Bench Bulletin Issue 28

Issue 28, January - March 2015
p08
Translation of the Laws Into Kiswahili:

Steps Kenya Law is taking.
p20
The 3rd All Kenyan Moot Court

Competition
p21
Beyond Zero Campaign Second Marathon
Constitutional Law Case Digest

Volume - 1
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interpretation of the Constitution of Kenya, 2010 (September 2011
- May 2013)
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CONTENTS
BENCH BULLETIN
01 Editors Note
02Chief Justices Opening
Remarks at the First Annual
Conference of The NCAJ and
the Council of Governors on the
Administration of Justice
p.
08
06 What they Said

0 8 Translation of the Laws Into
Kiswahili:Steps Kenya Law is taking.
p.
20
11 The Constitution of Kenya 2010 and

Judicial Review: Why the Odumbe
Case would be decided differently
Today
15 Arbitration as an alternative to
Litigation in view of the New
Constitutional dispensation
17 LEGISLATIVE UPDATE:Synopsis of
Bills and Acts of Parliament
p.
21
20 Kenya Law Partners With Kenyatta

University School of Law - The 3rd
All Kenyan Moot Court Competition
Where Legal Information is Public Knowledge
A QUARTERLY PUBLICATION BY KENYA LAW
21 Beyond Zero Campaign Second Marathon

22 Privacy, Ethics and Analytics
25 Cases
Ag Editor /CEO
| Longet Terer |
Head of Law Reporting
| Cornelius Lupao |
Senior Law Reporters

| Andrew Halonyere | Njeri Githanga Kamau |
Contributors
| Monica Achode | Linda Awuor | Cornelius Lupao | Wambui Kamau | Janette Watila | Mutindi Musuva |
| Mutindi Musuva | Eric Odiwuor | Edna Kuria | Wambui Kamau | Nelson Tunoi | Emma Kinya |
| Collins Kiplimo | Phoebe Ayaya | Lydia Midecha | Andrew Halonyere | Martin Andago | Teddy Musiga |
Victor Kipyegon | Beryl Ikamari | Dudley Ochiel | Lisper Njeru | Emily Nakhungu | Caroline Wairimu |
Mary Waruguru | Ruth Ndiko | Naomi Mutunga | Julie Mbijiwe | Thomas Muchoki | Humphrey Khamala |
Design and Layout

| Catherine Moni | Robert Basweti | Cicilian Mburunga | Josephine Mutie |
Proofreaders
| Phoebe Juma | Innocent Ngulu |
The Council
MEMBERS OF THE COUNCIL FOR KENYA LAW
Dr. Willy M. Mutunga, D. Jur., SC, EGH

Chief Justice, President of the Supreme Court of Kenya/Chairman
The Hon Lady Justice R Nambuye
Judge of the Court of Appeal of Kenya
The Hon Lady Justice Lydia Achode
Judge of the High Court of Kenya
Prof Githu Muigai, SC
Attorney General
Mr Evans Monari
Advocate, Law Society of Kenya
Ms Florence Muoti Mwangangi
Advocate, Law Society of Kenya
Prof Annie Patricia G Kameri-Mbote, SC

Dean, School of Law, University of Nairobi
Mr Silvester Migwi, Ag Government Printer,

Government Press
(Represented by Ms Eva N. Githinji, Senior Printer,
Government Press.
Ms Christine Agimba
Deputy Solicitor General, State Law Office
Longet Terer
Ag Editor/CEO
Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi
Chief Registrar, The Judiciary
Mr Justin Bundi
Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Mrs Flora Mutua

Senior Management Consultant, Directorate of
Personnel Management Services,
Ministry of Devolution and Planning
Mr Joash Dache
Secretary/CEO Kenya Law Reform Commission
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
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Editors Note
Ag Editor/CEOs Note
t is yet another year full of promise and possibilities and we at Kenya Law
look forward to a year in which our local jurisprudence shall be developed
even further.
The year 2015 is the fifth year from the date of the promulgation of the
Constitution of Kenya 2010 and as such it is an important milestone in the
implementation process of this Constitution. The Fifth Schedule anticipated
that the most critical legislation (listed therein) should have been passed and
enacted by August of this year. We are keeping a close eye on this process
and ensuring that our database of Laws of Kenya, which contains all the
legislation that is passed by Parliament, is updated and useful for the benefit
of all citizens and more particularly, legal scholars and practitioners.
Kenya Law continues to play an instrumental role in the constitutional

implementation process by providing a wide array of legal information in
a user friendly and easily accessible format. The Constitution lays great
emphasis on public participation at all levels of Government and in all affairs
of governance.
The free access of legal information therefore promotes meaningful public
engagements between citizens and the governance structures.
We are also extending the breadth of information available on our database

to include County Legislation. It is now possible to access legislation that has
been passed by all the 47 Counties on our website.
As part of our commitment to caring for the wellbeing of one another

we began our year by participating in the First Ladys Beyond Zero Half
Marathon so as to play our part in improving maternal healthcare in the
Country. We also intend in the coming months to participate more directly
in environmental conservation projects as our way of replenishing the tree
count which we recognize our publishing industry to consume so much of.
As we commence the year the words of John D. Rockerfeller ring true, that
every right implies a responsibility; every opportunity an obligation; every
possession, a duty. Our objective is to make use of every opportunity that
has been granted to us so that we can discharge our core responsibility of
making legal information accessible to all Kenyans.
Longet Terer
Ag EDITOR
Issue 28, January
- March
2015
Editors
Note
Issue
January- -March
March 2015
2015
Issue
26,28,
January

CJs Message
Chief Justices Opening Remarks at the

First Annual Conference of The NCAJ
and the Council of Governors on the
Administration of Justice
our Excellency, the Chairman of the Council of Governors, Your

Excellencies, Governors Honourable Senators and Members of the
National Assembly, Hon Attorney General, Holders of Independent
Offices, among them, the Director of Public Prosecutions, the Acting
Inspector General of Police, the Commissioner of Prisons, the Executive
Director of the Kenya Human Rights Commission, Distinguished Colleagues,
Fellow Kenyans, Ladies and Gentlemen: Welcome to the National Council
on the Administration of Justice (NCAJ), an agency established by the
Judicial Service Act to lead and coordinate the policy processes on the
administration of justice. NCAJ is an important forum of deliberation and
peer review of actors in the assembly line of justice. It is a recognition that
the agenda of delivery of justice to Kenyans depends on the collaboration
and not competition of justice actors sectors; and that it is only through
dialogue and consultation rather than rote citations of the independence of
our institutions that puts us in good stead in offering services. NCAJ at the
national level is what Court Users Committees are at the local level and in
which, I hope, all County Governments are represented.
Devolution has been built into our Constitution as a necessary mitigation
against 50 years of centralised government which yielded poverty, inequality,
division and underdevelopment. Devolution is extremely important to the
survival of Kenya as a nation-state, and the Judiciary is duty-bound to support
it in fulfillment of the express commands of Article 10 of the Constitution.
Devolution will not work if we create institutional apartheid between the
national government and county governments. Although the Constitution
allocates functions to the national and county governments in the Fourth
Schedule, the self-same supreme law provides for collaboration. Indeed
Article 6 (3) provides that national State Organs shall ensure reasonable
access to its services in all parts of the Republic so far as is appropriate to
do so, having regard to the nature of the services. Justice is such a universal
service that national institutions have no choice but to provide it everywhere.
Otherwise the rule of law, our democracy, and our Constitution will surely
collapse. This is why the First Annual Conference between NCAJ and
Council of Governors is being hosted as the quest for justice is blind either to
geography of governments or hierarchy of their levels.
The Constitution has devolved the Executive and Legislative functions, but
kept courts, police services and correctional services within the ambit of the
national government. Still, the same Constitution allocates the control of air
pollution, animal control and welfare, elements of public health, planning and
development, control of drugs and pornography and many other activities
that may attract criminal sanctions.
Last year, the Council of Governors shared with me a Concept Paper with
many important recommendations on how to strengthen the partnership
between devolved governments and the Judiciary. Many of the proposals
required action by other stakeholders besides the Judiciary. This conference
is the consultative forum bringing together all the actors in the administration
of justice to consider many of those proposals and questions in detail.
CJs Message
In answering these questions our fidelity to the Constitution must remain. Article 187 (1)
provides for a function or power of government at one level to be transferred to a government
at the other level by agreement between the governments if its performance would be more
effective that way. There are only two conditions: first, arrangements must be put in place to
ensure that the transfer of a function is accompanied by the requisite resources, and secondly,
the constitutional responsibility for the function remains where the Fourth Schedule places it.
This is one of the issues that I hope this Conference will address conclusively with respect to
the administration of justice.
Friends, let me speak briefly to an issue that looks so simple yet quite poignant - dialogue.
The dearth of dialogue in this country evidences the death of common sense. Each time our
country has been perched on the horns of a dilemma -- such as how to decisively deal with
terrorism and other security threats while upholding the rights guaranteed in the Constitution
-- dialogue has enabled us to strike the right balance. We have educated each other, appreciated
each others perspectives, confluenced on public interest as the overriding concern as guided by
the Constitution we all swore to protect. Our deliberations are characterized by candour but
always tempered with civility.
This then is the arena into which I welcome you -- a space where we can dialogue. We meet
here as patriots and servants of the people in whose name we hold our respective high offices.
Our purpose is to lay aside our personal persuasions and engage with the crises that confront
the citizenry with a view to delivering irreversible relief for the hurdles they encounter in their
daily lives.
We are midstream through the most important transition in our countrys history, perhaps only
comparable in scale to the changeover from the colonial administration to the independent
government in 1963. A defining feature of our constitutional transition is establishment of
devolved government.
We are fast approaching the deadline for the national government to restructure the provincial
administration to accord with and respect the system of devolved government. This transition
shall, no doubt, place more responsibilities on county governments in addition to those already
outlined in the Fourth Schedule of the Constitution. As leaders of devolved governments, you
bear a bigger responsibility in inoculating these nascent governments from the ailments of
bad governance that have traditionally assailed the national government since independence.
Corruption, ethnicity, clannism, personal rule, poor planning, patriarchy must not be allowed
to take root in these new governments. You would rather be a one-term Governor of a
clean government than a two-term Governor of a government that rates highest on the bad
governance index.
Let us be clear: When courts pronounce themselves on the meaning of the Constitution and
interpret the law, the Judiciary is not taking sides; it is merely laying down the law. When the
Judiciary hosts dialogue meetings with the Senate, the Council of Governors, the National
Assembly, or the National Security Agencies, it is not taking instructions; it is leading in
constructive engagement. This is the spirit of dialogue and consultation in national and public
interest that I would like all of us to embrace. In the adversarial nature of Kenyas legal system,
decisions will not always go our way but that is no excuse to act and respond in a parochial
manner, especially when those decisions are very well argued and reasoned in law.
One only needs to examine the number of times the courts have decided against the Judicial
Service Commission for proof of our claim to impartiality. The JSC, in spite of being responsible
for judges discipline, has not reacted with mindless rage and anger. Instead, it has appealed
those decisions when it disagrees and accepted them where it agrees. We all have a duty to obey
court orders.
Our politics, though characterised by numerous healthy competitions, also has a penchant
for degenerating into unnecessary confrontations characterised by threats and ego trips that
sometimes have nothing to do with the issues in contention. It is thoroughly entertaining in
a tragic-comic sense, but it also saps national energy and squanders the goodwill for building
national institutions. I dont think we have a licence to lead, or practice politics, or formulate
policy in a zone free of evidence, decency and civility.

Public offices whether in the Executive at the national and county level, the Legislatures
and the Judiciary or the independent offices -- were not created as weapons to frustrate
the dreams and ambitions of the Kenyan people but to advance them through a judicious
execution of our constitutional duties and mature exercise of powers bestowed upon us.
And I would like to salute the Council of Governors for working in a very bipartisan
manner on issues of national and county interests. In this approach lies the promise of
the de-ethnicisation of Kenyas politics. County Governments are arguably nursery beds
of Kenyas future presidents. Governments that are geographically proximate should
promote inter-governmental collaboration at the regional level.
There are still unsettled questions on the parameters of partnership between the national
justice sector institutions and the County Governments and I believe that this forum will
deal with them conclusively. The Judiciary is of the view that the Constitution and other
statutes do not permit the creation of County Courts in the model of the defunct City/
Municipal Courts.
Further, we need to clarify the role of the Office of the Attorney General within the context
of devolution, as well as the institutional framework for the provision of legal services by
the County Attorneys, whom I am happy to add the Judiciary has helped to train. Other
issues that merit discussion include the institutional and procedural mechanisms for the
gazettement of county legislation, and mechanisms for collaboration required between
county governments and the Office of the Director of Public Prosecution.
Last, but not least, a conversation on the provision of correctional services, as well as
the proposal to improve the rehabilitation of offenders within a wider human rightscentred framework on governance is necessary. Ladies and gentlemen: These questions
are important, and they are urgent. We cannot find answers to them by talking at each
but by reasoning together. There is no doubt that devolution is working. Everywhere you
look, the face of Kenya is changing because of the Constitution giving people more say in
the management of their affairs. The assembly line of justice must also provide support
for devolution and this Conference, in addressing the still lingering questions, is a first
step in that direction. And it is my proposal that this reasoning be an annual permanent
calendar event between the Council of Governors and NCAJ.
Thank you.
Dr Willy Mutunga,
D. Jur, SC, EGH Chief Justice /
President of the Supreme Court of Kenya
Law Reporting
KLR ELECTION PETITIONS DECISIONS

This volume contains decisions emanating from the 2007 General Elections from the Court
of Appeal of Kenya and the High Court of Kenya.
Milimani Commercial Cour ts, Ground Floor

PO Box 10443 - 00100 Nairobi, Kenya
t. +254 20 271 2767 c. +254 718 799 464
mykenyalaw
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National Council for Law Reporting(Kenya Law)

A service state corpor ation in the Judiciary
Mykenyalaw
www.kenyalaw.org

What they Said

Concurring opinion of
Deputy Chief Justice
Kalpana Rawal in
Moses Masika Wetangula v
Musikari Nazi Kombo and
another
Supreme Court of Kenya
Petition 12 of 2014
Bungoma Senator found culpable of committing an election offence of

bribery during the 2013 general elections
I am aware that other countries with elaborate Constitutions such as ours have undertaken
legislative action to remedy complexities and ambiguities in the electoral law. India for instance,
undertook legislative action to simplify the classification of election offences such as corrupt
practices. As is the practice in India, Parliament should classify the various electoral and
criminal offences, the resultant convictions, and how such convictions affect the status of a person
in contesting an elective post. Parliament should also revise the Penal Code to incorporate offences
relating to elections and which ought to be tried in a criminal Court There is a serious gap in
legislation, and I recommend that the office of the Hon. Attorney General, and the Kenya Law
Reform Commission should consider and attend to this matter with the expedition it deserves. Part
VI of the Elections Act and the Penal Code should be reconsidered and re-formulated, adopting best
practices from other jurisdictions such as India, so as to ensure the creation of a seamless process in
the electoral and penal laws.
Supreme Court affirms the unconstitutionality of section 76(1) (a) of the

Elections Act
The inevitable inference resolved into the principle that the Constitution of Kenya, 2010 did not
envisage or create a legal vacuum, and all process regulated by law were to continue in progress as
signalled by the Constitution. The Supreme Court was duty bound to signal a direction in respect of
the reading-into for section 76(1) (a) of the Elections Act, on the basis of the persuasive authority
from the South African jurisdiction in the case of National Coalition for Gay and Lesbian Equality
the adoption of such an alternative principle, was not proper for the present case since the statute
in question was enacted after the promulgation of the Constitution of Kenya, 2010.
Concurring opinion of
Supreme Court judge N S
Ndungu in
Mumo Matemu v Trusted
Society of Human Rights
Alliance & 5 others
Supreme Court judges

Ibrahim and Ojwang in
Hassan Nyanje Charo v
Khatib Mwashetani & 3
others
Civil Application No. 23 of
2014
The locus standi of an NGO deregistered in the course of legal proceedings

There was a clear lacuna in the law which failed to protect the legal interests of a NonGovernmental
Organization or its creditors upon its deregistration and also threatened the role of NGOs in public
interest litigation, and in effect, social change and human rights defence through litigation. The
lacuna needed resolution through legislative initiative or through a challenge of constitutionality in
line with the provisions of articles 22 and 258 of the Constitution of Kenya 2010.
Civil Application No 29 of
2014
17th June 2015 is the international switch off date from analogue to digital
platform, Supreme Court affirms
The 1st, 2nd and 3rd respondents act of commencing a scheme of public advertisements which
led to retaliatory actions (namely, cancellation of the temporary authorization and withdrawal
of digital frequencies) by the 1st appellant was like they had never submitted their longrunning dispute to the Supreme Court for final resolution. The two sides ( i.e., the 1st appellant
on the one hand, and the 1st, 2nd, and 3rd respondents on the other hand) had engaged in
conduct the effect of which was to undermine the integrity of the Courts Judgment. As the Court
had determined the dispute, and issued Orders with which the parties were to comply within a
specified period, it behoved the parties to not only comply, but to desist from any actions such
as would tend to undermine the authority of the Court. Thus, the parties should have dutifully
awaited their turn to address the Court, regarding their compliance with its Orders
Supreme Court judges

Mutunga CJ, P Rawal DCJ,
Tunoi, Ibrahim, Ojwang,
Wanjala and Njoki
Communications Commission of
Kenya & 5 others v Royal Media
Services Ltd & 4 others
Petition No 14 of 2014,
What they Said
What they Said

High court has no jurisdiction in resolving electoral disputes relating to
members of the County Assembly
Upon the gazettment of members of County Assembly, they were deemed to be elected members
of the County Assembly. Therefore, the proper and original forum to determine the question of
the validly nominated and gazetted representatives was the Resident Magistrates court under
section 75(1) (a) of the Elections Act. Consequently, the High Court had no original jurisdiction to
determine questions of membership to county assemblies.
Court of Appeal judges

Visram, Koome &Odek in
County Government of Nyeri
& another v Cecilia Wangechi
Ndungu ,
Court of Appeal judges

A Visram, M Koome & J
Otieno Odek in
Jaldesa Tuke Dabelo v IEBC
& Anor, Civil
Appeal No 37 of 2014
Applicability of the pleasure doctrine in appointments made by a Governor

Originally the doctrine of pleasure was a prerogative power which was unfettered. A holder of
an office under pleasure could be removed at any time, without notice, without assigning cause,
and without there being a need for any cause. However, with the passage of time and evolution of
democracy the doctrine had undergone a series of modification. The evolution of the doctrine of
pleasure had been on the basis of firstly, putting to an end arbitrary action by a public authority and
secondly, ensuring that such a power was exercised reasonably and for the public good.
Civil Appeal No. 2 Of 2015
Court Declares Section 24 of the HIV and AIDS Prevention and Control Act
Unconstitutional
Section 24 of the Act was in contravention of article 31 of the Constitution to the extent that the
right of others to disclosure of such information had the likelihood of prejudicing the right to privacy
unless corresponding obligations were placed on the recipients of the information with respect to
adherence to the confidentiality principle. It was therefore imperative that the duty to disclose the
information, being a limitation on the right to privacy, strictly fell within the confines of article 24
of the Constitution.
Justice M N Nduma in
Jared Juma v Kenya
Broadcasting Corporation &
4 others
Industrial Court at Nairobi
Judicial Review No 24 of
2013
High Court Judges I

Lenaola, M. Ngugi and G.
V. Odunga in
Aids Law Project v Attorney
General & 3 Others,
Petition No. 97 of 2010
Age-limit, pre-condition to qualify for Senior Management position in a

Parastatal is Discriminatory
The decision placing an age limit as a precondition to qualify for the position of Managing Director
excluded many worthy applicants from being considered on merit to occupy the position of Managing
Director of KBC. The decision negated the minimum core content of the right provided under article
27(4) of the Constitution of Kenya 2010.
What they Said

Translation of the Laws Into Kiswahili:

Kenya Law is taking.
Steps
Translation is not a matter of words only: it is a matter of making intelligible a whole culture.
Anthony Burgess
By Wambui Kamau
eorge Steiner once stated

that, Without translation,
we would be living in
provinces bordering on silence. Could this be the
situation Kenya is in knowing that our laws are presented
in the English Language and among the most accessdisadvantaged Kenyan citizens are persons who do not
understand written and/or spoken English?
Kiswahili serves as a lingua franca among different ethnic
communities and it is usually the language of the work
place, market place and educational systems. Further,
Kiswahili has been adopted as one of the five working
languages of the African Union. However, despite this, the
laws of Kenya are still in English and in the legal language
which is a specialised language and this makes very hard
to grasp and understand for the common citizen. Legal
Language, just like other specialised languages, is parasitic
on ordinary language and although it is considered to
be precise and clear, the truth value of a statement in
language or in law can be ascertained only if referenced
to a given context or situation.
Laws of Kenya
The need to present the laws in a language that is

understood clearly by the consumers of that law cannot
be over-emphasised. A language becomes national,
official, global or universal because of the function it
serves and the recipients of these functions rather than
the size of the population it serves. It is good to note
that official documents are the most often translated
specialised texts because of their extensive usefulness and
Kiswahili has become so widely used in the country that
the government can no longer ignore it.
Since Kenya gained independence in 1963, all official
government documents including all legal information
were documented in English, which was the only official
language. However, in August 2010, Kiswahili acquired its
new official status through Article 7 of the Constitution
of Kenya. The same Constitution obligates and empowers
the Council to translate and publish information on its
website, which includes the laws of Kenya in Kiswahili.
This will be for the benefit of the general Kenyan public
and ordinary Kenyans with court cases and have to be
represented in court.
Taita Taveta Women Representative, Joyce W. Lay being presented with Kenya Laws publications by
Longet Terer- Ag. Chief Executive Officer
Laws of Kenya
Taita Taveta Women Representative, Joyce W. Lay when she paid a courtesy call to KenyaLaws offices. To her left is Longet Terer - Ag. Chief Executive
Officer and Wambui Kamau Waweru- Teamleader, Laws of Kenya department.
In Kenya, the language of the law has always been English.

From the Legislature, that is the language in which bills
and subsidiary legislation are drafted, debated (only a few
debate in Kiswahili) and finally passed. Also, English is the
language in which the court proceedings are conducted
including oral and written submissions. Evidence and
the final decree of the court are similarily presented in
English. The ideal position would be that the Kenyan
Legislature presents the laws in a different language just
like what happens in Tanzania and South Africa.
In Tanzania, debate is done in Kiswahili and the law
presented in Kiswahili, while as for the latter, laws emanate
in English and Afrikaans. In Canada, laws are presented
both in English and French. It is however good to note
that concepts are unique to each legal system therefore
the need to be defined separately in a first phase of the
translation process. In regard to this, Kenya Law first
took the steps to develop guidelines to translate the laws
to mwananchi friendly- easy to read, easy to understand
English, first, before the actual translation to Kiswahili.
In this regard, Kenya Law has embraced a two fold
approach. Tirst the law will be first summarized into
simple and plan English and then into Kiswahili. Even

in this two fold translation process, one has to be careful
that purpose and the status of the target text are taken
into account. Translation is an approximate operation,
desirable and possible but never perfect. Translation
is written. It involves taking a written text in a source
language (in this case English) and providing a written
text into the target language (Kiswahili).
Further, it is good to note that there is a close relationship
between language and development and meaningful
development cannot take place where linguistic barriers
exist. There are only a few countries in Africa, such as
Tanzania, Ethiopia, Somalia and most of the Arabic
speaking countries, which opted to develop their
indigenous linguae francae to serve as national languages.
If we consider the case of Tanzania, Ethiopia and Egypt,
Kiswahili, Amharic and Arabic respectively, they have
been used as languages of education, trade and commerce.
These are just but a few examples that illustrate successful
government decisions to empower and develop common
lingue francae for national development.
As such, at Kenya Law we saw it fit to commence the
BB Issue 28, January - March 2015
10
translation process of laws into Kiswahili. This process

commenced way back in 2012 by the adoption of
guidelines of Legal Documents from English to Kiswahili.
shared instances where many citizens are not able to

comprehend the laws and there is recurrent failure of the
law to communicate clearly when put to practical use. It
is also evident that the cause of the incomprehension is
the legal language in which the documents are written.
Ignorance of the law is no excuse is a phrase the Member of
Parliament repeated severally as the countrys Penal Code,
Chapter 63 of the Laws of Kenya assumes that everybody
knows the law. Knowledge of the law presupposes legal
literacy which in turn means that everybody is capable of
comprehending what the law says. This is not the case as
the common citizen is ignorant of the law and punished
for not knowing it. Coming from a county where 99% of
her people communicate in fluent Kiswahili, there is need
to have the laws presented in Kiswahili.
Therefore the motion of the translation of the laws

to Kiswahili by the Taita Taveta County Women
representative, Joyce Lay did not get Kenya Law by
surprise when she brought it up in Parliament as a
motion. She seeks to have the laws of Kenya translated
into Kiswahili. Her motion was titled, Translation
of the Laws of Kenya into Kiswahili where she has
recognised Kiswahili as the national and official language
of the Republic. She reiterates the fact that equality and
freedom from discrimination and access to information
are fundamental rights and that democracy and public
participation of the people is a national value and principle
of governance. She is concerned that a section of Kenyans
have a low level of knowledge of their legal rights and laws
passed by the Parliament. She sought to urge the National
Council for Law Reporting to progressively translate the
laws of Kenya into Kiswahili.
Through a donor funded program, the Judicial

Performance Improvement Project, Kenya Law has
identified a number of statutes that we shall be able to
translate eventually to Kiswahili in the coming few
months.
This necessitated her visit to Kenya Laws offices in

February to discuss the steps Kenya Law has undertaken
to ensure that the laws are translated into Kiswahili.
Throughout the discussion, the Member of Parliament
Say what we may of the inadequacy of translation, yet

the work is and will always be one of the weightiest and
worthiest undertakings in the general concerns of the
world. J. W. Goethe
What you help a child to love can be more important than what you help him to learn. ~African proverb
Laws of Kenya
Some rights reserved by Dennis Jarvis
11

The Constitution of Kenya 2010 and Judicial

Review: Why the Odumbe case would be decided
differently today
By Dudley Ochiel (Laws of Kenya Department)
Introduction
he recent appearance of Maurice Odumbe, Kenyas

cricket legend, on the Television Show; Jeff
Koinange Live (#JKL) has renewed the interest of
the public in his plight. In an investigation authorized
by the International Cricket Committee (ICC) and
conducted by the Kenya Cricket Association (KCA),
Odumbe was found guilty of having inappropriate
conduct with a bookmaker and banned from the game
for five years. Odumbe applied for judicial review in an
attempt to salvage his career from the lengthy ban.
The High Court of Kenya declined his application,
reasoning that in disciplining Odumbe, they (ICC and
KCA) had not performed any duty of a public nature
nor were the consequences of the performance of their
duty of a public nature. That the respondents source
of power, nature of duty and its impact did not amount
to performance of public functions. This brief article,
however, examines the change in the law of judicial
review since his application for judicial review was
dismissed by the High Court of Kenya in Republic v Kenya
Cricket Association ex parte Maurice Odumbe [2006]eKLR.
The Meaning and Origin of Judicial Review

Literally the concept of judicial review means revision of
the decree or sentence of an inferior court by a superior
court. However, judicial review has a more technical
significance in public law, founded on the concept of
limited government. In this case, judicial review means
that Courts of law have the power to test the validity of
legislative as well as other governmental actions with
reference to the provisions of the Constitution.
One theoretical foundation of judicial review is from
the British legal system which we have largely inherited.
The courts judicial review jurisdiction is justified by the
notion that this procedure merely enforces the will of
Parliament, by ensuring that public bodies do not exceed
the powers given to them by the legislature. This theory
(ultra vires) elevates the power of Parliament over the
judiciary. Ultra vires has been described as the juristic
basis of judicial review[1].
The other foundation of judicial review is based upon
the role of the court as the guardian of the rule of law.
In Marbury v Madison 5 U.S. 137 (1803)[2]although there
is no express provision in the American Constitution
for judicial review, the Supreme Court made it clear
that it had the power of judicial review. This duty and
jurisdiction of the Judiciary is memorably etched in the
words of Marshall J thus, It is, emphatically, the province
and duty of the judicial department to say what the law
is.
Judicial Review under

Constitution of Kenya 2010
the
Prior to the promulgation of the Constitution of Kenya,

2010 judicial review took place along the common law
grounds mainly derived from the British legal system
such as proportionality, legitimate expectation,
reasonableness and principles of natural justice. The
Constitution of Kenya has however now given the judiciary
the broad jurisdiction to rule on the constitutionality of
legislative and administrative actions through the power
of Judicial Review. The High Court has jurisdiction, under
Article 23(1), to hear and determine applications for
redress of a denial, violation or infringement of, or threat
to, a right or fundamental freedom in the Bill of Rights.
Thereafter the court is empowered to grant appropriate
relief, including an order of judicial review.
The phrase in Article 23(3) to grant appropriate relief,
including has been the subject of interpretation in Nancy
Makokha Baraza v Judicial Service Commission [2012]
eKLR where the Court expressed itself as follows: The
New Constitution gives the court wide and unrestricted
powers which are inclusive rather than exclusive and
therefore allows the court to make appropriate orders
and grant remedies as the situation demands and as the
need arises. Rationally, in a claim of violation of the
Constitution, the court has sufficient power to grant any
appropriate remedy including an order of judicial review.
Again, Article 47 of the Constitution provides:
47. Fair administrative action
(1) Every person has the right to administrative action
that is expeditious, efficient, lawful, reasonable and
procedurally fair.
(2) If a right or fundamental freedom of a person has been
or is likely to be adversely affected by administrative
action, the person has the right to be given written
reasons for the action
The jurisdiction under Article 23 is to be exercised in
accordance with Article 165 which is a comprehensive
catalogue on the jurisdiction ambit of the High Court
3. Subject to clause (5), the High Court shall have
(a) ...;
(b) jurisdiction to determine the question whether a right
or fundamental freedom in the Bill of Rights has been
denied, violated, infringed or threatened;
(c) ...;
(d) ...
(6) The High Court has supervisory jurisdiction over
Laws of Kenya
12
Laws of Kenya
the subordinate courts and over any person, body or

authority exercising a judicial or quasi-judicial function,
but not over a superior court.
(7) For the purposes of clause (6), the High Court may call
for the record of any proceedings before any subordinate
court or person, body or authority referred to in clause
(6), and may make any order or give any direction it
considers appropriate to ensure the fair administration
of justice.
The Supreme Court of Kenya in Communications
Commission of Kenya v Royal Media Services [2014] eKLR
recognized that the principle of judicial review, and at the
same time the key place of the courts in upholding of the
Constitution, is enshrined in the Constitution of (Articles
23(3)(d) and 165(3)(d)). The court held that whereas the
American Court in Marbury declared its power to review
the constitutionality of laws passed by Congress, by
contrast, the power of judicial review in Kenya is found
in the Constitution.[3]
Again in Martin Nyaga Wambora v Speaker of the Senate
[2014]eKLR the High Court held that it is clear that
they -Articles 47 and 50(1)- have elevated the rules of
Natural Justice and the duty to act fairly when making
administrative, Judicial or quasi Judicial decisions into
constitutional rights capable of enforcement by an
aggrieved party in appropriate cases.[4] The Court was
saying that the twin notions of natural Justice embodying
the duty to act fairly: that no man shall be a Judge in his
own cause (Nemo Judex in causa sua) and that no man
shall be condemned unheard (audi alteram partem) are
now cardinal constitutional principles and not merely
common law derivatives.
Hence the concept of judicial review before Kenyan
courts has evolved from a common law foundation to
a constitutional principle with five major dimensions
fairness in administrative action under Article 47;
protection of the constitutionally guaranteed under
fundamental rights and freedoms in the Bill of Rights;
judicial review of the decisions of tribunals appointed
under the Constitution to consider the removal of a
person from office; jurisdiction on questions of legislative
competence and the interpretation of the Constitution;
supervisory jurisdiction over the Subordinate Courts and
over any person, body or authority exercising a judicial or
quasi-judicial function (See Article 165(6)).
In express terms, the Constitution grants to the High
Court supervisory jurisdiction over the Subordinate
Courts and over any person, body or authority exercising
a judicial or quasi-judicial function. The test for efficacy
of judicial review therefore is now whether the person,
body, or authority exercises a judicial or quasi-judicial
function and no longer whether the exercise of power
is private or public. If private bodies engage in quasijudicial functions, they are amenable to judicial review.
Pure and simple.
The term quasi-judicial which is wide enough to cover
the activities of private bodies like ICC and KCA, against
whom Odumbe sought judicial review, means:
1. having a partly judicial character by possession of
the right to hold hearings on and conduct investigations

into disputed claims and alleged infractions of rules and
regulations and to make decisions in the general manner
of courts
2 . essentially judicial in character but not within the
judicial power or function especially as constitutionally
defined[5]
Kenyan courts must realize the falsehood of the myth
that there is any more a conceptual distinction between
private bodies and public bodies in actions for judicial
review based on quasi-judicial functions. This is because
judicial review is available as relief to a claim of violation
of the rights and freedoms guaranteed in the Constitution
especially under Article 47. The Constitution has
expressly granted the High Court jurisdiction over any
person, body or authority exercising a quasi-judicial
function. The point of focus is no longer whether the
function was public or private but whether the function
was judicial or quasi-judicial and affected Constitutional
rights including the right to fair administrative action in
Article 47, or the right to natural justice in Article 50.
Indeed the eminent Kenyan Professor James Thuo Gathii
has posed the warning in The Incomplete Transformation
of Judicial Review thus:
The Kenyan judiciary must guard against the development
of a two-tracked system of judicial review. One that
looks like the old cases influenced by the common law,
on the one hand, and cases that are decided under the
2010 Constitutions principles of judicial review [on
the other]. Those two tracks are likely to undermine the
establishment of a vibrant tradition of judicial review as
required by the 2010 Constitution.
The Supreme Court has heeded the warning and
recognized that the power of any judicial review is
now found in the Constitution. The recent case of CCK
painted the clearest picture of the evolved nature of
judicial review in Kenya. In that case, the Supreme Court
held that the power of judicial review in Kenya is found
in the Constitution, as opposed to the principle of the
possibility of judicial review of legislation established in
Marbury. The Court cited Articles 23(3)(d) and 165(3)(d))
cited above.
In the same CCK Case Rawal DCJ writes a concurring
opinion at paragraphs 403-404 chiefly to illuminate
the entrenchment of a duty to act fairly in Article 47
of the Constitution. She notes, Although this doctrine
(of legitimate expectation) emanates from common
law, the Constitution has entrenched the right of
fair administrative action under Article 47 of the
Constitution.
The concept of judicial review under the Constitution
of Kenya is similar to that under the Constitution of
South Africa where it has been held in Pharmaceutical
Manufacturers Association of South Africa ex parte President
of the Republic of South Africa & Others 2000 (2) SA 674 (CC)
at 33, that [t]he common law principles that previously
provided the grounds for judicial review of public power
have been subsumed under the Constitution and, insofar
as they might continue to be relevant to judicial review,
13
they gain their force from the Constitution. In the judicial

