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A complaint under Article 168 of the Constitution for removal of a judge cannot be withdrawn once a tribunal has been appointed by the President and is seized of the matter.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