filed the instant petition.

The petitioner contended that the said recruitment by the 2nd respondent contravened the constitutional principle of separation of powers and that section 17(1)(a) and (b) of the National Cohesion and Integration Commission (the Act) and the procedure for nominating commissioners by the National Assembly under the first schedule of the Act were unconstitutional. The petitioner also contended that recruitment of persons to be appointed to public office was the preserve of the Public Service Commission (PSC) and the Executive, and not Parliament

Held

The Constitution did not set out the timelines within which any law could be challenged or declared unconstitutional. Section 7(1) of the sixth schedule of the Constitution was categorical that all law in force before the effective date continued to be in force and had to be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.

The impugned Act, having been enacted in 2008 prior to promulgation of the Constitution, ought to be construed in conformity with the Constitution and the mere fact that the law had been in operation for a long period of time did not preclude the court from declaring the said law unconstitutional, if it was found to be inconsistent with the Constitution. The petition should serve as a wake-up call to the Legislature to take urgent measures to amend the impugned sections of the Act so as to make them compliant with the Constitution, bearing in mind the critical role that the NCIC was supposed to play in Kenya’s young and fragile democracy.

When any of the State organs stepped outside its mandate, the court would not hesitate to intervene when called upon to do so. The court was vested with the power to interpret the Constitution and to safeguard, protect and promote its provisions as provided for under article 165(3) of the Constitution. The court had an obligation to intervene in actions of other arms of Government and State organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation. The doctrine of separation of powers did not preclude the court from intervening and arresting a violation of the Constitution by any arm of the Government.

The court had the power to enquire into the constitutionality of the actions of the National Assembly, notwithstanding the privilege of debate accorded to its members and its proceedings. The Constitution was the supreme law of Kenya and Parliament had to function within the limits prescribed by the Constitution. In cases where it had stepped beyond what the law permitted it to do, it could not seek refuge in, or hide behind, the twin doctrines of parliamentary privilege and separation of powers to escape judicial scrutiny.

The doctrine of separation of powers had to be read in the context of the constitutional framework and where the adoption of the doctrine would militate against the constitutional principles, the doctrine had to bow to the dictates of the spirit and the letter of the Constitution.

Section 9(1) (e) of the Victim Protection Act

Joseph Nduvi Mbuvi Vs Republic, High Court at Machakos, Criminal Revision No.4 of 2019

Brief facts

The application for revision arose from the Senior Resident Magistrate Court’s ruling, in which the court placed the applicant on his defence and directed the applicant to supply the prosecution with the witness statements and any other evidence the defence intended to rely on at the defence hearing. The court went further and made orders geared towards compelling the defence witnesses to record their statements and furnish the prosecution therewith within 14 days.

Whereas article 50(1) of the Constitution provided for fair hearing, generally that right could not be stretched to confer upon the prosecution the right to be informed in advance of the evidence the accused intended to rely on, and to have reasonable access to that evidence or reciprocity of statements.

Article 50(9) of the Constitution empowered Parliament to enact legislation providing for the protection, rights and welfare of the victims of offences. On the other hand, section 9(1)(e) of the Victim Protection Act provided that a victim had a right to be informed in advance of the evidence the prosecution and defence intended to rely on, and to have reasonable access to that evidence. The rights of victims should not be extended to encompass the right to be informed in advance of the evidence that the accused intended to rely on and to access it.

There was a presumption of innocence that the Constitution bestowed upon an accused person, there could be no case that an accused person would be expected to disclose in advance. To the extent therefore that section 9(1)(e) of the Victim Protection Act expected that an accused would in advance inform the victim of the evidence he intended to rely on, and to give reasonable access to that evidence, the provision clearly contravened both the spirit and the letter of the Constitution and to that extent it was null and void.

Section 33B (1) and (2) of the Banking Act

Boniface Oduor Vs Attorney General and Four Others, Petition no 413 of 2016, High Court at Nairobi; Commercial and Admiralty Division

Brief facts

The petition related to the constitutionality of the interest rate capping and auxiliary provisions of section 33B of the Banking Act, which were enacted through the Banking (Amendment) Act no 25 of 2016. A month prior to the hearing of the petition, there was an amendment to sections 31A and 33B of the Act. Those changes were through section 64 of the Finance Act No 10 of 2018 which commenced on 1st October 2018.

The petitioner’s case was that, in so far as the object and effect of the impugned provisions was to cap the interest rate charged by banks and financial institutions for loans, they deprived Central Bank of Kenya (CBK) of its exclusive constitutional mandate to solely formulate and implement monetary policy. The petitioner contended that the impugned provisions discriminated against banks and financial institutions as no similar restriction on interest rates was placed on mortgage finance institutions, micro-finance banks, insurance companies and those dealing with Islamic banking.

Held

One spill-over effect of the ambiguity in the meaning of “credit facility” could be seen on the reading of section 33B (2). What was to be borrowed or lent was not clear in so far as the words “credit facility” used in section 33(B) (1) were not defined.

The 2018 Amendment had provided some clarity on the base rate referred to in section 33B (1)(a) of the Banking (Amendment) Act, 2016. The amendment clarified that the base rate was the CBR that was set and published by CBK. But that clarification could not be sufficient. The reference of the role by CBK to set and publish CBR appeared only in section 33B in the entire Banking Act. So as to establish the CBR referred to in section 33 B (1), it was necessary to read that section with section 36(4) of the Central Bank Act.

Failure by section 33B (1) of the Banking Act to make specific reference to the provisions of the CBK Act in respect to the setting and publication of the CBR could open the provisions of section 33B (1) to various interpretations. If left as worded, one could argue that the CBR referred to in section 33B need not necessarily be that contemplated under the CBK Act. Clarity could be given to those provisions if they specified that the CBR in section 33B was the CBR contemplated under section 36(4) of the Central Bank Act.

Given that the contravention of section 33B of the Act attracted penal consequences, the statute should be unequivocal that the CBR referred to was that contemplated in the CBK Act. That would be in consonance with good legislative practice that definitions appearing in one statute ought to appear in related statutes for clarity and to avoid inconsistencies and ambiguity when dealing with a related issue. All laws relating to the same issue had to bear the same meaning as they would have the potential of the same words being assigned different meanings and interpreted differently, depending on the statute under consideration. Each statute had to be interpreted in line with all the provisions contained.

The use of the words “four percent, the CBR set and published” in section 33(B)(1)(a) of the Act were imprecise, uncertain and fell short of what would be termed a good piece of legislation that was easily understood by “Wanjiku.” In an attempt to clarify that ambiguity, CBK in its Banking Circular No 4 of 2016 gave the following guideline;

“For purposes of section 33B (1) (a) which set the maximum interest rate chargeable for a credit facility “at no more than four percent, the base rate set and published by the CBK”, the cap would be set at four percentage points above the CBR.”

Section 33(B) (1) (a) of the Act was not clear whether the word “of” was intentionally left out by the drafters of the legislation. The words “at no more than four percent, the base rate” could mean four percent above the CBR set and published by CBK. There could also be a mischievous interpretation of the words “at no more than four percent, the base rate” to mean below the CBR. Unfortunately, the ambiguity persisted even after the 2018 Amendment. There was a need for clarity on the issue because, left as it was; it was open to different interpretations.

Section 33(B) (1) (a) of the Act was also vague as to the period the four per cent interest was applicable. It did not specify whether it was to be charged per day, per month or per annum. That ambiguity was apparent as CBK felt it necessary to provide a guideline in Banking Circular No. 4 of 2016, that “the interest rates indicated in the Banking (Amendment) Act 2016, would apply on an annual basis.” The attempt to clarify the meaning through circulars/guidelines was not sufficient because it had to be remembered that non-compliance with section 33B came with penalties and criminal proceedings. In any event, any valid law had to be self-explanatory. It had to, and should not be, qualified by explanations to be found outside the statute.

Sections 2 (b), 27 (2), 94 (1), 102 (1), 158 (4) (b) & (c) of the Children Act, section 3 (2) and (3) of the Law of Succession Act and section 12 of the Births and Deaths Registration Act

NSA and Another Vs Cabinet Secretary, Ministry of Interior and Coordination of National Government, and Another [2019] eKLR, High Court at Kakamega, Petition 17 of 2014

Brief facts

The petitioners challenged discrimination by the law on children born out of wedlock and unmarried women on the basis of birth, sex and marital status.

The first petitioner averred that she was cohabiting with one PM as a result of which they were blessed with two issues, EA and NF, out of wedlock. She averred that she had serious challenges getting the name of the father of the children inserted in the children’s birth certificates as he had declined to have his name inserted therein, and thus denied the minors identity; that EA was issued with a birth certificate which had markings xxx on the place meant for the father’s name and that NT was yet to be issued with one.

The first petitioner contended that the law required consent of the father before his name was inserted in the children’s birth certificates, which according to her was discriminatory and violated her constitutional rights and that of the children to equal protection before the law, equality, dignity, a name, parental care and protection and equal responsibility of father and mother to provide for them.

The petitioners contended that the language in some sections of the Children Act was discriminatory to children born out of wedlock and to unmarried mothers. They also contended that section 12 of the Birth and Deaths Registration Act and sections 3(2) and 3(3) of law of Succession Act were discriminatory to children born out of wedlock.

Section 2(b) of the Children Act gave a father the discretion of choosing whether a child was to be his relative or not. A reading of the section had the meaning that if a father did not acknowledge paternity of a child, or had not been contributing to the maintenance of the child, that child could not be considered to be a relative of the father. It also meant that children born inside wedlock had an automatic right to be relatives of their fathers while those born outside wedlock had no such right. That was discriminatory on the children born outside wedlock on the ground of birth. That violated the right of equal treatment before the law to children born outside wedlock. The definition was against the spirit of article 53 of the Constitution and offended the principle of the best interests of the child, which the Constitution placed at a higher pedestal than that of the father or mother.

It was in the best interest of a child for the child to be recognised as a relative of his father’s relatives, whether the child’s parents were married to each other or not. The definition of ‘relative’ in section 2(b) of the Children Act was in contravention of articles 27(1) of the Constitution which provided for equal treatment before the law and article 27(4) that barred discrimination on the ground of birth.

Section 24(1) and (2) of the Children Act placed equal responsibility for a father and mother who were married, either before or after a child’s birth. That section was in line with article 53(1) of the Constitution on equal responsibility of the father and mother whether they were married to each other or not. It had not been shown that the section was in contravention of the Constitution.

Section 26 of the Children Act provided for parental responsibility agreements which agreements could only be vitiated like any other contract. There was nothing wrong in having parental responsibility agreements in so far as they were not in conflict with the Constitution and relevant statutes.

Section 27(1) of the Children Act provided for transmission of parental responsibility to a father and mother who were married or had subsequently married after the birth of the child. The section provided for the doctrine of survivorship in case of death of either parent where responsibility of the child was transferred to the surviving parent.

There was nothing wrong with that provision as a surviving parent continued to have responsibility towards their child.

Section 27(2) of the Children Act provided for transmission of parental responsibility of unmarried parents when either parent is died. It provided that the father could only take up responsibility after the death of the mother if he had acquired parental responsibility.

That was against the principle of equal responsibility of parents under article 53(1) (e) of the Constitution, which right could not be qualified for reason that the father had or had not acquired parental responsibility. Parental responsibility was automatic and self-activating on parents upon the birth of a child and fathers could not have the discretion of either accepting or rejecting that responsibility. It also meant that a parent who had not acquired parental responsibility could not do so after the death of the other parent.

The section was therefore discriminatory to unmarried fathers on ground of marital status contrary to the provisions of article 27(4) of the Constitution.

Section 94 (1) of the Children Act implied that parents of children born out of wedlock had to assume parental responsibility before they could be ordered to pay maintenance towards their children. A parent could not opt out of parental responsibility. The section was in contravention of article 53 (1)( e) of the Constitution which commanded equal responsibility of the mother and father to provide for the child, whether they were married to each other or not.

Section 102(1) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility of the child upon the death of a mother. The court reiterated the automation of parental responsibility upon birth of a child, and the said responsibility was not left to the discretion of either the father or mother. The section was in contravention of article 53 (1) (e) of the Constitution.

Section 158 4(b) of the Children Act was inconsistent with the Constitution in that, in adoption proceedings, it only provided for the consent of the parent or guardian of the mother of the child where the mother of a child born out of wedlock was a child but did not provide for the consent of the parents or guardian of the father where the father was a child. That was discriminatory on such fathers in that their parents or guardian were not required to give consent in adoption proceedings. The section was in contravention of articles 27(1) and 27 (4) of the Constitution on equality before the law.

Section 158 4(c) of the Children Act was inconsistent with the Constitution in so far as the father of a child born out of wedlock needed to ‘acquire parental responsibility’ for them to take up parental responsibility and be regarded as a father for purposes of consenting to the adoption of the child. The section was discriminatory on fathers who had not acquired parental responsibility. The section had the implication of treating fathers differently, based on whether one had acquired parental responsibility, which was against the spirit of article 27(1) on equal treatment before the law.

Sections 3(2) and 3(3) of the Law of Succession Act were inconsistent with the Constitution in so far as a child born out of wedlock was regarded as such if the father had expressly recognised or in fact accepted as a child of his own, or for whom he had voluntarily assumed permanent responsibility. A parent’s responsibility to their child was mandatory and not discretionary. The section was in contravention of article 53 (1) (e) of the Constitution which required parents to provide for their children whether they were married or not.

Section 12 of the Births and Deaths Registration Act was invalidated in L.N.W Vs Attorney General and three Others [2016] eKLR. The instant court was agreeable to the reasoning of the court in that matter. Section 12 was inconsistent with article 27 and 53 of the Constitution.

When the High Court in L.N.W Vs Attorney General and three Others [2016] eKLR invalidated the provisions of section 12 of the Births and Deaths Registration Act, it directed the Registrar of Deaths and Births to, within 14 days, put into place mechanisms to facilitate the entry into the birth register of names of the father of children born outside wedlock. That was the proper way to go. Before such names were entered into the register there had to be some regulations in place. The petitioner did not inform the court whether such regulations had been put into place. An order for birth certificate to be issued to the children of the first respondent indicating the name of their father could not issue before the law was amended to cater for that.

The mandate of the court was to ascertain whether a law was inconsistent with the Constitution or not. The court did not supervise other courts of equal jurisdiction. The instant court could not issue prohibitory orders on other judges of the High Court. Even though the court had powers to supervise the Magistrates’ Courts, it could not issue orders that would be difficult to supervise or implement.

The impugned sections of the Births and Deaths Registration Act, the Children Act and the Law of Succession Act should be amended to align them with the Constitution of Kenya 2010.

Section 46(1)(ii) of the Prisons Act

Kenneth Otieno Odhiambo and four others Vs Republic, High Court at Kisumu, Petition No 68 of 2018

Brief facts

The petitioners challenged section 46 of the Prisons Act on grounds that it discriminated against offenders in the enjoyment of the remission of a third of the sentence imposed.

Under the said section 46, certain prisoners including those sentenced to life imprisonment or detention at the President’s pleasure were not entitled to remission.

Held

Under article 50(2)(p) of the Constitution, every accused person had the right to a fair trial, including the right to the benefit of the least severe of the prescribed punishments, if the prescribed punishment for the offence changed between the time of the commission of the offence and the time of sentencing.

Section 46(1)(ii) of the Prisons Act, which excluded prisoners sentenced to imprisonment for life or for an offence under section 296(1) of the Penal code or to be detained at the President’s pleasure, from remission was inconsistent with article 50(2)(p) of the Constitution on account of being discriminatory. Consequently, the petitioners were entitled to benefit from remission unless they were lawfully excluded under sections 46(3) and 46(4) of the Prisons Act.

County Government (Amendment) Act

Senate and 48 others Vs Council of County Governors and 54 others [2019] eKLR, Court of Appeal at Nairobi, Civil Appeal No. 200 of 2015

Brief facts

Parliament enacted the County Government (Amendment) Act 2014 (the Act) and established County Development Boards (CDB) in each of the 47 counties in Kenya. The Act was assented to by the President on 30th July 2014 and came into effect on 18th August 2014. The Act amended the County Government Act, 2012. Through the Act, section 91A was introduced into the County Government Act, 2012, establishing for each county a CDB. The CDBs were to comprise, inter alia, members of the National Assembly representing constituencies within respective counties, members of County Assemblies, as well as members of the executive operating within respective counties, and were to be chaired by the senator from the county.

Aggrieved by enactment of the Act, more specifically the establishment of the CDB, its composition and functions, the respondents filed a constitutional petition against the appellants at the trial court. In the petition, it was contended, among others, that the Act was unconstitutional, null and void, as it was enacted in violation of various provisions of the 2010 Constitution, and that the Act violated the functional distinctness of National and County governments.

The appellants opposed the petition, reiterating, among others, that section 91A of the Act did not violate any constitutional article as alleged and that the Senate had the mandate to represent and protect the interests of the counties and their governments. After hearing the petition, the trial court declared the Act unconstitutional, null and void.

Aggrieved by the declaration of unconstitutionality of the Act, the appellants lodged the instant appeal, arguing, among others, that the trial court erred in declaring the Act unconstitutional, null and void without specifying the particular articles of the Constitution which were inconsistent with the Act.

Held

The coercive nature of the CDB’s functions guaranteed by section 91C of the Act transformed the CDB into a decision-making organ and that violated the administrative, legislative and decision making power and authority of the county executive committee, the county assembly and the position of county governor as the chief executive officer of the county.

By involving the senator, members of the National Assembly and the woman representative of the county in CDB, a conflict of interest arose between the oversight role of the Senate, the functions of the CDB and the mandates of the county assembly and the county executive committee.

The trial court did not err in finding that sections 91A and 91B of the Act contravened the Constitution and were antithetical to the oversight role of the Senate as provided in article 96 (2) and (3) of the Constitution, as read with the legislative power of the county assembly in article 185 (1) of the Constitution.

The authority of the judiciary to determine the constitutionality of the conduct of other branches of Government was a constitutional command. Courts could not delegate that sacrosanct constitutional mandate to another person or body. Under article 165(3) of the Constitution, the High Court had the duty and obligation to intervene in actions of other arms of Government and State organs where it was alleged or demonstrated that the Constitution had either been violated or threatened with violation.

Section 13A of the Government Proceedings Act (GPA) required a 30-day notice to be given before any suit could be instituted against the Government. On the other hand, section 12(1) of the GPA provided that civil proceedings by, or against, the Government ought to be instituted by or against the Attorney-General, as the case may be. On constitutionality of section 13A of the GPA, the trial court relied on article 48 of the Constitution on access to justice in finding that the requirement of notice was an impediment to access to justice.

In principle, civil proceedings were distinguished from criminal proceedings. In the broad categorisation of civil proceedings were various modes of instituting civil claims by way of plaint or originating summons or a constitutional petition. Under the 2010 constitutional framework, constitutional petitions on enforcement of fundamental rights or freedoms or petitions alleging violation of the Constitution had different procedures and framework as envisioned by article 22 (3) and (4) of the Constitution. To that extent, a constitutional petition was not civil proceedings mandatorily subject to the ordinary rules of Civil Procedure and the Government Proceedings Act. It was a procedure suigeneris and the court was slow to admit to any procedural fetters and hurdles to access to justice in matters constitutional.

Sections 10, 16, 23, 26 and 53 (2) (d), 2 (e), 58 and the entire part IV and V of the Work Injury Benefits Act

Juma Nyamawi Ndungo and four others Vs Attorney General; Mombasa Law Society (Interested Party), High Court at Mombasa, Constitutional Petition No 196 of 2018

Brief facts

The petitioners sought a determination relating to various constitutional issues. The first was on whether Magistrates Courts had jurisdiction to entertain claims for compensation for bodily harm arising from negligence and breach of duty at the workplace. The second was on whether the Director appointed under the Work Injury Benefits Act or any other officer appointed under the Employment Act could exercise judicial authority relating to injuries suffered at work due to negligence. Lastly, the petitioner challenged the constitutionality of various sections of the Work Injury Benefits Act, including sections 10, 16, 23, 26, 28, 30, 33, 37, 51, 53(2) (d), 58(2) and the first schedule of the Act.

In the case of Attorney General Vs Law Society of Kenya and another [2017] eKLR, inter alia, the Court of Appeal set aside the High Court’s finding that sections 4, 16, 21(1), 23(1), 25(1) (3), 52(1) (2) and 58 (2) of the Work Injury Benefits Act were unconstitutional. The Court of Appeal, however declared that sections 7 (in so far as it provided for the Minister’s approval or exemption) and 10(4) of the Work Injury Benefits Act were unconstitutional. When the High Court made its decision on constitutionality, the repealed Constitution was in effect and the decision meant that Magistrates’ Courts could handle claims of workplace injury. In the aftermath of the Court of Appeal decision, issued after the promulgation of the Constitution of Kenya 2010, most Magistrates’ Courts declined to deal with workplace injury claims, on grounds that they did not have the requisite jurisdiction to handle them.

The petitioners were aggrieved that their cases on workplace injury which were pending before Magistrates Courts were stopped arbitrarily. Under section 58 of the Work Injury Benefits Act, the Work Injury Benefits Act had retrospective effect and section 53 of the Act established the Director who had a dispute resolution role. The net effect was that claims that were already pending before court would have to be filed afresh before the Director.

The majority of the claims affected by those provisions dated back to a period in excess of 11 years, meaning that they failed to meet the one-year limitation period provided under section 26 of the Work Injury Benefits Act.

The petitioners argued that the retrospective application of the Work Injury Benefits Act undermined article 159 of the Constitution, which provided for substantive justice and property rights recognised under article 40 of the Constitution. They said that the test of reasonability and substantive justice demanded that what was done pursuant to the legal regime that subsisted at the time the claims were lodged in court be deemed as legal.

The petitioner said that the office of the Director was yet to be operationalised and, aside from the Director and his assistants being appointees of the Executive, the relevant statute did not provide for their qualifications or mode of appointment. Further the petitioner stated that the Director and his assistants, as appointees of the Executive, had the authority to receive complaints, investigate them and ultimately adjudicate over them in breach of the doctrine of separation of powers. A further allegation was that it was discriminatory for part V of the

Work Injury Benefits Act to have compensation for pain and suffering as compensation that would be based on one’s income.

In general, the petitioners alleged that under the circumstances, their rights to access to justice, property, a fair trial, non-discrimination and equality and human dignity were violated.

Held

Under section 53(2) (e) of the Work Injury Benefits Act, the Director’s functions included adjudicating over injury cases and assessing damages. Those functions were purely judicial functions.

