Bench Bulletin - Issue 27

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National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary
CONTENTS
THE BENCH BULLETIN
p.
12
Kenya Laws annual staff team
building
p.
02
Speech By the Chief Justice at The Opening of the Annual General
Conference of The Kenya Magistrates And Judges Association (KMJA),
at Hotel Intercontinental, Nairobi, on November 7, 2014
p.
09
Digest of Recent Legal Supplement on Matters of General Public
Importance
p.
10
LEGISLATIVE UPDATE: Synopsis of Bills and Acts of Parliament

p.
14
The Blue Tick A Stalkers Delight
Issue
Issue
27, October
26, July - September
December 2014
Where Legal Information is Public Knowledge

A QUARTERLY PUBLICATION BY KENYA LAW
p.
17
The Supreme Court Cases
p.
89
Try Inner-Bonding
p.
91
Handling Relationships During The Festive Season
Ag Editor /CEO
Head of Law Reporting
Senior Law Reporters
| Longet Terer | | Cornelius Lupao | | Andrew Halonyere | Njeri Githanga Kamau |
Contributors
Monica Achode | Linda Awuor | Cornelius Lupao | Njeri Githanga Kamau | Janette Watila | Eric Odiwuor | Edna Kuria
| Wambui Kamau | Nelson Tunoi | Emma Kinya | Moses Wanjala | Phoebe Ayaya | Lydia Midecha | Andrew Halonyere
| Martin Andago | Teddy Musiga | Victor Kipyegon | Beryl Ikamari | Dudley Ochiel | Lisper Njeru | Caroline Wairimu |
Mary Waruguru | Ruth Ndiko | Naomi Mutunga | Cicilian Mburunga | 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
Mr Evans Monari
Advocate, Law Society of Kenya
The Hon Lady Justice Lydia Achode

Judge of the High Court of Kenya
Ms Florence Muoti Mwangangi

Advocate, Law Society of Kenya
Prof Githu Muigai, SC

Attorney General
Mr Silvester Migwi, Ag Government Printer,

Government Press
(Represented by Ms Eva N. Githinji, Senior Printer,
Government Press.)
Prof Annie Patricia G Kameri-Mbote, SC

Dean, School of Law, University of Nairobi
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 Mr. 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.
6
ii
Issue 26, July - September 2014
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Share copy and redistribute the material in any medium or format
Adapt remix, transform, and build upon the material for any purpose, even commercially.
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AttributionYou must giveappropriate credit, provide a link to the license, and indicate if changes
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Notices:

You do not have to comply with the license for elements of the material in the public domain or
where your use is permitted by an applicableexception or limitation.
No warranties are given. The license may not give you all of the permissions necessary for your
intended use. For example, other rights such aspublicity, privacy, or moral rightsmay limit how you
use the material.
For more information go to: http://creativecommons.org/licenses/by-sa/4.0/
BB Issue 26, April - September 2014 Creative Commons
Editors Note
Ag Editor/CEOs Note
K
enya Law was awarded the Digital Content Excellence award

by the ICT Association of Kenya (ICTAK) during the ICT Value
Award ceremony held at the Intercontinental Hotel Nairobi,
Kenya on December 3, 2014. The theme for the award ceremony was:
Recognizing Digital Transformation Champions 2014 .The aim of
the ceremony was to celebrate organizations and persons who were
overwhelmingly nominated for their inspiration and excellence under
various categories. Other nominees for the Digital Content Excellence
Award included: Nation Media, Standard Media, Royal Media Services
and Media Max Network. Kenya Law was the only public institution
nominated for the award.
As a service state corporation in the Judiciary that is tasked with
providing free access to public legal information { this includes
National & County Legislation (Laws of Kenya); Judgments of the
superior courts of record; Treaties & Agreements of Kenya; the Kenya
Gazette and the Cause List} we strongly believe that this information
is the common heritage of humankind and maximizing access to this
information promotes justice and the rule of law.
This award was made possible by our Council Members, led by the
Hon. Chief Justice and President of the Supreme Court, Hon. Dr. Willy
Mutunga D.Jur, SC.EGH who have continued to give us the necessary
guidance, support and encouragement. Their faith and trust in us
inspires us to live our core values.
Longet Terer
(Ag CEO/Editor)
Sincere appreciation goes out also to all Kenya Law staff members
through whose efforts and innovativeness we have been able to
transform this institution into an internationally acclaimed award
winning State Corporation. Kudos to Kenya Law!
Ag Editor /CEO
Editors
Note
BB Issue 27, October
- December
2014

CJs Message
Speech By the Chief Justice at The Opening
of the Annual General Conference of The
Kenya Magistrates And Judges Association
(KMJA), at Hotel Intercontinental, Nairobi,
on November 7, 2014
Deputy Chief Justice, President of the Court ofAppeal, Chairperson of
the Kenya Magistrates and Judges Association as well as its entire
leadership, Principal Judge of the High Court, Your Honours -- My
colleagues missionaries of justice, The Chairman and Chief Executive,
Kenya Association of Manufacturers, Ladies and Gentlemen:
very time there is a congregation of judicial officers such as this,

I am happy to be in the community in order to share reflections,
experiences and learning.
Let me start by congratulating the leadership of the Kenya Magistrates
and Judges Association for pulling off the feat of a second colloquium
in as many years. It is becoming a tradition for us to think together and
to learn from one another.
The office of judge or magistrate is a lifelong calling requiring

occupants to look beyond the job to the impact their work has on
society. Such perspectives might not emerge too fluidly or coherently
within the daily press of duties between pleadings, hearings, rulings and
judgments. The annual general conference is, therefore, an opportunity
for us to refine our ideas about how we intend to offer leadership from
The Hon. Dr. Willy Mutunga,
D. Jur., SC, EGH Chief Justice, the positions that we occupy.
President, Supreme Court of Kenya
The membership of the Kenya Magistrates and Judges Association is
directly engaged in the core mandate of the Judiciary the dispensation
of justice. KMJA continues to be an incubator of practical ideas on how
to facilitate the work of judicial officers and make them more effective.
KMJA gave birth to the Court Users Committees that revolutionary idea
that we must continue to nurture everyday. KMJA was the harbinger of
judicial training, which has now flourished spectacularly in the Judiciary
Training Institute. If for nothing else, this makes the association
a great ally of any Chief Justice. I wish to commend the association for
creating space for judicial officers to reflect on their work, address their
common challenges and share lessons.
More importantly, I am deeply grateful for the great work you continue
to do to deliver justice. Even in moments of crisis, the courts have
continued to work, dispensing justice to Kenyans and therefore providing
the stability we need as a society to not only survive but also prosper. It
is not something that I take for granted.
This time last year, we were emerging from what I called a good crisis
CJs Message
CJs Message
a crisis that allowed us to look corruption and its allies in the eye and tell it: enough!
In running and managing our courts we must continue fighting this vice as a matter of
personal honour and professional esteem.
We have since clarified our roles, spelled out responsibilities and striven to make the
Judiciary a true leader in public service. We have undertaken a thorough cleanup of the
various infrastructure projects and bridged many gaps in the administration, focusing
more intently on delivering the second phase of the Judiciary Transformation Framework
2012 2016.
We remain accountable to the Kenyan public, whose taxes remunerate us and fund our
work. Soon, we expect to release and transmit to Parliament the State of
the Judiciary Annual Report, which is the statutory instrument of accountability on our
performance and productivity.
Evidence is our greatest instrument in the courts; it must be our greatest ally in our work.
Many of you have provided statistics and narratives that enable us to properly account
to the people of Kenya as well as to their elected leaders about our work. This must
become our culture, because it is the only proof we need of our industry. We shall soon be
rolling out a more robust and comprehensive Daily Court Returns Template that has been
developed and piloted in several courts. Please take this seriously as from next year, we
shall be releasing to the public Station-Based Monthly Court Returns so that those
within our localities can see how much work we do.
Under the Judiciary Transformation Framework, we have committed ourselves to ensuring
equitable and expeditious delivery of justice. We have made great strides in clearing
the case backlog, reducing the numbers from an estimated one million cases three years
ago to 400,000. The Judicial Service Commission has recruited an unprecedented
number of judges, magistrates and kadhis but we are still a long way from attaining our
optimal establishment level. In the meantime, we have enhanced management practices
to increase efficiency and promote accountability in order to respond to the historical
problem of case backlog.
At the beginning of the year 2013, I set up a steering committee on performance
management within the Judiciary to begin conversations on how our work can be
measured and assessed. I thank you for the support you have given the committee,
and the candour with which you have expressed yourselves on the metrics for measuring
performance in order to entrench accountability for every member of the Judiciary family.
I am happy that judges, magistrates and judicial staff have embraced the culture of
performance management as a tool for accounting to the people of Kenya.
Ladies and Gentlemen: Court Users Committees have become the delivery sites for the
Judiciary Transformation. My recent tour of Garissa and Mwingi convinces me that these
committees remain the most important barometer of our effectiveness as judicial officers.
Stakeholders in the justice system must be afforded an opportunity to engage with the
Judiciary in order to improve the delivery of justice. Court Users Committees provide a
powerful platform for organised interests to engage directly with the Judiciary as well
as other actors in the justice chain to address specific concerns they may have. I am
glad that there is already an ongoing national level conversation on the linkages between
justice and the economy.
Nothing captures the exigency of the present moment more aptly than the theme of this
conference:
Securing Justice for the Economy.
It is not unusual for disputes to arise in the course of business interactions. When
BB Issue 26, July - September 2014 CJs Message
Issue 27, October - December 2014
they do, there is an expectation that they will be resolved expeditiously, justly
according to the law, and with an appreciation of the national context. We know
that business thrives in environments that uphold the rule of law and expeditiously
adjudicate disputes.
The concerns most commonly expressed are threefold: efficiency, abuse of court
process, and insufficient sensitivity to the social environment. For a long time, banks
and other financial institutions have been concerned over the manner in which courts
have granted injunctive orders that affect their business. There are now stricter and
firmer conditions to be met before the grant of injunctions. An outstanding area of
concern is the issue of taxation and the orders that courts issue. It is important that
while remaining true to our oaths to be fair to all, we take care not to turn courts into
a haven for tax fugitives or a refuge for the corrupt. Indeed public finance agencies
such as the Kenya Revenue Authority, the Public Procurement Authority and the
Construction Authority of Kenya have proposed the establishment of a High Court
Division to specifically handle and expedite their matters so that the substantial
amounts of money that is tied up in litigation can be released quickly enough for
the benefit of the Kenyan economy. I want to announce that I am looking at this
proposal favourably, and I will be having a discussion with the Judiciary Leadership
Advisory Council (JLAC), together with the Head of the Commercial Division of the
High Court, Justice Frederick Ochieng, to explore the viability and mechanics of
such a Division.
Even as we grapple with our numerous challenges, we must remember that the
Constitution has solutions to many of the quandaries we face. The provision for
alternative dispute resolution has not been sufficiently interpreted and put to use,
and I wish to see more effort in that regard. This forum offers an opportunity to
discuss alternative mechanisms for resolving disputes away from the traditional,
adversarial system. In particular, I would be interested to hear how we can entrench
mediation and arbitration in the resolution of business disputes. I am glad that the
Law Society of Kenya is taking leadership on this matter.
Last month, I requested the Principal Judge of the High Court to give policy and
administrative leadership on the establishment of facilitative processes for alternative
dispute resolution in the Judiciary. We are moving to operationalise a court-annexed
mediation and soon, I will appoint a Registrar for the Mediation Committee.
As we engage the public more, we must also become internally accountable and
democratic. I want to emphases that each court must establish, operationalise and
strengthen a Leadership and Management Team at the station and division level. But
I would like to urge that we nurture intellectual hubs at the regional level for judges
and magistrates to think together and debate the issues they confront. These forums
can generate ideas on how to better manage the institution and our work.
We continue to insist on being a learning institution that places great stock
in thinking and debate. The Stan Barer Scholarship Programme, which targets
magistrates, has seen four young people travel to the United States for a Masters
Programme in Law. Magistrate Lorraine Ogombe recently returned home after
completing her studies and is serving the Judiciary while another magistrate,
Hon Wanjala, has just embarked on his studies. Within the coming year, I intend
to expand the Chief Justices Scholarship Initiative to recognise excellence in the
Judiciary.
Finally, ladies and gentlemen: I am informed that the last assembly of KMJA
resolved that a manual on illicit trade be developed in partnership with Kenya
Association of Manufacturers. The National Council on Administration of Justice
(NCAJ) gave its go-ahead and established a team to carry out this mandate, which
Law Reporting
Law Reporting
has now been finalised. In keeping with the NCAJs values of interdependence, mutual
accountability, service and fidelity to the law, the process of developing this manual is a
remarkable feat of effort. This partnership is critical to ensuring constant engagement
between stakeholders in order to eliminate speculation, rumour and untruths so common
in our country today.
Illicit trade is very harmful to our economy. Indeed, it is a threat to our democracy as well
because it tends to finance retrogressive candidates in our elections and compromise
our institutions of governance and accountability. Counterfeit goods such as medicine
compromise our health. These merchants of death termites, as they are
sometimes called -- must be confronted with the full force of the law. The Judiciary will
do its part in fighting illicit trade in order to protect our economy, our people, and our
institutions. Indeed, the ongoing discussion on the establishment of a court to deal with
organized crime must be seen in this context. This manual will deepen our appreciation of
the complexity, the actors, agencies and institutions involved in illicit trade and its impact
on social wellbeing. The manual, which is ready for use, is an important contribution to
the assembly of tools judicial officers need to do their work, and it is now my pleasure to
launch it. I want to congratulate KMJA, NCAJ and KAM for realizing its production and
for collaborating to make this conference a success. The business community should
know that this is the new, transforming judiciary a judiciary that engages and listens.
Thank
you.
HON. DR. WILLY MUTUNGA, D. Jur, SC, EGH,

CHIEF JUSTICE AND PRESIDENT OF THE SUPREME COURT OF KENYA
BB Issue 27, October - December 2014

What they Said

K. H. Rawal DCJ, P.K.
Tunoi, M.K. Ibrahim,
J.B.
Ojwang,
S.C.
Wanjala, N.S. Ndungu In
Suleiman Said Shahbal
v Independent Electoral
and
Boundaries
Commission & 3 Others,
Petition No. 21 of 2014
The lesson of comparative jurisprudence was that while a declaration of

nullity for inconsistency with the Constitution annulled statute law, it did not
necessarily entail that all acts previously done were invalidated.
The Vetting Board could only make determination on the suitability of a Judge
or Magistrate to continue to serve on the basis of what the Judge or Magistrate
was alleged to have done or omitted to do during his tenure in office before the
Constitution of 2010; for it was his actions or omissions, that will determine
whether he/she was to be vindicated or condemned.
N. S Ndungu, SCJ
in In
Judges and
Magistrates Vetting
Board
v
Kenya
Magistrates
and
Judges Association &
another, Petition No.
29 of 2014
W.M.Mutunga CJ, K.H

Rawal DCJ, P.K. Tunoi,
J.B.
Ojwang,
S.C.
Wanjala, N.S. Ndungu In
Judges and Magistrates
Vetting Board v Kenya
Magistrates and Judges
Association & another,
As a basis of institutional transition, the Vetting Board was not barred either by
the Constitution or legislation from examining complaints on the basis of conduct
after the effective date. The consideration of post-effective date allegations by the
Vetting Board did not usurp the investigative and disciplinary powers of the JSC.
The restricted timeframe of the Vetting Board pointed to the temporary nature of
its existence and the JSCs constitutional duty for the continuous facilitation of
judicial independence and accountability.
CCK had exclusive powers under section 5(1)of the Kenya Information
& Communications Act to issue broadcast licenses. Section 5B thereof
guaranteed the independence of CCK in the performance of its functions.
However the promises made to the respondents on account of their
substantial investment in broadcast infrastructure, and upon which they
claimed legitimate expectation for the grant of BSD licenses emanated
from the Permanent Secretary, Ministry of Information, Communications
& Technology. Under the Kenya Information & Communications Act, the
Permanent Secretary had no role in the granting or cancellation of a BSD
license or any other broadcast licenses. It was therefore unlawful for the
Permanent Secretary to make such promises to the 1st and 2nd respondents.
BB Issue 26, July - September 2014 What They Said
W M Mutunga; CJ, K H
Rawal; VP & DCJ, P K Tunoi,
M K Ibrahim, J B Ojwang,
S C Wanjala, S N Ndungu,
In
Communications
Commission of Kenya &
5 others v Royal Media
Services & 5 others Petition
No.14 of 2014 (Consolidated
with Petitions Nos. 14A, 14B
& 14C of 2014)
What they Said
What they Said

The 1st, 2nd and 3rd respondents mistakenly asserted a guaranteed
entitlement to a BSD license ignoring the required procedural processes to
vindicate their grievances as provided by the constitution and the Act.
Justice Kiage Court of

Appeal judge in Judicial
Service Commission v
Gladys Boss Shollei &
Another, Civil Appeal No
50 of 2014
The right to fair hearing as enshrined in article 50 (1) related to legal proceedings
in courts and other judicial tribunals. There was nothing in the constitutional text
that suggested that the right applied to internal disciplinary hearings whether
or not they could lead to dismissal, touching on the conduct of an employee.
Employers and their disciplinary panels were not courts or judicial tribunals
and it was therefore a huge misdirection to assess their conduct of disciplinary
hearings using the judicial paradigm. As to the application of article, 50 (2) of
the Constitution, which was the content and essence of the right to a fair trial
envisaged in article 25, it related solely to criminal proceedings before a court
of law and had absolutely no application in an employees disciplinary hearing.
The constitutional and statutory mandate to initiate and consider a motion to

remove a County Governor is vested in the County Assembly and the Senate.
Section 33 of the County Governments Act which is an implementing legislation
for article 181 of the Constitution does not vest the courts with the jurisdiction
to hear charges relating to the removal of a Governor from office as far as the
process of removal of a Governor from office is concerned; the province of the
court is solely to decide on the rights of individuals and not to enquire how the
County Assembly and Senate perform duties in which they have discretion.
High
Court
Judge
W Korir in Republic
v
Kenya
National
Examination Council
& Another ex-parte
Audrey Mbugua Ithibu
JR Case No. 147 of
2013
H
K
Rawal,
DCJ
&
Vice
President
Supreme
court
In
Communications
Commission of Kenya &
5 others v Royal Media
Services & 5 others
Petition No.14 of 2014
(Consolidated
with
Petitions Nos. 14A, 14B
& 14C of 2014)
Court of Appeal judges

Visram, Koome & Odek,
JJ.A
In Martin Nyaga
Wambora & 3 Others v
Speaker of the Senate &
6 Others Civil Appeal No
21 of 2014
The applicant had satisfactorily demonstrated that that his situation was unique
and that had to be considered when addressing his application. Rule 9(3) of the
Kenya National Examinations Council (Kenya Certificate of Secondary Education
Examinations) Rules2009 provided that KNEC could withdraw a certificate for
amendment or for any other reason where it considered necessary. It therefore
had the legal backing to comply with the applicants request for removal of gender
mark in his KCSE certificate. Where it failed to do so, then the court could issue
an order of mandamus to compel it to perform its duty.
What they Said
The Kenya Law Android app
The Kenya Law Android app contains:

The Constitution of Kenya, 2010.
Selected Statutes of high public interest.
The Kenya Gazette.
Cause List (integrated with Kenya Laws website).
Case Search (which is integrated with Kenya
Laws Case law database).
This mobile app was borne out of collaboration between:
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Digest of Recent Legal Supplement on

Matters of General Public Importance
By Suzan Nabifo and Stanley Mumo (Laws of Kenya Department)
This article presents a brief summation of Legislative Supplements

published in the Kenya Gazette on matters of general public
importance. The outline covers period between 1st August, 2014 and 17th October, 2014.
DATE OF
PUBLICATION
LEGISLATIVE
SUPPLEMENT
NUMBER
CITATION
PREFACE
1st August, 2014.
40
The Land Registration (Forms)

Regulations, 2014.
The legislation is issued under sections

108 and 110 of the Land Registration
Act, 2012. It basically provides for the
form that is to be used in execution of
land transactions.
L.N. 104/2014
12th September,
2014.
50
The Limited Liability

The legislation provides for the
Partnerships Regulations, 2014. procedure of registering limited liability
partnerships, citing the requirements
L.N. 127/2014
for registration, restrictions as to
registration of Limited Liability
Partnership names, among others.
It also provides for the procedure
for conversion of Partnerships and
Private Companies to Limited Liability
Partnerships.
19th September,
2014.
51
The Tourism Regulatory

Authority Regulations, 2014.
L.N. 128/2014
These regulations provide guidance

to the Tourism Regulatory Authority
regarding classification and
standardisation of tourism enterprises,
licensing of tourism services and
activities, with the aim of regulating
tourism activities and services for
sustainable tourism throughout the
country.
17th October, 2014.
55
The Advocates (Senior Counsel The legislation amends the principal

Conferment and Privileges)
rules by deleting rule 19 and substituting
(Amendment) Rules, 2014.
it with a new rule that confers upon
Senior Counsel privileges while in court.
L.N. 147/2014
One of the privileges is precedence in
having his matters mentioned when
appearing in court or in a Tribunal.
17th October, 2014
55
Public Private Partnerships

Regulations, 2014.
L.N. 148/2014
This legislation applies to every contract

for the design, financing, construction,
operation, equipping or maintenance
of a project for the provision of public
services undertaken under the Public
Private Partnerships Act, 2013.
Laws of Kenya
10
LEGISLATIVE UPDATE: Synopsis of Bills and Acts of Parliament

By Stanley Mumo and Suzan Nabifo (Laws of Kenya Department)
A) NATIONAL ASSEMBLY BILLS

1. Traffic (Amendment) Bill, 2014
Kenya Gazette Supplement No. 117 (National Assembly
Bills No.32)
The principal object of this Bill is to amend the Traffic
Act (Cap. 403) to make provision for the safety of
children on roads around learning institutions or when
using school transport. The Bill seeks to regulate the
speed of vehicles around schools in order to protect
children when crossing the road to or from school.
2. Parliamentary Powers and Privileges Bill,
2014
Bills No. 33)
The main objective of this Bill is to give effect to
Article 117 of the Constitution, provide for the
powers, privileges and immunities of Parliament,
its committees, the leader of the majority party, the
leader of the minority party, the chairpersons of
committees and members and to make provision
regulating admittance to and conduct within the
precincts of Parliament.
3. Basic Education (Amendment) Bill, 2014
Bills No. 35)
The principal purpose of this Bill is to make necessary
amendments to the Basic Education Act, No 14 of 2013.
The Bill proposes to amend the definitions of various
words, to provide additional functions to the County
Education Board, to include members of Parliament
to the membership of the County Education Boards,
to establish Sub-county Education Boards whose role
is to represent the County Education Boards and coordinate all education related matters at sub-county
level and various other amendments.
4. In-Vitro Fertilization Bill, 2014
Kenya Gazette Supplement No. 132 (National Assembly,
Bills No.36)
This Bill seeks to anchor the existence and practice of
in-vitro fertilization in statute law. It makes provision
to empower and strengthen the practice of doctors
in the area of in-vitro fertilization. This will not only
enhance the in-vitro fertilization surveillance but also
strengthen control and avoid losses. The Bill makes
Laws of Kenya
provisions that address not only the legal voids but

also the likely societal concerns e.g. the consents
necessary before undergoing in-vitro fertilization,
regulation of the handling of embryos resulting from
the in-vitro fertilization processes, among others.
5. Pharmacy Practitioners Bill, 2014
Bills No. 37)
The main purpose of this Bill is to make provision for
the training, registration and licensing of pharmacists
and pharmaceutical technologists, to regulate their
practice and professional conduct, to provide for
the establishment and powers and functions of the
Pharmacy Practitioners Board. The Bill also provides
for the establishment, composition, functions and
powers of the pharmacy practitioners Board of Kenya
which shall be the regulatory body in respect of
the training, licensing and control of the practice of
pharmacy practice in Kenya.
B) SENATE BILLS
1. County Hall of Fame Bill, 2014
Kenya Gazette Supplement No. 136 (Senate Bills No. 33)
The purpose of the Bill is to provide an avenue by which
exceptional persons in each County are recognized
and honoured by their Counties. The Bill creates a
forum by which the County Governments can honour
sons and daughters who bring pride and fame to
their Counties. Such persons may not necessarily be
recognized at the National Level but are heroes and
heroines within their respective counties.
2. Natural Resources (Benefit Sharing) Bill,
2014
Kenya Gazette Supplement No. 137 (Senate Bills No.34)
The principal purpose of this Bill is to provide a
legislative framework for the establishment and
enforcement of a system of benefit sharing in
resource exploitation between resource exploiters, the
national government, county governments and local
communities and to establish the Natural Resources
(Benefits Sharing) Authority.
Laws of Kenya
C) ACTS
1. County Allocation of Revenue Act, 2014
Kenya Gazette Supplement No. 134 (Acts No. l5)
The main purpose of this Act is to provide for the
equitable allocation of revenue raised by the national
government among the county governments for the
2014/2015 financial year and the responsibilities of
national and county governments pursuant to such
allocation.
11
3. Victim Protection Act, 2014

Kenya Gazette Supplement No. 143 (Acts No. 17)
The main purpose of this Act is to give effect to Article
50(9) of the Constitution; to provide for protection of
victims of crime and abuse of power, and to provide
them with better information and support services, to
provide for reparation and compensation to victims
and to provide special protection for vulnerable
victims.
2. Finance Act, 2014

Kenya Gazette Supplement No. 141(Acts No. 16)
The objective of this Act is to amend the law relating
to various taxes and duties and for matters incidental
to all such matters.
Some rights reserved by simenon
BB Issue 26, July - September 2014
12
Kenya Laws annual staff team building

By Erick Odiwuor HR Department
The eagerly awaited Kenya

Laws annual staff retreat
and team building took place
between 13th to 16th November, 2014 at Travellers
Beach, Mombasa. The team building and staff retreat
provided an avenue for Kenya Law to build on the team
spirit, to promote the envisaged values and provided
an avenue for constructive dialogue among the team
members. The team departed Nairobi for Mombasa
on 13th November, 2014 and on the second day, 14th
November, 2014 the facilitators, Brookes Africa under
the leadership of Mr. Poppins Misoi took the team
through the ice breaker and a number of thrilling
activities like blind folds and the bottle, team branding
and traffic jam, animal sounds and intelligence tests
among other exciting activities.
The next day, 14th November, 2014 the team was
taken through the Lion and Antelope, Communication
Triangle, Navigator, Personality Test, Evaluations and
Way forward (Commitments)
After all these activities, members were taken through
a debrief session on the various observations.
The following were some notable points from the
sessions in relation to the working environment:i. Team branding brought out aspects of
Uniqueness of each person within an
organization and the characteristics that they
posses that make them stand out from others.
This is evident on how members accomplish
the same thing differently.
ii.
Leadership is key and this involves the leader

listening more to the team and talking less.
iii.
Consultation and clarity is required in giving

out instructions in order to convey the correct
information to the team.
iv.
Strategic positioning can lead to the team

members being exposed to more opportunities
as opposed to taking a backseat within the
team.
v.
Ones attitude can affect their output within

the team either participating or being a
passive member.
1
vi.
Co-ordination brings out efficiency within an

organization in terms of time and resources
availability.
vii.
Observation of the surrounding environment

brings out the vast of available resources
within the environment that can be used to
attain organizations goals.
viii.
It is important to ask for Expertise in areas

where one is not well informed. This leads
to finding a more suitable solution within a
shorter period.
ix.
The
organizations
core
values
are
essential in achieving its goals and tasks;
Integrity, Globalization, Openness, Diversity,
Uniqueness, Quality and Risk Management
etc.
13

Entangling to Circle
4
i.
ii.
iii.
iv.
v.
Entangling to Circle
Communication Triangle
Traffic Jam
Staff Members Conducting Evaluations of the
Retreat
Personality Test
14
I.C.T Department
The Blue Tick A Stalkers Delight
By Martin Andago, Head of ICT Department
any of us are familiar with

WhatsApp Messenger,
a cross-platform mobile
messaging application which
allows you to exchange messages without having
to pay for SMS. WhatsApp Messenger is available
for iPhone, BlackBerry, Android, Windows Phone and
Nokia. In addition to basic messaging WhatsApp
users can create groups, send each other unlimited
images, video and audio media messages. Because
WhatsApp Messenger uses the same internet data
plan that you use for email and web browsing, there
is no cost to message and stay in touch with your
friends.
For years, WhatsApp users have argued over the
relevance of the double tick system. Does it mean
the message has been read by the recipient, or
merely received by their phone? The issue has been
resolved once and for all after WhatsApp finally
updated its protocol with a double blue tick mark to
indicate the message has been read. WhatsApp has
started sending read message confirmations back
to the reader by issuing blue double tick marks on
BB Issue 25, April - June 2014
15
the message. This indicates and confirms that the subsequently the time it was read by pressing the
message has been read / seen by the user on the blue-ticked message and holding in for a few seconds,
other end.
before selecting info. This could take an adverse
effect on WhatsApp users and force them to migrate
Here is what each check mark indicates:
to other chat applications to avoid controversies.

