Bench Bulletin Issue 32
Bench Bulletin Issue 32
Bench Bulletin Issue 32
WITNESS PROTECTION
AGENCY
CONTENTS
BENCH BULLETIN
1. Editor/CEOs Note
2. CJs Message 2
4. Feature Case 9
5. Gazetted witness protection
rules to safeguard witness
testimony 11
6. InternationalJurisprudence
13
7. Beyond Zero Marathon 26
8. LEGISLATIVE
Synopsis
of
UPDATE:
Bills
and
Subsidiary Legislation 27
9. CaseBack 29
10. Cases 31
Editorial Team
Editor /CEO
| Longet Terer |
Deputy CEO(Ag)
| Monica Achode |
Contributors
| Monica Achode | Linda Awuor | Wambui Kamau |
| Janette Watila | Mutindi Musuva | Eric Odiwuor |
| Edna Kuria | Nelson Tunoi | Emma Kinya |
| Collins Kiplimo | Phoebe Ayaya | Andrew Halonyere |
| Martin Andago | Teddy Musiga | Victor Kipyegon |
| Beryl Ikamari | Dudley Ochiel | Lisper Njeru |
| Christian Ateka | Caroline Wairimu | Mary Waruguru |
| Ruth Ndiko | Naomi Mutunga | Julie Mbijiwe |
| Thomas Muchoki | Humphrey Khamala |
| Patricia Nasumba | Moses Wanjala | Winnie Mbori |
| Musa Okumu |
Proofreaders
| Phoebe Juma | Innocent Ngulu |
Law
The Reporting
Council
5i
Ms Christine Agimba
Deputy Solicitor General, State Law Office
Longet Terer
Editor/CEO
Mr Jeremiah M Nyegenye
Clerk of the Senate Represented by Mrs Consolata
Munga
Disclaimer:
While the National Council for Law Reporting has made every effort to ensure both the accuracy and comprehensiveness of the
information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any
liability for any loss or damage that may arise from an inaccuracy or the omission of any information.
ii
6
This Work by National Council for Law Reporting (Kenya Law) is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0).
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Editor/CEOs Note
s another year commences, we are grateful for your patronage of our services,
and most especially our online repository.
We have received valuable feedback from you and this has enabled us to
continuously improve our services. This is one of the reasons why we are currently
relooking at the functionality of the search page in our database and re-jigging it to
ensure that it is intuitive, predictive and above all more user friendly than it currently is.
We have two main sets of information, the case law database, which
contains judicial decisions from the superior courts of records dating
back to the 1980s, and the Laws of Kenya database, which contains
the full text of all of the statutes of Kenya. Both of these hold a large
volume of data that requires some discernment to decipher. We
therefore intend to make this process a bit easier by adopting an
advanced search technology known as solr.
This technology will enable anyone who visits our website to narrow
down the search criteria for our databases such that they will be
intuitively led to the answer so that it shall now be easier to see, for
example, to search for all the decisions relating to the Employment
and Labour Relations court, from a particular year and from a
particular judicial officer. This search technology will filter data in
such a way that only the relevant information is presented.
This technology powers the search and navigation features of many
of the worlds largest Internet sites, including Google. We have no
doubt that this new search functionality will be user-friendly and
revolutionary for us and we look forward to your feedback on the
same.
a successful 2016!
As the New Year commences we at Kenya Law would like to wish you
CEO/Editor
CJs Message
Hon. Chief Justices remarks during the official
launch of the Employment and Labour Relations
Court Service Charter at Milimani Law Courts on
March 03, 2016
Good Afternoon Ladies and Gentlemen, This is a very important day in the country and
for the Judiciary family.
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The Act has also eliminated lay members of the tribunal, and has set up the Court as a
Court indeed, overseen by a Judge. It has also placed greater trust and responsibility in
you as Judges who sit singly before the Court. This is in comparison to the members of
the former tribunals who could hide any deficiencies in the personality of the group.
It has also set the highest standards for qualification as a Judge of the Court, including
placing an emphasis on your knowledge of labour and industrial relations. These are
significant changes that we must duly recognise as the Court discharges its functions. It
is not a Court to be owned by any one sector or group, but one which must act impartially
and fairly in the adjudication of labour disputes.
The Judiciarys main focus now is on reform, and you will by now have seen the Judiciary
Transformation Framework that is our Bible or Koran. The Judiciary Transformation
places the public first and this Court must make itself people focussed. The Court should
seek to understand the litigants who come before it as men and women fighting for
their livelihoods, whether as lowly workers or as employers playing a key role in ending
unemployment and working towards the development of this nation. At all times, each
judge and staff member must bear in mind the principle objective of the Employment
and Labour Relations Court, which is, to facilitate the just, expeditious and proportionate
resolution of labour and industrial disputes. Here, the Act envisions a Court that seeks
the truth and justice, as guided and aided by the law, and not just dry application of the
law bereft of its socio-economic elements, and the power relations that underpin it.
You should therefore utilise the provisions of the Act and the Constitution that allow
the Court to act without undue regard to technicalities. It is the people-centric approach
to Judiciary transformation that makes the launch of the Service Charter today very
significant. These are peoples courts; they must serve them not lord over them.
In order to improve access to justice to the people, I have signed the proposal to gazette
more sub registries for this Court in Malindi, Eldoret, Meru, Bungoma, Garissa and
Machakos. This is also the spirit in Section 29 of the Employment and Labor Relations
Court Act which provides that:
The court shall ensure reasonable, equitable and progressive access to the Judicial
Services in all counties.
The Gazzetement of these sub-registries should appear in the Kenya Gazette Notice of
this Friday (tomorrow). I will also soon be gazetting a number of Magistrates who now
have jurisdiction over labour matters pursuant to the recent amendments to the law in
particular Section 29 (3) of the Employment and Labour Relations Act, 2014 and Section
9 (b) of the Magistrates Courts Act, 2015.
I gazetted the Courts Rules Committee in April 2014 to develop Rules for this Court.
The committee has continued to receive written proposals from various stakeholders
including COTU, FKE, AG, LSK on the areas of the Rules that would require amendment.
The said proposals are being taken through the process of public participation before
they are gazetted and rolled out.
I am happy to note that considerable progress has been made in this regard and I am
looking forward to gazetting these Rules shortly. In developing these Rules, I urge
you to adopt the most friendly procedures to litigants, even whilst maintaining the
highest international standards. The second pillar of our transformation project is in
leadership, organizational culture and professional and motivated staff. Individually
and collectively, you must seek to restore public confidence in this Court. You must earn
Issue 32, Jan - March 2016
the respect of legal practitioners through maintaining the highest standards of legal
reasoning in judgments and rulings. Each Judge must individually seek to lead from
the front.
You must also seek to unite the various and many-a-time divergent jurisprudences on
Labour Relations and Rights related to them from the former Industrial Court and the
High Court. However, I urge that you should not feel bound by either jurisprudence,
but should exercise a proper discrimination to set out the good principles from either
Court, while wisely or diplomatically discarding those principles that will inevitably
lead to injustice and an obfuscation of the truth, which is the primary quest in the
Court. You are also well aware of the dynamism of this area of law. You should also
seek to follow developments in labour and industrial relations law, both locally and
internationally, especially the discussions of the yearly ILO conferences and the reports
of the Committee of Experts on Kenyas progress in this area. The Constitution, 2010
gives you the freedom and framework to chart new progressive territory in labour law
and jurisprudence. We must not waste it and frustrate the objective of harmonious
business-labour relations in the country.
Our third pillar is to provide adequate financial resources and physical infrastructure.
Here, there are what many would call historical injustices against the Court. We will
therefore do all that is possible to address the previous deficiencies that have plagued
this Court. I am glad that Parliament is finally moving to establish the Judiciary Fund
through an Act of Parliament. There is urgency in passing and operationalizing this
legalisation and once done, the Employment and Labour Relations will get sufficient
resources to execute its mandate. I would however urge you, my brothers and sisters,
to focus on what you can do in the delivery of Justice with the little that you may
have, and not what you cannot do with the much that may be missing from the onset.
In this regard, I ask you to consider favourably the work of the Court that was your
predecessor, which for so long suffered under much more weightier deficiencies in
infrastructure and judicial support, but still managed to give leading jurisprudence in
some matters.
Lastly, we are becoming an e-Judiciary, harnessing technology as an enabler of Justice.