Section 16 and 53 (2) (d) and 53 (2) (e) of the Work Injury Benefits Act entailed a usurpation of judicial power by the Executive and were, therefore, unconstitutional. Additionally, sections 10, 23, 26, 28, 30, 33, 37, 51, 53 (2) (d), 53 (2) (e), 58 (2) and the first schedule to the Work Injury Benefits Act were unconstitutional as they promoted the exercise of judicial powers by the Director, who was neither an independent tribunal nor a court.

To the extent that the provisions of the Work Injury Benefits Act, in particular sections 16 and 53(2)(d), sought to transfer judicial power to the Executive, or an entity that was neither a tribunal nor a court, they violated the constitutional doctrine of separation of powers and were therefore unconstitutional.

Section 4 of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015

Coalition for Reforms and Democracy (Cord) Vs Attorney General; International Institute for Legislative Affairs and another (Interested Parties) [2019] eKLR, High Court at Nairobi, Petition 476 of 2015

Brief facts

The petition challenged the exercise of presidential powers of referral of Bills back to Parliament. The petitioner averred that the President exceeded the powers conferred and contemplated under article 115(1)(b) of the Constitution by his proposals to delete, insert, and amend clauses on various Bills referred back to Parliament.

Specifically, the petitioners challenged the presidential reservations made in; the Public Audit Bill, 2014; Retirement Benefits (Deputy President and Designated State Officers) Bill, 2013; Ethics and Anti-Corruption Commission (Amendment) Bill, 2015; Central Bank of Kenya (Amendment) Bill, 2014; Kenya Information and Communication (Amendment) Bill, 2013; The Public Procurement and Disposal (Amendment) Bill, 2013; Statute Law Miscellaneous (Amendment) Bill, 2014; National Flag, Emblems and Names (Amendment) Bill, 2013; and, the Police Service Commission (Amendment) Bill, 2013.

They sought a declaration that the President’s unilateral proposals to strike out, insert, amend or delete provisions of the impugned Bills was unconstitutional for being ultra vires, an invasion of the powers of the National Assembly and a breach of the doctrine of separation of powers.

The petitioners also challenged the constitutional validity of section 4 of the Retirement Benefits (Deputy President and Designated State Officers) Act 2015, on grounds that the section limited political rights under article 38 of the Constitution and violated the right to equality and freedom from discrimination protected under article 27 of the Constitution.

The petitioners sought an order of mandamus to compel the respondent to pay the terminal retirement benefits of the former Prime Minister and former Vice President in accordance with the said Act.

Held

The impugned section purported to interfere with the retirement benefit entitlements, which were expressly protected by article 151(3) and 160(4) of the Constitution with respect to a Deputy President, the Chief Justice and Deputy Chief Justice, which could not be varied to their disadvantage during their lifetime. To that extent, the impugned provision, therefore, failed the constitutionality test.

Gratuity, pension and retirement benefits were hard-earned benefits of an employee and the right to receive pension or a retirement benefit was in the nature of property.

That right to property could not be taken away without the due process of law. Article 40(1) of the Constitution protected the right to private property. It guaranteed the right of every person, individually or in association with others, to acquire and own property subject to article 65 of the Constitution.

To the extent that the impugned provision gave the National Assembly power to deprive an entitled person the right to property without due process, the same was arbitrary and therefore unconstitutional. It violated the right to a fair administrative action guaranteed under article 47 of the Constitution and the Fair Administrative Action Act, the right to a fair hearing under article 50, and the principles of natural justice. The impugned section simply provided for the National Assembly to pass a motion supported by not less than a half of the members thereof. It did not provide for the affected person to be afforded an opportunity to be heard.

Rights or retirement benefits accrued to any person under the law could not therefore be diminished or eliminated because, once an individual had attained eligibility for a retirement benefit; the benefit was afforded constitutional protection. Even in jurisdictions where there was no explicit constitutional protection for public pension benefits, promissory estoppel and principles of contract law would be applied to protect reasonable pension expectations.

A reading of section 4 of the Act left no doubt that it was not only vague and ambiguous for want of certainty, but it was also retrospective in its application;

1. section 4(1)(b) of the Act simply provided that an employee should not be entitled to a benefit if he was guilty of gross misconduct. The provision did not specify what constituted gross misconduct, nor did it specify whether the alleged gross misconduct was relevant if it occurred before, during or after retirement.
2. section 4(1)(a) of the Act did not specify whether the alleged violation of the Constitution occurred before, during or after the retirement.
3. section 4(1)(c) disentitled retirement benefits of an employee who, after leaving office, was convicted of an offence and sentenced to three or more years in jail. The section was retrospective in application by seeking to take away a lawful entitlement, which would have accrued long before the alleged conviction and had no connection with the alleged offence or misconduct. It also offended the rule against double jeopardy by denying an entitled person his or her lawful benefits in addition to the punishment that would be imposed.

Certainty was generally considered to be a virtue in a legal system while legal uncertainty was regarded as a vice. Uncertainty undermined both the rule of law in general and the law’s ability to achieve its objective. Accordingly, sections 4(1)(a), (b) and (c) of the Retirement Benefits (Deputy President and Designated State Officers) Act 2015, was also void for ambiguity and uncertainty.

Section 63 of the Finance Act 2018, and section 31A of the Banking Act

Kenya Bankers Association Vs Attorney General an Another; Central Bank of Kenya (Interested Party) [2019] eKLR, High Court at Nairobi, Petition No.427 of 2018

Brief facts

The memorandum of objects and reasons of the Finance Bill 2018 (the Bill) was to formulate the proposals announced in the Budget for 2018-2019, relating to liability and collection of taxes and matters incidental thereto and sought to amend various laws including the Banking Act. The Bill was first read in the 2nd respondent’s House and committed to the Departmental Committee on Finance and National Planning (the Committee) which carried out public participation on the Bill. However, section 63 of the Finance Act was not included in the Bill at the time of gazettement and the first reading of the Finance Bill 2018. Thereafter, the Bill underwent debate during the second reading and new clauses were introduced to the Bill at that stage.

One of the proposed amendments was to require the banks that, whenever a customer was opening an account, should be compelled to indicate who their next of kin was. The Bill was passed to become the Finance Act, 2018. Aggrieved by the 2nd respondent’s actions, the petitioner filed the instant petition. The petitioner averred that the amendments violated the right to privacy and were therefore unconstitutional. The petitioner contended that the 2nd respondent acted ultra vires to its constitutional mandate by introducing substantive amendments to the Banking Act during the 3rd reading and enacting legislation without public participation.

Held

Section 31A of the Banking Act imposed upon banks or financial institutions the need to maintain a register containing particulars of the next of kin of all customers and any bank that contravened the said section was liable upon conviction for each count in default to a fine not exceeding Sh1 million. The purpose or the effect of section 63 of the Finance Act implementation infringed a right guaranteed by the Constitution. The requirement under section 63 of the Finance Act for banks and financial institutions to maintain a register of next of kin was not justifiable, nor did it have a rational connection with the intended purpose of the Finance Act whose purpose was to amend the law relating to various taxes and duties, and for matters incidental thereto, but not to ensure that the abandoned property was returned to its true owner and within a reasonable period.

Section 63 of Finance Act, 2018 was a derogation from the core normative content of the right to privacy. The implementation of section 63 of the Finance Act infringed on a right guaranteed by the Constitution. The section in question was, therefore, unconstitutional and contradicted article 31(c) of the Constitution and section 31(2) of the Banking Act to the extent that it breached the right of privacy as provided in article 31(c) of the Constitution and section 31(2) of the Banking Act.

Section 63 of the Finance Act had not attempted to define who the next of kin was, or the particulars of the next of kin that should be obtained, and what was to be done in relation to keeping such records or data. The section was mute and did not provide clarity on how the corporate clients were to be handled. It also did not give distinction between individual persons and legal persons. The section was equally silent on how minors could be treated and did not indicate as to whether minors could be listed as next of kin. Section 63 of the Finance Act, and consequently section 31A of the Banking Act, was not only ambiguous but vague.

Vagueness of a statute amounted to invalidity of a statute. The enactment of section 63 of the Finance Act was void for vagueness as a citizen would not be able to know in advance what the legal consequences that flew from the impugned section of the Finance Act were. The members of the petitioner were unable to know what was regulated and the manner of that regulation. Section 63 of the Finance Act and consequently section 31A of the Banking Act, lacked certainty; it was confusing due to being imprecise and vague.

Section 7 (2) and 7 (10-15) of the Salaries and Remuneration Commission Act

Judicial Service Commission Vs Attorney General and Another Interested Party; Jacqueline Akinyi Okeyo Manani [2019] eKLR, High Court at Nairobi, Petition 349 of 2018

Brief facts

A vacancy occurred in the Salaries and Remuneration Commission (SRC) relating to a member representing the Judicial Service Commission (JSC). The petitioner, on 15th January 2018 advertised in the local media inviting applications from persons qualified to be nominated for the position. The JSC upon receipt of the applications, considered all the applications with a view to determine compliance with the constitutional provisions and the Salaries and Remuneration Commission Act. The petitioner voted the Interested Party as its nominee to the 2nd respondent.

Meanwhile, on 4th April 2018 the President assented to the Statute Law (Miscellaneous Amendments) Act 2018 which had a commencement date of 21st May 2018. The Act amended some of the provisions of the Salaries and Remuneration Commission Act 2011, among other statutes. It was out of such an amendment that the petitioner contended that the amendments to the Salaries and Remuneration Commission Act, introduced through the Statute Law (Miscellaneous Amendment) Act, were unconstitutional as they were not subjected to public participation.

It was 1st respondent’s contention that the petition did not disclose any violation of the Constitution or any written law. He said that the petitioner read article 230 in isolation to article 250(4) and 250(11) of the Constitution. The 1st respondent added that the constitutional petition was grossly misconceived, a non-starter and the orders prayed for were misplaced. That the jurisdiction of the High Court had not been invoked properly and the matter was not justifiable to the extent that there was no real or substantial controversy.

Held

Whether or not legislation operated retrospectively depended on the intention of the enacting body, as manifested by the legislation. In seeking to ascertain the intention behind the legislation, the courts were guided by certain rules of construction and one of these rules was, that if the legislation affected substantive rights, it would not be construed to have retrospective effect unless a clear intention to that effect was manifested. Whereas, if it affected procedure only, prima facie, it operated retrospectively unless there was a good reason to the contrary. The rule of construction was one of the factors to which regard had to be given in order to ascertain that intention.

From the construction of the impugned sections, the provisions of the legislation could not per se be said to affect procedure only, nor could it be said that the intention of the enacting body was to have it operate retrospectively. The legislation, as it was, affected substantive rights, and as such it could not be construed to have retrospective effect unless a clear intention to that effect was manifested. The general rule for non-criminal legislation was that all statutes other than those which were declaratory or which related only to matters of procedure or evidence, were prima facie prospective and retrospective was not to be given to them, unless it was expressly stated so in clear words or by virtue of necessary implication. Where legislation was contrary to the Constitution it could not have any retrospective effect.

Therefore, the amendments to the Salaries and Remuneration Commission Act could not apply retrospectively.

Public participation was one of the national values and principles of governance that bound all State organs, State officers, public officers, and all persons. It was applicable whenever any of them applied or interpreted the Constitution, enacted or interpreted any law, or made or implemented public policy decisions. The amendments introduced to the Salaries and Remuneration Commission Act were not minor amendments as suggested by the respondent as they substantially altered the core substance of the legislation and as such re-enactment, the principle of public participation had to apply.

The burden of proof that there was public participation lay with the respondents to demonstrate that there was public participation. No evidence was adduced to demonstrate that there was public participation in relation to the substantive amendments and that was contrary to article 10 of the Constitution.

Section 8(3) (c) and section 5(5) (a) of the National Land Commission Act and National Police Service Commission Act

Fopa Association Kenya suing through its officials, Humphrey Kimani Njuguna, chairman and Kinoti Gatobu, secretary Vs Attorney General and three others; County Assemblies Forum and another (Interested Parties) [2019] eKLR, High Court at Nairobi, Petition 116 of 2019.

Brief facts

The petitioner was an association whose membership comprised former Members of Parliament, both Senate and National Assembly, former Governors, Speakers and Members of County Assembly. The respondents were the stakeholders, who were directly affected by the orders sought or had mandate over the issue of the subject matter of the petition.

The petitioner’s complaint was against the laws that barred former Members of Parliament, Governors and County Assemblies from recruitment as commissioners of the National Land Commission, National Police Service Commission or any other Government agency solely on the basis of them having been elected or having stood for election in the preceding five years. The petitioner contended the provision of section 8(3) (c) of the National Land Commission Act and National Police Service Commission Act section 5(5) (a) that barred its members from being recruited in the commissions, violated the Constitution and were therefore null and void.

It was the contention of the respondents that the impugned section of the National Land Commission Act and the National Police Service Commission Act were necessary to maintain independence and impartiality of the commission. They added that the impugned sections advanced a compelling public interest to manage independence of the commissions free from political persuasions effectively, as opposed to individual interest of persons who would be looking for an opportunity to maintain their political party allegiance and continue to serve in independent commissions. It was thus submitted by the respondents that such scenario went against the spirit, purpose and intention of the legislation to establish fiercely independent institutions. It was further urged that the provision satisfied the ethos set out under article 24 of the Constitution in that the limitation was provided under the law and that the same was reasonably justifiable in modern democratic society.

Held

The impugned sections of the National Land Commission Act and National Police Service Commission Act indirectly deprived the citizens of their constitutional rights to vie for election. It was a threat to the expansion of democracy as it would mean that an electoral contestant or winner would subsequently, for a period of five years, become unfit to hold public office simply due to the fact of having contested in that election. The limitation was unreasonable and unjustifiable. It was unjustified to lump together electoral contestants with felons, bankrupts and constitutional violators.

The import of section 8(3) (c) of the National Land Commission Act and section 5(5) (a) of the National Police Service Commission Act was that those who had exercised their constitutional and democratic rights to vie for constitutional elections were now demonised for subsequent five years for no offence but for exercising their constitutional and democratic right to take part in contesting for an elective post.

The impugned provisions of the two statutes violated the petitioner’s rights to property, rights to equality, dignity, social-economic rights, non-discrimination or any other right for that matter. The petitioner’s members could apply for other public offices that did not have restrictions but the restrictions relating to membership in those two commissions were unreasonable and unjustified. Allowing the petitioner’s members to vie for the recruitment in the two commissions was not a right to occupy and hold the office but to exercise their constitutional rights to vie for recruitment. Whether they would succeed or not was another issue as they would have exercised their constitutional rights.

The offending provisions of the two statutes complained of were discriminative to the petitioner’s members; they degraded their dignity and deprived them their social and economic rights and freedoms. The impugned provisions would curtail the number of those seeking electoral political positions and deal a major blow to democracy and constitutional space which was still in its emerging stage in Kenya. There was no logical explanation as to why some of the petitioner’s members had successfully joined the Independent Policy Oversight Authority and not the other two.

The impugned provisions were a grave violation to the fundamental rights of the petitioner’s members as well as all other contestants of public elections. The impugned provision, if let to stand, would be a serious threat to democratic space in the country.

Section 2 of the Community Land Act

Kelly Malenya Vs Attorney General and another Interested Party: Council of Governors [2019] eKLR. High Court at Nairobi, Petition No 32 of 2017.

Brief facts

The petitioner challenged the constitutionality of certain provisions of the Community Land Act, stating that section 2 of the Community Land Act defining community land extended beyond that given by the Constitution; that section 8(4) of the Act which provided that the Cabinet Secretary would issue a public notice of intention to survey, demarcate and register community land left out the County Governments; that section 9 placed a function that fell under the County Governments under the control of the Central Government through the Chief Land Registrar, who appointed a registrar for community land without involving the County Government.

The petitioner further stated that section 15 of the Act failed the constitutional muster of validity as it created an amorphous body known as the Community Assembly without providing how the assembly would be identified; that under section 21 of the Act, community land could be converted into some other forms of land, a role exercised by the assembly; that sections 38 failed constitutionally for introducing other criteria for qualifying and limiting the right to property for communities other than as contemplated by articles 24 and 40 of the Constitution.

Finally, there was a challenge on the constitutionality of section 48 of the Act as it gave the Cabinet Secretary mandate to formulate regulations, which was a role of the County Governments.

The petitioner sought relief that: a declaration or order that sections 2 and/or 6 and 8(4) (6) and/or 9 and/or 11 and/or 15 and/or 21 and/or 38 and/or 48 of the Community Land Act were unconstitutional; and an order of suspension of sections 2 and or 6 and or 8(4) (6) and/ or 9 and /or 15 and/or 38 and/or 48 of the Community Land Act.

The respondents, on the other hand, contended that the provisions of the Act were constitutional; that the petition had not met the threshold of constitutional petitions for failing to set out, with reasonable degree of precision, the provisions infringed and the manner of infringement.

Held

Section 2 of the Act, in so far as was relevant to the petition, provided that Community Land included: land declared as such under article 63(2) of the Constitution of Kenya, 2010; and, land converted into community land under any law.

Section 2 had two ways of defining community land, namely; land as defined in article 63(2) of the Constitution or land converted into community land under any law. From the definition, community land was land that fell within the categories mentioned in article 63(2), was held and used by communities, and or trust land held by the County Governments.

From the definition in section 2 of the Community Land Act, it could not be said that the definition in section 2 was inconsistent with the one in article 63 (2) of the Constitution.

The Constitution defined community land broadly and section 2 merely stated that community land was that land declared as under article 63(2) and land converted into community land under any law. A proper reading of section 2 showed that the definition repeated the words in the Constitution. The addition of (b), land converted into community land under any law, did not add or change anything. It was at best superfluous since it fell under any other land declared to be community land by an Act of Parliament.

Section 2 of the Act used the words “means” and “includes” in defining community land. The Constitution used the word ‘’consists’’, which was close to ‘’means’’. The Constitution did not use the word ‘’includes’,’ which was infinitive. Article 259(4) (b) was clear that when the word ‘’includes’’ was used in the Constitution, it meant; ‘’includes but not limited to’’. By using two words ‘’means’’ and ‘’includes’’, section 2 rendered the definition of community land vague. It was not clear whether community land meant the land as defined in the Constitution or it included some other land apart from that defined in the Constitution.

The Act could not use both words in the definition section as doing so created confusion.

A provision was vague if it was capable of two interpretations. In the context of section 2 of the Act, it was not clear whether the definition of community land meant land declared as such under article 63(2) of the Constitution; or included land declared as such under article 63(2) of the Constitution. The two words could not be used at the same time or interchangeably. That made the provision vague and therefore unconstitutional to that extent.

Section 62(6) of ACECA

Moses Kasaine Lenolkulal Vs Director of Public Prosecutions, Criminal Revision 25 of 2019, High Court at Nairobi

Brief facts

The applicant was the Governor of Samburu County. He had been charged with various offences under the Anti-Corruption and Economic Crimes Act. The trial court granted the applicant bail and also issued interim orders that prohibited the applicant from accessing Samburu County offices pending filing, hearing and determination of an application to be made by the prosecution.

Aggrieved by the interim orders the applicant filed the instant revision, in which he sought for the interim orders to be vacated on grounds that they violated section 62(6) of the Anti-Corruption and Economic Crimes Act and that the orders went against the procedures of removing a County Governor as prescribed in the Constitution.

Held

The provisions of section 62(6) of ACECA, apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in Chapter Six of the Constitution, and undermined the prosecution of officers in the position of the applicant in the instant case. In so doing, they entrenched corruption and impunity in the land.

Under the provisions of the County Government Act, where the Governor was unable to act, his functions were performed by the Deputy Governor. That was provided for in section 32(2) of the County Governments Act. The Governor in the instant case was not being removed from office. He had been charged with an offence under ACECA, and a proper reading of section 62 of ACECA required that he did not continue to perform the functions of the Office of Governor while the criminal charges against him were pending. However, if section 62(6), which violated the letter and spirit of the Constitution, particularly Chapter Six on leadership and integrity, was to be given an interpretation that protected the applicant’s access to his office, then conditions had to be imposed that protected the public interest. That was what the trial court did in making the order requiring that the applicant obtained the authorisation of the CEO of EACC before accessing his office. In the circumstances, there had not been an error of law that required that the instant court revises the said order.

Should there be difficulty in obtaining the authorisation from the EACC, there would be no vacuum in the county. The instant court took judicial notice of the fact that there had been circumstances in the past in which County Governors had, for reasons of ill health, been out of office, and given the fact that the Constitution provided for the seat of a Deputy Governor, the counties had continued to function. In the instant case, the applicant was charged with a criminal offence; he had been accused of being in moral ill-health. He was alleged to have exhibited moral turpitude that required that, until his prosecution was complete, his access to the County Government offices were to be limited as directed by the trial court.

[Obiter] Would it serve the public interest for him to go back to office and preside over the finances of the county that he has been charged with embezzling from? What message does it send to citizens if their leaders are charged with serious corruption offences, and are in office the following day, overseeing the affairs of the institution?

How effective will prosecution of such State officers be, when their subordinates, who are likely to be witnesses, are under the direct control of the indicted officer?

Section 84D of the Kenya Information and Communication Act

Cyprian Andama Vs Director of Public Prosecution and another; Article 19 East Africa (Interested Party) [2019] eKLR, High Court at Nairobi, Petition No. 214 of 2018

Brief facts

The petition challenged the constitutionality of section 84D of the Kenya Information and Communication Act 2009, (KICA) for unjustifiably violating article 33 and 50(2)(n) of the Constitution. The petitioner contended that the impugned section created an offence criminalising the publishing of obscene information in electronic form in vague and overbroad terms with regard to the meaning of “lascivious”, “appeals to the prurient interest” and “tends to deprave and corrupt persons”. He stated that section 84D of KICA offended the principle of legality in article 50(2)(b) of the Constitution, which required that criminal law, especially one that limited a fundamental right, should be clear enough to be understood and be precise enough to cover only the activities connected to the law’s purpose.

The petitioner urged the court to declare section 84D of KICA unconstitutional and to issue an injunction barring the 1st respondent from carrying on with the prosecution of the petitioner in the proceedings in Milimani Criminal Case No. 166 of 2018, Kiambu Criminal Case No. 686 of 2018, and Kiambu Criminal Case No. 687 of 2018. The petitioner was charged with the offences of publishing obscene information in electronic form, contrary to section 84D of the Kenya Information and Communication Act, 2009.

Held

To the extent that section 84D of KICA purported to suppress dissent, it was a derogation of article 33 of the Constitution. The impugned provision also contravened article 25(c) to the extent that it limited the right to a fair trial as enshrined in article 50(2) (b) of the Constitution. Any alleged discomfort or displeasure with the petitioner’s publication could have been addressed by less restrictive means, such as a civil suit for defamation, other than blanket curtailment of a fundamental right. Section 84D of KICA was unconstitutional, considering that even though its purpose was to control/limit use of obscenities in communication, its effect had been to infringe on the freedom of expression guaranteed by the Constitution by creating the fear of the consequences of a charge under the said section.