Message successfully sent.
Message successfully
recipients phone.
The recipient has read your message
delivered
to
Facebook Messenger, iMessage and others have

the offered read receipts as an option for several years,
alerting beady-eyed senders to the exact time their
message had been opened.
Now there is no escaping as the sender will know

if you saw the message and when. While blue ticks
could be great for some, it could ruin relationships
for many others. The truly paranoid among you can
check the exact time the message was delivered and
Some rights reserved by Neil Palmer (CIAT)
It is interesting to note that after public outcry and a

myriad of complaints from users who felt that their
privacy rights were being trampled on WhatsApp has
quietly introduced another new feature that allows
you to disable the blue ticks/read receipts. The feature
is available to all users.
I.C.T Department
16
Cases
Product Catalogue and Price list

Product
Status
Costs
Kenya Law Reports 1976 -1980
Available
6,000/=
Kenya Law Reports 1981
Out of stock
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Status
Costs
28 Kenya Law Reports 2008
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4,500/=
29 Kenya Law Reports 2009
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30 Kenya Law Reports 2010 Volume 1 & 2
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31 Laws of Kenya Grey Book
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32 Land Law Volume
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34 Family Law Volume
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35 Commercial Law Vol. 1
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36 Commercial Law Vol. 2
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(featuring new Land Laws)
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38 Kenya Law Review 2007 Vol. 1
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39 Laws of Kenya Consolidated CD ROM

40 Kenya Law Reports (Gender Based Violence)
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41 Kenya Law Reports (Family & Gender)
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42 Kenya Law Reports (Environment & Land) Vol. 1
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43 Kenya Law Reports (Election Petitions) Vol. 1
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Kenya Law Reports 2002 Vol. 1
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46 Kenya Law Review Journal 2008 - 2010 Vol. II

47 Kenya Law Reports Consolidated Tables and
Digest [1976-1986]
23
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48 Kenya Law Reports (Gender Based Violence)
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49
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51
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mykenyalaw
National
Council
for Law2014
Reporting
BB
Issue 27, October
- December
@mykenyalaw
Mykenyalaw
(Kenya Law) - A service state corporation in the Judiciary
17

The Supreme Court Cases

Declaration of invalidity of section 76(1)(a) of the Elections Act must apply from the date
of commencement of the Act.
Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 Others
Supreme Court of Kenya
K. H. Rawal DCJ, P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala, N.S. Ndungu, SCJJ.
December 19, 2014
Reported by Emma Kinya Mwobobia
Issues
Whether the appellate court could retrospectively
apply the Supreme Courts decision on declaration
of invalidity of section 76(1)(a) of the Elections Act
notwithstanding that the said declaration was silent
on its commencement
Constitutional Law retrospective application of a
law application of a law invalidating a section of the
statute where the Supreme Court had declared a
section of the Elections Act invalid the extent of the
invalidity whether the invalidity of the section applied
retrospectively to run from the commencement of the
Act whether acts committed under the invalidated law
were a nullity Elections Act 2011, section 76(1)
Held:
1. The declaration of invalidity of Section 76(1)
(a) of the Elections Act, applied retrospectively
in the instant case, as in the case of Mary
Wambui Munene v Peter Gichuki Kingara & 2
others Supreme Court Applic. No. 12 of 2014
(Mary Wambui,) because the Elections Act was
an essential derivative of the Constitution
enacted after the promulgation of the
Constitution and was meant to set out the
guidelines for the proper and effective conduct
of elections and necessarily incorporated the
element of time and timelines.
2. The lesson of comparative jurisprudence
was that while a declaration of nullity for
inconsistency with the Constitution annulled
statute law, it did not necessarily entail that
all acts previously done were invalidated.
In general, laws have a prospective outlook
and prior to annulling declarations, situations
otherwise entirely legitimate may have come
to pass and differing rights may have accrued
that have acquired entrenched foundations.
That gave justification for a case-by-case

approach to time-span effect in relation to
nullification of statute law. In that regard, the
Court had a scope for discretion, including the
suspension of invalidity and the application
of prospective annulment. Such recourses,
however, were for sparing and most judicious
application in view of the overriding principle
of the supremacy of the Constitution as it
stood.
1. The High Court bore the primary responsibility
for determining whether any law was
inconsistent with or in contravention of the
Constitution. The discretion also vested in
the Court of Appeal as well as the Supreme
Court. In Hassan Ali Joho & Another v Suleiman
Said Shahbal & 2 Others Sup Ct Petition No. 10
of 2013(Joho case) and Mary Wambui cases,
the Supreme Court considered the impugned
statutory provision in light of the entire
scheme of the Constitution before making
the declaration of invalidity and further in the
Mary Wambui case, before deciding upon the
retrospective application of that declaration.
That was the appropriate approach as regards
the instant case.
2. The provisions of Section 76(1)(a) of the
Elections Act were inconsistent with the terms
of Article 87(1) of the Constitution and were
invalid to the extent of that inconsistency.
Orders:
(a)
The Petition of Appeal dated 3rd June, 2014
disallowed.
(b)
The Judgment and consequential Orders of
the Court of Appeal, dated 23rd April, 2014
upheld.
(c)
The appellant was to bear the costs of the
appeal before the Supreme Court.
Cases
Cases
18
Supreme Court stays execution of Court of Appeal orders pending appeal

Justus Kariuki Mate & Another v Martin Nyaga Wambora & another
Civil Application No. 37 of 2014
P.K. Tunoi & N.S. Ndungu, SCJJ.
December 29, 2014
Issues:
i. Whether the matter that was before the Court
was one of general public importance under
article 163(4)(b) of the Constitution and thus
meritted a determination by the Supreme
Court
ii.
Whether the appeal raised sufficient grounds

to warrant a stay of execution of the Court of
Appeals decision
Jurisdiction jurisdiction of the Supreme Court

interpretation and application of the Constitution
jurisdiction of the Supreme Court in interpretation or
application of the Constitution in matters of general
public importance whether the issues raised were
considered matters of general public importance
Constitution of Kenya, 2010 article 163(4)
Civil Practice and Procedure stay stay of execution
stay of execution of the Court of Appeal decision
application for a stay of execution of the court judgment
and orders pending hearing and determination of the
appeal whether the application was valid in the
circumstances
Held:
1. The determination of the question as
to whether the High Court exceeded its
jurisdiction by finding the applicants to
be in contempt of a Court Order called for
the interpretation and application of the
Constitution which was the criterion of
jurisdiction of the Supreme Court by the
terms of article 163(4)(a) of the Constitution.
2. The issues raised were not only cognizable
but also weighty constitutional questions that
were, prima facie, arguable. As significant as
the issues in contest were, it was not possible
to resolve them with finality in the context of
the preliminary motion.
3. If the Supreme Court was to decline to

maintain the status quo, the High Court
would proceed to take mitigation and then
sentence the applicants. There was a
likelihood, in that case, that the applicants
would be incarcerated, and the substratum of
the appeal-cause would have been spent. In
the event that the Supreme Court eventually
found in favour of the applicants, it would be
impossible to compensate them by way of
costs. In the alternative, if the Court found
in favour of the respondents, no harm would
have been occasioned to them.
4. The determination of the extent of application
of the doctrine of separation of powers, which
was a vital constitutional concept, was a
matter of public interest.
5. The respondents case rested on fundamental
constitutional questions not yet interpreted
and which bore a close relation to the
appellants case, and hence the need for an
interpretation of the Constitution, ahead of the
application of the standard law of contempt.
Orders:
Application allowed.
Execution of the order of the Court of Appeal was to
rest in abeyance and status quo maintained pending the
determination of the appeal.
Hearing date of the pending appeal was to be issued by
the Registrar on priority basis.
The costs of this application were to abide in the appeal.
19

Supreme Court lacks jurisdiction to determine appeals that were concluded before the
promulgation of the Constitution
Menginya Salim Murgani v Kenya Revenue Authority
Civil Application No.4 of 2014
P.K. Tunoi, M.K. Ibrahim,J.B. Ojwang, S.C. Wanjala & S.N. Ndungu, SCJJ.
December 19, 2014
Issues:
i. Whether the Supreme Court had jurisdiction
to determine an Appeal which had not been
filed before the promulgamation of the
Constitution of Kenya, 2010.
ii.
Whether the matter was one of general

public importance under article 163(4)
(b) of the Constitution and thus meritted a
determination by the Supreme Court
Jurisdiction - jurisdiction of the Supreme Court

establishment of the Supreme Court by the Constitution
- jurisdiction of the Supreme Court in matters which had
been determined and concluded before the promulgation
of the Constitution where the instant matter had
been concluded by the Court of Appeal which was the
apex court at the time whether the Supreme Court
has jurisdiction to hear and determine the appeal
Constitution of Kenya 2010, article 163(4)
Held:
1. It is a general principle of law that a Court after
passing Judgment, becomes functus officio
and cannot revisit the Judgment on merit or
purport to exercise a judicial power over the
same matter, save as provided by law.
The instant matter was not distinguishable

from the S.K Macharia case, as it was evident
that the rights of the parties to the dispute had
been determined in a decision of the Court of
Appeal which was the apex Court prior to the
promulgation of the 2010 Constitution.
3. In respect of the interplay between natural
justice
and
disciplinary
proceedings
in employment relations, especially in
circumstances such as those obtaining in the
instant matter in which the employer was the
States foremost agency of financial power,
the matter was eminently meritorious.
4. In the context of the facts and the history of
the instant matter, the binding effect of the
S. K. Macharia case as regards the appellate
Court determinations made before the
promulgation date of the Constitution had not
been distinguished.
Orders:
Notice of Motion disallowed. Court of Appeal decision
upheld. Costs were to be borne by the applicant.
2. There was no appeal pending before the

appellate court at the date of the promulgation
of the Constitution as the subject-matter of
the appeal in question had been heard and
determined before the promulgation. To grant
the said application would have meant the
Court of Appeal quashing and setting aside its
own decision, and that would amount to going
beyond the scope of the powers of review as
conceived in legal parlance.
Cases
20
Cases
Vetting Board has no Jurisdiction to examine complaints after the Promulgation of the
Constitution
Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another
W.M.Mutunga CJ, K.H Rawal DCJ, P.K. Tunoi, J.B. Ojwang, S.C. Wanjala, N.S. Ndungu, SCJJ.
December 19, 2014
Issues
i. Whether the Supreme Court had jurisdiction
to determine the appeal on the limitation
period of vetting the conduct of the Judges
and magistrates
ii.
Whether the Judges and Magistrates Vetting

Board (Vetting Board), in determining the
suitability of a Judge or Magistrate to continue
to serve in the Judiciary could consider
conduct after the effective date
iii.
On what basis could the vetting board

determine that a Judge or magistrate who
was in office on the effective date was suitable
to continue to serve?
iv.
Whether there was a conflict in the mandate of

the vetting Board vis a vis the Judicial Service
Commission(JSC)
v.
What process would be followed where a Judge

or a Magistrate who was being vetted faced
a real prospect of disciplinary proceedings
against him by the JSC or where the Board
came across an incident of misconduct after
the due date?
Jurisdiction jurisdiction of the Supreme Court interpretation of the Constitution - Jurisdiction of the Supreme
Court in the interpretation and application of the Constitution whether the Supreme Court had jurisdiction in
the appeal Constitution of Kenya 2010, article 163(4)
Constitutional Law statutes constitutionality of a
statute where an Act of Parliament is found to be in
conflict with the Constitution effect of the conflict
Constitutional law vetting of Judges and Magistrates
mandate of the Judges and Magistrates Vetting Board
mandate to scrutinize conduct of judicial officers
before the promulgation of the Constitution vetting
boards mandate to determine the suitability of a judicial
officer to serve basis of the vetting boards decision on
the acts and omissions of the judicial officer before the
promulgation of the Constitution - whether the Judges
and Magistrates Vetting Board could vet judicial officers in respect to acts or omissions occurring after the
promulgation of the Constitution - Constitution of Kenya,

2010 articles 10, 159, Sixth Schedule section 23; Vetting
of Judges and Magistrates Act section 18(1)
Held:
1. The appeal was filed as of right pursuant to
Article 163 (4) (a) of the Constitution because
it involved the interpretation or application of
the Constitution. It was properly before the
Supreme Court and the Court had jurisdiction
in every aspect to determine the issue. To
decline to determine the question as framed
on the basis of an unsubstantiated claim of
lack of jurisdiction would defeat the vetting
process, notwithstanding the clear terms of
the Constitution.
2. Section 23(1) of the Sixth Schedule to the
Constitution required that the mechanisms
and procedures for vetting occur in terms
of the Judges and Magistrates Vetting Act,
subject to the values and principles set out in
Articles 10 and 159 of the Constitution.
3. The essence of Section 23(2) as read together
with section 23(1) of the Sixth Schedule to the
Constitution was that the removal or process
leading to a removal by virtue of the Judges
and Magistrates Vetting Act was not subject
to a review by a Court.
4. The extent and reach of the vetting process
was captured in the wording of section 23(1)
of the Sixth Schedule to the Constitution as
being within a time frame to be determined
in the legislation meaning the Judges and
Magistrates Vetting Act. However, that time
frame even as determined by legislation was
not elastic. It was to serve a limited purpose
of determining the suitability of those judicial
officers who were in office on the effective
date to continue to serve.
5. The inescapable conclusions from the
wording of Section 23(1) of the Sixth Schedule
to the Constitution which stated in part that
the suitability of all judges and Magistrates
21
who were in office on the effective date to

continue to serve were:
(i)
That the Vetting Board was at liberty to

inquire into the conduct of all the Judges
and Magistrates who were in office on
the effective date, to determine their
suitability to continue to serve.
(ii)
That the Vetting Board had no

jurisdiction to inquire into the conduct
of any Judge or Magistrate who was
not in office on the effective date. The
logic of this exclusion from vetting
was that the latter, not having been in
office before the promulgation of the
Constitution of 2010, could not have
done or omitted to have done anything
in his/her capacity as a judicial
officer to warrant the scrutiny of the
Vetting Board. Conversely, a Judge or
Magistrate who was in office on the
effective date may or may not have
done something at the time he was in
office before the promulgation of the
Constitution of 2010 to warrant the
scrutiny of the Vetting Board.
6. The Vetting Board could only make

determination on the suitability of a Judge
or Magistrate to continue to serve on the
basis of what the Judge or Magistrate was
alleged to have done or omitted to do during
his tenure in office before the Constitution
of 2010; for it was his actions or omissions,
that would determine whether he/she was
to be vindicated or condemned. The Board
could not wait to act on the basis of what
such Judge or Magistrate would do after the
promulgation of the Constitution of 2010.
7. The Constitution has in-built mechanisms
which have ensured a harmonious
coexistence between the vetting process for
Judges and Magistrates who were in office
on the effective date (an exclusive mandate
of the Board), and the disciplinary process for
all judicial officers who were not in office on
the effective date, including those who had
already been vetted (an exclusive mandate of
the JSC). The Constitution does not envisage
vetting to be a continuous process. Yet this
was what vetting could become if the Vetting
Board encroached upon the jurisdiction of the
JSC.
8. The institutions under the Constitutional set up

were not established to pursue sibling rivalries
at the expense of the public good. They ought
to consult and where necessary coordinate
their operations so as to maximize the public
good in conformity with their constitutional
responsibilities.
9. The court took judicial notice of the fact that
upon commencement of the vetting process
by the Vetting Board, the JSC handed over to
it all the complaints within the Commissions
possession relating to the conduct of judicial
officers before the effective date which was
in conformity with the requirements of the
Judges and Magistrates Vetting Act.
10. There would be no reason for the JSC not to
hold its hands until the officer in question
had been vetted. Similarly, there would be no
reason as to why the Board should not report
an officer to the Commission for appropriate
disciplinary action. The vetting would date as
far back as from the date of the appointment
under the retired constitution up to and until
the effective date but not beyond.
11. The Vetting Board in execution of its mandate
as stipulated in Section 23 of the Sixth Schedule
to the Constitution could only investigate the
conduct of Judges and Magistrates who were
in office on the effective date on the basis of
alleged acts and omissions arising before the
effective date and not after. To hold otherwise
would not only defeat the transitional nature
of the vetting process but would transform the
Board into something akin to what Lord Mersey
in G & C Kreglinger v. New Patagonia Meat & Cold
Storage Co. Ltd (1913) once called an unruly
dog which, if not securely chained to its own
kennel, is prone to wander into places where
it ought not to be. In the instant matter, this
analogy was used to refer to a jurisdictional
mandate within the constitutional set up and
not the vetting Board per se.
[dissenting] Per N. S Ndungu, SCJ
1. The intention of the vetting process was to bring
all judicial officers appointed under the repealed
constitution in line with the 2010 constitutional
framework. This process was conceptualized
to legitimize the concerned judicial officers
exercise of people-drawn judicial authority in
accordance with Article 159 of the Constitution.
Cases
22
Cases
2. The mandate of the Vetting Board was to

determine the suitability of Judges and
Magistrates to continue to serve in accordance
with the values under Article 10 and 159.
Therefore, the intention of the vetting process
was to the individual conduct of every serving
Judge or Magistrate appointed under the
repealed Constitution as well as the institutional
reformulation of the Judiciary. The process was
also intrinsically linked to the overall objectives of
Chapter Six of the Constitution, which included
suitability as one of the guiding principles of
leadership and integrity in accordance with
Article 73(2)(a) of the Constitution.
3. The determination of suitability involved an
extensive interrogation of ones essential
quality of nature, conduct and disposition when
adjudged against the parameters of Article
10 and 159 and ought to take into account
a multiplicity of factors including past and
present dealings and inclinations. Such values
such as patriotism, human dignity, integrity,
transparency and accountability were matters
intrinsically tied to a persons attributes, conduct
and character in both public and private spheres
of life. A persons ethical and moral values were a
product of nurture, observable in the day-to-day
relationships and dealings with others.
4. To find that a judicial officer did not exhibit
integrity, was unpatriotic or had disregarded the
human dignity of litigants was a conclusion that
could only be drawn after an assessment of a
series of previous personal traits, habits, ethos
and behavior in both private and public life. It
was an assessment done in total disregard of a
point in time when it happened. It was therefore
not plausible to argue that a Judge could not be
declared unsuitable to continue to serve because
evidence of gross misconduct leading to a
removal was in relation to things that happened
after the effective date.
5. A removal of a judge or magistrate from office
by the vetting Board pursuant to Section 23(1)
and (2) of the Sixth Schedule to the Constitution
upon a finding of unsuitability on account of
complaints emanating from conduct after the
effective date could not in any way be perceived
as the usurpation of the role of JSC under
Articles 168(2) and 172(1)(c) of the Constitution.
That was because the evidential material led
in proof of suitability, under Article 10 and 159,
or failure thereof should have been tendered
by any person or body in pursuance of a lawful

and constitutionally sanctioned process of
vetting of the serving judicial officers. As the
constitutional foundation and pillar for Kenyas
judicial vetting process, Section 23(1) has been
given effect by the Judges and Magistrates
Vetting Act, particularly Section 18(1) which had
not specified a time-limitation for occurrence
of complaints to be considered in determining
suitability of a judge or magistrate.
6. As a basis of institutional transition, the Vetting
Board was not barred either by the Constitution
or legislation from examining complaints on the
basis of conduct after the effective date. The
consideration of post-effective date allegations
by the Vetting Board did not usurp the
investigative and disciplinary powers of the JSC.
The restricted timeframe of the Vetting Board
pointed to the temporary nature of its existence
and the JSCs constitutional duty for the
continuous facilitation of judicial independence
and accountability.
7. The mandate of the Vetting Board was
transitional, both in individual and institutional
scope. Once the vetting process was complete,
and the mechanisms constitutionally and
statutorily given to the Vetting Board were
exhausted, then the Vetting Board was precluded
from recalling a vetted Judicial Officer on the
basis of evidence emerging whether of a pre or
post constitutional duration. Such command
constitutionally belonged to the JSC.
8. The essence of the vetting process was to bring
major reforms into the institution of the Judiciary
through the evaluation of suitability of individual
Judges and Magistrates. Considerations of
suitability ought not to be confined to specific
periods of time, unless expressly provided by the
Constitution or statute. The critical aspect of
vetting in the Kenyan context was judicial service
in accordance with the values and principles
under Articles 10 and 159 of the Constitution
which had a continuous lifespan which applied
prospectively from the effective date. As such,
the duty by every judicial officer to uphold the
Constitution at all material times warranted the
consideration of acts or omissions after the
effective date on the strength of the continuous
applicability of the Constitution. While the vetting
process was a transitional requirement bearing
on the holistic institutional transformation,
the mandate of the JSC was in its disciplinary
23
mandate isolated to individual Judicial Officers.

9. The prospective applicability of the Constitution
guided the role of the Vetting Board as well as that
of the JSC. During the life of the Vetting Board
nothing barred the JSC or the Vetting Board
from legitimately carrying on their mandates
concurrently. Section 23 of the Sixth Schedule
insulated the vetting procedure and the Vetting
Board from the limitations of Articles 160, 167
and 168 of the Constitution, in consequence
of the inquiries by the Vetting Board and the
probable collision with the mandate of the JSC.
It was to be noted however, that the insulation
was only applicable during the life of the Vetting
of Judges and Magistrates(VJM) Act.
10. Article 168 of the Constitution outlined the
procedure for the removal of a Judge from
office. The Article required that the process of
initiating the removal of a Judge be initiated
only through the JSC or upon the petition of any
person to the JSC. The import of having Section
23 of the Sixth Schedule and Article 168 of the
Constitution could only mean that there were
various measures put in place to govern the
constitutional transition and continuity of the
Judiciary. That can be drawn from the ratione
temporis of the Vetting Board and the language
of Section 23 of the Sixth schedule sanctioning
the operation of the VJM Act despite Articles
160, 167 and 168. An interpretation of Section
23(1) can only be complete with that of Section
23(2). The operation of the VJM Act is imperative
in the sense that it overrides Articles 160, 167
and 168 and Section 23(1) of the sixth Schedule
to the Constitution. That cleared the path for
the Vetting Board to consider the suitability of
Judges and Magistrates to continue to serve
using the relevant considerations provided for
under Section 18 of the VJM Act, including those
arising after the effective date.
11. The removal of a Judge or the process leading
to such removal by virtue of its operation was
further insulated from consideration by any
Court by virtue of the Ouster clause in Section
23(2) of the Sixth Schedule to the Constitution.
Such removal was based on considerations of
suitability, which therefore and in line with the
VJM Act were constitutionally sanctioned and
guarded against any interference.
12. Based on the provisions of the Constitution,
the VJM Act and the Judicial Service Act, the
mechanisms of the JSC were neither pegged
upon those of the Vetting Board nor were those

of the Vetting Board pegged upon the JSC.
The system created by the Constitution in that
regard was one of institutional parallelism but
with different purposes and review mechanisms,
each on its own foundation and lifespan. That
arrangement was designed to yield optimal
results in institutional alignment and not
necessarily lead to an institutional paralysis.
The Constitution of Kenya was replete with
concurrent jurisdictions in important spheres of
national governance. An example was the Fourth
Schedule to the Constitution which outlined a
clear scheme of vertical devolution with various
national organs performing similar functions for
various differentiated or reinforcing purposes.
13. The enactment of Section 23 into the
transitional schedule of the Constitution was
a laborious exercise calling for the invocation
of a notwithstanding mechanism to find a
compromise and a balance of the competing but
reinforcing constitutional principles.
14. Unlike Section 33(1) of the Canadian Charter
that gave the legislatures an open window
in enactment of laws that override certain
provisions of the Charter and which has been
sparingly invoked, Section 23(1) of the Sixth
Schedule to the Constitution was very narrow
and squarely restricted to only three Articles
of the Constitution and a defined category of
persons (Judges and Magistrates serving before
the effective date). It only allowed the operations
of the VJM Act to override Article 160 of the
Constitution on Independence of the Judiciary,
Article 167 on Tenure of Office of the Chief Justice
and other Judges and Article 168 on Removal
from Office. The narrow and pointed approach
bore comparative jurisprudential approval from
the decision of the Supreme Court of Canada in
Ford vs. Quebec [1988] 2 S.C.R. 712 at page 33,
where the Supreme Court confirmed that Section
33 of the Canadian Charter did not impose any
obligation on a legislative body to substantively
justify or explain its use of the notwithstanding
clause as long as the requirement of an express
declaration was met.
15. The operation of the VJM Act despite the
outlined provisions of the Constitution
effectively mooted any argument that
the Vetting Board risked encroaching
into a jurisdiction reserved for the JSC.
16. The finding of the majority in the purposive
Cases
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24
interpretation of the Constitution challenged the

procedure of vetting as outlined under Section
19(1) and (2) of the VJM Act. The challenge bore
several far-reaching consequences:
(a)
The reversal of the Supreme Courts

decision in Judges and Magistrates Vetting
Board & Others v. The Centre For Human
RightsAnd Democracy, Petition No 13A of
2013 consolidated with Petition No 14 of
2013 and Petition 15 of 2013 (JMVB (I));
(b)
The introduction of the potential

question or review of the Vetting Boards
processes by other Courts including the
Supreme Court contrary to the provisions
of Section 23(2) of the Sixth schedule
and Section 22(4) of the VJM Act, and
finally;
(c)
The inferred unconstitutionality of

Section 18 and 19 (1) and (2) of the
VJM Act, despite the fact that the
constitutionality of the VJM Act was in
fact affirmed by the High Court in the
case of Dennis Mogambi Mongare v. The
Attorney-General and Two Others, Nairobi
High Court Petition No. 146 of 2011
(Ngugi, Majanja and Odunga, JJ), and reaffirmed by the Court of Appeal and
subsequently by this Court in JMVB (I)
These consequences stem from a

literal and narrow interpretation of the
Constitution and the law.
17. The transitional aspect of the Vetting Board was
conceived to denote the period within which it
would conclude its mandate as opposed to
a timeframe for limitation of the admissible
conduct for its consideration.
18. Section 18 of the VJM Act outlined the relevant
considerations in determining the suitability
of a Judge or Magistrate to continue in
service after the effective date. Some of these
considerations included past work record of
the Judge or Magistrate including prior judicial
pronouncements, competence and diligence,
any recommendations for prosecution of the
Judge or Magistrate by the Attorney General or
the Kenya Anti-Corruption Commission, pending
complaints or other relevant information received
from any person or body including post-effective
date institutions such as the Commission on
Administrative Justice. The section also called
for a consideration of integrity proven by a
demonstrable consistent history of honesty

and high moral character in professional and
personal life. These provisions bear the intention
of a comprehensive consideration of suitability
not truncated between the pre and post-2010
periods as had been held by the majority.
19. Neither by its letter nor spirit or tenor did Section
23(1) of the Sixth Schedule to the Constitution
rationally support a conclusion that evaluation
of suitability of serving judicial officers on the
basis of complaints of conduct was subject to
a period in time of occurrence of such conduct.
To do so was to place undue fetters of time
and to unnecessarily ring-fence the mandate of
the Vetting Board in respect of conduct under
review, in a manner antithetical and unintended,
by the clear language, spirit and object of judicial
reforms as envisaged by the Constitution. As
such, the bar to the admissibility of acts or
omissions after the effective date by the Vetting
Board was a constitutional misinterpretation
and the disruption of a sanctioned constitutional
process.
20. Most Judges had been vetted and exhausted the
review mechanisms of the Vetting Board. There
were many other judicial officers whose suitability
through vetting had yet to be determined.
Therefore, the finality and predictability of the
Supreme Courts decision in JMVB (I) and the
purpose of vetting as the peoples command,
stood at a compromise.
Orders:
Petition disallowed. Court of Appeal judgment upheld.
Costs were to be borne by the defendant.
25
Supreme Courts determination on the application seeking advisory opinion on whether

an issue on the mandate of National Land Commission touches on county governments
In Re the Matter of the National Lands Commission under Article 163(6) of the Constitution of Kenya in
the Supreme Court of Kenya at Nairobi
Reference No. 2 Of 2014
W M Mutunga, CJ & P, K H Rawal, DCJ & V-P, M K Ibrahim, J B Ojwang, S C Wanjala, S N Njoki, SCJJ
October 30, 2014
Reported by Teddy Musiga and Getrude Serem
Brief facts
The National Land Commission sought an advisory
opinion from the Supreme Court on its functions
and powers as provided for by the Constitution of
Kenya, 2010, on the one hand, and the functions
and powers of the Ministry of Lands, Housing and
Urban Development, on the other hand. The AttorneyGeneral, and the Ministry of Lands, Housing and Urban
Development (1st and 2nd interested parties) filed a
Preliminary Objection contesting the jurisdiction of the
Court to hear and determine the request for Advisory
Opinion on many grounds inter alia; that the Supreme
Courts jurisdiction on rendering advisory opinions
was restricted and confined to matters concerning
County Governments and that the Supreme Court had
in its previous decisions outlined what constituted
matters concerning county government. Further,
that questions concerning the powers and functions
of the National Land Commission vis a vis those of the
Ministry of Lands, Housing and Urban Development
were not contemplated under the Supreme Courts
jurisdiction to render advisory jurisdictions.
Issues
I.
Whether the Supreme Court had the

jurisdiction to render an advisory opinion
under article 163(6) of the Constitution on the
powers and functions of the National Land
Commission vis a vis those of the Ministry of
Lands, Housing & Urban Development
II.
Whether the dispute concerning the

powers and functions of the National Land
Commission vis a vis those of the Ministry
of Lands, Housing & Urban Development
were those that raised a justiciable issue and
whether the High Court would have been the
best forum to resolve that dispute.
III.
What was the scope of a matter concerning

county governments hence qualifying to be
the subject of an advisory opinion?
IV.
What was the scope of applications for
certificate of urgency and whether a ruling on

the certificate of urgency could be construed
as conclusive determination of the matter?
V.
Whether a preliminary objection backed by

annextures was improperly raised hence
violating the rules on raising preliminary
objections.
Jurisdiction jurisdiction of the Supreme Court

advisory jurisdiction of the Supreme Court scope
of advisory opinion of the Supreme Court What was
the scope of a matter concerning county governments
hence qualifying to be the subject of an advisory opinion?
Whether the Supreme Court had the jurisdiction to
render an advisory opinion under article 163(6) of the
Constitution on the powers and functions of the National
Land Commission vis a vis those of the Ministry of Lands,
Housing & Urban Development - Constitution of Kenya
,2010 article 163 (6)
Held:
(1) The National Land Commission was a state
organ established under Article 67(1) of the
Constitution, and recognized under Article
248(2) (b), had the capacity to request the
Supreme Court for an advisory opinion.
(2) The guidelines for the exercise of the Supreme
Courts Advisory opinion jurisdiction were as
follows;
a) It had to fall within the four corners
of article 163(6) of the Constitution;
it had to be a matter concerning
County Government. The question
as to whether a matter was one that
concerned county government was
to be determined by the court on a
case to case basis.
b) The only parties that could make a
request for advisory opinion were the
national government, a state organ
or county government. Any other
person or institution could only be
enjoined in the proceedings with leave
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26
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of the court, either as an intervener
(interested party) or as amicus curiae.
c) The court could be hesitant to render
an advisory opinion where the matter
in respect of which the advisory
opinion was sought, was a subject
of proceedings of the lower court.
However, where the court proceedings
in question had been instituted after
a request had been made to the
Supreme Court for an advisory opinion,
the court if satisfied that it was in the
public interest to do so, would proceed
to render an advisory opinion.
d) Where a reference had been made to
the court, the subject matter of which
was also pending in the lower court,
the court could none the less render an
advisory opinion if the applicant could
demonstrate that the issue was of
great public importance that required
urgent resolution through an advisory
opinion. In addition, the applicant
could be required to demonstrate that
the matter in question would not be
amenable to expeditious resolution
through adversarial court process.
(Re IIEC)
(3) Under the National Land Commission Act,
2012 (Act No. 5 of 2012), Section 5(2)
(b) all land vested in the people and was
to be administered by the National Land
Commission. Therefore, the applicant as the
State organ entrusted with the function of
managing public land on behalf of both the
national and county governments, its mandate
cut across both spectra of the national and
county government.
(4) The instant Reference involved matters
concerning county government; in particular,
as the relevant issues involved the
administration and management of public
land, at both the national and the county level,
precisely as contemplated under Articles 62(2)
and 67(2) of the Constitution. From the terms
of the Constitution, the applicant (National
Land Commission) was a shared institution
at the two levels of government, and did not
fall within the exclusive sphere of the national
government.
(5) Notwithstanding that a number of issues in
the instant reference were proper justiciable
causes for adjudication in the High Court,
issues relating to institutional mandates

assigned by the Constitution especially as it
were in the instant matter involving contests
between two state organs, properly fell to the
advisory opinion jurisdiction of the Supreme
Court. The Supreme Court proceeded on a
case by case basis in determining whether to
exercise its advisory opinion jurisdiction.
(6) The instant reference concerned land
administration and management which was
a matter of general public interest in Kenya.
The Supreme Court however, could not deal
with all the 27 issues raised in the Reference
in the exercise of their advisory jurisdiction
power. The Court had the power to exercise
discretion as to whether to render an advisory
opinion on any or all of the issues proposed
because some of the issues raised could be
dealt with before the High Court, in a normal
process of litigation.
(7) some of the issues raised in the instant
matter, even though they met the admissibility
requirements for the Supreme Courts advisory
opinion (for instance, the administration and
management of public land, or the registration
of public land held in trust) certainly lent
themselves in the first place to a genuine
commitment on the part of the relevant
organs to good-faith engagement aimed at
co-operation and mutual accommodation.
(8) In rendering the instant decision, the Supreme
Court was guided by the elaborate principles
and values proclaimed in the Constitution,
which though affirming independence on the
part of separate governance entities, required
common purpose in public service. In that
context, the Judiciary as an organ of dispute
resolution was to be guided (Article 159(2)(c))
by the principle of promoting alternative forms
of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute
resolution. Therefore, the instant matter met
the admissibility requirement as set out in
article 163(6) of the Constitution.
Concuring opinion of Ibrahim SCJ
(9) A certification upon an application of urgency
was only meant to determine whether the
27
matter could be determined urgently. Urgency

did not as a matter of fact even go to the
approval of the matter being one of general
public importance or one that involved the
interpretation and/or application of the
Constitution. It did not go to the jurisdiction
of the court and there was no determination
of any issue. The directions given by the court
were pre-hearing preparatory guidelines and
such directions could not be construed as
being orders of the court determining an issue
framed in the suit before the Court.
(10)
The preliminary objection was
properly raised and the law in Mukisa Biscuit
Manufacturing Co. Ltd v East and Distributors Ltd
[1969] case was not violated. The annextures
did not in any way cloud the trajectory the
preliminary objection took. It remained clear
that the preliminary objection was anchored
on the dictum in the Re IIEC matter: that a
reference for an advisory opinion had to fall
within the four corners of Article 163(6) of the
Constitution. The annexures were meant to
demonstrate to the Court that indeed in the
1st and 2nd interested parties assessment,
the requirements of Article 163(6) were not
meant. The annextures were not meant to
bring to Court any contested facts. As a matter
of fact, the applicant had not even alluded to
the fact that the information contained in the
annextures was contested.
(11) The Supreme Court had the discretion to admit
the instant matter and to render an advisory
opinion. The matter met the minimum
threshold. The National Land Commission
had the constitutional capacity to seek an
advisory opinion and the subject matter
indeed concerned county governments as
provided by article 62 of the Constitution of
Kenya, 2010 on public land.
Dissenting Opinion Of Njoki, Scj
1. The questions posed to the Court had no
direct correlation with county government.
Rather, they merely had a remote nexus with
county government by virtue of the fact that
the operations of the Commission and the
Ministry of Lands ultimately impacted on both
public and private land physically located
within the boundaries of each county.
2. Whereas, the majority bench treated the

instant matter as concerning the operations
of two constitutional institutions that were
clearly within the national government, but
considered their functions as impacting on
the county government hence qualifying the
subject of the reference before the court for
Advisory Opinion, that view was not correct
because all operations at the national level
ultimately had an impact upon the county
government, no matter how remotely.
3. To uphold that all matters affecting the
national government touched on the county
governments would mean that any matter
relating to the operations of the national
government automatically qualified as
subject for Advisory Opinion. That created
an absurdity and clearly went against the
spirit and the letter of Article 163(6) of the
Constitution.
4. In setting the bounds of the subject of Advisory
Opinions the drafters of the Constitution,
were conscious that all functions of the
national government eventually impacted on
the county government, yet they restricted
the subject to matters concerning county
government. That signaled that not all
matters that impacted on county government,
irrespective of how tenuously, could qualify as
subject for advisory opinion.
5. For a matter to qualify as once concerning
county government hence qualifying to be the
subject of advisory opinion, its subject matter
had to be significant; that was to say that it
had to be one that had some effect, impact,
consequence on, or one that affected the
role, the structure, management or running of
county government.
6. By applying the test above to the instant matter,
none of the questions posed to the court met
the precondition of Article 163(6) requiring the
matter to relate to county government. The
court had to look into the substance of the
questions referred to it and determine whether
the gist of those questions indeed concerned
county government. In the instant matter, the
applicant had cited articles 62(2) and 67(2)(a)
of the Constitution which provided that public
land vested in the county government, and
it was to be managed by the National Land
Commission on behalf of the national and
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28
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county governments respectively.
7. Notwithstanding the fact that public land
vested in county government and the
National Land Commission was charged
with the mandate to administer and manage
that public land by the Constitution did not
by itself elevate the subject of the Reference
before the Court to one that qualified for
advisory opinion. None of the questions for
consideration by the instant court related to a
challenge to, or change of, title of public land
held by the County. No party was suggesting
that land should vest in an authority other
than county government. The role of the
county government as to the ownership,
management and administration of public
or private land, therefore, was not a question
raised in the request for an advisory opinion.
The subject matter of the reference therefore
was not significant to the county government
and did not in any way have any effect, impact,
consequence on, or affected the role, the
structure, management or running of county
government.
8. The Reference before the Court sought the
delineation of the roles of two constitutional
institutions in the National Government, since
the relevant issues involved the operations
of the two bodies in the administration and
management of land at both the national and
county level. That in no way concerned county
government except that public land vested
in the county government a remote link to
the questions posed to the instant Court. It
was instructive that some of the questions
touched on the operations of the Lands
Ministry that inevitably affected management
of private land which was not vested in
county Government and therefore outside
of the scope of the Courts Advisory-Opinion
jurisdiction. The instant matter therefore, was
one in which the court had no jurisdiction
under the advisory opinion provisions of the
Constitution.
9. Although the majority position was that the
Supreme Court had jurisdiction in the instant
matter; the Supreme Court could decline to
exercise that jurisdiction. Article 163(6) of
the Constitution provided that the Supreme
Court may give an advisory opinion The use
of the word may implied that that jurisdiction
was discretionary.
10. The instant Reference was not meritorious

particularly because its motivation was the
resolution of the existing conflict between
the Commission and the Ministry of Lands
concerning their respective functions. It was
not in doubt that the Reference sought to
resolve a matter amenable to the ordinary
process of litigation to one genuinely seeking
an opinion-statement of the Court. The
same bore justiciable elements that could be
properly determined by the High Court as a
forum of first instance with the possibility of
appeal all the way to the Supreme Court.
11. Before a party invoked the Advisory-Opinion
jurisdiction of the Court he/she ought to
have sought recourse through other available
avenues. It was vital for the Court to allow other
institutions created under the Constitution
to exercise their constitutional mandate to
resolve issues related to interpretation and
application of the Constitution and statutes.
Such was the approach of cooperation and
consultation required by Article 6 of the
Constitution.
12. Interpretation and application of the
Constitution was, patently, not a preserve of
the Courts. Other constitutional institutions
and offices were mandated to interpret and
apply the Constitution albeit, in processes
that differed from those engaged by the
Courts. For instance Parliament, the Attorney
General and Commissions mandated with the
implementation of the Constitution played
an invaluable role in the interpretation of
the Constitution and resolution of disputes
that could arise during the implementation
process. The Commissions and Independent
Offices, in the context of Chapter Fifteen of
the Constitution had a direct mandate to
promote constitutionalism and to secure the
observance of the democratic values and
principles.
13. The current Reference was one in which the
Court had to exercise restraint and decline to
render an Advisory Opinion but rather allow
the constitutional institutions to gradually
work out their own internal operational
mechanisms and exhaust the alternative
avenues available to them for interpretation of
the Constitution as well as dispute resolution
before approaching the Supreme Court.
To render an Advisory Opinion would be
29

tantamount to endorsement of the actions

of the applicant of seeking resolution of
justiciable disputes through the channel of
Advisory Opinion.
14. The intervention of the Supreme Court at
such an early stage in the life of the infantile
Constitutional institutions would have
interfered with the developmental milestones
of the institutions which was likely to result in
hitches within those institutions hence likely
to result in setbacks in the internal workings
of these institutions and their relations with
each other. Therefore even if the majority
decision was that the court had jurisdiction to
give an advisory opinion in the instant matter,
it was premature for the Supreme Court to
grant an Advisory Opinion on the basis of the