review of public power, the two are intertwined and
do not constitute separate concepts. The court went
further to say that there are not two systems of law, each
dealing with the same subject matter, each having similar
requirements, each operating in its own field with its own
highest court. Rather, there was only one system of law
shaped by the Constitution which is the supreme law, and
all law, including the common law, derives its force from
the Constitution and is subject to constitutional control.
As can be seen, the entrenchment of the power of judicial
review, as a constitutional principle should of necessity
expand the scope of the remedy. Private parties, like
Odumbe, who were once denied judicial review on the
basis of the public-private power dichotomy, should now
access judicial review if the person, body or authority
against whom it is claimed exercised a quasi-judicial
function. An order of judicial review is one of the reliefs
for violation of fundamental rights and freedoms under
Article 23(3)(f). On this basis alone, Odumbes application
to the High Court for judicial review should now be
acceptable.
The High Court is yet to give a judgment clearly outlining
the constitutional basis for judicial review or to grant
judicial review on the basis of unconstitutionality.
However some of its judgments have began to show
strands of the recognition of the Constitution as the basis
of judicial review.
In the case of Republic v Kenya Association of Music Producers
(KAMP) ex - Parte Pubs, Entertainment and Restaurants
Association of Kenya (PERAK) [2014]eKLR the Court held
that the applicant who described itself as a welfare society
registered under section 10 of the Societies Act (Cap
108) Laws of Kenya with membership throughout the
Republic of Kenya had, under the Constitution, locus to
institute judicial review proceedings if the Respondents
actions or inactions had adversely affected them or
were likely to adversely affect them. The court however
reverted to the old argument that private bodies are not
amenable to judicial review, without inquiring whether
the Respondent carried out a quasi-judicial function
capable of adversely affecting the rights of the applicant.
The applicant was denied judicial review on that basis,
per incuriam.
Also, Odunga J has recently recognized that Judicial
review is a constitutional supervision of public authorities
involving a challenge to the legal validity of the decision.
(emphasis supplied) in Republic v Commissioner of
Customs Services Ex parte Imperial Bank Limited [2015]
eKLR. However, no court, apart from the Supreme Court
has fully explored and developed the concept of judicial
review in Kenya as a constitutional supervision of power.
The time is ripe for the Constitutional and Human Rights
Division of the High Court to develop the law on this front.
All decisions of the Supreme Court, including that on the
constitutional foundation of judicial review espoused in
the CCK case are binding upon the High Court. The court
must develop its judicial review jurisprudence alongside
the mainstreamed theory of a holistic interpretation of
the Constitution.
Migai Aketch argues in The Maurice Odumbe Investigation

and Judicial Review of the Power of International Sports
Organisations[6], the High Court decision in the Odumbe
case was at odds with the (then) emerging progressive
view that the dispositive factor, in judicial review, should
not be whether power is public but that irrespective of
its source it (power) is capable of adversely affecting the
rights of individuals. And if it is capable of doing so then
it ought to be subject to the requirement of considerate
decision making. That progressive view has since found
its way in to Kenyan courts with the passage of the
Constitution on 27 August 2010, some four years after
the Odumbe case was decided.
Judicial Review, the Common Law and the Constitution
of Kenya 2010
The High Court has continued to grant or deny judicial
review strictly on the basis of precedents developed under
the common law permitting judicial review on the basis
of public-private power dichotomy. In the CCK [7]case
the Supreme Court cautioned that unthinking deference
to cannons of interpreting rules of common law, statutes,
and foreign cases can subvert the theory of interpreting
the Constitution. This caution was repeated in Judges and
Magistrates Vetting Board v Centre for Human Rights and
Democracy [2014]eKLR that the Constitution should be
interpreted in a holistic manner; that the countrys history
has to be taken into consideration; and that a stereotyped
recourse to the interpretive rules of the common law,
statutes or foreign cases, can subvert requisite approaches
to the interpretation of the Constitution[8]
At the same time, Kwasi Prempeh in Marbury in Africa:
Judicial Review and the Challenge of Constitutionalism
in Contemporary Africa [9] has noted the application
of the common laws doctrinal traditions, philosophic
underpinnings, and styles of reasoning and interpretation
as the default rules and norms for framing and analyzing
of even constitutional questions. The common law, in
its method, substance, and philosophical underpinnings,
carries with it elements and tendencies that do not accord
with the transformative vision reflected in modern bills
of rights. Much of the problem, he notes, stems from the
basic constitutional and jurisprudential paradigm upon
which English common law is built, namely Austinian
positivism and Diceyian parliamentary sovereignty,
notions which are incompatible with the transformative
ideals of the Constitution of Kenya, 2010. For one the
theory of a holistic interpretation of the constitution
trumps the literal and mechanical approaches of English
jurists[10].
Besides, Kenya has transformed from a parliamentary
sovereignty into a constitutional democracy where the
Constitution, and not Parliament, is supreme as seen in
Article 2. In the Division of Revenue Case, Speaker of
the Senate v Attorney General [2013]eKLR the Supreme
Court held that Parliament must operate under the
Constitution which is the supreme law of the land. The
English tradition of Parliamentary supremacy does not
commend itself to nascent democracies such as ours.
That finding was cited in the subsequent case of Judicial
Service Commission v Speaker of the National Assembly
Laws of Kenya
14
Laws of Kenya
[2014]eKLR where the High Court explained that We

have entered a new constitutional era in which it is the
Constitution which is supreme; in which none of the arms
of government can claim supremacy; and which vests the
High Court with the onerous responsibility of being the
watchdog for the new Constitution. It is in this light that
we must view the question of separation of powers and
the rule of law against the orders issued by the Court in
this matter.
What this means is that judicial review in Kenya cannot
continue on the notion that it is an exercise in the
protection of the will of a sovereign parliament, where
the Constitution, and not parliament, is supreme. The
British traditional Diceyian approach to judicial review,
based exclusively on the British doctrine of parliamentary
sovereignty must therefore be treated with caution.
Judges cannot afford to routinely cite common-law cases
to deny or grant judicial review on the basis of the publicprivate dichotomy.
Moreover, the incompatibility of the common law
with transformative constitutional-ism has also been
the concern of Davis and Klare in Transformative
Constitutionalism and the Common and Customary Law
[11] where they express the apprehension that, the inbred
formalism of the legal culture and the absence of a welldeveloped tradition of critical jurisprudence in stultify
efforts to renovate the legal infrastructure in the way
envisaged by the Constitution. They express the basic
assumption underlying transformative Constitutions:
that the nation cannot progress to social justice with a
legal system that rigs a transformative constitutional
superstructure onto a common law base inherited from
the past.[12] They therefore propose a transformative
methodology informed by the Bill of Rights and
specifically by the constitutional aspiration to lay the
legal foundation of a just, democratic and egalitarian
social order. The transformative methodology would
take a context-sensitive view of the case from the
perspective of all pertinent ethical and socio-economic
considerations[13].
Under the Constitution of Kenya, 2010 judicial review
orders, in our view, are applicable against any private
person, body or authority who exercises a judicial or
quasi-judicial functions by which a right or fundamental
freedom of a person has been or is likely to be adversely
affected.
Consequently, the insistence of the High Court on the
outdated common law public-private notion of power
in judicial review cases, is likely to subvert the theory of
the interpretation of the Constitution and stultify the
transformative ideals of the Constitution. It is also apt to
resound to Prof. Gathiis warning at this point, that the
judiciary must be wary of creating two tracks of judicial
review with one line of cases seemingly decided under
the common-law principles and another line of cases
decided under the constitution of Kenyas principle of
judicial review.
What rightly lies behind the thesis in this paper is the
realization that the classification of functions as public
or private will lead to difficulties because endowing some
cases with procedural protection, derived from Article

47, while denying others any at all would work injustice.
This is especially so when the results of those decisions
raise the same serious consequences for those whose
rights and freedoms are adversely affected, regardless of
the classification of the function in question. It would be
an absurd proposal to say that where for example Article
47 has been breached: by a public body against A and a
private person against B, where both situations involve
the exercise of a quasi-judicial function, that A should
obtain judicial review while B should not.
Conclusion
The traditional jurisprudence of judicial review
restricted the ambit of judicial supervision of procedures
to situations where the functions classified as judicial or
quasi-judicial had been performed by a public authority.
Presently, Article 165(6) gives the High Court the powers
of judicial review over the subordinate courts and over
any person, body or authority exercising a judicial or
quasi-judicial function.
Also the horizontal application of the Bill of Rights
is now well established including in the Limuru Lady
Golfers case Mambo v Limuru Country Club [2014] eKLR.
The Mambo case demonstrates that private entities such
as private members clubs ought to be brought under the
purview of our Courts, and constitutional provisions
infused into the management and affairs of such private
entities where necessary.
Judicial review is no longer a common law prerogative
directed purely at public bodies to enforce the will
of Parliament, but is now a constitutional principle
to safeguard the constitutional principles, values and
purposes. The judicial review powers that were previously
regulated by the common law under the prerogative
and the principles developed by the courts to control
the exercise of public power are now regulated by the
Constitution. Is it conceivable that the traditional practice
of judicial review as the exercise of the will of a supreme
parliament can remain the same whereas Kenyas legal
system has transformed from a parliamentary sovereignty
into a constitutional supremacy? The Constitution of
Kenya, 2010 has rendered the Odumbe case bad law on
the point that private bodies are not amenable to judicial
review. The Odumbe Case would not be decided the same
way today
*The writer is an Advocate of the High Court of Kenya and a
Legal Researcher at Kenya Law.
References
[1] Wade & Forsyth, Administrative Law, 10th Ed, 2009, p3
[2](1803) 1 Cranch 137 at 177; 5 US 87 at 111
[3]CCK v Royal Media Services [2014]eKLR at 359
[4]151
[5] Meriam Webster Dictionary Online last accessed from http://
www.merriam-webster.com/dictionary/quasi-judicial
[6] 6 ESLJ (2008) at 4
[7] Ibid at 357-358
[8] at 206
[9] Vol. 80:1 Tulane Law Review 2006 at pp 72
[10] at para. 26
[11] (2010) 26 SAJHR at 405
[12] Ibid at 411
[13] Ibid at 412
- See more at: http://kenyalaw.org/kenyalawblog/the-constitution-ofkenya-2010-and-judicial-review-odumbe-case/#sthash.3gJwQjMg.dpuf
15

Arbitration as an alternative to Litigation in view

of the New Constitutional dispensation.
By Collins Kiplimo
rticle 159(2) of the Constitution of Kenya, 20101

enjoins the courts in their exercise of judicial
authority to be guided by a set of fundamental
principles. One of these principles which the Constitution
provides is that the courts should be guided by alternative
forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution
mechanisms.
Alternative Dispute Resolution (ADR) is a term
encompassing various dispute resolution mechanisms
with various rules, which parties choose as an alternative
to conventional litigation and fashion to fit their particular
needs. Arbitration is a form of alternative dispute
resolution, a concept that includes an array of procedures
for private resolution of disputes2 . Section 3 of the
Arbitration Act, 19953 defines arbitration agreement as
an agreement by the parties to submit to arbitration all
or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship,
whether contractual or not4.
In recent times, the Kenyan courts have welcomed this
guideline on the use of ADR and have gone ahead to make
land-mark decisions on the use of alternative dispute
mechanisms in resolving disputes. In the case of Republic
vs. Mohammed Abdow Mohamed5, the accused had been
charged with murder. He was arraigned in court on 16th
November 2011 and pleaded not guilty to the charge.
Counsel for the State proceeded on the instructions
of the Director of Public Prosecutions to make an
oral application in court to have the matter marked
as settled. He cited Article 159 (1) of the Constitution
which allows the Courts and Tribunals to be guided by
alternative dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution
mechanisms. He urged the court to consider the case as
sui generis as the parties had submitted themselves to
traditional and Islamic laws which provide an avenue
for reconciliation. He stressed that each of the parties
was satisfied and felt adequately compensated. After
considering submissions from the State Counsel, Justice
R. L. Korir allowed the application and discharged the
accused.
It is encouraging that the courts are willing to accept and
enforce these alternative methods of dispute resolution.
However, courts can only admit to discharge cases before
it to be adjudicated by the various alternative dispute
1
The Constitution of Kenya promulgated on 27th August
2010.
2
Steven C. Bernett, Arbitration: Essential Concepts, ALM
Publishing, 2002.
3
Act No 4 of 1995 Laws of Kenya (Cap. 49). This Act was
assented to on 10th August 1995 and came into force on 2nd January
1996. It repealed and replaced the 1968 Act.
4
This definition is adopted word for word from the United
Nations Commission on International Trade Law (UNCITRAL)
Model Law 1985 (Article 7(1))
5
Criminal Case No. 86 of 2011[2013 eKlr]
resolution mechanisms subject to

article 159(3) of the Constitution,
which provides that the forms of
alternative dispute mechanisms
are only applicable if they are not be used in a way that;
(a)
contravenes the Bill of Rights,
(b)
is repugnant to justice and morality or results

in outcomes that are repugnant to justice or
morality; or
(c)
is inconsistent with the Constitution or any

written law.
High Expenses in Conventional Litigation

Litigation is the traditional form of dispute resolution
based on taking action through the courts. A judicial
officer sits and listens to arguments on the interpretation
of the relevant law as applied to the particular dispute
and then makes a decision as to who wins and who loses6.
The main point of litigation is that the courts are concerned
strictly to the law of the land, down to the finest detail. Unlike
with many non-court dispute resolution methods, a judge
normally has little flexibility to consider what might be
fair treatment between the parties.
For a long time, the Kenyan judicial system, as most
common law systems, has been perceived to be partiescentered. The courts are resolving disputes presented
by parties directly involved between themselves in
adversarial proceedings. This approach encompasses the
approach where the loser is penalized whereof cost orders are
issued against him. Safeguards of litigation are therefore
restricted in that litigants feel that they are unprotected.
The old constitutional framework also lacked the
appropriate remedies to counter this.
The greatest barrier to litigation is the expenses parties
incur. More often, individuals with very valid claims are
prevented from going to court because of lack of capacity
to bear the requisite expenses for judicial enforcement of
their rights7.
Fundamental Principles
Processes In Kenya
Governing
Arbitration
Arbitration is a formal and binding process where the

dispute is resolved by the decision of a nominated third
party, the arbitrator. Arbitration processes are governed
exclusively by Arbitration Act8. The Act underlines key
fundamental principles of Arbitrations. These principles
6
The proceedings are exercised by the judicial officers according to their jurisdiction and power in respect of both criminal and civil
matters.
7
Busalile Jack Mwimali, Judiciary Watch Report, Public Interest Litigation and the Judicial Enforcement of Socio-economic Rights
under the New Constitution; The Kenya Section of the International
Commission of Jurists, 2011.
8
Chapter Number 49, Laws of Kenya.
Laws of Kenya
16

bring out the advantages and effectiveness of adopting

arbitration processes as an alternative form of dispute
resolution mechanism9.
1.
Party Autonomy
Arbitration is a consensual process. By mutual consent,

parties agree to refer their disputes to arbitration.
While the matter is with the arbitration tribunal, parties
still retain significant control over the conduct of the
proceedings10.
2.
Neutrality and Equality
One of the fundamental principles of arbitration process

is the freedom given to the parties to choose and appoint
an arbitrator of their choice. This promotes the principle
of neutrality and equality in the conduct of arbitral
proceedings11.
3.
Non-intervention by court
One of the reasons for the repeal of the 1968 Arbitration

Act was to codify the principle of non-intervention by
the court in arbitral proceedings. The current Arbitration
Act at section 10 has cemented this principle. It provides
thus; no court shall intervene in matters governed by the
Arbitration Act12.
4.
7.
Kompetenz-kompetenz
This principle provides that the arbitral tribunal may rule

on its own jurisdiction including ruling on any objectives
with respect to the existence or validity of the arbitration
agreement. Although arbitration rulings and judgments
are subject to appeal, this principle ensures that less time
is wasted in applications to the court on questions of
jurisdiction16.
Conclusion
Arbitration is probably the best known form of private
dispute resolution. It is a formal and binding process
where the dispute is resolved by the decision of a
nominated third party, the arbitrator or arbitrators.
The most unique characteristic about arbitration is that
it is built on the basis of an acceptance and agreement
of all the parties in case of any disagreement among
them. Further, arbitration is an informal process which
proceeds in a manner conforming to justice, equity and
good conscience, unlike courts of law which are put into
a straight jacket of fixed procedure and rules of evidence.
Flexibility
Arbitral proceedings are very flexible. Parties are able

to agree on the time within which proceeding are to be
filed or amended. This form of dispute resolution allows
pleadings to be taken in different forms. These include
letters and statements of the case.
For more technical disputes, parties may opt to put their
case in a narrative form and attach all the documents
they will be relying on to prove their case13.
5.
Finality of Awards
Section 32A of Arbitration Act provides that an award

given is final and binding upon the parties. Unless parties
agree otherwise, arbitral awards are final and binding on
the parties. Although parties have a right to appeal against
the award, the arbitral awards are deemed to be final and
binding.
Only questions of law can be entertained by the High
Court at appeal
6.
Enforceability
Arbitration awards would be useful only if they are

enforceable under the Arbitration Act. The High Court
of Kenya will recognize an award for enforcement unless
the exceptions stipulated at sections 3714 of the Act exist15.
9
Githu Muigai, Arbitration Law and Practice in Kenya; Law
Africa 2011.
10
Section 11 of Arbitration Act, Cap. 49 Laws of Kenya.
11
12
13
Section 20(1) of Arbitration Act, Cap. 49 Laws of Kenya.
14
The section enumerates seven grounds on which an arbitral
award can be excepted from enforceability.
15
Laws of Kenya
16
Laws of Kenya
17
LEGISLATIVE UPDATE: Synopsis of

Bills and Acts of Parliament
By Christian Ateka and Yvonne Kirina (Laws of Kenya Department)
A) NATIONAL ASSEMBLY BILLS

1. Public Audit Bill, 2014
Kenya Gazette Supplement No. 162 (National Assembly Bills
No.38)
The principal purpose of this Bill is to provide for the functions
and powers of the Office of the Auditor-General in accordance
with the relevant provisions of the Constitution. The Bill affects
both national and county governments in terms of accountability
in managing and usage of public finances. The Bill seeks to
repeal the current Public Audit Act, 2003 (No. 12 of 2003) once
enacted into an Act of Parliament.
2. Public Procurement and Asset Disposal Bill, 2014
Kenya Gazette Supplement No. 164 (National Assembly Bills
No.40)
The main objective of this Bill is to give effect to Article 227
of the Constitution which requires establishment of a legal
framework within which policies relating to procurement and
asset disposal are to be implemented and to provide procedures
for efficient public procurement and for assets disposal by public
entities. The Bill affects both national and county governments
in terms of public procurement of services and asset disposal.
The Bill seeks to repeal the current Public Procurement and
Disposal Act, 2005 (No. 3 of 2005) once enacted into an Act of
Parliament.
3. Constitution of Kenya (Amendment) Bill, 2015
Kenya Gazette Supplement No. 2 (National Assembly Bills No.1)
The principal objective of the Bill is to amend Articles 101(1),
136 (2)(a), 177 (1)(a) and 180 (1) of the Constitution of Kenya by
changing the existing date for the general election for members
of Parliament, the President, members of County Assemblies
and the county governors and deputy county governors from
second Tuesday of August in every fifth year to third Monday
in December in every fifth year.
B) SENATE BILLS
1. Community Land Bill, 2014
Kenya Gazette Supplement No. 147 (Senate Bills No. 38)
The Bill gives effect to Article 63(5) of the Constitution. It
provides for the recognition, protection, management and
administration of community land; establishes and defines
the functions and powers of Community Land Boards and
management committees and provides for the power of county
governments in relation to unregistered community land. The
Bill makes provision for community land which is found within
counties. It further provides for the relationship between the
comrnunity land owners and the county governments.
2. Office of
the
County
Printer
Bill,
2014
Kenya Gazette Supplement No. 158 (Senate Bills No. 42)
The principal object of this Bill is to establish the office of
the county printer in each of the forty-seven counties. The
establishment of this office is necessitated by the provisions of
the County Governments Act, 2012 which makes reference to
publication of Bills, Acts and other documentation in a county
gazette. The Act does not however provide for the establishment
of the Office of a County Printer that would publish such gazettes.
This Bill therefore seeks to give full effect to the requirement for
the publication of county gazettes.
C) ACTS
1. Statute Law (Miscellaneous Amendments) Act, 2014
Kenya Gazette Supplement No. 160 (Acts No. 18)
This Act amends various Acts of Parliament including:
Interpretation and General Provisions Act (Cap. 2); Advocates
Act (Cap. 16); Criminal Procedure Code (Cap. 17); Prisons Act
(Cap. 90); Retirement Benefits Act (Cap. 197); among others.
2. SecurityLaws (Amendment) Act, 2014*
This Act amends various Acts of Parliament relating to security.
Some the Acts amended include: Public Order Act (Cap. 56);
Penal Code (Cap. 63); Criminal Procedure Code (Cap. 75);
Extradition (Contiguous and Foreign Countries) Act (Cap. 76);
Evidence Act (Cap. 80); Prisons Act (Cap. 90); Registration of
Persons Act (Cap. 107); among others.
*NOTE: On 23rd February, 2015 the High Court of Kenya
ruled that several sections of the Security Laws (Amendment)
Act 2014 were unconstitutional.
3. Physiotherapists Act, 2014
This Act makes provision for the training, registration and
licensing of physiotherapists, regulates their practice and
provides for the establishment, powers and functions of the
Physiotherapy Council of Kenya. The Act commenced its
operation on 14th January, 2015.
4. Law Society of Kenya Act, 2014
This Act seeks to establish the Law Society of Kenya; to provide
for the objects and conduct of the affairs of the Society; to provide
for the establishment of the Advocates Client Compensation
Fund; among other objectives. The Act, which commenced its
operation on 14th January, 2015 also repealed Law Society of
Kenya Act (Cap. 18).
18
Laws of Kenya
5. Kenya National Qualifications Framework Act, 2014

Kenya National Qualifications Framework Act seeks to establish
the Kenya National Qualifications Authority; to provide for the
development of a Kenya Qualifications Framework and for
connected purposes. The Act commenced its operation on 14th
January, 2015.
6. Scrap Metal Act, 2015
scrap metal and provides for the establishment of a Scrap Metal

Council. Further, this Act repeals the Scrap Metal Act, 1962
(Cap. 503). It commenced its operation on 23rd January, 2015.
DIGEST OF RECENT LEGAL SUPPLEMENT ON
MATTERS OF GENERAL PUBLIC IMPORTANCE
This article presents a brief summation of Legislative
Supplements published in the Kenya Gazette on matters of
general public importance. The outline covers a period between
14th November, 2014 and 30th January, 2015.

This Act makes provision for the regulation of dealings in
DATE OF PUBLICATION
L E G I S L A T I V E CITATION
SUPPLEMENT NUMBER
14th November, 2014.
The Energy (Energy

Regulatory Commission
Petroleum Levy) Order,
2014.
157
L.N. 157/2014
5th December, 2014.
161
The Tobacco Control

Regulations.
L.N. 169/2014
23rd January, 2015.
173
The Insurance (Amendment)

Regulations, 2014.
L.N. 178/2014.
The legislation is issued under

section 111(1) of the Energy Act,
2006. It basically provides for a
levy which shall be used to finance
operations of the Energy Regulatory
Commission.
These regulations are issued
under the Tobacco Control Act.
The regulations provide for
guidance when manufacturing,
selling, distributing, importing and
packaging tobacco products.
This legislation amends the
fifteenth schedule to the Insurance
Regulations by deleting and
replacing percentages.
PREFACE
19

The Kenya Law Android app
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Marketing & Communication Department

Kenya Law partners with Kenyatta University
School of Law - The 3rd All Kenyan Moot Court
Competition
By Emily Nakhungu
enya Law partnered with

Kenyatta University, School
of Law, to realize the 3rd All
Kenyan Moot Court Competition (AKMCC) held at their
Parklands School of Law Moot court facility on 20th and
21st February 2015. Kenya Law offered the expertise of
two senior Law reporters Ms. Linda Awuor and Ms. Njeri
Githanga to be judges at the Moot Court. Kenya Law also
donated copies of the Supreme Court Case Digest, pocket
size Constitutions and promised to publish the winning
papers from the winners of the competition.
Professor Yash Pal Ghai, a constitutional law expert and
the Director of Katiba Institute was the Chief Guest. Other
dignitaries included the Kenyatta University Deputy
Vice Chancellor, Academic affairs Prof. John Okumu
who represented Prof. Olive Mugenda, Vice Chancellor,
Kenyatta Univerity. Others included representatives
from UNHCR, Transparency International and various
Law firms. Also present was Mr. Longet Terer, the Ag.
CEO, Kenya Law.
In his opening remarks, Mr. Terer commended the

AKMCC secretariat for organizing such an important
event and challenged the participants to utilize the
opportunity of the moot competition to further develop
their advocacy skills. He assured Kenyatta University
School of Law of the the continued partnership and
support of Kenya Law.
The 2015 competition was themed The Place Of Refugee
rights in the Face of National Security Threats and hosted
more than 17 teams from 8 Law Faculties across Kenya.
Strathmore University was crowned the best team.
The AKMCC is an annual national moot court
competition hosted by the Kenyatta University School of
Law (KUSOL) and involving all Law Schools in Kenya.
The competition focuses mainly on contemporary issues
of law and is set to become one of the largest annual
gatherings in the Kenyan legal calendar.
Mr. Longet Terer, the Ag. CEO Kenya Law gives a speech during the All Kenyan Moot Court
Competition
heldJanuary
at the Kenyatta
University School Of Law Parklands on 21st Feb 2015.
BB
Issue 28,
- March 2015
21
Beyond Zero Campaign Second Marathon

By Jannete Watila
n January 2014, the Beyond Zero Foundation was

formed to partner with the government in reducing
maternal and child mortality. Spearheaded by The
First Lady of the Republic of Kenya, Her Excellency
Margaret Kenyatta, the Beyond Zero Campaign is part
of the initiatives outlined in her strategic framework
towards HIV control, promotion of maternal, new born
and child health in Kenya.
In this respect, Kenya Law staff participated in the 2nd
Edition of the Beyond Zero Marathon that was held
on March, 8, 2015 a day which was also marked as the
International Women Day. This

was in line with the Kenya Laws
value of caring for each other not
only at the organisations level
but in the entire community,
particularly the disadvantaged expectant mothers who
cannot afford the basic maternity services.
Kenya Law is proud to be associated with the mission of
Beyond Zero campaign.
HR Department
22
I.C.T Department
Privacy, Ethics and Analytics

By Martin Andago, Team Leader, I.C.T
he term analytics refers

to the use of information
technology
to
harness
statistics, algorithms, and other
tools of mathematics to improve decision-making. A
wide variety of organizations use analytics to convert
data to actionable knowledge.
Analytics represent a change from the longstanding
approaches to management that often rely on instinct and
largely are unsupported and undocumented. Analytics
permit corporate decision-making to be driven, assessed
and tested by the use of data.
In the past, many corporate decisions, even the majority
in some settings, were undocumented and managed by
executives through reliance on their instincts. Despite
all the information available, most companies faced
significant limitations with their ability to manipulate,
process, and learn from data. Today, the analytical process
permits the decision-making process to be driven by the
use of data. It seeks to document opaque processes and
to replace conventional wisdom, if wrong, with tested
approaches. As one CEO put it, In God we trust; all others
bring data.
Businesses use software tools such as Google Analytics,
Omniture, WebTrends and Clicktracks to track traffic
to their websites. They use these tools to determine who
visits their sites, when they visit, how long they stay and
what they view during their stay on the site. All of this
data falls under the term web analytics. All companies,
especially smaller firms, must be aware of the ethical
implications that come with handling such sensitive data.
Ethical Concerns
Imagine if surveillance cameras tracked your every move.
Imagine if computers recorded every single purchase you
made at every store you visited. Just as these cameras and
computers can track a persons movements in the real

world, Internet servers can do the same for a persons
web browsing habits. Small business managers, marketers
and database administrators can feel the pressure to use
this data in unscrupulous ways in order to increase their
revenues.
Web Analytics Code of Ethics
The Web Analytics Code of Ethics emphasizes five points
when dealing with customer data: keep sensitive consumer
data private; encourage full disclosure of consumer data
collection and usage practices; inform consumers on ways
to opt out of data collection practices; educate clients on
the possible risks to consumers associated with collecting
sensitive data; and uphold the consumers right to privacy
as specified by clients and the law.
Ethical Behavior
Industry experts recommend that organizations employ
the practices outlined in the Ethics Code to protect
their customer data. Business websites must display the
companys privacy policies, especially if they carry out
online transactions. Companies must make clear to the
user how they employ sensitive data and give customers
the choice to opt-out of any online marketing efforts.
They must also make efforts to keep transactional data,
such as credit card information, on a private and secure
server.
In which ways is Digital Analytics good?
1. People as well as companies looking to be happy and
financially successful set goals and control them. Defining
KPIs and measuring if you are on track is the very nature
of Digital Analytics. Digital Analysts make reaching goals
easier. Of course, they can hardly influence whether these
goals are ethically good or not.
2. Digital Analytics helps website owners/companies
23
create value by reducing costs and increasing revenue.