It was a fundamental tenet of natural justice that an accused person ought to be informed, in very clear terms, of the charges that he faced to enable him to prepare his defence adequately. That principle was aptly captured under article 50 of the Constitution which provided for the rights of every accused person and at article 50(2)(b) which expounded the non-derogable right to a fair trial to include the right of the accused person to be informed of the charge, with sufficient detail to answer it.

Section 84D of KICA provided for an offence in such broad and unspecific terms such that the person charged under it might not know how to answer to it. The section;

1. did not define the meaning of the words; “obscene” or the phrase “any material which is lascivious or appeals to the prurient interest”;
2. did not explain how or who should determine if the publication’s “effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein.”

The section left the words to the subjective interpretation by the investigative agencies, the prosecution or the court that would ultimately try the case.

Section 84D of KICA was unconstitutional to the extent that it infringed on the citizens’ right to freedom of expression guaranteed under article 33 of the Constitution and derogated the right to fair hearing by providing for an offence in broad and unclear terms; making it subject to the arbitrary and subjective interpretation by the Director of Public Prosecution or the courts, contrary to article 50(2)(b) of the Constitution. Under article 25(c) of the Constitution, the right to a fair trial could not be limited.

 

References

1. State of the Judiciary and Administration of Justice Annual Report 2018/2019

Introduction

The Government’s key organ for formulation and implementation of policies for the co-operatives sector is the State Department of Co-operatives in the Ministry of Agriculture, Livestock, Fisheries and Co-operatives.

This is as per the Revised Executive Order No. 1 of June 2020, that saw the transfer of the Department to the Ministry of Agriculture from the Ministry of Trade, a move that signalled the Government’s recognition of the key role that co-operatives play in supporting and ensuring food security for Kenyans.

Food security and nutrition are among the four pillars of the Government’s Big Four Agenda. The others are universal health coverage for all Kenyans, enhancing manufacturing and affordable housing.

According to Executive Order No. 1 of June 2020, the State Department of Co-operatives is expected to enforce good governance and ethics in co-operative societies, promote public private partnerships and joint ventures, and enhance foreign and bilateral relations on co-operative matters.

Co-operatives play a key role in mobilising savings for development, alongside banks and the Nairobi Securities Exchange (NSE).

The Draft Co-operative Development Policy 2019 seeks to create the proper environment for the sector’s growth while accommodating the interests of all stakeholders and the diversity of co-operative societies’ activities.

Early history

Kenya’s co-operative movement dates back to 1908, with a dairy outfit started by white colonial settlers.

After a few decades, the Government in 1931 began regulating the operations of the movement through the enactment of the first Co-operative Ordinance.

It was not until 1946 that the colonial Government allowed the inclusion of Africans in co-operatives, on realising that locals could play a big role in driving the economy through such movements.

According to the Ministry of Trade, Industry and Co-operatives, by 1969, about 1,894 co-operative societies had been registered in the country. The majority of these early societies were involved in agriculture.

The country’s co-operative movement – which is among the strongest in Africa – has over the years been a key player in the economy, controlling about 45 percent of Kenya’s gross domestic product (GDP). The co-operative societies in Kenya provide many opportunities for self-employment. Savings and credit societies (Saccos), the fastest growing sub-sector in the movement, have mobilised savings of more than Sh381.1 billion.

Co-operative development is tied closely to the Government’s aims in the rural development policy. The promotional efforts of the Government started soon after Independence in 1963 with the overall aim of using co-operatives to facilitate commercialisation of the country’s smallholder farm sector.

The Government had wide-ranging powers in organising farmer co-operatives to deliver the necessary services. By the late 1990s, the Government had largely achieved this end. Most of Kenya’s smallholders now own their farms and farmers produce a wide range of agricultural produce for the commercial market.

Examples include the Kenya Co-operative Creameries (KCC), the Kenya Planters Co-operative Union (KPCU) and the Kenya Farmers Association (KFA), started between 1922 and 1923.

Initially, they had been registered as companies but later as co-operatives in 1931 following the enactment of the first Co-operative Ordinance.

Savings and Credit Co-operative Societies (Saccos)

The main aim of Saccos is to mobilise savings and offer credit facilities to members. According to the Saccos Societies Regulatory Authority (SASRA), Kenya has two categories of Saccos – deposit taking and non-deposit taking.

Deposit-taking Saccos take deposits and offer saving accounts similar to those provided by commercial banks.

On the other hand, non-deposit-taking Saccos pool member deposits, which are strictly used as collateral for credit facilities. This means that these deposits cannot be withdrawn during the period of membership but can be refunded minus any liabilities owed by the member upon cessation.

According to SASRA, there were 174 deposit-taking Saccos licensed to operate in Kenya by the end of 2018 under its supervision.

Review of key data of the sector

Data from the Economic Survey 2020 shows that the capital reserves of deposit taking savings and credit co-operatives recorded a growth of 63.5 percent to Sh175.2 billion in 2019. Loans and advances rose 12.1 percent to Sh402 billion in 2019.

For the year under review, total liabilities in form of deposits increased by 11.3 percent from Sh342.3 billion in 2018 to Sh381.1 billion in 2019.

The Sacco Sub-sector Demographics Study Report 2019, compiled by SASRA, shows that a total of 4.78 million Kenyans are members of deposit taking Saccos, making up 96.2 percent of the entire Sacco membership.

The rest, 3.8 percent of Sacco members, were corporate and institutional, mainly made up of self-help groups (chamas), joint memberships of two or more persons, private schools, churches, sole proprietorships and limited liability companies.

According to SASRA, Saccos have been traditionally grouped in five broad-based areas and aligned to where they drew their membership.

These include farmers-based, teachers-based, government-based, community-based and private sector-based deposit-taking Saccos.

According to the report, out of the 4.78 million individual Sacco members, the largest proportion of membership is in 50 farmers-based deposit taking Saccos, which account for 47.8 percent of the total individual membership of the deposit taking Saccos.

Marking the 97th International Co-operative Day last year, President Uhuru Kenyatta noted that co-operatives account for 45 percent of Kenya’s GDP and about 30 percent of national savings and deposits.

The Co-operative Bank was established in 1965 as a co-operative society. The bank, which is mainly owned by members of the co-operative movement, is the fourth-largest lender, controlling 9.63 percent of the market with 159 outlets.

Its subsidiary, the Co-operative Insurance Company of Kenya (CIC), is also one of the biggest insurers in Kenya. Some Saccos also have huge asset bases, bigger than some commercial banks.

Why Kenyans prefer Sacco loans

The majority of Kenyans source their loans from Saccos to buy land, other assets and to construct houses.

According to the Central Bank of Kenya’s (CBK) 2019 FinAccess Household Survey, the majority of loans (41.5 percent) sourced from formal financial institutions such as Saccos were used to purchase assets, while 36.7 percent were used to acquire machinery and expansion of businesses.

The vibrant and dynamic co-operative movement in Kenya – one of the strongest in Africa – is a key player in the economy, controlling about 43 percent of Kenya’s gross domestic product (GDP).

Co-operative societies in Kenya employ more than 300,000 people, besides providing opportunities for self-employment to many more. The savings and credit societies (Saccos) are the fastest growing sub-sector in the movement, and have mobilised savings of more than Sh230 billion.

The history of co-operative development in Kenya is tied closely to the aims of the Government’s rural development policy. The promotional efforts of the Government started soon after Independence in 1963 with an overall aim of using co-operatives to facilitate commercialisation of Kenya’s smallholder farm sector.

The Government was given wide-ranging powers in organising farmer co-operatives to deliver the necessary services. By the late 1990s, the Government had largely achieved this end.

The current membership of farmer co-operatives in Kenya is approximately 600,000 active members, located in two main sectors: the co-operative coffee sector, with approximately 400,000 members, and the co-operative dairy sector, with about 100,000 members.

Until the early 1990s, co-operatives in both sectors enjoyed a convenient monopoly status in the supply of raw materials and marketed their products in markets protected by the Government. The Government then selectively introduced market liberalisation reforms.

The coffee sector, which provides important foreign exchange to the country, has not yet been liberalised. Therefore, price and profitability of the coffee sector still largely depends on the fluctuating world market.

Coffee production has stagnated in Kenya, yet co-operatives represent approximately 70-80 percent of total production. The yield of co-operative coffee production has typically been only half that of private estates.

The situation within the dairy sector is somewhat different. Dairy co-operatives have traditionally had a monopoly to collect milk from producers, and KCC had a monopoly to process milk for the market. Co-operatives were allowed to sell unprocessed milk to customers and relied on KCC as a buyer of last resort.

Although all the milk collected was sold either locally or through KCC, the marketing system suffered from KCC’s financial constraints. In 1992, the dairy market was liberalised, resulting in increased competition both for raw materials and for consumers, with the emergence of milk hawkers and new private dairy plants.

This has led to a substantial increase in producer prices. Co-operatives have also realised that they cannot survive by merely relying on their traditional operating methods but need to invest in value-added production.

Co-operative sector reforms

Background

Co-operatives are expected to supplement the Government’s efforts in addressing low domestic savings and investments, and the high cost of finance.

But the sector continues to face daunting challenges, including poor governance; low adoption of Information and Communication Technology (ICT) and value addition; a highly dynamic economic environment; indebtedness; inadequate co-operative education and training; poor publicity and advocacy, HIV/Aids and emerging lifestyle health challenges; ageing membership; and inadequate policy, legal and regulatory framework.

Other domestic challenges facing co-operatives, as per the Draft Co-operative Development Policy 2019, are high dependence of the country on rain-fed agriculture as a source of raw materials; low agricultural productivity; insufficient technical skills and personnel; and socio-cultural barriers to trade.

The Policy will replace the Sessional Paper No.6 of 1997 on Co-operatives in a Liberalised Economic Environment and follows legislative amendments to co-operative sector legislative and regulatory frameworks such as Co-operative Societies Act (2004) and SASRA Act (2008). Its objectives are to:

1. Re-align the co-operative development policy with the Constitution (2010) and Kenya Vision 2030, as well as the Government’s development masterplan for greater effectiveness of co-operative regulatory framework and participation in food security and nutrition.
2. Redefine the co-operative movement structure and strengthen the management of co-operative enterprises to encourage integration in the sector for enhanced service delivery.
3. Promote the development and integration of ICT in co-operative operations and marketing for improved market access and marketing.
4. Promote viable co-operative enterprise investments, value addition, processing and manufacturing, and enhance the capacity of co-operatives to conduct research.
5. Encourage co-operatives to take up opportunities for partnerships and joint ventures with other local and international agencies to acquire resources and skills to enhance their strategic competitiveness and skills transfer.

At the regional and global arena, periodic recession in the economies of Kenya’s major trading partners often adversely affect co-operative exports, while the volatile international financial market causes price fluctuations on commodity prices, says the Policy.

The reforms sought by the Government seek to place co-operative enterprises on the frontline of the battle to mobilise savings, enhance agricultural and non-agricultural productivity, fight poverty and promote equity.

Co-operatives mobilise funds from farmers to facilitate cost-effective procurement and distribution of farm inputs, acquisition of new technologies and upgrading of production facilities.

The Government is working to mobilise financial and technical assistance for co-operative enterprises and encourages public-private partnerships between such enterprises, private investors and the Government to increase value-addition and aggressive marketing of co-operative products and services.

Of immediate focus is addressing inadequate funding, staffing, limited staff capacity in terms of skills, and low levels of staff motivation. In this regard, the Government has three key objectives:

1. Build adequate marketing capacity within the co-operative sector;
2. Facilitate revitalisation and continued growth of co-operative enterprises; and,
3. Build capacity to enforce the law.

These objectives are dependent on the successful promotion of an innovative, commercially-oriented and modern agriculture which will stimulate and promote the revival of input supply co-operative enterprises and create the necessary capacity to trade in large volumes of inputs, and engage in the distribution of farm inputs while taking advantage of economies of scale.

Legal and regulatory reforms

Because co-operatives are private institutions, the national and county governments’ role remains facilitative in nature.

Co-operative structure

While retaining the four-tier system to support growth of the movement, the Government wants to replace the tier previously known as National Co-operative Organisation (NACO) with the federation to enhance self-regulation within the movement.

Co-operative governance

The draft policy proposes measures that will enhance co-operative board effectiveness, with a clear separation between the roles of the management and those of the board. It also recognises the importance of delegates vis-à-vis the rights of individual members, and responds to the need to stratify the co-operative societies for ease of regulation and supervision.

Enforcement is to be stiffened by restructuring SASRA to regulate all financial co-operatives and a Co-operative Regulatory Authority will be created for non-financial co-operatives. The co-operative tribunal will be streamlined and strengthened, including mainstreaming of ADR mechanisms.

Co-operative financing and investment

Commanding a huge chunk of national savings, the co-operative movement has financed most of the housing stock in Kenya. The policy proposes to strengthen co-operatives on savings mobilisation, investment and credit management.

Also addressed is general credit management in producer co-operatives with an emphasis on educating borrowers to reduce delinquency. The Government wants co-operatives to take advantage of emerging financial opportunities like:

1. Participation in the national payment system;
2. Agency banking; and
3. Share trading.

Co-operative production, value addition and marketing

Co-operatives can boost the return on investment for farmers by:

1. Channeling farm inputs to improve production;
2. Providing market linkages for agricultural produce;
3. Facilitating post-harvest management of agricultural produce through transportation and improved storage technologies;
4. Helping farmers add value to their raw produce.

Support from the National and County governments would be through:

1. Facilitating investment in bulk storage facilities;
2. Mobilising initial capital; and,
3. Laying the foundation for participation of social venture capitalists in the value addition programme.

Education, training and research

Funding education and training in the movement is a challenge, hence the choice of the Co-operative University of Kenya as the centre of excellence in Co-operative Education and Training, in addition to other institutions of higher learning, offering co-operative education and training. To augment this effort, the National Government would establish a national data and information centre for co-operatives.

ICT

The National and County governments are to help the co-operative movement fully adopt the use of ICT by formulating and passing the necessary legislation, and facilitating the development of the e-COOP platform to enhance service delivery to co-operative societies.

Cross cutting issues

Recognising that the youth, women and persons with disability are not fully integrated in co-operative activities, perhaps due to attitude, lack of interest or existing ownership structures, the Government is looking at innovative ways for marginalised groups to be absorbed in co-operative operations. One of the strategies is creation of worker co-operatives.

With devolution now firmly entrenched, full acceptance and participation by county governments in implementing the national policy on co-operative development is important.

In other words, while the National Government facilitates growth and development of co-operative enterprises throughout the country, the County governments are responsible for the same in their respective counties.

A vibrant and successful co-operative sector can help anchor Kenya’s industrialisation efforts, thanks to its huge resource base.

Types of co-operatives in Kenya

Savings and Credit Co-operative Societies (Saccos)

These are formed to provide financial support to members. They accept deposits from members and grant them loans at reasonable interest rates in times of need.

The objectives of a Sacco are:

1. Promote thrift among the members by allowing them to accumulate their savings and deposits, and thereby create a source of funds from which loans can be given to them exclusively for provident and productive purposes at fair and reasonable rates of interest, thereby enabling them to use and control their money for their mutual benefit.
2. Ensure personal growth through the introduction of new products and services that will promote the economic base of the members.
3. Ensure the progress of members and society through continuous education programmes on the proper use of credit, reduction of poverty, human dignity and co-operation.
4. Apply the co-operative principle of ‘co-operation among co-operatives’ to promote members’ interests. To further these objectives, the society affiliates to the relevant National Co-operative Union and the Apex society.

Housing co-operatives

These are co-operative societies formed to provide residential houses to members. They purchase land, develop it, construct houses or flats, and allot the same to members. Some societies also provide loans at low rates of interest to members to construct their own houses.

The objectives of housing co-operatives are:

1. Contracting for loans from non-members by issuing debentures or mortgaging its property, or by any other means up to a maximum amount to be decided by the general meeting.
2. Lend money to members for: Acquisition of living accommodation for themselves, for income-generating purposes on such terms and with such security as the management committee may, from time to time, determine; or guarantee loans and advances to members for similar purposes.
3. Undertake building operations by such means, either directly or indirectly, as the committee may decide.
4. Acquire supplies of building and similar materials and machinery of all kinds, including household furniture and equipment, for use in building or for sale or hire to members.
5. Acquire and relinquish land, buildings and rights over land and buildings by purchase, lease or any other means as may be necessary, for the attainment of these objectives.
6. Employ architects, builders, contractors, and contract services for light and power, water drainage, roads, and generally do all such things as are necessary and customary for acquisition of land and its development for housing purposes.
7. Enter into contracts with members for sale or lease of land and buildings acquired by the society in pursuance of its objectives, on such terms and conditions as may from time to time be determined.
8. Ensure the progress of members and the society through continuous education programmes on proper use of credit, reduction of poverty, human dignity and co-operation.
9. To apply the co-operative principle of co-operation among co-operatives to promote members’ interests and, in furtherance of the objectives of the society, affiliate to the relevant national co-operative union and the Apex society.

Consumer co-operatives societies

These protect the interests of general consumers by making consumer goods available at reasonable prices. They buy goods directly from producers or manufactures and thereby eliminate middlemen in the process of distribution.

Agriculture/farmers co-operative societies

These serve small-scale farmers.

Producer co-operative societies

These serve small producers by helping them acquire the items they need for production – like raw materials, tools, equipment and machinery.

Marketing co-operative societies

Several producers and manufacturers who find it difficult to sell their products in the market form co-operative societies. A good example is the Kenya Co-operative Creameries.

The objectives of a marketing co-operative are:

1. Arrange for co-operative marketing, processing, grading, packaging and transporting of members’ produce, and provision of other services as may be necessary for the most profitable disposal of the produce.
2. Arrange for the purchase and resale of farm inputs and chemicals, and other similar requirements of the members.
3. Take measures to control pests and diseases.
4. Foster education and training of members, committee members and employees.
5. Provide co-operation and goodwill between members and the society.
6. Co-operate with other co-operatives in order to promote members’ interests and in furtherance of the society’s objectives.
7. Apply the principle of promoting members’ interests.

Investment co-operative societies

The objectives of an investment co-operative are:

1. Invest members’ contributions in prudently identified ventures in order to maximise the return on investment.
2. Acquire, lease, or otherwise dispose the society’s building(s) and other fixed properties as may be necessary.
3. Purchase, take on lease, or exchange, hire or otherwise acquire any movable or immovable property of any kind and of any interest therein, and any right or privileges which the management committee of the society may think necessary or convenient for the purpose of, or in connection with, the society’s business, or which may enhance the value of any other property of the society.
4. Improve, manage, develop, and turn to account, grant rights or privileges in respect of, or otherwise deal with, any of the property rights and privileges of the society.
5. Acquire and undertake the whole or any part of the business, assets and liabilities of any person or society carrying on, or proposing to carry on, any business which the society is authorised to undertake, or which can be carried on in conjunction with any business of the society, or which is possessed of property suitable for the purpose of the society.
6. Pay out the funds of the society, or expenses, which the society may lawfully pay for or in connection with the formation and registration of the society.
7. Amalgamate, enter into a partnership, or into any arrangement for sharing profits, union of interests, co-operation, joint ventures and reciprocal concession limiting competition or otherwise.
8. Borrow money or receive money or deposits either with or without security, or secured by debentures, mortgages or other security charged on the undertaking, or on all or any of the assets of the society.

Introduction

The National Agribusiness Strategy 2012 defines agribusiness as ‘a sector that comprises all businesses involved in agriculture production – including farming and contract farming, seed supply, agriculture production, agrichemicals, farm machinery, wholesale and distribution, processing, marketing and retail sales’, (Government of Kenya, 2012).

The sector is considered to have huge potential and has been christened: ‘The sleeping giant that could help deliver 10 percent annual economic growth for Kenya’. Agribusiness is a critical sector to the Kenyan economy as it falls within Food and Nutrition Security of the Big Four Agenda.

However, there are a myriad challenges that impede the country’s capability to harness the full potential of agribusiness. These include: exploitative middlemen, adverse weather and climate change (agriculture in Kenya is mainly rain-fed), post-harvest losses, and low investment in the sector (by both the public and private sector).

This has led to the perception of farmers by lending bank and non-bank financial institutions as high risk borrowers, hence their unwillingness to lend to them.

Other challenges which hamper agribusiness include poor quality of farm inputs, and pests and diseases (Government of Kenya, 2012).

Opportunities for agribusiness in Kenya

There are a wide range of opportunities that provide a strong foundation for agribusiness in Kenya, as discussed below:

Rapid urbanisation and increased demand for processed foods

Kenya’s population is becoming increasingly urbanised as a result of rural-urban migration for those seeking employment opportunities. Also, as people get richer and more people live in towns and cities, greater opportunities are created for agriculture. Urban consumers demand better quality, well packaged, processed and a variety of food products. This demand could create more jobs for the youth who participate in agribusiness.

High world prices

Rising world prices mean the country’s dependence on imports leads to economic leakages from the economy. Kenya imports more than half of the rice, oranges, wheat and vegetable oils it consumes. If this trend continues, it will provide an argument for Government support to strengthen local production of agribusiness products to fill the supply deficit.

Dominant sector of the economy

Agriculture plays a critical role in the country’s social-economic development through its contribution to gross domestic product, employment and wealth creation. Agribusiness can absorb large numbers of underemployed rural people, especially the youth.

Potential to generate export earnings

Agribusiness generates about 60 percent of the country’s export earnings through horticulture, industrial crops, livestock, and fishery products. There is a ready market within the Common Market for Eastern and Southern Africa (Comesa), which takes about 70 percent of Kenya’s total exports to Africa.

Comparative advantage in the region

Kenya is endowed with natural resources and human capital, and is the most economically advanced country in the region, hence has a comparative advantage. But the country needs to put in place policies and strategies to maintain its competitive edge.

Status of the sector

Agriculture is a key sector of the Kenyan economy and is one of the President’s Big Four Agenda under food security. Performance of the sector reduced by almost half, from 6.1 percent in 2018 to 3.6 percent in 2019 (see figure 1).

This was attributed to extreme weather and drought in the first half of 2019, then high rainfall in the second half, destroying crops and reducing production. Kenya relies on rain-fed agriculture, hence unpredictable weather negatively impacts on the sector. Maize production decreased from 44.6 million bags in 2018 to 39.3 million bags, largely as a result of an armyworm infestation, while tea and cane production also declined in the same period. Tea is one of the major sub-sectors of the agriculture sector.

Nevertheless, horticultural export grew from 322,600 tonnes in 2018 to 328,300 tonnes in 2019, while the milk supplied to dairy processors rose from 53 percent (634.3 million litres) in 2018 to 668.2 million litres in 2019 (Government of Kenya, 2020a).