The Commercial Division of the High Court is already doing trial runs with audiovisual recording of proceedings, which we shall roll out in a few weeks time. As a new
Court, and a relatively smaller administrative unit, I urge you to mould this Court
as a model Court in this area. Given my history with labour rights issues, I stand as
one who is excited about this new Court, and hope that this Court will deliver on its
mission. It requires the support of every stakeholder and that includes respecting the
judges independence and the independence of the Court itself. Our judges and staff
must also serve the public with distinction and respect, and maintain highest standards
of integrity. The fight against corruption in the Judiciary will continue against the few
who have failed to get the message that Kenya and the Judiciary is changing, and that
the JSC is not shy to continuously raise the bar of accountability. After all, the country
does not expect us to look either way, in the name of false institutional stability and
calm, if and when allegations of corruption are made. They expect us to deal with
it and we are and require their support. But they also need to see the other good
things taking place in the Judiciary such as having this Court in operation, reducing
case backlog from over 1 million to less than 500,000 in four years, decentralisation
of court of appeal and reducing waiting time in that court from between 12 to 9 years
in 2011 to about 3 to 1 year today; increasing the number of High Courts from 17 to
34; significantly expanding court infrastructure where we have over 100 construction
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Thank you.
DR. WILLY MUTUNGA, D.Jur, SC, EGH, SEGH.
CHIEF JUSTICE/PRESIDENT, SUPREME COURT OF KENYA
The various statutes relating to land are not in all cases consistent among themselves;
and in some cases they have been framed with imprecision, and without a clear reflection
of the relevant principles of the Constitution. We recommend that the complete set of
land-related statutes, be placed before the Attorney-General, and before the Kenya
Law Reform Commission, for a detailed professional review, in the context of this
Advisory Opinion.
Good practices, in the cases of the United States Supreme Court, and the Constitutional
Court of South Africa, dictated sittings as full bench in virtually all cases and obviously,
such would be the position even where a party sought a departure from precedent already
laid down. The question whether it was a larger bench-size reconsidering an earlier
decision by a smaller bench-size, therefore, became largely academic; and no impropriety
was attributed to the prospect of a Bench reconsidering a precedent set by an earlier
bench of equal strength.The Supreme Court of Kenya has the limited size bench of seven
judges, which on occasions can not sit as such, but as a five-judge or six-judge bench
Definition of a child of tender years is an issue that required clarification because the courts
have made various conclusions. Section 2 of the Children Act defines a child of tender years
to mean a child under the age of 10 years. There is no other statutory definition of a child
of tender years other than the Children Act that is perhaps informed by the broad interests
of protecting children from criminal responsibility and not as a test of competency to give
evidence in criminal proceedings. Court decisions regarding the competency of evidence by
children of tender years have maintained a higher threshold of 14 years and not 10 years as
witnesses of tender years whose evidence must be subjected to voire dire examination
there is no specific provision in the Marriage Act 2014 to allow a petition for
dissolution of marriage to be presented before three years have passed, therefore, rule
2 (1) of the Matrimonial Causes Rules is inconsistent with the Marriage Act 2014
and can not therefore remain in force pending the promulgation of rules under the
Marriage Act 2014. And as such, it can not be relied upon.
In determining the existence or otherwise of bias, the test to be applied is that of a fair
minded and informed observer who would adopt a balanced approach and will neither be
complacent nor be unduly sensitive or suspicious in determining whether or not there is a
real possibility of bias.
The provisions of the fourth schedule to the Constitution of Kenya, 2010 provide
that the National Government, and therefore its agencies such as Kenya National
Highways Authority (KeNHA), Kenya Urban Roads Authority (KURA) and Kenya
Rural Roads Authority (KeRRA) have a mandate limited by the Constitution to road
traffic, construction and operation of national trunk roads, and the setting of standards
for the construction and maintenance of other roads by counties. This can well imply
that, upon the implementation of the Constitution and the transfer of functions to the
counties, there can be no role for some of those agencies to play, and they can ultimately
require winding up.
in
v
4
of
The purpose of section 31(2) of the Sixth Schedule is to transition into the new constitutional
order all public officers who are not serving on a fixed term, including judges. With respect
to the Petitioner, the import of section 31(2) is that article 167(1) of the Constitution has a
retrospective effect which bloated out all vestiges of tenure under the repealed Constitution.
After being vetted, the Petitioner was to serve on terms which include the provision that a
judge will retire from office upon attaining the age of 70 years, as provided for in article 167(1)
of the Constitution.
Issue 32,
Jan - they
MarchSaid
2016
What
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Article 164(3)(a) of the Constitution confers, simultaneously, jurisdiction and the right of
appeal to the Court of Appeal.
Both the jurisdiction and the right of appeal from the High Court to the Court of Appeal are founded, in the first
instance in the Constitution of Kenya, 2010. The jurisdiction invested on the Court of Appeal was not qualified by
words such as, where the appeal arises. It provides both the right of approach from the High Court and the power
to hear those who have so approached. The Constitutional right to appeal can only be denied, limited or restricted by
express statutory provision properly justified as required by the Constitution itself
Judicial Service Commission & another v Kalpana H Rawal
Civil Application No 308 of 2015
Court of Appeal of Kenya at Nairobi
G B M Kariuki, W Ouko, P Kiage, J Mohammed and O-Odek, JJ.A
January 29, 2016
Reported by Teddy Musiga
The Respondent (Lady Justice Kalpana Rawal) filed
an appeal in the Court of Appeal against the decision
of the High Court that held that the respondents
retirement age as a judge was 70 years. However, the
Applicants filed a notice of motion seeking to strike
out the appeal on the ground that the Respondent
had no right of appeal to the Court of Appeal from
the decision of the High Court. The Respondent also
filed an application seeking an injunction to stop the
Judiciary from retiring her pending the hearing of
the intended appeal, alternatively that the Court
issues conservatory orders prohibiting the Judiciary
from unconstitutionally retiring her pending
the hearing and determination of the intended
appeal and also that the Court issues a prohibitory
injunction on the Judiciary from advertising or
otherwise commencing the recruitment process for
the replacement of the Deputy Chief Justice pending
the hearing and determination of the appeal.
The main issues before the Court were thus, whether
an intending appellant had a right of appeal to the
Court of Appeal in matters involving fundamental
rights and freedoms in the absence of a statute
conferring that right and whether article 164(3)
of the Constitution of Kenya, 2010 confered both
the right to appeal to the Court of Appeal and the
jurisdiction of the Court of Appeal to hear appeals
10
was not subsumed in article 164(3) or that the article
merely gave the Court of Appeal jurisdiction to hear
appeals without more, was not in harmony with
the provisions of the Constitution and canons of
interpretation could not support it. A proposition
that one could be inferring the right of appeal by
an interpretation of the Constitution that posited
that the right of appeal to the Court of Appeal was
subsumed in article 164(3) could not hold good.
The Court contradistinguished the constitutional
provisions regarding appeals from the High Court
to the Court of Appeal on Appeal in matters
involving fundamental rights and freedoms and
stated that, Article 164(3) of the Constitution of
Kenya, 2010 empowered the Court of Appeal to hear
appeals from the High Court and any other court
or tribunal as prescribed by an Act of Parliament.
That was a departure from section 64(1) of the
former Constitution at least in regards to appeals
from the High Court, where the Courts jurisdiction
depended on conferment by an Act of Parliament.
Whereas section 64 of the former Constitution only
conferred jurisdiction to the Court in relation to
appeals from the High Court, as could be conferred
by law; article 164(3) (a) of the Constitution made no
such reference to any law because the Constitution
is the supreme law of the land
The Court added that, no provision of the
Constitution barred or limited appeals arising from
the decisions of the High Court determining the
question of violation of a right or a fundamental
freedom or any question respecting the
interpretation of the Constitution under article
165(3)(b) of the Constitution of Kenya, 2010. To
hold that there was no right of appeal because it was
not provided for expressly would have been against
article 259 of the Constitution which enjoined the
Court to interpret the principles that advanced
the rule of law, the human rights and fundamental
freedoms that permitted the development of the law
and contributed to good governance. It was highly
unlikely that having seen the substantial injustice
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11
Mr. Calvine Oredi, Principal Public Relations Officer, Witness Protection Agency (WPA)
Members of the public make inquiries at the Witness Protection Agency (WPA) Stand during the Nairobi International Trade Fare
12
and other proceedings and establishes a Witness
Protection Progamme to specifically protect the
safety and welfare of crucial witnesses and related
persons who are threatened, or at risk.
For instance Section 4 of the Witness Protection,
Rules 2015 empowers Courts to take appropriate
measures to protect the safety, physical and
psychological well-being of a witness. In doing
so, relevant issues such as age, gender, health and
nature of the crime are looked into. The Court
is now mandated to give protection orders by
taking into account all the circumstances of a case,
eligibility criteria and whether the protection order
in question is likely to inhibit the evidence being
effectively tested by any party to the proceedings or
contrary to the interest of justice.