This value created, like in the case of the consultant that
helps streamline processes, can be used in ways that make
people happier.
find out through your on-site search reports that your

website visitors want yellow shoes and then offer these
shoes in a more prominent spot, your visitors will have a
better time on your website.
3. Digital Analytics creates value for all internet users by

helping to improve website usability and content, and
making websites, apps etc. more customer-centric. If you
A Golden Day
I Found you and I lost you,
All on a gleaming day.
The day was filled with sunshine,
And the land was full of May.
A golden bird was singing
Its melody divine,
I found you and I loved you,
And all the world was mine.
I found you and I lost you,
All on a golden day,
But when I dream of you,
dear, It is always brimming May.
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I.C.T Department
24
Cases
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Reporting (Kenya Law) - A service state corporation in the Judiciary
25
The Supreme Court Cases

Bungoma Senator found culpable of committing an election offence of bribery during the
2013 general elections
Moses Masika Wetangula v Musikari Nazi Kombo and another
Supreme Court of Kenya
Petition 12 of 2014
Mutunga CJ, P Rawal DCJ, Tunoi, Ibrahim, Ojwang SCJJ
March 17, 2015
Reported by Andrew Halonyere
Brief facts
The appellant filed his petition of appeal to the Supreme
Court contesting the Judgment of the Court of Appeal
which upheld the decision of the High Court (Gikonyo,
J). In particular, the appellant contented the finding that
he had committed the election offences of bribery and
treating of voters during the 2013 general elections.
Issues
i.
Whether the Supreme Court had jurisdiction

to hear and determine an appeal emanating
from proceedings which were allegedly a nullity
by reason of having been instituted out of the
prescribed time limit set out under article 87(2)
of the Constitution of Kenya, 2010.
ii.
Whether an election Court in determining

election offences, may exercise a criminal
jurisdiction.
iii.
Whether the election court had jurisdiction to

delegate judicial duties to the Deputy Registrar or
any officer of the Court, to carry out an inquiry,
scrutiny or recount of votes.
iv.
Whether proof of commission of an election

offence by a candidate is a basis for the Court to
disqualify that candidate from future elections.
Electoral law Criminal jurisdiction - appeal appeal from

a decision of the Court of Appeal on a finding that the appellant
had committed election offences of bribery whether an election
Court in determining election offences, may exercise a criminal
jurisdiction - whether proof of commission of an election offence
by a candidate is a basis for the Court to disqualify a candidate
from future elections Election Act section 64, 72(1)), 87
Constitutional law jurisdiction appellate jurisdiction of
the Supreme Court in electoral matters - whether the Supreme
Court had jurisdiction to hear and determine an appeal
emanating from proceedings which were allegedly a nullity by
reason of having been instituted out of the prescribed time limit
set out under article 87(2) Constitution of Kenya, 2010 article
1(3), 87(2), 159
Electoral law scrutiny / recount of votes where the election
Court had delegated the duty of scrutiny / recount of votes to the
Deputy Registrar - whether the election court had jurisdiction
to delegate judicial duties to the Deputy Registrar or any officer
of the Court, to carry out an inquiry, scrutiny or recount of
votes.
Held
1. The Supreme Court had jurisdiction to determine
the appeal. That however, did not dispose of the
preliminary duty that fell on every Court before
delving into the disputed questions to ascertain
that it had the jurisdiction to entertain the matter.
Although the dispute resolution mandate by the
terms of the Constitution in articles 1(3) and 159
fell to the Judiciary, its due discharge required
the proper ascertainment of jurisdictional
competence, before any segment of the Judiciary
entered upon its task.
2. Whether or not the High Court had jurisdiction
in respect of the electoral-governance issues
raised, was primarily a constitutional question
entailing the interpretation or application of the
Constitution, and by article 163(4)(a) thereof,
appeals would lie from the Court of Appeal
to the Supreme Court as of right in any case
involving the interpretation or application of the
Constitution.
3. A Courts jurisdiction flows from either the
Constitution or legislation, or both. Therefore, a
Court of law could only exercise jurisdiction as
conferred by the Constitution or other written
law. It could not arrogate to itself jurisdiction
exceeding that which was conferred upon it by
law.The Supreme Courts jurisdiction was defined
in the Constitution particularly in article 163(3).
4. The legal principle in the Joho case gave no
basis for impugning the legality of the High
Court petition. That by no means recants the
Joho principle on electoral time lines. It is but a
statement on the facts of the instant case, that the
ascertainment of critical moments in an election
process is vital in the count of time. The Supreme
Court was unable to make a finding that the
petition before the High Court was filed outside
the period of 28 days allowed by the Constitution.
Moreover, the larger interests of justice, and the
safeguard of those processes which attend the
expression of the electoral will, dictate in the case
that the propriety of the petition be recognized.
5. An election petition is a suit instituted for the
purpose of contesting the validity of an election,
or disputing the return of a candidate, or claiming
Cases
26
Cases
that the return of a candidate was vitiated on the
grounds of lack of qualification, corrupt practices,
irregularity or other factor. Such petitions rest on
private political or other motivations, coalescing
with broad public and local interests, they teeter
in their regulatory framework from the civil to
the criminal mechanisms and they cut across a
plurality of dispute settlement typologies.
6. The overriding objective of the Elections Act was
to functionalize and promote the right to vote.
That required a broad and liberal interpretation
of the Act, so as to provide citizens with every
opportunity to vote, and to resolve any disputes
emanating from the electioneering process.
The primary duty of the election Court was
to give effect to the will of the electorate and
consequently, the Court was to investigate
the nature and extent of any election offence
alleged in an election petition. Accordingly, the
happenings that touched on the due conduct
of the election process came as proper items of
agenda in the tasks of an election Court.
7. The proceedings before an election Court were
neither criminal nor civil. While the election
Court had the competence to look into offences
that were criminal in nature, such as bribery and
treating of voters, its inquiries on the relevant
instances of election offence did not constitute a
criminal trial, with its dedicated procedures and
safeguards.
8. Election petitions fall neither within the realm
of civil law nor that of criminal law. However,
the legal framework for electoral dispute
settlement conferred upon the Court a quasicriminal jurisdiction which was not part of the
established criminal code. Being derived from the
fundamental elements of the criminal law, which
imposed strict penalty in respect of prohibited
acts, and which was attended with established
trial safeguards, such quasi-criminal offences as
were provided for in the electoral law, too, were
required to be strictly proved, as a basis for any
penal consequences.
9. Bribery is an electoral offence. It is also a criminal
offence in ordinary life. Being such, proof of the
same must be by credible evidence and nothing
short of proving this offence beyond reasonable
doubt will suffice. There is no distinction
between bribery in a criminal case and one in
an election petition. Bribery involves offering,
giving, receiving, or soliciting of something of
value for the purpose of influencing the action of
the person receiving. Under the Act, bribery is
an election offence under section 64 and both the
giver and the taker of a bribe in order to influence
voting are guilty of the offence upon proof. On
account of this quasi-criminal aspect of bribery
in elections, the offence is to be proved beyond
any reasonable doubt. The petitioner has to
adduce evidence that is cogent, reliable, precise
and unequivocal, in proof of the offence alleged.
10. The offence of bribery is cognizable. A person

alleged to have committed it is liable to arrest
without warrant. That illustrates the gravity of the
offence and signals, that a high standard of proof
was required. Accordingly, an allegation that an
election offence had been committed had to be
specific, cogent, and certain. That requirement
guaranteed the right of fair trial for the persons(s)
against whom such allegations were made.
11. Election petition proceedings are not part of the
normal criminal process, it was not appropriate
for the appellant to invoke the regular scheme
of the criminal trial, with its strict substantive
and procedural safeguards for the rights of the
accused. Such rights and safeguards include the
right to silence. That did not apply in relation to
the quasi-criminal offences attached to election
proceedings.
12. Since the other accused person (Mr. Khangati)
was not called to defend himself, the appellant
could not avoid liability as determined by the
trial Court, only because an alleged co-accused
had not been present in the election dispute
proceedings.
13. The Supreme Court took judicial notice of the
centrality of elections in the functioning of
established governance bodies, as signaled by the
Constitution in both general and specific terms.
On that principle alone, a party found on fact
to have befouled the electoral process could not
maintain an argument that his or her offence
might not be declared, save alongside that of
other parties. Each of such offences stood to be
adjudicated upon in its own time, and when the
relevant party was the subject of election-dispute
proceedings. Consequently, after considering the
record of fact and the findings of the trial Court,
as appraised by the Appellate Court, ought to
recognize that the appellant had been involved in
the offences in question.
14. The Elections Act recognized that an election
offence had the trappings of a crime at large and
stood to be further prosecuted within the realm
of the general criminal law hence the provision
of section 87(1) of the Act, that in addition to
any other orders, a report had to be sent to the
Director of Public Prosecutions, who would
then act within the criminal law process. The
reference to the DPP, apparently, was by no
means compromised by a principle such as double
jeopardy. Double jeopardy as a principle, while it
had a proper place in criminal law, was inapposite
in the domain of election petitions which are the
subject of detailed statute law. Hence a finding
by an election Court could not be subsequently
raised as a shield when a party had to answer to
criminal charges in the ordinary sense.
15. Section 83 of the Elections Act empowered
the election Court to declare an election to be
valid or invalid, following an election petition
on the basis of certain conditions. The Court
27

could not appear to condone illegality in the

election process and would therefore investigate
any alleged breaches of the law even where
those were not in the pleadings but arose in
the course of the trial. The office of Director of
Public Prosecutions becomes relevant, insofar
as evidence of general offence might emerge in
election petition proceedings and the Court had
the duty to forward that information for further
investigations, and possible criminal charges.
The election Court, thus, affords the criminal
prosecution office a special opportunity to take
up the relevant matter for possible criminal trial.
16. The Election Courts is a source of relevant
information for a possible criminal trial but
whether or not such trial took place, fell to the
prosecutorial discretion of the Director of Public
Prosecutions. Such a scenario by no means turn
the election Court into a criminal Court, and
hence does not amount to a subjection of the
affected party to double jeopardy
17. Election proceedings which are of a sui generis
nature do not fall in the category of trial for an
offence and so would not attract the defence
of double jeopardy. The appellant was not able
to demonstrate that the proceedings before the
election Court led to either a conviction or an
acquittal.
18. Notice of charges as it applied in criminal trial
safeguards, did not require to be replicated in
a sui generis cause such as an election dispute.
For offences cited before an election Court, the
nature and extent of required notice would be
dependent on the facts and circumstances of each
case.
19. An election Court would quite properly proceed
and subject a party found culpable, to the specified
sanctions set out under section 67(1) of the
Elections Act, 2011, but it should be clear that even
though the election Court had the competence
to deal with such offence of criminal character,
the trial process itself was not criminal, and
remained one of its own kind. The offences were
acted upon within the parameters of the election
law, rather than of the Criminal Procedure Code
or the Penal Code . Penalty against the person
found culpable, in that regard, was for befouling
the solemn electoral expression of the people.
20. A distinguishing factor between the trial of
electoral offence and that of the ordinary criminal
offence with its special safeguards, is that the
latter required proof beyond any reasonable
doubt, in the context of prescribed safeguards
for the accused, whereas the former, though
requiring strict proof, did not run alongside such
protective arrangements. All that was required
was that the Court be convinced that proof
had been effected beyond doubt. The penalties
in respect of election offences were also of a
special character, being contingent on actions
by the Independent Electoral and Boundaries
Commission disqualifying the culprit from

participation in elections (the Elections Act,
2012, Section 72(1)). And the precise remedy
deliverable by the Court itself was annulment of
the election in question.
21. The election Court may send a report to the
Director of Public prosecutions to initiate
substantive criminal trial in respect of a culpability
that originates from election proceedings. So
the penalty meted out at the election Court
was to be regarded as confined to the wrong of
undermining the electoral voice of the citizens.
Therefore the finding of the appellant as culpable
for election offences by the election Court, and
confirmed by the Court of Appeal, could not be
said to have violated the appellants rights under
the Constitution.
22. There was nothing wrong with the election
Court directing the Deputy Registrar or any
officer of the Court to carry out an inquiry,
scrutiny or recount. As long as that was carried
out in the presence of the parties representatives
and in accordance with the directions and under
the superintendence of the election Court, such
an exercise was as good as one carried out by
the election Court itself. After all, one could not
expect a Judge to recount the votes himself. That
would take a long time and probably impinge
on the timelines set in the Constitution for the
disposal of election petitions. While such an
exercise was being carried out, the Judge could
go on with the rest of the hearing thus expediting
the hearing.
23. It was not an alien practice for a trial Court to
direct the Deputy Registrar, who was part of the
senior administrative personnel of the Court,
to assist in gathering evidence. The Supreme
Court in the Raila case, suo motu, ordered the
Registrar of the Court to carry out a scrutiny of
Forms 34 used in the Presidential votes count
from different polling stations in the country.
The scrutiny was for the purpose of getting a
sampling on registered voters, valid votes cast,
and rejected votes.
K Rawal (DCJ) concurring opinion.
24. Form 38 was the deciding factor in the Joho, Mary
Wambui, Aramat and Lisamula cases. As such, any
allegation of delay ought to have been considered
and determined using Form 38. In the absence
of that Form on record, the Supreme Court had
insufficient factual and evidential material as a
basis for ascertaining jurisdiction. The principles
laid out by the Supreme Court in the Joho case
ought to guide the lower Courts in determining
the question of the validity of an election petition.
The trial Court ought to ensure that critical
items of evidence such as Form 38 were placed
before it, properly evaluated, and the relevant
determination made. The Independent Electoral
and Boundaries Commission should also produce
a copy of Form 38 where a dispute regarding the
Cases
28
Cases
filing of the petition arose. That duty was linked
to the Commissions constitutional obligation
under article 88(4) of the Constitution to conduct
and supervise elections for any elective body or
office established by the Constitution.
25. Disqualification of a person from the electoral
process, upon a finding of guilt, could only
be made pursuant to articles 99(2) (g) and (h),
99(3) of the Constitution, and section 24 of the
Elections Act, and could only be effected after the
completion of an appellate process on the charge
in question, and not before. The provisions of
article 99 and Section 24 specifically of article
99(2) (g) and 99 (2) (h)) were incapable of a
complex interpretation process and, clearly
appear to govern the process of disqualification
at the time of nomination, and of registration
as a candidate for the election. They affect the
nomination of persons, and the clearance of those
persons by the electoral Commission to contest
the seat for Member of Parliament. Article 99 and
section 24 thus cover pre-existing (at the time of
registration) and supervening (at the time of the
election) grounds for disqualification.
26. While it has been urged that every person has
the right to contest in an election, in the terms
of article 38 of the Constitution that right is not
unlimited. Justifiable and reasonable limitations,
such as those set out under articles 24 and 99 of
the Constitution were clearly applicable.
27. It is an indelible principle of law that the
proceedings before an election Court are sui
generis. They are neither criminal nor civil. The
parameters of that jurisdiction are set in statute
(the Elections Act). As such, while determining an
election matter, a Court has to act only within the
terms of the statute as guided by the Constitution.
28. An Election petition was not an action at
Common Law, nor in Equity. It was a statutory
proceeding to which neither the Common Law
nor the principles of Equity applied but only those
rules which the statute made and applied. It was a
special jurisdiction, and a special jurisdiction had
to be exercised in accordance with the statute
creating it. Concepts familiar to Common Law
and Equity have to remain strangers to election
law unless statutorily embodied. A Court has
no right to resort to them on considerations of
alleged policy because policy in such matters as
those relating to the trial of election disputes is
what the statute lay down.
29. Section 62 lay out the offence of treating, specific
to a candidate. Section 64 on the other hand lay
out the ingredients for the offence of bribery, also
specific to candidates. While those two sections
defined the ingredients of the cognizable offences
of treating and bribery, section 67 prescribed
the sentences for those offences. Sections 62
and 64 needed to be read together with section
67, in order to complete the components of the
offences. The specific mention of candidate in
Sections 62 and 64, had a direct bearing on the

provisions of Section 87 of the Elections Act,
which stipulated under what circumstances after
determination of the election petition the Court
would make a report to the Director of Public
Prosecutions, the Electoral Commission, and the
relevant Speaker of the Parliamentary Chamber.
30. While the Elections Act created election offences,
and prescribed punishment upon a finding of
guilt, it neither delineated the trial forums nor
prescribed the procedure to be followed when
the report was handed over to the Director of
Public Prosecutions. An accused person ought
not to be subjected to double jeopardy. Section
87(1) was unclear, insofar as it signaled the
possibility of a re-trial, within the criminal
process, that ambiguity ought to be clarified
through legislation.
31. An election Court might make a finding after
a careful evaluation of the evidence, that an
election offence has been committed. The
burden and standard of proof in the instance
(election offences) was well established by the
Supreme Court [See the Raila Odinga (para 203)
and Outa cases]. Once that was established
within the mechanisms of an election Court,
which were not equivalent to those of a criminal
trial, the inevitable remedy by the Court was
the nullification of the election in question, and
the handing over of a report to the Office of the
Director of Public Prosecutions for any further
action.
32. The Constitution, and the Supreme Court Act,
2011 charge the Supreme Court with the task
of developing an indigenous jurisprudence, and
declaring the law with clarity. The legislature
bears an equal obligation. The complexity of
the process of hearing and determining cases of
electoral offences is all apparent; the Legislature
should reconsider section 87 of the Elections
Act and clearly delineate the manner in which
the office of Director of Public Prosecutions
acts on the report by the Court giving the name
and details of persons found guilty of electoral
offence(s).
33. Obiter
a. I am aware that other countries with
elaborate Constitutions such as ours
have undertaken legislative action to
remedy complexities and ambiguities
in the electoral law. India for instance,
undertook legislative action to simplify
the classification of election offences
such as corrupt practices. In addition,
certain offences such as bribery and
undue influence were incorporated into
the Indian Penal Code (Chapter IXAOffences Relating to Elections). The
Indian Penal Code classifies the offence
of bribery as non-cognizable, bailable and
triable by Magistrate of the first class. As
29

is the practice in India, Parliament should

classify the various electoral and criminal
offences, the resultant convictions, and
how such convictions affect the status of
a person in contesting an elective post.
Parliament should also revise the Penal
Code to incorporate offences relating to
elections and which ought to be tried in a
criminal Court.
b. There is a serious gap in legislation,
and I recommend that the office of
the Hon. Attorney General, and the
Kenya Law Reform Commission should
consider and attend to this matter with
the expedition it deserves. Part VI of the
Elections Act and the Penal Code should
be reconsidered and re-formulated,
adopting best practices from other
jurisdictions such as India, so as to ensure
the creation of a seamless process in the
electoral and penal laws.
iii.
The finding of the Court of Appeal as regards

disqualification of the appellant as an election
candidate quashed.
iv.
In accordance with Section 87(1) of the Elections Act,

2011 (Act No.24 of 2011) [Rev. 2012], the Registrar
of the Supreme Court, by proper form, shall serve a
report of the commission of the election offence of
bribery by the appellant herein, upon the Director
of Public Prosecutions; the Independent Electoral
and Boundaries Commission; and the Speaker of the
Senate.
v.
Apportionment of costs by the Court of Appeal upheld.
vi.
As regards costs before the Supreme Court, the parties

shall bear their own respective costs.
vii.
The Judgment to be brought to the attention of

the Attorney-General, the Kenya Law Reform
Commission, and the Speakers of the two Chambers
of Parliament, for information, and to the intent that
re-formulated legislation be considered, delimiting
the respective mandates of the election Court and
the ordinary criminal Court, with due attention paid
to the issues of jurisdiction for the different Courts
adjudicating upon the two sets of matters.
Orders
i.
The contest to the election Courts jurisdiction in

Bungoma High Court Election disallowed.
ii.
The finding of the Court of Appeal in Kisumu as

regards the commission of an electoral offence, upheld.
Supreme Court allows withdrawal of the application by Council of Governors that

sought to bar the Senate from summoning their members
Council of Governors v Senate & another
Reference No. 1 of 2014
Supreme Court of Kenya at Nairobi
Mutunga, CJ & P and Ibrahim, SCJ
December 8, 2014
Reported by Phoebe Ayaya & Kipkemoi Sang
Brief Facts
The applicant filed a reference seeking an advisory opinion
on various issues including the question as to whether the
Senate could summon a Governor to personally appear
before the Senate or a Committee of the Senate to answer
questions on county public financial management
Subsequently, the applicant made an application for
leave to amend the reference. Leave was granted but the
amendment was not done. An oral application for stay of
proceedings was then made, pending the judgment of the
High Court in a matter that was canvassing a similar issue
as the one before the Supreme Court. The applicant was
ordered to formally apply for stay but the applicant did
not.
As a result of favourable orders in the High Court, the
applicant then sat back and waited until the 1st interested
party filed a preliminary objection, and the matter was
listed for hearing before a two-judge bench. During
the intended hearing of the preliminary objection, the
applicant made an application orally for withdrawal of
the reference. The interested parties did not object to
such withdrawal, but prayed for costs.
Issues
I.
Whether, the applicants could withdraw the

matter as a consequence of an incidental order
from the High Court
II.
Whether the Supreme Court could make an order

for costs upon withdrawal of a matter before it at
any time after the Appeal had been lodged and
further steps taken.
Civil Practice and Procedure-Prima facie Jurisdiction of the

Supreme Court-discretionary power of the Court to make an
order for costs-Whether, the Court can make an order for costs
upon withdrawal of a matter before it - Whether the Supreme
Court could make an order for costs upon withdrawal of a
matter before it at any time after the Appeal had been lodged
and further steps taken. -Supreme Court Act of 2011; Section
2(1)-Supreme Court Rules of 2012; Rule 3(5)
Civil Practice and Procedure withdrawal of suit
withdrawal of suit as a matter of right where the applicant
sought to withdraw a suit filed in the Supreme Court where
the withdrawal was on the basis of allowing the suit to progress
through the legal system from the High Court upwards where
the respondent claimed that the claim for withdrawal was done
Cases
Cases
30
in bad faith where the respondent sought costs of the suit

whether the Court could order for costs against the applicant
Supreme Court Act, section 21(1); Supreme Court Rules, Rule
3(5).
Alternative Dispute Resolutions - dispute resolution
mechanisms- mediation, arbitration and traditional dispute
resolution mechanisms-Constitution of Kenya article 159(2)
Supreme Court Act, 2011
Section 21(1) In any proceedings, the Supreme Court
may make any ancillary or interlocutory orders, including
any orders as to costs as it thinks fit to award.
Supreme Court Rules, 2012
Rule 3(5) Nothing in these rules shall be deemed to limit
or otherwise affect the inherent powers of the Court
to make such orders or give such directions as may be
necessary for the ends of justice or to prevent abuse of the
process of the Court.
Held:
1. The law allowed a party who had approached the
Court to withdraw a matter if he deemed so fit to
do so. Barring parties from withdrawing matters
once filed in Courts of law would be contrary to
the constitutional principle of alternative dispute
resolution under article 159 (2) which provided
that; alternative forums of dispute resolution
which included mediation, arbitration and
traditional dispute resolution mechanisms ought
to be promoted.
2. The Court had the discretionary power to
make an order for costs as mandated under
the Supreme Court Act, 2011 and Rules, 2012.
Section 2(1) of the Supreme Court Act 2011, gave
an option to the Supreme Court to make any
ancillary or interlocutory orders, including any
orders as to costs as it thinks fit to award. Rule
3(5) of the Supreme Court Rules 2012, provided
that nothing could otherwise affect the inherent

powers of the Court to make orders or give
directions as would be necessary for the ends of
justice or to prevent abuse of the process of the
Court. A party who moved the Court to seek
an order for costs had the obligation to lay firm
basis by giving sufficient reasons why he had to
be awarded costs.
3. The award for costs ought to be guided by the
principle that, cost followed the event; the effect
was that the party, who called forth the event by
instituting suit, bore the costs if the suit failed, but
if a party showed legitimate occasion by successful
suit, then the defendant or respondent bore the
costs. The vital factor in setting the preference
was a judiciously - exercised discretion of the
Court, accommodating the special circumstances
of the case, while being guided by the ends of
justice. (Jasbir Singh Rai & 3 others v Tarlochan
Singh Rai & 4 others, Petition No. 4 of 2012)
4. The claim of public interest would be relevant
factor in exercise of such discretion as would also
be motivations and conduct of the parties, priorto, during, and subsequent-to the actual process
of litigation (supra Jasbir)
5. An advocate had a duty to aid the Court reach
a legitimate determination founded on sound
law. Hence, he had to abreast with the law and
keep pace with the various developments in the
applicants reference before the Court and his
advocates conduct amounted to abuse of the
Court process (Nicholas Kiptoo Arap Korir Salat v.
The Independent Election and Boundaries commission
& 7 others, Application No. 16 of 2014)
The applicant was ordered to bear the costs of the interested
parties in the reference, which costs were to be agreed upon or
taxed by the taxing master of the Court.
Supreme Court affirms the unconstitutionality of section 76(1)(a) of the Elections Act
Hassan Nyanje Charo v Khatib Mwashetani & 3 others
Civil Application No. 23 of 2014
Ibrahim and Ojwang, SCJJ
December 8, 2014
Reported by Phoebe Ayaya & Kipkemoi Sang
Brief Facts
The applicant sought a review of a Court of Appeal ruling
refusing to certify his intended appeal as one involving
a matter of general public importance. The same was
set down for hearing but the respondents filed a notice
of preliminary objection on the grounds that the Court
lacked jurisdiction to hear and determine the matter, as
it originated from proceedings that were a nullity, and
thus, void ab initio; and that the petition from which the
application for review emanated, was filed out of time,
and in contravention of Article 87(2) of the Constitution
of Kenya, 2010.
The matter had begun as Election Petition No 9 of 2013 at

the High Court at Mombasa, and as both the petition and
Election Petition No 4 were in respect of the same election
for the same constituency, they were consolidated. The
subject matter of the petition was the elections held on
4th March, 2013 whose results were released on 5th/6th
March 2013. However the petition was filed on 10th April
2013 35 days after declaration of the results.
The ruling of the High Court held that the provisions of
section 76(1) (a) of the Elections Act were not inconsistent
with the Constitution. The Judge directed the AttorneyGeneral to initiate the process of legislative amendment
within 60 days, failure to which, it would be deemed that
31
an amendment to section 76(1) (a) of the Elections Act

would have been effected. (Gideon Mwangangi Wambua &
another v Independent Electoral and Boundaries commission &
2 others [2013] eKLR)
However, the Supreme Court made a contrary finding
holding that section 76(1) (a) of the Elections Act was
inconsistent with the Constitution, and hence a nullity.
(Hassan Ali Joho & others v Suleiman Sais Shabal & 2 others
[2014] eKLR)
The matter proceeded on merit, and the Election Court
set aside the election results. However, an appeal to
Court of Appeal led to the High Court decision being set
aside and it was the said Appellate Court finding that the
applicant sought to contest in the Supreme Court.
Issues:
i.
Whether the Supreme Court had the jurisdiction

to entertain an application for review where
the said matter had been filed outside the
constitutional timelines at the trial court.
ii.
Whether the preliminary objection as raised by

the respondents challenging the legality of the
Supreme Courts jurisdiction to entertain the
matter was lawful.
iii.
Whether the High Court while determining the

issue of time, as provided under section 76(1) (a)
of the Election Act No.24 of 2011 amended the
said section.
iv.
Whether the Supreme Court decision in the Joho

case which had found Section 76(1)(a) of the
Elections Act inconsistent with the Constitution,
applied in this matter
Constitutional Law amendment of statute the principle

of reading-into legislation where the High Court ordered
the Attorney General to initiate the process of legislative
amendment within a given time frame, failure of which the
section would stand amended as per the Courts orders where
such amendment was not done during the time frame given by
the Court where the legislation in question was one passed
after the promulgation of the Constitution of Kenya, 2010
whether the directions of the Court amounted to an amendment
of the legislation whether the legislation could be amended
for being inconsistent with the Constitution in light of the
unconstitutionality clause contained in the Constitution
whether the principle of reading into legislation was applicable
in the instance Constitution of Kenya, 2010 articles 2(4),
94(1), 159(1); Sixth Schedule, section 7(1)
Constitutional Law - supremacy of the Constitution
-sovereignty of the people of Kenya-the role of the Supreme
Court to provide authoritative and impartial interpretation
of the Constitution -the derivative judicial authority of the
Supreme Court from the people of the Republic of KenyaSeparation of powers-objective and purpose of governance.
Constitution of Kenya 2010, article 159(1) the Supreme Court
Act, 2011 Section 3.
Civil Practice and Procedure preliminary objection
principles established for a preliminary objection to be granted
where the respondents sought a preliminary objection
whether the preliminary objection raised a point of law as a
basic test signalled in the Mukisa Biscuits case whether the
preliminary objection would be granted as sought.

Constitution of Kenya, 2010
Article 2(4) Any law, including customary law that
is inconsistent with this Constitution is void to the
extent of the inconsistency, and any act or omission in
contravention of this Constitution is invalid.
Article 94(1) The legislative authority of the Republic
is derived from the people and, at the national level, is
vested in and exercised by Parliament
Article 159(1) Judicial authority is derived from the
people and vests in, and shall be exercised by, the Courts
and tribunals established by or under this Constitution
Sixth schedule, section 7(1), All law in force immediately
before the effective date continues in force and shall be
construed with the alterations, adaptations, qualifications
and exceptions necessary to bring it into conformity with
this Constitution .
Held:
1. The petition filed in the High Court which had
challenged the election results of Lunga Lunga
Constituency, had its foundation in article
87(2) of the Constitution of Kenya, 2010 which
provided that; petitions concerning election
other than the presidential election be filed
within twenty eight days after the declaration of
election results by the Independent Electoral
and Boundaries Commission. The Constitution
required that: there ought to be election results
which must be declared. The two were mutually
inclusive, and it was not possible to isolate them,
for a legitimate election to be deemed as having
taken place. It was the declaration of results that
concluded the election cycle. The declaration
of results for Lunga Lunga Constituency indeed
took place. Therefore the applicants contention
that there was no declaration of results failed.
2. The principle in Mukisa Case required that, a
preliminary objection could only be raised on a
point of law. Points of law could only be raised
on assumption that all the facts pleaded by the
other side were correct.
3. Objection to Jurisdiction was a good example
of preliminary objection. The case before the
Supreme Court raised two issues which fell in
such category, firstly, that the Supreme Court
lacked jurisdiction to hear and determine that
matter, as it derived from proceedings that were a
nullity, and were void ab initio. Secondly, that the
petition from which the application emanated
was filed out of time and contravened article
87(2) of the Constitution of Kenya, 2010.
4. Crystallization of the two issues singled out
the issue as to whether the Supreme Court had
jurisdiction to admit the application for review,
when it was filed outside the Constitutional
timeline specified in article 87(2) of the
Constitution of Kenya, 2010. That issue in itself
was a pure point of law and fell within the
principle in Mukisa Biscuit Case (Mary Wambui
Cases
32
Cases
case; Lisamula case and Lemanken Aramat v. Harun
Meitamei Lempanka & Two Others [2014]eKLR)
5. Reading-into legislation might have been a new
phraseology in the forensic language of the Court;
but the ultimate object touched on by the South
African Case, was not entirely different from the
object of section 7(1) of the sixth schedule of the
Constitution of Kenya, 2010 which declared the
validity of all laws in force immediately before
the effective date, to continue in force and
remain to be construed with alteration, adoption,
qualifications and exceptions necessary to bring
into conformity with the Constitution . (National
Coalition for Gay and Lesbian Equality and Others
v. Minister of Home Affairs and Others (CCT10/99)
[1999 ZACC}
6. The position was clear for the laws that were
enacted after the promulgation date, of the
Constitution of Kenya, 2010. Article 2(4) provided
that any law, including customary law, that was
inconsistent with the Constitution was void to
the extent of the inconsistency, therefore, any act
or omission in contravention of the Constitution
was invalid.
7. The inevitable inference resolved into the
principle that the Constitution of Kenya, 2010
did not envisage or create a legal vacuum, and
all process regulated by law were to continue
in progress as signalled by the Constitution.
The Supreme Court was duty bound to signal
a direction in respect of the reading-into for
section 76(1) (a) of the Elections Act, on the
basis of the persuasive authority from the South
African jurisdiction in the case of National
Coalition for Gay and Lesbian Equality. The
adoption of such an alternative principle, was not
proper for the present case since the statute in
question was enacted after the promulgation of
the Constitution of Kenya, 2010. (Communications
Commission of Kenya & Five Others v. Royal Media
Services Ltd & Five Others [2014] eKLR).
8. Since the Election Act 2011 was enacted after
the promulgation of the Constitution of Kenya,
2010, section 76(1) (a) was void ab initio. If
a statute enacted after the inception of the
Constitution was found to be inconsistent, the
inconsistency would date back to the date on
which the statute came into operation in the face
of the inconsistent Constitutional norms. An
order declaring a provision of a statute invalid
by reason of inconsistency with the Constitution
automatically operated retrospectively to the
date of inception of the Constitution. (Sias Moise
v. Transitional Local Council of Greater Germiston,
Case CCT 54/00, Justice Kriegler)
9. Section 3 of the Supreme Court Act, 2011,
gave the Supreme Court the mandate to assert
the supremacy of the Constitution and the
sovereignty of the people of Kenya and provide
authoritative and impartial interpretation of the
Constitution. Article 94(1) of the Constitution of
Kenya, 2010 provided for the legislative authority

as being derived from the people of the Republic
of Kenya and vested to the exercise of parliament
at the national level. Article 159(1) provided that
judicial authority was derived from the people
and vested in, and ought to be exercised by the
Court and tribunals established by or under the
Constitution. The separation of powers did
indeed serve an objective governance-purpose.
The High Court had no power to amend Section
76(1) (a) of the Election Act.
10. The Constitution of Kenya, 2010 had been set
upon judicial foundations long fashioned by
common law principles and practices including
the doctrine of precedent. The common law
principle was designed to ensure certainty and
predictability in the law. The doctrine required
that cases with similar facts were to be decided
in a similar manner. The Supreme Court
entertained no notion that the prescribed timelines were anything but a matter of substantive law
and not a technicality.
11. The High Court in petition No. 9 of 2013
consolidated with Petition No. 4 of 2013, while
determining the issue of time, held section 76(1)
(a) of the Election Act to be judicially amended to
conform to the Constitution . In Joho case, the
Supreme Court had ruled the relevant statutory
provision to be unconstitutional and struck out.
The declaration of results in the matter was made
on 5th March, 2013 and the election petition
filed on 10th April, 2013, was outside the 28-day
limit after the declaration of results. The election
petition was filed out of time, and on that account,
could not be sustained. The High Court lacked
jurisdiction to admit and determine it; and the
proceedings before that Court were a nullity ab
initio. Parties could not reopen concluded causes
of action.
Preliminary objection by the 2nd and 3rd respondents dated 31st
July, 2014 were upheld.
Application for review of refusal of Appellate Court certification,
dated 3rd June, 2014 disallowed.
Determinations in the Judgments of the High Court and the
Court of Appeal declared null.
Declaration of election results by the Independent Electoral
and Boundaries Commission, in respect of the Lunga Lunga
Constituency seat, affirmed
Parties to bear their own costs at the High Court, Court of
Appeal and the Supreme Court, respectively
33

The locus standi of an NGO deregistered in the course of legal proceedings

Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
Civil Application No 29 of 2014
W M Mutunga, CJ & P, K H Rawal, DCJ &VP, P K Tunoi, M K Ibrahim, J B Ojwang & N S Ndungu, SCJJ
December 9, 2014
Reported by Beryl A Ikamari
134), sections 12(2), 12(3) & 16(2).
Brief facts
The Trusted Society of Human Rights Alliance, the 1
Respondent, a Non-Governmental Organization lodged
a suit, in public interest, to challenge the appointment
of Mr Mumo Matemu as the Chairperson of the Ethics
and Anti-Corruption Commission at the High Court.
At the time the suit was lodged at the High Court, the 1st
Respondent was duly registered as a Non-Governmental
Organization.
st
In its judgment, the High Court annulled the appointment

of Mr Mumo Matemu and there was an appeal to
the Court of Appeal, wherein the annulment of the
appointment was set aside. The 1st Respondent lodged
a Petition of Appeal at the Supreme Court against the
Court of Appeals decision.
Statutes - statutory interpretation-mode of cancelling

the registration of a Non-Governmental Organizationstatutory requirement for notice of cancellation to
be served upon the affected Non-Governmental
Organization- whether a Gazette Notice would be
sufficient- Non-Governmental Organizations Coordination Act (Cap 134), sections 12(2), 12(3) & 16(2).
Constitution of Kenya 2010, article 260;
person includes a company, association or
other body of persons whether incorporated
or unincorporated;
At the Supreme Court, the question as to whether the 1st

Respondent had become a non-entity, which could not
lodge a suit in court, due to its deregistration was raised.
Constitution of Kenya 2010, article 258;
On August 16, 2013 Gazette Notice No 11962

was published pursuant to section 16 of the NonGovernmental Organizations Co-ordination Act (Cap
134), it announced the intention to cancel the registration
of certain Non-Governmental Organizations (NGOs)
which included the 1st Respondent. The cancellation
of the registration of those NGOs was on the basis of
breaches of the requirements of the Non-Governmental
Organizations Co-ordination Act (Cap 134).
(2) In addition to a person acting in their own

interest, court proceedings under clause (1)
may be instituted by
Later, on July 8, 2014, a letter was written on behalf

of the Executive Director of the Non-Governmental
Organizations Co-ordination Board to the 1st Respondent
stating that the 1st Respondent was deregistered on August
16, 2013 and was not on the Board register as at September
2, 2013. A second letter written on behalf of the Executive
Director of the same Board was a recommendation letter
dated October 7, 2014, indicating that the 1st Respondent
had complied with the Rules and Regulations governing
Non-Governmental Organizations as well as the terms
and conditions of registration.
Issue
i.
Whether the deregistration of an NGO rendered

it a non-existent entity and it therefore lacked the
locus standi to institute an appeal.
ii.
Nature of notice required for the deregistration

of an NGO.
Constitutional Law - locus standi-locus standi in public

interest litigation-whether a Non-Governmental
Organization which had purportedly been deregistered
could institute an appeal at the Supreme CourtConstitution of Kenya 2010, articles 22, 258 & 260; NonGovernmental Organizations Co-ordination Act (Cap
258. (1) Every person has the right to

institute court proceedings, claiming that
this Constitution has been contravened, or is
threatened with contravention.
(a) a person acting on behalf of another person

who cannot act in their own name;
(b) a person acting as a member of, or in the
interest of, a group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one
or more of its members.
Non-Governmental Organizations Co-ordination Act
(Cap 134), section 16;
16. Cancellation of certificate
(1) The Board may cancel a certificate issued
under this Part, if it is satisfied that
(a) the terms or conditions attached to the
certificate have been violated; or
(b) the organisation has breached this Act; or
(c) the Council has submitted a satisfactory
recommendation for the cancellation of the
certificate.
(2) Notice of the cancellation of a certificate
shall be served on the Organisation in respect
of whom such cancellation relates and shall
take effect within fourteen days after the date
of that notice.
Cases
Cases
34
Held
1. The notice of cancellation or suspension of a