Furthermore, there was a decline in the value of marketed products at current prices by 6.5 percent from Sh498.3 billion in 2018 to Sh465.7 billion in 2018. Performance of the sugarcane sector was not any better, with earnings falling by 16.6 percent from Sh21.0 billion in 2018 to Sh17 billion in 2019, while earnings from coffee declined by 35.5 percent from Sh14.8 billion to Sh10 billion as a result of surplus production of coffee globally, especially in Brazil, leading to a decline in world prices.

Policy, legal reforms and institutional reforms

There has been substantial policy, legal and institutional reforms, with some still on-going.

In terms of relevant policies, the draft agriculture policy’s key objective is to ‘provide for economically viable, socially equitable and environmentally sustainable use of land for crops, livestock and fisheries’.

The strategies and legal reforms are explained below:

National Food and Nutrition Security Policy Implementation Framework 2017-2022

This framework was launched in 2017 with the following objectives:

1. To ensure that all Kenyans have the means to access affordable, nutritious and personally acceptable food;
2. To guarantee a sustainable, safe and high quality food supply;
3. To promote food consumption patterns that maximise health;
4. To guarantee sustainable, safe and high quality food supply; and,
5. To promote food consumption patterns that maximise health.

The strategies under the Food and Nutrition Security Pillar target to:

1. Reduce over-reliance on rain-fed agriculture: The Government will develop 85,000 acres of irrigation area and expand smallholder irrigation by 1,617 acres.
2. Reduce the cost of food; the Government will provide affordable energy; enhance market distribution infrastructure and offer incentives for post-harvest technologies to reduce post-harvest losses.
3. Reduce the number of food insecure Kenyans, and reduce chronic malnutrition among children under five years.
4. Create 1,000 production SMEs and 600,000 direct and indirect jobs, and increase the average daily income of farmers.

National Agribusiness Strategy 2012

Agribusiness in Kenya is anchored on the National Agribusiness Strategy, which was launched in 2012. The four broad objectives of this strategy are: to remove barriers and create incentives for the private sector to invest in agribusiness and related business opportunities; invest public resources more strategically to trigger growth in agribusiness; make agribusiness systems more competitive, easily adaptable and ‘fleet-footed’ in order to deal with dynamic markets and the opportunities they bring; and encourage ‘the right kind’ of institutional frameworks that enable all actors to utilise market opportunities.

The strategy identifies critical strategic priorities to trigger agribusiness in Kenya. These strategies are:

1. Put markets at the centre of all production, processing, product development and packaging;
2. Focus on research, development and innovation to better catalase growth of a vibrant agribusiness sector;
3. Promote smarter organisation of actors in the sector to benefit from economies of scale and improved productivity;
4. Improve the range and effectiveness of financial and non-financial services; and,
5. Attract investment by creating an enabling environment and putting performance above politics.

To address these strategic priorities, the strategy proposes implementation arrangements in terms of institutional roles and responsibilities in which different actors play their respective roles effectively and efficiently.

Kenya Youth and Agribusiness Strategy 2017-2021

Youth participation in agriculture in Kenya is quite low and continues to decline. The sector is predominantly driven by people aged 50 to 65 years, most of whom practice traditional or subsistence farming (Government of Kenya, 2017).

Youth have a tendency of migrating to urban areas in search of white-collar jobs. Also, they have low interest in agriculture, with the public sector concentrating on production rather than value addition. Furthermore, poor access to information on marketing and factors of production such as land and capital (financing), remain a major hindrance to engagement in agriculture.

The Kenya Youth and Agribusiness Strategy 2017-2021 was launched in 2017 and is currently under implementation. The strategy identified 11 broad objectives:

• Transform the mind-set and perception of the youth towards agribusiness;
• Equip the youth with appropriate agribusiness skills, knowledge and information;
• Enhance access to affordable and youth-friendly financial services for agri-preneurship, and enhance access and sustainable use of land in agribusiness;
• Engage the youth in research, development and utilisation of innovative agricultural technologies;
• Enhance access to factors of production and promote better utilisation of modern technologies and good agricultural practices (GAP) to increase efficiency;
• Increase utilisation of agricultural products through value addition;
• Improve access to affordable, suitable markets, support implementation, reviews and development of policies that create an enabling environment for the youth in agri-preneurship;
• Promote youth-inclusive climate-smart agricultural technologies and create green jobs for environmental sustainability;
• Promote an integrated approach to address cross-cutting challenges – including gender disparities, cultural barriers, alcohol and substance abuse, HIV and Aids, and weak governance and value systems, among other objectives.

Agricultural Sector Transformation Growth Strategy (ASTGS) 2019-2029

The ASTGS 2019-2029 aims at achieving nutritious and affordable food, accessible to all Kenyan households. This is the central goal of an agricultural transformation. Transformation of the agricultural sector is critical in achieving 100 percent food security as part of the President’s Big Four Agenda. According to the Ministry of Agriculture, Livestock and Fisheries (MALF), the strategy’s key objective is “to transform the agricultural sector into a vibrant and modern commercial sector that sustainably supports Kenya’s development in the context of devolution.”

The strategy is grounded in the belief that food security requires a vibrant, commercial and modern agricultural sector that sustainably supports economic development.

Price policy goals focus on reasonable prices for producers or farmers and affordable prices for consumers, which are challenging to balance yet critically important for food and nutrition security. However, the prices of basic food items are only one indicator of the larger goals of an agricultural transformation. Other indicators include increases in incomes, alongside productivity, increases in output, value addition and reduction of food insecurity – all of which are metrics of ASTGS measures (Government of Kenya, 2019b).

Agricultural transformation involves the following:

• Modernisation of on-farm production and input markets from subsistence to commercial agriculture, serving both local and export demand;
• Shift of value in the value chain away from primary production and toward processing and retail, eventually a shift of farmers out of farming and into more productive jobs (agricultural value chains, or out of agriculture);
• Changing demand in terms of the food people eat, for example more processed foods, animal proteins and fruits/vegetables.

The indicators of agricultural transformation include: rising incomes and declining poverty; productivity gains, yield increase; greater value-addition per worker, increase in national agricultural output, and increase in demand for animal protein, sweeteners, oils and processed foods.

Legal Reforms

There have been a number of legal reforms in the Agriculture Ministry aimed transforming the sector and giving the implementation of policies legal standing. Some of the current Bills and legislations, and their status as indicated in the Parliament Bill Tracker, are highlighted below:

The Crops (Tea Industry) Regulation 2020, on-going

The purpose of this regulation is to guide the development, promotion and regulation of the tea industry for the benefit of tea growers and other stakeholders.

The Irrigation Bill (National Assembly Bill No. 46 of 2019

This Bill was sponsored by then Majority Leader in the National Assembly, Aden Duale. Its objective is to promote the development and management of irrigation in Kenya. The Bill was assented to by the President on 2nd August 2019.

The Livestock and Livestock Products Marketing Board Bill (National Assembly Bill No. 2 of 2019)

It was sponsored by Mandera North MP Bashir Abdullahi and seeks to establish the livestock and livestock products marketing board. The Bill, which was before the National Assembly on 12th March 2020 for the third reading, was forwarded to the Senate for consideration.

The Crops Amendment Bill (National Assembly Bill No. 25 of 2019)

The broad objective of this Bill is to introduce Achiote (a tree native to tropical regions largely used for food colouring and flavour) to the first schedule of the Crops Act 2013. The Bill, which was sponsored by Matuga MP Tandaza Kassim Sawa, was tabled in the House on 26th May 2019 for the first reading.

The Crops Amendment Bill (No. 2) 2019; National Assembly Bill (No. 32 of 2019)

The amendment Bill No. 2 of 2019 was sponsored by Gatundu South MP Moses Kuria and was tabled before the House on 2nd May 2019 for its first reading. The objective of the Bill is to ensure favourable balance of trade and balanced payment for coffee (which shall not be exported from Kenya in raw form). The Bill underscores the importance of value addition to coffee before it is exported, to fetch higher earnings.

The Sugar Bill 2019 (National Assembly Bill 68 of 2019)

The objective of this Bill is development, regulation and promotion of the sugar industry and to boost the Kenya Sugar Board. The Bill was sponsored by Kandunyi MP Wafula Wamunyiyi and was tabled in the House on 30th October 2019 for its first reading.

The Tea Bill 2018 (Senate Bill 36 of 2018)

The key objective of this Bill is to provide regulation, development and promotion of the tea industry. The Bill is sponsored by Senator Aaron Cheruiyot and was tabled before the House committees for technical review on 25th June 2019. The Bill proceeded to the second reading.

The Food Security Bill 2017 (Senate Bill No 12 of 2017)

The Bill aims at giving effect to article 43(1) (c) of the Constitution on freedom from hunger and the right to adequate food of acceptable quality; article 53(1)(c) of the Constitution on the right of every child to basic nutrition; and article 21 of the Constitution on the implementation of rights and fundamental freedoms. The Bill was sponsored by then Senate Majority Leader Kipchumba Murkomen and was forwarded to the Budget and Appropriations Committee for further review.

The Nairobi Coffee Exchange Rules, 2018

The regulation establishes the Nairobi Coffee Exchange and the rules under the Capital Markets Act (Cap. 485A) to govern it. The objective and purpose of the regulation is to: “give directives, principles and conditions for trading of clean coffee at the exchange rate and to ensure the trading is conducted in a secure, stable and transparent manner in an environment of fair competition” (Government of Kenya, 2018b:5).

Institutional outlook

Ministry of Agriculture, Livestock and Fisheries

It is one of the largest ministries in the current Government and is responsible for agribusiness and realisation of food and nutrition security – one of the Big Four Agenda of President Uhuru Kenyatta’s Government. The Ministry is the overall body in-charge of policy formulation and provision of strategic direction for agriculture, livestock and fisheries, as highlighted in its core functions below:

• Formulation, implementation and monitoring of agricultural legislations, regulations and policies;
• Supporting agricultural research and promoting technology delivery;
• Facilitating and representing agricultural State corporations;
• Development, implementation and coordination of programmes in the agricultural sector;
• Regulation of inputs, produce and products from the agricultural sector;
• Management and control of pests and diseases; and,
• Collecting, maintaining and managing information on the agricultural sector.

Its current specific functions are delivered through key State departments as follows:

State Department for Crops Development

It is charged with the following functions: National agricultural policy and management; national food policy; agricultural crops development, regulation and promotion; agriculture financing; phytosanitary services and international standards compliance; farmers training; agricultural training colleges; agricultural land resources inventory and management; and policy on land consolidation for agricultural benefit.

Other functions are: Agricultural insurance policy management; agricultural land resources inventory and management; agricultural mechanisation policy management; policy on land consolidation for agricultural benefit; agricultural insurance policy; agricultural extension services standards; capacity building policy for agricultural staff; overall policy for exploitation of agro-based maritime resources; policy on development of fishing ports and associated infrastructure; capacity building for sustainable exploitation of agro-based maritime resources; protection of aquatic ecosystems; and protection of Kenya as a centre for aquaculture.

State Department for Crops and Agricultural Research

The department is responsible for the following functions: Crop research and development; agriculture seed research and development; livestock research and development: tsetse-fly and trypanosomiasis research and control; fisheries research; crop genetic research; animal genetic research and biosafety management.

State Department for Fisheries, Aquaculture and the Blue Economy

The State Department for Fisheries, Aquaculture and the Blue Economy is charged with the following functions: Fisheries policy; fisheries marketing; fisheries marking policy; fishing licensing; development of fisheries; fish quality assurance; co-ordination of development of policy, legal, regulatory and institutional frameworks for the fisheries industry and the Blue Economy; and enhancement of technical cooperation with partner states.

Other functions are: Co-ordination of maritime spatial planning and integrated coastal zone management; protection and regulation of maritime ecosystems; management and licensing of local and foreign fishing trawlers in Kenyan waters; protection of maritime resources in the Exclusive Economic Zone (EEC); overall policy for exploitation of agro-based maritime resources; policy on development of fishing ports and associated infrastructure; and capacity building for sustainable exploitation of agro-based maritime resources.

State Department for Livestock

The department’s functions are: Livestock policy management; development of livestock industry; veterinary services and disease control; range development and management; livestock marketing; promotion of dairy industry; livestock insurance policy; livestock branding; promotion of beekeeping; and promotion of the tannery industry.

State Corporations and Agencies

Cognisant of the many functions of the Ministry, one would expect other Government departments, authorities, and semi-autonomous agencies (SAGAs) to help in delivery of these functions. The key institutions are:

Kenya Agricultural and Livestock Research Organisation (KALRO)

The Kenya Agricultural and Livestock Research Organisation (KALRO) is a corporate body created through the Kenya Agricultural and Livestock Research Act of 2013 to replace the former Kenya Agricultural Research Institute (KARI).

The main goals of KALRO are: promote, streamline, coordinate and regulate research in crops, livestock, genetic resources and biotechnology in Kenya; expedite equitable access to research information, resources and technology; and promote the application of research findings and technology in agriculture.

In striving to fulfil the above goals, KALRO is obliged to:

• Formulate policy and make policy recommendations to the Cabinet Secretary on agricultural research;
• Co-ordinate and prioritise areas for agricultural research in Kenya in line with the national policy on agriculture;
• Determine and advise the Government on the resource requirements for agricultural research, both at national and county levels;
• Regulate, monitor and ensure that all agricultural research undertaken by research institutes and other institutions, or persons undertaking agricultural research, are consistent with the national priorities specified in the relevant policy documents;
• Establish and exercise control over research institutes, committees and research centres established pursuant to this Act;
• Formulate or approve medium and long-term research plans, strategies and budgets of research institutes, committees and organisations established pursuant to this Act;
• Provide grants to research institutes and persons desirous of carrying out research and training programmes which are consistent with the national research priorities and plans of the organisation;
• Support and promote training and capacity building in relation to agricultural research;
• Promote dissemination and application of research findings on agriculture, and establishment of a science park;
• Liaise with and ensure the co-ordination of institutions, agencies and persons involved in agricultural research;
• Establish platforms for sharing of research information, advancing research and transfer of technology, and dissemination of information relating to advancements in agricultural research;
• Ensure continuance of performance improvement in agricultural research; and,
• Perform such other functions as may be conferred on it by this Act, or by any other written law.

National Cereals and Produce Board (NCPB)

The National Cereals and Produce Board (NCPB) is a State corporation established in 1985 through an Act of Parliament, Cap 338. The NCPB has the following mandate: commercial trading in grains, provision of commodity handling and other grain-related services, including carrying out various social functions such as strategic food reserve and famine relief in collaboration with National and County Governments; procuring and marketing of high-quality farm inputs; and provision of storage and grain maintenance.

The NCPB also offers post-harvest services like grain storage to a number of County Governments. It has also forged partnerships with the private sector on distribution of fertiliser and seeds, and hermetic bags. Other cereals handled by the board include rice (pishori and sindano), maize, and beans. The board also provides services such as weighing, grading and aflatoxin testing, clearing and forwarding, bagging, cleaning and drying, pest control, warehousing, leasing of property and agency business.

Agricultural Development Corporation (ADC)

The ADC’s mandate was established through the ADC Act (Cap 444) of the Laws of Kenya, as follows:

• Promote the production of Kenya’s essential agricultural inputs as the corporation may decide, such as seeds and pedigree livestock, including hybrid seed maize, other cereal seeds, potato seed, pasture seed, vegetable seed, pedigree cattle, dairy, beef, sheep, goats, pigs, poultry and bees.
• Undertake such activities as the corporation may decide for developing agricultural production in specific fields, such as training, knowledge and technology transfer through participation in field days, embryo transfer, artificial insemination and organising of Agricultural Show of Kenya events.
• Participate in activities in agricultural production which are related to the primary and secondary functions of the corporation and which, in the view of the corporation, are commercially viable in production of maize, wheat and potatoes; and commercial sale of milk, dairy, beef, goat and sheep products.

Agricultural Finance Corporation (AFC)

The Agricultural Finance Corporation (AFC), previously known as Development Finance Institution (DFI), was established in 1963 as a subsidiary of the Land and Agricultural Bank. It was incorporated as a full-fledged financial institution under the Agricultural Finance Corporation of Kenya Act 1963, Cap 323 of the Laws of Kenya. It was then tasked in assisting in effective and peaceful transfer of land to indigenous farmers, as well as injecting new capital to farm owners to spur development.

Today, AFC remains the leading Government credit institution mandated to provide credit for the sole purpose of developing agriculture. Since agriculture is the cornerstone of Kenya’s economy, with 80 percent of the population living in rural areas and relying on agriculture as the main support system, the corporation plays a critical role in providing much-needed credit.

The loan products offered by AFC are for machinery, agribusiness, livestock and fisheries development, cash crop development, horticulture and floriculture loans, water development, seasonal crop credit, and school-based loans.

Agri-business loans

They are designed to benefit agri-business traders and aim to provide start-up capital for those seeking to start, or are engaged in, agricultural microenterprises. There are huge opportunities for the youth in agricultural, micro and small medium enterprises across the value chain. Beneficiaries of this loan facility are expected to engage in wealth creation and employment generation.

Features of the agri-business loans include: individual and group loans, with repayment periods of up to three years and interest rate of 15 percent per annum. Items financed include marketing and processing of farm produce. For one to be eligible for a loan, their business must be viable. Tangible security must be offered for the loan, as well 20 percent equity contribution to the business project.

National Irrigation Board (AIB)

The boards’ website says: ‘We are at the forefront of improving food security’. This is in line with one of the Big Four Agenda − food and nutrition security. The National Irrigation Board (NIB) was established as a State corporation in 1966 through the Irrigation Act Cap 347 of the Laws of Kenya. The objective of establishing NIB was ‘to provide for development, control and improvement of irrigation schemes for purposes incidental thereto, and connected therewith’. The board is in-charge of public irrigation schemes in Kenya; namely, Mwea, Bura, Tana, Ahero, West Kano, Perkerra and Bunyala irrigation schemes.

The board runs the following:

• Mwea Irrigation Agricultural Development (MIAD centre;
• Ahero Irrigation Research Station and two other subsidiaries;
• Mwea Rice Mills Ltd (MRM); and,
• Western Kenya Rice Mills (WKRM).

Kenya Agri-business and Agro-industry Alliance (KAAA)

This alliance is a private, not-for-profit membership organisation dedicated to strengthening Kenya’s agro-industrial competitiveness. This is achieved through programmes highlighting trade and development potentials, and broad issues that encompass several individual agribusiness sectors and require a “value chain” approach.

The KAAA is the only national private sector group embracing Kenya’s agribusiness and its allied industries in collaboration with private and public stakeholders to influence policies that strengthen agribusiness.

The KAAA CEO says: ‘Having access to international linkages, KAAA seeks to strengthen Kenya’s agricultural sector international outreach through stimulating private enterprise, trade and investment solutions in Third World agro-industrial development. The alliance also fosters heightened public awareness of agriculture’s vital importance in national and global economic health’.

Productivity

Sugarcane

The Kenya Economic Survey 2020 shows that the performance of the sugarcane sub-sector in terms of the area under cane production declined by 2.5 percent from 202,400 hectares in 2018 to 197,300 hectares in 2019.

This reduction was largely attributed to the closure of Mumias Sugar Factory in early 2018. The area harvested also declined from 73,100 hectares in 2018 to 71,900 hectares in 2019 as a result of the lengthy closure of Kwale Sugar Company, and Mumias Sugar Factory.

Consequently, the total cane production decreased by 12.5 percent from 5.3 million tonnes in 2018 to 4.6 million tonnes in 2019, due to low cane supply. The situation in the sub-sector was made worse by extreme weather conditions experienced in the last quarter of the year, which made it hard to lift cane from the fields. The average yield also declined by 7.4 percent from 55.1 tonnes per hectare in 2018 to 51.0 tonnes per hectare in 2019.

Domestic sugar production and imports for the period 2015 to 2019 are shown in figure 2. Overall, total domestic sugar production dropped by 10.2 percent from 497,100 tonnes in 2018 to 440,900 tonnes in 2019. This decline in sugar production was attributed to low cane supply in 2019. On the other hand, sugar imports rose by 61.4 percent, from 284,200 tonnes in 2018 to 458,600 tonnes in 2019, to fill the production deficit and meet the rising domestic demand. Sugar exports were minimal, having decreased from 2,000 tonnes in 2018 to 800 tonnes in 2019.

Horticulture

According to the Kenya Economic Survey, the output of fresh horticultural produce has been growing over the years since 2015. Conversely, earnings from exports of fresh horticultural produce declined for the first time by 5.9 percent, from Sh153.7 billion in 2018 to Sh144.6 billion in 2019, as a result of lower prices in the international market. Output of fresh horticultural produce rose marginally by 1.8 percent, from 322,600 tonnes in 2018 to 328,300 tonnes in 2019.

Earnings from cut flower exports decreased by 8.0 percent from Sh113.2 in 2018 to Sh104.1 billion in 2019, accounting for 72 percent of the total earning from horticulture exports. The output of cut flower exports rose by 7.8 percent from 161,300 tonnes in 2018 to 173,700 tonnes in 2019. The output of exported cut flowers rose from 161,200 tonnes in 2018 to 173,700 tonnes in 2019.

The quantity of fruits exported increased by 8.3 percent from 75,600 tonnes in 2018 to 81,900 tonnes in 2019. Export earnings from fruits increased by 3.1 percent from Sh12.8 billion in 2018 to Sh13.2 billion in 2019, accounting for 9.1 percent of total earnings from horticulture exports.

As shown in figure 3 below, the performance of monthly export output of horticulture was poor from June to December 2019, standing at around 25,000 tonnes or below for most months.

On the other hand, earnings from export of horticultural products ranged from Sh10 billion in July and September to Sh15 billion in December 2019 − the best performing month in earnings but the lowest performing in export quantities.

The quantity of vegetables exported declined by 15.2 percent from 85,800 tonnes in 2018 to 72,700 tonnes in 2019. The value of vegetables exported fell marginally by 1.7 percent from Sh27.7 billion in 2018 to Sh27.2 billion in 2019.

Naivasha, especially around Lake Naivasha, is the key export flower producing region in Kenya. Other flower producing areas are Mount Kenya region, Nairobi, Athi River, Kitale, Thika, Nakuru, Kericho, Kiambu, Nyandarua, Uasin Gishu, Trans Nzoia and Eastern Kenya.

The main export destinations for Kenyan flowers are:

• The European Union (EU), with The Netherlands being the key market.
• The United Kingdom, Germany and France.
• Emerging markets: United States of America, Japan, Dubai and Russia.

It is important to note that the COVID-19 pandemic has dealt a major blow to the flower industry in Kenya since early this year, leading to a drastic drop in operations.