Witnesses are considered to be vital pillars in any
successful criminal justice system. Any credible
investigation or prosecution is mainly dependent on
the quality of evidence adduced by witnesses to the
crime, or about the crime. Witnesses need to always
have unfailing trust in the criminal justice system, if
they are to volunteer in assisting law enforcement
agencies in the investigation, prosecution and,
ultimately, determination of cases. Witness
protection can ensure such trust by enhancing
access to justice by witnesses at risk without fear of
reprisals, thus promoting the rule of law.
Protection of witnesses therefore entails judicial
protection measures which regulate proceedings
where protected witnesses are concerned. Section
5 of the Witness Protection Rules, 2015 spells out
appropriate measures to facilitate the testimony
of a protected witness. For instance, Section 5 (a)
stipulates measures to prevent disclosure to the
public or media of the identity or whereabouts
of a witness. They include expunging identifying
information from the Courts public records,
redaction of statements, voice distortion, closed
sessions and use of pseudonyms by the witness.
A major improvement in the rules is allowing
evidence in the physical absence of witnesses
who are protected. The Courts will now have
jurisdiction to admit witness evidence using audiovisual technology such as video conferencing and
closed circuit television. This is in addition to
video recording evidence-in-chief and interviews
and using sound media or live link. Any measure
allowed by the Court for the protection of a witness
is expected not to prejudice the rights of an accused
person to fair trial.
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13
International Jurisprudence
Parties before the EACJ must comply with its Procedural Rules on filing pleadings which
state the nature of evidence in support of their Claim.
Union Trade Centre Limited (UTC) v The Attorney General of Rwanda
Appeal no. 1 of 2015
Emmanuel Ugirashebuja, P., Liboire Nkurunzinza,V.P.James Ogoola, Edward Rutakangwa and Aaron
Ringera, JJ.A
November, 2015
Reported By Linda Awuor & Faith Wanjiku
Brief Facts
The Appeal arose out of Reference No. 10 of 2013
lodged before the EACJ First Instance Division. On
20th May 1997, the Appellant was incorporated
as a company limited by shares under the Rwanda
Companies Act to run and manage the Union Trade
Centre (UTC) mall in Kigali, Rwanda.
On 1st August 2013, the Respondent ordered the
Appellant to avail it with specific information in
respect of the company (UTC), which the latter did
on 2nd August 2013. On 2nd October 2013, the
Respondent informed tenants in the UTC mall that;
effective 1st October 2013 they were required to
redirect their rental payments to the Respondents
Committee in charge of unclaimed property. The
Appellant thereupon filed this Reference contending
that the Respondents actions contravened the
provisions of the Treaty Establishing the East
African Community.
In the initial case, The Respondent contested
the Appellants allegation and asserted that the
acts complained of could not be attributed to a
partner State or an institution of the East African
Community (EAC) so as to bring them within the
Courts jurisdiction. In addition, the Respondent
contended that it was not liable for the acts of the
Kigali City Abandoned Property Management
Commission (the Commission) given that the latter
had its own legal personality. The Trial Court
ruled that the Appellant had not established a treaty
violation attributable to the Respondent and thus
dismissed the Reference.
Issues:
i.
ii.
iii.
iv.
v.
14
15
Application dismissed.
(a). The Reference subject matter of the Appeal was
remitted back to the Trial Court for hearing de novo after
the parties had been afforded an opportunity for due
presentation of such relevant evidence as they would have
in support of their respective cases, in accordance with
such Directions as the Court would give.
(b). Each party was to bear its own costs.
Members of EALA while instituting proceedings before the EACJ are at liberty to adduce
evidence on the Assemblys proceedings in Court without the leave of the Assembly.
Rt. Hon. Margaret Zziwa v The Secretary General, East African Community
Ref No. 17 0f 2014
Monica K. Mugenyi, PJ; Isaac Lenaola, DPJ; Faustin Ntezelyayo J; Fakihi A. Jundu, J & Audace Ngiye J.
November 6, 2015
Reported By Linda Awuor & Faith Wanjiku
Brief Facts
The Preliminary reference arose out of a preliminary
objection on a point of law raised by the respondent
premised on Section 20 of the East Africa Legislative
Assembly (Powers and Privileges) Act, 2003. The
respondent was alleging that the Applicant, Hon
Zziwa and her witnesses were members and/ or
officers of the East Africa Legislative Assembly
(EALA) but had not secured leave from the Assembly
to adduce evidence before the Court as provided by
the law.
In the initial case, the Applicant (Hon. Zziwa) had
alleged that on 26th November, in contravention of
Articles 53 and 56 of the Treaty, Rule 9 and Annex
3 of the Rules of Procedure of EALA and Rule of
law, 2014 some members of EALA convened in
the Assembly chambers, summoned the Clerk of
the Assembly to preside over the Assembly and reinstated a motion of her removal as the Speaker.
They then referred the motion to the Committee on
Legal, Rules and Privileges for investigations, and
suspended her from exercising the functions of the
ii.
iii.
iv.
16
adducing evidence in Court per se was a
denial of access to justice and information,
and therefore a violation of the fundamental
rule of natural justice.
v.
vi.
vii.
governance
including
adherence
to
17
Held:
1. The EALA (Powers and Privileges) Act
was legally enacted under Article 61
of the Treaty and was, therefore, valid
and applicable law within the Courts
territorial jurisdiction. Section 20(1)
thus prohibited the tendering elsewhere
of evidence pertaining to the contents
of minutes, evidence, documentation,
proceedings or examination laid before
or arising in the Assembly or a Committee
thereof without the special leave of the
Assembly in writing. The said prohibition
related to the following categories of
people members and officers of the
Assembly, as well as persons employed to
take minutes or record evidence before
the Assembly or a Committee thereof.
2. Section 20(1) applied to evidence that was
sought to be given anywhere else other
than before the Assembly or a Committee
thereof. The question would be the
nature of the evidence that fell within the
ambit of the prohibition in section 20(1),
and whether or not the Court could at
that stage of the proceedings reasonably
deduce the Applicants evidence to fall
within the said category of evidence.
Stated differently, what was in issue
before the Court then was the extent
to which section 20(1) applied to the
circumstances of the case.
3. The argument that requiring a person to
seek leave of the Speaker of the Assembly
prior to adducing evidence in Court per
se was a denial of access to justice and
information, and therefore a violation of
the fundamental rule of natural justice
was untenable. For as long as the EALA
(Powers and Privileges) Act remained
on the Communitys statute books, it
must be complied with by all persons
within the Communitys territorial
jurisdiction, leaders and governed alike.
Any member of the Assembly would be
just as bound by the provisions thereof as
the Communitys leaders or citizens.
4. The Court did not understand how
compliance with valid laws of the
Community translated into a violation of
the principle of natural justice that formed
Issue 32, Jan - March 2016
18
19
20
to the house. The footpath was on a slope, and was
covered with fresh snow overlying ice. It had not
been gritted or salted. The Appellant was wearing
flat boots with ridged soles. After taking a few steps,
she slipped and fell, injuring her wrist.
The Outer House, relying on expert evidence, found
the Respondents liable for the Appellants injury
on the basis that they did not provide her with
protective footwear. The Outer Houses decision
was reversed by an Extra Division of the Inner
House. The Appellants appeal to the Supreme Court
concerned the admissibility of evidence given by the
Expert Witness, and whether the Respondents had
been in breach of their statutory duties or negligent.
Issues:
i. Whether evidence on personal protective
equipment given by the Expert Witness was
admissible.
ii.
iii.
governed
expert
21
22
23
11. In relation to a sufficient evaluation of the
risk and the necessary measures, the Outer
Houses conclusion was based on findings
which he was entitled to make on the
evidence, and on a proper understanding
of the law. As he noted, the risk of a home
carer slipping on snow or ice while at work,
on the way to a clients home, was accepted
to be likely a dead cert, as the Respondents
health and safety manager put it. It was also
accepted that the injuries which might have
been sustained included fractures and head
injuries, and were therefore potentially
serious. No consideration, however, was
given to the possibility of individual
protective measures, before relying on
the measure of last resort, namely giving
appropriate instructions to employees. Even
then, the instructions given, in the form
of advice to wear appropriate footwear,
provided no specification of what might have
been appropriate. In these circumstances, the
Outer House was entitled to conclude that
there had been a breach of regulation 3(1) of
the Management Regulations.