Non-Governmental Organization, as required
in section 16(2) of the Non-Governmental
Organizations Co-ordination Act (Cap 134)
was a notice to be served upon the affected
Organization and not a Gazette Notice. The
applicable legal provision on the issue of the
cancellation of the registration of an NGO made
no reference to the issuance of a Gazette Notice.
2. The requirements of section 16(2) of the NonGovernmental Organizations Co-ordination
Act (Cap 134) were that a notice would have
to be served upon the Non-Governmental
Organization whose registration was being
cancelled. There was no evidence of service of
such a notice to the 1st Respondent.
3. The Gazette notice was not the notice
contemplated by the law as it was not served
upon the 1st Respondent but was published for
the publics information. Further, the import of
the Gazette Notice was that it was a notification
of an intention to cancel or suspend certificates
of registration for various Non-Governmental
Organizations. In and of itself, the Gazette Notice
was not the instrument of deregistration. In the
circumstances, it was not possible to ascertain if
and when the 1st Respondent was deregistered as
a Non-Governmental Organization.
4. The two letters, one written on July 8, 2014 stating
that the 1st Respondent had been deregistered and
was not on the Board register as at September 2,
2013 and the second letter, written on October 7,
2014, a recommendation letter indicated that the
1st Respondent was duly registered at that date,
without stating whether the 1st Respondent had
ever been deregistered, created uncertainty with
respect to the 1st Respondents registration status.
5. The 1st Respondent was not directly aggrieved
and had filed the Petition on behalf of the public
at large. Articles 22 and 258 of the Constitution
of Kenya 2010 provided that every person had
the right to institute proceedings claiming that
the Constitution had been contravened and
person in that regard, included one who acts in
the public interest.
6. The definition of a Non-Governmental
Organization under section 2 of the NonGovernmental Organizations Co-ordination
Act (Cap 134) as read with article 260 of
the Constitution of Kenya 2010 justified
the categorization of a Non-Governmental
Organization as a person as it was an association,
under article 260, despite the question on whether
it was incorporated or unincorporated.
7. Under section 12(3) of the Non-Governmental
it was registration that made an NGO a body
corporate capable of suing and being sued.
8. The Non-Governmental Organizations Coordination Act (Cap 134) had to be interpreted

in conformity with the Constitution of Kenya
2010. Although sections 12(2) and 12(3) of
the Act provided for the legal status of the 1st
Respondent, when read together with articles 22,
258 and 260 of the Constitution and in the public
interest, the inference that the 1st Respondent did
not lose locus standi, even if it lacked registration
status, could be drawn.
9. The facts applicable to the case were such that the
act of de-registering the 1st Respondent had not
deprived the 1st Respondent of the standing in
law to lodge an appeal before the Supreme Court
in a matter of public interest.
10. As the case raised constitutional issues of a public
nature, it was in public interest for each party to
bear its own costs.
The Concurring opinion of Njoki Ndungu, SCJ
11. Public interest litigation had a transformative
role in society. It allowed various issues affecting
different spheres of society to be presented for
litigation. For such reasons, the Constitution
of Kenya 2010 aimed at enlarging locus standi in
human rights and constitutional litigation.
12. Locus standi had a close relationship to the right
of access to justice. In instances where public
interest suits were threatened by administrative
action, to the detriment of constitutional
interpretation and application, the Court had
discretion, on a case by case basis, to evaluate the
terms and public nature of the matter vis a vis the
status of the parties before it. That discretion was
drawn from article 259 (1) of the Constitution of
Kenya 2010 wherein the Courts were required
to interpret the Constitution in a manner that
promoted its values and purposes, advanced
the rule of law, human rights and fundamental
freedoms, permitted the development of the law
and contributed to good governance.
13. Section
16
of
the
Non-Governmental
permitted the Non-Governmental Organizations
Co-ordination Board to cancel the registration of
a Non-Governmental Organization, in certain
prescribed instances.
14. There was a clear lacuna in the law which
failed to protect the legal interests of a NonGovernmental Organization or its creditors upon
its deregistration and also threatened the role of
NGOs in public interest litigation, and in effect,
social change and human rights defence through
litigation. The lacuna needed resolution through
legislative initiative or through a challenge of
constitutionality in line with the provisions of
articles 22 and 258 of the Constitution of Kenya
2010.
15. The Constitution of Kenya 2010 enlarged
the capacity to file a claim in defence of the
Constitution. Article 3(1) provided that every
35

person had an obligation to respect, uphold and

defend the Constitution and it defined a person
in article 260 to include a company, associate
or other body of persons whether incorporated
or unincorporated. Pursuant to article 258(1)
of the Constitution, every person had the right
to institute court proceedings claiming that the
Constitution had been infringed or threatened
with contravention.
16. An interpretation of section 16 of the NonGovernmental Organizations Co-ordination

Act (Cap 134) in line with the Constitution and
the special circumstances of the case, meant that
the deregistration of the 1st Respondent did not
fatally compromise the validity of the Appeal
lodged at the Supreme Court.
Application dismissed.
Principles to be considered in exercising discretion to extend time for filing appeals

John Ochanda & 996 others v Telkom Kenya Limited [2014] eKLR
Motion No 24 of 2014
M K Ibrahim & S C Wanjala, SCJJ
November 25, 2014
Reported by Nelson K Tunoi
Brief facts:
The applicants filed an application before the Supreme
Court for extension of time within which to file and serve
a notice of appeal against part of the judgment and orders
of the Court of Appeal. The applicants had inadvertently
cited rule 30 instead of rule 31 of the Supreme Court
Rules in their already filed notice of appeal. In addition
they erroneously indicated that they intended to appeal
to the Court of Appeal instead of the Supreme Court.
In response, the respondent contended that this was
an abuse of the courts process as the applicants did not
have an automatic right of appeal to the Supreme Court.
The respondents further argued that the Supreme Court
lacked jurisdiction to determine the application for
extension of time as the applicants had neither sought
nor been granted leave to appeal to the Supreme Court.
Held:
1. Extension of time was a discretionary and a very
powerful tool which should be exercised with
abundant caution, care and fairness. It should be
used judiciously and not whimsically to ensure
that the principles enshrined in the Constitution
were realized.
2. The Supreme Court in Nicholas Kiptoo Arap
Korir Salat v. Independent Electoral and Boundaries
Commission& Others(the Nick Salat case laid down
the following principles to consider in exercising
its discretion to extend time:
i.
Extension of time is not a right of a party. It is

an equitable remedy that was only available
to a deserving party at the discretion of the
Court;
Issues:
i.
Whether the applicant had established a

satisfactory basis to warrant the Supreme
Court to extend time to file a notice of appeal.
ii.
A party who sought for extension of time

had the burden of laying a basis to the
satisfaction of the court.
ii.
Whether the Supreme Court had jurisdiction

to entertain an application where leave to file
such an application had not been granted by
the Court of Appeal.
iii.
Whether the court should exercise the

discretion to extend time, is a consideration
to be made on a case to case basis;
iv.
Whether there was a reasonable cause for

the delay. The delay should be explained to
the satisfaction of the Court;
v.
Whether there would be any prejudice

suffered by the respondents if the extension
was granted;
vi.
Whether the application had been brought

without undue delay; and
vii.
Whether in certain cases, like election

petitions, public interest ought to be a
consideration for extending time.
Civil Practice and Procedure extension of time application

for extension of time to file and serve a notice of appeal where
the applicants, inter alia, had inadvertently cited rule 30 instead
of rule 31 of the Supreme Court Rules in their already filed
notice of appeal whether that was sufficient reason to warrant
the extension of time by the court whether the respondents
would suffer prejudice if the application was granted whether
the application was merited Supreme Court Rules, 2012,
rules 3(1), (5), 23 & 53
Jurisdiction jurisdiction of the Supreme Court - Whether
the Supreme Court had jurisdiction to entertain an application
where leave to file such an application had not been granted
by the Court of Appeal Constitution of Kenya, 2010, article
163(8); Supreme Court Rules, 2012, rule53
3. The question of jurisdiction to extend time to file

a notice of appeal to appeal to the Supreme Court
was not an issue subject to controversy. The
notice of appeal was provided by Rule 31 of the
Supreme Court Rules 2012. Further, the power
Cases
36
Cases
to extend time was provided for by Rule 53 of the
same Court Rules. These Supreme Court Rules
were enforced by the Supreme Court as provided
by article 163(8) of the Constitution.
4. The Supreme Court was a new court in the
Kenyan legal system and its modus operandi
was still not conversant to most litigants and
members of the bar at large. While the Nick Salat
case (supra) the Supreme Court on its own motion
moved to correct the anomaly after noting
that the counsel for the applicant had cited the
old Supreme Court Rules, 2011, in the instant
case, it was the advocate for the applicant who
noted the anomaly and took steps to correct it.
Though he may have opted for a longer route of
withdrawal and not amendment, the Court took
into consideration the principles in article 159(2)
(d) of the Constitution to focus on substantive
justice in disregard to procedural technicality in
that case.
5. The applicants complied with the substantive
requirement and filed a notice of appeal within
time. However due to what they confessed to be
some inadvertent errors, the notice of appeal had
apparent errors and they withdrew it. Without
appearing to sanction the errors on the face of
the notice of appeal, it was not in doubt that the
notice of appeal served its substantive purpose:
the respondents were informed of the appellants
intent to appeal and any subsequent proceedings
thereafter could not be said to constitute an

ambush to the respondents. Consequently, that
settled any prejudice that the respondents may be
apprehensive of: there was none as they already
had notice.
6. Counsel for the respondent contended that the
applicants did not have an automatic right of
appeal to the Supreme Court and having neither
sought nor been granted leave, the Court lacked
jurisdiction to determine the application. They
did not however, challenge the fact that the
applicant acted in a timely manner to correct
the error and that the error was accidental.
The Court disagreed with the respondents that
the applicants ought to have first sought leave
from the Court of Appeal. The question under
inquiry was one of a notice of appeal. The law
was categorical that a notice of appeal had to be
filed fourteen (14) days from the date of judgment
whether or not leave was required.
The applicants notice of motion dated June 5, 2014 allowed;
Time to file and serve a notice of appeal extended. The applicant
to file and serve a notice of appeal within 7 days of the date
hereof; The applicants to bear the costs of the respondents in the
application.
The Supreme Courts jurisdiction to entertain appeals from the Court of Appeal
Peter Odiwuor Ngoge T/A O P Ngoge & Associates Advocates & 5379 others v J Namada Simoni T/A Namada & Co
Advocates & 725 others
Petition No 13 of 2013
K H Rawal, DCJ, P K Tunoi, M K Ibrahim, J B Ojwang & N S Njoki, SCJJ
November 25, 2014
Brief facts
The main suit concerned 6000 former employees, of
Kenya Breweries Limited, whose employment contracts
were terminated pursuant to a restructuring process. It
was decided that the suit would be filed as a representative
suit in which four Plaintiffs were selected to prosecute
the suit on behalf of all the other Plaintiffs. At the time
of filing the suit, the Plaintiffs were represented by the
firm of Ngoge & Associates Advocates and a notice,
concerning the suit, was issued to all interested parties as
per Order 1 Rule 8(2) of the Civil Procedure Rules 2010.
In response to the notice, some persons sought to be
enjoined as Plaintiffs and they appointed the firm of J H
Kinyanjui & Co Advocates to represent them while others
sought to appear in person.
Mr Ngoge of Ngoge & Associates Advocates raised an
objection against Mr Kinyanjuis appearance in the suit.
The High Court heard the objection and allowed Mr
Kinyanjui to continue to offer legal representation in the
matter. Mr Ngoge appealed against that decision at the
Court of Appeal.
The remedies Mr Ngoge sought at the Court of Appeal
included an injunction and a stay of execution. The Court
of Appeal granted the stay of execution which was to be
in effect until the dispute on legal representation was
sorted. In response, Mr Ngoge filed a Petition of Appeal
at the Supreme Court.
In the Petition of Appeal at the Supreme Court, Mr Ngoge
sought damages from the Respondents, claiming that
there had been violations of constitutional provisions at
the High Court and the Court of Appeal. The Respondents
objected to the appeal on grounds that leave had not been
sought and granted for the appeal to the Supreme Court
and the Supreme Court lacked jurisdiction to entertain
the matter.
In the Petition of Appeal at the Supreme Court, Mr
Ngoge enjoined himself together with Mr Namada and
Mr Kinyanjui (all of whom were acting as advocates for
the parties to the suit), as parties to the Petition of Appeal.
His basis for such a joinder of parties was that there had
been breaches of his rights and his clients fundamental
37
rights and freedoms which involved those advocates.

Issues
i.
Whether in the circumstances, it was necessary
to seek leave to appeal to the Supreme Court,
as stipulated under article 163(4)(b) of the
Constitution of Kenya 2010.
ii.
Whether the Petition of Appeal raised issues of

constitutional interpretation or application,
which were within the Supreme Courts
jurisdiction under article 163(4)(a) of the
iii.
The implication of the joinder of an advocate as

a party to a suit in which he was representing a
party.
iv.
Whether the Supreme Court had jurisdiction in

the matter.
Jurisdiction - jurisdiction of the Supreme Courtjurisdiction of the Supreme Court in matters of

constitutional interpretation and application-the
threshold required in establishing the existence
of questions of constitutional interpretation and
application-Constitution of Kenya 2010; article 163(4)(a).
Jurisdiction - jurisdiction of the Supreme Court-appeal
to the Supreme Court with leave of court-certification
that a matter of general public importance was involvedeffect of failure to indicate whether the matter required
certification or leave or was one involving constitutional
interpretation and application, before lodging a Petition
of Appeal at the Supreme Court Constitution of Kenya
2010, article 163(4)(b); Supreme Court Act, No 7 of 2011,
section 15.
Civil Practice and Procedure - joinder of parties-joinder
of parties at an appellate stage-the appropriateness of
joinder of parties who served as advocates in the lower
court as litigants in the appellate court.
Constitution of Kenya 2010, article 163(4)
(4) Appeals shall lie from the Court of Appeal
to the Supreme Court
(a) as of right in any case involving the
interpretation or application of this
Constitution; and
(b) in any other case in which the Supreme
Court, or the Court of Appeal, certifies that
a matter of general public importance is
involved, subject to clause (5).
Held
1. The Petitioner had failed to indicate the provision
under which the Petition of Appeal had been
filed at the Supreme Court. It was not indicated
whether the Petition had been filed as of right in
a case involving the interpretation or application
of the Constitution or whether it had been filed
as a suit involving a matter of general public
importance, for which leave was necessary.
2. Given that jurisdiction was an integral element in
any proceedings, the enabling provisions of the

law ought to be cited. However, the omission was
not fatal as the document filed was titled, Petition
of Appeal and it was clear that the Supreme
Courts appellate jurisdiction was being invoked.
3. The Petitioner had not pleaded that the Petition
of Appeal was one that would require leave as
it was one involving a matter of general public
importance.
4. As the matter was an appeal against an appellate
Courts exercise of discretion to strike out a
Notice of Appeal, it was not an issue that involved
constitutional interpretation or application. The
Petition of Appeal did not meet the constitutional
threshold provided for in article 163(4)(a) of the
5. It was clear in article 163(4)(b) of the Constitution
that for the Supreme Court to entertain an appeal
from the Court of Appeal, the matter must have
received certification as one that raised an issue
of general public importance. However, an appeal
could be filed at the Supreme Court as of right,
without the requirement for leave or certification,
where it concerned the interpretation or
application of the Constitution.
6. While the Petition of Appeal at the Supreme
Court raised constitutional issues, the matter
from which the appeal arose at the Court of
Appeal was not one that concerned interpretation
or application of the Constitution.
7. The proper forum in which constitutional issues
that were integrally linked to the main cause were
to be heard, in the first instance, was the Court in
which such issues arose.
8. Article 163(4) of the Constitution of Kenya 2010
did not contemplate appeals to the Supreme
Court in the form of fresh matters with new
parties who were not previously parties to the
suit.
9. Where a person appealed against a decision of a
lower court to a higher court, it implied that the
matter in dispute was originating from the lower
court and it was the same matter that the higher
court was being called to re-examine. It was not
going to become a fresh matter as opposed to an
appeal.
10. It was only in exceptional circumstances, and
with leave of court, that persons who were not
parties at the Court of Appeal could be parties to
an appeal at the Supreme Court.
11. The new parties introduced in the Petition of
Appeal were not parties but advocates who
represented clients at the Court of Appeal.
When an advocate represented clients in any
matter, the advocates position rested on a purely
professional platform and such an advocate,
as a player of a professional role, was not to be
joined as a litigant whether in that matter or in an
appeal, in respect of acts or omissions arising in
the conduct of the suit.
12. The advocate, on the question of joinder,
benefitted from a cover of privilege, while
remaining amenable for professional negligence
or malpractice, in a personal capacity, in a
Cases
Cases
38
separate action in a relevant trial court.

13. In the Petition of Appeal, the Petitioners
claimed that there had been an infringement
of their fundamental rights and freedoms by
the Respondents but did not raise issues of
professional negligence or malpractice. However,
the Supreme Court was not the proper forum
for the prosecution of issues of professional
negligence or malpractice in the first instance.
14. The joinder of advocates as parties to a Petition

of Appeal at the Supreme Court, as had been done
by the Petitioner, was inapt and was incompatible
with the provisions of the Advocates Act (Cap 16).
Petition of Appeal dismissed.
17th June 2015 is the international switch off date from analogue to digital platform,
Supreme Court affirms
Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 4 others
Supreme Court at Nairobi
Mutunga CJ, P Rawal DCJ, Tunoi, Ibrahim, Ojwang, Wanjala and Njoki, SCJJ
February 13, 2015
Brief facts:
The object of the mention before the Supreme Court was
to determine whether and to what extent its orders had
been complied with. On September 29, 2014 the Supreme
Court had inter-alia issued the following orders;
i.
That the 1st appellant ( Communications
Commission of Kenya) in exercise of its statutory
authority, shall, in consultation with all the
parties to the suit, set the time-lines for the digital
migration, pending the international Analogue
Switch-off Date of 17th June, 2015.
ii.
That the 1st appellant (Communications

Commission of Kenya) shall, in exercise of its
statutory powers, and within 90 days consider
the merits of applications for a BSD licence by the
1st, 2nd and 3rd respondents, and of any other local
private sector actors in the broadcast industry,
whether singularly or jointly.
Issues
i.
Whether the orders of the Supreme Court had

been complied with.
ii.
What amounts to consultation as envisaged in the

Constitution of Kenya 2010?
Constitutional Law Consultation - what amounts to

consultation as envisaged in the Constitution of Kenya
2010 whether there was consultation between the
parties with a view of setting the time-lines for digital
migration, pending the International Analogue date
Held
1. The 1st appellant (Communications Commission
of Kenya) did consider the merits of the
applications for a BSD licence by the 1st, 2nd, and
3rd respondents, and other local private-sector
actors. That action by the1st appellant culminated
in the issuance of temporary authorization for
self-provisioning digital signal distribution to the
three respondents.
2. The three respondents were issued with one
digital frequency, to enable them to commence

operations within Nairobi and its environs.
In addition, they were issued with 20 more
digital frequencies to enable them to commence
operations in all other areas outside Nairobi,
where they had been transmitting on the analogue
platform.
3. The Supreme Court could not determine the
adequacy or otherwise of the digital frequencies
issued to the three respondents. By being granted
a temporary authorization for self-provisioning
digital signal distribution, pursuant to the orders
of the Court, the respondents had been placed in
an advantaged and a realistic position to enter
upon competition with other players in the
digital-transmission sector.
4. The 1st, 2nd and 3rd respondents act of commencing
a scheme of public advertisements which led to
retaliatory actions (namely, cancellation of the
temporary authorization and withdrawal of
digital frequencies) by the 1st appellant was as
if they had never submitted their long-running
dispute to the Supreme Court for final resolution.
The two sides ( i.e., the 1st appellant on the one
hand, and the 1st, 2nd, and 3rd respondents on the
other hand) had engaged in conduct the effect
of which was to undermine the integrity of the
Courts Judgment. As the Court had determined
the dispute, and issued Orders with which the
parties were to comply within a specified period,
it behoved the parties to not only comply, but to
desist from any actions such as would tend to
undermine the authority of the Court. Thus, the
parties should have dutifully awaited their turn
to address the Court, regarding their compliance
with its Orders.
5. The 1st appellant (Communications Commission
of Kenya) had taken notable steps to ensure that
the transmission licence issued to the 5th appellant
(Startimes Media Ltd) was duly aligned to relevant
constitutional and statutory requirements.
6. The Constitution placed a duty to consult
39

upon specified public agencies, where certain

appointments to public offices were being
made. Consultation entailed a consideration of
the advice, opinion or concerns of the person
or persons to be consulted, before a decision
was made. Consultation is a process with no
prescribed order. It might be oral, or in writing.
While consultation did not necessarily mean
concurrence with the person consulted, it entailed
a genuine, honest, and serious communication
between the parties, with opinions sought, and
opinions accorded serious consideration, before
a decision was made.
7. A number of consultations had taken place
between the 1st appellant and the several parties
in the matter, with a view to setting the time-lines
for digital migration, pending the International
Analogue date.
8. The stage was properly set for migration from

the analogue to the digital platform in broadcast
transmissions, and there was a new national and
international reality in that regard, to be adopted
and internalized by all parties who had come
before the Supreme Court.
All interim orders discharged.
The 1st appellant was to restore the authorization for selfprovisioning Digital Signal Distribution and the several digital
frequencies it had granted to the said respondents if it had not
already done so.
The general switch-off dates from the analogue to the digital
platform was to remain as scheduled by the 1st appellant.
Circumstances in which a person may apply for re-trial at the High Court.
Tom Martins Kibisu v Republic
P. K. Tunoi, M. K. Ibrahim, J. B. Ojwang, S. C. Wanjala & N. S. Ndungu, SCJJ
November 28, 2014
Reported by Teddy Musiga
Brief facts
The appellant faced disciplinary charges at the Armed
Forces for which he was found guilty of all the charges
and awarded cumulative punishment accordingly.
Aggrieved by the conviction, he appealed to the Defence
Council as was provided in the repealed Armed Forces
Act. However, that appeal did not proceed to the stage
of formal hearing. After his conviction, he published a
document Order serial no. 14 of 2004 whose effect was
to enable him to avoid the penalties that had been awarded
against him in the disciplinary case. His Orders were
eventually cancelled by another Order No. 15 of 2004, by
the Corps Commander thus enabling the implementation
of the penalties. The commander of the Kenya Army then
convened a court martial to try him for the offence of
conduct prejudicial to the good order and discipline of
the Armed Forces contrary to section 68 of the Armed
Forces Act.
However, before the proceedings at the Court martial
commenced he filed judicial review application for orders
to stay the intended court martial proceedings. He was
granted leave for 21 days stay on condition that he filed
and served the respondents with the orders, failing which
the orders would have lapsed. He did not serve the court
martial and they proceeded with the trial which eventually
convicted him to a one year term of imprisonment and
dismissing him from the armed forces. That decision
prompted him to appeal to the High Court challenging
the court martials decision.
Justices Lesiit and Makhandia upheld the court martials
decision by finding the appellant guilty of gross
misconduct and insubordination. The appellant then
moved to the High court again to seek revision of the
judgment of Justices Lesiit and Makhandia which was
dismissed by Justice Ojwang (as he then was). He then

moved to the Constitutional & Human Rights Division
allegedly to seek to enforce his fundamental rights which
was dismissed by Justice Wendo. He appealed to the court
of appeal and it was disallowed. He then went back to
the High court invoking the new constitution of Kenya,
2010 seeking orders for a new trial by court martial on
the premise of new and compelling evidence which had
since become available. He also sought a declaration
that section 115(3) repealed Armed Forces Act was
discriminatory, unfair and unconstitutional. Justice
Mumbi Ngugi dismissed the petition. He then appealed
to the court of appeal where justices Nambuye, Musinga
& Minoti upheld the High courts decision and dismissed
the appeal hence the current appeal at the Supreme Court.
Issues
I.
Whether the Supreme Court had jurisdiction to
entertain the appeal from the Court of Appeal.
II.
Whether the appellants case satisfied the

requirements of article 50(6) of the Constitution
of Kenya, 2010 so as to warrant a new trial before
the High Court.
III.
Whether section 115(3) of the repealed Armed

Forces Act was unconstitutional before its repeal
and replacement.
Constitutional Law fundamental rights and freedom

right to fair trial right to a re-trial at the High court
scope of High courts jurisdiction in conducting re-trials
Constitution of Kenya, 2010, article 50(6)
Cases
40
Cases
Held
1. The appellant properly invoked the jurisdiction
of the Supreme Court because of the following
reasons. Firstly, his case satisfied the requirements
of article 50(6) of the Constitution of Kenya,
2010 for a new trial before the High court on
the grounds of new and compelling evidence.
Secondly, the appeal sought a determination
whether section 115(3) of the repealed Armed
Forces Act stood in conflict with the new
constitution after its promulgation in 2010.
Those two issues were proper questions for
the Supreme Court under article 163(4) (a) of
the Constitution being questions involving the
interpretation or application of the Constitution.
2. Article 50 of the Constitution of Kenya, 2010
was an extensive provision that guaranteed the
right to fair hearing, and as part of that right, it
offered to persons convicted of certain criminal
offences another opportunity to petition the
High court for a fresh trial. Such a trial entailed a
reconstitution of the High court forum, to admit
charges and conduct a re-hearing, based on new
evidence. The window of opportunity for such
a new trial was subject to two conditions. First,
a person had to have exhausted the course of
appeal, to the highest court with jurisdiction to
try the matter. Secondly, there had to be new
and compelling evidence.
3. Under article 50(6) of the Constitution of Kenya,
2010, new evidence which was not available at
the time of the trial and which despite exercise of
due diligence, could not have been availed at the
trial; and compelling evidence implied evidence
that would have been admissible at the trial, of
high probative value and capable of belief and
which if it was adduced at the trial, would have
probably led to a different verdict. Therefore, a
court considering whether evidence was new and
compelling had to ascertain that it was prima facie,
material to or capable of affecting or varying the
subject of the charges, the criminal trial process,
the conviction entered or the sentence passed
against the accused person.
4. In the instant case, there was no new and
compelling evidence to warrant a new trial under
article 50(6) of the Constitution of Kenya, 2010.
That was because, lack of service of stay orders
against the convening, sitting or conducting
of the court martial had nothing to do with the
framed charges, proof of which could alter an
appeal before the High court, the verdict of the
conviction or the subsequent sentence imposed
by the court martial.
5. The issue of service of the order of the court was
by no means any evidentiary information to be
viewed as unavailable to the court martial, at the
time of conducting the trial and reaching a verdict
of conviction. Although that would have been
relevant at the time of the trial, it would not have
been of probative value and would not support
a different verdict. Consequently, the appellant
failed to satisfy the court that his case merited the
invocation of article 50(6) of the Constitution,
2010 for a new trial by the High court.

6. The Armed Forces Act was still in force after the
Constitution of Kenya, 2010 was promulgated by
virtue of section 7 of the sixth schedule to that
Constitution. However, that Act stood repealed
by the Kenya Defence Forces Act, 2012. Section
60(1) of the repealed constitution conferred upon
the High Court the final jurisdiction in criminal
matters that arose from the Court martial.
7. It was clear under the repealed constitution that
the court of appeal could only exercise powers in
accordance with the terms of legislation. By didnt
of constitutional provision, parliament could
determine matters amenable to appeal before
the court of appeal. A deliberate exclusion of a
second appeal to court of appeal, under section
115(3) of the Armed Forces Act, was therefore
parliaments clear intention, in the context of
section 60(1) of the repealed constitution which
stipulated that the High courts determination of
criminal appeals from the court martial was final.
8. Section 115(3) of the Armed Forces Act, was
therefore in conformity with the repealed
constitution of Kenya. The Armed Forces Act, by
virtue of its continuous operative effect given by
section 7 of the sixth schedule to the Constitution
of Kenya, 2010 was until its repeal by the Kenya
Defence Forces Act, a constitutionally valid
statute law. Since the trial of the appellant was
conducted under the Armed Forces Act, which
was valid at the time, therefore the Constitution
of Kenya, 2010 could not render unconstitutional
a law which was at all times valid under the old
constitution.
9. Furthermore, article 50(2) (q) of the Constitution
prescribed that a person under conviction could
appeal, or apply for a review before a higher
court as prescribed by law. The prescribed law
after the promulgation of the new constitution,
2010, for the period it was in effect before repeal
was section 115(3) of the Armed Forces Act; and
it provided that appeals in criminal cases from
the court martial terminated at the High Court.
Appeal dismissed.
41

The Court of Appeal Cases

High court has no jurisdiction in resolving electoral disputes relating to members of the
County Assembly
Jaldesa Tuke Dabelo v IEBC & Anor
Civil Appeal No 37 of 2014
Court of Appeal at Nairobi
A Visram, M Koome & J Otieno Odek, JJA
January 21, 2015

Issues
I.
Whether the High Court is the proper forum
for the determination of disputes involving
membership to County Assemblies.
II.
Whether there exists instances in which

applications for judicial review as opposed to
election petitions can be followed to unseat a
gazetted member of a County Assembly.
III.
Whether disputes challenging the nomination

of candidates to County Assemblies could
be resolved through applications of judicial
review; they having arisen out of the quasijudicial functions of the Independent Electoral
& Boundaries Commission (IEBC) as the
nominating body.
IV.
Whether judicial review applications could be

used to invoke the supervisory jurisdiction of the
High Court in election matters.
Judicial Review Prerogative orders orders of certiorari

claim seeking to quash decision of the Independent
Electoral and Boundaries Commission in gazetting a
member of the County Assembly claim challenging the
quasi-judicial function of the Independent Electoral and
Boundaries Commission in gazetting a member of the
County Assembly whether such quasi-judicial functions
can be challenged through Judicial review applications or
election petitions whether judicial review can be used
to invoke supervisory jurisdiction of the High Court in
electoral matters Section 8 & 9, Law Reform Act
Electoral Law election petitions procedure for
resolving electoral disputes electoral disputes relating
to members of the County Assembly section 75 (1) (a)
Elections Act
Held:
1. Judicial Review is a procedure available to
challenge quasi-judicial decisions under the
provisions of section 8 and 9 of the Law Reform
Act. The High Court has unlimited jurisdiction
as well as a supervisory jurisdiction over
subordinate courts and tribunals in their exercise
of quasi-judicial powers.
2. Section 75(1) (a) of the Elections Act provided
that the question as to the validity of election of a
member of County Assembly was to be heard and
determined by the Resident Magistrates Court

designated by the Chief Justice. The assumption
of jurisdiction by courts in Kenya is a subject
regulated by the Constitution, statute law and
judicial precedent. A court could not arrogate to
itself jurisdiction through craft of interpretation,
or by way of endeavours to discern or interpret
the intentions of Parliament, where the wording
of legislation was clear and unambiguous.
3. Upon the gazettment of members of County
Assembly, they were deemed to be elected
members of the County Assembly. Therefore,
the proper and original forum to determine the
question of the validly nominated and gazetted
representatives was the Resident Magistrates
court under section 75(1) (a) of the Elections
Act. Consequently, the High Court had no
original jurisdiction to determine questions of
membership to county assemblies.
4. The jurisdiction of the High court in electoral
matters was a special jurisdiction governed by
the Constitution and the Elections Act. The
supervisory jurisdiction of the High court was
inapplicable to electoral matters for the reason
that the procedure to follow was set out.
5. Any challenge to membership to the County
Assembly had to be by way of election petitions.
The trial court did not err in striking out the
appellants judicial review application as judicial
review was not the statutory procedure for
challenging membership to the County Assembly.
6. Rules of procedure are handmaidens of justice.
Where there is clear procedure for redress of any
grievance prescribed by a statute, that procedure
has to be strictly followed. The Elections Act
stipulated that the procedure to challenge
membership to the County Assembly was by
way of petition. The appellant having chosen the
wrong procedure could not turn around and rely
on article 159 of the Constitution of Kenya, 2010.
7. Article 159 of the Constitution of Kenya, 2010
was neither aimed at conferring jurisdiction
where none existed nor intended to derogate
from express statutory procedures for initiating
a cause of action before courts. The statutory
procedure stipulated for determining the
Cases
Cases
42
question of membership to the County Assembly

was by way of Petition.
8. A judicial review application could not be
allowed to circumvent the statutory procedure of
instituting an election petition to determine the
question of membership to a County Assembly.
That strategy constituted a mischief which the
court had to forestall to prevent a party from
using an institutional detour to litigate an issue
by seeking a remedy from the High Court in the
first instance (which was a different and improper

forum) rather than through the Resident
Magistrates court which was the designated
forum under Section 75(1) (a) of the Elections
Act.
Appeal dismissed.
Applicability of the pleasure doctrine in appointments made by a Governor

County Government of Nyeri & another v Cecilia Wangechi Ndungu
Civil Appeal No. 2 Of 2015
Court of AppealatNyeri
Visram, Koome &Odek, JJ.A
March 18, 2015
Reported by Njeri Githanga
Issues
i.
What was the prescribed mode of removal/

dismissal of a member of the County Executive
Committee from office?
ii.
Whether the doctrine of pleasure was applicable

in the dismissal of a member of a County
Executive Committee by the Governor under
section 31(a) of the County Governments Act and
if so what was the extent of its application?
iii.
Whether a member of the County Executive

Committee was appointed at the pleasure of a
Governor and whether he/she could be dismissed
at the Governors pleasure, without due process.
iv.
Whether the respondents termination was

subject to the Employment Act.
v.
Whether the respondents constitutional rights

were violated by the appellants.
vi.
Whether the remedies issued by the Industrial

Court were proper.
Constitutional Law-fundamental rights and freedomsright to fair administrative action-pleasure doctrine-whether

the right to fair administrative action was applicable in the
exercise of the pleasure doctrine- whether the respondent was
entitled to notification and hearing before dismissal - Whether
the respondents constitutional rights were violated by the
appellants-Constitution of Kenya, 2010, articles 41, 47, 236;
Employment Act, 2007, section 41; County Governments Act,
2012, section 31(a) & 40
Constitutional Law-pleasure doctrine-alegal principle
under jurisprudence in England that public officers within
Her Majestys service hold office at the pleasure of the Crownwhether the pleasure doctrine was applicable in Kenyas public
service-values and principles of the public service-Constitution
of Kenya, 2010, articles 2(4), 3, 200(2)(c), 232, 235(1), 236;
Constitutional Law-state officers- law governing the terms
and conditions of service for state officers- County Executive
Committee being a State Officer- whether the Employment Act
applied to state Officers-whether a State Officers terms and
conditions of service were regulated by the Constitution or the
relevant Statute, principles of fair administrative action and

rules of natural justice
Words and phrases- pleasure doctrine-A pleasure appointment
is defined in the Blacks Law dictionary, 9th Ed. as the
assignment of someone to employment that can be taken away
at any time, with no requirement of cause, notice or hearing
County Governments Act Section 40 provides:40 (1) Subject to subsection (2), the Governor may
remove a member of the county executive committee
from office on any of the following grounds:a. Incompetence;
b. abuse of office;
c. gross misconduct;
d. failure, without reasonable excuse, or written authority
of the governor, to attend three consecutive meetings of
the county executive committee;
e. physical or mental incapacity rendering the executive
committee member incapable of performing the duties of
that office; or
f. gross violation of the Constitution or any other law.
(2) A member of the county assembly, supported by at
least one-third of all the members of the county assembly,
may propose a motion requiring the governor to dismiss
a county executive committee member on any of the
grounds set out in subsection (1).
(3) if a motion under subsection (2) is supported by at
least one-third of the members of the county assemblya. the county assembly shall appoint a select committee
comprising five of its members to investigate the matter;
and
b. the select committee shall report within ten days, to
the county assembly whether it finds the allegations
against the county executive committee member to be
substantiated.
(4) the county executive committee member has the right
to appear and be represented before the select committee
43
during its investigations.