Reference presented before it.
The preliminary objection dated 15th July, 2014 was
disallowed.
Prior to the conduct of a hearing, the Court allowed a 90day interlude during which the parties could undertake
a constructive engagement towards reconciliation and a
harmonious division of responsibility.
The instant Reference was to be set down for hearing
through the office of the Registrar, and a hearing date
would be given on the basis of priority.
There were no order as to costs.
Supreme Court sets aside Court of Appeal decision that suspended switch-off date for
analogue - digital migration broadcasting
Communications Commission of Kenya & 5 others v Royal Media Services & 5 others
Petition No.14 of 2014
(Consolidated with Petitions Nos. 14A, 14B & 14C of 2014)
Supreme Court of Kenya at Nairobi
W M Mutunga; CJ, K H Rawal; VP & DCJ, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu,
SCJJ
September 29, 2014
Reported by Teddy Musiga & Getrude Serem
Brief facts:
The instant petition had its origins at the High court.
At the High Court, the petitioners (now respondents)
sought orders to compel the respondents (now
appellants) to issue them with Broadcasting Signal
Distribution (BSD) licenses & frequencies & an order
restraining those respondents from switching off
their analogue frequencies, broadcasting spectrums
and broadcasting services pending the issuance of a
BSD license. However, the trial judge dismissed the
petition holding that the petitioners were not entitled
to be issued with a BSD license merely on the basis of
their established status or legitimate expectation on
their part and further that the implementation of the
digital migration was not a violation of the petitioners
fundamental rights and also that their intellectual
property rights had not been infringed.
Aggrieved by that decision, they appealed to the Court
of Appeal who set aside the decision of the High court
by holding inter alia, that;
1. The Communications Commission of Kenya
was not the independent body contemplated

by article 34(3) (b) & (5) of the Constitution and
therefore could not grant the BSD licenses.
2. The direction for the then respondents to air
the appellants (now respondents) Free to Air
(FTA) programmes without their consent was a
violation of the appellants intellectual property
rights and was thus declared null and void.
Subsequent to the determination by the Court of
Appeal, four petitions were filed at the Supreme Court
by the appellants (Petitions Nos. 14, 4A, 14B & 14C
of 2014) and were all consolidated into the instant
petition
Issues
(a) Whether Communications Commission of Kenya
(CCK) as at the time (then) constituted was the
regulatory body (regulating broad casting and
other electronic media) envisaged under article
34(5) of the Constitution of Kenya, 2010.
(b) Whether CCK violated the intellectual property
rights of the content producers (respondents)
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30
Cases
by authorising the 4th & 5th appellants to transmit
the respondents broadcasts without the
respondents consent.
(c) What is the scope of the must-carry rule? And

whether the mustcarry rule infringed upon the
intellectual property rights of a content producer.
(d) Whether a case involving the violation of
intellectual property rights could be addressed
by a petition to enforce fundamental rights and
freedoms.
(e) Whether legitimate expectation for the grant of
Broadcasting Signal Distribution (BSD) license
can arise on account of substantial/ massive
investments in the broadcasting sector
(f) Whether or not there exist circumstances
in which an award of Broadcasting Signal
Distribution (BSD) license could be issued
without a tendering process under the Public
Procurement & Disposal Act
Media Law freedom of the media regulation of the
media licensing Broadcasting Signal Distribution
(BSD) licensing role of the Communications
Commission of Kenya (CCK) in BSD licensing - claim
challenging the independence & constitutionality of CCK
as regulatory body Constitution of Kenya, 2010, article
34(3) & (5) Kenya Information & Communications Act,
section 25(3)(e)
Intellectual Property Law - copyright limitations to
copyright fair dealing must-carry rule scope
of must-carry rule whether the must-carry rule
infringes on the intellectual property of a content
producer Copyright Act, section 26(1), section 29(a);
Kenya Information & Communications Act, section 25(3)
(e)Kenya Information & Communications (Broadcasting)
Regulations, Regulations 14(2)(b) and 16(2)(a)
Held
i. Article 34(3) of the Constitution of Kenya, 2010
guaranteed the freedom of establishment of
broadcasting & other electronic media but
subject to licensing procedures that were
necessary to regulate the airwaves and other
forms of signal distribution. Article 34(5)
commanded Parliament to enact legislation
for the establishment of a body that had to
be independent of governmental, political and
commercial control. However, such a body
could not disengage from other players in public
governance.
ii. The shield of independence could be attained

in a number of ways. The main safeguard was
the constitution and the law. Other safeguards in
place to attain independence could range from
the manner in which members of the said body
were appointed, to the operational procedures
of the body and even the composition of the
body. However, none of those other safeguards
could singly guarantee independence. It took
a combination of those and the fortitude of the
people who occupied office in the said body to
attain independence.
iii. Under section 6 of the Media Council Act, one
of the listed functions of the council was the
setting of journalistic standards, ethical and
professional standards, and the regulation and
monitoring of compliance with those standards.
Section 7 thereof on the composition required
that the nominees had to reflect the interests
of all sections of the society. Section 11 thereof
provided that the Council had to be independent
of control by Government, political or commercial
interests.
iv. Section 5 of the Kenya Information
&
Communication
Act
described
the
Communications Commission of Kenya (CCK)
as a licensing and regulatory body but made
no mention of a standard setting function.
Therefore, from the two statutes above, the body
contemplated by article 34(5) of the Constitution
was the Media Council of Kenya and not the
successor to CCK.
v. That notwithstanding, articles 34(3) & (5) of
the Constitution could not be the basis for
declaring CCK unconstitutional as there could
be no vacuum occasioned by the failure or delay
on the part of the legislature. That was why all
existing laws were given the leeway to continue
operating, on condition that they were construed
with necessary alterations, adaptations,
qualifications and exceptions to bring them into
conformity with the Constitution.
vi. At the time the Constitution came into force,
CCK was the body mandated to license
broadcasting and other electronic media. CCK
had a lawful existence & its functions were not
unconstitutional. Unless it was demonstrated
that the legislation establishing CCK was
incapable of being construed with the necessary
alterations and exceptions, so as to bring it into
conformity with the constitution, pending the
three year legislative intervention, then it would
have been improper in law and in principle to
declare CCK unconstitutional.
31
vii. From the various agreements and letters between

the parties, the 1st, 2nd and 3rd respondents had
given the 4th & 5th appellants (Signet ltd & PANG
ltd) consent to transmit their content.
viii. Under the must-carry rule, transmission
frequencies for radio or television broadcasting
and telecommunication were considered
national resources for the public interest. That
rule required cable television companies to
carry locally-licensed television stations on
their cable system. That obligation could only
be imposed if the respective networks were the
principal means of receiving radio and television
channels for a significant number of end users
of those networks. The rationale for the rule was
to preserve the free circulation of information
through access to the most important television
channels such as national public television
channels as well as the principal private
television channels such as those owned by the
1st, 2nd & 3rd respondents.
ix. The appellants were not re-broadcasting the
content of the 1st, 2nd & 3rd respondents because
they were not broadcasting organizations,
since they did not take financial and editorial
responsibility for the selection and arrangement
of, and investment in the transmitted content.
That was to say, the appellants did not interfere
with the broadcast-content of the 1st, 2nd and
3rd respondents. The content was delivered
digitally without any interference from the signal
distributors. As they were not rebroadcasting
the content, therefore the appellants did not
infringe on the intellectual property rights of the
respondents.
x. The exceptions on the law of copyright were
conventionally referred to as fair dealing. Fair
dealing was thus a defence against copyright
infringement. What amounted to fair dealing
depended on the facts of each case. Therefore
the must-carry rule which required the
appellants to carry the signals of the 1st, 2nd &
3rd respondents was by no means inconsistent
with the requirement of fairness. Indeed it was
clear that the appellants dealings with the 1st, 2nd
and 3rd respondents did satisfy the fair dealing
defence, and therefore did not infringe upon the
copyrights of the 1st, 2nd and 3rd respondents.
xi. CCK did not infringe upon the 1st, 2nd & 3rd
respondents intellectual property rights, in
effecting the must-carry rule. That rule was
essentially consistent with the terms of article
7 of the constitution which required the state to
protect & promote diversity language in Kenya;
article 10 which listed sustainable development
as one of the national values & principles

that bound persons & entities interpreting the
constitution as well as article 11 which required
to promote all forms of national and cultural
expression through communication, information
and mass media; and also article 35 which gave
citizens access to information; and article 46
which protected the rights of consumers.
xii. The principle of constitutional avoidance entailed
that a court could not determine a constitutional
issue when such a matter could properly be
decided on another basis. The 1st, 2nd & 3rd
respondents claim in the High court, regarding
infringement of intellectual property rights was
a plain copyright infringement claim, and it
was not properly laid before that court as a
constitutional issue. That was therefore not a
proper question falling to the jurisdiction of the
appellate court.
xiii. CCK had exclusive powers under section 5(1)
of the Kenya Information & Communications
Act to issue broadcast licenses. Section 5B
thereof guaranteed the independence of CCK
in the performance of its functions. However
the promises made to the respondents on
account of their substantial investment in
broadcast infrastructure, and upon which
they claimed legitimate expectation for the
grant of BSD licenses emanated from the
Permanent Secretary, Ministry of Information,
Communications & Technology. Under the
Kenya Information & Communications Act, the
Permanent Secretary had no role in the granting
or cancellation of a BSD license or any other
broadcast licenses. It was therefore unlawful for
the Permanent Secretary to make such promises
to the 1st and 2nd respondents.
xiv. Although the Public Procurement Administrative
Review Tribunal was not a court of law, the
administrative proceedings (the appeal by
National Signal Networks) that took place before
it were judicial in nature. Section 112 of the
Public Procurement and Disposal Act provided
that a party could seek a review of the Tribunals
decision at the High court within 14 days of the
decision being rendered. In the instant case, the
National Signals Network chose not to exercise
their right to appeal against the tribunals
decision at the High court. It was therefore fair
to hold that the 1st & 2nd respondents were bound
by the decision of the Tribunal regarding the BSD
license. That finality gave rise to estoppel.
xv. Although CCK deployed the procurement
procedure in the Public Procurement & Disposal
Cases
32
Cases
Act, in granting a BSD license to the 5th
appellant (Pan African Network Group Kenya,
Limited) and denying the same to the 1st, 2nd &
3rd respondents, that decision was not informed
by the imperatives of the values of the Kenyan
Constitution as decreed in article 10. Given the
fact that the subject matter of the license was a
critical public resource and whose capitalization
the Kenyan public had an interest in, CCK was
bound to conduct its affairs more responsibly
& transparently. Instead CCK chose to be
hamstrung by the technicalities of procedure as
if it were an ordinary procurement of goods and
services. It was operating as if the constitution
did not exist.
The concurring judgment of H K Rawal, DCJ & Vice

President
xvi. Article 34 of the constitution of Kenya, 2010
was a whole package of rights, obligations
and protection against undue intervention by
the government in respect of the freedom of
the media. It guaranteed institutional freedom
against other individual freedoms enshrined in
the constitution.
xvii. Content provision and signal distribution were
designed to be separate market segments. The
separation of broadcasting and signal distribution
by law and policy could be understood in the
history of the media development in Kenya.
During the analogue system, broadcasting
and signal distribution were diagrammed
into a single entity thus only allowing those of
substantial means to share and disseminate
ideas. Therefore, that separation was envisaged
to allow other broadcasting entities capable of
content development to distribute it through the
medium of a common indiscriminate entity (the
Broadcast Signal Distributors)
xviii. The migration from the analogue to digital
terrestrial television introduced the signal
distributor whose only mandate was to provide a
channel for the transmission of the broadcasters
content to the public. The distributor did not
develop but only distributed the content. As such
the signal distributor required a broadcasting
signal distribution (BSD) license to carry the
content.
xix. The issuance of the license under article 34(3)

of the Constitution of Kenya, 2010 was an
administrative action that had to adhere to the
prerequisites of articles 47 of the Constitution
on the principles of administrative propriety.
However issuance of the license was itself not a
right under article 34 but a process to actualize
that right and whose conduct was sanctioned by
article 47 to the benefit of all who were subject
to the process including the 1st, 2nd and 3rd
respondents.
xx. The intention of the Constitution through
article 47 was to strengthen the procedural
fairness expected when dealing with public
administrative processes. Those processes had
to be conducted in the sanctity of imperative
principles such as expedition, efficiency, rule of
law, reason and procedural fairness.
xxi. The 1st, 2nd and 3rd respondents mistakenly
asserted a guaranteed entitlement to a BSD
license ignoring the required procedural
processes to vindicate their grievances as
provided by the constitution and the Act.
The orders of the court of appeal made on March 28,
2014 were set aside.
The declaration by the Court of Appeal annulling the
issuance of a BSD license by the 1st appellant (CCK) to
the 5th appellant (Pan African Network Group Ltd) was
set aside.
The order by the court of appeal directing the independent
regulator to issue a BSD license to the 1st, 2nd & 3rd
respondents was set aside.
The 1st appellant was within 90 days, to consider the
merits of applications for BSD licenses to the respondents
The 1st appellant (CCK) was to ensure the BSD license
awarded to the 5th appellant (Pan African Network Group
Ltd) was duly aligned to constitutional and statutory
imperatives
The 1st appellant (CCK) in consultation with all parties
was to set the time lines for digital migration for the
digital migration pending the international deadline of
June 17, 2015
33

The Court of Appeal Cases

The Legal provisions governing the Court of Appeals jurisdiction to review a Court of
Appeal decisions
Nguruman Limited v Shompole Group Ranch & another
Civil Application No. 90 of 2013 (UR 60/2013)
Court of Appeal at Nairobi
R N Nambuye, Mwilu, D K Musinga, P O Kiage & J Mohammed, JJ A
October 3, 2014
Reported by Beryl A Ikamari & Karen Mwende
Brief facts
The High Court (Angawa, J) delivered a judgement on
December 2, 2009, with respect to two suits that were
consolidated. In the judgment an order of eviction
was issued directing the Defendants to vacate the
suit premises and compensation of Kshs. 5, 000,
000/= as nominal damages for trespass was granted
to the Plaintiff.
There was no Notice of Appeal filed against the
decision. However, on August 11, 2010, an application
for stay of execution and review of the High Court
decision was made. The application was dismissed
and struck out in a High Court (G B M Kariuki, J) ruling
of January 9, 2012. Against that High Court ruling of
January 9, 2012, a Notice of Appeal was filed. The
Notice of Appeal was followed by an application for a
stay of execution of the decree delivered by Angawa,
J on December 2, 2009.
The application was opposed via a Preliminary
Objection and it was heard and determined by a three
judge bench (Koome, Gatembu Kairu and Odek, JJ A).
The Court of Appeal noted the existence of a Notice
of Appeal against the High Court decision on review
and stay of execution (G B M Kariuki, J) and also that
the decision could have impacted upon the orders for
eviction and nominal damages issued by Angawa, J.
The Court of Appeal ruled that the Applicants should
have an opportunity to be heard on the appeal against
the decision of G B M Kariuki, J. The opportunity
would be provided on the basis of the overarching
objective to do substantive justice. The decision of
Koome, Gatembu Kairu and Odek, JJ A, was delivered
on April 19, 2013.
Against the decision of Koome, Gatembu Kairu and
Odek, JJ A, an application for review at the Court of
Appeal was made. A five judge bench was constituted
for purposes of the application for review.
Issues:
I.
Whether the Court of Appeal had jurisdiction

to review a Court of Appeal decision.
II.
Whether the Court of Appeal could grant stay of

execution orders against a decree concerning
which there was no Notice of Appeal, on the
basis of a Notice of Appeal issued against a
later decision in the same suit.
Jurisdiction - jurisdiction of the Court of Appeal

-jurisdiction of the Court of Appeal to revisit its own
concluded matter-Constitution of Kenya 2010, articles
48, 20(3)(a)(b), 159(2)(d) & 164(3) & Appellate Jurisdiction
Act (Cap 9), sections 3, 3A & 57(2).
Jurisdiction - jurisdiction of the Court of Appeal
-jurisdiction of the Court of Appeal to grant orders of stay
of execution-whether a stay of execution could be issued
against a decree concerning which there was no Notice
of Appeal but on the basis of a Notice of Appeal issued
against a later decision in the same suit- Constitution of
Kenya 2010, articles 159 & 164(3); Appellate Jurisdiction
Act (Cap 9), section 3 (1) & Court of Appeal Rules, rule
5(2)(b).
Held
1. The jurisdiction of the Court of Appeal was donated
under section 3 & 3A of the Appellate Jurisdiction
Act (Cap 9) and article 164(3) of the Constitution
of Kenya 2010. In exercising that jurisdiction,
the Court of Appeal was required to observe
the prescription in article 259(1) & 259(3) of the
Constitution of Kenya 2010. The prescription
was to the effect that the Constitution would
be interpreted in a manner that promoted its
purpose, values and principles, advances the rule
of law, human rights and fundamental freedoms
contained in the Bill of Rights and permitted the
development of the law and in accordance with
the doctrine of interpretation to the effect that the
law was always speaking.
2. Article 48 of the Constitution of Kenya 2010 gave
open ended access to justice including access to
ask the Court of Appeal to re-open, re-hear and
re-determine a finally concluded matter. Further,
Cases
34
Cases
article 20(3)(a)(b) enjoined the Court to interpret
the law in such a way as not to withhold a right
including a right to access to justice. The Court
was also required to administer justice without
undue regard to technicalities in article 159(2)(d)
of the Constitution.
3. The Court of Appeal could not hide under the

umbrella of previous decisions which were
anchored on the Appellate Jurisdiction Act (Cap 9)
and the repealed Constitution, wherein there was
no benefit of the overriding objective principle.
4. The overriding objective principle as applied to the
circumstances of the case and the jurisdiction of
the Court of Appeal to review a Court of Appeal
decision would not cause the Court to be flooded
with past litigation as there were sufficient legal
safeguards in effect.
5. The Court of Appeal had jurisdiction to review a
Court of Appeal decision.
6. The Court of Appeal ruling for which review was
being sought, was not decided on the basis of
a misapprehension of the requirements of rule
5(2)(b) of the Court of Appeal Rules but was
decided on the basis of an interpretation that the
relief sought could be granted on grounds of the
overarching principle of substantive justice. The
Court of Appeal, in that ruling had noted that
there was no legal provision allowing for a notice
of appeal lodged in a later decision to be used in
an application for a stay of execution of an earlier
decision.
7. The Court of Appeal had granted orders to
forestall the execution of the negative orders of G
B M Kariuki, J and had effectively confused a stay
of the orders of G B M Kariuki, J and a stay of the
orders of Angawa, J. Effectively, it had stayed the
orders of Angawa, J without being possessed of
the jurisdiction to do so.
8. There were rules of procedure requiring that
before such stay orders were issued, there would
have to be an appeal or an intended appeal, which
was expressed in the form of a Notice of Appeal.
Such a Notice of Appeal would provide jurisdiction
to the Court of Appeal to handle the matter. There
was no Notice of Appeal in effect with respect
to the orders of Angawa, J and therefore those
orders could not be stayed.
9. Questions of jurisdiction were not technicalities
and it was the Notice of Appeal that would
donate jurisdiction to the Court of Appeal. The
overarching principle of substantive justice, as

provided for in article 159 of the Constitution of
Kenya 2010, would not allow the Court of Appeal
to ignore clear rules of procedure.
Per D K Musinga, J A
10. The Court of Appeals jurisdiction was fully
circumscribed and it could not be enlarged.
Without an appeal or a Notice of Appeal, the Court
lacked jurisdiction to grant any orders. The power
of the Court of Appeal, under rule 5(2)(b) of the
Court of Appeal Rules, to order a stay of execution,
an injunction or a stay of further proceedings was
only exercisable where a notice of appeal had
been lodged.
11. As long as there was no appeal on record, the
Courts hands were tied and it could not under the
guise of administering justice grant any order.
12. The grant of orders without the existence of an
appeal or intended appeal would amount to a
violation of both article 164(3) of the Constitution
of Kenya 2010 and section 3 (1) of the Appellate
Jurisdiction Act (Cap 9). Once the Court realized
that there was no Notice of Appeal, it ought to
have struck out the application.
13. In the circumstances, concerning the question as
to whether the Court of Appeal had the jurisdiction
to review a Court of Appeal decision, rule 57 (2) of
the Court of Appeal Rules was applicable. Under
that rule an order made pursuant to an application
made to the Court of Appeal could be rescinded
by the Court of Appeal.
14. Neither the Appellate Jurisdiction Act (Cap 9) nor
the Court of Appeal Rules contained any provision
for review of the Court of Appeals final orders but
it has been held on several decisions that the
Court of Appeal had residual jurisdiction to reopen
appeals, albeit in very limited circumstances.
15. Rule 57(2) of the Court of Appeal Rules, in
particular, granted the Court of Appeal jurisdiction
to vary or rescind an order made by the Court
of Appeal pursuant to an application. The three
judge bench decision, for which review was being
sought, was made pursuant to an application and
it could be rescinded.
Application allowed.
35

Court of Appeal rules on the legality of the removal of the Chief Registrar of the judiciary
by the Judicial Service Commission
Judicial Service Commission v Gladys Boss Shollei& Another
Civil Appeal No 50 of 2014
Court of Appeal at Nairobi
H M Okwengu, GBM Kariuki, P O Kiage, JJA
September 19, 2014
Reported by Andrew Halonyere & Valarie Adhiambo
Brief facts
The appellant (Judicial Service Commission) had
terminated the services of Gladys Boss Shollei
(respondent) as the Chief Registrar of the Judiciary.
The respondent not being satisfied with the
termination and the way in which the disciplinary
proceedings leading to her termination were
conducted, filed a constitutional petition in the High
Court seeking judicial review orders and declaration
orders with regards to violation of her constitutional
rights. The High Court considered the matter to be
arising from an employer and employee relationship
and transferred it to the Industrial Court. The Industrial
heard the petition and made a determination that,
the disciplinary process against the respondent
was a quasi-criminal affair because of the serious
allegations laid against her; that the appellant did not
specify in its letter of dismissal its specific findings
on the allegations made against the respondent; that
the proceedings were marred by biasness; that the
mandatory provisions of section 32 of the Judicial
Service Act as read with regulation 25 of the Third
Schedule to the Act (Provisions relating to the
Appointment, Discipline and Removal of Judicial
Officers and Staff) with regard to proceedings for
dismissal were not complied with and that the
appellants violated the constitutional rights of the
respondent under article 27(1) 35 (1) & (b), 47(1) &
(2), 50 (1) & (2) and 236 (b) of the Constitution and
that the respondent was entitled to compensation for
the unlawful and unfair loss of employment and for
violation of her constitutional rights. The appellants
were dissatisfied with that decision hence the appeal.
Issues
I.
Whether the jurisdiction of the Court of
Appeal in determining appeals from the
Industrial Court was limited to a finding that
the decision had not been based on evidence,
or court miscomprehended the evidence
and/or the decision was based on wrong
principles
II.
Whether Industrial the Court had jurisdiction
to hear a constitutional petition for redress
III.
IV.
V.
VI.
VII.
VIII.
of fundamental rights and freedoms

Whether the provisions of article 50 of the
Constitution on fair trial were applicable in
disciplinary proceedings by an employer
Whether the Judiciarys Chief Registrar
was accountable to the Judicial Service
Commission and the Chief Justice
Whether the Judicial Service Commission
could initiate
disciplinary proceedings
against the Judiciarys Chief Registrar
suomoto
Whether disciplinary proceedings by
an employer were quassi-criminal and
the criminal law could be applied to the
proceedings
What was the applicable law in the removal
from office of the Judiciary Chief Registrar
Whether the allegation of bias by the
respondent on the appellants had been
proved
Jurisdiction - jurisdiction of the Court of Appealjurisdiction of the Court of Appeal in determining an appeal
from the Industrial Court- the extent of the jurisdiction of
the Court of Appeal to hear appeals from the Industrial
Court-whether the jurisdiction of the Court of Appeal
in determining appeals from the Industrial Court was
limited to a finding that the decision had not been based
on evidence, or the court miscomprehended the evidence
and/or the decision was based on wrong principlesConstitution of Kenya 2010,article164;Appellate
Jurisdiction Act, section 3; Industrial Court Act section
17; Court of Appeal Rules, rule 29.
Jurisdiction - jurisdiction of the Industrial Courtjurisdiction of the Industrial Court on matters of violation
of fundamental rights and freedoms-contention that
the Industrial Court had no jurisdiction on matters of
violation of fundamental rights and freedoms-whether the
Industrial Court had jurisdiction to hear a constitutional
petition for redress of fundamental rights and freedoms
-Constitution of Kenya, 2010 articles 20(3), 22, 23(3), 165,
&162
Cases
36
Cases
Constitutional Law - fundamental rights and freedomsright to fair trial-applicability of the right to fair trialallegation that an employee was not accorded fair trial
in disciplinary proceedings by the employer- Whether the
provisions of the Constitution on fair trial were applicable
in disciplinary proceedings by an employer-Constitution
of Kenya, 2010 article 50 & 47
Constitutional Law - judiciary-judicial offices and
officers-Chief Registrar of the Judiciary-accountability of
the Chief Registrar of the Judiciary-discipline of the Chief
Registrar of the Judiciary- removal of the Chief Registrar
of the Judiciary from office - whether the Judiciarys
Chief Registrar was accountable to the Judicial
Service Commission and the Chief Justice-whether the
Judicial Service Commission could initiate disciplinary
proceedings against the Judiciarys Chief Registrar
suomoto- what was the applicable law in the removal
from office of the Judiciarys Chief Registrar-Constitution
of Kenya,2010 article 172(1),226(2),& 259(11);Judicial
Service Commission Act, section 12
Employment Laws - Employment relationshipsdiscipline of employees-disciplinary proceedings-nature
of employee disciplinary proceedings-contention that
disciplinary proceedings by an employer were criminal in
nature-whether disciplinary proceedings by an employer
were quassi-criminal proceedings and criminal law could
be applied to the proceedings
Held
1. Under article 164 of the Constitution, the
court had jurisdiction to hear appeals from the
High Court and any other court or tribunal as
prescribed by an Act of Parliament. Section 17
of the Industrial Court Act and section 3(1) of
the Appellate Jurisdiction Act also provided for
a right of appeal from the Industrial Court to the
Court of Appeal on matters of law only. On the
other hand rule 29 of the Court of Appeal Rules
empowered the court to reappraise evidence,
draw inferences of fact, and take additional
evidence. The rule was inconsistent with section
17(2) of the Industrial Court Act which limited
the jurisdiction of the Court in hearing appeals
from the Industrial Court to matters of law
only. However, the inconsistency was resolved
by article 164(3) (b) of the Constitution which
provided that the jurisdiction of the Court where
the right was conferred by an Act of Parliament
had to be as prescribed by that particular Act.
Therefore rule 29 had to be read together with
section 17(2) of the Industrial Court Act such
that the power of the court in re-considering and

re- evaluating evidence was limited to matters of
law only.
2. Article 23(1) and article 165(3) (b) of the
Constitution granted the High Court powers to
hear and determine questions involving redress
of violations or infringement or threatened
violations of fundamental rights and freedoms
in the Bill of Rights. Article 23(2) provided
for legislation giving original jurisdiction to
subordinate courts to hear and determine
disputes for enforcement of fundamental rights
and freedoms and in addition, article 23(3) did
not limit jurisdiction in the granting of relief in
proceedings for enforcement of fundamental
rights to the High Court only, but empowered a
court to grant appropriate relief including orders of
Judicial Review in the enforcement of rights and
fundamental freedoms under the Bill of Rights.
Further article 20(3) placed an obligation on any
court in applying a provision of the Bill of Rights
to develop the law and to adopt the interpretation
that most favoured the enforcement of a right or
fundamental freedom. The provisions confirmed
that the Constitution did not give exclusive
jurisdiction in the enforcement of the Bill of
Rights to the High Court, but anticipated the
enforcement of the Bill of Rights by other Courts.
3. Although the dispute between the appellant and
the respondent was anchored on the employment
relationship, the respondents claim arose from
the alleged violation of her fundamental rights
in the disciplinary process. The Industrial Court
could determine Industrial and labour relation
matters alongside claims of fundamental rights
ancillary and incidental to those matters. The
respondents petition was properly transferred
to the Industrial Court by the High Court as the
violations alleged arose from the employment
relationship. Further it was not the merits of
the appellants decision, or the merit of the
allegations
made against the respondent
that were in issue, but the procedural fairness,
legality of the process and the reasonableness
of the appellants decision. The questions that
needed to be addressed included the nature
of the process subject of the respondents
complaint, the jurisdiction of the appellant in the
process, and the application of the constitutional
provisions relating to a fair hearing and right to
administrative action.
4. The Constitution established the office of the
Chief Registrar of the Judiciary but it did not
37
provide any specific provisions for appointment or

removal in regard to that office. The appointment
could only have been made pursuant to the
appellants mandate under article 172 (1)(c) of
the Constitution that gave the appellant general
powers to appoint, investigate and discipline
officers of the Judiciary, read together with
section 9 of the Judicial Service Act which
provided for qualifications for appointment of
the Chief Registrar of the Judiciary.
5. While article 226 (2) of the Constitution provided
that the accounting officer of a national public
entity was accountable to the National Assembly
for its financial management, that was in actual
fact external accountability of the public entity
through its accounting officer, for the public
funds allocated to it and it was mandatory. It
did not however absolve the accounting officer
from internal accountability within the public
entity, nor did it remove the accounting officer
from the authority of the public entity. Such
internal accountability was not only prudent but
also imperative in facilitating the achievement of
the appellants objectives as set out in section
3 of the Judicial Service Act that provided wide
powers to the appellant and the Judiciary for
the management, accountability and facilitation
of the efficient, effective and transparent
administration of justice.
6. An employer had to of necessity have control over
its officers and the operations of its establishment.
Therefore as the chief administrator and
accounting officer, the respondent had to answer
to the Chief Executive and the board, which was
a role played by the Chief Justice as the head of
the Judiciary, and the appellant as the oversight
body. In the absence of any specific provisions
in the Constitution, it had to be inferred that the
Constitution contemplated that the appellant
was to handle the discipline of the respondent.
7. Article 172(1)(c) of the Constitution as read
together with section 12 of the Judicial Service
Act, did not provide the disciplinary process of the
Chief Registrar of the Judiciary as a function or
power of the appellant that was restricted by the
Constitution in terms of article 259(11). It could
not therefore be a function that was exercisable
only on the advice or recommendation or in
consultation with another person. In addition
the argument for an investigation report,
presupposed that the disciplinary proceedings
had to relate to financial mismanagement, yet
under section 12 of the Judicial Service Act
the grounds for removal from office were not

restricted to financial mismanagement. Further
a report from the external oversight bodies could
have been a necessary prerequisite in criminal
proceedings, but it was not a prerequisite in the
disciplinary function of the appellant and therefore,
the appellant had jurisdiction to initiate the
disciplinary proceedings against the respondent
suomoto without any recommendation or report
from any of the external oversight bodies.
8. The disciplinary process was a quasi- judicial
process
as it involved the appellant in
an adjudicatory function that required the
appellant to ascertain facts and make a
decision determining the respondents legal
rights in accordance with the Constitution
and the Judicial Service Act, both of which
provided for fair hearing. The proceedings were
anchored on a contractual relationship and the
appellant was not empowered to provide penal
sanctions. Notwithstanding the seriousness of
the allegations made against the respondent,
the disciplinary proceedings could not be
treated like criminal proceedings, as the nature
of the sanctions that could be imposed in
the disciplinary proceedings did not include
penalties or forfeitures akin to those that could
be applied in a criminal trial. Thus the Criminal
Procedure Code which was an Act providing for
the procedure in criminal cases had absolutely
no application in the disciplinary proceedings.
9. The Third Schedule of the Judicial Service
Act provided a more elaborate procedure at
regulation 23 to 25 for disciplinary proceedings
leading to dismissal of judicial officers and staff.
Judicial officer was defined under section 2 of the
Judicial Service Act to include: a registrar, deputy
registrar, magistrate or Kadhi or the presiding
officer of any other court or local tribunal as could
be established by an Act of Parliament. Judicial
staff was defined in the same section as persons
employed in the Judiciary but without power to
make judicial decisions and included the staff
of the Commission. As per section 8(b) of the
Judicial Service Act the functions of the Chief
Registrar included performing judicial functions.
Therefore, the Chief Registrar did not fall within
the definition of judicial officer or judicial staff as
defined in section 2 of the Judicial Service Act.
10. The position of Chief Registrar was defined
under section 2 of the Judicial Service Act as
Chief Registrar of the Judiciary. That position
had neither been included under section 32 of
Cases
38
Cases
the Judicial Service Act nor the Third Schedule

to that Act which provided general provisions
applicable to judicial officer and judicial staff as
defined in section 2 of the Judicial Service Act.
The definition in section 2 of the Judicial Service
Act had to be distinguished from the definition
of judicial officer in article 172(1)(c) of the
Constitution that included the Chief Registrar of
the Judiciary as the definition in the Constitution
was applicable to the Constitution only. Unlike
the Judicial Service Act, which defined Chief
Registrar, the Constitution did not define the Chief
Registrar hence the adoption of the definition of
Judicial Officer in the Act.
11. Under section 12 of the Judicial Service Act,
the issue of drawing of charges did not arise,
as all that was required was for the respondent
to be informed of the case against her in terms
of the specific matters that were subject of the
disciplinary proceedings. No particular format
was necessary
as long as the information
given was sufficiently clear for the respondent
to understand the allegations and complaints
against her. The allegations communicated to
the respondent were clear, and the respondent
not only understood the case against her, but
also specifically responded to the case against
her.
12. Article 50(2) of the Constitution provided for a
right to a fair trial to an accused person in criminal
trials. That sub-article was not applicable in the
disciplinary proceedings against the respondent
which, were neither criminal proceedings nor
quasi-criminal proceedings. The respondent was
entitled to a right to a fair hearing as provided
for under article 50(1) of the Constitution that
dealt with any dispute that could be resolved by
application of law.
13. It was crucial in determining real or apparent
bias, that the first step be the ascertainment of
the circumstances upon which the allegation
of bias was anchored. The second step was to
use the ascertained circumstances to determine
objectively the likely conclusion of a fair minded
and informed observer, on the presence or
absence of reasonable apprehension of bias.
Even though the allegations of bias by the
respondents were of a serious nature, it was one
thing to allege facts and another to establish
the facts. The perception of bias could only be
based on established facts. The circumstances
giving rise to the respondents allegations were
not established and therefore could not be the
basis of the perception of a reasonable man.