12. The Court did not find those arguments
persuasive. An employee was at work, for
the purposes of both the Management
Regulations and the PPE Regulations,
throughout the time when she was in the
course of her employment. The Appellant
in particular, as a home carer, was at work
when she was travelling between the home
of one client and that of another in order to
provide them with care. Indeed, travelling
from one clients home to anothers was an
integral part of her work. The meaning of
the words while at work in regulation 4(1) of
the PPE Regulations (and of the equivalent
words, whilst they are at work, in regulation
3(1) of the Management Regulations) was
plain. They meant that the employee had to
be exposed to the risk during the time when
she was at work, that was to say, during
the time when she was in the course of her
employment. They referred to the time
when she was exposed to the risk, not to the
cause of the risk. The obligation imposed by
article 6(3) (a) of the Framework Directive
applied to all risks to the safety and health
of workers. As the Court explained, annex
II to the PPE Directive included removable
spikes for ice, snow in its non-exhaustive
24
guide list of items of PPE, while Annex III
included work in the open air in rain and
cold weather in its non-exhaustive guide list
of activities. In relation to the exception to
regulation 4(1), the Outer House noted that
the onus was on the employer to establish
that the exception was made out. He accepted
the Expert Witnesss evidence about the
availability of PPE which would reduce the
risk. His reasoning reflected the evidence
and a proper understanding of the law.
13. The evidence established that anti-slipping
attachment was available at a modest cost;
that it was used by other employers to
address the risk of their employees slipping
and falling on footpaths covered in snow
and ice; that there was a body of research
demonstrating that their use reduced the
risk of slipping in wintry conditions; and
that the Expert Witnesss own experience
was that the attachments which he had used
had made a difference. His evidence, which
the Outer House accepted, was that, had the
Appellant worn such devices, on a balance
of probabilities the risk of her falling on
ice and snow would have been reduced and
might have been eliminated. As against that,
the Respondent had given no consideration
to the matter. In those circumstances, the
Court could see no basis in the Outer Houses
findings, or in the evidence, for finding that
the exception in regulation 4(1) had been
made out.
14. The Court understood the Extra Divisions
concern that the law should not have been
excessively paternalistic. The Appellant was
not, however, in the same position as an
ordinary member of the public going about
her own affairs. It was her duty, as someone
employed by the Respondent as a home carer,
to visit clients in their homes in different
parts of the city on a freezing winters evening
despite the hazardous conditions underfoot.
Unlike an ordinary member of the public, she
could not have chosen to stay indoors and
avoid the risk of slipping and falling on the
snow and ice. Unlike an ordinary member of
the public, she could not have chosen where
or when she went. She could not keep to
roads and pavements which had been cleared
or treated. She could not decide to avoid the
untreated footpath leading to the Clients
25
26
Beyond Zero Marathon
By Erick Obiero Odiwor, Hr and Adm Department
O
March 6, 2016.
ver
40
members
of Kenya Law staff
participated in the 3rd
Edition of the First Ladys Half
Marathon which was held on
27
1.
OBJECTIVE/PURPOSE The principal object of this Bill is to give effect to the World Antidoping Code and the United Nations Educational Scientific and Cultural Organization Convention against Anti-doping in order
to protect the fundamental right of athletes to participate in sport free of prohibited substances
and methods.
The Bill also seeks to protect the health of athletes and to put in place coordinated and effective
mechanisms to detect, deter and prevent the use of prohibited substances or prohibited material
in competitive or recreational sport.
SPONSOR
BILL
DATED
OBJECTIVE/PURPOSE The principal object of this Bill is to give effect to Article 2 (5) of the Constitution of Kenya which
entrenches the general rules of international law as being part of the law of Kenya. It asserts the
immunities recognized under customary law for the President and Deputy President. The Bill
seeks to amend Article 143 of the Constitution in order to extend the immunities of the President
to the Deputy President.
Further, the Bill seeks to amend Article 245 of the Constitution in order to ensure Constitutional
uniformity and harmony by providing that the approval of the appointment of the Inspector General of the National Police Service shall be undertaken by the National Assembly.
SPONSOR
BILL
DATED
Value Added Tax (Amendment) Bill, 2016 (National Assembly Bills No. 7)
OBJECTIVE/PURPOSE The principal object of this Bill is to amend the Value Added Tax Act, (No. 35 of 2013) to exempt
sugarcane farmers from paying Value Added Tax (VAT) on transportation of sugarcane from the
farms to the milling factories and thereby reducing the cost of production of sugar.
SPONSOR
PREFACE
The Cabinet Secretary for the National Treasury appointed the 19th
January, 2016, as the date the Act shall come into operation.
28
7
25
26
Requirements for certification of Radiocommunication Personnel and Radio Operators; among others
Merchant Shipping (Seafarer These Regulations shall apply to seafarers serving on board seagoing
Medical Examination and
Kenyan ships wherever they may be or on foreign ships when
Certification) Regulations,
they are in a Kenyan port or in Kenyan waters. They provide for:
a. Evidence of Medical Fitness;
2016
L.N. 42/2016.
30
These regulations apply to seafarers serving on board Kenyan seagoing ships or on foreign ships in Kenyan ports and relate to:
a. Requirements for certification of Master and Deck Department Personnel;
L.N. 55/2016.
29
Dolphina Alego.
PM - Eldoret
Thank you for the case law service which I find to be very useful
feedback forum.
Thanks
Regards
Charles Ondieki
RM - Kibera
Justice Boaz N
Olao
High Court
Kerugoya
Justice Rika J
Industrial
CourtMombasa
30
Law Reporting
Law Reporting
31
ii.
iii.
32
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33
the
National
Land
by law; and
h) to monitor and have oversight responsibilities
over land use planning throughout the
country.
(3) The National Land Commission may perform
any other functions prescribed by national
legislation.
National Land Commission Act No. 5 of 2012
Section 18- County Land Management Boards
(1) The Commission shall, in consultation and
cooperation with the National and County
Governments, establish County land management
boards for purposes of managing public land.
(2) A County land management board shall comprise
of:
a) not less than three and not more than seven
members appointed by the Commission; and
b) a physical planner or a surveyor who shall be
nominated by the County Executive member
and appointed by the governor.
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35
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36
37
mandated to set for the commission
the budget considered adequate for its
functions.
iv. Perception of independence:
That
means the commissions have to be
seen to be carrying out their functions
free from external interferences. The
perception of independence is crucial
in showing proof of independence.
6. The independence of commissions and
independent offices did not, perforce,
entail a splendid isolation from other State
organs. Article 249(1) expressly entrusted
the National Land Commission with the
duty to protect the sovereignty of the people,
secure the observance by all State organs
of democratic values and principles, and
promote constitutionalism.
7. Commissions acting in isolation have no
capacity to discharge their mandate. They
have to consult with other State organs,
and work with such State organs in cooperation and harmony. Commissions are
required to promote the national values and
principles entrenched in article 10 of the
Constitution which are: patriotism; national
unity; sharing and devolution of power; the
rule of law; democracy and participation
of the people; human dignity; equity; social
justice; inclusiveness; equality; human rights;
non-discrimination and protection of the
marginalised; good governance; integrity;
transparency and accountability; and
sustainable development. The mandate borne
by the Commissions, namely, democracy
and participation of the people, formed an
overlapping continuum with operational
logistics devolving to all public agencies.
The system of checks and balances served
the cause of accountability, and it was a twoway motion between different State organs,
and among bodies, which exercised public
power. The commissions and independent
offices restrained the arms of Government
and other State organs, and vice versa. The
spirit and vision behind separation of powers
is that there be checks and balances, and that
no single person or institution should have
a monopoly of all powers. If the NLC was
created as a watchdog and an oversight body,
it could not carry out the direct functions
of the Ministry, even as it performed its
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38
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oversight role.
8. The doctrine of separation of powers require
that organs of Government should carry
out their functions without encroaching on
each other. It is thus recognised that there
is scope for a Government organ to act in
excess of its proper mandate, or to abuse its
powers. The system of checks and balances
were put in place to empower other organs
of Government to apply their countervailing
powers, to prevent, or limit the excessive use
of powers.
9. While the doctrine of separation of powers,
and the principle of checks and balances,
had conventionally been associated with the
Executive, the Legislature and the Judiciary,
it was entirely proper to associate them with
any State organ that exercised public power
and thus ought to be checked and balanced,
to avoid abuse of power. The effect was that,
the independence of commissions did not
exempt them from being overseen, and held
accountable in their operations.