(5) If the select committee reports that it finds the
allegationsa. unsubstantiated, no further proceedings shall be
taken;or
b. substantiated, the county assembly shall vote whether
to approve the resolution requiring the county executive
committee member to be dismissed.
(6) if a resolution under subsection (5)(b) is supported by a
majority of members of the county assemblya. the speaker of the county assembly shall promptly
deliver the resolution to the governor; and
b. the governor shall dismiss the county committee
executive member.
On the other hand, Section 31(a) of the County
Governments Act provides:31. The governor
a. may, despite section 40, dismiss a county executive
committee member at any time, if the governor considers
that it is appropriate or necessary to do so;
Held,
1. In determining how a member of a County Executive
Committee could be removed from office the
court had to take into consideration the relevant
constitutional and statutory provisions. The County
Governments Act was enacted pursuant to article
200 of the Constitution to give effect to Chapter 11
of the Constitution which provided for a devolved
government. In particular article 200 (c) placed an
obligation on Parliament to enact legislation which
would provide the manner of election or appointment
of persons to, and their removal from, offices in the
county governments.
2. The cardinal rule for construction of a statute was
that a statute should be construed according to the
intention expressed in the statute itself. The object
of all interpretation of a written instrument is to
discover the intention of its author as expressed in
the instrument. Therefore the object in construing
an Act is to ascertain the intention of Parliament as
expressed in the Act, considering it as a whole in its
context.
3. From the language adopted by the legislator
in enacting sections 40 & 31(a)of the County
Governments Act there were two methods through
which a member of a County Executive Committee
could be dismissed.
a. Under section 40a a Governor could dismiss
a County Executive Committee member on
any of the aforementioned grounds following
a resolution by the County Assembly for such
dismissal. In that case the dismissal was initiated
by the County Assembly.
b. Under section 31(a)a Governor could dismiss a
County Executive member on his own motion
at any time if he considered it appropriate and
necessary to do so. That appeared to vest an

element of discretion on the part of the Governor
when it comes to dismissing a member of a
County Executive Committee and was the subject
of interpretation in the appeal.
4. Originally the doctrine of pleasure was a prerogative
power which was unfettered. A holder of an office
under pleasure could be removed at any time, without
notice, without assigning cause, and without there
being a need for any cause. However, with the passage
of time and evolution of democracy the doctrine had
undergone a series of modification. The evolution
of the doctrine of pleasure had been on the basis of
firstly, putting to an end arbitrary action by a public
authority and secondly, ensuring that such a power
was exercised reasonably and for the public good.
5. There was a distinction between the doctrine of
pleasure as it existed in a feudal set-up and the
doctrine of pleasure in a democracy governed by the
rule of law. In the nineteenth century feudal set-up
unfettered power and discretion of the Crown was not
an alien concept. However, in a democracy governed
by the Rule of Law, where arbitrariness in any form is
eschewed, no Government or Authority has the right
to do what it pleases. The doctrine of pleasure does
not mean a license to act arbitrarily, capriciously or
whimsically. It is presumed that discretionary powers
conferred in absolute and unfettered terms on any
public authority will necessarily and obviously be
exercised reasonably and for public good.
6. The application of the doctrine had been subjected
to qualifications expressly through legislation or by
implication. In India certain pleasure appointments
had been subjected to restrictions by the Constitution.
7. Comparative jurisprudence showed that the
evolution of the doctrine of pleasure connoted that
a public authority ought to act reasonably and/
or fairly in exercising the said power. The extent
of reasonableness or fairness was dependent on
the express or implied qualification imposed in the
exercise of the said doctrine by a public authority.
8. The interpretation of the law is always contextual
as the law does not operate in a vacuum. The
adjudicator was required to take into account the
legal context in which he was to apply the law. The
County Governments Act was enacted to give effect
to Chapter 11 of the Constitution which provided
for devolution. Therefore, interpretation of section
31(a) of the said Act ought to be in light of the
values, purposes and principles of the Constitution.
Whenever a court was called upon to interpret an Act
of Parliament it should ensure that the Act conformed
to the Constitution.
9. The current Constitution explicitly stated that
sovereign power belonged to the people and the
exercise of the said power ought to be in accordance
with the Constitution. The Constitution took
away the notion that sovereign power was vested
in individuals or certain offices and could be
exercised at the will of the said individual or office.
The preamble to the Constitution provided that in
Cases
44
Cases
adopting and enacting the Constitutionthe people of
Kenya recognize the aspirations of all Kenyans for a
government based on the essential values of human
rights, freedom, democracy, social justice and the rule
of law. The Kenyan people exercised their sovereign
and inalienable right to determine the form of
governance of the country.
10. Article 1(3) (b) of the Constitution provided that

the sovereign power was delegated to the national
executive and the executive structures in the county
governments. Article 10 (1) of the Constitution binds
all state organs, state officers, public officers and all
persons to observe the national values and principles
of governance when applying or interpreting the
Constitution; enacting, applying or interpreting any
law; or implementing public policy decisions. Article
10(2) set out the national values and principles of
governance including good governance, integrity,
transparency and accountability.
11. Chapter 6 of the Constitution provided for leadership
and integrity and placed an obligation on leaders to
exercise the authority vested in them in a manner
that was consistent with the purposes and objects of
the Constitution. Article 73(2) (d) of the Constitution
had made leaders accountable to the public for
their decisions and actions. Further, article 174 (a)
provided that one of the objects of devolution was
to promote democratic and accountable exercise of
power. Section 3(b) of the County Governments Act
indicated one of the objectives of the Act was to give
effect to the objects and principles of devolution as
set out in articles 174 & 175 of the Constitution.
Therefore in interpreting the nature of the power
of a Governor under Section 31(a) of the County
Governments Act the court had to take into account
the foregoing.
12. Section 31 (a)granted power to a Governor to dismiss
a member of the County Executive Committee
at any time, that is, at his pleasure. However, the
said power was qualified to the extent that he
could only exercise the same reasonably and not
arbitrarily or capriciously. By dint of article 179(1)
of the Constitution and section 34 of the County
Governments Act the executive authority of a County
was vested in the County Executive Committee.
The County Executive Committee comprised of the
Governor, Deputy Governor, members of the County
Executive Committee who were appointed by the
Governor. The members of the County Executive
Committee assisted the Governor to carry out his
mandate under the law. It was the Governor who
assigned to every member of the County Executive
Committee responsibility to ensure the discharge
of any function in the County. That was the reason
why the County Executive Committee members
were individually and collectively accountable to
the Governor in the exercise of their powers and
performance of their duties and responsibilities.
13. A County Executive Committee member was the
Governors right hand in his/her respective office.
Hence the Governor had to have confidence in the
County Executive Committee member. Where such
confidence was lost the Governor ought to have the

capability of removing such a member without undue
delay so as to enable the County Executive Committee
to function for the benefit of the County.
14. Section 31 (a) provided that a Governor could
dismiss a County Executive Committee member at
any time, if he/she considered that it was appropriate
or necessary to do so. The provision placed an
obligation on the Governor to exercise the said
power only when necessary or appropriate. That
entailed reasonableness on the part of the Governor
in exercising the power.
15. Reasonableness is a deferential standard animated by
the principle that underlies the development of the
two previous standards of reasonableness; certain
questions that come before administrative tribunals
do not lend themselves to one specific, particular
result. Instead, they could give rise to a number of
possible, reasonable conclusions. A court conducting
a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes. In
judicial review, reasonableness was concerned mostly
with the existence of justification, transparency and
intelligibility within the decision making process
but it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
16. By virtue of the fact that a Governor ought to exercise
his powers for the public good he should not act on
selfish motives but for the benefit of his/her county.
The reasons for exercising the said power ought to
be valid and compelling and would depend on the
circumstances of each case. Consequently, the power
to dismiss a member of the County Executive was
qualified to the extent that the same ought to be for
the benefit of the County and in accordance with the
principles of devolution as set out above.
17. The burden lay with the respondent to establish that
her dismissal was arbitrary and capricious and that
her rights were violated.
18. The extent to which due process was applicable in a
case such as the one before the court depended on
the express and implied limitations by statute and
the circumstances of the case. There were certain
circumstances a Governor could lose confidence in
a member of a County Executive Committee and
due to the sensitivity and/or urgency of the matter at
hand the Governor may dismiss the member without
giving notice of his intention to do so. Further, section
31 (a) of the County Governments Actdid not require
the Governor to hold a disciplinary hearing in respect
of the said member before dismissal; he could only
dismiss if he considered it appropriate or necessary.
Appropriateness or necessity was not arbitrariness
or whimsical. Appropriateness or necessity imports
the requirement that there must be reasons that make
the dismissal appropriate or necessary. It was those
reasons that determine whether the discretionary
power exercised under Section 31(a) of the County
Governments Act was reasonable or not.
45
19. In the circumstances the respondent proved that the

2nd appellants actions were arbitrary since there was
no evidence that the 2nd appellant acted reasonably
in dismissing the respondent. Consequently, the
respondents right to a fair administrative action was
violated by the appellants.
terms and conditions of service were regulated by

the Constitution or the relevant Statute, principles of
fair administrative action and rules of natural justice.
It therefore followed that a member of the County
Executive Committee being a State Officer was not
subject to the provisions of the Employment Act.
20. The Employment Act was enacted to govern the

relationship of an employer and employee under
a contract of employment. Part VI provides an
elaborate due process to be followed in the case of
termination/dismissal of employees. It provides for
the right to be notified of the intention to dismiss
and a fair hearing. However, the Employment Act
did not apply to State Officers. A State Officers
21. The respondent had filed the Petition in the Industrial

Court pursuant to article 22 of the Constitution hence
the court could grant appropriate relief including an
order of judicial review.
Appeal dismissed with costs to the respondent.
Damages awarded at Ksh. 12 Million for breach of freedom from torture

Koigi Wamwere v Attorney General
P N Waki, P O Kiage & J Mohammed, JJA
March 6, 2015
Brief facts:
The appellant sought redress at the High Court on account
of contravention and violation of his fundamental rights
and freedoms during his first detention without trial
between 9th August 1975 and 12th December 1976, his
second detention without trial from 5th August 1982 to
12th December 1984, torture at Nyayo House torture
chambers for 11 days from 8th October 1990 to 19th October
1990, and torture at Kamiti Maximum Security Prison
from 19th October 1990 to 19th January 1993 and for false
arraignment for fake robbery with violence charges from
5th November 1993 to December 1996 at Nakuru Chief
Magistrate Criminal Case No. 2273/92. He sought Ksh.
200 Million; however the judge awarded a global award
of Ksh. 2.5 Million for the violation of the petitioners
rights under section 74 of the former Constitution. He
was dissatisfied with that judgment and thus appealed to
set aside the award of Ksh. 2.5 Million and award a global
sum of Kshs. 200 Million compensation in its place.
Issues:
i.
Whether the appellants rights to fair hearing

under section 77 of the repealed Constitution were
violated.
ii.
Whether the appellants right to freedom from

torture under the repealed constitution had been
violated.
iii.
Whether the Court of Appeal could review the

global award of damages of Ksh. 2.5 Million to Ksh.
200 Million.
Constitutional Law fundamental rights and freedoms enforcement of fundamental rights and freedoms - right to fair
hearing freedom from torture, cruel and degrading treatment
claim where one appellant challenged the award of damages
granted by trial court for breach of fundamental rights and
freedoms Repealed Constitution of Kenya, sections 70, 72,
74, 77, 83
Held:
1. Section 83 of the former Constitution of Kenya
provided for constitutionality of detention
without trial in so far as it legitimized part 3 of
the Preservation of Public Security Act.
2. As to whether the trial court erred by not
awarding damages for he violation of the
appellants rights in Nakuru Criminal case no.
2273 of 1993, the trial court did not misdirect
itself, did not apply wrong principles, did not
consider extraneous matters or failed to take into
account relevant matters. The instant court was
not satisfied that the complaints raised before the
trial court were such as to bring his case outside
the general purview of the tort of malicious
prosecution, if at all, and was therefore unable to
accept as valid the criticism levelled against the
trial court for concluding as it did. The instant
court was not able to find that there was anything
in the proceedings that remotely approached
the egregious abuse and virtual negation of the
fair trial guarantee to justify the courts award of
damages.
3. Torture was outlawed under section 74 of the
former constitution, article 7 of the International
Covenant on Civil and Political Rights (ICCPR),
the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or
Punishment. That absolute ban of torture was
a principle of jus cogens and was a peremptory
norm of international law.
Torture is a
deplorable departure from civilised norms and a
grave diminution of and derogation from human
dignity thus deserving of opprobrium could not
therefore be gainsaid.
4. Whereas prison conditions as picture-squarely
described by the appellant left a lot to be desired
Cases
Cases
46
and cried out for reform, the treatment suffered

by the appellant in common with other inmates,
whether in detention or in prison, did not amount
to torture as legally defined under article 1 of the
Convention against Torture.
5. Regarding the Ksh. 200 million in terms of
damages urged both before the trial court and the
instant court had no foundation in authority or
reality. There was no justification for it. Given,
however, the age of the older authorities which
ranged between Ksh. 1.5 million and 2.5 million
in damages, and considering that the violation
of rights suffered by the appellant fell under
two distinct instances namely the torture at the

macabre Nyayo house cells and while held in
Kamitis Block G, which the trial court found and
accepted, the sum of Kshs. 2.5 million awarded to
him as the global general damages was patently
inadequate.
Appeal succeeded only to the limited extent of quantum.
Damages awarded at Ksh. 12 million with interest at court
rates.
Appellant was to have only half of the costs of the appeal.
There is no Right of Appeal from a decision of the High Court on an arbitral award under
section 35 of the Arbitration Act
Nyutu Agrovet Limited v Airtel Networks Limited
Civil Appeal (Application) No 61of 2012
Karanja, Mwera, Musinga, Minoti & Mohammed, JJA
March 6, 2015
appeal.
Brief Facts
A dispute arose between the applicant and the respondent
relating to distribution of telephone products. The dispute
was referred to a sole arbitrator in accordance with the
terms of a contract between the parties. The arbitrator
made an arbitral award in favor of the respondent.
The arbitration agreement expressly provided that the
decision of the arbitrator shall be final and binding on the
parties. Aggrieved by the award, the applicant applied,
under section 35 of the Act, to set aside the award. The
High Court in setting aside the arbitral award held that
the arbitrator had gone beyond the dispute referred to
him by the parties.
Aggrieved by the decision of the High Court, the
respondent brought an appeal before the Court of Appeal.
In response, the applicant filed an application seeking to
strike out the appeal on the basis that no appeal lay to the
Court of Appeal.
In the instant case a five judge bench was constituted
because there had been no judicial concurrence as to
whether the Court of Appeal had jurisdiction to hear an
appeal from a decision of the High Court given under
section 35 of the Act. There had been divergent views on
the issue and it was deemed necessary that a five judge
bench be constituted to consider whether the Court of
Appeal had jurisdiction to hear such appeals.
Issues
i.
Whether in the absence of an express provision

of a right of appeal in an arbitration agreement
a party to arbitral proceedings has a right of
appeal to the Court of Appeal from a decision
of the High Court given under section 35 of the
Arbitration Act, 1995.
ii.
Whether the general jurisdiction to hear appeals,

which is conferred on the Court by article 164
of the Constitution, is distinct from a right of
iii.
Whether the Civil Procedure Rules would be

applicable in arbitration proceedings.
Appeal right of appeal - appeal to the Court of Appeal from a

decision of the High Court in an arbitration agreement - whether
in the absence of an express provision of a right of appeal in
an arbitration agreement a party to arbitral proceedings has
a right of appeal to the Court of Appeal from a decision of the
High Court given under section 35 of the Arbitration Act, 1995
- Arbitration Act, sections 35, 39
Constitutional Law jurisdiction of the Courts to hear appeals
- whether the general jurisdiction to hear appeals conferred on
the Court by the Constitution is distinct from a right of appeal
Constitution of Kenya 2010,article 164
Arbitration procedure in Arbitration proceedings
whether the Civil Procedure Rules would apply in Arbitration
Proceedings Arbitration Rules, rule 11
Statutes interpretation of statutes interpretation of the
phrase Notwithstanding - the effect and implication of the
words Notwithstanding under sections 10 and 35,- whether
the interpretation of the said sections allowed an appeal to the
Court of Appeal Arbitration Act section 10, 35
Held
Per JW Mwera JA
1. The right to appeal was expressly granted by law
and not by implication. And a party had to show
which law donated the right of appeal intended
to be exercised. In the instant case, section 35
did not grant the right of appeal to the appellant
and it had not demonstrated any other statutory
provision that accorded it such a right, thereby
making its appeal incompetent and thus a nullity.
2. The principle on which arbitration was founded,
namely that the parties agree on their own, to
47
that was that although the Act was a national

legislation, it had to be in harmony with the
United Nations Commission on International
Trade (UNICITRAL) model Law on which
it was modeled. It had to be in harmony also
with the other international requirements and
standards because it dealt with both domestic
and international arbitration.
take disputes between or among them from the

courts for determination by a body put forth by
themselves and adding to all that as in the instant
case, that the arbitrators award had to be final.
It could be taken that as long as the given award
subsisted it was theirs. But in the event it was set
aside as was the case, that decision of the High
Court was final.
3. The High Courts decision was final and must be
considered and respected to be so because the
parties voluntarily choose it to be so. They put
that in their agreement. They desired limited
participation by the courts in their affairs and that
had been achieved. Despite the loss or gain either
party might impute to, the setting aside remained
where it fell. The courts, including the Court of
Appeal, should respect the will and desire of the
parties to arbitration.
4. Article 164(3) of the Constitution, section
3(1) of the appellate Jurisdiction Act and even
section 75 of the Civil Procedure Act, that gave
the Courtof Appeal jurisdiction to hear appeals
from the High Court, should not be read to mean
that those provisions of law also conferred the
right of appeal on the litigants. The power or
authority to hear an appeal was not synonymous
with the right of appeal which a litigant should
demonstrate that a given law gave him or her the
right to come before the Court of Appeal.Even
if jurisdiction and the right of appeal might be
referred to side by side or in the same breath, the
two terms did not mean one and the same thing.
5.
Jurisdiction as well as the right of appeal had

to be conferred by law, not by implication or
inference. If the power and authority of or for a
court to entertain a matter (jurisdiction) was not
conferred by law then that court has no business
to entertain the matter.
6. The Court of Appeal had jurisdiction to hear

any matters coming on appeal from the High
Court and any other court or tribunal prescribed
by law. But a party who desired his appeal to
be heard at the Court of Appeal had a duty to
demonstrate under what law that right to be
heard was conferred, or if not, show that leave
had been granted to lodge the appeal . However,
it had to be appreciated that such leave did not
constitute the right to appeal. The right had to
precede leave.
Per W Karanja, ( J Mohammed JA concurring)
7
There was no right of appeal under section 35 of

the Arbitration Act. The right of appeal had to
be conferred by statute. It could not be inferred
for the only reason that it had not been expressly
denied.
Section 35 of the Act did not exist in isolation and

had to be read together with section10. When
that was done, one could clearly appreciate the
buffer surrounding the arbitral process that the
Arbitration Act had put in place. The reason for
The clear provisions in the Arbitration Act could

not be displaced by the provisions of the Civil
Procedure Act and Rules except as provided
for in the Act itself as succinctly provided in
section10. Moreover, Rule 11 of the Arbitration
Rules provided that the Civil Procedure Rules
shall apply to arbitral proceedings under the Act
so far as is appropriate. That would apply where
there was a lacuna particularly in the rules of
procedure but could not override clear statutory
provisions such as sections 10 and 35 of the Act.
10 No right of appeal was provided for in arbitral

awards save for matters pegged on section 39 of
the Act. A right of appeal was conferred by statute
and could not be inferred.
11 On the application of section 3A and 3B of the
Appellate Jurisdiction Act, theCourt of Appeal had
pronounced itself succinctly in several matters
on what had come to be known as the Oxygen
Rule. It was not a cure for all shortcomings
(perceived or otherwise) in Kenyan laws to be
applied with abandon even where there existed
rules of procedure to cater for the situations in
question. Those provisions were not meant to
replace any rules, but rather to complement them
in instances where the law or applicable rules
were deficient or otherwise insufficient.
12 The Arbitration Act was self-sufficient in
itself, but where necessary it called in aid rules
of procedure from the Civil Procedure Rules
through Rule 11 of the Arbitration Rules but not
otherwise.
13 Article 163(4) was not a carte blanche for any
litigant to come to the Court of Appeal on any
matter even where leave had hitherto been
considered a pre-requisite. That was not an
obstruction to access to justice.
14 Section 10 and 35 of the Arbitration Act had to be
interpreted within the context of the concept of
finality as internationally recognized in arbitral
proceedings conducted under the UNICITRAL
model. They were not unconstitutional at all.
Arbitration as a dispute resolution mechanism
was not imposed on parties, they choose it
freely when they incorporated the arbitration
agreement into their contract, and at times even
include the finality clause as was the instant case.
When they do so, they send the message that they
do not wish to be subjected to the long, tedious,
expensive and sometimes inconvenient journey
that commercial litigation entailed. That was
what party autonomy, a concept that the courts
treated with deference was all about.
Cases
48
Cases
15 When
parties
expressly
exclude
court
intervention in their arbitration agreement,
then they should honour it and embrace the
consequences. They could not turn round and
claim that the very law they had freely chosen to
govern their business was unconstitutional. That
was what the respondent was trying to do.
16 Finality as a concept in arbitration was shared
worldwide by states that had modeled their
Act on the UNICITRAL Model like Kenya. The
common thread running through all those Acts
was the restriction of court intervention except
where necessary and in line with the provisions
of the Act. Sections 35 and 37 of the Act were
wholly exclusive except where a particular clause
invited the intervention of the Court.
17 Obiter Our courts must therefore endeavor to
remain steadfast with the rest of the international
community we trade with that have embraced
the international trade practices espoused in
the UNICITRAL Model. If we fail to do so, we
may become what Nyamu J. (as he then was) in
Prof. Lawrence Gumbe & Anor v - Hon.Mwai
Kibaki & Others, High Court Misc. Application No.
1025/2004 referred to as; A Pariah state and
could be isolated internationally.
Per Musinga J A
18 Whereas article 3 of the Constitution generally
gave the Court of Appeal jurisdiction to hear
appeals from the High Court, that per se did not
accord a party to arbitral proceedings a right of
appeal save as provided for under the arbitration
agreement and/or the Act. Article 164 of the
Constitution did not confer an automatic right
of appeal in respect of each and every decision
of the High Court. There was a clear distinction
between the general jurisdiction of the Court to
hear appeals from the High Court as conferred
to it by the Constitution and a right of appeal
which was vested on a litigant by statute and
that right was not absolute, it might be ousted or
circumscribed by statute.
19 The appellants right to appeal to the Court of
Appeal was not constitutionally guaranteed and
could not be curtailed by a statutory limitation.
20 Article 159(c) of the Constitution enjoined the
Judiciary to promote alternative forms of dispute
resolution including reconciliation, mediation
and arbitration, to that extent, arbitration was
constitutionally recognized as one of the methods
of resolving disputes and where parties choose
that route, the guiding law was the Arbitration
Act
21 Kenya had adopted the UNCITRAL Model Law
on international commercial arbitration which
stipulated that courts of law could not intervene
in an arbitral process except in circumstances as
provided by the law. Courts had instead played a
supportive role. Kenyas Arbitration Act provided
for both domestic and international arbitration
22 Section 39(3), provided the only instance where

the Court of Appeal could intervene after the High
Court had pronounced itself on an application
to set aside an arbitral award. The contextual
meaning of the word Notwithstanding as used
in section 39(3) is inspite of or regardless of.
23 The right of appeal conferred by section 39 was
an exception to the non-intervention policy, the
running theme in the Act. To hold that the word
Notwithstanding as used in section 39(3) of the
Act is ineffectual would not only be an absurdity
but also a deliberate violation of an important
principle of statutory interpretation that When
the legislature enacts a particular phrase in
a statute the presumption is that it is saying
something which has not been said immediately
before.
24 Section 10 debars court intervention in arbitral
proceedings except as may be permitted by the
Act. The section was not unconstitutional. To the
contrary, it affirmed the Constitutional provision
that required the Judiciary to promote alternative
dispute resolution mechanisms. To promote,
in this context, means to further the progress
of; support or encourage the advancement of
a concept. The Court would not be promoting
arbitration if it kept on intervening in any of its
processes, save as required by the Arbitration Act,
that would be negating the spirit of the Act.
25 The appellant herein had no right of appeal to
the Court of Appeal. Such an appeal could only
lie if the parties had so agreed in advance in their
arbitration agreement prior to the delivery of the
award or if the Court of Appeal, being satisfied
that a point of law of general importance was
involved, the determination of which would
substantially affect the rights of one or more of
the parties, grants leave to appeal, which was not
the case here.
26 No court should interfere in any arbitral process
except as in the manner specifically agreed upon
by the parties or in particular instances stipulated
by the Arbitration Act. The principle of finality of
arbitral awards as enshrined in the UNCITRAL
Model law that had been adopted by many
nations had to be respected. The parties herein
had agreed that the Arbitrators decision shall be
final and binding upon each of them. Since they
did not agree that any appeal would lie, the appeal
by the appellant was an unjustifiable attempt to
wriggle out of an agreement freely entered into
and had to be rejected.
Per Minoti JA
27 The following salient features of section 35
underlined the deliberate policy of the Act to limit
intervention by courts in arbitral proceedings.
a. Section 35 set out the only situations under
which the High Court might set aside an
arbitral award. The section provided a
closed catalogue of circumstances that justify
49
intervention by the courts in an arbitral

award, leaving no room for intervention on
grounds other than those stipulated in the
provision. For the purposes of intervention
by the courts in arbitral proceedings, section
35 set out the absolute maximum grounds
for setting aside an arbitral award.
b. the grounds upon which the courts may set
aside an arbitral award are of a pretty serious
nature, such as incapacity of a party; illegality
of the arbitral proceedings; breach of the rules
of natural justice; excess of jurisdiction; fraud;
bribery; corruption; undue influence and
breaches of public policy. The serious nature
of the grounds recognized to justify setting
aside an arbitral award serves, to eliminate
run-of-the mill complaints, grievances and
disaffections as basis for intervention.
c.
the deference with which the arbitral award

is held in the Act is underlined by the fact
made clear by section 35(2)(a)(iv), that even
where the arbitrator has exceeded his or her
jurisdiction, if it is possible to sever the part
of the award that was properly within the
remit of the arbitrator from that which was
not, the court had to opt for that approach.
The effect was to respect and uphold the part
of the award that was properly within the
arbitrators mandate, without allowing it to
be undermined or contaminated by the one
that was not.
d. The provision empowered the High Court to

suspend proceedings before it, which sought
to set aside an arbitral award, so as to give
the arbitrator an opportunity to rectify any
faults, which would have otherwise justified
intervention by the court. In this provision,
one sees the court being required, as much as
possible, to exercise restraint in intervening
in arbitral awards and proceedings and to
give the arbitration process opportunity to
resolve the dispute. In other words, the courts
were being requested, as much as possible, to
defer to arbitration.
e. Section 35 provided a strict time frame
within which the application seeking the
intervention of the High Court in arbitral
awards must be made. Failure to observe the
prescribed time limit led to forfeiture of the
right to question the award or to ask the High
Court to intervene.
f. Section 35 did not provide a party, who was
aggrieved by a decision of the High Court in
the exercise of the powers conferred by that
provision, a right of appeal to the Court of
Appeal. The provision was completely silent
on the right of a further appeal. That silence
raised a fundamental question whether the
failure of the provision to provide expressly
for a right of appeal to the Court of Appeal,
while the provision was otherwise very clear
in its policy and intent to limit intervention

by the courts in arbitral awards, was a
deliberate choice or an accidental omission.
That was the crux of the application.
28 Under section 39 of the Act, intervention by
the courts in arbitral proceedings or awards
was predicated upon agreement by the parties
themselves. Where therefore the parties had
agreed to refer any question of law arising in the
course of the arbitration to the court, or to appeal
any question of law arising from an award to the
court, the High Court would properly assume
jurisdiction.
29 Under section 39, the courts would still not
intervene in arbitral proceedings unless the
parties had agreed to such intervention. Out of
deference to arbitration, even in cases where the
High Court was properly seized of a matter arising
from arbitral proceedings under section 39, the
court was empowered, if it deemed it appropriate,
to refer the matter back to the arbitrator for
reconsideration or to a new arbitrator, when one
had subsequently been appointed.
30 The right of appeal to the Court of Appeal was
created by section 39 (3) of the Act. That right
was not automatic. On the contrary, it was fairly
circumscribed. For the right of appeal to arise, the
High Court had to have made a determination in
arbitral proceedings under section 39(2) of the
Act, (i.e., the parties have agreed to refer questions
of law arising in the arbitral proceedings or in the
arbitral award to the High Court, and the High
Court had determined the issue or referred it back
to the arbitrator or a newly appointed arbitrator
for determination).Moreover, to entitle any of the
parties to appeal to the Court of Appeal against
the determination of the High Court, the parties
must have agreed prior to the making of the
arbitration award that an appeal would lie to the
Court of Appeal from the determination of the
High Court. Beyond that, the only other instance
when an appeal would lie to the Court of Appeal
from a determination of the High Court under
section 39(2) was where the Court of Appeal had
granted leave to appeal on the ground that a point
of law of general importance, the determination
of which would substantially affect the rights of
any of the parties, was involved in the intended
appeal.
31 Section 35 did not expressly provide for such
right of appeal. On the contrary its intention
was to limit intervention of the courts, including
intervention by appellate courts like the Court of
Appeal in arbitral awards. The clearest indication
that there was no right of appeal provided for
under section 35 and that no such right of appeal
was intended lay in the terms of section 39(3) of
the Act, which provided for the right of appeal to
the Court of Appeal.
32 The effect and implication of the words
Notwithstanding under sections 10 and 35, was
Cases
50
Cases
that both sections 10 and 35 of the Act did not
allow an appeal to the Court of Appeal. However,
where the circumstances provided for in section
39(3) arose, there was a right of appeal, irrespective
of, or in spite of the prohibition of appeals by
section 10 and 35. The phrase Notwithstanding
under sections 10 and 35 in section 39(3) meant
that an appeal was permitted under section 39,
without being affected by the bar or prohibition
of appeals in sections 10 and 35. Those words in
section 39 could not, with respect have been the
basis for arguing that there was a right of appeal
recognized in section 35. Properly interpreted, it
meant quite the very opposite, namely that there
was no right of appeal conferred by sections 10
and 35.
33 The rationale behind the limited intervention

of courts in arbitral proceedings and awards
lay in what was referred to as the principle of
party autonomy. At the heart of that principle
was the proposition that it was for the parties
to choose how best to resolve a dispute between
them. Where the parties had consciously opted
to resolve their dispute through arbitration,
intervention by the courts in the dispute was the
exception rather than the rule.
Application allowed, Suit struck out.
Show me your friend and I will show you your character. ~ African proverb
Some rights reserved by Josh Hallett
51
The High Court Cases

Court Declares Section 24 of the HIV and AIDS Prevention and Control Act
Unconstitutional
Aids Law Project v Attorney General & 3 Others
High Court at Nairobi
Petition No. 97 of 2010
I Lenaola, M. Ngugi, G. V. Odunga JJ
March 18, 2015
Reported by Emma Kinya Mwobobia
Issues:
i.
Whether section 24 of the HIV and AIDS

prevention and Control Act No. 14 of 2006 was
unconstitutional to the extent that it discriminated
against people living with HIV, women and
members of vulnerable groups since there was no
corresponding duty of confidentiality once the
information on ones status is disclosed
ii.
Whether section 24 of the HIV and AIDS

prevention and Control Act No. 14 of 2006 was
vague and broad with regard to the meaning of
inform, in advance, and sexual contact
iii.
What could be said to amount to sexual contact

in the context of section 24 of the HIV and AIDS
prevention and Control Act No. 14 of 2006
Words and Phrases definition meaning of the phrase sexual

contact where the definition is not clear from the wording of
the statutes definition attributed to the Dictionary - Blacks
Law Dictionary (8th Edition) 2014
Constitutional Law constitutionality of a provision in the
statute provision under section 24 of the HIV and AIDS
Prevention and Control Act claim that the provision was
unconstitutional to the extent that it was discriminatory
against persons by way of health status and therefore violating
the rights to privacy enshrined under the Constitution
whether the provision of the said Act was unconstitutional in
the circumstances Constitution of Kenya article 3; HIV and
AIDS Prevention and Control Act section 24
Statutes Interpretation of statutes interpretation of the
term sexual contact as used in the constitution claim that the
term was vague and broad especially with regard to the terms
in advance, inform and sexual contact allegation that
the nature of the provision of the statute on failure to disclose
information to a sexual contact who was largely undefined
meant that an offence may arise and also a risk to the realisation
of the rights to a fair hearing whether the petition had merit
Constitution of Kenya, 2010 articles 24,27 and 50; HIV and
AIDS prevention and Control Act No. 14 of 2006 section 22
and 24
HIV and AIDS prevention and Control Act No. 14 of
2006
Section 24 of the Act provides as follows:
(1) A person who is and is aware of being infected
with HIV or is carrying and is aware of carrying the