14. In regard to the respondents request for a
public hearing and a right to call witnesses,
the proceedings before the appellant being
disciplinary proceedings of a quasi-judicial nature,
there was no trial per se upon which an automatic
right of public hearing could be anchored. Subject
to compliance with basic fairness procedures,
and taking into account the nature of the
complaints and the peculiarities of the matter
before it, the appellant was at liberty to determine
whether the hearing should be public or private.
To that extent that the respondent was in charge
of public funds allocated to the Judiciary, and
that some of the allegations against her involved
misuse and misappropriation of the public funds
entrusted to her, the disciplinary process was
a matter of public interest and the request for
a public hearing to enable the respondent clear
her name appeared reasonable. Nevertheless, in
light of the fact that the issue of external auditing
of the judiciary accounts and misappropriation
of public funds was still subject to action by
other specialized bodies, a public hearing and
the calling of oral evidence could have been preemptive and prejudicial to both the respondent
and any subsequent investigations.
15. The functions and powers of the appellant as
provided under article 172 of the Constitution
as read with sections 3 and 12 of the Judicial
Service Act, revealed that the appellant exercised
powers that were administrative in nature and
which involved decision making process that
could affect the rights of judges and officers
of the Judiciary. In that regard the right of the
respondent was likely to be adversely affected
by the exercise of the appellants disciplinary
powers, and therefore it was necessary for
the appellant to comply with article 47 in the
exercise of such powers. The element of
procedural fairness in article 47 had to be
balanced against reasonableness, expediency
and efficiency in the decision making process.
Of further relevance was whether the respondent
was given reasons for the administrative action
taken by the appellant.
16. The termination letter given to the respondent
read together with section 12 of the Judicial
Service Act conveyed the reason that the
respondent had been removed on the grounds
of misbehavior, incompetence, violation
of
the prescribed code of conduct for judicial
officers, violation of the provisions of Chapter
39
Six of the Constitution, and any other sufficient

cause. Section 12 of the Judicial Service Act did
not require all the grounds mentioned in that
section to be established. Any single ground
if sufficiently demonstrated was enough to
justify the dismissal of the Chief Registrar of the
Judiciary.
17. Rule 84 of the Court of Appeal Rules, required
the respondent to have brought an application
for striking out the notice within thirty days from
the date of service of the record of appeal and
the respondent not having brought such an
application was caught up with time. Secondly,
the failure of service of the notice of appeal had
not caused any injustice to the respondent nor
was it one that went to jurisdiction. It was the
kind of technicality of procedure that article
159(2) (d) of the Constitution enjoined the court
not to pay undue regard to.
Per G B M Kariuki
18. The appellant was a body corporate with
perpetual succession and a seal by dint of article
253 of the Constitution and it was capable of
suing and being sued in its corporate name.
Its functions included appointing, receiving
complaints against, investigating and removing
from office or otherwise disciplining registrars,
magistrates, other judicial officers and other
staff of the judiciary in the manner prescribed by
an Act of Parliament. The Chief Registrar of the
Judiciary was one of the registrars referred to in
article 172(1) (c) of the Constitution.
19. The process of removal was an administrative
action within the meaning of article 47 of the
Constitution which conferred on every person the
right to expeditious, efficient, lawful, reasonable
and procedurally fair administrative action. The
tenets of fair administrative action were spelt out
in section 12(2) of the Judicial Service Act and
they were that before the Chief Registrar was
removed from office pursuant to section 12(1)
of the said Act, the Chief Registrar had to be
informed in writing of the case against him/her;
and be given reasonable time to defend himself/
herself against any of the grounds cited for the
intended removal.
20. Perusal of section 12 of the Judicial Service
Act showed that the appellant was vested, with
power to remove the holder of the office of the
Chief Registrar from office on any of the grounds
set out in the section and that the exercise of
that power was of civil nature and in exercising
it, criminal law did not come into it. While

criminal proceedings were normally mounted to
determine the guilt or innocence of a person
in relation to specific criminal offence/s the
culpability of which resulted in punishment as
could be provided in a given statute, disciplinary
proceedings were of civil nature between an
employer and an employee and where the
employee was not vindicated, the outcome was
normally dismissal from employment. That did
not, of course, stop law enforcement agencies
from pursuing criminal proceedings where
criminal offences had been committed.
21. In the administrative action leading to the
removal of the 1st respondent from office the
appellant was enjoined, in public interest, to
act fairly and in addition, apply the principles of
natural justice to the administrative action. The
Judicial Service Act was complied with and the
principles of natural justice were adhered to for
the simple reason that the 1st respondent was
afforded reasonable time to answer the charges.
The grounds for her removal were set out with
clarity and the 1st respondent responded
copiously to them. She was also invited by
the appellant to appear before it ostensibly to
highlight or amplify her answers. Her appearance
before the appellant was not necessary nor could
her absence prejudice her rights as she had been
heard on her written answers.
22. The Industrial Court, though not entitled to
handle Constitutional petitions that were to
otherwise go to the High Court Constitutional and
Human Rights Division had power to determine
constitutional issues arising in and intertwined
with labour relations litigation before it. The
Industrial Court had jurisdiction to determine
the 1st Respondents petition alleging wrongful
termination of her employment and whether
the 1st Respondents fundamental rights and
freedoms were breached in the process of the
termination of the latters employment.
23. The invocation of article 50(2)(a)(b) & (c) of
the Constitution was misplaced. In the context,
it did not apply to the 1st Respondent who faced
disciplinary proceedings and removal from
office as Chief Registrar of the Judiciary. The
Constitution showed that article 50(2) (a),(b) &(c)
applied to criminal trials and not to civil litigation
or disciplinary proceedings. So too with regard to
article 25(c) relating to the constitutional right to
fair trial, the trial judge failed to appreciate that
the disciplinary proceedings were not a trial and
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40
Cases
the issue of fairness in the proceedings was

addressed by Principles of natural justice and
article 47 which enjoined the appellant in the
disciplinary proceedings to ensure that the 1st
Respondents right to administrative action was
observed.
24. The alleged bias was pegged to a trove of emails
which the 1st respondent had attributed to
several of the members of the appellant body.
But the genesis of the emails was not established
and no evidence was adduced or presented to
link any of the members of the appellant to the
emails. As the basis for the alleged bias was the
trove of emails and their origin and authenticity
not having been established, the allegation had
to fail.
25. To the extent to which the trial Judge of the
Industrial Court dealt with and evaluated the
evidence relating to the disciplinary proceedings
against the 1st respondent on the basis that
they were quasi-criminal and that criminal
law principles and procedures applied, he was
clearly wrong. While the standard of proof in
the disciplinary proceedings was not beyond the
balance of probabilities, the test in quasi-criminal
proceedings was much higher.
26. Regulation 25 of part iv of the third schedule of
the Judicial Service Act and section 32 of the Act
applied to discipline and removal of judicial
staff and judicial officers other than Judges of
the Superior Courts and the Chief Registrar of the
Judiciary. The latters removal from office was
provided in article 172(1) (c) of the Constitution
and section 12 of the Judicial Service Act while
the formers removal was provided for in article
168 of the Constitution.
27. The relationship between the appellant and the
1st respondent was that of an employer and an
employee and it thus imported the existence of
power in the appellant as employer to demand
information from the 1st respondent as the
employee in discharge of the latters duties
and that relationship was characterized by a
contract of employment and inherent in it was
the principle that misbehavior inconsistent with
the faithful discharge of the employees duties
was good cause for dismissal as was also
breach of the prescribed code of conduct for
judicial officers and disobedience of lawful and
reasonable order as these were in tandem with
the grounds stipulated in section 12(1) of the
Judicial Service Act for removal of the Chief
Registrar.
Per P O Kiage
28. The application of the Bill of Rights was a duty
that fell on all courts while the interpretation of
the same fell on a court, tribunal or other authority
which had to promote the values that underline
an open and democratic society based on human
dignity, equality, equity and freedom as well as
the spirit, purport and objects of the Bill of Rights.
The Constitution did not limit or reserve this task
to the High Court. Article 22 of the Constitution
which dealt with the enforcement of the Bill of
Rights declared every persons right to institute
court proceedings where a right or fundamental
rights had been denied, violated, infringed or was
threatened. The court at which such person,
whether acting on his own behalf or on behalf of
a person unable to act on his own behalf or of
an association or in the public interest was not
specified to be the High Court nor was any court
excluded from contemplation.
29. There was nothing in article 165 that was exclusive
in character as that article only listed the various
aspects of the High Courts jurisdiction. It did not
by investing the High Court with a Bill of Rights
enforcement jurisdiction thereby bar other courts
from dealing with the subject any more than the
declaration of its unlimited original jurisdiction in
criminal and civil matters would bar other courts
from dealing with criminal and civil matters. It
was not uncommon for allegations of violation
of constitutional rights to be made out within
the context of and related to the employment
relationship and it could be absurd and quite
inimical to the self-evident duty of efficient,
timely and cost-effective delivery of justice were
a complaining party required to deal with the
contractual aspect properly before the Industrial
Court and then file separate proceedings at the
High Court with regard to the violation of rights.
30. Whereas the office of the Chief Registrar of the
Judiciary was established by section 161 (2) (c)
of the Constitution as the Chief Administrator and
Accounting Officer of the Judiciary, that office
was subject to the Judicial Service Commission.
The Chief Registrar of the Judiciary was the
first among registrars, which offices could be
established by the Judicial Service Commission
under article 161 (3) of the Constitution as could
be necessary. The office was established by the
Constitution, but the holder, qua administrative
chief of the Judiciary, was neither a judge nor
a judicial officer. The holder was a member,
41
foremost though he or she was of the judicial

staff complement of the Judiciary. The office was
not a tenured one under the Constitution and
the mode and process of removal of its holder
was not governed by the Constitution save as to
the need for the application of the appropriate
constitutional principles and safeguards that
applied to other public officers or employees
generally.
31. The disciplinary process set out in part iv of the
Third Schedule related to judicial officers and
staff of the judiciary other than the Chief Registrar
of the Judiciary. The Legislature made two
distinct and separate references to the process
of discipline and removal by which it made clear
that the removal of the Chief Registrar of the
Judiciary stood alone and apart from that of
other officers and staff of the Judiciary. The Chief
Registrar of the Judiciary was dealt with under
section 12 while that of all the other staff was
under section 32. Therefore it was never open to
the appellants to substitute one process for the
other. Further the statutory foundation for the
detailed provision for the discipline and removal
of judicial officers and staff as contained in the
third schedule was expressly stated to be Section
32. There was no mention of section 12 as part
of that underpinning for the process under the
Schedule. And there was no corresponding set of
rules or regulations created under section 12 of
the Act which meant, that Parliament considered
the section sufficient without further elaboration
or expansion.
32. A disciplinary process under the control of a
committee or panel, being a part only of the
Judicial Service Commission, with the full
Judicial Service Commissions role being that of
determining punishment only, was appropriate
for other judicial officers and staff of the Judiciary
as the Third Schedule decrees. It was not, and
could not be appropriate for proceedings that
could lead to the suspension or removal of the
Chief Registrar of the Judiciary. The status and
importance of the office of the Chief Registrar
of the Judiciary required the participation of the
entire Judicial Service Commission at all stages
and not merely limited to inflicting punishment.
Further, the punishment contemplated under
the 3rd
Schedule at paragraph 19 was
clearly different and inappropriate for the
Chief Registrar of the Judiciary for whom only
removal or suspension were open for imposition
by the full Judicial Service Commission once the
stipulated grounds were established

33. It was wrong to seek guidance from the
provisions of the Criminal Procedure Code; with
regard to the framing of charges and treating
the removal proceedings as if they were fullfledged judicial proceedings, of a criminal kind.
The trial judge dealt with the matter as would a
judge sitting in the Criminal Division of the High
Court scrutinizing the record of proceedings of a
subordinate court to determine their legality,
propriety or correctness. That approach had no
place in the employment dispute that was before
the Industrial Court.
34. The fact that under article 172 (1) (c), the Judicial
Service Commission had power to receive
complaints against, investigate and remove
Registrars,
Magistrates and other Judicial
Officers was to dispel any notion that the Chief
Registrar of the Judiciary was not accountable
to the Judicial Service Commission. Not only
was the Chief Registrar of the Judiciarys
accountability to the Chief Justice and the
Judicial Service Commission a matter of
statutory and constitutional requirement, but
such accountability and responsibility was in no
way lessened or diluted by any other responsibility
to account and answer to other organs, offices
or institutions as could be by law required. A
denial, defiance, violation or repudiation of such
accountability and answerability to the Judicial
Service Commission on the part of the Chief
Registrar of the Judiciary was therefore an act of
insubordination inviting appropriate disciplinary
measures.
35. The right to fair hearing as enshrined in article
50 (1) related to legal proceedings in courts and
other judicial tribunals. There was nothing in the
constitutional text that suggested that the right
applied to internal disciplinary hearings whether
or not they could lead to dismissal, touching on
the conduct of an employee. Employers and their
disciplinary panels were not courts or judicial
tribunals and it was therefore a huge misdirection
to assess their conduct of disciplinary hearings
using the judicial paradigm. As to the application
of article, 50 (2) of the Constitution, which was
the content and essence of the right to a fair
trial envisaged in article 25, it related solely to
criminal proceedings before a court of law and
had absolutely no application in an employees
disciplinary hearing.
36. The Petition was neither premised nor predicated
on the ground of bias. No evidence by way of
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affidavit under oath was tendered. It being trite
that parties were bound by their pleadings, it was
improper for the trial Judge to have permitted
an issue not properly before him by way of
pleadings to intrude upon the decision of the
matter to the extent that it did. The thesis that
bias was established merely by the seriousness
or the stridentness of the allegations could not

be accepted. What was required was proof by
evidence, the burden being borne by he or she
that alleged.
Appeal allowed
Procedure for removal of a Governor
Martin Nyaga Wambora & 3 Others v Speaker of the Senate & 6 Others
Civil Appeal No 21 of 2014
Court of Appeal at Nyeri
Visram, Koome & Odek, JJ.A
September 30, 2014
Reported by Andrew Halonyere
Brief Facts
The appellants brought an appeal to the Court of
Appeal in Nyeri challenging the High Courts decision
that the County Assembly of Embu and the Senate
were best placed to determine whether a motion for
the removal of a Governor was in accordance with
the Constitution. The appeal was also premised
on inter alia the ground that the High Court erred in
law by failing to determine whether the removal was
inconsistent with the Constitution.
Issues
i. Whether the County Assembly and the Senate
as opposed to the courts were best placed to
determine whether a motion for the removal
of Governor was in accordance with the
Constitution.
ii. Whether the removal of the Governor on the
alleged ground of violation of Constitutional
rights met the Constitutional threshold under
article 181 of the Constitution.
iii. Must there be a nexus between allegations
of violation of the Constitution in the motion
tabled in the County Assembly and the
Governor?
iv. What standard should be applied in
implementing the threshold for removal of a
Governor?
v. What constitutes grave violation or breach of
the Constitution?
vi. Whether the term gross violation of the
Constitution or any other law and the term
gross misconduct in articles 145(1)(a) & (c)
and 181 of the Constitution bears the same
meaning.
Constitutional Law County Government Governor

impeachment of a county Governor procedure to be
followed requirement that removal of the Governor
on the alleged ground of violation of Constitutional
rights met the Constitutional threshold - whether the
County Assembly and the Senate as opposed to the
courts were best placed to determine whether a motion
for the removal of a Governor was in accordance with
the Constitution Constitution of Kenya 2010, articles
10,165,181
Constitutional Law interpretation of articles 145(1)(a)
& (c), 181 - what constitutes grave violation or breach of
the Constitution - whether the term gross violation of
the Constitution or any other law and the term gross
misconduct bears the same meaning Constitution of
Kenya, 2010 articles 145(1)(a) & (c), 181
Constitutional Law principle of collective responsibility
whether collective responsibility is a policy, governance
and accountability concept other than a principle of
personal liability or individual culpability
Constitution of Kenya 2010
Article 181 provides:
Removal of a county governor
(1) A county governor may be removed from office on
any of the following grounds
(a) Gross violation of this Constitution or any other
law;
(b) Where there are serious reasons for believing that
the county governor has committed a crime under
national or international law;
(c) Abuse of office or gross misconduct; or
(d) Physical or mental incapacity to perform the
functions of office of county governor.
43
County Governments Act (No. 17 of 2012).

Section 33 provides:
33. Removal of a governor
(1) A member of the county assembly may by notice
to the speaker, supported by at least a third of all the
members, move a motion for the removal of the governor
under Article 181 of the Constitution.
(2) If a motion under subsection (1) is supported by
at least two-thirds of all the members of the county
assembly
(a) the speaker of the county assembly shall inform the
Speaker of the Senate of that resolution within two days;
and
(b) the governor shall continue to perform the functions
of the office pending the outcome of the proceedings
required by this section.
(3) Within seven days after receiving notice of a resolution
from the speaker of the county assembly
(a) the Speaker of the Senate shall convene a meeting
of the Senate to hear charges against the governor; and
(b) the Senate, by resolution, may appoint a special
committee comprising eleven of its members to
investigate the matter.
(4) A special committee appointed under subsection (3)
(b) shall
(a) investigate the matter; and
(b) report to the Senate within ten days on whether
it finds the particulars of the allegations against the
governor to have been substantiated.
(5) The governor shall have the right to appear and be
represented before the special committee during its
investigations.
(6) If the special committee reports that the particulars
of any allegation against the governor
(a) have not been substantiated, further proceedings
shall not be taken under this section in respect of that
allegation; or
(b) have been substantiated, the Senate shall, after
according the governor an opportunity to be heard, vote
on the impeachment charges.
(7) If a majority of all the members of the Senate vote
to uphold any impeachment charge, the governor shall
cease to hold office.
(8) If a vote in the Senate fails to result in the removal of
the governor, the Speaker of the Senate shall notify the
speaker of the concerned county assembly accordingly
and the motion by the assembly for the removal of the
governor on the same charges may only be re-introduced
to the Senate on the expiry of three months from the date
of such vote.
(9) The procedure for the removal of the President
on grounds of incapacity under Article 144 of the
Constitution shall apply, with necessary modifications, to
the removal of a governor.

(10) A vacancy in the office of the governor or deputy
governor arising under this section shall be filled in the
manner provided for by Article 182 of the Constitution.
Held
1. Article 181 of the Constitution as read with
section 33 of the County Governments Act shows
that removal of a Governor is a constitutional and
political process; it is a sui generis process that
is quasi-judicial in nature and the rules of natural
justice and fair administrative action must be
observed. The impeachment architecture in article
181 of the Constitution reveals that removal of a
Governor is not about criminality or culpability
but is about accountability, political governance
as well as policy and political responsibility.
2. The jurisdiction and process of removal of a
Governor from office is hierarchical and sequential
in nature. There are three sequential steps to be
followed:
i.
initiation of a motion to remove the Governor

by a member of the County Assembly;
ii.
consideration of the motion and a resolution

by two thirds of all members of the County
Assembly and
iii.
the Speaker of the County Assembly is to

forward the County Assemblys resolution
to the Senate for hearing of the charges
against the Governor.
In all the sequential steps, courts have neither

been vested with jurisdiction to initiate a motion,
consider a resolution nor to hear the charges levied
against the Governor. That position is in tandem
with the core function test and the concept of
separation of powers.
3. The constitutional and statutory mandate to
initiate and consider a motion to remove a County
Governor is vested in the County Assembly and
the Senate. Section 33 of the County Governments
Act which is an implementing legislation for article
181 of the Constitution does not vest the courts
with the jurisdiction to hear charges relating to
the removal of a Governor from office as far as
the process of removal of a Governor from office
is concerned; the province of the court is solely
to decide on the rights of individuals and not to
Cases
44
Cases
enquire how the County Assembly and Senate
perform duties in which they have discretion.
4. Article 165 (6) of the Constitution reveals that the

role of the High Court for purposes of removal of
a Governor from office is inter alia supervisory in
nature to ensure that the procedure and threshold
provided for in the Constitution and the County
Governments Act are followed. If the process for
removal of a Governor is unconstitutional, wrong,
un-procedural or illegal, it cannot be said that the
court has no jurisdiction to address the grievance
arising therefrom. In the instant case, in its
supervisory role, the High Court is to examine
whether any procedural law was violated by the
County Assembly or Senate in arriving at their
decision.
5. Article 181 of the Constitution as well as section
33 of the County Governments Act can neither be
interpreted as clauses that oust the supervisory
jurisdiction of the High Court, nor limit the power
of the High Court to interpret article 181 nor be
construed as provisions that prohibit the right of
a citizen to access a court of law where there is
an allegation of infringement of a constitutional
right to hold a public office under article 38 (3) ( c)
of the Constitution
6. Kenyas legal system is premised on the concept
of individual and personal liability or responsibility;
this means that the act or omission complained
of must have been done or undertaken with the
knowledge, consent or connivance of the person
charged.
7. Collective responsibility is a policy, governance
and accountability concept and not a principle of
personal liability or individual culpability. If it were
so, in the instant case, collective responsibility
would imply that all individual members of the
various organs of the County Government would
be personally responsible for acts or omissions
of any person in the employment of the County
Government. Collective responsibility does
not mean that the leader/ head is individually
responsible and politically liable for all acts
or omissions of subordinates. If collective
responsibility were to be a principle of culpability
and liability, it would follow that all persons who
are collectively bound must individually be held
answerable, blameworthy and accountable; this
is not the intent and import of the concept of
collective responsibility.
8. There must be a nexus between the alleged
gross violation and the conduct of a Governor.
An element of personal knowledge that includes
intentional, brazen or willful gross violation

of the Constitution or other written law must
be established. In the instant case, the High
Court erred by not making a determination as
to whether on the facts before it, nexus was
established between the appellant and the
alleged gross violation. Having found that nexus
had to be proved, it was the duty of the High Court
to make a determination whether nexus had been
established on the facts of the case.
9. There is need to maintain a high threshold for
removal of the Governor and the need to ensure
that the law is strictly followed. The standard of
proof is neither beyond reasonable doubt nor
on a balance of probability. The threshold for
removal of a governor involves gross violation of
the Constitution, the standard of proof required
for removal of Governor is above a balance of
probability but below reasonable doubt.
10. What amounts to gross violation must be
considered on a case by case basis taking into
account the peculiar facts and circumstances of
each case. Whether conduct is gross or not will
depend on the facts of each case and not every
violation of the Constitution or other law is gross
violation.
11. If violation of the Constitution is alleged to be
gross, the motion and charges against the
Governor must expressly indicate the words
gross violation in the charge and the specific
particulars of the alleged gross violation must
be given. The rationale for this is that where the
violation is not gross, then the removal process
under article 181 of the Constitution is not
available. In the instant case, the word gross
was omitted from the charges leveled against
the Governor. A Governor is entitled to notice
and particulars of the charges facing him and
notice as to whether the allegation is merely an
allegation of violation of the Constitution or other
law or gross violation of the Constitution and
other law.
12. The standard to be used to measure what
constitutes gross violation does not require a
mathematical formula, but it must take into
account the intent of article 181(1) of the
Constitution. Therefore whatever is alleged
against a Governor must;
I. Be serious, substantial and weighty.
II.
There must be a nexus between the

Governor and the alleged gross violations
of the Constitution or any other written
45

law.
III.
recommendation.
The charges framed against the

Governor and the particulars thereof
must disclose a gross violation of the
Constitution or any other written law.
IV.
The charges as framed must state with

degree of precision the article(s) or even
sub-article(s) of the Constitution or the
provisions of any other written law that
have been alleged to be grossly violated.
13. What constitutes gross violation of the
Constitution is to be determined on a case by
case basis. Gross violation of the Constitution
includes violation of the values and principles
enshrined under article 10 of the Constitution and
violation of Chapter six (Leadership &Integrity) of
the Constitution; or intentional and/or persistent
violation of any Article of the Constitution; or
intentional and blatant or persistent violation of
the provisions of any other law. The rationale for
this definition is that the values and principles
embodied in the Constitution provide the bedrock
and foundation of Kenyas constitutional system
and under article 10(1) these values bind all
state organs, state officers, public officers
and all persons. The facts that prove gross
violation as defined must be proved before the
relevant constitutional organ. Examples of the
constitutional Articles whose violation amounts
to gross violation include:
i. Chapter 1 on the Sovereignty of the People
and Supremacy of the Constitution more
specifically Articles 1, 2, and 3 (2) of the
Constitution.
ii.
Chapter 2- Article 4 that establishes Kenya

as a sovereign multi-party Republic & Article
6 that establishes devolution and access to
services.
iii.
Article 10 on national values and principles

of good governance.
iv.
Chapter 4 on the Bill of Rights.
v.
Chapter 6- Articles 73 to 78 on Leadership

and Integrity.
vi.
Chapter 12 - Article 201 on principles of

public finance.
vii.
Chapter 13- Article 232 on values and

principles of public service.
viii.
Chapter 14 - Article 238 on principles of

national security.
ix.
Article
259
(11)
on
advice
and
Any conduct that comes within the definition

of the offence of treason in the Penal Code
(Cap 63 of the Laws of Kenya).
14. The grounds for removal of a Governor stipulated
in article 181 of the Constitution is in pari materia
with some of the criteria in article 145 of the
Constitution for impeachment of the President.
In both articles, one of the criteria for removal
of the President or Governor is gross violation of
the Constitution or any other law or where there
are serious reasons for believing that the office
bearer has committed a crime under national or
international law or if there is gross misconduct
on the part of the office bearer.
15. It is a principle of interpretation that provisions
in pari materia are construed to have the same
meaning. The term gross violation of the
Constitution or any other law and the meaning
of the term gross misconduct in articles 145 (1)
(a) & (c) and 181 (1) (a) & (c) of the Constitution
is the same. The facts that give rise to invocation
of the provisions of the respective articles may
differ but the meaning and import of the terms
remain the same.
16. The office of Governor is different from the office
of Member of County Assembly although both are
subject to a competitive electoral process. The
rule of differentiation is inherent in the doctrine
of equality; different treatment of different offices
is equality of treatment. Parliament through the
County Government Act has prescribed different
procedure and threshold for removal of Governors
and Members of the County Assembly. In relation
to members of the County Assembly, the High
Court must confirm the grounds for removal.
Whereas this is not the case with Governors,
the supervisory jurisdiction of the High Court as
well as the High Courts jurisdiction to interpret
the Constitution ensures that a Governor cannot
be removed from office if the constitutional
procedure has not been followed and the
constitutional threshold established and proved.
The difference in procedure and grounds for
removal of the President, Governor or Member
of the County Assembly does not vitiate the
constitutional process and threshold that must
be fulfilled for each of the distinctive offices.
17. A court of law cannot act in vain. The proceedings
before the Embu County Assembly and the
Senate that led to removal of the 1st appellant
as Governor were declared null and void and
x.
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quashed by the judgment of the High Court. No
appeal was lodged to challenge the decision of
the High Court in declaring the said proceedings
to be null and void. Therefore the judgment by
the High Court was to stand.
Some rights reserved by Greg Miles Rufous