10. Article 249(1) of the Constitution signaled
the checks that the commissions had on
other arms of Government. Article 254
indicated the checks which the Executive and
the Legislature had upon the Commissions
which took the form of accountability and
transparency mechanisms. Article 254(1)
required commissions to file annual reports
to the President and to Parliament; article
254(2) provided that the President and the
National Assembly may require a commission
to submit a report on a particular issue.
11. There was also a kind of vertical
accountability, which the commission held
towards the people in general. Article 254(3)
required every commission or independent
office to publish and publicise it reports. That
was a check-and-balance mechanism, as well
as an exercise of inclusivity, accountability,
transparency, good governance and integrity
as recognized under the national values
and principles of governance (article 10(2)
of the Constitution). It was also a mode of
promoting constitutionalism, as required by
article 249(1).
12. The NLC was also subject to financial
checks, by a counterpart independent office,
the Auditor-General under article 229(4) (d),
39
was essential, with attendant cautions in its
management. It was hence necessary for
Parliament to make amendments to section
5(2) (e) of the NLC Act, to bring it into line
with the constitutional provisions.
20. Section 18 of the NLC Act provided for the
establishment and functions of County Land
Management Boards, the functions assigned
to the Board, with regard to the processing of
land allocation; change and extension of user;
conducting subdivision of land; and renewal
of leases gave indications as to the essence
of the phrase, administering and managing
public land. The functions undertaken by
the Board were ordinarily, the preparatory
steps towards acquisition of ownership to
land, which culminated in registration and
issuance of title by the National Government.
It could thus be inferred, that the purpose
of the Board was to effect the devolution of
land-administration to the counties.
21. The Land Act, 2012 enjoined the NLC and
the Cabinet Secretary responsible for land, to
undertake certain functions, for the effective
management of land. Sections 6 and 8 of the
Act prescribed the functions of the Cabinet
Secretary and the Commission, as regards
the management and administration of land.
Those provisions gave an impression as to
the roles of the Ministry, in section 6, and
the NLC, in section 8, in the management of
land. Sections 6 and 8 of the Land Act, 2012
indicated that neither the Ministry nor the
NLC was in a position to perform its tasks
in isolation. The Ministry was required
to develop and facilitate land policies on
the basis of advice and recommendations
from the NLC; while the land database to
be prepared and kept by the NLC had to
be geo-referenced and authenticated by the
statutory body in charge of survey, which
was the Land Surveyors Board, established
under the Survey Act. The officers serving
on that Board were appointed by the Public
Service Commission, and, by section 6(e) of
the Act, were to be regulated by the Cabinet
Secretary, as an aspect of quality control.
That was a typical instance in which it fell to
the Executive to exercise check-and-balance
upon a different State organ.
22. The responsibility of the NLC to issue
licences, leases and grants in respect of public
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40
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land, was subject to the conditions set out in
law. Section 28 of the Land Act provided
for the collection of rent charged on the use
of land, and required the NLC to account
for the payments received under any lease
or licence, to the respective Governments.
Those provisions were a clear indication of
the constitutional design of decentralising
the powers of public governance, within a
context of checks-and-balances.
41
Consequently, the meaning of the two terms
could only be inferred from the context
within which they had been used. The
application of the term management and
administration, in all the three statutes (Land
Act, Land Registration Act, and the NLC
Act) was consistent with the functions of
the Commission as expressly donated by the
Constitution. It was clear that the function of
registration of title was not with reference
specifically to public land. Registration
was conceived to entail all categories of
land; fragmenting title issuancesuch a
crucial indication of the fundamental right
of propertycould not possibly have been in
contemplation during the legislative process.
For such would not only negate constitutional
principle, but would probably breed such
anarchy and abuse, as would certainly harm
the public interest. Land title, the symbol
of a vital asset, required the effectual and
conclusive mechanisms of the States most
central agency. A proper interpretation of
the provisions of the Constitution and the
statute law, in that context, should be aimed
at achieving coherence, clarity, and certainty.
32. The relationship intended between the
NLC on the one hand, and the National and
County Government on the other, did not
lend itself to the agency template; rather,
it was a straightforward constitutional
relationship, in the public-law mode. Besides,
the NLC was an independent commission in
the terms of article 248(1) (b), as read with
article 249(2) of the Constitution, and with
the provisions of the relevant statutes. The
NLC was not subject to direction or control
by any person or authority; and it could not,
thus, be considered an agent of the National
or County Government, in the legal sense.
33. The NLCs mandate, which was required to
function in a collaborative and consultative
constitutional and legal setting, belonged
squarely to the mechanism of checks-andbalances, rather than that of an isolated
fourth arm of government, entrusted with
tasks unrelated to those falling under the
dockets of other State organs. Indeed, the
neat paradigm of a fourth arm of government
appeared not to be in the contemplation
of the Constitution of Kenya, 2010 which
specified [article 1(3)] that the peoples
sovereign power devolved to just three vital
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42
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State organs: the Executive; the Legislature;
and the Judiciary and independent tribunals.
34. The Constitutions mandate fell to the three
State organs, in an operational context
of check-and-balances: and the various
Commissions acted as oversight and
watchdog mechanisms. Hence, each of the
functions of the NLC and the Ministry stood
to be checked by the one or the other, in order
to avoid abuse of power in matters relating
to land. The unchanging theme throughout
the Constitution was that the relationship
between the two bodies was inter-dependent,
and based upon co-operation; it was not
an agency relationship. As the Ministry
conducted its functions, the NLC acted as
a watchdog, to ensure compliance with the
Constitution, and with legislation. Likewise,
the NLC as an oversight body, maintained
its functional, financial and operational
independence, while still being overseen and
checked by the public, by other independent
offices, and by the three arms of government.
35. The conditioning medium within which the
functions had to be conducted, was constituted
by the national values and principles outlined
in article 10 of the Constitution: in particular,
the rule of law; participation of the people;
equity; inclusiveness; human rights; nondiscrimination; good governance; integrity;
transparency and accountability. It was to
be noted that, the very essence of checksand-balances touched on the principles
of public participation, inclusiveness,
integrity, accountability and transparency;
and the performance of the constitutional
and statutory functions was to be in line
with values of integrity, transparency, good
governance and accountability. In view of
the troubled history of land in Kenya, the
NLC and the Ministry had to involve the
public when carrying out their functions. It
was only through public participation that it
was possible to realize the principles of land
policy, as set out in article 60(1).
36. The delineation of the respective functions
of the NLC and of the Ministry of Land
was already answered with sufficient
clarity: the allocation of discrete functions
to the one or the other was not possible, or
indeed necessary. The vital subject of landasset governance ran in functional chains,
43
State, envisioned by the Constitution, so that
the citizens have a major voice and impact
on the equitable distribution of political
power and resources. With devolution being
implemented under the Constitution, the
participation of the people in governance
would make the State, its organs and
institutions accountable, thus making the
country more progressive and stable. The
role of the Courts, whose judicial authority
is derived from the people of Kenya, is
the indestructible fidelity to the value
and principle of public participation. The
realization of the pillars of good governance
would become weak and subject to the
manipulation by the forces of status quo if
the participation of the people is excluded.
44. The robust recognition of the prominence of
the participation of the people in the making
of the Constitution was reinforced in article
1, which declared the sovereignty of the
people. That direct exercise of sovereign
power by the people was crucial in the
administration and management of land in
Kenya. Land is a fundamental resource for
the material and cultural livelihoods of the
people. The State, for example, through civic
education, could ensure that participation of
the people takes place on matters concerning
land.
That is because, ultimately, any
decisions made concerning land would
affect them and, although the National Land
Commission (NLC) or the Ministry of Lands
could make information on land available,
the public ought to be educated on how
to access the information and participate
in consultation processes on land matters
affecting them. Public participation could
also take an indirect form, where the national
and county Legislatures were mandated to
enact legislation on land laws. That those
Legislatures were to involve the people they
were elected to represent, in law-making
processes, was a matter of accountability,
and of enrichment of the voices of the people.
45. Public participation is a community based
process, where people organise themselves
and their goals at the grassroots level and
work together through governmental and
non-governmental community organisations
to influence decision making processes in
policy, legislation, service delivery, oversight
and development matters. It is a two way
Cases
44
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interactive process where the duty bearer
communicates information in a transparent
and timely manner, engages the public in
decision making and is responsive and
accountable to their needs. The definition
could be applied to the management and
administration of land in Kenya. In order
to achieve efficient land administration
and management, the national and county
governments; the arms of government; and
the commissions and independent offices,
must conduct meaningful consultation,
communication, and engagement with the
people.
46. The NLC, as well as the national and
county governments, were required to
promote public participation, as they
conduct their functions. Article 254 of the
Constitution required the NLC to promote
the participation of the people, as it conducts
its mandate. By that article, the NLC was
held accountable to the people, and upheld
the participation of the people in two ways.