HIV virus shall (a) take all reasonable measures
and precautions to prevent the transmission of
HIV to others; (b) inform, in advance, any sexual
contact or person with whom needles are shared of
that fact. (2) A person who is and is aware of being
infected with HIV or who is carrying and is aware
of carrying HIV shall not, knowingly and recklessly,
place another person at risk of becoming infected
with HIV unless that other person knew that fact
and voluntarily accepted the risk of being infected.
(3) A person who contravenes the provisions of
subsection (1) or (2) commits an offence and shall be
liable upon conviction to a fine not exceeding five
hundred thousand shillings or to imprisonment for
a term not exceeding seven years, or to both such
fine and imprisonment.
(4) A person referred to in subsection (1) or (2)
may request any medical Practitioner or any
person approved by the Minister under section 16
to inform and counsel a sexual contact of the HIV
status of that person.
(5) A request under subsection (4) shall be in the
prescribed form.
(6) On receipt of a request made under subsection
(4), the medical practitioner or approved person
shall, whenever possible, comply with that request
in person.
(7) A medical practitioner who is responsible for the
treatment of a person and who becomes aware that
the person has not, after reasonable opportunity to
do so (a) complied with subsection (1) or (2); or
(b) made a request under subsection (4), may inform
any sexual contact of that person of the HIV status
of that person.
(8) Any medical practitioner or approved person
who informs a sexual contact as provided under
subsection (6) or (7) shall not, by reason only of that
action, be in breach of the provisions of this Act.
Constitution of Kenya, 2010
Article 31 provides:
Every person has the right to privacy, which includes
the right not to have:(c) information relating to their
Cases
Cases
52
family or private affairs unnecessarily required or

revealed; or(d) the privacy of their communications
infringed.
Article 24 (1), (2) and (3) provide:
(1) A right or fundamental freedom in the Bill of
Rights shall not be limited except by law, and then
only to the extent that the limitation is reasonable
and justifiable in an open and democratic society
based on human dignity, equality and freedom,
taking into account all relevant factors, including
a. The nature of the right or fundamental freedom;
b. The importance of the purpose of the limitation;
c. The nature and extent of the limitation;
d. The need to ensure that the enjoyment of rights
and fundamental freedoms by any individual does
not prejudice the rights and fundamental freedoms
of others; and
e. The relation between the limitation and its
purpose and whether there are less restrictive means
to achieve the purpose.
(2) Despite clause (1), a provision in legislation
limiting a right or fundamental freedom
f. In the case of a provision enacted or amended
on or after the effective date, is not valid unless the
legislation specifically expresses the intention to
limit that right or fundamental freedom, and the
nature and extent of the limitation;
g. Shall not be construed as limiting the right or
fundamental freedom unless the provision is clear
and specific about the right or freedom to be limited
and the nature and extent of the limitation; and
h. Shall not limit the right or fundamental freedom
so far as to derogate from its core or essential
content.
(3) The State or a person seeking to justify a
particular limitation shall demonstrate to the court,
tribunal or other authority that the requirements of
this Article have been satisfied.
Lectric Law Librarys Lexicon, the term sexual contact is
described as:
The intentional touching either directly or through
the clothing, of the genitalia, anus, groin, breast,
inner thigh or buttocks of any person with intent
to abuse, humiliates, harass, degrade or arouse or
gratify the sexual desire of any person.
Blacks Law Dictionary (8th Ed. 2004) on the other
hand while not defining sexual contact defines sexual
relations to include both sexual intercourse and physical
sexual activity that does not necessarily culminate in
intercourse.
Held:
1. A law is declared unconstitutional when it is
contrary to or in conflict with the Constitution.
Therefore where a statutory provision offended
the Constitution, the court was duty bound to
declare it unconstitutional and it was incumbent

upon any person claiming unconstitutionality
of a statutory provision to identify clearly the
constitutional provision contravened as well as
the offending statutory provision.
2. Legality is a fundamental rule of criminal law that
nothing is a crime unless it is clearly forbidden
in law. The principle is a core value, human
right and also a fundamental defence in criminal
prosecution in a way that no crime could exist
without a legal ground.
3. Article 2(5) of the Constitution expressly
imported the general rules of international law
and made them part of the laws of Kenya. Apart
from that, article 10 of the Constitution bound
State organs, State officers, Public officers and
all persons to national values and principles of
governance whenever they apply or interpret the
Constitution; enact, apply or interpret any law;
or make or implement public policy decisions.
One of the said values and principles was the rule
of law. It is now recognised as part of the rules of
international law that the principle of legality is
an integral part of the rule of law.
4. Legislation ought not to be too vague that the
subjects have to await the interpretation given to
it by the judges before they know what was and
was not prohibited. Whereas judge-made laws
could be tolerated under common law it certainly
had no place in the criminal legal system.
5. Elementary justice or the need for legal certainty
demanded that rules by which the citizen was
to be bound should be ascertainable by him by
reference to identifiable sources that are publicly
accessible. In criminal matters it was important
to have clarity and certainty. It was therefore clear
under the principle of legality, two principles
emerge: no one should be punished under a law
unless it was sufficiently clear and certain to
enable him to know what conduct was forbidden
before he did it; and no one should be punished
for any act which was not clearly ascertainably
punishable when the act was done.
6. In the absence of a clear definition of what
amounted to sexual contact under section 24 of
the Act, it was impossible to state with certainty
and precision how the targets of the section were
expected to conduct themselves and in respect
of whom. For example, were children sexual
contacts in relation to their mothers and if so
how was the disclosure supposed to take place
between the mother and the child?
7. Section 24 of the Act as drafted was so broad
that it could be interpreted to apply to women
who expose or transmit HIV to a child during
pregnancy, delivery or breastfeeding. Such
overbroad legislation was to be deprecated and
the spirit of the Constitution and its principles
frowned upon such overbroad enactments.
8. The right to privacy is one of the fundamental
53

rights enshrined in the Constitution. For the said

right to be limited, the provisions of article 24 of
the Constitution ought to be satisfied. Therefore
for a limitation to be justified, it ought to satisfy
the criteria that it is reasonable and justifiable in
an open and democratic society based on human
dignity, equality and freedom.
9. It was imperative for the Court to take into
account the international treaties on fundamental
and human rights, and freedoms all of which
provide for universal application of those rights
and freedoms and the principles of democracy
as well as decisions by Courts in jurisdictions
with similar legal systems in determining what
was reasonable and justifiable in an open and
democratic society based on human dignity,
equality and freedom.
10. Section 24 of the Act was in contravention of article
31 of the Constitution to the extent that the right
of others to disclosure of such information had
the likelihood of prejudicing the right to privacy
unless corresponding obligations were placed on
the recipients of the information with respect to
adherence to the confidentiality principle. It was
therefore imperative that the duty to disclose the
information, being a limitation on the right to
privacy, strictly fell within the confines of article
24 of the Constitution.
11. Section 24 of the Act did not meet the principle
of legality which was a component of the rule
of law. The section was vague and overbroad
and lacked certainty especially with respect to
the term sexual contact. It failed to meet the
legal requirement that an offence ought to be
clearly defined in law as one could not know

from the wording of the section what acts and
omissions would make him or her liable. To
retain that provision in the statute books would
lead to an undesirable situation of the retention
of legislation that provided for vague criminal
offences which left it to the courts subjective
assessment whether a defendant was to be
convicted or acquitted.
12. The limitation to privacy imposed by section 24
did not satisfy the requirements of Article 24 of
the Constitution. Section 24 of the HIV and AIDS
Prevention and Control Act, No. 14 of 2006
was therefore unconstitutional for being vague
and lacking in certainty. It was also overbroad
and was likely to violate the rights to privacy as
enshrined under article 31 of the Constitution.
13. (Obiter) Although the submissions made by the
parties herein in particular the petitioner and
the amicus tended to attack the constitutionality
of the Act as a whole we have refrained from
dealing with the issues other than those which
focus on section 24 of the Act since the petition
before us was directed at the said provision. We
however are of the view, having considered the
issues raised by the parties before us that there
is a serious need for the State Law Office to take
another look at the HIV and AIDS Prevention
and Control Act, No. 14 of 2006 with a view to
avoiding further litigation surrounding the said
piece of legislation.
Each party was to bear its own costs.
Court recognizes the rights of intersex persons & recommends legislation on the issue.
Baby A (Suing through the mother E A) & another v Attorney General & 5 others
Petition 266 of 2013
Constitutional and Human Rights Division
Isaac Lenaola, J
December 5, 2014
Brief facts
The Petitioner was born with both male and female
genitalia and a Lab Report had a question mark in the
column indicating the Petitioners gender. The Petitioner
was not issued with a birth certificate. In the Petition
lodged in Court through the Petitioners mother, the
Petitioner claimed that the question mark in the medical
documents offended the Petitioners rights to legal
recognition, human dignity and freedom from inhuman
and degrading treatment.
Additionally, the issue on whether the suit was res judicata
because of the existence of a prior decision on the same
subject matter was raised. The prior decision referred
to was the decision made in R M v Attorney General &
others, Petition No 705 of 2007, on the question of the
recognition of intersex children.
Issues
i.
Whether the issues raised in the petition were res

judicata as they concerned a subject matter which
was decided upon in a prior case.
ii.
Whether Baby A was an intersex person and

whether Baby A had suffered a violation of the
right to legal recognition.
iii.
Whether, for purposes of categorization of a

persons sex, registration documents should be
required to provide for an intersex category apart
from providing for a male category and a female
category.
iv.
Whether there was need to collect data on

intersex persons in Kenya.
Cases
Cases
54
Constitutional Law - fundamental rights and freedomsenforcement of fundamental rights and freedoms-recognition
of the rights of intersex persons-Constitution of Kenya 2010,
article 27(4).
Statutes - statutory interpretation-the meaning of the
term sex with respect to an individuals gender-whether
intersex was a categorization within the term sex-Births
and Deaths Registration Act (Cap 149), section 2a.
Civil Practice and Procedure - res judicata-applicability
of the principle of res judicata-requirements for the
existence of a prior decision on the same subject matter
in a dispute between the same parties-whether the
existence of a prior decision on the same subject matter
would make the principle of res judicata applicable to a
suit-Civil Procedure Act (Cap 21), section 7.
Section 2 of the Births and Deaths Registration Act (Cap
149);
prescribed particulars means
(a) as to any birth, the name, sex, date and place
of birth, and the names, residence, occupations
and nationality of the parents;
Held
1. Res judicata would apply where the issues in
the matter before the Court were directly and
substantially in issue in a different matter between
the same parties, wherein a decision had already
been issued. While the suit touched on the subject
matter of the legal recognition and protection of
intersex children, which was an issue determined
in the prior case of R M v Attorney General &
others, Petition No 705 of 2007, the parties were
not the same and the issues in the prior suit went
beyond the legal recognition and protection of
intersex children.
2. Baby A was born with both male and female
genitalia and the categorization of a child as either
male or female could not be done with respect to
Baby A. Baby A was therefore an intersex child.
3. Under section 2a of the Births and Deaths
Registration Act (Cap 149), in order to register the
birth of a child the prescribed particulars which
were to be provided included the sex of the child.
Neither the Births and Deaths Registration Act
nor the Interpretation and General Provisions
Act (Cap 2) defined the term sex. However, Form
1, (The Register of Births) in the Schedule to the
Registration of Births and Deaths Act (Cap 149)
indicated that the sex of a child was either male
or female. There was no categorization offered
for a child with both male and female genitalia.
4. Article 27(4) of the Constitution of Kenya
2010 prohibited discrimination on any ground
including sex but it did not define the term sex.
Generally, sex would refer to the categorization
of persons into either male or female organisms
based on their reproductive functions and
their peculiarity of structure and function as

organisms.
5. Where it was difficult to conclusively determine
a childs gender at an early stage, it was best to
adopt the category whose external genitalia and
physiological features appeared more dominant.
(R M v Attorney General & others, Petition No 705
of 2007.)
6. A Lab Report Form from Kenyatta National
Hospital had the ? mark sign as to the babys
sex and such an indication created doubts as to
the childs gender and could impact on the childs
right to a name, identity and nationality.
7. The question as to whether registration and
identification documents should be required
to provide for a sex categorization of intersex
as opposed to a categorization of male or
female, was a question to be governed by clear
legislation. However, the Court could determine
questions as to whether intersex persons were
entitled to certain rights, whether their rights
had been violated and whether they had suffered
discrimination.
8. There was no evidence tendered, based on real
facts, that Baby A had suffered discrimination.
Discrimination was not an academic matter; it
would need to be established on the basis of real
facts.
9. Baby A and other intersex persons were entitled
to all the rights provided for in the Constitution
of Kenya 2010.
10. There was an obvious lack of guidelines and
regulations, in the case of intersex children,
on how medical examinations and eventual
corrective surgery, if needed, would be carried
out. Parliament was the proper forum for
purposes of the enactment of legislation which
would concern such guidelines and regulations.
11. The fact that an intersex person did not fall
within the definite criterion of being distinctively
male or female would not negate his or her rights
as a human being in whom rights and freedoms
were inherent.
12. Data on intersex persons was crucial in making
and designing policies to protect intersex persons
as a group of marginalized persons.
Petition partly allowed. (The Court found that there was no
evidence that the Petitioners rights had been violated but made
findings that the Petitioners birth should be registered and that
legislation enacted by Parliament governing intersex persons
was needed.)
55

Court grants orders to suspend certain sections of the Security Laws (Amendment) Act
Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & 7 others
Petition No 628 & 630 of 2014
High Court of Kenya at Nairobi
Constitutional and Human Rights Division
G V Odunga, J
January 2, 2015
Brief facts
The Security Laws (Amendment) Act, No 19 of 2014, was
enacted by the National Assembly and assented to by the
President of the Republic of Kenya on December 19, 2014.
In response, two Petitions (Petition 628 & 630 of 2014)
were lodged in Court to challenge the constitutionality of
the Act. The Petitions were consolidated.
With respect to the operationalization of the Act, while
the Petition was still pending in Court, two applications
were made. The 1st Petitioner (CORD) sought the
suspension of a selection of provisions within the Act
while the 2nd Petitioner (Kenya National Commission
on Human Rights KNCHR) sought the suspension of the
operationalization of the whole Act.
Issues
I.
Whether the Court had jurisdiction to

grant
conservatory
orders
against
the
operationalization of a piece of statute alleged to
be unconstitutional.
II.
Whether public officers, Senators, could be

allowed to participate in legal proceedings as
Legal Counsel.
III.
Whether a challenge allegedly brought at the

Senate against a statute would bar a challenge
lodged in Court against the same statute.
IV.
Circumstances in which conservatory orders

would be granted.
V.
Circumstances in which the Court would order

for the constitution of a bench of more than one
High Court Judge.
Jurisdiction - jurisdiction of the High Court-jurisdiction

to grant conservatory orders-grant of conservatory orders
against the operationalization of a statute-whether the
operationalization of a statute or certain sections of a statute
alleged to be unconstitutional could be suspended-Constitution
of Kenya 2010; articles 1 & 23.
Advocates - professional ethics and practice-legal practicelegality of Senators appearing before court as Legal Counsel
Judiciary - judges-constitution of a bench of an uneven number
of judges-circumstances in which orders could be granted for
the constitution of a bench of an uneven number of judgesConstitution of Kenya 2010, article 165(4)
Held
1. The Court has power to declare a statute null
and void and it therefore, also has the power
to suspend the provisions of a statute, if it was
necessary in preserving the substratum of the suit
and the effectiveness of the Courts final decision.

2. Under Article 1 of the Constitution of Kenya
2010, sovereign power belonged to the people
and was to be exercised in accordance with
the Constitution. That sovereign power
was donated to the National Executive and
Executive structures in County Governments,
the Legislature and the Judiciary. However, that
power was to be exercised in accordance with the
provisions of the Constitution.
3. Article 23 of the Constitution of Kenya 2010 did
not bar the Court from granting conservatory
orders where the constitutionality of a statute was
challenged. However, article 23 was applicable
to a suit which concerned the enforcement of
fundamental rights and freedoms.
4. The power to suspend the operationalization of a
statute is to be exercised very sparingly and only
where the Court was satisfied that such power to
suspend a statute ought to be exercised.
5. The presumption of constitutionality of a statute
is a rebuttable principle. The onus of rebutting the
presumption would rest on those who challenged
the legislations status. However, it was those
who supported a restriction on a fundamental
right, relying on a claw back or exclusion clause
that had the onus to justify the restriction.
6. It was necessary to provide evidence that the
Senators participation in the proceedings as
Legal Counsel was inherently incompatible or
fundamentally in conflict with their role in the
legislature. (John Okelo Nagafwa v Independent
Electoral & Boundaries Commission & 2 others
[2013] eKLR).
7. The Petition was drawn by the firm of A T Oluoch
& Co Advocates and therefore it could not be
struck out even if the Senators participation
in the proceedings had been inappropriate as
alleged.
8. There was no evidence that a challenge to the
statute had been made at the Senate. While it
was the Legislatures role to enact a statute, it
was the Judiciarys role to consider the wording
of the statute in light of the Constitution and
fundamental rights and freedoms.
9. The High Court, under article 165(3)(d)(ii) of the
Constitution of Kenya 2010, had the jurisdiction
to hear any question on the interpretation of
the Constitution including a determination
on whether anything said to be done under the
Cases
56
Cases
authority of the Constitution or of any law, was
inconsistent with or in contravention of the
Constitution.
10. For conservatory orders to be granted, the
applicant would be required to demonstrate the
existence of a prima facie case and also to show
that unless the conservatory orders were granted
there was real danger which could be prejudicial
to the Applicant.
provisions of article 165(4) of the Constitution

of Kenya 2010.
13. Other factors that a Court would consider
in deciding on whether to constitute a bench
included: a.) Whether the issue was moot, in the sense that
it raised a novel point;
b.) Whether the matter was complex;
11. In demonstrating the existence of a prima facie

case, the Applicant had raised various issues
including;
c.) Whether the matter, by its nature, required

a substantial amount of time to be disposed
of; and,
a.) The unconstitutionality of the statute on

grounds that it was not passed in accordance
with the Standing Orders of the National
Assembly. It was alleged that the question
as to whether the statute concerned County
Government was decided on after the 1st
reading of the Bill while the law required that
it would be decided on before the 1st reading.
It was also alleged that the Speaker of the
National Assembly did not involve the Senate
in determining whether the Bill concerned
County Governments.
d.) The effect of the prayers sought in the Petition

and the level of public interest generated by
the Petition.
b.) The unconstitutionality of the statute on

grounds that it was passed in a chaotic manner.
It was alleged that there were strangers in the
House who participated in the vote by yelling
aye or nay and that the process itself turned
into mayhem, chaos and disorderly and
shameful conduct was exhibited.
c.) The alleged lack of public participation in
the passage of the Bill. It was alleged that the
statute entailed a large number of amendments
which could not adequately be considered
by the public in the period in which public
participation was to be done.
d.) That the statute had the effect of eroding the
Bill of Rights. Particularly, it was alleged that
the right to a fair trial would be compromised
as witness statements would only be provided
immediately before the hearing and it also
affected the constitutional requirements on
arraignment in court, charge and expeditious
trial.
e.) That the statute would breach international
Conventions and Treaties by limiting the
number of refugees in Kenya to a maximum of
150, 000 whilst the refugees already in Kenya
were in excess of that number.
12. For orders for the constitution of a bench of
more than one judge to be made, the Court
would not only need to be satisfied that the
matter raised a claim of a denial, violation,
infringement or threat to a fundamental right
and freedom in the Bill of Rights, or raised an
issue on the interpretation of the Constitution,
the Court would also need to be satisfied that
the matter raised a substantial question of law.
Those considerations would be in line with the
14. Generally, the fact that the parties to a Petition

were in agreement that the Petition warranted the
constitution of a bench of judges would not bind
the Court to make orders for the constitution of
such a bench.
15. The Petition raised substantial questions of law
which warranted the empanelling of a bench of
an uneven number of judges, being not less than
3 judges.
16. In accordance with the principle that a law
was only void if it was inconsistent with the
Constitution to the extent of its inconsistency,
the Court would not suspend the whole statute
but would only suspend the provisions that were
offensive.
17. The following provisions of the Security Laws
(Amendment) Act, No 19 of 2014 warranted the
grant of conservatory orders suspending their
operationalization;
a.) Clause 12 which inserted section 66A to the
Penal Code (Cap 63) and limited the freedom
of the media, imposing a fine of Kshs. 5, 000,
000 or 3 years imprisonment.
b.) Clause 16 which inserted section 42A to
the Evidence Act (Cap 80) and limited the
accuseds access to evidence until immediately
before the hearing.
c.) Clause 29 which inserted section 59A to
the Evidence Act (Cap 80) and introduced a
summary procedure to criminal proceedings
in the form of proof by notice called an
agreement.
d.) Clause 48 which introduced section 16A to
the Refugees Act, No 13 of 2006, limiting the
maximum number of refugees to 150, 000.
e.) Clause 56 which introduced special
operations including covert operations
meant to neutralize threats against national
security.
f.) Clause 58 which replaced the word
Parliament with the word National
Assembly effectively excluding the Senate
57

from playing an oversight role in the National

Intelligence Service. Clause 58 amended
Section 65 of the National Intelligence
Service Act, No 28 of 2012.
g.) Clause 64 which introduced the offence of
publication of offending material, defined
as a publication or a statement likely to
be understood as directly or indirectly
encouraging or inducing another person
to commit or prepare to commit an act of
terrorism. The Clause was suspended to the
extent that introduced section 30A & 30F of

the Prevention of Terrorism Act, No 30 of
2012.
Petition partly allowed. (Conservation orders were granted
against the operationalization of certain sections of the Security
Laws (Amendment) Act, No 19 of 2014. Additionally orders for
the constitution of a bench of an uneven number of judges were
issued.)
Court orders parties to agree on how to balance security concerns and the rights of the
residents following the Lamu Curfew
Muslims for Human Rights (Muhuri) and 4 Others V Inspector General of Police and 2 Others
Petition No. 62 Of 2014
High Court of Kenya at Mombasa
Edward M. Muriithi J.
December 23, 2014.
Reported by Njeri Githanga
Brief facts
The case before the court was predicated upon alleged
contravention of the Bill of Rights by the imposition of
a curfew by the Inspector General of Police, in Lamu
purportedly in exercise of powers conferred upon the
former office of Police Commissioner under the Public
Order Act cap 56. It was reasoned that the Constitution of
Kenya, 2010 did not contemplate imposition of curfews
and the Inspector General of Police was not empowered
to declare a curfew and that, in any event, the extent of the
curfew in terms of duration and area was unlawful. It was
also contended that the imposition of a curfew specially
affected and discriminated against the residents of Lamu
on account of their religion, socio-economic activity and
geographical climatic realities.
The petitioners hence sought for an order of injunction
lifting the curfew imposed by the Inspector general
of Police as an interim relief pending the hearing and
determination of the main Petition.
Issues
I.
What were the principles for the grant of

injunction or conservatory orders under the
constitutional litigation?
II.
Whether the fact that the Constitution did not set

out the power to order a curfew as with the state
of emergency, the Constitution had outlawed
the curfew provisions set out in the prior Public
Order Act.
III.
Whether the powers conferred upon the Police

Commissioner under section 8 of the Public
Order Act could be exercised by the successor in
office of Inspector General of Police.
IV.
Whether the provisions of the Public Order Act

which allowed the imposition of curfew were
a limitation on the rights and fundamental
freedoms
V.
Whether imposing less restrictive means as
opposed to a curfew would balance the two

interests of public safety and security and the
enjoyment of the Bill of Rights
Constitutional Law- conservatory orders - principles to
be considered for the grant of conservatory orders under
constitutional litigation where the Inspector General of Police
had imposed a curfew in Lamu- where It was also contended that
the imposition of a curfew specially affected and discriminated
against the residents of Lamu on account of their religion, socioeconomic activity and geographical climatic realities whether
a conservatory order could be issued under the circumstances.
Constitutional Law - fundamental rights and freedoms-right
to public safety and security-curfew-authority to impose a
curfew- whether the fact that the Constitution did not set out
the power to order a curfew as with the state of emergency, the
Constitution had outlawed the curfew provisions set out in the
prior Public Order Act- Public Order Act cap 56, section 8
Constitutional Law - fundamental rights and freedomslimitation of rights-curfew- balancing competing constitutional
rights-whether imposition of a curfew would limit some
fundamental rights and freedoms - whether imposing less
restrictive means as opposed to a curfew would balance the two
interests of public safety and security and the enjoyment of the
Bill of Rights
Constitutional Law - interpretation of constitutional
provisions-transitional and consequential provisions-whether
the Inspector General of Police was the legal successor of the
office of Police Commissioner and therefore had authority to
exercise the powers of the Commissioner of Police in the Public
Order Act in relation to imposition of curfew-Constitution
of Kenya, 2010, Section 7 and 33 of the Sixth Schedule of the
Constitution
Relevant provisions of the law
Public Order Act, cap 56 Laws of Kenya, empowers of the
Commissioner of Police and Provincial Commissioner to
declare curfew as follows:
8. (1) The Commissioner of Police or a Provincial
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58
Commissioner may, if he considers it necessary in the interests

of public order so to do, by order (hereinafter referred to as a
curfew order) direct that, within such area (being, in the case
of a Provincial Commissioner, within his province) and during
such hours as may be specified in the curfew order, every person,
or, as the case may be, every member of any
class of
persons specified in the curfew order, shall, except under and in
accordance with the terms and conditions of a written permit
granted by an authority or person specified in the curfew order,
remain indoors in the premises at which he normally resides,
or at such other premises as may be authorized by or under the
curfew order.
Constitution of Kenya 2010
244. The National Police Service shall
(a)
(b)
(c) comply with constitutional standards of human rights and
fundamental freedoms;
Section 33 provides as follows:
33. An office or institution established under this Constitution
is the legal successor of the corresponding office or institution,
established under the former Constitution or by an Act of
Parliament in force immediately before the effective date,
whether known by the same or a new name.
Section 7 of the Sixth Schedule of the Constitution provides
that
7. (1) All law in force immediately before the effective date
continues in force and shall be construed with the alterations,
adaptations, qualifications and exceptions necessary to bring
it into conformity with this Constitution.
Held,
1. The emerging principles for the grant of
injunction or conservatory orders under the
constitutional litigation, were
a. the applicant had to demonstrate an
arguable case - sometimes called prima
facie arguable case - the reference to
arguable case distinguishing it from the
prima facie test of the Giella v. Casman
Brown traditionally applied in regular
civil cases;
b. the applicant had to show that the
petition would be rendered nugatory or
that the damage that would be suffered
in the absence of the conservatory order
would be irreversible; and,
c. in constitutional cases, the public interest
in the matter would be considered and
generally upheld
1. All the courts required for the grant of
conservatory orders was a prima facie case or
a prima facie arguable case; irretrievability or
irreparability if conservatory order was not
granted and the subject matter was irretrievably
lost (akin to the irreparability by damages test)
and a balancing of the interests of the applicant
and the respondents. There was confusion as to

whether the test of standard of the applicants
case is on the prima facie or arguable case. Once
accepted that the court could not determine the
disputed merits of the case at the interlocutory
stage, the correct standard had to be the standard
of arguable case.
2. The argument that the petitioners were not
residents of Lamu did not hold much weight in
view of the expanded standing given by articles
22 and 258 of the Constitution, and indeed the
petition pleaded that apart from 1st petitioner
organization, the human petitioners were
residents of Lamu County.
3. The object of the decision on pleading
infringement of the Constitution with
particularity with respect to the rights and
manner of infringement was a requirement of
good pleading so that the respondent was able
to know with precision the case that he had to
meet and so that the court understood the exact
nature of intervention necessary. It was the
same requirement codified under rule 10 (1) and
(2) of the Constitution of Kenya (Protection of
Rights and Fundamental Freedoms) Practice and
Procedure Rules, 2013.
4.
Following the promulgation of the Constitution

of Kenya 2010 the position in the Police force of a
Police Commissioner was abolished and replaced
with the office of the Inspector general of Police
as the head of the Force. The Constitution of
Kenya 2010 at section 33 of the Transitional
and Consequential Provisions which had been
held by the Court of Appeal to be an integral
part, with of equal force as other provisions,
of the Constitution, appeared to allow the
Inspector General to exercise the powers of the
Commissioner of Police to declare a curfew.
5. In terms of section 33 of the Sixth Schedule of

the Constitution of Kenya 2010 it would appear
that the Inspector General of Police was the legal
successor of the office of Police Commissioner
and therefore had authority to exercise the
powers of the Commissioner of Police in the
Public Order Act in relation to imposition of a
curfew.
6. In view of section 33 of the Sixth Schedule
of the Constitution and on the principle of
interpretation that the Constitution was always
speaking, the applicant did not have an arguable
case with respect to the contention that the
powers conferred upon the Police Commissioner
under section 8 of the Public Order Act could
not be exercised by the successor in office of the
Inspector General of Police.
7. With regard to the unconstitutionality of the
curfew, article 244 of the Constitution provided
for the operations of the Police Service to be
consistent with constitutional standards of
human rights and fundamental freedoms
59
8. The Constitution provided under article 244 for

the exercise of police functions without laying
out the tools that the police could use in their
operations. The Public Order Act, the National
Police Service Act and other relevant Acts then
made detailed provisions on the exercise of police
function. It could not be said that in not setting
out the power to order a curfew as with the state
of emergency, the Constitution had outlawed the
curfew provisions set out in the prior Public Order
Act. The trial court would make determination
thereon upon full submissions on the matter.
The provisions on curfews had a regime of
accountability based on the requirements under
article 244 for compliance with the standards of
human rights contained in the Bill of Rights with
the exception only as permitted under article 24
9. There was no paradox in the constitutional
provisions of article 244 establishing and giving
police power to the National Police Service at
the same time requiring that the operations of
the National Police Service be consistent with
the Bill of Rights. It was the reality of modern
interplay of the guarantees in the Bill of Rights
against the interests of public security and safety
through police function in an open democratic
society based on respect for human rights and
dignity of the person. The correlation of police
power to the Bill of Rights meant that the
Constitution recognized the need to provide for
the security of the citizens and at the same time
ensure enjoyment by rights and fundamental
freedoms of the Bill of Rights; that the exercise
or imposition of police powers should not
unreasonably restrict the enjoyment of the rights
and freedoms. The test for unreasonableness of
police action was the criteria set out in article 24
10. The petitioners had an arguable case as to
whether the imposition of the curfew, assuming
the Inspector General had power to do so and the
curfew was a lawful tool of police functionality,
did unreasonably restrict the rights of the citizens
resident in Lamu County contrary to article 24
limitation threshold. The determination of that
matter was province of the full trial, and the
decisions on abuse of power and illegality would
fall for in-depth consideration at the trial.
11. The Curfew was one of police devices for
prevention and combat of crime, and the Police
were in terms of article 244 of the Constitution
entitled to utilize it subject to observation of the
demands of human rights as prescribed under
article 244 (c) and to the extent permitted by the
provisions on limitation to rights under article 24
of the Bill of Rights.
12. The provisions of the Public Order Act which
allowed the imposition of curfew were a limitation
on the rights and fundamental freedoms
such as, among others, movement, assembly,
association and property in denying opportunity
to earn a living through night fishing and other

socioeconomic enterprise as well as participate in
local cultural and religious activities, and it could
even amount to discrimination as alleged by the
petitioners.
13. Without challenging the constitutionality of
the Public Order Act or sections thereof and
seeking declaration of invalidity in that behalf,
in accordance with article 3 of the Constitution,
the petitioners had to be bound by the provisions
of the Act as an imperative of the doctrine of the
Rule of Law.
14. The consideration of irreparability of the situation
should the sought conservatory order be denied
resolved itself in the negative when compared to
the real irretrievability of any lives that could be
lost due to the enabling environment that could
be created by lifting of the curfew orders. The
people of Lamu could not remain in perennial
curfew to curb insecurity hence the Respondents
had to in the very due course of time implement
remedial preventive security arrangements that
made it difficult, if not impossible, for attacks
on the lives of the residents of the county in the
massacre proportions witnessed in Mpeketoni
earlier in the year leading to the imposition of the
curfew.
15. The interests of public safety and security and
protection to the right to life pleaded in the
grounds of opposition filed by the respondents
had to, in the absence of a replying affidavit
filed on behalf of the applicants be taken to be
the justification offered for the limitation of
the rights of the residents of Lamu through the
curfew. In seeking a balance of the rights of the
petitioners as representing the residents of Lamu
County and the public interest to the protection
of the lives and property of others, it was clearly
a case of upholding the Bill of Rights for all the
parties involved, subject only to the limitations
recognized by the Constitution itself.
16. In upholding the premium thereby placed on the
two interests of public safety and security and the
enjoyment of the Bill of Rights, the Court had to
consider that the enjoyment of the rights could
therefore be limited only as provided by the
Constitution. While acknowledging that there
was relation between the limitation by imposition
of curfew and its purpose of preventing the
mounting of possible terrorist attacks, there
could have been less restrictive means to achieve
the purpose.
17. Without dictating the less restrictive means,
reducing the timelines for the curfew and saving of
occasions or celebrations such as the Eidd ul Adha
which prompted the Petition; making exceptions
with regard to days, times and areas or regions
of the imposition of the curfew, and increasing
complementary police surveillance, escort or
monitoring and community policing strategies
could properly amount for less restrictive means
Cases
Cases
60
in terms of reduction of the scope, period, nature

and extent of the restriction and the geographical
region of the curfew limits. The object had to be
to ensure the highest level of enjoyment of rights
and freedoms for all while addressing the public
safety and security concerns engendered by the
situation in the area.
Orders
1. The respondent directed in consultation with the
petitioners, within 14 days from the date of the ruling,
to meet and develop, and report to the court, a revised
scheme of such measures as would, consistently with
the Bill of Rights, meet the public safety and security
needs for the affected region.
2. Should the respondents fail, within the fourteen