Appeal partly allowed
47

The High Court Cases

Court allows removal of gender mark in KCSE certificate for transgenders
Republic v Kenya National Examination Council & Another ex-parte Audrey Mbugua Ithibu
JR Case No. 147 of 2013
High Court of Kenya at Nairobi
Constitutional & Judicial Review Division
W Korir, J
October 7, 2014
Reported by Teddy Musiga
Brief facts:
The applicant was the holder of a Kenya Certificate of
Secondary Education (KCSE) awarded to him by the
Kenya National Examination Council KNEC in 2001.
Sometimes in 2008 he was diagnosed and treated
for gender identity disorder (G.I.D) and depression at
Mathari hospital and was still undergoing treatment
for the two conditions. The applicant then changed
his name from Andrew Mbugua Ithibu to Audrey
Mbugua Ithibu. Thereafter he embarked on changing
the particulars on his national identity card, passport
and academic papers so as to reflect his gender from
male to female. Specifically in the instant matter, the
applicant sought the removal of the gender mark
from his KCSE certificate so that the certificate did
not have any gender mark.
Issues
I. Whether it was lawful for the Kenya National
Examinational Examination Council (KNEC)
to indicate the gender mark of a candidate on
Secondary School certificates.
II. Whether it was lawful to change a name
appearing in a school certificate (the Kenya
Certificate of Secondary Education (KCSE).
III. Whether an order of mandamus could be
granted to compel the KNEC to change a
name appearing in a school certificate and
also to remove a gender mark appearing in a
school certificate.
Judicial Review Prerogative orders mandamus
claim seeking to compel the Kenya National Examination
Council to change a name appearing in a certificate and
also to remove the gender mark appearing in a certificate
legality of changing names in a school certificate
legality of imposing a gender mark on a school certificate
- Kenya National Examinations Council (Kenya Certificate
of Secondary Education Examinations) Rules 2009; Rule
9
Gender Law transgender gender identity disorder
(GID) claim seeking a change of name appearing in
ones school certificate and the removal of the gender
mark in the said certificate
The Kenya National Examinations Council (Kenya
Certificate of Secondary Education Examinations)
Rules 2009; Rule 9 stated:
i.
A certificate awarded to a candidate shall

show the name of the candidate, the
candidates index number, the name of the
school in the case of a school candidate,
and all subjects taken by the candidate in the
examination with the respective codes and
the grades obtained in all the subjects taken.
ii.
All certificates shall be issued to the head

teachers and to private candidates through
the Provincial Directors of Education or the
District Education Officers.
iii.
The Council may at any time withdraw a

certificate for amendment or for any other
reasons where it considers it necessary.
Held:
1. The respondents failed to provide legitimate
reasons for denying the applicants request for
the removal of the gender mark in the KSCE
certificate. Records of any changes made
could always be kept by KNEC and it could
always verify the information when asked to
do so. Criminals never clothed their nefarious
activities with a semblance of legality by
approaching the courts like the applicant had
done.
2. The imposition of a candidates gender mark
was not a requirement of the law under Rule
9 of the Kenya National Examinations Council
(Kenya Certificate of Secondary Education
Cases
48
Cases
Examinations) Rules 2009. It could have been
done as a tradition to assist in the proper
identification of a candidate, but it was not a
tradition backed by any rules.
3. Both articles 10 and 28 of the Constitution
of Kenya, 2010 provided for the protection
of human dignity. Human dignity was that
intangible element that made a human being
complete. It went to the heart of human
identity. Every human had a value. Human
dignity could be violated through humiliation,
degradation or dehumanization. Human
dignity was the cornerstone of other rights
enshrined in the constitution.
4. A KCSE certificate was complete without a
gender mark. Examinations in Kenya were
not administered based on the gender of
the candidate. Marks were also not awarded
based on gender. Removal of the gender mark
could not therefore dilute the quality of the
certificate.
5. The applicant had satisfactorily demonstrated

that his situation was unique and that had
to be considered when addressing his
application. Rule 9(3) of the Kenya National
Examinations Council (Kenya Certificate of
Secondary Education Examinations) Rules
2009 provided that KNEC could withdraw a
certificate for amendment or for any other
reason where it considered necessary. It
therefore had the legal backing to comply
with the applicants request. Where it failed to
do so, then the court could issue an order of
mandamus to compel it to perform its duty.
Order of Mandamus was issued to compel KNEC to
recall the applicants KSCE certificate issued in the name
of Ithibu Andrew Mbugua and replace it with one in the
name Audrey Mbugua Ithibu.
The replacement certificate had to be without a gender
mark.
Not all differential treatment violates equality rights under the Constitution
Republic v Tanathi Water Services Board & 2 others Ex parte Senator Johnstone Muthama
Judicial Review No. 374 of 2013
GV Odunga, J
October 24, 2014
Reported by Phoebe Ida Ayaya & Kipkemoi Sang
Brief Facts:
On 11th June 2013, the applicant (Senator of Machakos
County, Johnson Muthama) filed a Notice of Motion
through a judicial review seeking several orders against
the defendant, on behalf of the large Machakos County,
disputing the Trans-County and National Project in
which he alleged that the decision of the respondent
to have the natural resources disseminated to Kitui
could deprive the people of Machakos County several
rights under the Constitution. The applicant averred
that such a decision was deceptive, sham, illegal and
discriminatory and a strategy to gain political mileage
by the respondent at the expense of the poor and
deserving residents of Machakos County who needed
the resources to enhance and improve their livelihood.
The Tanathi Water Project in Machakos County
was founded to facilitate the people of Machakos
a constitutional guarantee to be free from hunger,
and to have adequate food of acceptable quality as
provided under article 43(1) (c) of the Constitution. He
argued that the respondent had designed the project
in a manner likely to delineate and discriminate

against the people of Machakos County in favour of
the people of Kitui County hence violating Article 27 of
the Constitution that guaranteed equality before the
law. The applicant faulted the act of the respondent
alleging that it went against the principles of
legitimate expectations and reasonability in exercise
of constitutional and statutory powers hence it was
irrational, corrupt and tainted with illegalities.
Issues:
I. Whether there was a recognizable public
law wrong that had been committed by the
respondent to warrant judicial review
II. Whether judicial review allowed the court to
review and examine the evidence with a view
of forming its own opinion on the substantial
merits of the case
III. Whether a declaration falls under the purview
of judicial review that would require viva voce
evidence to be adduced for the determination
49
IV.
V.
VI.
of the case
Whether a claim for differential treatment
could be properly adjudicated by way of
affidavit evidence
Whether judicial review cases which were
neither criminal or civil required Civil Procedure
Act (cap 21) to apply
Whether there was considerable differential
treatment between the people of Machakos
and the people of Kitui that could amount to
discrimination outlawed by the Constitution
Constitutional
Law
discrimination-differential
treatment- equality- whether differential treatment results
in equality- Whether there was considerable differential
treatment between the people of Machakos and the
people of Kitui that could amount to discrimination
outlawed by the Constitution-Constitution of Kenya,
2010 articles 27, 43(1)(c)
Judicial Review - orders of mandamus, certiorari and
prohibition-whether judicial review orders allow the High
Court of review to examine the evidence with a view of
forming its own opinion about the substantial merits of a
case-Law Reform Act (cap 26) sections 8 & 9
Civil Practice and Procedure - procedural law affidavit
evidence -whether a claim for differential treatment could
be properly adjudicated by way of affidavit evidencewhether judicial review cases which were neither criminal
nor civil required the application of the Civil Procedure Act
(cap 21)- Civil Procedure Rules (cap 21 Sub Leg) Order 53
Words and phrases
Blacks Law Dictionary defines discrimination as follows:
The effect of a law or established practice that confers
privileges on a certain class or that denies privileges
to a certain class because of race, age, sex nationality,
religion or handicap or differential treatment especially
a failure to treat all persons equally when no reasonable
distinction can be found between those favoured and
those not favoured.
The Bill of Rights Handbook, Fourth Edition 2001,
defines discrimination as follows: - A particular form of
differentiation on illegitimate ground.
Held:
1. Judicial review was premised on the grounds
of illegality, irrationality and procedural
impropriety. A decision maker needed to
understand correctly the law that regulated
his decision-making power and ought to
give effect to it. Irrationality meant, applying
the decision which no sensible person who

had applied his mind to the question to be
decided would have arrived at it. Procedural
impropriety meant the failure to observe basic
rules of natural justice or failure to act with
procedural fairness towards the person who
would be affected by the decision.
2. Judicial review was a special supervisory
jurisdiction which was different from both
ordinary (adversarial) litigation between
private parties and an appeal (rehearing)
on the merits. There ought to have been
a recognizable public law wrong that had
been committed as opposed to private law
proceedings that involved the claimant
asserting rights.
3. Judicial review was an important control
ventilating a host of varied types of problems
ranging from matters of grave public concern
to those of acute personal interest, from
general policy to individualized discretion;
from social controversy to commercial selfinterest.
4. Judicial review was constitutional supervision
of public authorities involving a challenge
to the legal validity of the decision. It did
not allow the court of review to examine
the evidence with a view of forming its own
view about the substantial merits of the
case. Exploring evidence in order to see if the
decision was vitiated by legal deficiencies,
was perfectly clear that review, was distinct
from an ordinary appeal, the court ought not
to set about forming its own preferred view
of the evidence for it was concerned with
the decision making process and illegality or
otherwise the decision rather than with the
merits.
5. Declarations did not fall under the purview of
judicial review for it required viva voce evidence
to be adduced for the determination of the case
on merit before declaring ownership. Judicial
review did not deal with ownership of disputed
property but only determined the jurisdiction
of the decision makers. Therefore an applicant
bringing judicial review proceedings with a
view to determining contested matters of
facts and in effect determine the merits of the
dispute, the Court did not have jurisdiction
in a judicial review proceeding to determine
such a dispute and could leave the parties
Cases
50
Cases
to ventilate the merits of the dispute in the
ordinary civil suits.
6. Resolution of the dispute before the court
required the court to make a determination
on disputed issues of facts and this was not
suitable for judicial review. Judicial review
jurisdiction was a special jurisdiction which
was neither civil nor criminal and the Civil
Procedure Act did not apply. It was governed
by sections 8 and 9 of the Law Reform Act
being the substantive law and Order 53 of the
Civil Procedure Rules being the procedural law.
Section 8 of the Law Reform Act specifically
sets out the orders that the High Court could
issue in judicial review proceedings and
the orders were, mandamus, certiorari and
prohibition.
7. The law did not prohibit discrimination
but rather unfair discrimination. Unfair
discrimination implied treating people
differently in a way which impaired their
fundamental dignity as human beings, who
were inherently equal in dignity. Unlawful
or unfair discrimination could be direct or
subtle. Direct discrimination involved treating
someone less favourably because of their
possession of an attribute such as race, sex
or religion compared with someone without
that attribute in the same circumstances.
Indirect or subtle discrimination involved
setting a condition or requirement that was a
smaller proportion of those with the attribute
were able to comply with, without reasonable
justification.
8. A classification which was unfair in one contest

may not have necessarily been unfair in a
different context. Not all distinctions resulting
in differential treatment could properly be
said to violate equality rights as envisaged
under the constitution.
The appropriate
perspective from which to analyse a claim of
discrimination was both a subjective and an
objective component which required the view
from a larger social political and legal context
other than to look at the impugned legislation
which created the distinction whether
differential treatment resulted in equality.
9. Even if the court was to find that there was
differential treatment between the people of
Machakos and the people of Kitui, that alone
could not necessarily amount to discrimination
as was outlawed by the Constitution. Certain
instances raising issues of discrimination
could properly be adjudicated by way of
affidavit evidence which failed the candidature
of judicial review.
10. In order to determine the conflicting positions
with respect to the aforesaid larger social,
political and legal context, affidavit evidence
would not suffice and it would be necessary
to take viva voce evidence which would have
to be subjected to cross examination to verify
its veracity and probative value.
Notice of Motion struck out for incompetence and no
orders as to costs
51
Government policy of funding public secondary schools to the exclusion of private ones
is not discriminatory
Gabriel Nyabola v Attorney General & 2 others
Petition No 72 of 2012
D S Majanja, J
October 10, 2014
Reported by Andrew Halonyere & Anne Mbuthia

Brief F acts
The Petitioner brought the suit challenging the
Government policy of funding public secondary
schools to the exclusion of private ones. He argued
that the policy was discriminatory and a violation
of the Constitution, the Children Act and various
international instruments to which Kenya was a
party; and that the right to basic education included
secondary education which ought to have been
enjoyed by every Kenyan child, irrespective of whether
he or she attended public or private secondary school.
Issues:
I. What was the nature and extent of the right to
education and what obligations did it place on
the State?
II.
What was the meaning of basic education in

the context of the right to free and compulsory
basic education?
III.
What did progressive realisation of the right to

education entail?
IV.
Whether there was a contradiction in the

Basic Education Act, 2013 on account of the
fact that section 28(1) thereof provided for
the right of every child to free and compulsory
basic education whereas section 29(1) of the
same Act made a provision for free tuition in
public schools only
V.
VI.
What did the principle of equality entail?

Whether the Governments policy confining
funding and in kind support only to public
secondary schools was discriminatory
Constitutional Law - fundamental rights and freedomsright to education- right to free and compulsory basic
education- the nature and extent of the right to educationwhat obligation did the right to education place on the
State?- meaning of basic education- Constitution of
Kenya, 2010 articles 21(1), 43(1) (f) & 53(1)(b); Basic
Education Act, 2013, sections 2 & 28
Constitutional Law fundamental rights and freedoms

socio-economic rights progressive realisation of socioeconomic rights - right to education claim that the State
ought to ensure that the right to free basic education is
enjoyed by students in both public and private secondary
schools- what did progressive realisation of the right to
education entail?- Constitution of Kenya, 2010, articles
21 (2) & 43 (1) (f)
Constitutional Law - fundamental rights and freedomsright to equality and freedom from discrimination- what
did the principle of equality entail?- where the Government
had a policy for the funding of public secondary schoolswhether that policy was discriminatory of students in
private schools- Constitution of Kenya, 2010, article 27
Statutes - interpretation of statutes- contradictory
provisions- Basic Education Act, 2013- whether
section 29(1) of the Basic Education Act, 2013 that
made a provision for free tuition in public schools only
contradicted section 28(1)of the same Act which provided
for the right of every child to free and compulsory basic
education- Basic Education Act, 2013, sections 28 (1) &
29 (1)
Held:
1. The right to education is one of the new
generation of fundamental rights protected
under article 43(1) (f) the Constitution. Under
the Universal Declaration of Human Rights
and the International Covenant on Economic
Social and Cultural Rights (ICESR), the right is
recognised as having been directed to the full
development of the human personality and the
sense of its dignity. The Universal Declaration
on Human Rights embraced education as
a basic human right. Those instruments
constituted part of the law of Kenya by virtue
of article 2(6) of the Constitution.
2. The right to education, like all human
rights, imposed on States the obligations
to respect, protect and fulfill. Article 21(1)
of the Constitution enshrined those duties.
Cases
52
Cases
The obligation to respect required States to
avoid measures that hindered or prevented
the enjoyment of the right to education.
The obligation to fulfill incorporated both an
obligation to facilitate and an obligation to
provide. The obligation to protect required
States to take measures that prevented third
parties from interfering with the enjoyment
of the right to education. The obligation to
fulfill or facilitate required States to take
positive measures that enabled and assisted
individuals and communities to enjoy the right
to education.
3. An analysis of the provisions of the
Constitution, the Children Act, Basic Education
Act and the international law imposed on
the State an obligation to provide free and
compulsory basic education. Although the
term basic education had not been defined
in the Constitution or the Children Act, various
international instruments gave an indication
as to its meaning.
4. The Basic Education Act, 2013 did not make
a distinction between primary and secondary
education. Section 2 of the Act defined basic
education as the educational programmes
offered and imparted to a person in an
institution of basic education, including adult
basic education and education offered in preprimary educational institutions and centres.
5. The State, through the Basic Education Act,
2013, had taken a much broader approach
to the definition of basic education than that
obtaining in international instruments and the
Children Act. Under section 28 of the Act, every
child had the right to free and compulsory
basic education. A child under the Act and
under the Children Act was any person who
had not attained the age of eighteen years.
Therefore, every person under the age of
eighteen years was entitled to primary and
secondary education in Kenya that was free
and compulsory.
6. Article 21(2) of the Constitution obliged the
State to take legislative, policy and other
measures, including the setting of standards,
to achieve the progressive realisation of the
rights guaranteed under article 43. The right
to education, having been a right protected
under article 43, was subject to article 21(2).
7. The realisation of the right to education
over time, that is progressively, ought

not to have been interpreted as depriving
States obligations of all meaningful content.
Progressive realisation meant that States had
a specific and continuing obligation to move
as expeditiously and effectively as possible
towards the full realisation of the right. The
State was therefore obliged to take steps
to the maximum of its available resources,
with a view to achieving progressively the full
realisation of the rights.
8. The obligation to take reasonable steps meant
steps that were based on coherent policies
and programs that were reasonable both in
conception and implementation (Government
of the Republic of South Africa v Grootboom). As
concerns the right to education, progressive
realisation did not mean mere paper policies
but deliberate and concrete steps taken to
achieve free basic education for all on a nondiscriminative basis, deployment of maximum
available resources to ensure realisation,
avoid retrogressive measures and monitor
enjoyment of the right.
9. There was no contradiction or ambiguity
within the Basic Education Act, 2013. Section
28(1) of the Act was clear and required no
more than a literal interpretation. It imposed
on the Cabinet Secretary for Education the
responsibility of implementing the States
obligation to provide free and compulsory
basic education for children. The manner in
which the Cabinet Secretary discharged that
obligation, within the parameters set by the
Constitution and the Statute, were matters
within the policy discretion of the national
government and the Court could not interfere
in such policies unless it had been shown that
the Cabinet Secretary had been in violation
of the Constitution. Section 29 (1) of the Act
was also clear and unambiguous in providing
that public schools ought not to have charged
any fee on behalf of a pupil in the school. That
was a logical consequence of the States own
undertaking to provide free and compulsory
basic education.
10. While the realisation of the right to basic
education might have been progressive, the
right to non-discrimination was immediate.
Article 27 guaranteed equality for all persons
and prohibited discrimination. The term
discrimination implied any distinction,
53

exclusion, restriction or preference which

was based on any ground, including race,
sex, pregnancy, marital status, health status,
ethnic or social origin, colour, age, disability,
religion, conscience, belief, culture, dress,
language or birth. In the context, it referred
to any distinction, exclusion, limitation or
preference based on those grounds which had
the purpose of nullifying or impairing equality
of treatment in education.
11. Inequality in treatment was not per se
prohibited. The question as to whether
discrimination was fair or unfair, hence illegal,
was to be weighed against the rationality
test. The aim of the inequality ought to have
been aimed at achieving a certain legitimate
governmental objective.
12. All the Court needed to be satisfied of was that
the object of differentiation bore a rational
relationship to a legitimate government
purpose compatible with the principles
and values of the Constitution. Such a test
maintained fidelity to the principle of separation
of powers that was one of the pillars of the
Constitution. The question for determination
then was not merely whether the provisions
were discriminatory or amounted to unequal

treatment, but whether the different treatment
of children in public and private schools in the
circumstances of the case bore a rational
connection with legitimate governmental
purpose.
13. In order to have progressively realised
the free secondary school education, the
Government had to give priority to public
schools which served the majority of students
across the country. Under article 43(3) of the
Constitution, the State had the obligation
to give priority to the most vulnerable and
marginalized in the society. That meant that
the funding of children in private schools,
while a goal to be progressively realised,
its immediate application would have
undermined affirmative action.
14. The failure by the State to provide financial
and in kind assistance to private schools
was not discriminatory. The distinction
between children in private and public school
was intended to achieve the overall goal of
progressively providing free education to all
children in the future.
Petition dismissed with no order as to costs.
Was the recruitment process for purposes of appointments to the National Police Service
illegal and unconstitutional?
Independent Policing Oversight Authority & another v Attorney General & 660 others
Petition 390 of 2014
Constitutional and Human Rights Division
Isaac Lenaola, J
October 31, 2014
Reported by Beryl A Ikamari
Brief facts
Through Sub-County Recruitment Committees, a
recruitment exercise for purposes of appointments
to the National Police Service was done on July 14,
2014. At the conclusion of the process, there were
allegations of unfairness, irregularities and corruption.
There were allegations that the selection criteria was
not known to the public and that if there were any
guidelines or regulations governing the process, such
regulations were made without public participation.
Also, there were complaints that the distribution of
recruitment centres was discriminatory, particularly in

case of Uasin Gishu County which had 3 recruitment
centres and a considerably large population.
Furthermore, there were claims that pregnant women
had been discriminated as they were not recruited on
grounds of being pregnant.
The allegations were handled by a Multi-Agency
Working Committee, which on August 12, 2014,
annulled the recruitment results of 36 recruitment
centres. Some of the candidates whose results were
affected after being selected from those 36 centres
complained that their rights to fair administrative
action and a fair hearing were violated as their results
Cases
54
Cases
were cancelled without them being heard.

Issues
I. Whether the Consolidated Petition met the
constitutional threshold pertaining to pleading for
a claim of an alleged violation of the Constitution.
II. Whether the Independent Policing Oversight
Authority (IPOA) had an oversight role over the
National Police Service Commission (NPSC.)
III. Whether the recruitment exercise done by
the National Police Service Commission was
undertaken in contravention of the Constitution
and the national values and principles of good
governance.
IV. Whether the recruitment process undertaken
by the National Police Service Commission was
based on transparent guidelines which were
availed to the public.
V. Whether recruitment guidelines for Police
Constables were enacted without public
participation.
VI. Whether pregnant women who were turned away
during the recruitment process had suffered
discrimination and had their right to equality and
freedom from discrimination violated.
VII. Whether it was illegal and unconstitutional for
the National Police Service Commission to
delegate its recruitment functions to Sub-County
Recruitment Committees.
VIII. Whether the National Police Service Commission
had powers to not only investigate recruitment
irregularities and to make recommendations but
also powers to cancel a recruitment process.
IX. Whether the cancellation of the results of the
recruitment process in 36 selected centres was
done in violation of the rules of natural justice,
the right to fair administration and the right to a
fair hearing.
X. Whether the allocation of 3 centres to Uasin
Gishu County amounted to discrimination in the
distribution of the recruitment centres.
Constitutional Law - constitutional commissionsindependence of commissions-whether the Independent
Policing Oversight Authority had an oversight role over
the National Police Service Commission-Constitution
of Kenya 2010; articles 248 & 249(2) and Independent
Policing Oversight Authority Act, No 35 of 2011; sections
5 & 6.
Constitutional Law - national values and principles
of good governance-transparency, accountability and
public participation-whether there had been a failure to
meet public participation requirements in the enactment

June 2014 Recruitment Guidelines for the National Police
Service and whether the guidelines were made available
to the public-Constitution of Kenya 2010; articles 10, 232
& 249(1) and National Police Service Commission Act,
No 30 of 2011; section 10(1)(i).
Constitutional Law - fundamental rights and freedomsenforcement of fundamental rights and freedoms-right
to equality and freedom from discrimination-whether
pregnant women who were found unsuitable for
recruitment to the National Police Service on grounds of
pregnancy had been discriminated-Constitution of Kenya
2010, article 24 & 27.
Constitutional Law - fundamental rights and freedomsenforcement of fundamental rights and freedoms-right
to fair administrative action and right to a fair hearingthe rules of natural justice-whether the cancellation of
recruitment results in 36 recruitment centres without
affording a hearing to the affected candidates was a
violation of the principles of natural justice-Constitution
of Kenya, 2010; articles 47 & 50.
Constitutional Law - national values and principles of
good governance-ethnic and regional diversity-allocation
of recruitment centres for purposes of appointments
to the National Police Service-whether allocation of 3
centres to Uasin Gishu County, a county with a large
population, was a violation of the right to equality and
non-discrimination and also the principle of ethnic and
regional diversity-Constitution of Kenya 2010; articles 10
& 27 and National Police Service Act, No 11A of 2011;
section 5.
Statute Law - statutory interpretation-delegation of
functions by the National Police Service Commissiondelegation of recruitment functions-whether the National
Police Service Commission could delegate recruitment
tasks to Sub-County Recruitment Committees-National
Police Service Commission Act, No 30 of 2011; sections
10(2), 10(3)(c), 10(5) & 13(2).
Statute Law - statutory interpretation-extent of the
recruitment powers of the National Police Service
Commission-whether a power to recruit also included
a power to cancel the recruitment- Interpretation and
General Provisions Act (Cap 2); section 51(1).
The Constitution of Kenya 2010, article 10;
(2) The national values and principles of
governance include
(a) patriotism, national unity, sharing
and devolution of power, the rule of
law, democracy and participation of the
people;
55
(b) human dignity, equity, social justice,

inclusiveness, equality, human rights,
non-discrimination and protection of the
marginalised;
(c)
good
governance,
integrity,
transparency and accountability; and (d)
sustainable development.
The Constitution of Kenya 2010, article 249(2);
(2) The commissions and the holders of
independent offices
(a) are subject only to this Constitution
and the law; and
(b) are independent and not subject to
direction or control by any person or
authority.
The Independent Policing Oversight Authority Act,
No 35 of 2011, section 5;
5. Objectives of the Authority
The objectives of the Authority shall be
to
(a) hold the Police accountable to
the public in the performance of their
functions;
(b) give effect to the provision of Article
244 of the Constitution that the Police
shall strive for professionalism and
discipline and shall promote and practice
transparency and accountability; and
(c) ensure independent oversight of the
handling of complaints by the Service.
The National Police Service Commission Act, No 30

of 2011, section 13;
Committees of the Commission.
13. (1) The Commission may establish
committees for the better carrying out
of its functions.
(2) The Commission may co-opt into the
membership of committees established
under subsection (1) other persons
whose knowledge and skills are found
necessary for the functions of the
Commission.
(3) Any person co-opted into the
Commission under subsection (2) may
attend the meetings of the Commission
and participate in its deliberation, but
shall have no power to vote.

of 2011, section 10(2);
(2) Subject to the provisions of the
Constitution or any written law,
the Commission may delegate to
the
concerned
Inspector-General
the recruitment, appointment and
promotion of police officers under the
rank of sergeant:
The Interpretation and General Provisions Act (Cap

2), section 51(1);
51. Power to appoint to include power to
suspend, dismiss, etc., and to reappoint,
etc.
(1) Where by or under a written law, a
power or duty is conferred or imposed
upon a person to make an appointment
or to constitute or establish a board,
commission, committee or similar
body, then, unless a contrary intention
appears, the person having that power
or duty shall also have the power to
remove, suspend, dismiss or revoke
the appointment of, and to reappoint
or reinstate, a person appointed in the
exercise of the power or duty, or to
revoke the appointment, constitution or
establishment of, or dissolve, a board,
commission, committee or similar body
appointed constituted or established,
in exercise of the power or duty, and to
reappoint, reconstitute or re-establish it.

of 2011, section 10(5);
(5) A delegation under this Act shall
(a) be in writing;
(c) be subject to any conditions the
Commission may impose; and
(d) not divest the Commission of the
responsibility concerning the exercise
of its powers or the performance of the
duty delegated.
Held
1. It was a settled principle in constitutional
litigation that when seeking redress
from court for an alleged violation of the
Constitution, a litigant was required to set out
with a reasonable degree of precision that
which he complained of, the provisions of the
Constitution said to have been infringed and
the manner in which they had been infringed.
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56
Cases
2. The Petitioners and Interested Parties had
fulfilled the constitutional requirements with
respect to pleading in situations of an alleged
violation of constitutional provisions. They
had set out in great length details on what they
considered to be violations of articles 1(3), 10,
27, 47, 232, 244 and 246 of the Constitution of
Kenya, 2010.
3. The National Police Service Commission
(NPSC) was recognized as an independent
commission under the provisions of article
248 of the Constitution of Kenya 2010. Under
article 249(2) of the Constitution, such a
commission was not subject to the direction
or control of any person or authority.
4. A reading of sections 5 and 6 of the Independent
Policing Oversight Authority Act, No 35 of 2011,
indicated that IPOA did not have a mandate
to oversee the work or conduct of NPSC. The
National Police Service Commission (NPSC)
was not subject to the direction or control of
any person or authority; it was only subject to
the law and the provisions of the Constitution.
5. Under the provisions of article 22 and 258(1)
of the Constitution of Kenya 2010 the
Independent Policing Oversight Authority had
the right to institute the Petition. Under article
258(1) of the Constitution of Kenya 2010,
every person had the right to institute court
proceedings claiming that the Constitution
had been contravened or had been threatened
with contravention.
6. Article 10 of the Constitution of Kenya 2010
provided for the values and principles of good
governance which included transparency,
accountability and public participation.
Under article 249(1) of the Constitution and
section 10(1)(i) of the National Police Service
Commission Act, No 30 of 2011, the National
Police Service Commission was required to
promote the values and principles referred
to in article 10 and 232 of the Constitution of
Kenya 2010.
7. Adherence to the principles and values of
good governance required to the National
Police Service Commission to publish
guidelines and regulations which were
to govern the recruitment process. While
reference had been made to the existence of
the June 2014 Recruitment Guidelines, it was
demonstrated that the document was only
sent to government departments and was not
available to the public.

8. The Newspaper advertisements published in
the Daily Nation and Standard Newspapers
on June 30, 2014 amounted to a call for
applicants to join the National Police Service.
It was not a guideline on questions such as
whether brown teeth were a deformity and it
did not provide the public with information on
the applicable recruitment criteria.
9. The National Public Service Commission had
not made recruitment guidelines public; its
selection criterion was known only to itself and
the criterion was largely left to the discretion
of Sub-County Recruitment Committees. The
Sub-County Recruitment Committees used
criteria which was not uniform for all the
different regions in which recruitment was
done.
10. Public participation in the enactment of
legislation, regulations and guidelines was
an important aspect of good governance
recognized by the Constitution of Kenya,
2010. As long as members of the public were
accorded a reasonable opportunity to know
about the issues at hand and make known
their contribution and say on such issues,
then it would be possible to say that there was
public participation.
11. There was evidence that the National Police
Service Commission had subjected the draft
Recruitment Guidelines to stakeholders for
discussion and the Independent Policing
Oversight Authority was among the
stakeholders who were consulted.
12. The right to equality and freedom from
discrimination was recognized in article
27 of the Constitution of Kenya 2010. The
European Court of Human Rights observed
that discrimination meant treating differently
without any objective or reasonable
justification, persons in relatively similar
situations. (Willis v United Kingdom, No
36042/97, ECHR 2002 IV and Okpisz v
Germany, No 59140/00, October 25, 2005).
13. Given the standard established by the
European Court of Human Rights and the
criteria for limiting rights under article 24
of the Constitution of Kenya, 2010, the
discrimination meted out against women
who were pregnant during the recruitment
process was justified. It served the need to
57

protect the lives of pregnant women and the

unborn children. The recruitment which would
lead to admittance into one of the three Police
Training Colleges involved rigorous training
for nine months and would not be suitable for
the health concerns of pregnant women.
14. It was not reasonable to recruit pregnant
women and have them undertake training at
a future date after giving birth.
15. Pursuant to the provisions of section 10(2) of
the National Police Service Commission Act,
No 30 of 2011, the National Police Service
Commission had powers to delegate to the
Inspector General the mandate to recruit,
appoint and promote officers under the rank
of Sergeant. Additionally, under section 13(2)
of the National Police Service Commission
Act, No 30 of 2011, the Commission was
empowered to establish committees for the
better performance of its functions.
Committee on Recruitment was a lawful
committee established within the terms of
section 13(2) of the National Police Service
Commission Act, No 30 of 2011, to perform
tasks for purposes of recruitment to the
National Police Service.
17. The recruitment was conducted by SubCounty Recruitment Committees which
performed recruitment as provided for
in a circular issued by the Commission.
The powers of the National Police Service
Commission Committee on Recruitment
appeared to have been sub-delegated to the
Sub-County Recruitment Committees but
the fulfilment of requirement that such subdelegation would have to be in writing had not
been established in evidence.
18. Section 10(5) of the National Police Service
Commission Act, No 30 of 2011, required a
delegation of tasks to be in writing but there
was no evidence that there was a delegation
of functions to Sub-County Recruitment
Committees in writing. Additionally, section
10(3)(c) of the National Police Service
Commission Act, No 30 of 2011, cautioned
against unjustified delegation of the
Commissions discretion.
19. The National Police Service Commission had
acted ultra vires its mandate by delegating
its powers of recruitment to the Sub-County
Committees.
20. Under section 11(1)(f) and 11(1)(g) of the
National Police Service Commission Act,
No 30 of 2011 the Commission had powers
to conduct investigations and to make
recommendations as related to recruitment
irregularities. Its powers also extended
into annulling a recruitment process as the
Commission also had powers to conduct a
recruitment process.
21. Pursuant to section 51(1) of the Interpretation
and General Provisions Act (Cap 2), a power
to recruit included a power to cancel the
recruitment.
22. One of the cardinal rules of the principles
of natural justice was that a party would
not be condemned unheard. However, the
principle was not absolute and was not
always strictly applied. The application of the
principles of natural justice depended on the
circumstances of each case, the nature of the
inquiry and whether the party concerned was
given a reasonable opportunity of presenting
his or her case.
23. The decision to cancel the recruitment results
in 36 centres only left the affected Interested
Parties with unanswered questions. The
Interested Parties did not know what criterion
was used to select those centres, what
kinds of allegations were made against the
recruitment process in those centres and why
the results were cancelled.
24. Given the circumstances attending to the
decision to cancel the results in 36 centres,
there had been a violation of the right to be
heard in making that decision.
was obligated to ensure that the principle of
regional and ethnic diversity of the people
of Kenya was taken into account in its
appointments to the National Police Service.
That obligation was recognized in section 5
of the National Police Service Act, No 11A of
2011.
26. The manner in which the obligation on
ensuring regional and ethnic diversity was to be
achieved was a policy issue to be determined
in accordance with the Constitution and
statutory provisions. Determinations on how
many recruitment centres to allocate to each
region was a consequence of such policies.
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58
27. The High Court had no ability, mechanisms,

facilities or manpower to determine the criteria
for allocating recruitment centres for the
National Police Service. It was the mandate
of the National Police service Commission to
make recruitment policies.