Tea

In 2018, the area under tea was 234,300 hectares, compared with 269,400 hectares in 2019. However, tea production declined by 6.9 percent to 458,500 tonnes in 2019, from 493,000 in 2018. Smallholder subsector tea production reduced from 272,500 tonnes in 2018 to 258,100 tonnes in 2019, while the estate sub-sector production declined to 200,700 tonnes in the same period. Subsequently, the average yield fell from 2,383 kg/ha in 2018 to 1,888 kg/ha in 2019 for the estate subsector.

Similarly, in the smallholder sub-sector, the yield recorded decreased from 1,922 kg/ha in 2018 to 1,583 kg/ha during the period under review. The low production was mainly attributable to extreme weather phenomenon characterised by drought during the first half of the year.

Kenya Tea Development Agency (KTDA)

The Kenya Tea Development Authority was established under the Agriculture Act (Cap 318 section 91, Legal Notice No. 42, effectively replacing the Special Crops Development Authority which had been operational since 1960. KTDA took over the management of the small-scale tea farming sub-sector, while large-scale tea growers process and market their tea through 39 factories which are operated on private basis.

Evolution of the Kenya Tea Development Authority to Kenya Tea Development Agency Management Services Ltd in 2009 is graphically shown in figure 4. In 1999, the KTDA order revoked the legal notice No. 44 and, in the same year, the Sessional Paper No. 2 of 1999 recommended the privatisation of KTDA (Authority). A year later, the authority was privatised through the establishment of the Kenya Tea Development Agency Ltd, under the Companies Act 486 (as a private limited liability company).

The KTDA provides services such as managerial production, transportation, procurement of production inputs, marketing of processed tea and payment of tea proceeds to growers. There are an estimated 400,000 small-scale tea growers in Kenya, who process and market their tea through 69 factories controlled by KTDA. The Agency prides itself in being responsible for 60 percent of the tea produce in Kenya

Performance of the Agency, as shown in figure 5 and 6, indicates a marginal increase in pre-tax profit from Sh2.531 billion to Sh2.838 billion in 2018 and 2019, while the average percentage return to farmers dropped from 73 percent to 67 percent in the same period. However, as indicated in figure 7, there was a slight drop in the dividend paid out, from Sh691 in 2018 to Sh683 in 2019.

The Cabinet Secretary for Agriculture, Livestock, Fisheries and Co-operatives, Peter Munya, in a press statement on 16th April 2020, highlighted key challenges that the tea sector is grappling with. Some of these challenges, as elaborated in the press statement, are: A dysfunctional tea auction system; control and predatory behaviour of KTDA and its subsidiaries in the tea value chain; and low and unstable tea prices.

In regard to the challenges linked to KTDA, the Minister proposed a study to be undertaken to ‘evaluate the impact of KTDA’s commercial behaviour on the entire value chain, including the earnings to smallholder tea growers.

Kenya Tea Growers Association (KTGA)

The Kenya Tea Growers Association (KTGA) was established in 1931 to promote the interests of members, who were mainly large-scale tea producers, in cultivation and manufacture of tea, and to promote good industrial relations and sound wage policies for the workers.

The association has 18 members and five strategic partners, namely; Federation of Kenya Employers (FKE), East Africa Tea Trade Association (ETTA), Kenya Private Sector Alliance (KEPSA), and Agricultural Employers Association (AEA).

East Africa Tea Trade Association (ETTA)

The East Africa Tea Trade Association (ETTA) is mandated to promote and facilitate the interests of all stakeholders in the tea trade in Africa through creating an enabling business environment geared towards global standards and delivering tea products to customers in the most profitable way. There are 10 member countries of ETTA, five of which are from outside East Africa region, namely; Malawi Madagascar, Mozambique, Democratic Republic of Congo and Ethiopia.

The ETTA is a private organisation bringing together tea producers, sellers, brokers, tea packers and warehouses. According to the association’s website, it has 300 companies from East and Central African region (East Africa Tea Trade Association, 2020). The core business of ETTA is tea auction, lobbying and advocacy, marketing, membership support, and information provision.

Tea auction is usually carried out in Mombasa, but the association also has tea auction live streaming. Currently, the association has 84 producer members involved in production, trading and value addition. The function of producers is to represent brokers at the Weekly Tea Auction in Mombasa. (The weekly auction was temporarily halted because of the COVID-19 pandemic but there are plans to resume operations with the use of hotels for extra space).

Livestock

According to the Kenya Economic Survey (2020), 2,781,700 cattle and calves were slaughtered in 2018 compared with 3,080,800 in 2019, an equivalent of 10.8 percent increase. The total number of goats and sheep delivered to slaughterhouses rose from 10,247,600 in 2018 to 11,302,700 in 2019. The number of pigs slaughtered increased by 6.5 percent from 388,200 heads in 2018 to 413,500 heads in 2019.

Kenya Meat Commission (KMC)

The commission’s mandate is to ‘consistently purchase quality livestock, process it efficiently into high quality meat and meat products, and develop sustainable markets while ensuring prudent financial management for sustainability and profitability of the Commission’. The KMC Cap 363 outlines the main functions of the commission as follows; procure quality livestock; process and pack high quality meat and meat products; maintain sound financial systems for commercial viability; and research and development of new products.

The Kenya Meat Commission has a slaughter capacity of 1,000 large animals per day and 1,500 small stock per day in Athi River, while the facility in Mombasa can slaughter 250 large stock and 500 small stock per day. The meat is sold either as carcasses or as value-added products. The commission’s value addition line comprises processed products such as topside, silverside, rump steak, T-bone steak, fillet and rib roast. Other products include meat balls and burgers.

KMC also converts all waste into bone meal and tallow. By-products from the production process include hides and skin, hooves, horns and blood meal.

Poultry

Poultry farming in Kenya has the potential to transform the economy through generation of employment and wealth. The market for chicken and eggs in Kenya is huge, especially in fast-food restaurants in major towns and cities. The number of people who don’t eat red meat due to associated health risks, and religious restrictions on consumption of pork, has increased the demand for chicken. There is increasing demand for indigenous chicken (kienyeji).

Other types of poultry include: duck, turkey, geese, and exotic chicken breeds (broilers, etc). The various chicken breeds include broilers (from KARI, now KALRO); improved kienyeji chicken by Homerange Kenya/KALRO; layers; Sasso; and Kuroiler by Limuchicks Holdings. Indigenous chicken production accounts for about 80 percent of the market. Nevertheless, the sub-sector’s viability is hampered by high cost of feeds, inadequate production information, unstructured markets for indigenous chicken breeds, medication and low or poor return on investment.

Dairy produce

Production of milk increased by 5.3 percent, from 634.3 million litres in 2018 to 668.2 million litres in 2019. But the output of processed butter, ghee and cheese declined by 18.9 percent and 20.5 percent to 1,013.4 tonnes and 305.4 tonnes, respectively, in 2019.

On the other hand, the quantities of milk and cream processed rose by 50 percent, from 486.4 million litres in 2018 to 491.8 million litres in 2019 (Government of Kenya, 2020).

Kenya Dairy Board (KDB)

According to the Kenya Dairy Board’s website, the core mandate of the Board is to regulate the diary sub-sector through enforcement of the Dairy Industry Act CAP 366. The board undertakes inspection and licensing of milk handling premises, and surveillance on the quality and safety of milk and milk products along the value chain. The ultimate aim is to protect consumers and facilitate trade by enhancing quality and safety of milk and milk products so as to remain competitive.

The Board issues the following licences: processor; mini-dairy, cottage industry, cooling plant (above 5,000 litres per day), cooling plant (below 5,000 litres per day), milk bar, primary bar and dairy manager’s licence. The board also issues permits such as milk carriage permit, import permit, and export permit.

Statistically, the dairy cattle population is 4.5 million heads, with an annual milk production of 5.28 billion litres. There are 1.8 million smallholder dairy farmers. The dairy industry creates about 1.2 million direct and indirect jobs. The formally marketed milk per year is 600 million litres.

Apiculture

Beekeeping (apiculture) in Kenya is mainly practised in arid and semi-arid lands (ASALs) and has recently emerged as one of the potential activities in agribusiness. Traditionally, honey has been harvested from the wild for subsistence use, especially in ASALs, because of the abundance of bee flora.

Honey and apicultural activities are usually cheap to start and manage, considering that they require less labour, capital and land. The benefits of beekeeping and bee products include crop pollination, honey products for use in food processing, medicine, industrial manufacturing and natural healing. In Kenya, apiculture is practised mainly in Kitui, Machakos, Baringo and Nakuru.

According to ‘farmers trends (2020)’ – an online agricultural portal – traditional beekeeping in Kenya is faced with lack of capacity to produce commercially viable honey products, hence the low income generated. This is due to poor harvesting techniques, use of ‘old-school’ type of beehives, and lack of knowledge and marketing capacity − which expose beekeepers to exploitation by middlemen.

The country’s annual honey production is about 25,000 metric tonnes (20 percent of the full potential) per annum, out of the full potential of 100,000 tonnes per year (Muma, 2020). Kenya is the third honey producer in the region after Ethiopia and Tanzania. About 91,000 people are employed in beekeeping, translating to about 547,440 people who are supported by the sub-sector (Muma, 2020). Beekeeping is mainly seen by the youth as an occupation of the old, yet with the right capacity building, the youth are likely to benefit from the industry at value chain stages.

Rice

According to the Kenya Economic Survey 2020, the total area under rice in 2018 rose by 17.9 percent to 32,300 hectares in 2019, while the number of plot-holders rose by 11.8 percent to 15,700 hectares during the same period. Overall, the total paddy rice production rose by 42.6 percent from 112,600 tonnes in 2018 to 160,600 tonnes in 2019.

Paddy rice production by Mwea Irrigation Scheme rose by 34.5 percent to 121,000 tonnes in 2019, which is equivalent to 75.3 percent of the total paddy rice production. Other schemes also experienced a rise in paddy production except Bunyala, which had a 1.5 percent decrease due to a reduction in the area cropped. The gross value of rice output declined from Sh6.9 billion in 2018 to Sh10.1 billion in 2019. On the other hand, payment to plot-holders grew significantly from Sh3.8 billion to Sh6.9 billion in 2019.

Government Budgetary Allocation, 2019-2020 financial year

In the financial year 2019-20, Sh59.1 billion was allocated to agriculture, rural and urban development. Out of this, the Government allocated Sh42.6 billion to support enhancing of food and nutrition security to all Kenyans by 2022. In its endeavour to achieve food and nutrition security under the Big Four Agenda, the Government put in place a strategy of aligning all policies under the Agriculture sector to target ‘increasing food production, boosting smallholder productivity and reducing the cost of food’ (Government of Kenya, 2019a).

Some of the projects and programmes that benefitted from this allocation are: Sh7.9 billion for irrigation programmes; Sh3.0 billion to cherry coffee revolving fund; Sh1.8 billion to boost cereal enhancement; Sh1.0 billion for crop diversification; Sh0.6 billion for armyworm mitigation; Sh2.0 billion for national value chain support; Sh0.7 billion for digitalisation of land registries; and Sh0.6 billion for livestock and crop insurance scheme.

Budget 2020-2021

During the 2020-21 budgetary allocation, the Government set aside Sh7.9 billion as a stimulus for reviving agriculture and food security, through assisting small-scale farmers and the flower industry. The flower industry has been particularly hit by the effects of the COVID-19 pandemic. Out of the Sh7.9 billion total allocation, Sh3 billion was set aside for subsidising supply of agricultural farm inputs through the e-voucher system targeting 200,000 small-scale farmers. The Government also allocated Sh3.4 billion for community household irrigation to reduce overreliance on rain-fed agriculture and guarantee food security in the country.

According to ICPAK and Oxygéne (2020) analysis of the National Budget, food and nutrition security – one of the Big Four Agenda – received a total of Sh52.8 billion.

Projects

The ‘Empowering Novel Agribusiness-Led Employment (ENABLE) Youth Programme

The programme is co-founded by the African Development Bank (AfDA) and the Government, and it commenced in 2018 to 2022. Its objective is to create gainful employment, generate income for the youth and bridge succession gaps in agribusiness and related value chains. This youth initiative focuses on enhancing entrepreneurship in agribusiness through skill development and creating an enabling environment for the youth to become owners of profitable agribusinesses.

The ENABLE Youth Kenya programme is being implemented in eight Youth Agribusiness Incubation Centres (YABICs). They are:

Regional Pastoral Training Centre in Narok County;

• National Aquaculture Development Centre in Kirinyaga County;
• Kenya School of Agriculture in Nyeri County;
• Dairy Training Institute (DTI) in Nakuru County;
• Pwani University in Kilifi County;
• Kisii University in Kisii County;
• Ramogi Institute of Advanced Technology (RIAT) in Kisumu County; and,
• University of Eldoret in Uasin Gishu County.

The programme is divided into pre-incubation stage (including activities such as innovation assessment, business planning assessment, training, etc); incubation stage (training, advanced business planning, accesses to financing, etc.); and post-incubation stage (technology development, networking, partnerships, access to financial services, coaching and mentorship, marketing linkages, business plan development, etc.)

Agricultural Sector Development Support Programme II (ASDSP II)

It is a follow-up to ASDSP I, which was completed in June 2017. The main purpose of ASDSP is to develop sustainable priority value chains for improved income, employment, food and nutrition security. The programme addresses four critical challenges to achieving agricultural commercialisation, identified during ASDSP I.

These are: low productivity along the value chains; inadequate entrepreneurial skills among the value chain actors (VCAs) and among the service providers; low access to markets by VCAs and; weak and inadequate structure and capacity for consultation and coordination within the sector.

The programme is operational in all the 47 counties at a cost of Sh5.692 billion, out of which the Swedish International Development Agency (SIDA) contributed Sh3 billion, the European Union (EU) Sh600 million, the Government of Kenya Sh800 million, and County Governments Sh1.292 billion – with each county contributing Sh5.5 million per year.

In 2019, ASDSP II made a number of achievements, namely; updated national and counties VCA/VCO database (disaggregated by gender); developed guidelines for operationalisation of key structures; sensitised 300 staff and stakeholders on programme implementation mechanisms/guidelines, procured technical advisory services, and developed the 2019-2020 work-plan and budget – implementation of which is on-going – among other achievements.

Kenya Climate Smart Agriculture Project (KCSAP)

The Kenya Climate Smart Agriculture Project (KCSAP) is a Government initiative supported by the World Bank. It is being implemented from 2017 to 2022, with the main objective to: ‘increase agricultural productivity and enhance resilience/copying mechanisms to climate change risks in the targeted smallholder farming and pastoral communities in Kenya, and in the event of an ‘eligible crisis or emergency’, to provide immediate and effective response’ (https://www.kcsap.go.ke/).

The project has four components, namely; up-scaling climate smart agricultural practices, strengthening climate smart agriculture (research and seed systems), accessing agro-weather market (advisory services), and project coordination and management (monitoring, evaluation and impact).

National Agricultural and Rural Inclusive Growth Project (NARIGP)

It is a Government of Kenya initiative implemented through the State Department of Crop Development, with funding from the World Bank. The project has been running from 28th July 2017 and is expected to be completed in 2022 after a five-year period.

The objective of the project is “to increase agricultural productivity and profitability of targeted rural communities in selected counties, and in the event of an eligible crisis or emergency, to provide immediate and effective response”. The project is being implemented in 21 counties, namely; arid areas (Turkana and Samburu); semi-arid areas (Makueni, Kitui, Embu, Meru, Kwale, Kilifi and Narok); and medium-to-high rainfall areas (Kirinyaga, Kiambu, Murang’a, Nakuru, Bungoma, Trans Nzoia, Nandi, Vihiga, Kisii, Migori, Nyamira and Homa Bay).

Small Scale Irrigation and Value Addition Project (SIVAP)

The proposed Kenya Small Scale Irrigation and Value Addition Project (SIVAP) targets 11 counties within a few arid and semi-arid lands, namely, Kitui, Makueni, Machakos, Tana River, Bomet, Meru, Tharaka-Nithi, Nyandarua, Murang’a, Kajiado and Nyeri.

The overall objective of SIVAP is to contribute to poverty reduction by enhancing agricultural productivity and income, as well as food security among the beneficiaries. The project has four main components, which are:

1. Enhanced irrigation infrastructure and water resources development;
2. Improved access to markets and strengthening value chains;
3. Institutional strengthening and capacity development; and,
4. Project coordination and management.

The project is being executed by the Ministry of Agriculture, Livestock and Fisheries and will be completed in 2021after running for six years from 2015.

Regional Pastoral Livelihoods Resilience Project (RPLRP-Kenya)

The Government implemented the Regional Pastoral Livelihoods Resilience Project (RPLRP-Kenya), financed by the Government and the World Bank. The project ran from 2014 to 2019. Its objective was to enhance livelihood resilience of pastoral and agro-pastoral communities in drought-prone areas in IGAD region and enhance the capacity of countries to respond to an eligible emergency.

The project, which is categorised in the areas of Natural Resource Management, was also implemented by other groups and countries, namely; Inter-Governmental Authority on Development (IGAD), Uganda and Ethiopia.

In Kenya, the project was implemented in 14 arid and semi-arid counties, including Baringo, Garissa, Isiolo, Kajiado, Laikipia, Lamu, Mandera, Marsabit, Narok, Samburu, Tana River, Turkana, Wajir and West Pokot). Specific activities of the project include market access and trade, pastoral livelihoods support, and pastoral risk management. All the planned preparatory activities for the project have been achieved.

Conclusion

Food and nutrition security is one of the Big Four Agenda and, indeed, is a key national mandate. The country’s socio-economic development is anchored on a healthy population and an economy that is resilient to the effects of climate change, global swings in staple food prices, and the effects of emerging pests and diseases. Such risks destabilise the livelihoods of most Kenyans and the economy.

The Government has put in place policies, strategies, legal and institutional frameworks to help nurture agribusiness – whose potential is yet to be fully realised. The agribusiness strategy was developed in 2012 to help grow the sector in Kenya. In addition, the Government – through the Agriculture Ministry – developed the Kenya Youth Agribusiness Strategy 2017-2022, which aims at including the youth in agribusiness and debunking the perception of agriculture as an occupation for the old.

Cognisance of the importance of agribusiness, the Government has continued to enhance budgetary allocations to the sub-sector while creating an enabling environment for value addition and export of final goods/products, as opposed to raw materials and semi-manufactured goods which fetch less earnings.

References

Agricultural Finance Corporation (AFC) – Agribusiness. Available at: http://www.agrifinance.org/loanProduct/QWdyaWJ1c2luZXNz Accessed on 29th June 2019.

East African Tea Trading Association (2020) – ETTA functions: Available at: https://eatta.com/eatta-member-functions Accessed on 4th July 2020.

Government of Kenya (2012), The National Agribusiness Strategy, 2012: Making Kenya’s Agribusiness Sector a Competitive Driver of Growth. Nairobi, Agricultural Coordination Unit (ASCU).

Government of Kenya (2017), Kenya Youth and Agribusiness Strategy, 2017-2021. Nairobi, Government Press.

Government of Kenya (2018a), The Empowering Novel Agribusiness-Led Employment (ENABLE) Youth Programme. Available at: http://www.kilimo.go.ke/wp-content/uploads/2020/04/20200408-Brief-on-ENABLE-Youth-Program.pdf Accessed on: 3rd July 2020.

Government of Kenya (2018b), Nairobi Coffee Exchange Rules, 2018. Nairobi, Government Press.

Government of Kenya (2019a), Budget 2019-20. The Mwananchi Guide. Nairobi, National Treasury.

Farmerstrends (2020), Advanced Beekeeping Techniques. Available at: https://farmerstrend.co.ke/advanced-modern-beekeeping-management-techniques/ Accessed on 4th July 2020.

Government of Kenya (2019b), Agricultural Sector Transformation Growth Sector (ASTGS) 2019-2019: Towards Sustainable Agricultural Transformation and Food Security in Kenya. Abridged version. Nairobi, Ministry of Agricultural, Livestock and Fisheries.

Government of Kenya (2020a), Economic Survey of Kenya. Nairobi, Government Press.

Government of Kenya (2020b), Kenya Crops (Tea Industry) Regulation, 2020. Nairobi, Ministry of Agriculture, Livestock and Fisheries.

Government of Kenya, Welcome to Kenya Climate Smart Agriculture Project (KCSAP). Available at: https://www.kcsap.go.ke/ Accessed on: 3rd July 2020.

Government of Kenya, Agricultural Sector Development Support Programme II (ASDSP II). Available at: http://www.kilimo.go.ke/wp-content/uploads/2020/04/ASDSP-II-Overview.pdf Accessed on: 3rd July 2020.

Government of Kenya, The National Agricultural and Rural Inclusive Growth Project (NARIGP). Available at: https://narigp.go.ke/national-agricultural-and-rural-inclusive-growth-project-narigp/. Accessible on 4th July 2020.

Peter Munya (2020), Announcement of Policy, Regulatory and Administrative Reforms in the tea sector in Kenya. Nairobi, Kilimo House, April 2020. Available at: http://www.kilimo.go.ke/wp-content/uploads/2020/04/Tea-Regulations-Media-Report-by-CS-16-4-2020.pdf Accessed on 3rd July 2020.

ICPAK and Oxygéne (2020), The 2020 Budget Vellum Insight on the Budget Statement 2020-2021. Nairobi, Vellum.

Inspectorate of State Corporation (2020), Agriculture, Livestock and Fisheries. Available at: http://www.isc.go.ke/agriculture-livestock-fisheries/#tab-id-11 Accessed on 28th June 2020.

Kenya Dairy Board (2020) Regulatory Services. Available at: https://www.kdb.go.ke/dairy-regulatory-services/ Accessed on 4th July 2020.

Kenya Meat Commission (2020), Production. Available at: https://www.kenyameat.co.ke/index.php?option=com_content&view=article&id=57&Itemid=68. Accessed on 4th July 2020.

Kenya Tea Development Agency (2020), Our History. Available at: https://ktdateas.com/our-history/ Accessed on 4th July 2020.

Kenya Tea Development Agency Holding Limited (2019), 2018-2019 Annual Report and Financial Statements. Available at: https://ktdateas.com/wp-content/uploads/2020/06/Annual-Report-2018_2019-final.pdf . Accessed on 4th July 2020.

Kenya Tea Growers Association (KTGA). Available at: https://ktga.or.ke/about-ktga/ Accessed on 4th July 2020.

Ministry of Agriculture, Livestock and Fisheries (2020), The Ministry’s core functions. Available at: http://www.kilimo.go.ke/core-values/ Accessed on 28th June 2020.

Muma, Mathew (2020, Bee Bulking and Farmer Capacity Building in Bee Keeping: An Opportunity for Increasing Youth Employment and Food Security in Rural Areas. Nairobi, KIPPRA. Available at: https://kippra.or.ke/index.php/resource-centre/blogs/26-bee-bulking-and-farmer-capacity-building-in-bee-keeping-an-opportunity-for-increasing-youth-employment-and-food-security-in-rural-areas. Accesses on 5th July 2020.