(14) days allowed, to devise in consultation with the
applicants and with approval of the court, a scheme
of curfew administration that allowed for reasonable
protection and enjoyment of the Bill of Rights as
commanded by article 244 of the Constitution, the
curfew order made by the Inspector General of Police
on June 20, 2014 and extended from time to time
would be extinguished and be of no effect thenceforth.
For purposes of compliance, the matter would be
mentioned on January 6, 2015.
3. Costs to be in the cause.
Age-limit pre-condition to qualify for Senior Managment position in a Parastatal is

Discriminatory
Jared Juma v Kenya Broadcasting Corporation & 4 others
Industrial Court at Nairobi
Judicial Review No 24 of 2013
M N Nduma, J
December 5, 2014
The applicant brought a petition before the High Court
and a Judicial Review Application seeking orders
of certiorari to quash the decision of the 1st and 2nd
Respondents purporting to recruit an Editor in Chief
and a Deputy Editor-in-Chief without following the
set procedure in the Kenya Broadcasting Corporation
Regulations B3(i), (ii), (iii).
Regulation B(3)Iiii) provided for internal advertisement
unless the skills being sought were not available within
the corporation.
Issues
I.
Whether placing an age limit as a pre-condition

to qualify for the position of Managing Director
amounted to discrimination within the meaning
of article 27(4) of the Constitution of Kenya 2010.
II.
Whether the advertisement of the positions of

the Chief and Deputy Chief Editor to the general
public in the local daily newspapers without first
considering filling the position internally was
contrary to the Respondents (KBC) recruitment
policy.
III.
Whether the recruitment of the Editor in Chief

and the Deputy Editor in Chief without following
the Kenya broadcasting Corporation Code of
Regulation was lawful and reasonable.
Constitutional Law values and principles of Public Service

appointments to public office - external advertisements for
senior positions in a parastatal claim that the parastatal code of
regulations required provided for internal advertisement unless
the skills being sought were not available within the corporation
- Whether the advertisement was contrary to the respondents
recruitment policy Chapter 13 of the Constitution of Kenya
2010; KBC Code of Regulations B(3)Iiii
Constitutional Law public service - cut-off age of forty five
(45) years for the position of Managing Director in a parastatal

- whether placing an age limit as a pre-condition to qualify for
the position of Managing Director amounted to discrimination
- Constitution of Kenya 2010 article 27(4)
Held
1. The Constitution of Kenya 2010 did not have a
provision of general application dealing with
age as a qualifier or disqualifier to hold a state
or public office. Even with respect to specific
positions such as those of judges under article
167(i), the Constitution provided only for the
maximum age upon which a Judge could hold
office.
2. The Board of KCB, properly directing itself on
the relevant law especially on the retirement
age of public servants in Kenya and acting
reasonably could not have reached the decision
that a Managing Director of Parastatal should
not be more than forty five (45) years old. The
decision was grossly unreasonable and amounted
to discrimination on grounds of age contrary to
article 27(4) of the Constitution of Kenya 2010.
3. The decision placing an age limit as a precondition to qualify for the position of Managing
Director excluded many worthy applicants from
being considered on merit to occupy the position
of Managing Director of KBC. The decision
negated the minimum core content of the right
provided under article 27(4) of the Constitution
of Kenya 2010.
4. The decision was equally in breach of the
principle of proportionality which provided
that an appropriate balance had to be
maintained between the adverse effects which
an administrative authority decision might have
61

on the rights, liberties or interests of the person

concerned and the purpose which the authority
was seeking to pursue, an appropriate balance
was not sought in arriving at a cut off age of forty
five (45) years to the loss and detriment of the
Petitioner and others in his position.
5. It was proper and in keeping with the Government
Policy on recruitment, to advertise the vacant
positions of the Chief and Deputy Chief Editors
to the General Public rather than conduct an
internal recruitment advocated by the Applicant.
6. KBC was a public parastatal and therefore
was subject to the values and principles of
Public Service contained in Chapter thirteen
of the Constitution of Kenya 2010. That did
not however exclude, where appropriate,

appointments restricted to existing staff and
internal promotions to fill up vacant positions.
7. It had not been demonstrated that the KBC
Board abused its authority in placing external
advertisements for the positions of Editor and
Deputy Editor of KBC. The onus was on the
Applicant to prove on a balance of probability
that, that was the case. The Applicant had failed
to do so
Cut off age of forty five (45) years for the position of
Managing Director in a parastatal was discriminatory
Application for orders of certiorari dismissed.
Circumstances in which owners of social media platforms are liable for defamatory
statements published in their accounts
CFC Stanbic Bank Ltd v Consumer Federation of Kenya & another
Civil Case No 315 of 2014
A Mabeya J
December 5, 2014
Brief facts
The Plaintiff lodged a plaint before the High Court
alleging that it had been defamed by the Defendant and
claimed for damages for libel, aggravated damages and
for a permanent injunction to restrain the defendant from
publishing in its web-site http://www.cofek.co.ke an article
entitled How true is this allegation on Stanbic Bank Juba
Branch on Foreign Exchange Transactions. In the said
article, there were allegations against the Plaintiffs Bank
,Juba branch, of lack of integrity in Foreign Exchange
dealings, breach of Bank of South Sudan and Central
Bank of Kenya regulations, arrogance by the Plaintiffs
Foreign Exchange dealer, breach of consumer rights
and lack of integrity and responsibility by the Plaintiffs
management team.
Together with the Plaint, the Plaintiff filed an application
under sections 1A and 1B of the Civil Procedure Act and
order 40 of the Civil Procedure Rules seeking various
injunctive orders against the Defendant.
The defendant opposed the application by submitting
that it was neither the author nor originator of the article
complained of. The defendant further submitted that it
was the legitimate expectation of the anonymous author
that the defendant would cause incisive investigations
on the issues raised in the article and that the article
constituted fair public comment and was not defamatory
of the Plaintiff.
Issues
I.
Whether the words published by the defendant in

the website referred to the plaintiff and whether
those words were defamatory in light of the fact
that the defendant was not the originator of the
article.
II.
What is required to be established in an action for

defamation?
III.
Under what circumstances are owners of social

media platforms liable for defamatory statements
published in their social media accounts?
Law of Torts defamation requirements for an action of

defamation defamation on social media - defence that article
published on the website was from an anonymous sender circumstances in which owners of social media platforms are
liable for defamatory statements published in their accounts
- assessment of damages in defamation Defamation Act,
section 16A
Constitutional Law fundamental rights and freedoms
freedom of expression duty of care on the dignity and
reputation of others while exercising freedom of expression
consumer rights - duty to respect reputation and dignity of
others while exercising consumer rights Constitution of
Kenya 2010 article 46
Civil Practice and Procedure injunction application for
interlocutory mandatory injunction in a suit for defamation
circumstances in which the court would issue an order for
mandatory injunction - Civil Procedure Act (Cap 21) sections
1A and 1B ; Civil Procedure Rules Order 40
Held
1. In an injunction application, all the Applicant
had to do was, first to establish that it had a prima
facie case with a probability of success Secondly,
show that if the injunction was not granted, it
stood to suffer loss and damage that could not
be compensated by way of damages and finally, if
the court was in doubt, it would decide the matter
Cases
62
Cases
based on the balance of convenience.
2. In an action for defamation, the claimant had to
establish three things.
a. that the words complained of were
defamatory, that is, they tend to lower the
claimants reputation in the estimation of
right thinking members of society;
b. the words refered to the claimant
c. that the words were malicious.
3. The words complained of referred to the plaintiff.
For a bank of international or even national
repute, such allegations were not light. Any person
or corporate entity in the world of commerce
reading such information might be slow in
dealing with such an entity. An entity which does
not mind the welfare of its customers, which has
rogue employees and whose management team is
irresponsible and lacks integrity is not an entity a
right thinking member of society would easily be
willing to deal with. Therefore on a prima facie
basis the words could have been defamatory.
by the Plaintiff, but it insisted that it was soliciting

for comments on the same. Accordingly, on the
face of it (prima facie), it had been established that
the defendant had published the article on its
website as contended by the Plaintiff.
5. When a defamatory publication purported to
repeat or report the defamatory statement of
another, it was an essentially different libel from
one where the same imputation was conveyed
directly.
It might have required different
charging or defending, it might also have been
relevant on damages. According to the evidence
on record, the defendant was responsible for the
article when it repeated the publication.
6. When exercising the freedom of expression under
article 33 of the Constitution, there was a duty
of care on the dignity and reputation of others.
In the same breath, since the right to reputation
was a constitutional right, while exercising the
consumer rights enshrined under article 46 of
the Constitution, the reputation and dignity of
others had to be respected.
The article was from an anonymous author and

anonymous sources, by posting the offending article
on its website http://www.cofek.co.ke, facebook and twitter
accounts, the defendant had published the article.
7. There were no particulars of facts on which the

defence of fair comment was based. Further, no
particulars of facts were relied on to establish the
truth of the allegations in the article to entitle the
defendant to the defence of justification.
Those who host facebook pages or other similar accounts

were not passive instruments or mere conduits of content
posted on their facebook page. They would be regarded
as publishers of postings made by anonymous users in
two circumstances.
8. As regards damages, the impact the allegations

might have had on the business interests of the
Plaintiff could not have been quantified. Damages
could not have been an adequate remedy.
a. If they knew of the defamatory statement and

failed to remove it within a reasonable time
in circumstances that would give rise to an
inference that they were taking responsibility
for it. Request by the person affected would
not be necessary.
b. Where they did not know of the defamatory
posting but ought, in the circumstances, to
have known that postings were being made
that were likely to be defamatory.
4. The Defendant could have blocked from its
website undesirable material. It could have
deleted or removed the article from its Website.
However, the defendant did not only decline to
remove the article after being requested to do so
9. The article complained of was not only defamatory

but its continued publication on the world
wide web might have continued to damage the
Plaintiffs international business, the Plaintiff was
a bank of repute operating not only in Kenya but
throughout Africa; the continued circulation of
the article in the worldwide web of the Defendant
might have hindered or affected the Plaintiffs
reputation and business operations. The act done
could have been summarily remedied by removal
of the offending publication. The circumstances
were special and therefore warranted the granting
of the interlocutory mandatory injunction.
Application allowed, costs of the application to the Plaintiff
63
Mandatory Requirement to Register Collective Bargaining Agreements

Kenafric Industries Limited v Bakery Confectionary Food
Manufacturing and Allied Workers Union
Industrial Court of Kenya at Nairobi
CA No. 248 of 2014
Nzioki wa Makau, J
December 24, 2014
Reported by Emma Kinya Mwobobia
Brief facts
The Collective Bargaining Agreement (CBA) between the
employer and employees was objected to by the Employer/
Applicant when the CBA came up for registration. The CBA
related to the period 2015-2016. The employer had served
a notice to negotiate the CBA and thus sought deferment of
the CBA for 45 days. The Union opposed the request and
submitted that the CBA was negotiated and duly signed. It
was thereafter forwarded to the Ministry whereupon the
employer sought to renegotiate. A report was done which
pointed out that the Employer had an issue with 16 clauses
and it seemed that the Employer wanted to negotiate the
CBA afresh.
Issue:
Whether an unregistered Collective Bargaining Agreement
was enforceable against an employer where the onus for
registration was on the employer
Employment Law Collective Bargaining Agreements
Agreements made between a trade union and an employer
concerning terms and conditions of employment requirement for
registration of such an agreement by the employer for enforceability
where the employer had not registered the agreement whether
the inadequacies of the employer could be visited upon the employees
whether such an agreement was enforceable in the circumstances
Employment Act 2007 section 2; Labour Relations Act 2007
section 2; Industrial Court (Procedure) Rules 2010 rule 35
The Labour Relations Act 2007
Section 2 defines collective agreement as follows:collective agreement means a written agreement
concerning any terms and conditions of employment made
between a trade union and an employer, group of employers
or organisation of employers;
The Employment Act 2007
Section 2 defines it as follows:collective agreement means a registered agreement
concerning any terms and conditions of employment made
in writing between a trade union and an employer, group of
employers or employers organization;
The Industrial Court (Procedure) Rules 2010 makes provision
on collective agreements under Rule 35 as follows:35. Collective Agreements.
(1) An employer or an organization of employers that have
entered into a collective agreement shall lodge a copy of the
agreement with the Minister within fourteen days of its
execution.
(2) The Minister shall furnish the Court with a copy of each
collective agreement that has been lodged with the Minister
pursuant to this Rule, and the Minister may also furnish the
Court with such information and comments as the Minister
considers necessary.
(3) Where the Minister objects to the registration of a
collective agreement, a copy of the agreement furnished
to the Court shall be accompanied by a statement of the
objection giving reasons for objection.
(4) The Court shall maintain a register of collective
agreements that have been accepted by the Court for
registration.
(5) A collective agreement shall not take effect until it has
been registered by the Court.
Held:
1. The substantive law on Collective Bargaining
Agreements was contained in Section 60 of the
Labour Relations Act. Indeed that was the Section
cited by the Minister as he presented the collective
bargaining agreements to Court for registration
and therefore, the Collective Bargaining Agreement
attained its legal enforceability upon registration by
the Industrial Court. Prior to that, it was an intention
of parties that could be referred to, but could only
attain the status of legally binding and enforceable
upon registration by the Court.
2. The parties to the agreement in dispute had entered
into the agreement in 2012 yet the agreement was
presented in 2014 contrary to statute and thus
in breach of the law. In the premises the Court
deferred the registration of the CBA for 45 days
to allow parties to renegotiate and present it for
registration in short shrift. The law had provided
that there would be no vacuum and the existing
CBA would hold for and ought to continue to have
the full force of the law pending the resolution of the
dispute within 45 days.
3. The dispute had demonstrated that the best time
to register the CBA was shortly after its conclusion
as a party to the agreement may over time begin
to entertain a different idea or encounter different
circumstances. There was nothing to bar the Union
or employer from presenting the agreement for
registration in 2012 or 2013. As a result of the 2 year
delay the employer had had a change of mind in
regard to some of the issues initially agreed.
Each party to bear their own costs.
Cases
Cases
64
Circumstances in which the court can grant coercive orders of enforcement of

professional undertakings.
Nelson Andayi Havi t/a Havi & Co. Advocates v Jane Muthoni Njage t/a J M Njage& Co. Advocates
Civil Case No.59 of 2009
Commercial and Admiralty Division
F Gikonyo, J
January 30, 2015
Issues
i.
Whether an advocate who has been given

an undertaking by another in a conveyance
transaction has the locus standi to enforce that
undertaking.
ii.
Whether an order to honour professional

undertakings need to be issued before enforcing
such undertakings.
iii.
Whether the enforcement of an undertaking

includes interests payable under the undertaking
where such undertaking is honoured many
months after the due date.
Professional Ethics professional undertakings enforcement

of professional undertakings - whether an advocate who
has been given an undertaking by another in a conveyance
transaction has the locus standi to enforce that undertaking whether an order to honour professional undertakings need to
be issued before enforcing such undertakings Civil Procedure
Rules, Order 52 rule 7
Held
1. A professional undertaking is always a separate
and distinct contract between advocates and
has to be interpreted strictly and enforceable
between the parties. The respective clients of the
advocates in the undertaking were not parties in
the undertaking. Therefore, only the advocates as
the parties could enforce the undertaking.
2. When an application was made under Order
52 rule 7 of the Civil Procedure Rules for an
order for the enforcement of an undertaking
given by the advocate, the court could order in
the first instance that the advocate honours his
undertaking within a time fixed by the order, and
only thereafter could an order for enforcement
be made. It was only where there were special
circumstances, and the court had to record those
special reasons, that a court of law could order
otherwise. Therefore, the rule of the thumb was
to order the advocate to honor the undertaking
before the coercive enforcement order was given
by the court.
3. That approach was founded on good reasons such
as the nature and purpose of the undertaking
which was given in good faith within an
atmosphere of trust whose aim was to facilitate
conclusion of a transaction at arms - length.
4. As to whether interest is payable and by whom
could only be determined by looking at the
agreement and all other documents which

applied to the contract. The instant agreement
did not carry an express provision on interest on
its body. But through its clause 3, it incorporated
the Law Society Conditions of Sale which they
agreed would apply to the transaction. The
relevant condition on interest was 8(3) & (4) of the
Law Society Conditions of Sale which governed
the agreement especially on interest on delayed
completion. And those two provisions were not
expressly excluded by the agreement.
5. Condition 8(3) & (4) of the Law Society
Conditions of Sale provided that the obligation
to pay interest on delayed completion was on the
purchaser and also it set out the time frame when
the interest was payable.
6. From the sale agreement, the undertaking did
not create an express obligation on the defendant
to pay interest for delayed completion. It was an
obligation of the purchaser.
7. Although there was a duty on the advocate to act
in the clients interest, that did not imply a duty
to assume or underwrite the clients financial
or other obligations under the contract. Also,
the law was that, the jurisdiction of the court in
enforcing an undertaking by an advocate was not
exercised for purposes of enforcing legal rights
or obligations of the client but for purposes of
enforcing honourable conduct on the part of
the advocate as an officer of the court. Thus, it
enforced the undertaking strictly as a contract
on its own separate from the primary contract
between the parties. The honourable conduct of
the advocate was embedded in the undertaking.
8. It was not up to the defendant to care about
whether honouring of the undertaking would
have produced unfavourable results to her clients.
Any advocate, had, of course to be concerned
that it was safe to honour such undertaking
after effective registration of the conveyance.
But such fear would have been unfounded as an
undertaking was always given on full instructions
of the client and was anchored on the primary
contract between the clients. The advocate had
to ensure that he was in funds before giving an
undertaking.
9. In such circumstances where the advocate
did not honour the undertaking until after a
suit had been filed and did not seek consensus
of the other counsel to vary the terms of the
65
undertaking, that constituted special reasons on

which the court could issue a coercive order of
enforcement especially given that the defendant
was in funds all that time but just did not honour
the undertaking.
10. An undertaking could not place an obligation
on the advocate to pay or underwrite the clients
obligations. However, there would be nothing
illegal if the enforcement of the undertaking
would have achieved the unintended result of
enforcing the purchasers obligations or rights

under the agreement. Therefore, since the
interest had been agreed at 17.5% for delayed
completion, it was in order to peg interest against
the defendant for withholding the funds at the
same rate of 17.5% for breach of the undertaking.
Advocate was ordered to pay interest at 17.5% for the eight
months she withheld the purchase price.
Court rules that due process was not followed in impeaching Kisumu County Assembly
Speaker
Kisumu County Assembly Service Board & another v Kisumu County Assembly Public Service Board & 4 others
Industrial Petition 297 of 2014
Industrial Court at Kisumu
H S Wasilwa, J
January 12, 2015
Brief Facts:
A petition challenging the procedure for removal
from office of the Kisumu County Assembly Speaker
was brought before the court. The petitioners sought
declarations, inter alia, that the 1st respondent (Kisumu
County Assembly Public Service Board) through its
purported committee of the Whole House did not have
power to suspend, dissolve or carry out the statutory
functions of the petitioners and that the actions of the 1st
respondent purporting to disband, dissolve and suspend
the 1st petitioner (Kisumu County Assembly Service
Board) and its membership as constituted amounted to
an abuse of its constitutional and statutory mandate.
The 2nd petitioner submitted that her removal as County
Assembly Speaker was done in contravention of the
provisions of the law and without being accorded a
reasonable opportunity to respond to any allegations
levelled against her, hence infringing on her fundamental
rights and freedoms. She further submitted that the
proceedings of the County Assembly were being
conducted in contravention of the Constitution and
the power donated to the Assembly as a state organ to
exercise its sovereign power of the people of Kenya.
The respondents on the other hand submitted that the
2nd petitioner was legally impeached after being accorded
a chance to be heard on accusations levelled against her
but declined to appear. They contended that no rights of
the parties in the petition were infringed upon as claimed
by the 2nd petitioner as all provisions of the law were
observed in dealing with the parties.
Issues:
i.
Whether a County Assembly Service Board

had locus to sue alleging violations of
fundamental rights under article 22 of the
Constitution.
ii.
Whether the sittings of the County Assembly

of Kisumu on the specified dates in the
petition were within the confines of the law.
iii.
Whether the process of impeaching the

Speaker of Kisumu County Assembly was in
accordance with the law.
iv.
Whether the constitutional rights of the

petitioners were infringed upon by the action
of the respondents.
v.
Whether section 11 of the County

Government Act and Standing Order No.
47, 58, 63 and 83 were unconstitutional for
infringing article 21(1) of the Constitution.
Constitutional Law enforcement of Bill of Rights

County Assembly Service Board whether a County
Assembly Service Board had locus standi to sue alleging
breach of fundamental rights and freedoms whether
the constitutional rights of the petitioners were infringed
upon by the action of the respondents - Constitution of
Kenya, 2010, article 22
right to fair administrative action removal of Speaker
of County Assembly - whether the process of impeaching the
Speaker of Kisumu County Assembly was in accordance with
the law - whether section 11 of the County Government Act and
Standing Order No. 47, 58, 63 and 83 were unconstitutional
as infringing article 21(1) of the Constitution - whether the
constitutional rights of the petitioners were infringed upon by
the action of the respondents Constitution of Kenya, 2010,
articles 21(1), 47, 178; County Government Act, 2012, sections
11, 12, 13
Held:
1. The County Assembly Service Board was
recognized under section 12(2) of the County
Government Act, 2012 as a body corporate
with power to sue and be sued. Article 22 of the
Constitution envisaged a situation where other
than a person acting in their own interest, the
person could act for another, or as a member or in
the interest of a class or group of persons and also
in the public interest or as an association acting
in the interest of one or more of its members.
Cases
66
Cases
Further, article 260 of the Constitution defined
a person to include a company, association or
other body of persons whether incorporated or
unincorporated. Therefore, a person was beyond
a natural human being and included corporate
bodies. Going by the letter of the law and in
recognition of the fact that the 1st respondent
was a body corporate who also had members
with rights, the 1st petitioner had locus to file the
petition.
2. The sittings of the County Assembly on the
specified dates in the petition were not within
the confines of the law, if any. Section 21 of the
Election Act detailed out how the election of the
Speaker were to be held as per the First Schedule
and the Standing Orders of the County Assembly.
There was no indication that the provisions of
the law were adhered to.
3. The law on elections and removal of a Speaker of
a County Assembly was set out in the Elections
Act, the Constitution of Kenya and the County
Government Act. The law envisaged that a notice
was to be served to the 2nd petitioner before her
removal as Speaker, which notice was to be signed
by at least one third of the members of the County
Assembly. Further, the notice was to be served at
least 48 hours before the Motion was debated.
In the circumstances, the 2nd petitioner was not
legally, lawfully or constitutionally removed as
the Speaker of the County Assembly as she was
not accorded due process and the Assembly was

presided over by strangers making any decisions
arrived at a nullity.
4. The illegalities meted on the petitioners
were an infringement upon their right to
fair administrative action (article 47 of the
Constitution), right to fair labour practices (article
41 of the Constitution) and right to be treated with
dignity (article 10 of the Constitution) among
other provisions or regulations as stated in the
petition. The interested parties were also unfairly
treated by being removed as Clerk and Deputy
Clerk without being accorded any hearing and
by being deployed by unqualified persons.
5. The petitioners had not demonstrated the
unconstitutionality of section 11 of County
Government Act in as far as article 21(1) of the
Constitution of Kenya dealing with the manner in
which the rights and fundamental freedoms were
to be implemented by the State and every State
organ. Section 11 of the County Government
Act was very elaborate on the procedure for
removal of Speaker of the County Assembly and
the procedure included subjection to due process
which was envisaged under the Constitution.
Petition allowed in part with costs to the petitioners.
Court Rules that the Functions of the County Public Service Boards Have Not Been
Usurped By the Capacity Assessment and Rationalization of the Public Service (CARPS)
Programme
Kenya County Government Workers Union v Kisumu County Government & 91 others
Petition 270 of 2014
Industrial Court at Kisumu
H S Wasilwa, J
January 12, 2015
Brief Facts:
The petitioner (Kenya County Government Workers
Union) was a body representing the workers and staff of
all the County Governments (respondents) in Kenya, and
claimed to have exclusive right in handling of staff issues
serving under the respective County Governments and not
the National Government. Following the commencement
of the Capacity Assessment and Rationalization of the
Public Service (CARPS) programme by the respondents,
the petitioners filed a petition contending that the actions
of the respondents would breach or threaten to breach
the rights of the petitioners and its members.
The petition sought, inter alia, conservatory orders
of injunction against the respondents jointly and
severally through any committees established under
the CARPS programme from dealing with deployment,
redeployment, termination or promotion or in any
manner dealing with staff issues that were members of
the petitioner and workers of the County Government
who were respondents, and that pending the hearing
and determination of the petition, the respondents be

prohibited jointly and severally through any committees
from carrying out any duties of biometric data capturing
of members of the petitioner who were workers of the
County Governments until the law was complied with.
Issues:
i.
Whether the Capacity Assessment and

Rationalization of the Public Service (CARPS)
programme was being implemented by the
National Government without consideration
and support of the County Governments.
ii.
Whether the implementation of the CARPS

programme infringed on the rights of the
petitioners.
iii.
Whether the CARPS programme had

usurped the powers of the County Public
Service Boards.
iv.
Whether the non-inclusion of the petitioner
67

to the membership of the various committees

established under the CARPS programme
was discriminatory.
v.
Whether
the
CARPS
programme
discriminated upon certain members of the
petitioner.

right to fair labour practices and right to equal protection and
benefit of the law to all persons whether the implementation
of the Capacity Assessment and Rationalization of the Public
Service (CARPS) programme infringed on the rights of the
petitioner and some of its members where the petitioner was a
representative of all staff and workers of the respective County
Governments whether the non-inclusion of the petitioner
to the various committees established under the CARPS
programme was discriminatory Constitution of Kenya, 2010,
articles 27, 41, 232(1), 235(1) & 236
Constitutional Law devolution implementation of the
Capacity Assessment and Rationalization of the Public Service
(CARPS) programme at National and County Governments
level - whether the CARPS programme had usurped the powers
of the County Public Service Boards Constitution of Kenya,
2010, article 6(2); County Government Act, 2012, section 57;
Inter-Governmental Relation Act, 2012, sections 7, 8 & 23
Held:
1. The nobility of the Capacity Assessment and
Rationalization of the Public Service (CARPS)
Programme could not be underestimated. The
respondents submitted that they were part and
parcel of the programme and supported it fully as
being complementary to their role and function.
It was therefore not true that the CARPS
programme was being implemented by the
National Government exclusive of the County
Government.
2. Article 41 of the Constitution envisaged a right to
fair labour practices including a right to form, join
or participate in the activities and programmes of
a trade union. If any person chose to join a trade
union then it was that union that was expected
to represent them in any decision the employer
chose to effect against or for the employee.
3. The CARPS Manual at Annex 1 stated the
membership to its various committees. A
representative from the County Government
Workers Union was among the members. If
however the petitioner had been excluded in
the actual formation of the committee, then

the rights of the petitioners members would
have either been infringed upon or threatened
with infringement and that situation should of
necessity be corrected.
4. The County Public Service Boards formed part
of the membership of the CARPS programme
and hence had locus to complain about such an
omission from the membership, if any. Therefore
the functions of the County Public Service Boards
had not been usurped by the CARPS programme.
5. If at all the petitioners had been excluded
from membership of the technical committees
established under the CARPS programme,
that would amount to discrimination as the
manual envisaged that they should be members.
The assertion that the petitioners could not
be members because they had no Collective
Bargaining Agreement (CBA) with the various
respondents could not stand as that was still and
could have been the position when the manual
was put in place and that was coming in the
transition period before structures were fully
established.
6. The Constitution under article 27 provided
for equal protection and benefit of the law
to all persons. Therefore, there should be no
discrimination against any employee whether on
suspension or whether facing any disciplinary
proceedings or on leave.
Orders:
i) That the petitioners be included in the committees
set up under the CARPS programme as envisaged
by the law in order to cater for the rights of their
members.
ii) The tools for data capture to include all workers,
the petitioners members whether on suspension or
facing any disciplinary proceedings or whether on
leave.
iii) The order granted stopping the whole CARPS
programme against the respondents be lifted
forthwith on conditions granted under (i) and (ii)
above.
iv) Each party to bear own costs as the matter was of
great public interest.
Cases
68

Court declares the Constituency Development Act Unconstitutional

Institute of Social Accountability & another v National Assembly & 4 others
I Lenaola, M Ngugi, Majanja J
February 20, 2015
Brief facts
The petitioners brought a petition before the High
Court seeking declarations that the Constituencies
Development Fund Act No. 30 of 2013 (CDF Act) violated
the Constitution.
The petitioners case was that the CDF Act contravened
the constitutional principles of the rule of law, good
governance, transparency, accountability, separation
of powers and the division of powers between the
National and County Government and the public finance
management and administration.
Issues
i.
Whether the process leading to the enactment of

the CDF Act was Constitutional.
ii.
Whether the CDF Act offends the principles of

public finance and division of revenue provided
under the Constitution.
iii.
Whether the CDF Act violates the division of

functions between the National and County
Government.
iv.
Whether the CDF Act offends the principle of

separation of powers.
Statutes interpretation of statutes interpretation of the

CDF Act whether the CDF Act duplicates and overlaps the
County Governments functions under the Fourth Schedule of
the Constitution.
Constitutional Law National revenue division of
national revenue where funds are sent to the constituencies
in compliance with the CDF Act whether by sending revenue
to the constituencies as required by the CDF Act was in
contravention with Articles 202 and 203 of the Constitution.
Constitutional Law public participation - degree of
participation in the law-making process whether the public
was accorded reasonable opportunity in the law making
process - what amounts to a reasonable opportunity whether
the process leading to the enactment of the CDF Act was
Constitutional.
Constitutional Law enactment of laws enactment of laws
to align with the Constitution of Kenya - whether the CDF
Act was one of the contemplated laws under section 2(3) (b)
of the sixth schedule to the Constitution relating to devolved
government that were required to be enacted by the sixth
schedule and chapters eleven and twelve of the Constitution
within the period stipulated in the fifth schedule
Constitutional Law devolution Constituency development
Fund whether it had been contemplated in the statutes that
a constituency had to be one of the beneficiaries of the national
Cases
revenue before it was divided between the National and

County Government Constitution of Kenya 2010, articles
93,96(1),110,165,202,203,259.
Held
1. The High Court was enjoined under article 259
of the Constitution to interpret the Constitution
in a manner that promotes its purposes, values
and principles, advances the rule of law, human
rights and fundamental freedoms in the Bill of
Rights and that contributes to good governance.
In exercising its judicial authority, the High
Court was obliged under article 159(2(e) of the
Constitution to protect and promote the purpose
and principles of the Constitution.
2. The general presumption was that every Act of
Parliament was constitutional and the burden of
proof lay on any person who alleged otherwise.
3. In determining whether a Statute was
constitutional, the Court had to determine the
object and purpose of the impugned statute, for it
was important to discern the intention expressed
in the Act itself. Further, the court had to consider
not only the purpose of the Act but also its effect.
4. While interpreting the impugned legislation
alongside the Constitution, the Court had to
bear in mind Kenyas peculiar circumstances.
The court had to adopt a liberal approach that
promoted the rule of law that had jurisprudential
value that reflected the spirit of the Constitution,
since the matter concerned devolution.
5. Article 93 established Parliament comprising the
National Assembly and the Senate. Each of the
Houses was enjoined to perform their respective
functions in accordance with the Constitution and
where the Constitution prescribed a procedure
that ought to have been followed in enacting a
law, that procedure had to be followed. Therefore
while Parliament might legislate on any matter
concerning the Republic, the legislation had to
conform to the Constitution both procedurally
and in its substance.
6. The issue of whether the matter was one for
County Government was of constitutional
importance and the decision of the speakers of
the National Assembly and the Senate, could not
be conclusive and binding on the court, whose
jurisdiction was to interpret the Constitution.
7. Participation of the Senate in the legislative
process was not just a matter of procedure. It was
significant to the role of the Senate in Kenyas
Cases
constitutional scheme, as the Senates legislative
role was limited to matters concerning County
Governments. Through its participation in the
legislative process, the Senate was seized of the
opportunity to discharge its primary mandate
which was to protect the interests of the counties
and County Governments as mandated under
article 96(1) of the Constitution. It was a means
of ensuring that the countys voice was heard and
considered at the national forum and the interests
of counties and their governments secured. That
way, the sovereign power of the people was duly
exercised through their democratically elected
representatives.
8. While concurrence of the Speakers of the
National Assembly and the Senate was significant
in terms of satisfaction of the requirements of
article 110(3) of the Constitution, it did not by
itself oust the power of the Court vested under
article 165(3)(d) where a question was raised
regarding the true nature of legislation in respect
to article 110(1). The court had to interrogate the
legislation as a whole and determine whether in
fact the legislation met the constitutional test of a
matter concerning County Governments.
9. The laws contemplated under section 2(3)(b) of
the sixth schedule to the Constitution were the
laws relating to devolved government that were
required to be enacted by the sixth schedule and
chapters eleven and twelve of the Constitution
within the period stipulated in the fifth schedule.
The CDF (Amendment) Bill was not one of the
laws contemplated under section 14 of the sixth
schedule as it was an amendment to an existing
legislation.
10. The forms of facilitating an appropriate degree
of participation in the law-making process were
capable of infinite variation. What mattered was
that at the end of the day a reasonable opportunity
was offered to members of the public and all
interested parties to know about the issues and
to have an adequate say. What amounted to a
reasonable opportunity would depend on the
circumstances of each case.
11. In order to determine whether there had been
public participation, the court was required to
interrogate the entire process leading to the
enactment of the legislation from the formulation
of the legislation to the process of enactment of
the statute.
12. During the legislative process, amendments
to the Bill might have been moved during the
Committee Stage and to have held that every
amendment moved had to undergo the process of
public participation would negate and undermine
the legislative process. The amendment moved
was in substance, within the parameters of what
had been subjected to public participation during
the review process. The public was involved in
the process of enactment of the CDF Act through
the Task Force and review panel initialy set up by
69
the CDF Board. The amendment was within the

parameters of what was in the public domain and
in the circumstances the amendment bill did not
violate the principle of public participation.
13. County Governments share of revenue had to
be at least fifteen per cent of all revenue collected
by the National Government in accordance with
article 203(2) of the Constitution. The import of
that provision was that any amount that reduced
the amount of shareable revenue or revenue
collected by the National Government effectively
affected the amount available to the counties
hence an infringement on the requirements of the
provision. The Constitution did not envisage any
other organ, body or fund to have a share of all the
revenue collected by the National Government
before it was shared between the two levels of
government established under article 1(4) of the
Constitution.
14. It was not contemplated anywhere that a
constituency had to be one of the beneficiaries
of the national revenue before it was divided
between the national and County Government.
Article 206 (1)(a) and (b) of the Constitution
excluded from the Consolidated Fund such
monies excluded by an Act of Parliament and
was payable into another fund established for a
specific purpose.
15. For purposes of equitable sharing of revenue
the phrase revenue raised nationally as used in
articles 201(b)(ii), 202(1) and 203(2) was to be
equivalent to revenue raised by the National
Government within the wording of article 218 of
the Constitution. The implication of the wording
of the provisions was that the revenue shared
between the national and County Government
and amongst the counties was not received from
anywhere else but from the revenue collected
by the National Government. In other words all
revenue collected by the National Government
had to be pooled in a common pot before it was
shared by the levels of government. It was in that
light that the wording of the impugned section
ought to be scrutinized.
16. The use of the phrase, all the national
governments ordinary revenue in the CDF Act
introduced ambiguity. However, as case law
had established, not all ambiguity necessarily
rendered a statute unconstitutional, as such
ambiguities could be solved by applying rules of
interpretation.
17. CDF was not a conditional grant to County
Governments envisaged under article 202(2) of
the Constitution, as it was not even expressed to
be such.
18. Section 22 of the CDF Act demonstrated that the
Act was not clear in terms of what projects the
CDF was supposed to fund and implement. The
section broadly referred to unspecified projects
which the court was unable to determine to
which level of government they belonged into
70
as per the Fourth Schedule to the Constitution.