Petition allowed. (The outcome of the recruitment
process of July 14, 2014 was quashed and orders for
recruitment to be done afresh were issued.)
Court Sets Clear Boundaries for the Exercise of the Powers of the Office of the Director of
Public Prosecutions
Republic v Director of Public Prosecutions & 2 others ex-parte Joseph Gathuku Kamuiru & another
JR Case No 398 of 2013
Judicial Review Division
W Korir J
October 30th, 2014
Reported by Emma Kinya Mwobobia and Opiyo Lorraine

Brief Facts
The facts are that the Applicants herein were owners
of two companies situated on pieces of land that were
registered as grants. However, sometime in 2009,
some people with the support of Nairobi City Council
officers and the Commissioner of Lands began to
claim ownership of the said pieces of land on the basis
that their titles were forgeries. The company owners
obtained injunctions from the High Court which were
later dismissed during inter-parte hearings.
They then moved to the Court of Appeal during which
time the City Council of Nairobi and the Commissioner
of Lands attempted to issue two new grants over the
same parcels of land that were in contention. They
opted to file a Civil Application before the High Court
as well as an injunction in light of the new grants that
would be issued. The Applicants actions led to their
arrest where they were charged with the offence of
forgery contrary to Section 349 of the Penal Code. It
was their opinion in the Notice of Motion filed before
the High Court in light of the criminal proceedings
before the Kibera Chief Magistrates Court that their
prosecution was brought in bad faith in a bid to
frustrate their efforts to secure the titles to the grants
they had received on the contentious parcels of land.
Issues
of illegal prosecution.
Criminal Practice and Procedure prosecution
prohibition of Prosecution whether an accused person
could make an application to the Court to make an order
prohibiting their prosecution what was the required
threshold for prohibiting prosecution case
Criminal Practice and Procedure Office of the
Director of Public Prosecutions functions and powers
- institution of criminal proceedings abuse of power
whether the Director of Public Prosecutions acted in
excess or in abuse of his powers in instituting criminal
proceedings against the Applicants while there were
pending civil proceedings on the same matter and set of
facts in another Court where the Applicants claimed
that the proceedings brought against them were in bad
faith Criminal Procedure Code Cap 75 section 193A
Criminal Procedure and Practice procedure illegal
prosecution time whether there was a time limit
for instituting proceedings that would prohibit illegal
prosecution - whether the Application for Judicial Review
of the powers of the Director of Public Prosecution
was competently instituted in Court within the required
confines of time.
Constitution of Kenya 2010
Article 157
i.
Whether the Applicants in the instant case

had established the threshold for prohibition
of a Prosecution case
(11) In exercising the powers conferred by this Article,

the Director of Public Prosecutions shall have regard to
the public interest, the interest of the administration of
justice and the need to prevent and avoid the abuse of
the legal process.
ii.
What constitutes abuse of power?
Criminal Procedure Code Cap 75
iii.
Whether there was a time limit for prohibition
Section 193 A
59
Notwithstanding the provisions of any other written

law, the fact that any matter in issue in any criminal
proceedings is also directly or substantially in issue in
any pending civil proceedings shall not be a ground for
any stay, prohibition or delay of the criminal proceedings.
Held
1. The role of judicial review in criminal trials
was limited. The Constitution did not give the

Office of the Director of Public Prosecutions
unlimited powers. The Constitution was clear
that in exercise of his powers the Director
of Public Prosecutions, the 1st Respondent
herein was to have regard to public interest,
the interests of the administration of justice
and the need to prevent and avoid abuse of
the legal process.
2. It was not necessary to explore exhaustively
the circumstances in which the occasions

for judicial review of a prosecutorial decision
would arise. A purported exercise of power
would be reviewable if it were made:
a) In excess of the DPPs constitutional or
statutory grants of power-such as an
attempt to institute proceedings in a
court established by disciplinary law
b) When, contrary to the provisions of the
Constitution, the DPP could be shown to
have acted under the direction or control
of another person or authority and to
have failed to exercise his or her own
independent discretionif the DPP were
to act upon a political instruction the
decision could be amenable to review.
c) In bad faith, for example, dishonesty. An
example would arise if a prosecution
were commenced or discontinued in
consideration of the payment of a bribe.
d) In abuse of the process of the court in
which it was instituted, although the
proper forum for review of that action
would ordinarily be the court involved.
e) Where the DPP has fettered his or her
discretion by a rigid policy e.g. one
that precludes prosecution of a specific
class of offences.
of the powers of the DPP, the Court had

the authority to ensure those powers were
exercised constitutionally and lawfully.
4. The exercise of prosecutorial power by the
Director of Public Prosecutions was subject

to the supervision of the Court. Whether a
prosecution would be quashed or prohibited
would therefore depend on the facts of each
case.
5. The existence of civil proceedings arising
out of the same set of facts was, however,

not in itself a bar to commencement or
continuation of criminal proceedings. The
question the court would therefore ask would
be whether an applicant had demonstrated
that a prosecution was contrary to the public
interest, the interests of the administration of
justice or amounted to an abuse of the legal
process.
6. Once it was demonstrated that the signatures
in the grant were not forged, the foundation

of the prosecutions case collapsed and there
was no need to continue with the trial. The
investigating officer crossed his boundaries
by recommending that the land in dispute be
allocated to a third party, into the jurisdiction
of the Court, which was already seized with
the issue of the ownership of the parcels of
land in question.
7. When those bestowed with power abused

those powers, they found themselves boxed
into corners like in the instant case. The
only conclusion was that the prosecution of
the Applicants was commenced with a view
to giving their opponents an upper hand in
the civil cases. This was not the purpose
for which the 1st Respondent was given
prosecutorial powers by the people of Kenya.
In such situations the Court had to exercise its
supervisory jurisdiction.
8. The prosecution of the Applicants was ongoing

and in the circumstances the prohibition of an
illegal prosecution had no time limits.
Application allowed, order of certiorari issued to quash

the criminal trial facing the Applicants, order of prohibition
issued to bar further prosecution, no order as to costs.
3. The powers of the DPP were found in the
Constitution and statute and they were to

be exercised within the constitutional and
statutory provisions. In view of the source
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Cases
Prerequisite for Foreign Contract of Employment
Charles Opati Ogeyo v W.E. Tilley (Muthaiga) Ltd 2011 [2014]

Cause No 393 of 2012
Industrial Court of Kenya at Nairobi
N Makau J
July 31st, 2014
Reported by Emma Kinya Mwobobia and Opiyo Lorraine
Brief Facts
The Claimant in the instant matter instituted
proceedings against the Respondent in respect
of work done for the Respondent in Tanzania. He
claimed that he was the Respondents employee and
that he had been posted in Tanzania to construct
a factory where he got injured and could no longer
perform his duties. He claimed that the Respondent
failed to renew his work permit and pay him the
necessary benefits. In addition he stated that he was
forced to sign a letter of resignation by the employer
and thus was the basis for his claim before Court. The
Respondent herein however denied the fact that the
Petitioner was his employee.
Issues
i. Whether the Claimant was the Respondents
employee
ii.
Whether the resignation of the Claimant was

constructive dismissal from employment
iii.
Whether the Respondent followed the

guidelines set out in the Employment Act in
terminating the employment services of the
Claimant
iv.
Whether the reason(s) for termination of the

Claimants employment were justified and
whether the same were fair.
v.
Whether there were any remedies available to

the Claimant
Employment Law foreign contracts status of a

person employed under a foreign contract - whether a
person who had been contracted for services in a foreign
country could be said to be an employee and whether
such a person was entitled to receive the requisite
employment benefits.
Employment Act 2007
Part XI
Section 83
A foreign contract of service shall be in the prescribed
form, signed by the parties thereto, and shall be attested

by a labour officer.
Section 84
A foreign contract of service shall not be attested unless
the labour officer is satisfied
(a) that the consent of the employee to the
contract has been obtained;
(b) of the absence of any fraud, coercion or
undue influence, and any mistake of fact, or
misrepresentation which might have induced the
employee to enter into the contract;
(c) that the contract is in the prescribed form;
(d) that the terms and conditions of employment
contained in the contract comply with the
provisions of this Act and have been understood
by the employee;
(e) that the employee is medically fit for the
performance of his duties under the contract;
and
(f) that the employee is not bound to serve under
any other contract of service during the period
provided in the foreign contract.
Section 85
(1) When the employer who enters into a foreign contract
of service does not reside or carry on business within
Kenya, the employer shall, or where the employer resides
in Kenya, the labour officer may require the employer to,
give security by bond in the prescribed form, with one or
more sureties resident in Kenya and approved of by the
labour officer for the due performance of the contract in
such sums as the labour officer considers reasonable.
(2) Where the employer has an authorized agent resident
in Kenya, the Minister may require that the security bond
specified in subsection (1) be given by the agent and the
61
agent shall personally be bound by the terms of the bond

notwithstanding the disclosure of his principal.
Held
1. The Claimant had no contract of service and if
indeed he was hired to work in Tanzania then
he ought to have obtained a contract in terms
of Section 83 and 84 of the Employment Act.
The records showed that the Claimant was not
an employee of the Respondent at the material
times. He thus had no valid claim against the
Respondent who had what appeared to be a
hawala system of payments.
2. The Claimant was not an employee of the
Respondent and his resignation did not

amount to a constructive dismissal from
appointment. The Respondent did not
terminate the services of the Claimant based
on the guidelines in the Employment Act.
3. As to whether the reason(s) for termination
of the Claimants employment were justified
and whether the same were fair, there was
no termination of employment and thus the
issue did not arise. Consequently there were
no remedies available to the Claimant.
Suit dismissed, no order as to costs.
The mandate to order investigation and prosecution is vested in the office of the Director
of Public Prosecutions
Silas Make Otuke v Attorney General & 3 Others
High Court of Kenya at Mombasa
C Meoli, E M Muriithi & M Muya, JJ
October 16, 2014
Reported by: Njeri Githanga Kamau & Charles Mutua

Brief facts
Prior to the General election of March 2013 in Kenya,
one Janet N.E Mbete had challenged the nomination
and candidature of the 1st Interested Party (Hon.
Hassan Ali Joho) as approved by Independent
Electoral Boundaries Commission (IEBC) Janet Ndago
Ekumbo Mbete v Hon Attorney-General & Others Nairobi
Petition 39 of 2013. The petitioner sought a declaration
that the 1st Interested Party and his running mate, the
2nd Interested Party (Hazel Ezabel Nyamoki Ogunde)
did not meet the basic academic qualification for the
governors office, namely a degree from a university
recognized in Kenya which was dismissed. The
IEBC proceeded to process the nomination papers
presented by the 1st Interested Party and issued him
and his running mate with a nomination certificate.
The Petitioner went back to court by filing the Mbete
Case seeking, inter alia, a declaration nullifying the
said nomination certificate and an order of prohibition
against the 1st Interested Party from contesting
position of Governor Mombasa County. By the date
the judgment was delivered on 15th March, 2013 the
general elections had been held. The Petition was
dismissed for want of evidence that the 1st Interested
Partys degree was fraudulently obtained.
Another Constitutional Petition by an unsuccessful

candidate, Nairobi Constitutional Petition no. 162
of 2013 Suleiman Said Shahbal v IEBC & 3 others the
latter who included the 1st Interested Party, was filed
in the same period to restrain the IEBC from, inter alia,
gazetting or swearing in the 1st Interested Party and
an order for the repeat of the elections. That Petition
was struck out and the Petitioner advised to file a
proper Election Petition which he did. The Mombasa
Election Petition No. 8 of 2013 Suleiman Said Shahbal
v IEBC & 3 Others, was unsuccessful.
The Petitioner in the current petition Silas Make Otuke
filed a Petition against the Attorney General, the
Independent Electoral and Boundaries Commission
(I.E.B.C.), as the first and second Respondents,
and Hon. Hassan Ali Joho and Hon. Hazel Ezabel
Nyamoki Ogunde, respectively the Governor and
Deputy Governor of the County of Mombasa, as the
1st Interested Party and 2nd Interested Party. The
Petitioner averred that the 1st Interested Party was
not qualified to be nominated to vie for the position
of Governor since he did not hold a degree certificate
from a recognized university and that his nominations
as a candidate and subsequent election to the office
of Governor constituted a nullity as per requirement
of the Elections Act. The Petitioners claims were
Cases
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62
based upon adverse findings through investigations

conducted by relevant authorities in Uganda. The
Petitioner contended that the 1st Interested Party
obtained nomination to vie for the Governors office in
a fraudulent manner and lacked capacity to nominate
the 2nd Interested Party as a running mate.
competent jurisdiction - no appeal brought against

that decision - whether the plea of res judicata was
available under the constitutional litigation procedure
for enforcement of constitutional provisions and
fundamental rights and freedoms.
Held
Issues
1. Whether the Petition was a disguised
nomination dispute/election petition or a

petition seeking the removal of a governor?
2. Whether the Petition was barred under the
doctrine of Res Judicata or issue estoppel in

view of the previous undisputed litigation,
in particular the Mbete case, Constitutional
Petition no.116 of 2013.
3. Whether the plea of res judicata was available

under the Constitutional litigation procedure
for enforcement of Constitutional provisions
and fundamental rights and freedoms.
4. Whether the Petition was tenable or liable for
striking out and if so whether the Court had

jurisdiction to strike it?
Constitutional Law fundamental rights and freedoms

enforcement of rights right to fair hearing and fair
administrative action, political right, right to equality
and protection from discrimination whether a civil suit
instituted by a private person seeking to enforce rights
and freedoms against the state could be curtailed by the
state hence violate the petitioners fundamental rights &
freedoms Constitution of Kenya, 2010, articles 2, 10,22,
25,48, 50, 165,209,210 258 & 259;
Election Law election petition - petition challenging
qualifications of elected governor - where petition
challenging the qualifications of elected governor was
brought as a constitutional petition alleging violation of
petitioners rights other than an election petition duty
of a party seeking to file an election petition to comply
with the rules and procedures set out in the Elections Act
and the Elections Rules - whether the constitutionally
mandated procedure for resolution of election petitions
can be circumvented by way of a petition alleging
violation of constitutional rights whether the Petition
was a disguised nomination dispute/election petition or
a petition seeking the removal of a governor.
Res judicata - essential elements of res judicata - same
parties - dispute between same parties - same cause
of action - matter previously adjudicated by a court of
a) The requirement for precise pleading was

the essence of rules 4 & 10 of the Mutunga
Rules upon which the Petitioner placed much
reliance. A clearer form of pleading would
have left little room for speculation regarding
the rights and fundamental freedoms that the
Petitioner sought to enforce under article 22
of the Constitution. A determination that the
dispute before court was electoral in nature
was of necessity a jurisdictional question.
The Courts jurisdiction was being invoked in
the matter under article 165 and 258 of the
Constitution, in a bid to enforce article 10
thereof, a narrow interpretation of article 165
(3)(d)(ii) as suggested by the Respondents
would run counter to article 259. Article
165 (3)(d)(ii) was broad enough, in proper
circumstances, to accommodate a review of
the actions of the IEBC and it mattered not
that the person elected had assumed office.
b) It was not discernible whether the Petitioner
was alleging contravention or infringement
of his political right, right to equality and
protection from discrimination, to fair hearing
and fair administrative action there being
no corresponding pleading in the body of
the Petition. However if the nomination of
the 1st Interested Party had subsequently
been shown to be tainted with illegality, it
was not an answer to say that the Court
had no jurisdiction and that it was too late
to raise a challenge. High Court rejected the
characterization of the Petition as primarily
an election dispute or a removal procedure.
Instead , it took the position that the Petition
as presented was on the face of it one brought
under article 258 and invoking article 165 (3)
(d)(ii) of the Constitution the subject matter
notwithstanding.
c) The principle of res judicata was entrenched
in section 7 of the Civil Procedure Act. The
principle of finality of court decisions was
emphasized by the fact that the conclusive
evidential character of decisions determining
63
any legal character or entitlement of a person

was statutorily underpinned under section
44 of the Evidence Act. Section 44 created a
rule of evidence as to admissibility and proof
existence of a judgment in rem giving effect to
the conclusive character of such a judgment
on the legal character or entitlement of a
person as at the time of the judgment. It did
not preclude such a judgment from being set
aside on appeal or review under the applicable
rules of the Court.
d) Although the Constitutional principles for fair
hearing under article 50 (1), access to justice
under article 48, promotion and protection
of the Bill of Rights under articles 22, and
enforcement of the Constitution under article
258 generally called for full inquiry into disputes
that might be resolved by operation of law
consistently with the rule of law, the principle
of res judicata as a cardinal principle for the
finality of litigation and for the prevention of
abuse of the Court process had to be in-built
in any Constitutional litigation that may be
preferred for that purpose. [Thomas v. The AG
of Trinidad and Tobago (1991) LRC (Const)
1001, cited in E.T. v. Attorney General & Anor.
[2012] eKLR]
e) The principle of res judicata was applicable
to Constitutional litigation and its relevance
was not affected by the substantial justice
principle of article 159 of the Constitution
which overrode technicalities of procedure.
The principle of finality or res judicata was a
matter of public policy and was one of the
pillars on which a judicial system was founded.
Once a judgment became conclusive, the
matters in issue covered thereby could not be
reopened unless fraud or mistake or lack of
jurisdiction was cited to challenge it directly
at a later stage. The principle was rooted to
the rationale that issues decided ought not be
reopened and had little to do with the merit of
the decision.(Mulla, Code of Civil Procedure, 18th
Ed. 2012 at p. 293)
f) A determination on a particular point giving
rise to issue estoppel was open to challenge on
the basis of fraud which vitiated the previous
courts finding on the point notwithstanding
that the said courts determination on the
point was in the nature of a judgment in rem.
In the present case, the Petitioner would be
entitled to bring evidence, such as that which
the Court in the Mbete case lamented was not

availed, to demonstrate that the 1st Interested
Partys degree certificate was fraudulently
obtained. Such evidence ought, however, to
have been of such nature as to convince the
Court that there was actual fraud as pleaded,
vitiating the judgment in the previous decision.
g) The finality of a decision was destroyed
by an appeal. However, a Notice of Appeal
was deemed an appeal for purposes only of
applications for stay of execution or injunction
pending appeal not for purposes of res judicata.
The court did not hear serious submissions as
to whether the decision was res judicata when
it was under review by the Court that made
it. However, on the principle that the decision
might be altered on review the matter could
not properly be said to have been finally
determined. In the present proceedings,
nothing turned on the status of the decision
as the Petitioner though pursued the same
reliefs as the Petitioner in the Mbete case, was
a different person and it had not been shown
that the two were parties litigating under
the same title or that one was a proxy of the
other. The matter of the 1st Interested Partys
qualification to be nominated and elected
as a governor was pending review before a
court of concurrent jurisdiction, although the
judgment of the Court was not res judicata,
good order in the justice system called for
the Constitutional Court to stay its hand until
the review proceedings were concluded and
ruling thereon delivered.
h) Although the Petitioner may have appealed
from the decision in the Mbete case, under
the provisions of the Court of Appeal Rules,
he could not have participated in the review
application as he was not a party to the High
Court Petition. The Petitioner was properly
entitled to approach the Court directly as
he had done in the Petition subject only
to the fulfillment on his part of applicable
requirements for the mounting of competent
Constitutional
proceedings.
In
those
circumstances the judgment in the Mbete
case could not operationalize res judicata to
the present Petition.
i) It was not in dispute that the 3rd Respondent
had finished his studies and had passed
the exams required for the conferment of a
degree in his area of study, being Business
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Cases
Management (Human Resource Management
Option) notwithstanding that he had not
formally graduated, it satisfied the court that
the 3rd Respondent held the qualifications
envisaged by section 22(2) of the Elections
Act and the Petitioner, despite all her spirited
efforts, had failed to bring evidence that the
3rd Respondent used fraudulent means to
obtain his degree. The court could therefore
not uphold the objections raised when
Kampala University and the Council for Higher
Education had said that the 3rd Respondent
was qualified.
j) The present Petition was based on fraud
allegedly discovered after the decision in
the Mbete case following inquiries made by
the Petitioner after he learnt of the Courts
decision that the 1st Interested Party was
holder of a valid degree certificate from
Kampala University. In accordance with case
law authority, the issue of fraud when proved
would justify the reopening of a matter or
issue which had been previously determined.
The defence of res judicata and issue estoppel
was not available where there was fraud.
k) Whereas the petition had been brought as a
Constitutional Petition under article 258 of
the Constitution, there was no escaping the
fact that what the Petition was essentially
alleging against the Interested Party and the
IEBC constituted not just any vague fraud but
a gross violation of the law; in fact criminal
offences. This if heard and determined, would
be denying the Director of Public Prosecutions
the Constitutional right of directing
investigations and prosecuting the alleged
crime of fraud. The nature and particulars
of fraud pleaded in the Petition manifested
themselves in the criminal offences of forgery
and uttering under sections 351 and 353 of
the Penal Code. The acts of collusion pleaded
against the IEBC amounted to criminal
offences of aiding and abetting the fraud both
under the Penal Code and the Elections Act.
l) The serious allegations required an intensive
fact finding inquiry. There were specific
guarantees under the Constitution and
the criminal law regime regulating pretrial (investigations) and trial process,
as underpinned under article 50 of the
Constitution. Those guarantees applied to all
persons under due process to ensure justice
and fairness. The Court like all other organs

of State was under an obligation to uphold the
Bill of Rights and to apply the Constitution in
a manner that promoted its purposes, values
and principles and also advanced the rule of
law, human rights and fundamental freedoms
in the Bill of Rights in the Constitution.
m) Notwithstanding the undisputed jurisdiction
of the Constitutional Court under article
258, the court was not persuaded that the
circumstances of the case warranted its
assumption and exercise of that jurisdiction.
Considering that it was an ideal case where the
Constitutional Court ought to have deferred
to other relevant bodies created under the
Constitution and to give them an opportunity
to exercise their respective mandates with
regard to the Petitioners complaint under the
Constitution, the 1st Interested Partys right
and indeed the right of every accused to a fair
trial in article 50 was one that was not subject
to limitation as per article 25. There were
competent State organs charged with the
responsibility of receiving and investigating
criminal complaints, laying charges before
courts which tried them in accordance with
the law.
n)
The mandate to order investigation and

prosecution was vested in the office of the
Director of Public Prosecutions pursuant to
article 157 of the Constitution. If the court
was to allow hearing and determination of the
issue of obtaining and of uttering a false degree
it was to be taken as denying the Director of
Public Prosecutions the Constitutional right
of directing investigations and prosecuting
the alleged crime of fraud. Even if rule 3(8) did
not exist, the court would take the position
that a premature invocation of the articles 165
(3)(d) (ii) and 258 of the Constitution which
gave the High Court jurisdiction to act, was
incompetent and an abuse of the process of
the Court. There was a long line of authorities
to the proposition that where a certain
procedure was prescribed for redressing a
grievance, such procedure had to be used and
taken to its logical conclusion.
o) The petitioner had the right to approach

the Court seeking the enforcement of
constitutional provisions regarding the
integrity of the 1st Interested Party within the
context of section 22 of the Elections Act.
65

However, should the allegations that the 1st

Interested Party by himself or with others
improperly obtained and utilized a degree
qualification to secure nomination be true,
it amounted to a reprehensible fraud on the
people of the County of Mombasa and Kenya

as a whole.
Petition struck out, Each party to bear its own costs.
Court Dismisses Petition Seeking to Block the Standard Gauge Railway Project
Okiya Omtatah Okoiti & 2 others v Attorney General & 3 others [2014] eKLR
Petition No 58 of 2014
High Court at Nairobi
I Lenaola, J
November 21, 2014
Reported by Nelson Tunoi & Riziki Emukule

Brief Facts:
The Ministry of Transport realizing the necessity of
constructing a railway line entered into a Memorandum
of Understanding on August 12, 2009 with China
Roads and Bridges Corporation (4th Respondent) in
which the latter was to undertake a feasibility study
on the construction of an electric railway system
spanning Mombasa-Nairobi. That feasibility study
was to be undertaken by the 4th respondent at its own
cost and if it turned out to be feasible, then they would
also help with financing the project.
Having thus presented the positive feasibility
report, the Cabinet decided that the project would
be undertaken under government to government
terms with the Chinese government offering part of
the loan through Exim bank, a Chinese government
owned bank. Accordingly, the 2nd and 4th Respondents
negotiated and signed two commercial contracts; one
for the Standard Gauge Railway (SGR) line and the
second one for the supply and installation of facilities,
locomotives and rolling stock with the total contract
sum for civil works and purchase and installation of
locomotives and rolling stock amounting to the sum
of Kshs. 327 Billion.
The Petitioners case was that the government erred
in awarding the contract to the same parties who
did the feasibility study without compliance to the
established procurement system, the SGR project
would lead to environmental degradation and also
that the 4th Respondent were not fit to be awarded the
tender since they had already been blacklisted by the
World Bank.
Issues:
i. Whether the Public Procurement and Disposal
Act was applicable with regard to negotiated
loans and grants between the Kenyan and
ii.
iii.
iv.
v.
vi.
Chinese governments.
Whether the consolidated petitions were
supported by valid documentary evidence
since the petitioners had failed to disclose
their sources.
Whether a party was entitled to use to their
advantage, stolen or irregularly obtained
documents in a manner that was prejudicial
to other parties in judicial proceedings.
Whether the Standard Gauge Railway (SGR)
project was detrimental to the environment.
Whether the Kenya Forest Service, the
National Museums and the Kenya Wildlife
Service (KWS) were consulted before the
implementation of the SGR project.
What was public interest litigation in the
context of the issue of costs?
Constitutional Law - fundamental rights and freedoms

- right to privacy - where the petitioners had obtained
confidential information relating to the contracts
between the respondents on the SGR project - whether
the petitioners had breached the respondents right
to privacy - principle of self-help - whether a party was
entitled to use to their advantage, stolen or irregularly
obtained documents in a manner that was prejudicial
to other parties in judicial proceedings - Constitution of
Kenya, 2010 article 35
Constitutional Law - fundamental rights and freedoms
- right to information - duty of the State to publish and
publicize any important information affecting the nation
- whether the information relating to the SGR project
sought to be relied on by the petitioners in prosecuting
the petition was valid where the documents relied upon
by the petitioners were illegally obtained and their source,
legitimacy and authenticity had not been disclosed by
the petitioners - Constitution of Kenya, 2010 article 31
Cases
66
Cases
Evidence Law - admissibility of evidence - primary and

secondary evidence - power of the court to exclude or
admit wrongfully obtained documents and information
-- evidence in the custody of public officers - proper relief
for court to grant when a party was relying on allegedly
wrongfully acquired documents - Evidence Act (cap 80),
sections 35, 80, 83
Procurement Law - international agreements government to government negotiated loans and grants
- whether the Public Procurement and Disposal Act was
applicable with regard to negotiated loans and grants
between the Kenyan and Chinese governments - Public
Procurement and Disposal Act section 6, 6(1)
Environmental Law - sustainable development environmental protection - whether the Standard Gauge
Railway project was detrimental to the environment
- whether the various agencies dealing with the
environment were consulted prior to the implementation
of the SGR project
Article 33 of the United Nations Convention Against
Corruption stated as follows with regard to whistle
blowers;
Each State Party shall consider incorporating
into its domestic legal system appropriate
measures to provide protection against any
unjustified treatment for any person who
reports in good faith and on reasonable
grounds to the competent authorities any
facts concerning offences established in
accordance with this Convention.
Section 6(1) of the Public Procurement and Disposal
Act stated;
Where any provision of this Act conflicts
with any obligations of the Republic of Kenya
arising from a treaty or other agreement to
which Kenya is a party, this Act shall prevail
except in instances of negotiated grants or
loans.
Held:
1. There was no conflict with the terms of the loan
from Exim Bank of China and the provisions of
the Public Procurement and Disposal Act since
section 6(1) of the Act did not apply in instances
of negotiated loans and grants and the Standard
Gauge Railway project (SGR project) was being
financed by a loan from the Chinese Government
through Exim bank of China.
2. For the SGR project to be funded by the Chinese
government, one of the terms of the contract

was that the 4th respondent had to be awarded
the tender. It was not for the court to interrogate
whether that particular term of the contract
was oppressive or not since Parliament had
already done so and found it to be lawful thus
the argument made by the petitioners that the
government was involved in restricted tendering
or indirect procurement was invalid.
3. The Public Procurement and Disposal Act did
not apply to the issues at hand since section 6(1)
was the law on which government to government
loans and grants were premised. Parliament must
have had good reason to exclude such loans and
grants from open tendering and generally from
the operations of the Public Procurement and
Disposal Act. The duty of the court was to interpret
the law as made by Parliament and not to rewrite
it to suit popular opinions or beliefs.
4. The Ethics and Anti-Corruption Commission
(EACC) was the appropriate body to undertake
investigations into the allegations of corruption in
the SGR project since the EACC had the mandate,
manpower and resources to properly investigate
allegations of corruption and it would be prudent
for the Petitioners to provide such information
as they may possess to the EACC and aid any
investigation that it may commence.
5. The court had jurisdiction to entertain the
petitioners claim as provided under article 165(3)
of the Constitution of Kenya, 2010, which gave
the court powers to entertain matters pertaining
to alleged breach of constitutional rights whereby
the petitioners had invoked the courts jurisdiction
to determine whether the acts of the respondents
in regard to the SGR project were in violation of
the Constitution.
6. The public servants who gave the petitioners
the documents they were relying on did not
fit the legal definition and conduct of whistle
blowers as per article 33 of the United Nations
Convention Against Corruption. Whistle blowers
were supposed to make reports, in good faith,
to competent authorities empowered by law to
act on their reports, any corrupt conduct on the
part of anyone. The Petitioners herein were not
the authorities so contemplated under article 33
above and as such the persons who gave them
the documents could not claim to be whistle
blowers.
7. The principle of self-help was generally not
67
accepted with regard to obtaining documents held

in confidence and the defense of good faith offered
by the Petitioners would not stand in the current
case since the Constitution of Kenya, 2010 under
article 35 provided that every citizen including
the Petitioners had a right to obtain information
held by the State. Article 22 of the Constitution of
Kenya, 2010 placed the obligation of requesting
for that information on the Petitioners, which
was to be disclosed to them unless there was
sufficient reason for non-disclosure thus use of
self-help clandestine means to gain information in
the face of clear constitutional mechanisms was
unwarranted.
8. The documents produced and relied on by the
Petitioners were meant for the Respondents and
the Exim Bank of China with certain confidential
communication between the parties, for
instance where the 2nd Respondent and the 3rd
Respondent had sought advice from the Attorney
General (1st Respondent), during the negotiations
leading to the impugned contracts.
9. It was a principle of public interest that such
advise ought to be written with utmost confidence
and if such communication were to be availed to
members of the public in unclear circumstances,
then it would be prejudicial to public interest,
however pertinent the issue may appear. The
Petitioners could not simply rely on information
that they obtained in unclear circumstances and
to allow them to do so would, defeat the very
essence of article 35 of the Constitution of Kenya,
2010 and the purposes it intended to achieve as
well as the rights of privacy enshrined in article 31
of the Constitution of Kenya, 2010.
10. Article 35(3) of the Constitution of Kenya, 2010
had mandated the State to publish information
affecting the Nation. The Petitioners could
properly compel the Government to publish the
information relating to the SGR project in the
event that it failed to do so and if that information
affected the Nation, they could properly seek the
courts intervention.
11. Article 31 of the Constitution of Kenya, 2010
granted every person the right to privacy which
right included the right not to have the privacy of
their communication infringed. In obtaining the
documents which the Petitioners were relying
on in the present petition, they violated the 2nd
Respondents right to privacy and also the privacy
of the communication between the State and
the Exim Bank of China. The public servants

who indeed clandestinely gave the Petitioners
the documents acted in violation of their Code of
Conduct and the Public Officers Ethics Act. Thus
the documents were all to be expunged from the
record.
12. Parliament was involved in the budgeting of
the funds to be utilized in the SGR project
since it had enacted the law that established a
Railway Development Levy Fund which would be
administered in accordance with the provisions of
section 25 of the Public Financial Management
Act, 2012. Thus the Public Finance Management
Act was not violated in the procurement of the
SGR project.
13. An Environmental Impact Assessment (EIA)
License was issued to the 4th Respondents on
February 5, 2013. The Government had also
conducted an autonomous environment impact
assessment on the SGR project and concluded
that the SGR project should proceed thus the
contention by the Petitioners that the SGR project
was detrimental to the environment lacked merit.
14. The Petitioners failed to state the law under
which the National Museums and Kenya Wildlife
Service (KWS) would have had to be specifically
consulted. They also failed to state how the SGR
project would have had an irreversible damage
to the environment and impact on cultural rights
so that the court could determine the issue
appropriately. Having expunged from the record
the letters the Petitioners were relying upon in that
regard, the court did not have reports from either
KWS or National Museums showing how the
environment, the ecosystem and cultural rights
would be affected by the SGR report thus there
was insufficient material upon which to determine
that aspect of the petition.
15. On the allegations by the Petitioners that the SGR
project had not ensured value for money since the
1st and 2nd Respondents had failed to exercise
due diligence, the argument was related more to
policy than clear issues of the law. The Court had
no mandate to make policy decisions nor could it
direct the Executive on the manner in which the
project was to be managed save that it could, in
the some instances, issue such directives as were
necessary in that regard. The instant case was
not one in which the Court could issue any such
directive.
16. If indeed there was corruption in the procurement
Cases
68
Cases
of the project or that value for money had not
been achieved, there were other bodies which had
been established to look into such issues, among
them the Ethics and Anti-Corruption Commission,
the Office of the Auditor General, the Controller
of Budget and the Parliamentary Committees on
Finance, which were well clothed with jurisdiction
on the subject.
17. The Court had the responsibility of ensuring that

parties did not file petitions in the guise of public
interest for ulterior motives. To countenance
such actions would be to promote an abuse of
the Court process. A party with a genuine claim
had to endeavour to make its claim known to
the Court for an appropriate redress. It was now

time to guard against parties who made reckless
claims and who thus ended up wasting judicial
time and dragging parties in court in unwarranted
litigation. Parties which approached the court
in the name of public interest litigation had to
demonstrate that they were acting bona fide and
not for personal gain or private motivation or
other oblique considerations. The Court would
not therefore allow its process to be abused by
persons having clandestine motives.
Petition dismissed, 2nd Respondents cross petition
allowed in part, each party to bear their own costs.
Action taken by an employer against an employee in the Public Sector does not fall within
the definition of administrative action under Article 47.
Prisca Kemboi & 2 others v Kenya Post Office Savings Bank [2014] eKLR
Petition 38 of 2013
Industrial Court of Kenya at Nairobi
L Ndolo, J
October 7, 2014
Reported by Njeri Githanga & Charles Mutua