Firstly, the people indirectly participate
in holding the NLC accountable, through
their democratically elected officials (the
President and Members of Parliament). The
NLC was required to submit annual reports
to the President and Parliament. Secondly,
the people had the opportunity to participate
directly, and to exercise their right of access
to information, as the NLC was required
to publish and publicize its reports. The
public was thus accorded an opportunity
to examine the reports, and to determine
whether the Commission was carrying out
its constitutional and legislative mandates,
or whether the NLC had made any decisions
affecting their land.
47. The principle of the participation of the
people did not stand in isolation; it was
to be realised in conjunction with other
constitutional rights, especially the right of
access to information (article 35); equality
(article 27); and the principle of democracy
(article 10(2)(a)). The right to equality related
to matters concerning land, where State
agencies were encouraged also to engage
with communities, pastoralists, peasants
and any other members of the public. Thus,
public bodies should engage with specific
stakeholders, while also considering the
views of other members of the public.
45
organ whom such recommendations, advice,
research, investigations, encouragement, and
assessment should be sent to, received by,
and in relation to which the proposals should
be implemented. There was therefore a clear
separation of roles between a body providing
oversight, and a body upon which the
oversight was to be conducted. That meant
a body with oversight function, and a body
that implemented the recommendations of
the former were different, and their roles did
not overlap.
54. There had been a misconception of roles,
which created a conflict between the
constitutional provisions relating to the
NLC, and statutory provisions that were to
be found in the provisions of the Land Act,
and similar legislation relating to Land. It
was incumbent upon the Legislature, and
the concerned commission and its agents, to
tread carefully to avoid the creation of such
conflicts. Article 67(g) of the Constitution
required the Commission to assess tax, and
not levy or collect the same. Article 200
of the Constitution, in the Public Finance
Chapter mandated the National Government
to impose inter alia income tax, value added
tax, excise tax. It further required parliament
to authorise the national government to
impose any other tax or duty. Sub-article
(3) mandated the county to impose property
rates. If the NLC could collect taxes, it could
only be in respect of public land, as private
and community land fell outside its mandate.
However, it was unlikely that different
systems of collection of revenue or tax for
different categories of land was envisaged
within the framework of the Constitution.
Complete set of land-related statutes to be placed before
the Honorable Attorney-General and before the Kenya
Law Reform Commission for a detailed professional
review in the context of the Advisory Opinion
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46
ii.
47
particularly the right to liberty. Just as the
standard of proof (beyond reasonable doubt)
in criminal proceedings was higher so should
the threshold for admission of interested
parties in criminal proceedings be higher
than it would be in civil matters where the
standard of proof was on the balance of
probability.
7. Article 22 of the Constitution allowed persons
to institute proceedings for enforcement of
fundamental rights and freedoms in order
to protect public interest. However, article
22 was not a basis for the admission of an
interested party to any existing proceedings,
where such a party had not shown a personal
stake or interest in the matter and only
sought to champion public interest. Article
22 was not a formula for the admission of
interested parties to any Court proceedings.
8. The Death Penalty Project was seeking to be
enjoined as amicus curiae in order to assist in
offering legal expertise. It was an institution
which dealt with criminal law, constitutional
law and international human rights law in
relation to the death penalty. It only sought
to restrict itself to issues raised in the Petition
and particularly, the mandatory nature of the
death sentence.
9. In its Application, the intended amicus curiae
showed neutrality and it was apparent that it
would restrict itself to the issues raised in the
Petition. They intended to handle those issues
without digressing into matters that were
not otherwise brought for determination by
the Court.
10. The Court had discretion to allow a party to
participate in proceedings as amicus curiae. In
Kenya an amicus curiae had to be neutral and
if such a party had an interest in the case, it
would be enjoined as an intervener.
11. Participation as amicus curiae was not a right,
it was a privilege. In some instances it would
be more appropriate for an applicant not to
participate in proceedings, especially where
such an Applicant would not be prejudiced by
a non-joinder, adds no value to proceedings
or increased the likelihood of diverting the
natural course of proceedings.
12. Where an amicus curiae was allowed to
participate in proceedings the Court had the
liberty to restrict the extent of participation.
Such restrictions would serve the need to
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48
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forestall the degeneration of an amicus curiae
into a partisan role.
13. The Supreme Court had stringent measures
with respect to admitting parties into
proceedings. The Court would admit
additional parties only if satisfied that their
participation would not prejudice an accused
person or prisoner, occasion unnecessary
delay, introduce issues that were foreign to
the proceedings or protract the issues for
determination.
14. Given the contribution that the intended
interested parties sought to make, the
judge Bench
ii. What were the consequences of a quorumdeficit in the Supreme Court in performing
its prescribed constitutional functions?
iii. What should be the legitimate, rational,
and valid bench-quorum, in a case which a
party was urging the Court to depart from
its previous decision arrived at by a bench
comprising of five judges?
iv. What were the emerging principles on the
question of quorum of the Supreme Court
bench, worthy of consideration from the
comparative jurisprudence of judicial
experiences?
Constitutional Law- Supreme Court -quorum of the
Supreme Court bench-valid Bench quorum in cases
requiring reconsiderations or departure of the Supreme
Courts own judicial decisions -bench quorum deficitswhat should be the legitimate, rational, and valid benchquorum, in a case which a party is urging the Court to
depart from its previous decision arrived at by a bench
comprising five judges - what are the consequences of
a quorum-deficit in the Supreme Court in performing
its prescribed constitutional functions?-Constitution of
Kenya, 2010, article 163(2); Supreme Court Act (cap 9A),
section 23(1)
Constitutional Law principles of law-comparative
jurisprudence of judicial experiences- what are the
emerging principles on the question of quorum of the
49
Supreme Court, in accordance with the
Constitution; and the recusal of a judge as
a matter of course, should not be a factor
standing in the way of that principle. Section
23(1) of the Supreme Court Act replicated the
Constitutional provision and stated that; for
the purposes of hearing and determination of
any proceedings, the Supreme Court should
comprise of five judges.
2. A quorum-deficit in the Supreme Court
rendered it impossible to perform its
prescribed constitutional functions. Such
a possibility would be contrary to public
policy and would be highly detrimental to
public interest, especially given the fact that
the novel democratic undertaking of the
Constitution of Kenya, 2010 was squarely
anchored firstly, on the Superior Courts,
and secondly, on the Supreme Court as the
ultimate devices of safeguard.
3. The total number of the Supreme Court
judges in Kenya at any given time under the
Constitution is seven. The minimum that
should sit and determine a matter is five. The
only allowance given by the Constitution, of
the Judges who can be away for whatever
reason, is two. If one of the remaining five is
required to disqualify him/herself, it can be
argued that out of necessity the Judge would
have to sit, to ensure that there would be
no failure of justice due to the Bench being
below the quorum set by the Constitution.
4. Where a question posed to the Supreme
Court was neither in the rules nor in the
guidelines, judges were required to revert to
the spirit of common law, which empowered
them to devise laws that were in consonance
with the letter and spirit of the Constitution.
The design of common law strategy was
one that observed past judicial trends, and
constructed upon any historical pillars
already erected by judges. The instant case
required comparative jurisprudence.
5. Good practices, in the cases of the United
States Supreme Court, and the Constitutional
Court of South Africa, dictated sittings as
full bench in virtually all cases and obviously,
such would be the position even where a
party sought a departure from precedent
already laid down. The question whether
it was a larger bench-size reconsidering an
earlier decision by a smaller bench-size,
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therefore, became largely academic; and no
impropriety was attributed to the prospect
of a Bench reconsidering a precedent set by
an earlier bench of equal strength.
6. It was in keeping with good order that a
larger bench-quorum was necessary for
the reconsideration of a precedent laid by a
more limited bench. Conventionally, it fell
unto the Chief Justice as director of judicial
functions, to constitute such suitable bench
for the reconsideration of a past judicial
decision.
7. It had not been possible in the different
jurisdictions to apply the same rules as
to Supreme the Court bench-size, for the
reconsideration of Courts past precedents.
Several factors of unquestionable merit had
accounted for such variations of judicial
practice, for instance:
a. the size of the Supreme Court
membership differed from one country
to another;
b. divergent statutory provisions regarding
particular sitting benches for instance
in the case of Canada, a judge of the
Supreme Court was disqualified from
hearing an appeal on a matter he or she
had entertained while serving in a lower
Court;
c. some of the Countries attached a special
rating to any particular appeal-subject
for the purpose of setting the size of the
proper appellate bench;
d. varying local factors of the greatest public
interest.