Nevertheless, the drafters of the Constitution
did not envisage that there would be a three
tier system (National Government, County
Government and Constituency) that would be
charged with infrastructural development at the
county level.
19. From a plain and literal reading of the provisions
of article 186 and the Fourth Schedule to the
Constitution, it could not be said that for instance,
infrastructural development and wealth creation
at the Constituency level was solely a function
of the national government. Infrastructural
development was such a fluid term that might
include county transport and development of
county health facilities which would fall within
the functions of the County Government
enumerated in Part 2 of the Fourth Schedule.
20. Article 186(1) of the Constitution had set out that
National and County governments were to share
certain functions within the County and those
functions were clearly stipulated in the Fourth
Schedule of the Constitution. The creation and
assignment of roles to an entity outside the
structures of governance established under the
Constitution was antithetical to the principles
of the Constitution as it threatened to violate
the functional competencies of the County
Government within which CDF operated.
21. The national government might impose
conditions on grants issued under article 202(2)
of the Constitution. Those conditions might
include naming the specific projects to which such
grants were channeled. However, the conditions
attaching to those grants, including the manner
of implementation had to by themselves be in line
with the devolution principles and constitutional
values. Such conditions must not be such that they
undermined the County Government autonomy
envisaged under the Constitution.
22. The national government, while free to infiltrate
its policies at the county levels, it could only do
so through the structures recognised under the
Constitution and not run parallel to them. If it so
desired, the national government could channel
grants, whether conditional or unconditional to
the County Governments as additional revenue
within the meaning of article 202 and not any other
entity which performed the functions allocated
to the county by the Constitution. The national
government could not purport to channel grants
to an entity whose intended projects effectively
undermined the role of the government at the
county level unless the projects were specifically
defined to exclude them from the ambit of Part 2
of the Fourth Schedule of the Constitution.
23. The CDF appears to be a third entity grafted
from the national government that operated
within the County Governments but outside
their structures. The involvement of the members
of the National Assembly and Senators in the
Cases
implementation and administration of CDF,

infringed the Constitution in two ways. First, it
threatened to violate the division of functions
between the national and County Governments.
It threatened because the purpose of the Act,
coupled with the target projects under section
22 were vaguely worded, and lacked a specific
cause, it was premature to categorically class
the enumerated projects as falling either under
the national or County Governments. It is
nevertheless a safe inference to make at this point
that the reference to community based projects
within the wording of section 22 would at the
very least cause a functional overlap with those
of County Governments.
24. The Constitution required that the County
Governments decentralize their functions
and services to the extent that it was efficient
and practicable to do so under article 176(2).
That principle was fortified by Part VI of the
County Governments Act, 2012 which set out
the decentralisation units in a county. The
Constitution envisaged that although power
was shared between the national and County
Government, the decentralized units within the
county would facilitate the achievement of the
objects of devolution through to the grassroots.
25. Under article 1 of the Constitution, the County
Government does not derive its power from the
national government but directly from the People
of Kenya and under the Constitution. Those two
levels of governments were in theory, equal and
none was subordinate to the other. MPs and
cabinet secretaries involved in the management
or implementation of the CDF constituted the
executive and legislative organs of the national
government, their involvement in development
activities at the county level not only threatened
to undermine the functions of the government
at the county level but also blurred the executive
and legislative divide that underlies the principle
of separation of powers. Therefore it was
unconstitutional for the national government
to extend its mandate in the counties beyond
its mandate under the Constitution through the
artifice of the CDF.
26. At the national level, under article 93(1) of the
Constitution, there is established a Parliament
consisting of the National Assembly and the
Senate. In the same breath at the county level,
there is the County Assembly and the County
Executive headed by the Governor. Therefore, the
arrangement introduced by the CDF of having
Members of Parliament getting involved in the
implementation of the development agenda of
a county undermined the County Government
and especially the role of the county executive. At
the County level the Governor and the County
Executive Committees were the executives in the
county and in charge of development policies.
27. The involvement of the Members of Parliament
in the CDF implementation violated the core
Cases
principle of separation of powers and to that
extent, the CDF Act was unconstitutional.
Further, to the extent that the Act conflated the
executive and legislative functions, it obfuscated
accountability mechanism envisaged under
the Constitution underpinned by the doctrine
of separation of powers. In that respect, the
Act violated key national values and principles
enunciated under article 10 of the Constitution,
to wit, good governance and accountability.
28. Members of Parliament have a specific and
clearly defined role under the Constitution.
That role does not include involvement bodies
whose functions entail co-coordinating, project
approvals or actual implementation of projects
as those functions were executive in nature.
It was also untenable to permit Senators, who
were charged with the constitutional role
of oversight over county resources from the
national government to the county government,
to convene and chair County Project Committee
as established under Part VII of the CDF Act.
29. Parliament was constitutionally bound to enact
legislation that assists and strengthens the county
governments in the discharge of their roles rather
than one that undermined them, as the CDF
Act effectively did. The organs of the national
government must trust and utilize the machinery
that the Constitution now ordains. Even with the
noblest of intentions, any Act of Parliament had
to meet the threshold of constitutionality for it to
withstand the test of validity.
30. The purpose of the CDF (Amendment) Act
was to amend a law that violated the division
of functions between the national and county
governments. Therefore an amendment to the
Act would have necessitated the input of the
Senate. The purpose of involving the Senate was
to ensure that counties, as far as possible, get to
effectively participate in the legislative business
at the national level in matters substantially
affecting interests of county governments. That
calls for the court to look beyond the substance
or purpose of the statute expressed in the text.
31. The court had to unbundle the specific provisions
of the proposed legislation to see if and to what
extent they satisfied the criteria set out under
article 110(1) of the Constitution. An amendment
to the Act affecting the manner in which money
was allocated to the CDF was the core part of
the Act. As the availability of money affects
the financing and implementation of projects
that fall within the competence of the County
Government, the provision could not be severed
without undermining the entire Act. The CDF
(Amendment) Bill was not an insubstantial
amendment. Therefore the CDF (Amendment)
Bill was unconstitutional for want of involvement
by the Senate
32. Devolution was a panacea to addressing the
developmental and equity gaps that existed in
71
our communities. That was not however to

say that the National Government could not
conceptualize and fund development initiatives
at the local level, what was critical was that such
initiatives in both design and implementation, had
to respect the system of governance in existence
and the spirit and letter of the Constitution.
33. Constitutional cases could not be decided on
the basis that Parliament or the President acted
in good faith or on the basis that there was no
objection to action taken at the time that it was
carried out. It was of crucial importance at
an early stage of the development of the new
constitutional order, to establish respect for the
principle that the Constitution was supreme.
The Courts duty was to declare legislative and
executive action which was inconsistent with the
Constitution to be invalid, and then to deal with
the consequences of the invalidity in accordance
with the provisions of the Constitution.
34. In order to protect the Constitution, the
court would have to be creative in fashioning
appropriate relief that is tailored to the facts of
the case and that is consistent with the values of
the Constitution. Suspension of the declaration
of invalidity would be appropriate in the
circumstances as it would allow the Legislature
time to correct the defective legislation while
avoiding chaos and disarray in a system that had
been established for over a decade. Such a move
would support good governance, a core national
value under article 10 of the Constitution.
35. In determining the period of suspension various
factors must be taken into account including, the
governments previous conduct, whether there
was any legislation in the pipeline and the nature
and severity of the continuing infringement. In
order to allow for transitional and corrective
mechanisms, suspension of the invalidity of
the CDF Act for a period of twelve months
from the date of the judgment was a reasonable
period. The National Government is entitled to
remedy the defects in the period either in form
of new legislation or other means within the
Constitution. For avoidance of doubt, the Act
may be repealed earlier by an Act of Parliament
or await the expiry of the suspension, whichever
comes first.
36. Obiter The Court must patrol Kenyas
constitutional boundaries with vigor, and
affirm new institutions, as they exercise their
constitutional mandates, being conscious that
their very infancy exposes them not only to the
vagaries and fragilities inherent in all transitions,
but also to the proclivities of the old order.
Orders
Constituencies Development Funds Act, 2013 is unconstitutional
and therefore invalid.
The order of invalidity above is suspended for a period of twelve
(12) months from the date of judgment.
72

The National Government may remedy the defect within that

period and the Constituencies Development Fund Act shall
stand invalidated at the expiry of the twelve (12) months or
may be earlier repealed whichever comes first.
Each party shall bear its own costs.
Challenges to the decisions of Public Procurement Administrative Review Board to be

made via Judicial Review Proceedings only
Riley Services Limited v Judiciary
A Mabeya, J
February 17, 2015
Brief facts
The Applicant instituted a suit to challenge a public
procurement process for the provision of security
services to the Judiciary. The suit was instituted via a
Memorandum of Appeal as an appeal from a decision of
the Public Procurement Administrative Review Board,
from which a review had been sought concerning the
same procurement process for security services. The
Applicant also made an application for a stay to restrain
the Respondent (the Judiciary) from entering into
contracts for the provision of security services with
Lavington Security Services Ltd and Bedrock Security
Services Ltd.
Lavington Security Services Ltd and Bedrock Security
Services (the Interested Parties) responded through a
Preliminary Objection contending that the appeal against
the decision of the Public Procurement Administrative
Review Board could only be made via Judicial Review in
accordance with the procedure set out in order 53 of the
Civil Procedure Rules 2010.
Issues
i.
Whether the Preliminary Objection met the

required legal threshold.
ii.
Whether a challenge to the decision of the Public

Procurement Administrative Review Board
could only be made through Judicial Review
proceedings.
Civil Practice and Procedure - Preliminary Objectionthreshold to be met in raising a Preliminary Objection-whether
the points raised in a Preliminary Objection required certain
facts to be ascertained.
Statutes - Statutory interpretation-whether a challenge to
the decision of the Public Procurement Administrative Review
Board could only be made via Judicial Review proceedingsPublic Procurement and Disposal Act (Cap 412C), section 100;
Civil Procedure Rules, 2010, Orders 42 & 43.
Section 100 of the Public Procurement and Disposal
Act (Cap 412C);
100. (1) A decision made by the Review Board shall, be
final and binding on the parties unless judicial review
thereof commences within fourteen days from the date
of the Review Boards decision.
(2) Any party to the review aggrieved by the decision of
Cases
the Review Board may appeal to the High Court, and

the decision of the High Court shall be final.
(3) A party to the review which disobeys the decision of
the Review Board or the High Court shall be in breach
of this Act and any action by such party contrary to
the decision of the Review Board or the High Court
shall be null and void.
(4) If judicial review is not declared by the High Court
within thirty days from the date of filing, the decision
of the Review Board shall take effect.
Held
1. The Preliminary Objection had been raised on the
basis of the facts pleaded by the Applicant. There
was no need for any facts to be ascertained in
order for it to be determined and it therefore met
the required threshold and was not premature.
2. The High Court had original and appellate
jurisdiction as conferred upon it by article 165 of
the Constitution of Kenya 2010 and legislation.
It also had supervisory jurisdiction as provided
for in article 165(6) of the Constitution of Kenya
2010.
3. The terms Appeal and Judicial Review as used
in section 100 of the Public Procurement and
Disposal Act (Cap 412C) referred to one and the
same thing, that is, seeking a relook at the decision
made by the Public Procurement Administrative
Review Board.
4. Judicial Review is a process by which exercise
of powers by statutory bodies were checked,
reviewed or looked at by the High Court. Both
the Public Procurement and Disposal Act and the
Interpretation and General Provisions Act (Cap
2) did not define the term appeal. However, the
term was defined in the Blacks Law Dictionary,
9th Edition 2009 at page 12 as a proceeding
undertaken to have a decision reconsidered by
a higher authority; especially, the submission of
a lower courts or agencys decision to a higher
court for review and possible reversal.
5. The marginal notes to section 100 of the Public
Procurement and Disposal Act (Cap 412C)
indicated that the section dealt with the right
to judicial review to procurement. Section
Cases
100(2) of that Act referred to an appeal whilst
the definition offered to the term appeal in the
Blacks Law Dictionary was to the effect that an
appeal included judicial review.
6. The intention of the drafters of the Public
Procurement and Disposal Act (Cap 412C) was
that decisions relating to procurement were to be
expedited and concluded within the shortest time
possible. The procedure given did not envisage
73
the normally long and tedious process of appeals

under Order 42 of the Civil Procedure Rules
2010. The decisions of the Public Procurement
Administrative Review Board were meant to be
swiftly challenged by way of Judicial Review only.
Preliminary Objection upheld. (The Applicant was at liberty to
file Judicial Review proceedings over the dispute.)
The Urgent Need for Laws to Regulate Surrogate Arrangements in Kenya

M .N. & 2 others v Attorney General & 5 others
Isaac Lenaola, J
February 13, 2015
Reported by Phoebe Ida Ayaya
Brief facts
Family law surrogacy - definition of a parent where the

commissioning mother was registered as the mother in the
An important issue was raised as to how surrogacy birth certificate whether it was legally proper to register the
agreements should be lawfully operationalized and commissioning mother on the childs birth certificate without
related questions as to the registration of a child born going through the adoption process - whether, legally, a woman
out of a surrogacy arrangement. X was diagnosed with who gave birth under a surrogacy agreement would be recognized
secondary infertility after losing one child at infancy and as the childs mother as opposed to the commissioning mother
having had four miscarriages, each in the first trimester. Childrens Act; Births and Deaths Registration Act, section 22;
She sought advise from The Nairobi IVF Center Ltd, the Constitution of Kenya 2010, article 53(2)
4th Respondent and the latter advised her to seek an egg
donor IVF/ET as the most suitable fertility option and Family Law - adoption adoption process-whether the
both X and her husband, Y, accepted the advise. The egg commissioning mother was required to adopt the children even
donor option was undertaken as advised and failed.
after a surrogacy agreement was valid- whether it was legally
proper to register the commissioning mother on the childs
th
X and Y sought further advise from the 4 Respondent
birth certificate without going through the adoption process and it was agreed that a surrogate arrangement was the
Children Act (cap 141)
next best option and Z agreed to be the surrogate host.
Her husband was also agreeable to the arrangement Constitution of Kenya, 2010
and a Surrogacy Agreement was subsequently signed.
Z consented to have three embryos transferred to her Article 53 (2); A childs best interests are of paramount
and to hand over the born baby to the genetic parents. Z importance in every matter concerning the child
underwent the embryo transfer which was successful to Held:
term and delivered twin female babies.
1. The children were issued with birth certificates
After taking legal advise from the Attorney General,
based on the advice given by the Attorney General
Kenyatta National Hospital issued a Birth Notification
on the basis of the consent between the surrogate
Certificate indicating that X and Y were the parents of
mother and the intended parents. The same was
the twins and The Department of National Registration,
also meant to save the parties concerned time and
the 2nd Respondent issued their birth certificates. An
money that would otherwise need to be expended
application for British Citizenship for the children,
over an adoptive process under the Childrens
enabling them travel to the United Kingdom which was
Act. That short cut process was however faulted
unsuccessful because the procedure that was followed
on the argument that the birth certificates were
in obtaining birth certificates for the surrogate twins in
falsified since, in law, the intended mother could
Kenya was found wanting in the United Kingdom.
not, at the time of issuance, be deemed as the
mother of the children.
Issues
i.
Whether birth certificates issued to children

born out of a surrogacy agreement were properly
issued under the current legal regime in Kenya,
without undertaking the adoption process.
ii.
Who between the surrogate mother and the

commissioning mother was the lawful mother of
children born under a surrogacy agreement?
2. A host woman was legally presumed to be
the mother of a surrogate child until other

legal processes were applied to transfer legal
motherhood to the commissioning woman. The
surrogate mother having carried a child following
assisted reproduction and no other woman was
the childs legal mother Section 33(1) of the
United Kingdoms Human Fertilization and
Embryology Act, 2008. This remained the case
74
unless the child was subsequently adopted or

parenthood transferred through a parental order.
Absent adoption or a parental order, she had and
retained parental responsibility.
3. Absent a legislative framework in Kenya, the
position taken by the United Kingdoms courts

had to prevail and so the surrogate mother was
the mother of the twins until such a time as the
necessary legal processes were undertaken or
until the court issued orders in that regard. As
a result, the birth certificates were unlawfully
issued contrary to section 22 of the Births and
Deaths Registration Act.
4. What the commissioning parents wanted, and
what the childs best interests demanded was an

order permanently extinguishing all the legal
rights and responsibilities of the surrogate parents
and permanently vesting all such rights and
responsibilities in the commissioning parents.
There were only two ways that, in principle, such
an outcome could be achieved; an adoption order
made in accordance with section 46 of the United
Kingdoms Adoption and Children Act (cap 141)
or a parental order made in accordance with
section 54 of the 2008 Act.
5. Unlike the courts in the United Kingdom, Kenya
did not have provision for parental orders and

the only option that could have been available
was adoption. Whatever decision the court made
in that regard however, had to be guided by two
main considerations;
a. The need to ensure that the unit of the
family as intended in the surrogacy
agreement was not ruined by unnecessary
detail and technicality.
b. That at all times the best interests of the
surrogate children was paramount.
her husband only featured in the signing of the

Surrogacy Agreement. It was also obvious that
neither of them had any intention of claiming the
children in the future and therefore to all practical
intents and purposes, the commissioning parents
were the ones raising the children as parents.
Principally, in crafting an appropriate relief, there
was need to confer upon the commissioning
parents legal parenthood by the most expeditious
and inexpensive lawful process.
10. While it was agreed that an adoption order
was the only appropriate relief, the efficacy

of such an order was cast in doubt because the
commissioning father was actually genetically
the father of the twins and so could not adopt
his own child. What mattered was how to confer
parental status/parental responsibility upon the
mother. The option that seemed agreeable to all
parties and actually the only one visibly available
within Kenyas legal regime, was adoption by the
commissioning mother since the commissioning
father was already a parent in fact and in law.
11. (Obiter) In Kenya, there is now no doubt that we
require a law to regulate surrogate arrangements

in order to protect all involved and affected
parties including and most importantly, the
children.
Order issued that pending a fast-tracked adoption process for the

surrogate twins, their birth certificates and Kenyan passports be
amended and/or altered to indicate that the surrogate mother
and not the commissioning mother is their biological mother.
Order issued directing the Deputy Registrar of the Family
Division to fast-track the adoption proceedings in the interests
of justice.
In cases of surrogacy, the surrogate mother shall be registered as
the mother of a born child pending legal proceedings to transfer
legal parenthood to the commissioning parents.
6. In addressing the first issue in the context of a The Attorney General is directed to fast-track the enactment of
parental order, the primary aim of section 54 of
the United Kingdoms Human Fertilization and
Embryology Act 2008 was to allow an order to
be made which had a transformative effect on
the legal relationship between the child and the
applicants. The effect of the order was that the
child was treated as though born to the applicants.
7. The Court, in granting relief, had to take into
account the fact that for the preceding three

years, the commissioning parents had struggled
to attain the family they intended to have,
spent huge amounts of time, money and other
resources, yet hitting legal walls. Whatever orders
were to be made therefore had to be within the
law, realistic, practical and effective.
8. The principle that the best interests of the child,
in any case involving a child, being paramount,

had been universally accepted. The Constitution
of Kenya, 2010 contained a provision to that
effect in article 53(2).
9. Although the surrogate mother was married,

Cases
legislation to cater for surrogacy arrangements in Kenya.
Cases
75
Supreme Court Case Digest

Volume - 1 (2011 & 2012)
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76
Research and Development Department
UK Supreme Court Rules that Health Care Workers Right to conscientiously object to
treatment does not extend to the delegation of that work to another co-worker
Greater Glasgow Health Board (Appellant) v Doogan and another (Respondents) (Scotland)
[2014] UKSC 68 on appeal from [2013 CSIH 36]
Supreme Court of the United Kingdom
Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge
December 17, 2014
Report by Monica Achode
Background To The Appeals
The UK Abortion Act 1967 as amended set out the
circumstances in which the termination of a pregnancy
could lawfully be brought about and required the
termination to take place in a National Health Service
Hospital or an approved clinic. Section 4(1) established
a right of conscientious objection. It provided that no
person would be under any duty, whether by contract or
by any statutory or other legal requirement, to participate
in any treatment authorized by the Act to which they had
a conscientious objection unless, pursuant to subsection
(2), it was necessary to save the life or prevent grave
permanent injury to the physical or mental health of a
pregnant woman.
The respondents were two experienced midwives
employed at the Southern General Hospital in Glasgow as
Labour Ward coordinators. Both were practicing Roman
Catholics who had informed their employer of their
conscientious objection to taking part in the termination
of pregnancy. A small proportion of terminations took
place in the Labour Ward rather than the Gynaecology
Ward where a midwife would be assigned to give these
patients a one to one care. The Labour Ward coordinator
booked in patients, allocated staff in the ward, and
supervised and supported midwives.
The respondents did not wish to undertake these tasks
in connection with patients undergoing terminations.
They were dissatisfied with the arrangements made to
accommodate their objections and raised a grievance
with their employer. The hospital took the view that
delegation, supervision and support did not constitute
participating in the treatment and rejected the grievance.
The respondents brought proceedings for judicial review
challenging the decision letters received as a result of the
grievance procedure.
They were unsuccessful before the Lord Ordinary but
succeeded before an Extra Division of the Inner House,
which granted a declaration that the scope of section 4(1)
included the entitlement to refuse to delegate, supervise
and/or support staff in the provision of care to patients
undergoing terminations save as required by section 4(2).
This was a wide interpretation of the right, which was said
to extend to any involvement in the process of treatment,
the object of which was to terminate a pregnancy. The
respondents employers appealed to the Supreme Court.
UK Abortion Act 1967
4 Conscientious objection to participation in treatment.
1) Subject to subsection (2) of this section, no person
shall be under any duty, whether by contract or
by any statutory or other legal requirement, to
participate in any treatment authorized by this Act
to which he has a conscientious objection:

Provided that in any legal proceedings the burden
of proof of conscientious objection shall rest on the
person claiming to rely on it.
2) Nothing in subsection (1) of this section shall
affect any duty to participate in treatment which
is necessary to save the life or to prevent grave
permanent injury to the physical or mental health of
a pregnant woman.
3) In any proceedings before a court in Scotland, a
statement on oath by any person to the effect that he
has a conscientious objection to participating in any
treatment authorized by this Act shall be sufficient
evidence for the purpose of discharging the burden
of proof imposed upon him by subsection (1) of this
section.
Issue:
Whether the precise scope of the right of conscientious
objection as provided for by section 4 of the UK Abortion
Act 1967 encompassed the right to refuse to give medical
treatment
Constitutional Rights - rights in respect of religious beliefs
where the health care providers were Roman Catholics where
part of their duties involved the termination of pregnancies
for patients - duty of care owed to patients by members of the
health care profession where the health care provider was
under an obligation to refer the case to a professional who did
not share the objection - whether their employers had a duty to
make reasonable adjustments to the requirements of their job to
take account of their religious beliefs - European Convention
on Human Rights Article 9
Words and phrases - meaning - meaning of participate in
and conscientious objection - course of treatment to which
conscientious objection was permitted whether Parliament
had contemplated a narrow interpretation of the Act when it
was passed UK Abortion Act 1967
Held
1) The only question in this case is one of pure
statutory construction: the meaning of the words
to participate in any treatment authorized by this
Act to which he has a conscientious objection. It
was common ground that any treatment authorized
by this Act meant the process of treatment in
hospital for the termination of pregnancy and that
participating meant actually taking part in that
process, rather than the extended meaning given to
participation by the criminal law.
77
2) Questions of whether the respondents rights to

respect for their religious beliefs protected by
Article 9 of the European Convention on Human
Rights had been unlawfully restricted, or whether
their employers had a duty to make reasonable
adjustments to the requirements of their job to
take account of their religious beliefs did not fall
to be decided in this case, but were better suited to
resolution in the proceedings which the respondents
had also brought in the employment tribunal. Nor
did the Supreme Court have the evidence from
which the impact on a safe and accessible abortion
service of a wide or narrow interpretation of section
4(1) could be assessed.
within the scope of section 4(1). These include

providing advice requested by a midwife connected
with the care of a particular patient undergoing a
termination (as opposed to ordinary monitoring
of all patients); accompanying the obstetrician on
ward visits to those patients; providing part of the
treatment in response to requests for assistance
from the patient or from the midwife caring for her
(but not responding by itself to such requests and
making a referral if necessary); providing break
relief personally for those midwifes; being present
if medical intervention was required in connection
with the treatment; and forming judgments about
the progress of these patients personally.
3) The course of treatment to which conscientious

objection was permitted by section 4(1) was the
whole course of medical treatment bringing about
the termination of the pregnancy. It begun with
the administration of the drugs designed to induce
labour and normally ended with the ending of the
pregnancy by delivery of the foetus, placenta and
membrane. It also included the medical and nursing
care which was connected with the process of
undergoing labour and giving birth the monitoring
of the progress of labour, the administration of
pain relief, the giving of advice and support to the
patient, the delivery of the foetus, the disposal of
the foetus, placenta and membrane and any specific
aftercare required as a result of the process of giving
birth. But the ordinary nursing and pastoral care of
a patient who had just given birth was not unlawful
before the Abortion Act 1967 and thus not made
lawful by it.
6) A necessary corollary of the duty of care owed to

patients by members of the health care profession
is that any conscientious objector was under an
obligation to refer the case to a professional who did
not share the objection.
4) A narrow meaning of the words to participate in

was more likely to have been in the contemplation
of Parliament when the Act was passed, rather than
the host of ancillary, administrative and managerial
tasks associated with the acts being made lawful.
Participate means taking part in a hands-on
capacity: actually performing the tasks involved in
the course of treatment.
5) The appellant set out the list of tasks carried out
by Labour Ward coordinators like the respondents
and indicated which specific elements would be
The Supreme Court unanimously allowed the appeal and

set aside the declaration made in the Inner House.
Relevance To The Kenyan Situation
Under the Penal Code sections 158 to 160, the act of
procuring an abortion is an illegality. It is only allowed
under certain circumstances, eg to save the life of the
woman, to preserve her physical health and to preserve
her mental health. There is also the added conditionality
that the abortion must be performed by a certified
physician, with the consent of the woman and her spouse.
Two medical opinions, one of which must be from the
physician who has treated the woman and the other from
a psychiatrist, are also required before the abortion is
performed. The abortion must be performed in a hospital.
Once these conditions are met however, Kenya has no
provision for the care giver to conscientiously object to
taking part in the termination of pregnancy. It would be
interesting to see such a case play out where the care giver
argues their constitutional right to exercise their faith and
refuse to render the services sought vis a vis Article 43
which gives the patients rights to the highest attainable
standard of health, which includes the right to health care
services, including reproductive health care.
78
Issue 28, Janury - March 2015
UK Prisoners Right to Vote does not extend to voting in vreferenda

Moohan and another (Appellants) v The Lord Advocate (Respondent)
[2014] UKSC 67 On appeal from [2014] CSIH 56
JUSTICES: Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Wilson,
Lord Reed, Lord Hodge
December 17, 2104
Report by Monica Achode
Background to the Appeals
Under the Scottish Independence Referendum
(Franchise) Act 2013, convicted prisoners were not
eligible to vote in the Scottish independence referenda.
The Appellants were Scottish prisoners who challenged
that exclusion through judicial review proceedings. They
relied on previous case law establishing that a general
and automatic prohibition that bared prisoners from
participating in general elections violated article 3 of
Protocol No 1 of the European Convention on Human
Rights (A3P1).
The appellants judicial review applications were refused
in the Outer House of the Court of Session while the
First Division of the Inner House of the Court of Session
refused a reclaiming motion. The Supreme Court heard
and decided the appellants appeal, in order that the
matter be resolved in advance of the then referendum.
European Convention on Human Rights Protocol No 1
Right to free elections
The High Contracting Parties undertake to hold free
elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature.
Issue:
Whether the prisoners incarcerated in Scotland as at the time of
the referendum had a right to vote in it
Constitution - fundamental rights and freedoms right to
participate in civil processes right to vote in a referendum
statutory disenfranchisement of prisoners where the
appellants had been incarcerated by the state whether the
appellants had a right to vote in the referendum - European
Convention on Human Rights Protocol No 1
Held:
1. The Supreme Court was of the view that the
words of A3P1 in their ordinary meaning referred
to an obligation to hold periodic elections to a
democratically elected legislature. However, the
requirement that such elections take place at
reasonable intervals suggested that the drafters did
not have referenda in mind [8]
2. There was unequivocal case law from the European
Court of Human Rights (ECHR) to show that the
reach of A3P1 was limited to periodic general
elections to the legislature. Although the Supreme
Court was not bound to follow ECHR authority, it
would ordinarily do so when, as here, there was a
clear and constant line of decisions delineating the
scope of a Convention right.
3. These cases also showed that the political importance
of a democratic decision was not the criterion for

its inclusion within A3P1. Article 10 of the ECHR,
protecting freedom of expression, did not confer
any wider right to vote than was provided by A3P1.
The prohibition on prisoners voting did not breach
EU law because:
a. the outcome of the referendum would not in
itself have been determinative of voters EU
citizenship; and
b. EU law did not incorporate any right to vote.
The appellants relied on Article 25 of the
International Covenant on Civil and Political
Rights (ICCPR), which protected the right to
participate in referenda on self-determination,
both as an aid to interpreting A3P1 and as a
free-standing international law obligation.
Neither point succeeded.
4. Article 25 ICCPR was different in wording and
scope from and did not inform the interpretation
of A3P1. The ICCPR was not incorporated into
UK domestic law and therefore Article 25 did not
affect the legislative competence of the Scottish
Parliament.
5. The right to vote was a basic or constitutional
right but common law had not developed so as to
recognize a right of universal and equal suffrage
from which any derogation would be provided for
by law and proportionate. Neither was the right to
vote inherent in the rule of law on a separate basis
from a statutory franchise.
Concurring opinion of Lady Hale
6. A3P1 did not require the holding of a referendum,
even on such an important issue as Scottish
independence and hence did not have a bearing on
the right to vote in such a referendum.
Dissenting opinion of Lord Kerr and Lord Wilson
1. The natural meaning of the words of A3P1 not
only encompasses elections to the legislature but
also elections that would determine the form of the
legislature. The ECHR was a living instrument and
A3P1 could apply to situations which were not in
the contemplation of its original drafters.
2. A fundamental purpose of the ECHR was to
guarantee an effective political democracy; that
purpose would be frustrated by preventing the
safeguards applicable to ordinary legislative
elections from applying to this most fundamental of
votes.
3. The requirement to hold elections at regular

intervals was secondary to the primary aim of
A3P1 which was to ensure that citizens could have
a full participative role in the selection of those who
would govern them. The ECHR case law did not, so
far, consider a referendum that would determine
the type of legislature that a countrys people would
have.
4. The words ensure the free expression of the opinion
of the people in the choice of the legislature were
dominant in A3P1 (and particularly apt to describe
the Scottish independence referendum) while the
words at regular intervals were subservient and
were not to be interpreted to contrary effect to the
object and purpose of the provision.
5. The ECHR authorities on referenda were not
directly on point and it was open to the Supreme
Court to go further than them in developing a
Convention rights.
79
The Supreme Court dismissed the appeal holding that the

statutory disenfranchisement of convicted prisoners from
voting in the Scottish referendum was lawful.
Relevance to the Kenyan Situation
In the last referendum Kenya held, the Kenyan Interim
Independent
Constitutional
Dispute
Resolution
Courtruled that prisoners of sound mind would be allowed
to vote in it, being a referendum on the countrysproposed
constitution. At the time KenyasConstitution banned
convicts from voting in presidential, parliamentary and
civic elections, but convicts from Kenyas Shimo La
Tewa Prisonpetitioned the courtto allow them to vote
in the referendum, arguing that it did not fall under any
of the banned categories. This marked the first time that
prisoners in Kenya were allowed to vote in any election.
Patience is the key which solves all problems. ~ Sudanese proverb
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Issue 28, January - March 2015

Translation of the Laws Into Kiswahili:

The 3rd All Kenyan Moot Court

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This Publication features the Summaries of selected cases on the

06 What they Said

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eorge Steiner once stated

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In Kenya, the language of the law has always been English.

simple and plan English and then into Kiswahili. Even

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shared instances where many citizens are not able to