Brief Facts
The Petitioners were all faithfuls of the Seventh Day
Adventist (SDA) Church and employees of the Kenya
Post Office Savings Bank, the Respondent herein. The
Seventh Day Adventists ordinarily observed Saturday
as their day of worship.
The dispute in the Petition arose from the requirement
by the Respondent that the Petitioners work on
Saturdays. The Petitioners pleaded that at the
commencement of their employment contracts,
their adherence to the SDA faith was made known
to the Respondent. Among the fundamental tenets
of the SDA faith was the observance of the hours
between sunset on Friday and sunset on Saturday as
a day of worship, also known as the Sabbath. Prior
to the dispute before the Court, the Petitioners had
not been required to work on Saturdays. In order to
accommodate the Petitioners, the Respondent had
generally allowed arrangements such as working
through the lunch break, working extra hours in the
evenings and on Sundays to compensate for the half
day work hours that the Petitioners did not serve on
Saturdays. However, the Respondent began to compel
the Petitioners to work on Saturdays. The Respondent
had also instituted disciplinary proceedings against

the Petitioners on account of failing to report to work
on Saturday. It was the Petitioners case that the
Respondents actions were in contravention of their
rights and freedoms as guaranteed in the constitution
of Kenya 2010.
Issues
1. Whether in requiring the Petitioners to work
on Saturdays, the Respondent had violated
the Petitioners rights under Article 32 of the
Constitution on rights to freedom of conscience,
religion, belief and opinion.
2. The extent to which the Petitioners rights to
freedom of conscience, religion, belief and opinion
under Articles 32 could be limited
3. Whether the Respondents past conduct
amounted to a waiver of its Terms and Conditions
of Service and Code of Conduct and operated as
an estoppel against the Respondent;
4. Whether the right to fair administrative action
under Article 47 of the constitution applies in
employment relationships in the public sector.
Constitutional Law - fundamental rights and
freedoms - freedom of worship -freedom against
69
discrimination - an alleged violation of the freedom

of worship -an alleged violation of freedom against
discrimination-where an employee is compelled
to attend work on his day of worship-Whether in
requiring the Petitioners to work on Saturdays, the
Respondent had violated the Petitioners rights
under Article 32 of the Constitution on freedom of
worship-Constitution of Kenya, 2010, article 27 and
32; Employment Act, 2007, section 5
Constitutional Law - fundamental rights and
freedoms-freedom of worship-limitation of the
freedom of worship-an alleged violation of the
freedom of worship-where an employer imposed
work on the employees day of worship-The extent to
which the Petitioners rights on freedom of worship
under Articles 32 could be limited-what justifications
were to be taken into account by an employer before
imposing work duties on an employees day of
worship-Constitution of Kenya 2010, article 24
Labour Law - employment law-employment
relationships-disciplinary
rules-discipline
of
employees-who is to discipline an employee for failure
to attend to work on his day of worship-whether an
employer could invoke his administrative disciplinary
proceedings against an employee for a misconduct
during worship day that was on a working day and
was not part of the terms and conditions of serviceWhether the right to fair administrative action under
Article 47 of the constitution applied in employment
relationships in the public sector.
Estoppel - doctrine of estoppel-meaning of the
doctrine and its application-waiver-meaning and the
application of the doctrine of waiver-dispute-whether
by allowing time off on Saturdays to the petitioners
to observe their day of worship, the Respondent
waived its policy and was therefore estopped from
demanding compliance by the Petitioners-Whether
the Respondents past conduct amounted to a waiver
of its Terms and Conditions of Service and Code of
Conduct and operated as an estoppel against the
Respondent.
Article 32
1. Every person has the right to freedom of conscience,
religion, thought, belief and opinion.
2.
Every person has the right, either individually or

in community with others, in public or in private,
to manifest any religion or belief through worship,
practice, teaching or observance, including
observance of a day of worship.
3. A person may not be denied access to any institution,
employment or facility, or the enjoyment of any right,

because of the persons belief or religion.
4. A person shall not be compelled to act, or engage
in any act, that is contrary to the persons belief or
religion.
Held
1. Courts were expected to consider the effect of their
decisions. That became more crucial in interpreting
and enforcing rights under the Constitution. The
Court was fully aware and had warned itself of the
inherent minefield in adjudicating the dispute in the
Petition. The fear expressed by the Respondent that
if the Court ruled in favor of the Petitioners, then other
employees would follow suit; pilots would refuse to
take to the skies, doctors would switch off dialysis
machines and chefs would refuse to cook on their
respective days of worship. That would definitely
result in industrial chaos. Court was called upon to
consider every dispute that came before it without
succumbing to judicial cowardice. In that spirit, the
issues rose in the Petition and had formed the opinion
that the Petitioners were seeking enforcement of
their individual rights under the Constitution and their
respective employment contracts. Those claims lend
themselves to adjudication on their own merit.
2. Matters of conscience and religion were uniquely
personal and for an employer to simply insist that
its employees had to report to work on Saturday and
therefore ignore their day of worship was to miss the
point. Considering the efforts made by the Petitioners
to secure their day of worship, including offering to
put in extra hours during the week, taking leave and
forfeiting salary showed the seriousness which the
Petitioners attached to their day of worship.
3. Employers had to exercise flexibility in handling staff
time off, one had to focus on what got done rather
than how many hours employees put in. In light of
advancement in technology, employers should have
indeed exercised flexibility in working hours in order
to accommodate deserving exemptions to human
resource policies.
4. Managers of institutions had to move from their
corner offices to the shop floor and address the
unique needs of employees for maximum returns.
An employee who was consistently denied the
opportunity to observe their day of worship would
not be productive. A human resource policy that
did not accommodate the unique spiritual needs
of employees was unreasonable and it matters not
that only a section of employees raised the issue.
Cases
70
Cases
Nevertheless, employees themselves had to also
exercise flexibility and be ready to attend to a sheep
or ox that fell into a ditch on the Sabbath. (Mathew
12:11 and Luke 14:5).
5. The effect of the Respondents policy on hours of

work was not to just limit the Petitioners rights
under article 32 but obliterated them altogether
and that flew right in the face of article 24 (2)(c) of
the Constitution which prohibited limitations that
derogated from the core and essential content of
rights and freedoms.
6. The Respondent created a legitimate expectation in
the Petitioners that they would be granted time off
on Saturdays to observe their day of worship. The
arrangements thus created became part of the Terms
and Conditions of Service of the Petitioners which
could not be varied by a general instruction from the
Human Resource Department. The Petitioners were
allowed time off on Saturdays by their supervisors
and the Respondent could not be heard to say that it
had no knowledge of that arrangement, there was no
evidence that the supervisors and managers involved
were found to have done the wrong thing. An employee
dealing with a senior official of an organization was
not expected to go into the corporate boardroom to
confirm whether the official in fact had authority to
do what he sought to do. [Michael Mwalo Vs Board
Some rights reserved by david brossard

of Trustees National Social Security Fund Cause No

1093 of 2012].
7. Action taken by an employer against an employee in
the Public Sector did not fall within the definition of
administrative action under Article 47. That did not
however diminish the rights of the employee under
the Constitution and applicable labor laws and in
the current case; the findings of the Court were not
affected by the interpretation accorded to article 47
of the constitution of Kenya 2010.
8. The Respondents actions were in violation of the
Petitioners right to observe their day of worship.
Orders
I.
The Respondent to review its policy on hours of

work in order to accommodate the Petitioners
right to observe their day of worship on
Saturday within acceptable limitations;
II.
Respondent by its managers, supervisors,

employees and/or agents restrained from
taking any disciplinary action against the
Petitioners on account of their observing
Saturday as a day of worship;
III.
The Respondent was to meet the costs of the

Petition.
71

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Cases
72
Research and Development Department
Supreme Court of Zimbabwe holds Government liable for failure to provide rape victim
with emergency contraception and awards her compensation
Mildred Mapingure v Minister of Home Affairs & 2 Others
Supreme Court of Zimbabwe
Before: Garwe JA, Gowora JA & Patel JA
Harare
March 25, 2014
Reported By Linda Awuor& Diana O. Kerubo
Brief Facts
On 4 April 2006, the appellant was attacked and raped
by robbers at her home in Chegutu. She immediately
lodged a report with the police and requested that she
be taken to a doctor to be given medication to prevent
pregnancy and any sexually transmitted infection.
Later that day, she was taken to hospital and attended
to by a doctor who only treated her injured knee saying
that he could only attend to her request for preventive
medication in the presence of a police officer.
He further indicated that the medication had to be
administered within 72 hours of the sexual intercourse
having occurred. She duly went to the police station
the following day and was advised that the officer
who dealt with her case was not available. She then
returned to the hospital, but the doctor insisted that
he could only treat her if a police report was made
available.
On 7 April 2006, she attended the hospital with another
police officer. At that stage, the doctor informed her
that he could not treat her as the prescribed seventy
two (72) hours had already lapsed. Eventually, on 5
May 2006, the appellants pregnancy was formally
confirmed.
Thereafter, the appellant went to see the investigating
police officer who referred her to a public prosecutor.
She indicated that she wanted her pregnancy
terminated, but was told that she had to wait until the
rape trial had been completed. In July 2006, acting
on the direction of the police, she returned to the
prosecution office and was advised that she required
a pregnancy termination order. The prosecutor in
question then consulted a magistrate who stated
that he could not assist because the rape trial had not
been completed. She finally obtained the necessary

magisterial certificate on 30 September 2006. By
that stage, the hospital matron who was assigned
to carry out the termination felt that it was no longer
safe to carry out the procedure and declined to do
so.Eventually, after the full term of her pregnancy,
the appellant gave birth to her child on 24 December
2006.
Issues:
i. Whether the respondents employees were
negligent in the manner in which they dealt
with the appellants predicament.
ii.
Whether any actionable harm was suffered as

a result of the negligence.
iii.
Whether the respondents were liable to the

appellant in damages for pain and suffering
and for the maintenance of her child.
iv.
Whether the responsibility for instituting

proceedings under Section 5(4)(a)(i),(ii) of
the Termination of Pregnancy Act in the
Magistrates Court lay with the relevant
authorities or the victim of the alleged unlawful
intercourse.
Tort Law-professional negligence-duty of care-breach of

duty of care-Whether the respondents employees were
negligent in the manner in which they dealt with the
appellants predicament.
Tort Law-professional negligence-duty of care-breach of
duty of care-loss suffered as a result of breach of duty of
care-Whether the appellant suffered any actionable harm
73

as a result of the negligence.

Termination of Pregnancy Act Cap15:10
Section 2 defines unlawful intercourse to mean
rape, other than rape within a marriage, and
sexual intercourse within a prohibited degree
of relationship, other than sexual intercourse
with a person referred to in para (i) or (j) of
subsection (1) of section 75 of the Criminal
Code
Section 4
Subject to this Act, a pregnancy may be terminated
a) where the continuation of the pregnancy so
endangers the life of the woman concerned or
so constitutes a serious threat of permanent
impairment of her physical health that the
termination of the pregnancy is necessary to
ensure her life or physical health, as the case
may be; or
b) where there is a serious risk that the child
to be born will suffer from a physical or
mental defect of such a nature that he will
permanently be seriously handicapped; or
c) where there is a reasonable possibility that
the foetus is conceived as a result of unlawful
intercourse.
Section 5
1) Subject to section seven, a pregnancy may
only be terminated by a medical practitioner
in a designated institution with the permission
in writing of the superintendent thereof.
2)
3) In the case of the termination of a pregnancy
on the grounds referred to in paragraph (c)
of section four, the superintendent shall give
the permission referred to in subsection (1)
on the production to him of the appropriate
certificate in terms of subsection (4).
4) A pregnancy may only be terminated on the
grounds referred to in paragraph (c) of section
four by a medical practitioner after a certificate
has been issued by a magistrate of a court
in the jurisdiction of which the pregnancy is
terminated to the effect that
a) he has satisfied himself
i.
that a complaint relating to the

alleged unlawful intercourse in
question has been lodged with

the authorities; and
ii.
after an examination of any

relevant documents submitted
to him by the authorities and
after such interrogation of the
woman concerned or any other
person as he may consider
necessary, that, on a balance
of
probabilities,
unlawful
intercourse with the woman
concerned has taken place and
there is a reasonable possibility
that the pregnancy is the result
of such intercourse; and
iii.
in the case of the alleged incest,

that the woman concerned is
related within the prohibited
degree to the person with
whom she is alleged to have
had incest; and
b) in the case of alleged rape or incest, the

woman concerned has alleged in an
affidavit submitted to the magistrate or
in a statement made under oath to the
magistrate that the pregnancy could be
the result of that rape or incest, as the
case may be.
Constitution of Zimbawe,2013
Section 327(2)(b)- International conventions,
treaties and agreements
It provides that an international treaty which has been
concluded or executed by the President or under the
Presidents authority does not form part of the law of
Zimbabwe unless it has been incorporated into the
law through an Act of Parliament.
Convention on the Elimination of All Forms of
Discrimination against Women1979.
Article 16.1(e ) guarantees the same rights to decide
freely and responsibly on the number and spacing of
their children and to have access to the information,
education and means to enable them to exercise
these rights.
United Nations Declaration on the Elimination of
Violence against Women
Article 4(d),(g)
It calls upon States to pursue a policy of eliminating
violence against women. To this end, women who
Research and Development

BB IIssue 26, July -Department
September 2014
74
are subjected to violence should be provided

with access to the mechanisms of justice and just
and effective remedies for the harm that they have
suffered as well as information on their rights
in seeking redress through such mechanismunder
paragraph (d). Furthermore, States should ensure
that female victims of violence have specialised
assistance, such as rehabilitation, assistance in child
care and maintenance, treatment, counselling, and
health and social servicesunder paragraph (g)).
Protocol to the African Charter on Human and
Peoples Rights on the Rights of Women in Africa
2003
Article 4.2(f)
It enjoins States Parties to take appropriate and
effective measures to establish mechanisms
and accessible services for effective information,
rehabilitation and reparation for victims of violence
against women.
Article 14-Health and Reproductive Rights
States Parties shall ensure that the right to health
of women, including sexual and reproductive health
is respected and promoted. This includes:the right
to control their fertility;the right to decide whether
to have children, the number of children and the
spacing of children;the right to choose any method
of contraception;the right to self-protection and to
be protected against sexually transmitted infections,
including HIV/AIDS;the right to be informed on ones
health status and on the health status of ones partner,
particularly if affected with sexually transmitted
infections, including HIV/AIDS, in accordance with
internationally recognized standards and best
practices;the right to have family planning education.
Article 14.2(c)
States Parties must take all appropriate measures
to protect the reproductive rights of women by
authorizing medical abortion in cases of sexual
assault, rape, incest.
Held:
1. The principles of aquilian liability for medical
negligence were summarized in the Edouard
and Murkheiber cases [Administrator Natal
v Edouard ] and [Mukheiber v Raath& Anor]
both of which arose in the specific context
of unwanted pregnancies. The test for
professional negligence as was provided
in the Murkheiber case for the purposes of
liability culpa arose if:
a. a reasonable person in the position of

the defendanti.
would have foreseen harm of

the general kind that actually
occurred;
ii.
would have foreseen the

general
kind
of
causal
consequence by which that
harm occurred;
iii.
would have taken steps to

guard against it; and
b. the defendant failed to take those

steps.
2. With respect to the liability of the police, in
the context of their prescribed functions and
duties, the opinion in the Ewels case [South
African case of Minister of Police v Ewels ] was
particularly instructive. It provided that there
was no general legal duty on a person to
prevent harm to another, even if such person
could easily prevent such harm, and even if
one could expect, on purely moral grounds,
that such person act positively to prevent
damage. However, it was accepted that in
certain circumstances there was a legal duty
on a person to prevent harm to another and if
he failed to comply with that duty, there was
an unlawful omission which could give rise to
a claim for damages.
3. An omission was regarded as unlawful
conduct when the circumstances of the
case were such that the omission not only
occasioned moral indignation but where the
legal convictions of the community required
that the omission be regarded as unlawful
and that the loss suffered be compensated
by the person who failed to act positively.
When determining unlawfulness, one was not
concerned with the customary negligence of
the bonus paterfamilias, but with the question
whether, all facts considered, there was a legal
duty to act reasonably.
4. The duty of the police could not be confined
to their statutorily prescribed functions. In the
specific circumstances of any given case, it
would be legally incumbent upon them to act
outside and beyond their ordinary mandate, so
as to aid and assist citizens in need, in matters

unrelated to the detection or prevention of
crime. Consequently, where such a legal
duty was found to exist, and harm that was
foreseeable eventuated from the failure to
prevent it, the victim of that harm would be
entitled to pursue and obtain appropriate
compensation through a claim for damages,
having regard in every case to considerations
of public policy.
5. In strict constitutional terms, the prescriptions
of international instruments could not operate
to override or modify domestic law unless and
until they were internalized and transformed
into rules of domestic law. This principle of
the common law was expressly codified in
Section 111B (1) (b) of the former Zimbabwe
Constitution and was now reaffirmed in
Section 327 (2) (b) of the new Zimbabwe
Constitution, 2013. Nevertheless, it was proper
and necessary for national courts, as part
of the judicial process, to have regard to the
countrys international obligations, whether or
not they had been incorporated into domestic
law. In the instant case, there were several
internationally recognised norms that had
a direct bearing on the issues.Though they
had not been specifically domesticated,it was
proper and instructive to have regard to them
as embodying norms of great persuasive
value in the interpretation and application of
the statutes and the common law.
6. As a general rule, the mandate of the police
was to prevent the commission of crimes
and to bring to book the perpetrators of
crime. Their functions in cases involving rape
would not ordinarily extend to the prevention
of potential pregnancy or the provision of
assistance in that process. Inaction of the
police in the instant case could not be treated
in isolation. It ought to have been seen in
conjunction with the conduct of the doctor
who treated the appellant after she was
raped. The doctor declined to administer
the preventive medication requested by the
appellant without a police report. However,
there was nothing in the record to show why
the doctor insisted on a police report or why
he regarded the period of 72 hours as being
critical. No plea filed of record or any other
evidence was provided to explain or support
the position adopted by the doctor.
75
7. There was a professional relationship between

the appellant and the doctor. The nature of
his duties required that he attended to all
the physical injuries arising from the sexual
assault inflicted upon her. Consequently,
as was postulated in Mukheibers case, the
doctor was under a special duty to be careful
and accurate in everything that he did and
said pertaining to his relationship with the
appellant. It behoved him to exercise that level
of skill and diligence possessed and exercised
at the time by the members of his profession.
A reasonable person in the position of the
doctor would have foreseen that his failure
to administer the contraceptive drug, or his
failure to advise the appellant on the alternative
means of accessing that drug, would probably
result in her falling pregnant. He should have
taken reasonable steps to guard against that
probability.
8. The police failed to compile the requisite
report or to accompany the appellant to the
doctor despite several spirited efforts by her
to obtain their assistance. The police were
very alive to the appellants predicament but
neglected to comply with her entreaties for
various administrative reasons that were not
entirely clear.These circumstances were such
as to create a legal duty on the part of the
police to assist the appellant in her efforts to
prevent her pregnancy. They failed to comply
with that duty. Their inaction amounted to
unlawful conduct by reason of their omission
to act positively in the circumstances before
them. They were under a legal duty to act
reasonably and they dismally failed to do so.
9. The provisions under the Termination of
Pregnancy Act required permission by the
superintendent of a designated institution
for the termination of pregnancy pursuant to
unlawful intercourse. The precondition for that
permission was the production of a certificate
from a magistrate within the same jurisdiction.
The issuance of a magisterial certificate was
preceded by a complaint having been lodged
with the authorities and the submission of
relevant documents by those authorities. The
term authoritieswas not defined in the Act but,
in the context of unlawful intercourse, i.e. rape
or incest, it would ordinarily apply to mean the
police authorities. The victim of the alleged
rape ought to have deposed to an affidavit or
76

make a statement under oath in addition to
being present for possible interrogation by the
magistrate.
10. It was the responsibility of the victim of the
alleged rape to institute proceedings for the
issuance of a magisterial certificate allowing
the termination of her pregnancy in terms of
Section 5 (4). The role of the police and the
prosecutor, upon request by the victim or
in response to a directive by the magistrate,
was to compile the relevant report and
documentation pertaining to the rape for
submission to the magistrate. The role of
the magistrate was to issue the requisite
certificate upon being duly satisfied in terms of
Section 5 (4), while that of the superintendent
of the designated institution was to authorize
its medical practitioner, upon production of
the certificate, to terminate the unwanted
pregnancy. It would also be necessary,
where appropriate, for thefunctionaries to
give accurate information and advice, within
the purview of their respective functions, to
enable the victim to terminate her pregnancy.
But thatwas as far as one could take the
responsibilities and duties of the relevant
authorities.
11. The duty of the prosecutors and magistrate
to act reasonably in the performance of their
functions did not extend to the giving of legal
advice, whether accurate or otherwise, to the
appellant. It was for her to have sought that
advice elsewhere, preferably from a lawyer
in private or paralegal practice, as soon as
possible after she became aware of her
pregnancy in May 2006. It followed that the
prosecutors and magistrate could not be
held liable for failing to take such reasonable
steps as would have been necessary for the
issuance of the requisite certificate. It also
followed that it was the appellants own failure
to institute the necessary application that
resulted in the inability to have her pregnancy
timeously terminated. Consequently, her
claim founded on the failure to terminate her
pregnancy ought to have failed as against all
three respondents.
12. With regard to the claim for damages for
pain and suffering and maintenance, having
regard to the broad principles of delictual
liability, there was no conceptual limitation
to allowing a claim in general damages for

foreseeable harm that eventuated from an
unwanted pregnancy. Such a pregnancy
could, depending on the circumstances of
its occurrence, constitute actionable harm.
Accordingly, the appellant was entitled to
prove general damages arising from the failure
to prevent her pregnancy. Similarly, there
could be no objection in principle to a claim for
delictual damages flowing from an unwanted
pregnancy. This would apply not only to the
costs of confinement and the physical pain of
delivery but also to the expense of maintaining
the child until it became self-supporting.
However, because the responsibility for taking
steps to terminate her pregnancy fell squarely
upon the appellants shoulders and the
capacity to do so also lay within her hands, the
respondents could not be called to account for
any subsequent pain and suffering endured
by the appellant, whether arising from her
continued pregnancy or the delivery of her
child or the period thereafter. The appellants
claim for damages ought to be limited to the
period between the date of her rape and the
date of confirmation of her pregnancy.
Orders
1. The appeal was partially allowed to
the extent that the dismissal of the
appellants claim for damages for pain
and suffering, arose from the failure
to prevent her pregnancy and was set
aside.
2. The claim for damages for pain and
suffering was remitted to the court a
quo for the grant of default judgment, in
such amount as the court would assess
and determine after due inquiry, together
with the question of costs.
3. The dismissal of the appellants claim
for damages for the maintenance of her
minor child was confirmed and upheld.
4. No order as to costs.
Relevance to Kenya
Constitution of Kenya
Article 43(1)(a)-Economic and Social Rights.
It provides that everyone has a right to the highest
77

attainable standard of health, which includes that

right to health care services, including reproductive
health care.
Further Article 43(2) provides that a person shall not
be denied emergency medical treatment.
Currently there are a number of statutes that regulate
the medical profession.These statutes have created
bodies that ensure that the public is protected by
ensuring that medical practitioners are qualified to
perform their duties with skill and diligence failure of
which amounts to professional misconduct.
i.
Medical Practitioners and Dentists Act.

This Act has constituted the Medical
Practitioners and Dentists Board. The Act has
also set regulations to govern the conduct
of disciplinary proceedings -The Medical
Practitioners and Dentists (Disciplinary
proceedings)(procedure)(Amendment)
Rules 2013.The Committee cannot award
compensation to the aggrieved party.
Compensation can only be granted by the
court.
ii.
Nurses Act
Section 18A(1)(f)(g) provides that a registered
nurse shall be culpable of professional
misconduct if such nursefails- to observe
and apply professional, technical, ethical or
other standards prescribed by the Council as
guidelines for practice by registered nurses;is
guilty of gross negligence in the conduct of
his professional duties.
iii.
Clinical Officers (Training, Registration and

Licensing) Act.
Pursuant to Section 15, clinical officers are
obliged to observe the Code of Professional
Conduct and Discipline issued by the Medical
Practitioners and Dentists Board under the
Medical Practitioners and Dentists Act (Cap.
253).
Section 15(2) of the Act provides thatthe
Council may, after inquiry, cancel the
registration and licence of any clinical officer,
if he is found guilty of any infamous or
disgraceful conduct in a professional respect,
or if he is convicted of conduct in any criminal
offence under this Act or any other written law,
which in the opinion of the Council amounts to
disgraceful conduct in a professional respect.

Medical practitioners are also bound by prescriptions
under International instruments which emphasize on
the need to adhere to international ethically accepted
standards in relation to health and medical practice.
Article 4.2(f) of the Protocol to the African Charter
on Human and Peoples Rights on the Rights of
Women in Africa 2003 enjoins States Parties to take
appropriate and effective measures to establish
mechanisms and accessible services for effective
information, rehabilitation and reparation for victims
of violence against women.
This case can be instructive in determination of
professional negligence suits especially against
medical practitioners and police and ensure reparation
to the victims especially of rape.
Reproductive Health.
The Reproductive Health Care Bill, 2014
suggestsproviding for the recognition of reproductive
rights; to set the standards of reproductive health
and provide for the right to make decisions regarding
reproduction free from discrimination coercion and
violence.
It guarantees access to contraception and family
planning services, including contraceptive options,
counseling, information and education.
Abortion
Zimbabwe.
Termination of Pregnancy Act Cap15:10
Section 4(c) provides for termination of pregnancy
where there is a reasonable possibility that the foetus
is conceived as a result of unlawful intercourse.
Termination is not just restricted to instances of
danger to the health of the mother but also covers
situations where there is a serious risk that the child
to be born will suffer from a physical or mental defect
of a nature that he will permanently be seriously
handicapped and pregnancy as a result of unlawful
intercourse i.e rape
Unlike Zimbabwe, Kenyan law does not envisage
termination of pregnancy as a result of rape and risk
of the child suffering from mental or physical defects.
Kenya unlike Zimbabwe under Section 5 of the
Termination of Pregnancy Act has no legislation
setting out the procedure granting authority to a
medical practitioner to terminate pregnancy. It
instead leaves the judgment(whether to terminate or
78
not) to the medical practitioner.

Article 26(4) Constitution of Kenya
Abortion is not permitted unless, in the opinion
of a trained health professional, there is need for
emergency treatment, or the life or health of the
mother is in danger, or if permitted by any other
written law.
The Reproductive Health Care Bill, 2014 under
Section 19 envisages instances when an abortion
can be procured: if a trained health professional,
Some rights reserved by warrenski
after consultation with the pregnant woman, is of

the opinion that the continued pregnancy would
endanger the health of the mother; or as a result of
the pregnancy the life or health of the mother is in
danger.
Police
The eighth schedule of the National Police Service
Act makes an officer liable for duties performed
negligently.
79
Human traffficking victim entitled to compensation for race discrimination in the course
of dismissal despite illegal entry to the United Kingdom
UK Supreme Court
Hounga v Allen & Another
On appeal from: [2012] EWCA Civ 609
Before: Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
July 30, 2014
Reported by Linda Awuor & Diana O. Kerubo
Brief Facts
The appellant, Miss Hounga of Nigerian nationality
resided in England since January 2007, when she
was about 14 years old.She came from Nigeria to the
United Kingdom(UK) under arrangements made by
the family of the respondent, Mrs Allen, who was of
joint Nigerian and British nationality and who resided
in England with her children.
Pursuant to the arrangements, in which the appellant
knowingly participated, her entry was achieved by her
presentation to UK immigration authorities of a false
identity and their grant to her of a visitors visa for six
months. For the following 18 months she lived in the
home of the respondent.
Although the appellant had no right to work in the
UK, after July 2007, no right to remain in the UK, the
respondent employed her, unpaid, to look after her
children in the home. There, the respondent inflicted
serious physical abuse on the appellant and told her
that, if she left the home, she would be imprisoned
because her presence in the UK was illegal.
In July 2008 the respondent forcibly evicted the
appellant from the home and thereby dismissed her
from the employment. This dismissal according to
the appellant was discriminatory against her on racial
grounds, namely on ground of nationality, and that
the respondent treated her less favourably than she
would have treated others.
The appellant made a variety of claims and complaints
against the respondent in the Employment Tribunal.
The one claim which the tribunal upheld was her
complaint of unlawful discrimination but only the part
of the complaint which related to her dismissal. In this
regard it ordered the respondent to pay compensation
to the appellant for the resultant injury to her
feelings. The Employment Appeal Tribunal on its part
dismissed the respondents cross-appeal against the
order. However the Court of Appeal upheld a further
cross-appeal brought by the respondent against it
and set it aside. The court held that the illegality of
the contract of employment formed a material part of
the appellants complaint and that to uphold it would

be to condone the illegality. The appellant, aggrieved
by the order of the Court of Appeal, lodged the appeal.
Issues:
i. Whether the appellant having participated
in an illegality, a claim for recovery from the
respondent for race discrimination and unfair
dismissal would be defeated.
ii.
United Kingdoms international obligations

on the rights of victims of human trafficking
before the UK courts and tribunals.
Contract Lawillegal contracts of employment- defence

of illegality - whether the appellants participation in
illegality could defeat a claim for recovery from the
respondent for race discrimination and unfair dismissal.
International Law - human trafficking-combatting human
trafficking and protection of victims-United Kingdoms
international obligations on the rights of victims of
human trafficking before the UK courts and tribunals.
Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children,
Supplementing the United Nations Convention
against Transnational Organized Crime (the Palermo
Protocol) signed in 2000 and ratified by the UK on 9
February 2006.
Article 3 defines trafficking :
a) Trafficking in persons shall mean the
recruitment, transportation, transfer,
harbouring or receipt of persons,
by means of the threat or use of
force or other forms of coercion, of
abduction, of fraud, of deception, of
the abuse of power or of a position
of vulnerability for the purpose of
exploitation. Exploitation shall include,
at a minimum, sexual exploitation,
forced labour or services, slavery or
practices similar to slavery, servitude
80

or the removal of organs;
b) The consent of a victim of trafficking
in persons to the intended exploitation
set forth in subparagraph (a) of this
article shall be irrelevant where any of
the means set forth in subparagraph
(a) have been used;
c) The
recruitment,
transportation,
transfer, harbouring or receipt of a child
for the purpose of exploitation shall
be considered trafficking in persons
even if this does not involve any of the
means set forth in subparagraph (a) of
this article.
Article 6(6)of the Palermo Protocol provides that

each State Party shall ensure that its domestic
legal system contains measures that offer victims
of trafficking in persons the possibility of obtaining
compensation for damage suffered.
The Council of Europe Convention on Action against
Trafficking in Human Beings CETS No 197 (the
Convention) was done in Warsaw on 16 May 2005
and, following ratification, the UK became obliged to
adhere to it, as a matter of international law, on 1 April
2009.
authorities are entitled not to prosecute or impose

penalties on victims of trafficking in human beings for
their involvement in criminal activities which they have
been compelled to commit as a direct consequence
of being subjected to [trafficking].
Held:
1. The application of the defence of illegality to a
claim founded on contract often had its own
complexities. But, in that it was unlawful and
a criminal offence under section 24(1)(b)(ii)
of the Immigration Act 1971 for the appellant
to enter into the contract of employment
with the respondent, the defence of illegality
in principle precluded her from enforcing it.
In that regard a claim for unfair dismissal
would require analysis different from a claim
for wrongful dismissal. But a claimant for
unfair dismissal was nevertheless seeking to
enforce her contract, including often securing
her reinstatement under it. No challenge was
brought to the conclusion of the tribunal
upheld by the appeal tribunal that the defence
precluded the appellants claim for unfair
dismissal. Equally there was no challenge to
the dismissal on that same basis of her claim
for unpaid wages.
Article 8 of the EU Directive
2. Unlawful discrimination was a statutory tort

in relation to discrimination in the field of
employment. The application of this defence
of illegality to claims in tort had however,
been highly problematic. Public conscience
test had for years been applied to claims in
both tort and contract.In [Saunders v Edwards]
the court held that a vendor could not rely
on the defence of illegality where he had
fraudulently represented to the purchasers.
This was regardless of the fact that the
parties had agreed to reduce the value of a
flat so as to enable the purchasers pay less
stamp duty. This test was later considered an
imponderable factor and the reliance test took
hold in [Tinsley v Milligan] where the court was
of the opinion that a claimant was entitled to
recover if he was not forced to plead or rely on
the illegality, even if it emerged that the title on
which he relied was acquired in the course of
carrying through an illegal transaction.
Member States shall, in accordance with the basic

principles of their legal systems, take the necessary
measures to ensure that competent national
3. The inextricable link test was developed

in relation to tort and particularly was
to be applied to complaints of unlawful
Among the purposes of the Convention, set out in

article 1, are the prevention of trafficking, the protection
of the human rights of victims and the design of a
comprehensive framework for their protection and
assistance. By article 4, the Convention imports the
definition of trafficking set out in the Palermo Protocol.
Article 15 provides that each party shall provide, in its
internal law, for the right of victims to compensation
from the perpetrators.
Article 26 provides that each party shall, in accordance
with the basic principles of its legal system, provide
for the possibility of not imposing penalties on
victims for their involvement in unlawful activities, to
the extent that they have been compelled to do so.
Article 4(1),(2) of the European Convention on
Human Rights provides that no one shall be held in
slavery or servitude and that no one shall be required
to perform forced or compulsory labour.
81
discrimination. In [Vakante v Governing Body

of Addey and Stanhope School] matters of
fact and degree had to be considered: the
circumstances surrounding the applicants
claim and the illegal conduct, the nature and
seriousness of the illegal conduct, the extent
of the applicants involvement in it and the
character of the applicants claim were all
matters relevant to determining whether the
claim was so inextricably bound up with the
applicants illegal conduct that, by permitting
the applicant to recover compensation, the
tribunal would appear to condone the illegality.
4. The Court of Appeal was of the view, that the
appellants complaint was inextricably linked
to her own unlawful conduct. The respondent
and the appellant were equal participants in
entry into the illegal contract of employment.
Whichever party bore the greater responsibility
for making of the illegal contract, was a willing
participant in it. If, indeed, the test applicable
to the respondents defence of illegality was
that of the inextricable link, then this link was
absent. Entry into the illegal contract on 28
January 2007 and its continued operation
until 17 July 2008 provided, only in the context
in which the respondent then perpetrated the
acts of physical, verbal and emotional abuse
by which, among other things, she dismissed
the appellant from her employment.
5. The defence of illegality rested upon the
foundation of public policy. It was therefore
necessary to ask first what aspect of public
policy which founded the defence and second
to ask whether there was another aspect
of public policy to which application of the
defence would run counter.
6. On the first question, concern to preserve the
integrity of the legal system was a helpful
rationale of the aspect of policy which founded
the defence but the considerations of public
policy which militated in favour of applying
the defence so as to defeat the appellants
complaint scarcely existed.
Therefore:
a. The tribunals award of compensation
to the appellant did not allow her to
profit from her wrongful conduct in
entering into the contract. It was an
award of compensation for injury