8. The Court should accommodate the
pragmatic
dimension,
and
should
incorporate in the guidelines certain specific
considerations for instance:
a. the notable, relevant aspects of the
Constitution of Kenya, 2010;
b. the relatively limited size of the Supreme
Court bench;
c. the fundamental lines of constitutional
interpretation already emerging from
the electoral and related jurisprudence in
particular, the factor of timeliness in the
resolution of electoral disputes;
d. The occasional interruptive situations
that had afflicted the due functioning of a
fledgling apex court.
9. The decision of the Supreme Court bench
51
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53
Scope of Liability of Partners in a law firm for acts done by one partner in the ordinary
cause of business of a law firm
Vijay Kumar Saidha v Tribhuvan Gordhan Barkrania & 2 others
Civil Appeal No 9 of 2007
Court of Appeal of Kenya at Nairobi
F Sichale, JOtieno-Odek and S ole Kantai, JJA
December 4, 2015
Reported by Teddy Musiga
Brief facts
The 1st Appellant instructed the Respondents
law firm to act for him and his wife in the sale
of a parcel of land. Instructions were accepted
and an agreement was drawn by the law firm
(Respondents). The transaction was completed and
purchase price paid to the firm. However, in the case
before the trial court (High Court), there was a clear
admission by the 1st Respondent that he had handled
the appellants transaction on his own without
informing the 2nd and 3rd Respondents at all. The
transaction was done in the personal account of the
1st Respondent. When the 1st Respondent presented
the cheque and deposited it into his personal
account, the proceeds thereof were appropriated by
that bank to offset a loan the 1st Respondent owed
to that bank. The trial court in a ruling delivered on
October 6, 2005 dismissed the suit against the 2nd
and 3rd Respondents. The trial court found that as a
fact, the 3rd Respondent had resigned from the firm
on August 1, 1998 and was not a partner at the time
of the transaction. It also found that the transaction
was not conducted in the ordinary cause of business
of the firm and that liability attached personally
against the 1st Respondent. The appellant appealed
against that ruling hence the instant appeal.
Issues:
i.
ii.
iii.
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54
Held:
55
Circumstance in which a Judge may recuse himself/ herself from a matter on the
allegation of bias
i.
ii.
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56
Article 164(3)(a) of the Constitution confers jurisdiction and the right of appeal to the
Court of Appeal simultaneously.
Judicial Service Commission & another v Kalpana H Rawal
Civil Application No 308 of 2015
Court of Appeal of Kenya at Nairobi
G B M Kariuki, W Ouko, P Kiage, J Mohammed and O-Odek, JJ.A
January 29, 2016
Reported by Teddy Musiga
Brief facts:
The Respondent (Lady Justice Kalpana Rawal) filed
an appeal in the Court of Appeal against the decision
of the High Court that held that the respondents
retirement age as a judge was 70 years. However,
the Applicants (Judicial Service Commission) filed
a notice of motion seeking to strike out the appeal
on the ground that the Respondent had no right
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injunction on the Judiciary from advertising or
otherwise commencing the recruitment process for
the replacement of the Deputy Chief Justice pending
the hearing and determination of the appeal.
Issues:
i.
ii.
iii.
iv.
v.
vi.
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in article 164(3) could not hold good.
13. Article 159(2) I of the Constitution of Kenya,
2010 provided that the Court had a duty to
ensure that the purpose and principles of
the Constitution were not undermined or
rendered meaningless and that the Court had
to help in the development and realization
of the purpose and principles of the
Constitution.Thus, the Court was expected
to determine appeals from decisions of the
High Court on interpretation and application
of the Constitution (article 163(4)(a)) and on
a question whether a right or fundamental
freedom on the Bill of Rights had been
violated, infringed or threatened (article
165(3) (b).
14. To postulate that an interpretation of the
Constitution that resulted in a conclusion
that a right of appeal was given or was
subsumed under article 164(3) was wrong
because it amounted to making an inference
in the face of plethora of authorities from
the Court of Appeal stating that there could
be no appeal unless the right of appeal had
been expressly donated by statute failed to
appreciate the wording and the framework
and effect of the Constitutional provisions
which showed that the Court was duty
bound, not only to promote and protect the
purpose and principles of the Constitution
as mandated by article 159(3) of the
Constitution but also that the Court was
under a constitutional duty to promote and
protect the Bill of Rights to ensure that the
appeals envisaged by the Constitution from
the High Court to the Court of Appeal and
from the Court of Appeal to the Supreme
Court became a reality.
15. Failure to construe the right of appeal
as subsumed in article 164(3) of the
Constitution would result in an absurdity
and would render the Bill of rights empty
promise. The people of Kenya could not give
themselves something that would amount to
nothingness. They gave themselves a right
of appeal from the High Court to the Court
of Appeal and from the Court of Appeal to
the Supreme Court on the Bill of Rights and
interpretation of the Constitution.
16. It could also be argued that discerning
the right of appeal as subsumed in article
164(3) amounted to turning the Court into
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article 163(b)(i) with appellate jurisdiction to
hear and determine appeals from the Court
of Appeal.
30. The Constitution itself envisioned that an
appeal from the Court of Appeal would come
through to, the Supreme Court challenging
the formers determination of a question
of interpretation and application of the
Constitution, that question in turn having
come from a similar determination by the
High Court. Because of the importance of
the interpretation and application of the
Constitution and issues of human rights and
freedoms, that second appeal from the Court
of Appeal to the Supreme Court was of right.
31. No provision of the Constitution barred or
limited appeals arising from the decisions of
the High Court determining the question of
violation of a right or a fundamental freedom
or any question respecting the interpretation
of the Constitution under article 165(3)(b)
of the Constitution of Kenya, 2010. To hold
that there was no right of appeal because it
was not provided for expressly would have
been against article 259 of the Constitution
which enjoined the Court to interpret the
principles that advanced the rule of law, the
human rights and fundamental freedoms
that permitted the development of the law
and contributed to good governance. It
was highly unlikely that having seen the
substantial injustice occasioned by section
84 of the former Constitution and having
brought a solution by amending it to provide
for a right of appeal as of right, that it was
the intention of the framers to take the right
of appeal away by the Constitution of Kenya,
2010 which was considered to be the most
progressive and transformative in the region.
32. The absence of an explicit provision
conferring in the Court of Appeal jurisdiction
to hear appeals from the High Court on
the Bill of Rights or on the interpretation
of the Constitution was not an accidental
omission. It was not an omission at all. The
Constitution having expressly vested in the
Court under article 164 the general appellate
jurisdiction to hear appeals from the High
Court and having explained how appeals
relating to the interpretation and application
of the Constitution were to be appealed from
the Court of Appeal to the Supreme Court
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Unless expressly provided for in the 2010
Constitution, access to superior courts in
Kenya is linear, vertical and hierarchical;
there is no side stepping, overlapping and
by-passing or a circumvention approach of
access to any of the superior courts. Access to
justice had to follow the vertical hierarchical
structure of the judicial system which was
an obligatory and peremptory procedure in
litigation.
62. Accepting the applicants submission that
a judgment of the High Court was final on
matters relating to the Bill of Rights would
have been tantamount to judicial limitation
and or amendment to article 163(4)(a) of
the Constitution which conferred appellate
jurisdiction, as of right to the Supreme
Court in interpretation and application of the
Constitution. All constitutional articles were
justiciable and amenable to interpretation by
the Court of Appeal and the Supreme Court
for a specific determination whether an
article(s) had been correctly interpreted and
applied by the High Court in accordance with
the Constitution. There was no any express
constitutional provision excluding some
constitutional articles from justiciability and
interpretation before the Court of Appeal
and the Supreme Court.
63. Rule 32 of the Mutunga Rules envisaged
a right of appeal on matters relating to the
protection and enforcement of rights and
fundamental freedoms. That rule did not
state that leave to appeal was required. All
rules in the Mutunga Rules took effect on
the same day and there was no provision
in the Rules suspending the application
and implementation of Rule 32 allegedly
until such time as a right of appeal could be
conferred.
64. To interpret articles 165(3) (b) and 164(3)
of the Constitution in order to strip the
Court of Appeal the right to hear appeals
and determine if the High Court correctly
interpreted and applied any article in the
Bill of Rights could not be to promote and
fulfill the rights and fundamental freedoms
as required by article 21 of the Constitution.
It would have meant that the Court of Appeal
had no role to play in protecting the rights
and fundamental freedoms of Kenyans.