Parliamentary Budget Office (2019), Unpacking the 2019 Budget Policy Statement. Nairobi, Parliamentary Budget Office.

Introduction

The overall responsibility for policy development, implementation and management of Kenya’s forests and environment belongs to the Ministry of Environment and Forestry, created via Executive Order No.1 of 2018.

The Ministry’s mandate includes the following:

i. National Environment Policy and Management;

ii. Forestry Development Policy and Management;

iii. Development of re-afforestation and agro-forestry;

iv. Restoration of strategic water towers;

v. Protection and conservation of the natural environment;

vi. Pollution control;

vii. Lake Victoria Management Programme;

viii. Restoration of Lake Naivasha basin;

ix. Kenya Meteorological Department;

x. Kenya meteorological training;

xi. Conservation and protection of wetlands; and

xii. Climate change affairs.

 

Review of key data of the sector

Kenya’s environment and natural resource base continues to face pressure from human activities and the effects of climate change, resulting in environmental degradation and depletion.

The Government in FY 2019-2020 continued to institute and enforce policy and legal measures that govern natural resources exploitation, management and conservation to ensure sustainable development.

 

As per the National Economic Survey 2020, overall expenditure on water and related services is anticipated to grow by 47.3 percent from Sh31.1 billion in 2018-19 financial year to Sh45.8 billion in FY 2019-20.

The area under Government forest plantation rose from 141,600 hectares in 2018 to 147,600 hectares in 2019, but the value of produce declined by 5.5 percent from Sh30.8 billion in 2018 to Sh29.1 billion in the review period.

The increase in forest plantations followed the ban on forest logging imposed during the year. The area planted during the period under review was 7,200 hectares, a decline from the 9,200 hectares realised in 2018.

Sale of timber from Government forests dropped from 144,200 true cubic metres in 2018 to 10,700 true cubic metres in 2019. The sale of softwood timber declined by 29,400 true cubic metres while hardwood timber sale fell to 9,200 true cubic metres, down from 113,300 true cubic metres in the previous year.

As a result of the moratorium placed on logging in Government forests, the sale of fuel wood and charcoal declined by 78.1 percent while sale of power poles declined from 29,200 poles in 2018 to 13,200 poles in the review period.

The survey notes that the fishing sector recorded a 7.8 percent decline in earnings to Sh23.5 billion in 2019, from Sh25.5 billion in 2018 due to falling volumes of fish landed. During the usual long rains season (March to May), Kenya experienced a prolonged dry season.

The overall share of the environment and natural resources sector to the country’s Gross Domestic Product (GDP) during the review period remained at 3.2 percent.

The fishing and aquaculture sub-sector grew by 11.9 percent from Sh43.6 billion in 2018 to Sh48.8 billion in 2019. Fish farming accounted for 12.8 percent of the country’s fish output in 2019.

The total revenue generated from the fisheries sector decreased by 7.4 percent from Sh25.6 billion in 2018 to Sh23.7 billion in 2019. Earnings from freshwater fish landing declined from Sh21 billion in 2018 to Sh19 billion in 2019. However, earnings from marine landing increased by 2.2 percent from Sh4.6 billion in 2018 to Sh4.7 billion in 2019.

Similarly, forestry, logging and the water supply sectors grew by 9.3 percent and 7.9 percent, respectfully, in the review period.

The Government worked with other stakeholders to increase access to through-drilling of boreholes and maintenance of modest water purification points across the country, whose number was expected to increase by eight from 315 in 2018-19 to 323 in 2019-2020.

The number of boreholes was expected to increase by 22.1 percent from 15,418 in 2018 to 18,828 in 2019, with the private sector accounting for the majority (88 percent) of the total boreholes in 2019-20.

Spending on water development was projected to increase by 57.3 percent to Sh33.5 billion in the year under review, up from Sh21.3 percent the year before.

The National Water Conservation and Pipeline Corporation (NWCPC) allocation was also to be increased by 7.8 percent to Sh1.24 billion in 2019-20.

 

Key milestones for the sector in FY 2019-2020

a) Natural Forest Conservation and Management: Indigenous forests represent some of the most diverse ecosystems found in the country. They supply important economic, environmental, recreational, scientific, social, cultural and spiritual benefits. Indigenous forests are managed for biodiversity conservation, water-catchment functions together with ecotourism development and production of tangible benefits for the communities adjacent to the forests, wildlife conservation, and climate change mitigation. The Ministry strengthened policing and protection of the five major water towers; namely, Mt Kenya, Aberdare Range, Mt Elgon, Mau and Cherangani Hills, and the smaller but critical water catchment areas across the country.

Most of these forests are degraded. The Ministry is rehabilitating them through enrichment planting and, in other cases, intensifying protection to encourage natural regeneration in order to restore their ecological integrity. During the last financial year, the Ministry was able to rehabilitate 782.68Ha of degraded natural forests through enrichment planting and 157.6Ha of bamboo planting.

In addition, the Ministry took a leading role in the reclamation of 8,869 Ha of Maasai Mau Forest from illegal settlers. This area is now under intensive protection to stop any re-invasion. The repossessed forestland is currently being rehabilitated.

 

b) Plantation and Enterprise Development

Forest plantations are managed with the primary objective of production and supply of high quality wood to support the wood industry, which includes pulp and paper, sawn timber, transmission poles, composite wood products, furniture and joinery, building and construction, and fuel wood (which 80 percent of Kenyan households and institutions depend on). The Ministry, through the Kenya Forest Service (KFS), promotes private forest plantations development for supply of industrial round wood and as an investment and business for forestry farmers. The focus of the Ministry in this programme is on restocking the backlogs since the moratorium on harvesting is still active. During the last financial year, the Ministry restocked 6,573.53Ha of un-stocked plantation areas.

 

c) Farm Forestry Development: Farm forestry is the planting of trees in farms, and it has several positive environmental effects. They include watershed protection, enhancement of the microclimate, and carbon sequestration. Forests under private ownership play a significant role in the provision of forest goods and services to supplement supply from State forests while also generating substantial incomes to households. To achieve the national forest cover target of 10 percent of land area, major afforestation efforts will have to be made in community and private lands. During 2018-2019 financial year, the ministry supported establishment of 17,558.4Ha of commercial forests.

 

d) Ecotourism development: The country’s forests are rich in plant and wildlife biodiversity, in addition to having numerous attractive features including panoramic views, lakes, craters, waterfalls, caves and hills. Consequently, the Ministry collaborates with different stakeholders to develop responsible eco-tourism products like eco-lodges, tree houses, campsites, nature trails and canopy walkways.

 

e) Water towers rehabilitation, conservation and management: The country has four major water towers in the Mau complex, Cherangani Hills, Mt Elgon, Aberdare Ranges and Mt Kenya forests. Other gazetted water towers are found in Marmanet Forest, Loita Hills, Chyulu Hills, Huri Hills, Kirisia Hills, Mathews Range, Mt Kipipiri, Mt Kulal, Mt Marsabit, Mt Njiru, Ndotos, Nyambene Hills and Shimba Hills. On conservation and management of water towers, the ministry achieved the following in 2019:

 

i. Reclamation of 21,000 hectares in Maasai Mau Water Tower where illegal settlers voluntary moved out.

ii. Launch of the 10 million tree-planting initiative at Maasai Mau Water Tower. Some 3.5 million seeds were dispersed using aerial seeding technology by the Kenya Forestry Research Institute (KEFRI) and 500,000 hectares were planted with indigenous seedlings under the adopt-a-block campaign.

iii. Some 300 hectares of degraded areas in water towers and riparian sections were rehabilitated across the country.

iv. Launched the 50-acre National Bamboo Demonstration Site at Kaptagat in Elgeiyo-Marakwet County.

v. Promoted sustainable livelihood projects like beekeeping. Educated and donated 1,000 beehives to communities living in East Mau Water Tower, Kirisia Water Tower and Nzaui Water Tower. The communities are encouraged to practise farming that is friendly to the ecosystems.

vi. Carried out assessment on the status of water towers and development of conservation management plans.

vii. Acquired equipment to monitor water towers. This will enable real time monitoring of the status of water towers.

 

f) Forestry Research and Development: Under this strategic delivery initiative, the Ministry achieved the following:

i. Productivity and improvement of Melia volkensii in Kenya. The Melia volkensii species is adaptable to arid and semi-arid lands (ASALSs) and is naturally found in the drylands of East Africa, including Kenya. Melia volkensii is a valuable tree, and produces durable and termite-resistant timber. It is fast growing with a rotation of 10-15 years. Towards this, the Ministry through the Kenya Forestry Research Institute (KEFRI):

• Selected and geo-referenced 100-plus Melia trees for long-term genetic improvement of the species gene bank.

• Established and maintained 22 hectares of Melia clonal seed orchards in Kitui and Kibwezi for provision of improved seeds of the species, which is able to produce 500kg of seeds and 100,000 seedlings yearly.

• Established eight progeny test trials of Melia trees, demonstration plots and field days for disseminating key information to stakeholders.

• Trained over 200 improved Melia distributors, farmers and 60 extension staff, and 20 senior country and KFS staff.

• Established four farmer field schools.

• Established a Melia seed distribution unit in Kitui.

• Developed a tissue culture protocol for mass propagation of improved Melia volkensii.

• Developed a protocol for improving Melia seed germination from 20 percent to over 90 percent.

The impact of these initiatives is approximately 10,000/kg seedlings yield, translating to 320 million seedlings which could cover about 320,000 ha (at 1,000 seedlings/ha), which if successful will result in about 0.6 percent forest cover, which is a key achievement towards attainment of the 10 percent forest cover envisaged in the Kenya Vision 2030.

 

g) Improvement of priority plantation species: Forest plantations are a major source of timber for construction, transmission poles, pulpwood, fuel wood and non-wood products. However, the existing plantations are not able to meet the ever-increasing demand due to high population and limited land area. This, therefore, requires development of strategies to increase productivity per unit area, some of which are tree improvements of major plantation species, and conservation of genetic resources. Towards this, the following have been achieved:

i. Importation of superior improved germplasm through Camcore for use in the tree improvement programme.

ii. Selected and maintained 240 Cupressus lusitanica, 236 Pinus patula and 338 E grandis superior trees for fast growth, disease resistance and wood quality for use in establishing seed orchards.

iii. Established over 300ha of seed orchards and seed stands of C lusitanica, P patula, E grandis, Grevillea robusta and Gmelina arborea, which are able to produce 4000kg of seeds.

iv. Established ex-situ conservation measures for some key tree species in accordance with the obligations of the Convention of Biological Diversity (CBD). These initiatives have resulted in increased productivity of various plantation species by up to 40 percent, as follows: mean annual wood volume production from 35 to 60 m3 for E grandis, 20 to 30 m3 for C lusitanica and 20 to 35 for P patula per hectare per year, respectively.

 

h) Technologies for propagation of sandalwood: Osyris lanceolata (sandalwood) is a semi-parasitic plant that grows naturally in various ecosystems in Kenya. Sandalwood is highly valued for use in the production of essential oils, beverages and perfumes. To improve its cultivation potential, KEFRI initiated a sandalwood propagation research project. Towards this initiative, key outputs realised were:

i. Developed a protocol to enhance production and growing of seed and seedling production.

ii. Identified various host species, which include Calliandra calothyrsus, Sesbania sesban, Croton megalocarpus and Acacia species.

iii. Developed air-layering techniques as complimentary propagation of O lanceolate; established 4ha plantation of sandalwood in Kitui and Muguga to demonstrate the growing of sandalwood on-farm.

iv. Established 2ha of sandalwood conservation stands in Kitui and Muguga.

 

i) Diversification of tree species on-farm: Trees on farms provide multiple uses that include fencing, timber, posts, fodder, food, poles, fuel wood, medicines, fruits, nuts and other environmental goods and services such as wind breaks/shelter belts, water catchment protection, shade, soil conservation, boundary markers and enhanced scenery. Once adopted, trees on farms, apart from domestic use, would immensely contribute to climate change mitigation and hence 10 percent tree cover. KEFRI, in collaboration with partners, identified alternative tree species for specified ecological zones and sites. Key outputs realised were:

i. Identification and successful introduction of additional on-farm tree species such as Casuarina equisetifolia, Milicia exelsa and Gmelina arborea at the coastal region; and Grevillea robusta and Croton megalocarpus in Central highlands.

ii. Mangifera indica, Adansonia digitata, Tamarindus indica, Vitex payos, Melia volkensii in Eastern region; Eucalyptus species, Malkhamia lutea, Calliandra, Calothyrsus, Tithonia diversifolia, and Maesopsis eminii in Western region; and Gmelina aborea, Bamboo spp C calothyrsus and Tithonia diversifolia and Acacia spp in Nyanza region.

iii. Training of 500 farmers on propagation, establishment and management of various tree species.

iv. Establishment of over 25 demonstration plots to showcase various tree species management and use. These outputs have potential benefits to small-scale farmers, NGOs, hotels, wood processing industries, industries that use wood as energy sources, construction and power transmission industry, and KFS and private nurseries.

 

j) Improved management and monitoring of tree pests and diseases: Pests and diseases pose a major challenge to tree growth at all stages of development and cause direct and indirect losses through reduced growth and/or mortality of affected trees. As a result, KEFRI has initiated programmes to monitor and guide management of tree pests and diseases in the country. Towards this end, key realised outputs were:

i. Successfully introduced a biological control agent – Pausia juniperorum – a parasitoid, which has kept Cinara cuppressi (cypress aphid) under control; generated information on the distribution, impact and management of blue gum chalcid which affects eucalypts, Red Gum Lerp Psyllid (Glycapsis brimblecombei), Botryosphaeria and Teratosphaeria gauchensis canker diseases on key commercial species.

ii. Studies are ongoing on Bronze bug distribution and population dynamics. Cleruchoides noackae, an egg parasitoid for the biological control of Bronze bug, has been identified.

iii. Termiticide efficacy trials are carried out periodically to inform the Pest Control Products Board.

iv. Development of guidelines for managing canker and dieback diseases. The impact of these initiatives have been:

• Provision of over 200 advisory services per year of different tree pests and diseases to various stakeholders on request.

• Integration of tree pest management which has led to reduction of tree mortalities and the number of unhealthy trees.

• Reduction of pests and diseases, leading to healthy forests and increased incomes for neighbouring communities.

• Re-introduction of Cuppressus lusitanica in plantation development.

 

k) Rehabilitation of degraded natural forests: Vision 2030 identifies deforestation as one of the challenges that Kenya has to address. The country’s closed canopy forest cover stands at around 7 percent. The most affected forests are the five water towers, namely: the Mau, Mt Kenya, Aberdares, Cherangany Hills and Mt Elgon forest ecosystems, which are major sources of river waters.

 

In recognition of the challenge of delayed natural recovery of degraded forests, KEFRI continues to demonstrate technologies for rehabilitating and accelerating the recovery process. Key outputs realised in the year under review were:

i. Identification of the main causes of delayed regeneration of degraded natural forests – lack of remnant trees/seed sources.

ii. Demonstration of the best rehabilitation approaches as protection of such sites, dense planting of seedlings and enrichment planting; mapping of the extent of forest degradation.

iii. Development of rehabilitation guidelines.

 

These initiatives have resulted in KFS adopting the technologies for scaling up rehabilitation of degraded forests and about 1,200 hectares are now undergoing rehabilitation through the Green Zones Development Support Project (GZDSP). In addition, forests adjoining communities – through respective community forest associations (CFAs) – have adopted the technologies and rehabilitated various degraded forests.

 

l) Management and control of the invasive prosopis (Mathenge) species: The prosopis species (Mathenge) exhibit rapid vegetative growth and have the ability to survive and thrive in poor soils and under drought conditions. Prosopis was introduced to Kenya and widespread planting started in 1970s to rehabilitate arid and semi-arid lands (ASALs). However, the species has spread along wetlands and riparian ecosystems. In an effort to address the invasion, KEFRI has developed technologies for managing prosopis in Kenya. KEFRI determined that prosopis was widespread in seven counties, namely, Baringo, Garissa, Isiolo, Mandera, Tana River, Taita Taveta and Turkana, and negatively affected grazing. KEFRI then developed technologies for management, utilisation and control of prosopis invasion.

 

m) Promoting adoption of bamboo use in Kenya: Bamboo is one of the most important non-timber forest resources, playing an important role in the reduction of timber consumption, environmental and forest protection. Bamboo contributes to soil and water conservation, and aids the cottage industry through poverty alleviation and sustainable development of rural economies, thus contributing to the Big Four Agenda. The Ministry, through KEFRI, has been involved in bamboo research and development with the support of various funding agencies, and it promotes it on-farm. Key achievements were:

 

 

i. Introduction of 22 species of bamboo as trials in areas where the indigenous species could not thrive. About 12 species perform well in various eco-regions.

ii. Publication of a guideline for establishing and managing plantations of bamboo in Kenya.

iii. Five bamboo training manuals were developed for artisans on harvesting, preservation, processing round-pole bamboo, product design and industrial products, and finishing.

iv. Generation of information on products and markets on the many uses of bamboo.

v. Demonstration of the use of bamboo in construction of buildings in Kibra and Mathare settlements in Nairobi and Siongiroi Girls School in Bomet.

vi. Development of a draft policy on bamboo to help in reviewing the legal status of using bamboo in Kenya.

vii. Establishment of demonstration plots of bamboo in various eco-regions.

 

n) Efficient biomass energy production: Charcoal and firewood are used by about 80 percent of Kenyan households. They are preferred due to ease of use, accessibility and affordability. KEFRI, in collaboration with other stakeholders, has developed efficient and sustainable charcoal making technologies to optimise the use of scarce wood resources, with improved yields of 30 percent. The main gains were:

i. Developed charcoal production technologies on improved earth and metal kilns for small-scale charcoal users, which improved the recovery rate from 10 percent to 30 percent.

ii. Published a guideline on improved charcoal production.

iii. Developed a checklist of appropriate indigenous tree species for high quality charcoal production; developed briquetting technologies from forest and agricultural wastes.

 

o) Sustainable utilisation of gums and resins: The dryland ecosystems are endowed with a rich diversity of useful natural resources with the potential to improve livelihoods. Some of these natural resources include gums (gum arabic) and resins (myrrh, hagar and frankincense). These provide food and are articles of commerce, both locally and internationally, earning communities valuable revenue.

 

The Ministry’s forest research agency, KEFRI, in collaboration with several partners, has undertaken research and development of gums and resins in the region, with some of the following important gains by the end of FY 2019-2020:

i. Taxonomical and ecological studies confirmed the main sources of gum and resin producing species and varieties.

ii. Chemical characterisation of gums and resins and the best yielding varieties was done.

iii. The gums and resins value chain was mapped, key obstacles identified and advocacy carried out among the stakeholders.

iv. Establishment of demonstration plots using Acacia Senegal trees for rehabilitation of degraded ASAL areas.

v. Development of protocols for sustainable wild harvesting of Acacia Senegal var kerensis and Commiphora holtziana in ASALs.

 

p) Aloe development in Kenya: Kenya has approximately 60 species of aloe, of which 26 are indigenous. Only five of these (Aloe turkanensis, Aloe scabrifolia, Aloe secundiflora, Aloe calidophia and Aloe rivae) are exploited commercially. KEFRI, in collaboration with a number of stakeholders, has been promoting the growing and utilisation of aloes in ASALs. This has led to development of protocols for both planting of aloes and processing of aloe products – including soap, shampoo and detergents. These technologies have been linked to both entrepreneurs and community groups. KEFRI trained group members on aloe planting and processing; developed technology for crystallisation of aloe vera gel into powder to increase shelf-life; and generated information on chemical characterisation of indigenous aloes.

 

q) Development of indigenous fruits in Kenya: Fruits from indigenous trees are recognised as a significant source of essential nutrients, as well as a source of income. There are over 400 species of fruit plants in Kenya, most of which are found growing wildly in rangelands and forested areas where their populations are declining. These fruits are consumed as food and are a source of income. Due to their socio-economic importance, KEFRI has undertaken a number of research and development initiatives on these indigenous fruits. Key results have been:

 

i. Development of products into fruit jam, juices, wine and candies from various indigenous fruit species.

ii. Development of production protocols for processing of 12 commercial products from a number of indigenous fruits.

iii. Prioritisation of the socio-economic preference of the following major indigenous fruits:

• Tamarindus indica (tamarind).

• Adansonia digitata (baobab).

• Ximenia americana, Carissa edulis.

• Ancybotry stayloris.

• Ziziphus mauritiana.

• Dialium orientale.

• Vitex doniana.

• Vitex payos and sclerocary abirrea (marula).

iv. Training of 10 groups with a total of about 500 members from Kitui, Kibwezi, Embu, Kakamega and Nairobi.

v. Market survey confirmed that at least 10 indigenous fruits are marketed in local towns and urban centres, while four of them (T. indica, A. digitata, D. orientale and Syzygium guinense) are also marketed nationally. Tamarindus indica is, in addition, being marketed internationally.

 

r) Technology dissemination to stakeholders: To effectively communicate forestry research findings to stakeholders at local, national and international levels, the uptake of the information is passed through various communication channels such as field and open days, print and electronic media, including the Ministry’s website, agricultural shows, radio talk, and technical publications. The Ministry has:

i. Decentralised technology dissemination to the six national/regional research centres by appointing dissemination officers in each centre.

ii. Established libraries in all KEFRI centres and connected to various databases.

iii. Digitised 2,600 publications, with 1,500 digital publications with metadata created; uploaded from static site to KEFRI library repository.

iv. Published papers in referred journals and as book chapters, technical notes, research notes policy briefs, guidelines and theses.

v. Held four KEFRI scientific conferences.

vi. Held one open day annually in each of the KEFRI centres.

vii. Held a total of 410 field days in all KEFRI research centres.

viii. Exhibited in at least 12 Agricultural Society of Kenya (ASK) shows and international trade fares annually.

ix. Distributed about 5,000 copies of publications yearly.

x. Held centre research advisory committees in all KEFRI regional centres yearly.

xi. Established a total of 152 demonstration plots in all regional research centres.

xii. Linked KEFRI electronically to 85 collaborators through the KEFRI website.

xiii. Organised and hosted four national forestry scientific conferences and one international (IUFRO- FORNESSA) forestry congress.