to feelings consequent upon her
dismissal, in particular the abusive
nature of it.
b. The award did not permit evasion of
a penalty prescribed by the criminal
law. The appellant had not been
prosecuted for her entry into the
contract and, even had a penalty been
thus imposed upon her, it would not
represent evasion of it.
c. The award did not compromise
the integrity of the legal system by
appearing to encourage those in the
situation of the appellant to enter into
illegal contracts of employment.
d. The application of the defence of
illegality so as to defeat the award
would compromise the integrity of
the legal system by appearing to
encourage those in the situation of
the respondent to enter into illegal
contracts of employment. It would
possibly engender a belief that they
could even discriminate against such
employees with impunity.
7. On the second question, the facts disclosed
that the respondent and her family were guilty
or close to being guilty of trafficking the
appellant from Nigeria to England. As required
under Article 4 of the European Convention
on Human Rights the UK authorities were
striving in various ways to combat trafficking
and to protect its victims. Parliament had
provided,section 71 of the Coroners and
Justice Act 2009 which extended to England,
Wales and Northern Ireland, that it was a
specific criminal offence to hold a person in
slavery or servitude or to require her or him
to perform forced labour. The decision of the
Court of Appeal to uphold the respondents
defence of illegality to her complaint ran
strikingly counter to the prominent strain of
present public policy against trafficking and
in favour of the protection of its victims. The
public policy in support of the application of
that defence, to the extent that it existed at all,
ought to have given way to the public policy to
which its application was an affront and the
appellants appeal should have been allowed.
82
As per LORD HUGHES with whom LORD CARNWATH

joined
8. The claim of statutory tort in the instant case
was set in the context of the claimants unlawful
immigration, but there was not a sufficiently
close connection between the illegality and
the tort to bar her claim. Contrary her claim to
recover for breach of contract of employment
or, by statutory extension, for unfair dismissal,
when such claims depended on a lawfully
enforceable contract of employment but her
whole employment was forbidden and illegal.
9. United Kingdom was bound by a series of
international instruments, all of which adopted
the same definition of trafficking. Under the
instruments transportation amounted to
trafficking if, in the case of an adult it was:
a. accomplished by threat, force,
deception or the other forms of
coercion referred to; and
b. only if it was undertaken with a view to
exploitation, in the sense defined.
In the case of a child, (b) sufficed. Assuming
that the appellant was a child at the time,
which seemed overwhelmingly likely, it
remained necessary that the transportation
was undertaken with a view to her exploitation.
Her subsequent exploitation was no doubt
evidence of a prior intent on the part of the
respondent, but it was not conclusive, and the
tribunal made no finding.
10. The internationally recognised rule was clear,
as was English criminal law. The trafficked
victim, was not relieved of criminal liability
for an offence which she had committed. If,
however, she was compelled to commit it
as a direct consequence of being trafficked,
careful consideration ought to have been
given to whether it was in the public interest to
prosecute her. In the present case, there was
no finding that the appellant was compelled
to commit the immigration offences which
she committed; the tribunal found that she
was well aware of what she was doing and
voluntarily did it in the hope of advantage.
Young as she clearly was, she was no doubt
under the influence of the respondent and
that would constitute very real mitigation
if punishment were in question. But her
trafficking, did not take away the illegality of

what she knowingly did.
11. The requirement under Article 6(6) of the
Palermo Protocol that each State Party
ensured that its domestic legal system
contained measures that offered victims
of trafficking in persons the possibility of
obtaining compensation for damage suffered
was impossible to interpret that international
obligation as requiring English law to permit
the appellant to recover damages for the
statutory tort of discrimination. That statutory
tort was not in any sense co-extensive with
trafficking or for that matter with exploitation.
It would also be impossible to interpret the
article as requiring English law to depart
from its general principles of illegality so as
to enable a person such as the appellant to
recover wages under an unlawful contract of
employment.
12. The appellant therefore succeeded in
her appeal, on the ground that there was
insufficiently close connection between her
immigration offences and her claims for the
statutory tort of discrimination, the former
merely provided the setting or context in
which that tort was committed, and to allow
her to recover for that tort would not amount
to the court condoning what it otherwise
condemned.
Relevance to Kenya
This case sets precedence in the enforcement of
rights of victims of human trafficking (both for Kenyan
citizens in other States and illegal aliens in Kenya).
Kenya Citizenship and Immigration Act is clear on
the position of illegal aliens in Kenya. Under Section
45(1) illegal aliens are not to be employed.
Section 45(1) no person shall employ: a foreign
national who entered Kenya illegally, a foreign
national whose status does not authorize him or
her to engage in employment, a foreign national on
terms, conditions or in a capacity different from those
authorized in such foreign nationals status.
It also declares void and of no effect any entry
permits, passes, certificates or other authorities
obtained by fraud, misrepresentation, concealment or
nondisclosure.
Section 42
Any entry permit, pass, certificate or other authority,

whether issued under this Act or under the repealed
Acts, which has been obtained by or was issued in
consequence of fraud or misrepresentation, or the
concealment or nondisclosure, whether intentional
or inadvertent, of any material fact or circumstance,
shall be and be deemed always to have been void and
of no effect and shall be surrendered to the service for
cancellation.
Section 41-Invalidation of a work or residence permit
1) Where a permit has been issued to a person,
and that person
a) fails, without the written approval of the
Director, to engage within ninety days of
the date of issue of the permit or of that
persons entry into Kenya, whichever is
the earlier, in the employment, occupation,
trade, business or profession in respect of
which the permit was issued or take up
residence;
b) ceases to engage in the said employment,
occupation, trade, business or profession;
or
c) engages in any employment, occupation,
trade business or profession, whether
or not for remuneration or profit, other
than the employment, occupation, trade,
business or profession referred to in
paragraph (a),
the permit shall cease to be valid and the
presence of that person in Kenya shall be
unlawful, unless otherwise authorized under
this Act.
Kenya is also bound by various international
obligations in the prevention of human trafficking
and protection of victims of trafficking. As a member
state to the Palermo Protocol, Kenya is for instance
put under obligation to ensure that its domestic
legal system contains measures that offer victims
of trafficking in persons the possibility of obtaining
compensation for damage suffered.
83
of trafficking in persons when the person recruits,

transports, transfers, harbours or receives another
person for the purpose of exploitation by means of:
threat or use of force or other forms of coercion,
abduction, fraud, deception, abuse of power or of
position of vulnerability, giving payments or benefits
to obtain the consent of the victim of trafficking in
persons or giving or receiving payments or benefits
to obtain the consent of a person having control over
another person.
Section 3(2) further, provides that the consent of
a victim of trafficking in persons to the intended
exploitation shall not be relevant where any of the
means set out in subsection (1) have been used.
Under Section 3(3), the recruitment, transportation,
transfer, harbouring or receipt of a child for the
purposes of exploitation shall be considered
trafficking in persons even if this does not involve
any of the means set out in subsection (1) of this Act.
Section 6-Acquisition of travel documents by fraud
or misrepresentation
A person who knowingly misrepresents any fact
for purposes of facilitating the acquisition of travel
documents or fraudulently obtains any document
from Government agencies, in order to assist in the
commission of an offence of trafficking in persons
commits an offence and is liable to imprisonment
for a term of not less than ten years or to a fine of
not less than ten million shillings or to both and upon
subsequent conviction, to imprisonment for a term of
not less than ten years without the option of a fine.
Victim Protection Act aims to provide protection of
victims of crime and abuse of power, and to provide
them with better information and support services, to
provide for reparation and compensation to victims
and to provide special protection for vulnerable
victims.
This Act gives effect to Article 50(9) of the Constitution
which requires Parliament to enact legislation
providing for the protection, rights and welfare of
victims of offences.
The Counter-trafficking in Persons Act

Section 3 provides that a person commits the offence
84
UK Supreme Court holds that secret commission received by an agent is held by that
agent in trust for his principal
FHR European Ventures LLP and others v Cedar Capital Partners LLC
Before: Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge,
Lord Collins
July 16, 2014
Reported by Linda Awuor & Diana O. Kerubo
Brief Facts
On 22 December 2004, FHR European Ventures LLP
purchased the issued share capital of Monte Carlo
Grand Hotel SAM from Monte Carlo Grand Hotel Ltd
(the Seller) for 211.5m. The purchase was a joint
venture between the claimants, for whom FHR was
the vehicle. Cedar Capital Partners LLC provided
consultancy services to the hotel industry, and it
had acted as the claimants agent in negotiating
the purchase. Cedar accordingly owed fiduciary
duties to the claimants. Cedar had also entered into
an Exclusive Brokerage Agreement with the Seller,
which provided for the payment to Cedar of a 10m
fee following a successful conclusion of the sale and
purchase of the issued share capital of Monte Carlo
Grand Hotel SAM. The Seller paid Cedar 10m on or
about 7 January 2005.
On 23 November 2009 the claimants began
proceedings for recovery of the sum of 10m from
Cedar. The main issue at trial was whether Cedar
had made proper disclosure to the claimants of the
Exclusive Brokerage Agreement. It was found against
Cedar on that issue, and made a declaration of liability
for breach of fiduciary duty on the part of Cedar for
having failed to obtain the claimants fully informed
consent in respect of the 10m, and ordered Cedar to
pay that sum to the claimants. However, a proprietary
remedy was not granted to the claimants in respect
of the monies.
The claimants successfully appealed to the Court of
Appeal, who made a declaration that Cedar received
the 10m fee on constructive trust for the claimants
absolutely. Cedar appealed to the Supreme Court.
Issue:
Whether a bribe or secret commission received by an
agent is held by the agent in trust for his principal, or
whether the principal merely has a claim for equitable
compensation in a sum equal to the value of the bribe
or commission.
Agency Law- principal-agent relationship-fiduciary dutyduty to disclose secret commission- whether a bribe or
secret commission received by an agent is held by the

agent in trust for his principal, or whether the principal
merely has a claim for equitable compensation in a sum
equal to the value of the bribe or commission.
Held:
1. The three principles taken from the classic
summary of the law in [West Building Society v
Mothew [1998] Ch 1, 18] were not in doubt:
a. An agent owes a fiduciary duty to his
principal because he is someone who
has undertaken to act for or on behalf
of [his principal] in a particular matter
in circumstances which give rise to a
relationship of trust and confidence;
b. as a result, an agent must not make
a profit out of his trust and must not
place himself in a position in which his
duty and his interest may conflict; and
c. a fiduciary who acts for two principals
with potentially conflicting interests
without the informed consent of
both is in breach of the obligation of
undivided loyalty; he puts himself in a
position where his duty to one principal
may conflict with his duty to the other.
2. Another established principle, which applied
where an agent received a benefit in breach
of his fiduciary duty, was that the agent was
obliged to account to the principal for such a
benefit, and to pay, in effect, a sum equal to
the profit by way of equitable compensation.
The principals right to seek an account
undoubtedly gave him a right to equitable
compensation in respect of the bribe or
secret commission, which was the quantum
of that bribe or commission (subject to any
permissible deduction in favour of the agent
for example for expenses incurred). That was
because where an agent acquired a benefit in
breach of his fiduciary duty, the relief accorded
85
by equity was, primarily restitutionary or

restorative rather than compensatory. The
agents duty to account for the bribe or secret
commission represented a personal remedy
for the principal against the agent. However,
the relevant point was that, in some cases
where an agent acquired a benefit which came
to his notice as a result of his fiduciary position,
or pursuant to an opportunity which resulted
from his fiduciary position, the equitable rule
(the Rule) was that he was to be treated as
having acquired the benefit on behalf of his
principal, so that it was beneficially owned by
the principal. In cases where the rule applied,
the principal had a proprietary remedy in
addition to his personal remedy against the
agent, and the principal could elect between
the two remedies.
3. What was in dispute in the instant case was
the extent to which the Rule applied where
the benefit was a bribe or secret commission
obtained by an agent in breach of his fiduciary
duty to his principal. On the one hand, the
appellant contended, that the Rule should not
have applied to a bribe or secret commission
paid to an agent, because it was not a benefit
which could properly be said to be the property
of the principal. On the other hand, it was
suggested by the respondent, that the Rule
did apply to bribes or secret commissions
received by an agent, because, in any case
where an agent received a benefit, which was,
or resulted from, a breach of the fiduciary
duty owed to his principal, the agent held the
benefit in trust for the principal.
4. It was not possible to identify any plainly right
or plainly wrong answer to the issue of the
extent of the Rule, as a matter of pure legal
authority. The respondents formulation of the
Rule had the merit of simplicity: any benefit
acquired by an agent as a result of his agency
and in breach of his fiduciary duty was held in
trust for the principal. On the other hand, the
appellants position was more likely to result
in uncertainty. Wider policy considerations
also supported the respondents case that
bribes and secret commissions received by
an agent should be treated as the property of
his principal, rather than merely giving rise to
a claim for equitable compensation. Secret
commissions were also objectionable as they
inevitably undermined trust in the commercial
world. Accordingly, one would expect the

law to be particularly stringent in relation to
a claim against an agent who had received a
bribe or secret commission.
5. The argument by the respondents was that the
Rule would prejudice the agents unsecured
creditors, as it would serve to reduce the
estate of the agent if he became insolvent.
While the point had considerable force in some
contexts, it had limited force in the context of a
bribe or secret commission. In the first place,
the proceeds of a bribe or secret commission
consisted of property which should not have
been in the agents estate at all. Secondly,
the bribe or commission would very often
have reduced the benefit from the relevant
transaction which the principal would have
obtained, and therefore could fairly be said
to be his property. A principal whose agent
had obtained a bribe or secret commission
should have been able to trace the proceeds
of the bribe or commission into other assets
and to follow them into the hands of knowing
recipients.
6. The considerations of practicality and principle
supported the respondents case, namely that
a bribe or secret commission accepted by an
agent was held in trust for his principal. The
position was perhaps rather less clear when
one examined the decided cases. Indeed,
taken as a whole, the authorities favoured the
respondents case.
7. If one concentrated on the issue of bribes
or secret commissions paid to an agent or
other fiduciary, the cases, with the exception
of Tyrell [Tyrrell v Bank of London(1862)10 HL
Cas 26], were consistently in favour of such
payments being held in trust for the principal
or other beneficiary until the decision in Heiron
[Metropolitan Bank v Heiron (1880)5 Ex D 319]
which was then followed in Lister [Lister & Co v
Stubbs (1890)45 Ch D 1].
8. As for the domestic cases subsequent to
Lister, they were all explicable on the basis
that it was either conceded or decided that
the reasoning in Lister was binding. Further,
even after Lister, cases were being decided
in which it seemed to have been accepted
or decided that where an agent or other
fiduciary had a duty to account for a benefit
86

obtained in breach of his fiduciary duty, the

principal was entitled to a proprietary interest
in the benefit. The decision in Tyrrell ought
not stand in the way of the conclusion that
the law took a wrong turn in Heiron and Lister,
and that those decisions, and any subsequent
decisions, at least in so far as they relied on or
followed Heiron and Lister, should be treated
as overruled.
Appeal dismissed.
Relevance to Kenya
This case influences the principal- agent
relationship in relation to any secret commission
or bribe acquired by the agent pursuant to an
opportunity which results from his fiduciary
position.
The established rule has been that the agent in
such position was required to account to the
principal for such benefit and to pay a sum equal
to the profit by way of equitable compensation.
This case however saw the shift in reasoning
where the court held that a bribe or secret
commission accepted by an agent is held in trust
for his principal and therefore the principal has a
proprietary claim to it.
According to the court, if the bribe or commission
is held in trust, the principal has a proprietary
claim to it, whereas if the principal merely has a
claim for equitable compensation, the claim is not
proprietary.
The distinction according to the court is significant
for two main reasons:
First, if the agent becomes insolvent, a
proprietary claim would effectively give
the principal priority over the agents
unsecured creditors, whereas the principal
would rank pari passu, i.e equally, with other
unsecured creditors if he only has a claim for
compensation.
Secondly, if the principal has a proprietary
claim to the bribe or commission, he can trace
and follow it in equity, whereas a principal with
a right only to equitable compensation would
have no such equitable right to trace or follow.
Anti-corruption and Economic Crimes Act
Section 38(1) defines an agent as any person who,
in any capacity, and whether in the public or private
sector, is employed by or acts for or on behalf of
another person. It also defines a principal as a person
whether in the public or private sector, who employs

an agent or for whom or on whose behalf an agent
acts.
Section 39-Bribery involving agents
1) This section applies with respect to a benefit
that is an inducement or reward for, or
otherwise on account of, an agent
a. doing or not doing something in
relation to the affairs or business of
the agents principal; or
b.
showing or not showing favour or

disfavour to anything, including to
any person or proposal, in relation to
the affairs or business of the agents
principal.
2) For the purposes of subsection (1)(b), a

benefit, the receipt or expectation of which
would tend to influence an agent to show
favour or disfavour, shall be deemed to be
an inducement or reward for showing such
favour or disfavour.
3) A person is guilty of an offence if the person
a. corruptly receives or solicits, or
corruptly agrees to receive or solicit,
benefit to which this section applies;
or
b. corruptly gives or offers, or corruptly
agrees to give or offer, a benefit to
which this section applies
Section 42-Conflicts of interest
1) If an agent has a direct or indirect private
interest in a decision that his principal is to
make the agent is guilty of an offence if
a. the agent knows or has reason to
believe that the principal is unaware
of the interest and the agent fails to
disclose the interest; and
b. the agent votes or participates in the
proceedings of his principal in relation
to the decision.
Compensation and Recovery of Improper Benefits
Section 51-Liability for compensation
A person who does anything that constitutes
corruption or economic crime is liable to anyone who
suffers a loss as a result for an amount that would be

full compensation for the loss suffered.
Section 52. Liability for improper benefits
A person who receives a benefit the receipt of which
would constitute an offence under section 39, 40 or 43
is liable, for the value of the benefit, to them following
persons
a) if the receipt constitutes an offence under
section 39, to the agents principal;
87
This case may assist in clarifying the principal agent

relationship in so far as secret commission or bribes
are concerned.
b)
c)
The Uganda Anti-Homosexuality Act, 2014is Unconstitutional for having been passed in
Contravention of Legislative Procedure, Court rules.
Prof. J. Oloka-Onyango & 9 Others v Attorney General of Uganda
Constitutional Court of Uganda

Kavuma S.B.J. (Ag. DCJ), Nshimye A.S. (JA/CC), Mwangusya E. (JA/CC), Opiyo R.A. (JA/CC), Balungi S.
(JA/CC)
1St August 2014
Reported by Monica Achode
Brief Background
The Uganda Anti-Homosexuality Act, 2014 was
passed by theParliament of Ugandaon 20 December
2013 with the death penalty proposal dropped in
favour of life in prison. The bill was signed into law
by the President of Uganda on 24 February 2014.
The legislation broadened the criminalization
of same-sex relations in Uganda domestically, and
included provisions for extraditing Ugandans who
engaged in same-sex relations outside of Uganda.
It included penalties for individuals, companies,
media
organizations,
or
non-governmental
organizations that had knowledge of gay people or
supportLGBT rights.
The petitioners moved the Constitutional court
alleging amongst other issues that the enactment of
the Anti-Homosexuality Act 2014 by the 9th Parliament
on 20th December 2013, without quorum in the house
was in contravention of Articles 2(1) & (2), 88 and
94(1) of the Constitution of the Republic of Uganda
and Rule 23 of the Parliamentary Rules of Procedure.
It was submitted on behalf of the petitioners that the
process, procedure, and manner of the enactment
of the Anti Homosexuality Act, particularly the
proceedings of the 9th Parliament on December 20th
2013, was in contravention of and inconsistent with

the provisions of Articles 88 (1), 94 of the Constitution
of the Republic of Uganda and in violation of Rule 23
of the Rules of Procedure of the 9th Parliament.
The respondents on their part submitted that there
was no evidence to prove that there was no Coram
and that the burden to prove that fact rested with the
Petitioners. In their facts however the respondent had
not specifically denied the said allegations of violation
and lack of Coram.
Issues Before the Court:
i.
ii.
Was the Anti Homosexuality Act, 2014 passed in

accordance with the law?
Whether the petitioners proved that during the
enacting process of the Anti Homosexuality Act,
the Speaker ignored to invoke Rule 23 when the
objection was raised that there was no quorum
at the time the Bill was put to vote
Constitution Law interpretation of Constitutional

provisions rule to be exercised in interpreting the
constitution as a whole supremacy of the constitution
Constitution of the Republic of Uganda 1995 Articles
2(1) and (2) and 88
88
Legislation legislative process the process, procedure

and manner of enacting legislation in Uganda doctrine
of legislative sovereignty Coram to be present when
enacting law burden of proof in showing that there was
no Coram exceptions to the rule of the burden of proof Constitution of the Republic of Uganda Articles 88 (1), 94
Words and phrases Coram definition of Coram;
Parliamentary Rules of Procedure Rule 23
Held:
1. The burden to produce evidence and prove
that there was no Coram rested with the
Petitioners who alleged the violation of
the various provisions of the Constitution
and Rules of Procedure of Parliament. The
exception to the above Rule was that where
one had alleged a fact and the person against
whom the fact was alleged, did not deny, he
was presumed to have accepted that fact.
2. It was clear from the evidence that at least
three members of parliament including the
prime minister had expressed concerns about
the issue of lack of Coram.
3. Coram was defined in the Rules of Procedure
of Parliament to mean at least a third of all
the members entitled to vote. The Court could
take judicial notice of the Uganda Gazette
where Members of Parliament representing
different Constituencies were published and
could easily ascertain what a third of the
eligible voting members was equal to.
4. The parliamentary rules required the Speaker,

even without prompting by any member of
parliament to ensure that Coram existed
before a law was passed. She was prompted
three times to that effect and was obliged
to comply but failed to do so thus failing to
comply with constitutional provisions.
5. The enactment of the law was a process,
and if any of the stages therein was flawed,
that vitiated the entire process and the law
that was enacted as a result of it. There was
no Coram in parliament when the Act was
passed therefore the Speaker acted illegally
in neglecting to address the issue of lack of
Coram.
6. The act of the 9th Parliament in enacting the
Anti-Homosexuality Act 2014 without Coram
in the House was inconsistent with and in
contravention of Articles 2(1) and (2) and 88
of the Constitution of the Republic of Uganda
1995 and Rule 23 of the Parliamentary Rules
of Procedure and thus null and void.
7. The act of the Speaker in not entertaining
the objection that there was no Corm was
an illegality under Rule 23 of the Rules
of Procedure which tainted the enacting
process and rendered it a nullity, therefore
the Act itself so enacted by this reason was
unconstitutional.
Petition allowed, petitioners awarded 50% of the taxed
costs
Some rights reserved by Filip Lachowski
89
Try Inner-Bonding
By Naomi Mutunga, Laws of Kenya Department
ave you tried everything to feel good about

yourself but you still experience feelings of
unworthiness and inadequacy? Are you tired
of failed relationships and jobs that dont fulfill your
dreams, or are problems with spouses, partners,
friends, family or co-workers causing you stress?
Do you turn to various addictions e.g. alcohol, drugs,
sex, worrying, excessive talking etc because you
dont know any other way of managing your painful
feelings? The power to heal yourself is inside of you
in a process called Inner Bonding.
The Power to Heal Yourself
Inner Bonding is a process of self healing of anxiety,
depression, addictions and relationships. It heals
the pervasive pattern of self-abandonment or selfrejection, not taking care of your inner-self, shame
over your past caused by judging yourself and self
hatred that is the underlying cause of these issues.
Inner Bonding shows you how to love yourself, even
through challenging times, so that you can truly
experience love with those closest to you. It enables
you to lovingly manage all painful feelings without
turning to the addictions.
Inner Bonding is a six-step practice that leads to
learning how to love yourself rather than abandon
yourself. The practice heals shame, insecurity and
feelings of unworthiness, creating the vital connection
with the self, loved ones, and spirit that heals anxiety,
depression, addictions, and relationship issues and
unleashes love, joy, passion, and creativity.
Extremely Powerful Steps to Inner Bonding
Step One: Willingness to Feel Pain and Take
Responsibility for Your Feelings.
The first step of Inner Bonding is the willingness to
feel your painful feelings of anxiety, depression, guilt,
shame, anger, emptiness, loneness, jealousy and
so on with a desire to take responsibility for what
you are telling yourself and how you are treating
yourself, which is actually the cause of these feelings.
Willingness also includes feeling the naturally painful
feelings of life that you are not causing such as
loneliness, heartache, heartbreak, helplessness over
others and grief and taking responsibility for learning
to manage these feelings, rather than turning to
shame, blame or addictions.

Step Two: Have an Open Mind
and Intention to Learn
There are only two possible intentions at any given
moment:
i. To protect against pain and to avoid taking
responsibility for it, through various forms of
addiction and controlling behavior;
ii. To learn about what you are doing or thinking
that may be causing your pain, or what may be
happening between you and another person
or situation, so that you can move into taking
loving action in your own behalf.
Here you invite the compassionate presence of spirit
into your heart to help you learn what you are doing or
thinking that may be causing your pain. You welcome
and embrace all your feelings with compassion,
recognizing that all feelings are communicating
something to you that you either doing or not doing
to yourself.
Step Three: Dialogue with Your Wounded Self
Your ego wounded self is the part of you that is filled
with false beliefs. A lot of the things we believe in are
things that have been programmed in us that are not
true most of the time. For instance, believing that you
are inadequate, ugly, boring, competitive, deserving of
pain, disliked, cold the list is endless.
Here explore the thoughts and false beliefs from
your wounded self that may be causing you shame,
anxiety, depression or anger.
Release the anger and pain in an appropriate
ways;
Learn about the past that created the false
beliefs;
Nurture your wounded self and core self;
Explore what may be happening with a person
or event that may be causing loneliness,
heartache, or heartbreak;
Explore your core-self and learn about what
brings you joy other than the addictions.
Step Four: Dialogue with Your Higher Guidance (be
in God or whatever else you believe in)
Ask your spiritual guidance; what is the truth about
the thoughts/false beliefs you may have uncovered in
Step Three? What loving behavior can you take
90
Lifestyle
toward yourself in this situation? What is in your

highest good? What behavior is kindest to yourself
and others? Ask yourself; Is turning to addictions
e.g. drugs, sex, alcohol, eating and talking loving to
yourself? Or is doing exercises, eating healthy, walking
out on the source of stress, that is loving to you?
When your heart is open to learning, (note open to
learning) the answers will come to you in words,
pictures or feelings. The answers may not come
immediately, but if you have a sincere desire to learn,
they will come.
Step Five: Take Loving Action
Tell yourself the truth learned in Step Four, and
take the loving action that came through from your
Guidance. Without loving actions toward yourself
and with others, the other four steps will not lead to
healing your pain.
Step Six: Evaluate Your Action
Check in to see if your pain, anger and shame are
getting healed, and if your core feelings of loneliness,
heartache, heartbreak, or grief are moving through
you. If not, go back through the steps until you
discover the truth and actions that bring you peace,
joy, and a deep sense of intrinsic worth.
These steps will come alive for you as you learn and
practice the Inner Bonding process. For me, Inner
Bonding has brought the love, joy, passion, aliveness,
creativity, and spiritual connection that I sought for so
long! It may take a while but it will eventually work.
ADAPTED FROM MARGARET PAUL author, relationship expert & Inner Bonding facilitator. She has counseled individuals and couples since 1968. She is the author/co-author of
eight books, including the internationally best-selling Do I Have To Give Up Me To Be Loved By You?, Healing Your Aloneness, Inner Bonding, and Do I Have To Give Up Me To Be
Loved By God? She is the co-creator of the powerful Inner Bonding healing process.
Some rights reserved by Harvey Barrison

91
Handling Relationships During The Festive Season

By Evelyn Anyokorit Emaase, Laws of Kenya Department
ur lives are full of relationships which include

family, friends, and work colleagues. These
relationships are very vital in our lives and need
to be handled with care.
The period immediately leading up to Christmas and
ending just after the New Year is what we refer to as the
festive season. This season means different things to
different people. We live in a large and diverse world and
because of daily engagements and busy schedules; we
dont get to meet often with our family members and
friends so the season becomes an opportune time to
meet and celebrate with our contacts.
Having or being in a relationship, is something everyone
desires, but managing or keeping the fire burning may
not be easy for everyone. During festive seasons,
we tend to want to meet everyones expectations
by pleasing them because the season is viewed as
a season of goodwill and festiveness, but for many
people it can be a really tough time and a source of
festive stress rather than festive cheer. Relationships
can bring a range of mixed experiences including
happiness, excitement, struggle and sadness because
people have high expectations which sometimes
become hard to fulfill or meet.
How do we Manage the Two?
To meet our needs, interests and demands we need
to be in a relationship or rather relationships. No one
human being lives in an island neither can one person
or one relationship fulfill all our personal desires. It
is important therefore to appreciate the fact that we
need each other to complement our different needs.
Accepting those who are in our lives and working
out the parts of our lives that we can share with the
possible others is also vital in handling relationships.
things you can do is get in touch

with those people in your life you
know that they will be lonely
even if its just for a chat on
Christmas or an invitation to an enjoyable activity, it
can make a massive difference to their experience of
the festive season.
Helping out others and doing random acts of kindness
for someone will also help lift spirits of those who are
going through difficult times. Volunteering in some
organized events or any other activity in the days
leading up to Christmas or donating to charity can also
make difference.
Assessing Your Relationships
Many at times we are ignorant of important people in
our lives only to realize it late and regret. It is advisable
that we evaluate our relationships on time, for instance:
the good ones, the difficult ones and those that have
been neglected. It is then important that you have
time to appreciate the strengths in the relationships
you share and learn from the ones that you have had
unpleasant experience with and forge the way forward.
If you realize that your relationships are doing well,
then you need to consider keeping doing what you
have been doing to keep them alive. It is also important
to ascertain whether to form new relationships or stick
to the current. Above all take a look at the unpleasant
relationships and think why things went wrong or are
not working in the first place. Sometimes we believe we
are right all the time which may not be the case. Find
out if you are the problem and how you can correct it.
If it is the other partys fault, find out how you can work
things out and reach a compromise.
As the saying goes, you can choose your friends, but

you cant choose your family. Managing relationships
year-round is central to enjoyment during the festive
season. If you do value family relationships, let people
know you value them and they are important to you in
advance. Christmas is not the day and time to resolve
long-standing problems.
Be Realistic
Relationships are enjoyed best when you have realistic
expectations about who can be a part of your life, what
they have to offer you, and most importantly, what you
have to offer in return. Accepting the things that you
cant change, and being realistic about what you can
is a helpful way to consider your relationships in the
festive season.
Spread the Cheer

When family and friends get together, it can be hard for
those people who are on their own. One of the kindest
As you review this year and look forward to the next,

maybe one of your resolutions could be to really look at
your relationships and make a difference.
Lifestyle
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This Grey Book and CDROM contain a Collection of 15 selected Statutes on Kenyan Procedural Law.
1. Appellate Jurisdiction Act (Cap. 9) 2.Children Act (Cap.141) 3.Civil Procedure Act (Cap. 21)
4.Constitution of Kenya, 2010 5.Criminal Procedure Code (Cap. 75) 6.Evidence Act (Cap. 80)
7.Interpretation and General Provisions Act (Cap. 2) 8.Judicature Act (Cap. 8) 9.Law of Succession Act (Cap. 160)
10.Limitation of Actions Act (Cap. 22) 11.Magistrates' Courts Act (Cap. 10) 12.Penal Code (Cap.63)
13.Sexual Offences Act (No. 3 of 2006) 14.Supreme Court Act (No. 7 of 2011)
15.Traffic Act (Cap. 403)
Contact Us
Tel: +254 (020) 2712767, 2011614 ,2719231 Mobile: +254 718 799 464, 736 863 309
www.kenyalaw.org
mykenyalaw
@mykenyalaw
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Tel: +254 (020) 2712767, 2011614 ,2719231Mobile: +254 718 799 464, 736 863 309
www.kenyalaw.org
mykenyalaw
@mykenyalaw
Mykenyalaw

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LEGISLATIVE UPDATE: Synopsis of Bills and Acts of Parliament

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Head of Law Reporting

Senior Law Reporters

| Longet Terer | | Cornelius Lupao | | Andrew Halonyere | Njeri Githanga Kamau |

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MEMBERS OF THE COUNCIL FOR KENYA LAW

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very time there is a congregation of judicial officers such as this,

The office of judge or magistrate is a lifelong calling requiring

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HON. DR. WILLY MUTUNGA, D. Jur, SC, EGH,

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What they Said

The lesson of comparative jurisprudence was that while a declaration of

W.M.Mutunga CJ, K.H

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What they Said

Justice Kiage Court of

The constitutional and statutory mandate to initiate and consider a motion to

Court of Appeal judges

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The Kenya Law Android app

The Kenya Law Android app contains:

Issue 27, October - December 2014

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Digest of Recent Legal Supplement on

This article presents a brief summation of Legislative Supplements

1st August, 2014.

The Land Registration (Forms)

The legislation is issued under sections

The Limited Liability

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These regulations provide guidance

17th October, 2014.

The Advocates (Senior Counsel The legislation amends the principal

17th October, 2014

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This legislation applies to every contract

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