The rights and fundamental freedoms of an
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anchored in the Constitution. The review
provisions and the right to appeal in section
9(5) of the Fair Administrative Action Act
had its underpinning in article 47(3)(a) of
the Constitution that inter alia provided that
Parliament could enact legislation to provide
for administrative action by a court.
78. There was an express provision in section 9(5)
of the Fair Administrative Action Act which
had a constitutional underpinning in article
47(3)(a) of the Constitution that conferred
a right of appeal to the Court of Appeal on
matters relating to the enforcement of the Bill
of Rights. Section 9(5) conferred the right of
appeal to the Court of Appeal from decisions
of the High Court sitting as a judicial review
court procedurally empowered vide section
9 of the Act and conferred original Bill of
Rights enforcement jurisdiction pursuant
to articles 22(3); 23(1) and 165(3)(b) of the
Constitution.
79. With appellate jurisdiction of the Court of
Appeal expressly conferred vide section
9(5) of the Fair Administrative Action Act,
there was internal coherence, certainty and
predictability in the decisionsmade by the
Court of Appeal in post 2010Constitution
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Brief facts:
The Embu County Assembly passed a motion
on January 29, 2014 for the removal of the Embu
County Governor from office. The Governors
impeachment was based on allegations of gross
violations of the Constitution and abuse of office.
The allegations arose from a procurement process,
for the supply of maize and for a facelift at Embu
County Stadium, in which dissatisfaction had been
expressed.
The motion was then presented to the Speaker of the
Senate and the Senate deliberated on it. The Senate
voted unanimously for the removal of the Governor
and a Gazette Notice No. 1052 of February 17,
2014, reflecting the Senates resolution, was
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communication
technology
based
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platforms;
(b)town hall meetings;
(c)budget preparation and validation fora;
(d)notice boards: announcing jobs, appointments,
procurement, awards and other important announcements
of public interest;
(e)development project sites;
(f)avenues for the participation of peoples representatives
including but not limited to members of the National
Assembly and Senate;
(g) establishment of citizen fora at county and decentralized
units.
Held:
1. The principle of stare decisis was a common
law principle recognized in article 163(7)
of the Constitution. Under the principle,
prior decisions of the Court provided a rule
or authority for determining similar cases
or similar questions of law. The principle
served the need for stability, predictability,
consistency, reliability, integrity, coherence
and flexibility in Court decisions.
2. Ordinarily, a Court would be bound to
follow the decision of a Court which was
hierarchically superior. It would also not
depart from its own prior decisions unless
the decision was made per incuriam or there
were other compelling reasons to depart
from the precedent.
3. The decision in Nyeri Civil Appeal No.
21 of 2014 provided an exposition on the
application of article 181 of the Constitution
and section 33 of the County Governments
Act to the removal of a County Governor.
The removal of a Governor from office was
within the mandate of the County Assembly
and the Senate. The Courts role was to
confirm that the impeachment process
complied with the Constitution and statute.
4. The High Court failed to discharge its
mandate which required it to go beyond
review and to determine whether the charges
made against the Governor met the threshold
set in article 181 of the Constitution. The
High Court stated that it was unable to assess
questions concerning the allegations and
their nexus to the Governor as evidence on
those questions was not tendered.
5. The Appellant was charged with gross
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Brief facts:
The matter revolved around the transfer of the roads
functions from the national government to the
county governments. At the core of the petition was
the question of the devolution of the roads functions,
and the constitutional provisions with regard to the
management and control of the various roads in
the country. In addition to that, was the question of
control of the resources related to the management
of roads, particularly with respect to the control of
outdoor advertising.
Issues:
i.
ii.
iii.
iv.
v.
section 23 and 24
Devolution Law transfer of functions to counties
process of transfer of functions to counties parties
involved in the transfer of functions whether the
National Assembly and the Attorney General have a
role to play in the transfer of functions Constitution
of Kenya 2010 article 186, 189; Transition to Devolved
Government Act, section 23 and 24
Held:
1. The transition from a centralised to a
devolved system of government had to
involve consultation between the national
and county governments. That consultation
envisaged under the Intergovernmental
Relations Act between the national and
county governments took place. Thus,
consultations necessary with respect to the
classification of roads among other functions
took place as required by the Constitution
and relevant legislation. However, the
Attorney General and the National Assembly
Departmental Committee on Transport,
Public Works and Housing were dissatisfied
with the Senates decision recommending
that the roads function had to be transferred
to the counties and thus failed to gazette the
transfer of the roads.
2. There was no alternative dispute resolution
mechanism that the petitioner could have
followed to determine the questions that
were at issue in the instant matter; for
they related to the acts of the clerk to the
National Assembly, acting at the behest of
the Departmental Committee on Transport,
and consequent thereto, the omissions of the
Attorney General.
3. The Transition to Devolved Government
Issue 32, Jan - March 2016
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11. A proper reading of section 23 of the
Transition to Devolved Government Act
resulted in the conclusion that the Senate
could only deal with the issues that had
been placed before it on appeal. It was
therefore overreaching when it made
recommendations in respect of matters
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Brief facts:
The petition arose from an advertisement placed by
the 1st Respondent in the Daily Nation Newspaper
of Thursday August 20th 2015 inviting applications
for the position of Secretary/CEO of the Law
Society of Kenya. The said advertisement indicated
that in order to be appointed as the Secretary/CEO
an applicant was required to have the following
qualifications:i.
ii.
iii.
iv.
Issues:
i.
ii.
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Administrative Law -Judicial Review-certiorariapplication for orders of certiorari to compel the 1st
Respondent to comply with the recommendations of
Statute -whether the application had merit
Administrative Law-testing the legality of a statutory
office in its exercise of statutory mandate- Whether the 1st
Respondent acted unlawfully with respect to the additional
requirements of the position of secretary/CEO powers
and limitations of the 1st respondent as a statutory body
Words and Phrases definition - eligible - fit and proper
to be selected or to receive a benefit; legally qualified for
an office, privilege or status -Blacks Law Dictionary 9th
Edn
Statutes
Law Society of Kenya Act
Section 17
The Council which is the governing body of the 1st
respondent as per section 17(1) of the Act. It is this
Council which is vested with the powers under Section
26(2) to appoint the Secretary. Section 26(2) provides:The secretary shall be appointed by the Council through
a transparent and competitive recruitment process.
Section 26(4) of the Law Society of Kenya Act
provides:(4) A person shall be eligible for appointment as the
secretary to the society if that person
a. is an advocate of the High Court of Kenya with at
least ten years experience, and
b.
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occurred where a person was treated
differently from other persons who were in
similar positions on the basis of one of the
prohibited grounds like race, sex creed etc
or due to unfair practice and without any
objective and reasonable justification.
5. In the instant case the distinction was
predicated upon academic qualification.
The 1st Respondent argued that in order to
properly discharge the functions of Secretary,
it was essential that the appointee be a CPS
of five years standing. In other words the
1st Respondent being the employer and
cognizant of the job description felt that the
ideal candidate ought to be a holder of CPS
of five years standing. This was a distinction
that was based on job preference and/or
performance. It was not unreasonable for the
1st Respondent to declare what qualifications
they believed an ideal candidate should hold.
6. The impugned advertisement indicated that
whilst a Bachelor of Laws Degree remained
the minimum requirement an advanced
degree would be an added advantage. A
statement of preference with regard to the
qualification the ideal candidate should
possess was unfair or illegitimate. The
job market currently was cutthroat. Only
the best or best qualified would succeed.
That was the reality of competition in a
capitalistic society. The mere expression
of the preferred qualifications for the ideal
candidate did not amount to discrimination
under article 27 of the Constitution as it was
not premised on any of the grounds stated on
or contemplated by article 27(4) nor could
the stated preference be said to amount to an
illegitimate consideration.
7. The substance of the Petitioners claim was
that the 1st Respondent did not have powers
under the Law Society of Kenya Act to impose
the requirement of CPS, 5 years standing, on
the applicants. The Petitioner was therefore
invoking the courts supervisory jurisdiction
over any person or body performing a
public function. The 1st Respondent being
a statutory body established under article
3 of the Law Society of Kenya Act was
subject to the judicial review jurisdiction
of the High Court. The scope of Judicial
Review concerned only the decision-making
process and the court was not required to
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Orders:
i. The decision by the Respondents to provide additional
qualifications for the post of Chief Executive Officer/
Secretary of the Law Society of Kenya was against the
Law Society of Kenya Act hence ultra vires;
ii. An order of certiorari issued to quash the decision by
the Respondents to provide additional qualifications for
the post of Chief Executive Officer/Secretary of the Law
Society of Kenya and the advertisement dated 20th August
2015.
iii. Costs awarded to the petitioner