 

s) Environmental management and pollution control

i. Plastic bags ban: The Ministry, through the National Environmental Management Authority (NEMA), banned the use, manufacture and importation of plastic carrier bags, through Kenya Gazette notice No. 2536 of 28th February 2017. The ban took effect on 28th August 2017, and has so far been able to realise 85 percent compliance. Further, during the fourth session of the UN Environment Assembly (UNEA 4), the Ministry, through NEMA, held a side event on “Strengthening the Global Momentum to Tackle Plastic Pollution” during which it was observed that the ban had been successful, as Kenyans had embraced the decision leading to widespread adoption of sustainable and innovative alternatives.

ii. Reclamation of riparian land under Nairobi River Regeneration: The main objective of the programme is to rehabilitate, restore and sustainably manage the Nairobi River Basin in order to provide improved livelihoods and enhance environmental quality and values through well-regulated economic and recreational ventures. The Ministry, through NEMA, played a key role in enforcing reclamation efforts and has continued to implement its mandate to achieve the objectives of the river regeneration programme for a clean, healthy and sustainable environment.

iii. EMCA Water Quality Regulations of 2006 – 100-day Rapid Results Initiative (RRI) on Effluent Discharge Licence (EDL): To hasten compliance with the EMCA Water Quality Regulations of 2006 and reduce pollution to water bodies, the Ministry initiated a countrywide 100-day Rapid Results Initiative (RRI) on Effluent Discharge Licence (EDL) on 8th May 2019. Within 60 days of the RRI implementation, 1,497 facilities had been inspected in the eight regions of Coast, North Lake, South Lake, Nairobi Metropolis, North Eastern, Central, North Rift and South Rift, where over 300 firms were issued with closure notices, and 302 arrests made on individuals flouting the Water Quality Regulations under the Environmental Management and Coordination Act (EMCA) of 1999. To improve enforcement of environmental standards, the Ministry established the first ever NEMA environmental laboratory equipped with mobile ambient air quality and water quality monitoring.

iv. Ease of doing business: To promote ease of doing business in the country, the Ministry, through NEMA, revised the Environmental Impact Assessment (EIA) licensing processing period for low-risk projects to five days, from 30 days, through Kenya Gazette notice No. 31 and No. 32 of May 2019. To speed up implementation of the revised regulations, an implementation guideline was developed to guide the public and the authority in the application and approval process. This has gone a long way to support the implementation of the Big Four Agenda. On affordable housing, the Ministry through NEMA improved efficiency in the payment of licensing fees by developing an Application Programming Interface (API). Kenyans are now able to use the E-citizen platform to pay for various licences and permits that are issued by NEMA.

v. State of Environment (SoE) and National Environment Action Plan (NEAP): The Ministry developed and published the State of Environment Report (SOE) for 2016-2018, and the National Environment Action Plan (NEAP) 2018-2024. Under the sectoral planning, the Ministry prepared and launched the 2nd Edition of State of the Coast Report for Kenya on 29th March 2019. To further guide the conservation and management of the coastal zone, based on the state of the Coast Report recommendations, the Ministry, through a consultative process, developed the Integrated Coastal Zone Management (ICZM) Action Plan 2019-2023. Preparation of these reports not only contributed to realisation of the national priorities on conservation of the coastal and marine environment, but also contributed to the country’s regional obligations on implementation of the Nairobi Convention and its protocols, as well as implementation of the Sustainable Development Goals.

vi. Relocation of Kibarani and Kachok dumpsites: The Vision 2030 recognises that efficient and sustainable waste management systems are required as the country develops into a newly-industrialised State by 2030. In this regard, the Vision 2030 flagship projects set for five cities; namely Mombasa, Kisumu, Eldoret, Nakuru and Thika, to have fully functional and compliant waste management systems by developing strategies towards achieving sustainable waste management and clean healthy environment. To achieve this vision, the Ministry, through NEMA, initiated the rehabilitation of Kachok and Kibarani dumpsites in Kisumu and Mombasa counties, respectively. In the spirit of devolution, the Ministry worked with the two county governments where the two dumpsites have been reclaimed.

vii. Devolution and decentralisation of environmental functions: To support devolution and decentralisation of environmental functions, the Ministry through NEMA facilitated 37 counties to publish their own County Environment Committees (CECs) in the Kenya Gazette as provided for in the EMCA, to perform their devolved environmental functions. Further, the Ministry trained 73 officers from the National and County Governments on a Basic Environment Enforcement Course. This will go a long way in supporting environmental enforcement efforts in the country.

 

t) Meteorological Services: During the financial years 2018-2019 and 2019-2020, the following achievements were made:

i. Operations:

• Successfully organised and hosted the Greater Horn of Africa Climate Outlook Forum (54th GHACOF) from 27th to 29th January 2020 in Mombasa, which brought together climate scientists, researchers, users from socio-economic sectors, government institutions, development partners, decision makers and civil society stakeholders to develop the March-April-May 2020 regional seasonal outlook forecast. The event culminated in the Department releasing the national long rains seasonal forecast.

• Implemented the use of blended data sets (satellite and station data) in generation of seasonal forecasts through use of GeoCOF and GeoClim.

• Started incorporating a dynamical model: Weather Research in Forecasting (WRF), in the generation of seasonal forecasts.

• Facilitated the writing of 47 Climate Information Services Plan (CISP), which aim at supporting societies to build resilience to future climate change and take advantage of opportunities provided by favourable climate conditions for effective exploitation and resilience strategies at county level.

• Increased dissemination of climate information through electronic and social media, internet and face-to- face sessions.

• Installed 20 automatic weather stations (AWS), 60 rain-gauges and 12 evaporation pans.

• Installed a new upper air station at KMD headquarters.

• Produced a report on the state of the climate in Kenya for the year 2019.

• Expanded dissemination of meteorological products through SMS, making them available in western Kenya counties of Kisumu, Siaya, Kakamega, Trans Nzoia, Bungoma, Vihiga, Homa Bay, Migori and Busia.

• Provision of a timely, early warning system on flood management from a hydro-meteorological sub-branch on Nzoia River Basin to help mitigate the impacts of flooding.

ii. Collaborations:

• Initiated a working collaboration with the UK Met Office to improve service delivery at county level through WISER (Weather and Climate Information Services for Africa) Project that facilitates decentralised services at the county level.

• Partnered in the Kenya Climate Smart Agriculture Project (KCSAP) under the Big Four Agenda, which offers an opportunity for responding to and reducing the adverse effects of climate change, thus assisting the country attain food security and achieve its developmental goals.

• Collaborated to issue sector-specific forecasts through collaborations with the SWIFT (Science for Weather Information and Forecasting Techniques) project. Under this project sub-seasonal to seasonal (S2S) forecasts were regularly produced.

 

iii. International participation: The Institute for Meteorological Training and Research conducted the following capacity building activities:

• Two Advanced Meteorological Technicians Courses (AMTC-18) for participants from Rwanda; one consisting of nine students held from June 2018 to July 2019, and the other held from January to December 2019. A Middle Meteorological Technicians Course (MMTC-13) was held from January 2017 to December 2019. A Meteorological Instruments and Methods of Observation Course (MIMOC-5) for six meteorological technicians from Somalia was held from September to December 2019.

• Training sessions held between 13th May and 2nd August 2019 on improved access to, and application of, satellite data to increase information management, decision-making and planning capacity of institutions mandated for environment, climate, food security and related responsibilities, for better planning for climate change and sustainable development. This was conducted for four Kenyans, two people from Lake Chad commission and eight Somali application and system administration managers.

• Organised a blended Meteorological Satellite Application Course, which consisted of five active weeks working with satellite products and applications – an online training phase in May-June 2019. Fifty participants from 25 countries (Egypt, Niger, Nigeria, Tanzania, Ethiopia, Liberia, Sudan, Comoros, Tunisia, South Africa, Zimbabwe, Gabon, Togo, Oman, Ukraine, Algeria, Seychelles, Swaziland, Guinea, Lesotho, Ghana, Mauritius, Uganda, Cameroon, and Madagascar) participated in this online course. Seventeen online participants came to Nairobi for face-to-face classroom training in November 2019. The participants were from nine countries (Egypt, Niger, Nigeria, Tanzania, Ethiopia, Liberia, Sudan, Comoros and Tunisia).

• African Satellite Meteorology Education and Training (ASMET) Project team composed of experts from Kenya, South Africa and Morocco, in partnership with the European Organisation for the Exploitation of Meteorological Satellites (EUMETSAT) and the Cooperation for Meteorological Education and Training (COMET) Programme, which is part of the University Corporation for Atmospheric Research (UCAR), developed a learning resource module (ASMET-module 11) to enable forecasters training of on-line basis on applications of MSG data in various fields from now casting to short-range using satellite data and NWP data over Africa. The learner can access the module from the internet at their own pace.

 

u) Policy and governance in environment management

 

i. Multilateral environmental agreements: The fourth session of the United National Environment Assembly (UNEA 4) was held from 11th to 15th March 2019 at the UN Complex, Gigiri, in Nairobi, Kenya. The theme of the conference was: ‘’Innovative Solutions to Environmental Challenges and Sustainable Consumption and Production’’. Five Heads of State and Government, 157 ministers and deputy minsters, and approximately 5,000 delegates from 179 countries, attended. Others included UN bodies and specialised agencies, intergovernmental organisations, and non-governmental and civil society organisations.

ii. Forest policy, legislation and governance: Forest governance in Kenya has made significant progress since 1985, changing from a ‘command-and-control’ approach to a more participatory and multi-stakeholder involvement. Enactment of the 2010 Constitution has provided an avenue for public participation in natural resources management and equitable sharing of benefits from natural resources.

 

To mainstream the constitutional provision, KEFRI as the lead agency in forestry research and allied natural resources is required to provide technical information and policy briefs towards the development of policies and legislation for proper governance of the forestry sector. In this aspect, key gains were made:

• Preparation of Forest Conservation and Management Act 2016 and the draft National Forest Policy 2015, and also in their review 2020; piloted and documented successful PFM practices that informed the review and enactment of the Forests Act (2015) Cap 385 of the Laws of Kenya.

• Developed two Participatory Forest Management (PFM) training manuals; organised the first national PFM conference where over 1,000 stakeholders from Kenya and other countries participated, and published the conference proceedings.

• Developed and published a guideline for payment of ecosystem services in Kenya.

• Established an environmental monitoring framework, including evaporation and stream flow monitoring programme.

• Trained over 500 communities/community groups and 120 forest managers, mainly from KFS and key NGOs, on forest extension.

• Identified the cost bearers and beneficiaries of river systems conservation.

 

 

REFERENCES

National Economic Survey 2020

Ministry of Environment and Forestry

The 2010 Constitution created a devolved system of government whose aim was to decentralise political and economic power and increase access to services across Kenya.

Devolution is enshrined in Chapter 11 of the Constitution. It provides for the establishment of 47 counties, each with its own government headed by a governor as spelt out in the County Governments Act 2012.

 

Objectives of devolution

Overall, the objectives of the devolved system of government, as provided under Article 174 of the 2010 Constitution, include:

1. Promotion of democratic and accountable exercise of power;

2. Fostering of national unity by recognising diversity;

3. Giving powers of self-governance to the people and enhancing the people’s participation in the exercise of powers of the State and in making decisions affecting them;

4. Recognition of the right of communities to manage their own affairs and to further their development;

5. Protection and promotion of the interests and rights of minorities and marginalised communities;

6. Promotion of social and economic development and provision of proximate, easily accessible services throughout Kenya;

7. Ensuring equitable sharing of national and local resources throughout Kenya; and,

8. Facilitation of the decentralisation of State services.

There are five key institutions that the Constitution and subsequent legislation have set up to ensure that devolution works. These are the Council of Governors, the Senate, the County Executive Committees, the County Assemblies and the Intergovernmental Budget and Economic Council (IBEC).

In terms of creating a major departure in the governance of the country and the management of public resources, devolution has largely been successful.

However, it is still frustrated by serious challenges that, if left unaddressed, will raise questions about its political and economic sustainability.

Some of these challenges are addressed in the Building Bridges Initiative report. This chapter considers how the institutions set up to ensure devolution works have performed in the review period.

 

Council of Governors (CoG)

The Council Governors is established under Section 19 of the Intergovernmental Relations Act 2012. It comprises the governors of the 47 counties. Given that governors have executive powers, CoG is the institution with the most power and influence to ensure the success of devolution.

Bomet County’s first Governor Isaac Ruto was the first occupant of the office of chairman of CoG. He was succeeded by then Meru County Governor Peter Munya, who handed over to Joseph Nanok of Turkana. The current chairman is Wycliffe Oparanya of Kakamega.

Functions of the Council under section 20 of the Act are as follows:

a) Consultation among County Governments;

b) Sharing information on the performance of counties in the execution of their functions with the objective of learning and promoting best practice and, where necessary, initiating preventive or corrective action;

c) Considering matters of common interest to County Governments;

d) Dispute resolution between counties within the framework provided

under the Act;

e) Facilitating capacity building for governors;

f) Receiving reports and monitoring the implementation of inter-county agreements on inter-county projects;

g) Consideration of matters referred to the Council by members of the public;

h) Consideration of reports from other intergovernmental forums on matters affecting National and County interests, or relating to the performance of counties; and,

i) Performing any other function as may be conferred on it by this Act or any other legislation, or that it may consider necessary or appropriate.

Through the Council, governors identify priority issues and deal collectively with matters of public policy and governance at the County and National levels.

The Council holds annual devolution conferences at which global successes, challenges and how to overcome them are discussed. In the review period, the 6th Annual Devolution Conference was held in Kirinyaga County under the theme: “Deliver. Transform. Measure: Remaining Accountable”.

Opening the conference, President Uhuru Kenyatta spoke about corruption, the dangers it poses to the system and the need to fight it.

He called for national discussion on how to invest more resources towards development, and reduce wage bill and recurrent expenditure.

He said devolution was working for many Kenyans but it can be enhanced for shared prosperity by more people.

Speaking on behalf of development partners, Nic Hailey, UK High Commissioner, emphasised the need to make corruption painful. Devolution, he said, needs to move four million Kenyans who live below the poverty line out of poverty. These are mainly women, the youth and People Living With Disabilities (PWDs).

Mr Johnson Osoi, the chairman of the County Assemblies Forum (CAF) in the review period, said the County Assemblies need stronger autonomy, especially in budget control. The financial autonomy of county assemblies, he added, will be actualised by anchoring CAF in law. This will increase efficiency in implementation of programmes and service delivery to wananchi.

He also called for automation of the budget approval process at the Office of the Controller of Budget and faster release of cash from the National Treasury to counties.

The then Senate Majority Leader Kipchumba Murkomen said the House was committed to play its legislative and oversight role to enhance devolution. The Senate will discuss constitutional amendments to increase county allocations in the National Budget from the current 15 percent to 45 percent, he said.

He urged County Accounts Committees to step up and ensure accountability in use of the funds.

The oversight role of the Senate should also be enhanced, with funds provided for senators to undertake objective oversight, he said.

CoG chairman Wycliffe Oparanya, the Governor of Kakamega, said agriculture value chains need to be enhanced through technology, financial platforms and value addition to create jobs and enhance interest of the youth in agriculture.

The counties, he said, were committed to supporting the Big Four Agenda. However, the role of counties in implementation of the National Government’s development plan still needs to be clarified along three issues – level of involvement of counties, policy framework definition and the need to enhance its understanding by counties, he noted.

Another important issue at the conference was the need for devolution to be inclusive of children’s needs and rights, e.g safe environments for play and rest, and an education curriculum that includes the needs of children with disability.

Eugene Wamalwa, Cabinet Secretary for Devolution, urged counties to tackle corruption and spend the bulk of resources allocated to them on development, not recurrent expenditure as is the case currently.

 

County experiences with implementing the Big Four Agenda

Health Cabinet Secretary Cecily Kariuki said a bottom-up approach in health services delivery and in the management of public health, had proven to be effective in a number of counties, including Kisumu, Nyeri and Isiolo.

Community health volunteers are particularly effective in dealing with preventive and promotive healthcare and are also able to obtain critical household level data which can be fed into the mainstream health management systems, she said.

Maternal and child health indicators show a glaring gap in the health sector. For Isiolo County, 790 women die at childbirth out of every 100,000 women. Some 154 infants die out of every 1,000 children born in the county.

The Universal Health Care (UHC) is working effectively in most counties and there is increased coordination and partnership between counties and the National Government. Delivery of medical commodities, including drugs, is more synchronised as hospitals are now drawing directly from the Kenya Medical Supplies Agency (KEMSA).

This has reduced backlog and delays previously experienced that compromised delivery of medical services to citizens.

The National Government is putting more emphasis on preventive and promotive healthcare, which focuses on encouraging healthy lifestyle, immunisation and public health-related issues, such as ensuring the environment is safe and free from disease-causing agents.

 

Constitutional change discourse within the devolution context

Devolution is the best thing that Kenyans ever gave themselves since Independence. But for it to work properly, there needs to be a close and cordial relationship between National and County Governments.

There is, therefore, a need for Kenyans to be bold and advocate for change that can enhance the benefits of devolution. This includes structuring counties in a way that is most sustainable. The conference felt that counties need to develop a peer review mechanism, performance reporting and independent assessment, emulate success stories and correct one another.

There is a need for a clearer framework for revenue for the various functions. The functions should define the revenue, and not vice versa.

The role of counties in the Big Four Agenda should also be clarified since its core mandate falls in devolved functions. This issue is covered at length in the chapter on constitutional changes.

 

Revenue collection

There is a need to strengthen revenue collection by counties. For this to happen, county leaders must think outside the box.

Leaders must take responsibility on corruption, which is responsible not only for falling revenue collection but also for misuse of the little that is collected. To end corruption, leaders must stop politicising it but instead let relevant institutions lead the fight. The institutions established to fight corruption should be strengthened and supported.

Citizens participation is also crucial in accountability, which is important in keeping the trust of Kenyans. Constitutional change must strengthen devolution by increasing the resources to counties.

To ensure the resources are properly used, the capacities of County Assemblies must be built, and the Assemblies must be given financial autonomy to play their oversight role.

 

Creating a cross-sectoral enabling environment for the Big Four Agenda

Key challenges on health matters in Kenya include strikes by medical workers. Negotiations, policy changes and reconciliatory efforts are ongoing to seek lasting solutions to these issues.

Counties are committed to address these issues that include fair pay to medics and equipping hospitals and supplying drugs. Kisii County, for example, now spends 42 percent of its budget on health. Counties agreed to improve the salaries for health workers and their working conditions.

Other measures agreed upon include:

1) Putting in place a pool of qualified medical staff that can be engaged immediately;

2) Disciplinary proceedings to be followed up and actioned;

3) Putting in place a futuristic model of outsourcing medical personnel;

4) Natural attrition of nurses to be managed through contractual recruitment terms;

5) Policies and laws on determination of essential services detailing their regulations and rules to be developed;

6) Cross-county sharing of information to be improved;

7) Sharing of personnel horizontally across counties, and vertically with the National Government, to be encouraged;

8. Tele-medicine opportunities to be exploited; and,

9. Improving the capacity of doctors to specialise in various fields of medicine. Kisii County is pioneering this, with its first batch of 46 doctors who were trained in the review period.

 

Challenges and opportunities in implementation of the Big Four Agenda

The conference noted a number of hurdles that prevent devolution from fully working for Kenyans and which need to be addressed. These are;

1) Delivery of National Government project on silos due to lack of cooperation between the two levels of government;

2) Corruption and loss of public funds;

3) Lack of public participation;

4) Weak performance management systems, which include inaccurate reporting. This had been addressed by Executive Order 1 of 2019 to ensure there is a strong coordination committee. There is also an emphasis on a coordination matrix through a bottom-up approach;

5) Value in liaison of County Governments and National Government makes implementation easy. It was emphasised that only ‘manufacturing’ is a National Government function, but the other three – affordable housing, UHC and food security – are devolved. Thus there is a need to create synergy between the two levels of government;

6) Intergovernmental relations: Intergovernmental Budget and Economic Council (IBEC) now facilitates an assets report per county. On land, it is reported that over 60,000 land assets have been identified across the country. This means that the counties can utilise these assets for wealth creation at their level;

7) Analysis, unbundling and transfer of functions: Some ministries have completed transfer of functions – such as meat inspection, betting and control, libraries and museums. This is an avenue for counties to further generate revenue;

8) Enabling policies and registrations, e.g on cooperatives, alternative dispute resolutions (ADR), and also resolving disputes between National and devolved governments away from the courts. There is a measure of success as counties are avoiding high costs of litigation between them and the National Government;

9) Legal framework for holistic county pensions framework to be put in place. Currently, they use existing systems of previous local authorities. There was a rush for a legal framework before an overarching policy was put in place. This created confusion on the mandates of the National and County Governments. It is imperative for a policy to be put in place first, and ensure that it covers all civil servants;

10) The Ministry of Devolution interfaces between the two levels of government. The ministry supports intergovernmental mechanisms by developing guidelines. The ministry has supported 15 counties to implement the Big Four Agenda by disbursing Sh900 million;

11) There should be support to counties to build capacities on planning, especially around County Integrated Development Plans (CIDPs), and review policies especially on regional economic blocs.

12) Technology is an enabler and should be considered a basic infrastructure, as it provides information for empowerment, knowledge, and making decisions based on data. However, there is loss of opportunities as many citizens do not protect the infrastructure, leading to huge business losses; and,

13) There is a need to enact laws to support National and County Governments on ICT protection. ICT facilitates data collection on the Big Four Agenda, for instance.

 

Examples of ICT use:

i) Manufacturing: one can track data on goods being shipped that can be marketable.

ii)Agriculture: There are systems that can indicate when best to plant, what fertilisers to use for what, and when best to apply it. Information can be sent to farmers via phone on short message service (SMS). The system also coordinates and communicates on what areas have what products and hence can facilitate access to markets.

iii) Affordable Housing: The National Government should invest in a land management system that captures all land owned by the Government and individuals. Land transfers should be updated at county level. This enhances better land management.

iv) Health: Capacity building can be eased using technology, e.g managing illnesses and finding out the services easily accessible.

 

The conference stressed on the need to increase resource allocation to counties if the Big Four Agenda is to be delivered. But counties also need to step up the absorption of development funds. Of the 30-61 percent allocated to development expenditure, only two percent was spent, according to Jane Kiringai, the chairperson of the Commission for Revenue Allocation (CRA).

 

Making Kenya’s agriculture count

The devolution conference discussed reforms that will optimise agricultural production. One of the models discussed, dubbed ‘’Counties that count,’’ is based on what has been tried in Zambia with success.

Participants were upbeat that the model will lead Kenya into a “data revolution in agriculture”. It has a capacity to identify gaps in a growing population versus food production. Currently, we have high costs of production versus very low yields. Yet with the right inputs and technologies, yields can increase significantly.

The system is developed to ensure farmer registration by extension workers and information capture on what they grow, land size and mechanisation of the farms.

Farmers get vouchers for subsidised procurement of inputs specific to them. This tracks farm performance and is linked to banks for credit. There is then a module on food security information. It informs on what is likely to happen and what to do and, finally an extension module for advice to farmers on what to plant, when and where.

Agricultural extension officers, data analysts and service providers, are key for this to work at both the County and National levels.

 

Good governance and accountability

Governors are now increasingly taking the lead and showing keen interest in county audit processes undertaken by the Office of the Auditor General. There has been some improvement in county accounting and recording, which has eased audit processes, including timeliness in the generation of audit reports and subsequent response and implementation of recommendations. To this end, the Office of the Auditor General has reported that all the county reports (for both county executive and assemblies) have been signed for the financial year ending December 2018.

However, perennial challenges in the utilisation of IFMIS by counties continue to hamper their work. The ICT infrastructure needs to be strengthened to deal with connectivity difficulties that hamper full application of IFMIS.

The centralised nature of IFMIS is a big challenge to devolution as the system still operates as it did before promulgation of the Constitution in 2010. A suggestion was made to have two systems, one that will solely support the National Government and another for the counties, with an interface mechanism between the two systems.

Some counties continue to face compliance issues, particularly in keeping of their books of accounts, which then leads to various audit queries.

The work of the Senate in oversighting counties is adding value and is critical in ensuring that leaders are held accountable and resources meant for Kenyans trickle down efficiently.

As at the year ending December 2018, two counties had received unqualified reports; 30 had received relatively good reports with a few audit recommendations; 12 had received adverse reports; and red flags had been raised for three counties.

It was reported that some counties consider the creation of county audit committees as ‘’optional.’’ The Commission for Revenue Allocation regulations stipulate that funding to counties will be affected if functional audit committees are not in place, among other regulations. There is a need for independence of the county audit committees to ensure they remain effective and transparent in exercising their mandate.

This should free the Senate oversight committees to deal with matters of policy, such as review of wage bills and county resource allocation. Currently, audit queries that can be addressed at the local level are being brought before the Senate committee, which then limits the time that would be spent on critical aspects that relate to legislation and its applicability as far as accountability is concerned.

There is a marked increase in public awareness on corruption. Citizens are now beginning to appreciate the cost of corruption to the nation and to their lives.

The Ethics and Anti-Corruption Commission (EACC) is engaging a multi-agency approach to investigating cases brought before the commission. A multi-agency task force has been constituted to deal with economic crimes.

It includes Office of the Director of Public Prosecutions, Directorate of Criminal Investigations, EACC, Office of the Auditor General, Office of the Attorney General, Asset Recovery Agency and Kenya Revenue Authority. This approach ensures that cases are investigated comprehensively and further concretizes cases that are brought before a court of law for prosecution.

The Commission on Administration of Justice is working on operationalising the Access to Information Act and is working closely with the Ministry of Information and County Governments, particularly in public sensitisation through outreach programmes.

Social accountability still continues to be treated with suspicion by both National and County officers and leaders. There is a need to emphasise that Kenyans exercise their sovereignty through social accountability by holding their leaders accountable on issues relating to budget processes, public procurement, etc. Social accountability ensures that information is accessible to citizens in a timely fashion to ensure they have effective engagement. It was reported that some counties are now disaggregating data generated from IFMIS to make it more palatable to Kenyans for easier interpretation and interrogation, thereby increasing public participation.

There are instances where social accountability has been politicised for political ends – it is important for social accountability to be evidence-based and geared towards ensuring that the principles of good governance are respected for the benefit of all Kenyans.

Political goodwill is essential to ensure that financial prudence is exercised and the requisite processes and regulations are followed to the letter.

The conference emphasised the need for public officers to step aside if they are suspected of committing economic crimes to enable thorough investigations to be carried out and to avoid tampering with witnesses and evidence.

Additionally, application of the Public Officers Code of Conduct, and Public Officers Ethics Act should be strengthened to ensure that they do not engage in procurement.

 

Making regional economic blocs work

County Governments – with the exception of Nairobi City County – have organised themselves into seven regional economic blocs, as follows:

1. North Rift Economic Bloc (NOREB) – Formed in 2015 and comprises eight counties (Baringo, Nandi, Elgeyo Marakwet, Trans Nzoia, Samburu, West Pokot, Turkana and Uasin Gishu);

2. Lake Region Economic Bloc (LREB) – Comprises 14 counties (Bungoma, Busia, Kakamega, Kisumu, Siaya, Vihiga, Homa Bay, Migori, Kisii, Nyamira, Bomet, Kericho, Trans Nzoia and Nandi);

3. South Eastern Kenya Economic Bloc (SEKEB) – Formed in 2016 and comprises three counties (Machakos, Makueni and Kitui);

4. Central Kenya Economic Bloc (CEKEB) – Formed in 2018 and comprises 10 counties (Nyeri, Kiambu, Laikipia, Kirinyaga, Murang’a, Nyandarua, Nakuru, Meru, Embu and Tharaka-Nithi);

5. Frontier Counties Development Council (FCDC) – Formed in 2014 and comprises 10 counties (Garissa, Wajir, Mandera, Marsabit, Isiolo, Lamu, Tana River, West Pokot, Samburu and Turkana);

6. Jumuia ya Kaunti za Pwani – Comprises six counties (Lamu, Kilifi, Mombasa, Kwale, Taita Taveta and Tana River); and

7. Narok and Kajiado Economic Bloc (NAKAEB) – Formed in 2019.

 

The concept of regional economic blocs is based on the saying – “if you want to go fast, go alone, but if you want to go far, go together.” Depending on economic interests, counties can belong to more than one bloc. The draft policy on regional economic blocs provides for a minimum of two and a maximum of 14 per bloc.

Creation of regional blocs is anchored in Kenya’s legal framework, i.e Constitution of Kenya 189 (2), Intergovernmental Relations Act, and County Governments Act.

The seven regional blocs were created with the aim to: Allow for comparative and competitive advantage (economies of scale) to trade internally, with other regions and internationally;

1. Provide an avenue for integrated economic growth among counties. Majority of Kenya’s flagship projects shall leverage on the established regional economic blocs; and,

2. Allow for equitable sharing and conservation of natural resources.

The Ministry of Devolution and ASAL have prepared a draft policy to guide and regulate procedures and processes for establishment, operationalisation and preparation of a model of funding for joint programmes of regional economic blocs. The ministry has also developed guidelines for creation of sector working groups for the blocs. Jumuia ya Kaunti za Pwani has already established its Gender Sector Working Group.

The FCDC has been incorporated into a limited liability company and is therefore beyond the purview of public oversight and accountability.

As much as creation of regional blocs is anchored on other Kenyan legislations, there is a need to come up with descriptive legislation to specifically guide and regulate their establishment and operationalisation.

A draft Bill on regional economic blocs shall be presented soon to the Senate. For the regional economic blocs to work, it is important to have a legislative framework in place before institutional frameworks are established.

Most of the blocs established during the first phase of devolution faced challenges because county executives did not involve respective county legislative wings. This has since changed as county assemblies are involved in formulation of legislations for engagement, hence the gains made thus far.

The issue of regional economic blocs should not be equated to establishment of regional governments. Formation of regional governments goes against the principles of devolution, as it is a form of recentralisation.

But there are some questions that have arisen. With the establishment of regional economic blocs, should existing Regional Development Authorities be disbanded? Is there duplication of roles? It is possible for the two entities to co-exist as they serve different purposes and draw resources from different sources.

Whereas Regional Development Authorities are resourced by the National Government, regional economic blocs are funded by member counties.

But caution should be taken in the establishment of these regional economic blocs lest they become tribal enclaves.

The National Government is ready and willing to work with and support the established blocs. For instance, with support from the National Government, the FCDC received Sh120 billion development grant from the World Bank to support infrastructure, agriculture and water development in the region.

 

Role of citizens in devolution

Although public participation is a requirement of the Constitution, there is evidence on the ground that this is not happening in the right way.

As a result, many citizens at the grassroots are unaware of Government projects.

For example, Biashara Funds is a programme that seeks to build women’s economic power. But because of financial literacy problems, majority of them do not understand what they are signing into when trying to access loans. And once they default on their payments, their assets are seized.

Universal Health Care is another project that is not well understood by many Kenyans. There is little to no awareness creation at community level on UHC, hence the reason many communities are not completely sold to it, especially women. Even many health workers do not understand UHC.

Many women are also not aware of the contents of the Big Four Agenda. Women are the ones who mainly go to markets, but they do not get proper services.

Community Health Volunteers, who are mostly young people, can be engaged to create public awareness on UHC and other programmes. They can have a chance to transition to Community Health Workers so that they can earn some income.

The governed must be part and parcel of the system.

 

Counties have tried to engage citizens in devolution by:

i) Sharing county information;

ii) Facilitating civic education for women to utilise money in the proper way;

iii) Mobilising women to attend and contribute in public participation forums; and,

iv) Visiting women groups and informing them about development. This is one of the strategies used to engage women at the grassroots level.

 

The mobilisation strategy for people to attend public participation forums has been wanting and, as a result, many citizens do not attend. Many are alerted of the forums too late, while the materials for critique are given at the wrong time. There is also discrimination in selection of participants, which mainly targets supporters of the Government.

The County Governments must create adequate opportunity to engage all the citizens, including those economically engaged in different sectors, to input into development plans.

The chapter on political and constitutional changes has proposals on how to make public participation effective, including creation of the Office of Public Rapporteur.

 

Informal sector

The informal sector, also known as Jua Kali, is Kenya’s biggest employer. There are far more Kenyans working and earning a living in this sector than in the formal employment sector. Yet this sector is not recognised by law, therefore people resort to do business on land they do not own, such as road sides. As a result, they face numerous disruptions, including being evicted and their little assets seized. They also do not have access to financing facilities. Counties should consider informal businesses in CIDPs because they play a big role in the economy.

 

County Executive Committees

Article 179 of the Constitution establishes County Executive Committees and vests them with executive authority of the counties.

They comprise the governor and his deputy, and 10 members appointed by the governors with the approval of the county assembly from persons who are not members of the assembly. Also referred to as the County Cabinet, they run key service delivery departments.

 

County Assemblies

Members of the County Assembly are either elected to represent various wards within a county, or nominated. They debate issues concerning the management of the county, pass budgets, vet governors’ nominees and pass Bills.

The Assembly is constituted per the provisions in section 177 (a), (b), (c) and (d) of the Constitution and Section 7(1) and (2) of the County Governments Act 2011.

The County Assembly has a Speaker, Majority Leader and Minority Leader. Every County Assembly has a lifespan of five years, as explained in section 177 (4) of the Constitution.

The Assembly consists of members elected by registered voters in the Wards, and members allocated special seats, such as women nominees and members of marginalised groups, including persons with disabilities.

County Assemblies Forum

The County Assemblies Forum (CAF) is the coordinating body of the 47 County Assemblies in Kenya. The primary mandate of CAF is to promote networking and synergy among the 47 County Assemblies, coordinate intergovernmental relations and enhance good practice in legislative development.

 

Senate

Under the Constitution, the Senate is the protector of devolution.

It is provided for under Article 96 of the Constitution. It comprises 47 elected and 20 nominated members, the majority of whom are women. Its roles include:

(a) To represent the counties and protect the interests of the counties and their governments.

(b) To participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided for in Articles 109 to 113.

(c) To determine the allocation of national revenue among counties, as provided for in Article 217, and to exercise oversight.

(d) To participate in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.

To effectively perform these functions, the Senate is supported by the Parliamentary Service Commission (PSC).

The PSC is a Constitutional Commission established under Article 127 of the Constitution of Kenya to support the role of Parliament, as provided for in Article 94. Article 127 (6) bestows upon the PSC the following responsibilities:

(i) Provide services and facilities to ensure the efficient and effective functioning of Parliament;

(ii) Constitute offices in the Parliamentary Service, and appoint and supervise office holders;

(iii) Prepare annual estimates for the Parliamentary Service and submit them to the National Assembly; and,

v) Undertake singly or jointly with other relevant organisations, programmes to promote parliamentary democracy.

The PSC’s Strategic Plan is anchored on the national economic blueprint, Vision 2030. The plan spells out the roadmap to achieving middle-income status by 2030. The transition from a unicameral to a bicameral Parliament took place during the implementation of the second Medium Term Plan (MTP) 2012-2017. Currently, the MTP III, coupled by implementation of the Big Four Agenda, is expected to inform programmes and activities across all sectors.

Vision 2030 is premised on three pillars, namely, economic, social and political. As such, all ministries, departments and agencies (MDAs) are required to align their Strategic Plans to Vision 2030 and subsequently the Big Four Agenda so as to contribute to the achievement of the national goals espoused in the Vision.

The contribution of Parliament to Vision 2030 is through its roles as provided in Article 94 and 95. This is in terms of legislation, oversight, participatory representation and appropriation of funds for expenditure. Parliament, therefore, supports the critical sectors identified as enablers of economic and social development by providing an enabling environment for socio-economic development. Parliament’s Strategic Plan takes cognisant of these expectations.

The Strategic Plan 2019-2030 will help the PSC to set priorities, focus its human and financial resources and strengthen operations and systems. The ultimate mission is to facilitate Members of Parliament to effectively and efficiently discharge their constitutional mandate of representation, legislation and oversight. It is also meant to ensure consensus on intended strategies, activities, outcomes and results for the institution of Parliament; an important concept in corporate governance. The Strategic Plan will therefore give the direction and roadmap for implementation of Parliament’s activities and projects for the next 10 years.

2

Parliament in the context of devolved units

Devolution and devolved governments, as provided for in Article 174, are important components of governance. Devolution as a governance framework has been identified as one of the most transformative changes provided for by the Constitution of Kenya.

It promotes democratic and accountable exercise of power; fosters national unity by recognising diversity; gives power of self-governance to the people and enhances their participation.

Further, it recognises the rights of communities to manage their affairs. In view of these, the Constitution in Article 96(1) bestows upon Parliament and particularly the Senate the responsibility of representing the counties and protecting their interests and that of their governments.

The Senate is, therefore, expected to make laws by considering, debating and approving Bills concerning counties and, most importantly, determine allocation of national revenue among counties while exercising oversight over national revenue allocated to these units.

To this end, the Senate has made efforts to entrench devolution through approving and passing of requisite legislation. Among the key pieces of legislation that have been either passed or are being considered are:

1. The Annual County Allocation of Revenue Bills;

2. Equalisation Fund and Appropriation Bill;

3. Urban Areas and Cities (Amendment) Bill, 2017;

4. The County Governments (Amendment) Bill 2017; and

5. The National Flags, Emblems and Names (Amendment) Bill 2017, and

6. The County Boundaries Bill, 2017.

In this context, therefore, Parliament is required to engage with all the devolved structures – its key stakeholder – while managing intergovernmental relations, thereby achieving the vision of a democratic and people-centered Parliament.

 

Alignment to the National Development Plans

The core mandate of Parliament of passing laws, appropriation of resources, oversight and representation are essential for implementation and attainment of national goals. As representatives of the people, Parliamentarians are the mouthpiece of their constituents to guarantee participatory and equitable development.

The Strategic Plan 2019-2030 is anchored on Vision 2030 which is expected to help transform Kenya into a middle-income country while providing a high quality of life to citizens by the year 2030. Unpacking Vision 2030 to specifically focus on food security, manufacturing, affordable housing and affordable healthcare will complement the implementation of MTP III in its quest to achieve Vision 2030.

This calls for harnessing of citizens’ involvement, enactment of relevant legislation, and provision of the necessary oversight to ensure the implementation of the Big Four Agenda and other development plans.

Parliament is expected to play a critical role in actualising these by strengthening political stability, promoting national reconciliation, encouraging social harmony and expanding the democratic space.

 

Intergovernmental Budget and Economic Council (IBEC)

The Intergovernmental Budget and Economic Council (IBEC) is established under Section 187 of the Public Finance Management Act (2012).

The council comprises:

1. The Deputy President, who shall be the Chairperson;

2. The Cabinet Secretary responsible for matters relating to finance;

3. A representative of the Parliamentary Service Commission;

4. A representative of the Judicial Service Commission;

5. Chairperson of the Commission on Revenue Allocation, or a person designated by the Chairperson;

6. Chairperson of the Council of County Governors;

7. Every County Executive Committee member for finance; and

8. The Cabinet Secretary responsible for intergovernmental relations (currently the Devolution ministry).

Role of IBEC

The role of the Intergovernmental Budget and Economic Council (IBEC) is to provide a forum for consultation and cooperation between the National Government and County Governments on;

1. The contents of the Budget Policy Statement, the Budget Review and Outlook Paper, and the Medium-Term Debt Management Strategy (see key budget documents in Kenya);

2. Matters relating to budgeting, the economy, financial management and integrated development at the National and County level;

3. Matters relating to borrowing and the framework for National Government loan guarantees, criteria for guarantees and eligibility for guarantees;

4. Agree on the schedule for disbursement of available cash from the Consolidated Fund on the basis of cash-flow projections;

5. Any proposed legislation or policy which has a financial implication for the counties, or for any specific county or counties;

6. Any proposed regulation to the Public Finance Management (PFM) Act;

7. Recommendations on the equitable distribution of revenue between the National and County Governments and among the County Governments as provided in section 190 of the PFM Act; and,

8. Any other matter which the Deputy President, in consultation with other council members, may decide.

 

Other provisions

An appointed member of the Intergovernmental Budget and Economic Council (IBEC) holds office for two years. He or she is eligible for re-nomination and reappointment for another term not exceeding two years.

The National Treasury should provide secretariat services to the Council. It should assign or appoint such support staff as may be necessary for the Council to effectively perform its functions.

The Council should meet at least twice a year. The Deputy President shall decide the time and agenda for meetings of the Council, in consultation with other members of the Council.

In the absence of the Chairperson from any meeting of the Council, the Cabinet Secretary responsible for finance shall chair the meeting.

The Intergovernmental Budget and Economic Council (IBEC) may determine its own rules and procedures in such a manner as it considers appropriate.

The Council may invite other persons to attend any of its meetings.

A member of the Intergovernmental Budget and Economic Council shall cease to be a member if that person ceases to hold office by virtue of which he or she became a member of the Council.

Proposed reforms for devolution

In terms of creating a major departure in the governance of the country and the management of public resources, devolution has largely been a success.

However, devolution is still frustrated by serious challenges that, if left unaddressed, will raise questions about its political and economic sustainability.

The Building Bridges Initiative report came up with a number of suggestions on how to make devolution work better for Kenyans. These are discussed comprehensively in the chapter on political and constitutional changes.

However, Kenyans who appeared before the BBI task force that came up with the report overwhelmingly wanted counties to remain as they are, but with services further decentralised to the Ward level. They want far better service delivery and for development projects to receive enough oversight to prevent wastage and corruption.

They want to have the means to report on projects that are being shoddily developed, and to see this information acted on by the relevant institutions. They also want duplication of roles by County and National public officers eradicated, and most of the tax funds allocated to development projects. The report says the majority of those who appeared before the task force want funds to County Governments increased, with more functions being devolved.

Kenyans want to be consulted, through the public participation process, on planning and budgeting.

Although devolution has improved inclusion and service delivery, a sizeable number of the challenges experienced prior to 2010 still crop up. Some of the institutional reforms that should have been carried out to align governance with the new constitutional imperatives are yet to take place.

Treating Kenyans as if they have no right and power in policies, laws, budgeting and development projects is the order of the day. Counties are suffering from corruption, nepotism, delays in decision-making, development of projects not relevant to the needs of a locality, and inefficient and ineffective delivery of services.

Most of the views on devolution given by Kenyans to the task force centered on the following issues:

(a) The revenue share between National and County Governments;

(b) How to resolve exclusivity and marginalisation in the counties;

(c) How the counties can more effectively carry out their mandates; and,

(d) How to enhance economic growth in counties, and their ability to raise revenue without discouraging economic dynamism due to red-tape. The overriding concern for Kenyans is to identify and deal effectively with these challenges facing devolution.

Most of the submissions made to the task force advocated for more resources to be given to counties, but also that the counties should be more accountable and inclusive in their programming. Kenyans called for increased and more effective oversight and auditing, specifically focused on the need to tame corruption; monitor county spending; reduce recurrent expenditure; increase citizen participation in spending decisions; do away with the tendency of politicians to reward cronies and their families with employment; and reduce the wage bill.

The same calls for inclusion that were made by Kenyans regarding the National Government Executive were made for the counties. Ethnic minorities not perceived to be part of a winning coalition, or who, for some reason, are not political supporters of the county regime in place, are often excluded.

The cruel irony is that Article 174(e) of the Constitution provides that one of the objectives of devolution is ‘to protect and promote the interests and rights of minorities and underserved or discriminated-against communities.’ The report recommends that measures leading to greater inclusion, equality, equity, and basic fairness at the National level should be mirrored in the Counties, both in law, policy and administration.

It says there are strong concerns that despite the existence of the County Service Boards, hiring is still deeply unfair. To solve this, it proposes that the independence of the Public Service Commission should be replicated at the County level. Such a function would be responsible for the recruitment of County staff, setting reimbursement levels that are in harmony with the National Government, ensuring inclusivity, and raising the skills and capabilities of those employed.

There is ample scope for County Governments to also embrace performance management with clear metrics to enhance staff effectiveness. Steps should also be taken to strengthen the ability of Members of County Assemblies in providing proper oversight on the County Government.

Enhancing economic growth in the counties is crucial, otherwise devolution could stall and, even worse, reverse. What is crucial is for counties to be guided by a greater focus on being competitive by helping residents to be more entrepreneurial, and for investments from other parts of the country and abroad to flow into the county.

At the core of this is that County Government’s regulation and revenue collection should not crush the incentives for investment and innovation. Every county should establish and publicise an Entrepreneurship and Investment Code that it would implement in a predictable and effective manner.

There is a nationwide lament that corruption has permeated both the Executive and the Legislative arms of County Governments. This impedes service delivery and development and may generate disaffection with the system of devolved government. County governments were blamed for excesses, corruption, and failure to improve service delivery. It was also noted that political interests tend to override public service delivery. There was a strong perception that procurement of goods and services was undertaken in disregard of procurement laws and best practices, and that the process was characterised by patronage and nepotism, misallocation of funds, and other governance ills.

If corruption in counties is not brought to heel, it could lead to failure of devolution, as citizens seek alternative governance and management models.

 

References

1. Constitution of Kenya 2010.

2. Report on the Proceedings of the Council of Governors Summit 2019.

3. Building Bridges to a United Kenya: From a nation of blood ties to a nation of ideals.

Parliamentary Service Commission Strategic Plan 2019-2030iveness of Members of Parliament in their constitutional mandate pursuant to Articles 94 and 95 of the Constitution. In the spirit of subsidiarity, the strategic objectives seek to strengthen Devolution, devolved units and constituency offices. Further, the objectives will focus on mainstreaming of monitoring and evaluation, strengthen knowledge and entrench evidence informed decision making in Parliament.