BBIssue 41

Issue 41,
April - June 2018
Court Rules on the Constitutionality of the

Installation of a DMS system with Capacity to
Access Subscribers Information
It is not Compulsory for Liquidation of a Company to be an Option of Last Resort Where

a Company Failed to Pay its Debts Pg 20
Children Adoptees Have a Right to Know the Identity of their Parents, the Parent’s Origin
and the Existence, if any, of their Siblings. Pg 26
Government’s Access to Cell-site Records to Track Physical Movements of Individuals
Contravenes their Reasonable Expectation of Right to Privacy Protected Under the Fourth
Amendment of the Constitution of the United States. Pg 57
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CONTENTS
Kenya Wildlife Service is Liable for Destruction of Crops Court Declares Amendment of Sections 35A (5)
and Animals caused by Wildlife Migration Pg 13 and 35I (B) of The Pharmacy and Poisons Act
Unconstitutional Pg 65
EDITORIAL TEAM 1. Editors Note 1

Editor/CEO 2. CJ’s Message 2
| Long’et Terer
3. What they Said 4
Deputy CEO (Ag)
| Monica Achode 4. Feature Case 6
Head of Law Reporting & 5. Cases 13
Council Secretary (Ag)
| Cornelius W. Lupao 6. Caseback 46

Senior Law Reporters
7. Legislative Updates 47
| Linda Awuor | Njeri Githang’a Kamau |
| Andrew Halonyere |
8. Legal Supplements 54
9. International Jurisprudence 56
Contributors
| Nelson Tunoi | Emma Kinya | Lisper Njeru |
| Teddy Musiga | Beryl Ikamari | Christian Ateka |
10. Law Reform Issue 64
| Ruth Ndiko | Patricia Nasumba | Christine Thiong’o |
| Robai Nasike | John Ribia | Eunice Chelimo |
11. Pictorial 71
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| Robert Basweti |
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Members of the Council
for Kenya Law
The Hon. Mr Justice David K. Maraga, EGH

Chief Justice and President, Supreme Court of Kenya
Chairman
The Hon Lady Justice Fatuma Sichale Mr Silvester Migwi
Judge of the Court of Appeal of Kenya Government Printer, Government Press
Represented by Eva Kimeiywo, Senior Printer
The Hon Justice Anthony Ndung’u
Judge of the High Court of Kenya Ms Janet Kimeu
Advocate, Law Society of Kenya
The Hon. Justice (Rtd) Paul Kihara Kariuki
Attorney General
Alt - Ms Linda Murila, Chief State Counsel Mr Michael Muchemi
Advocate, Law Society of Kenya
Prof Kiarie Mwaura
Dean, School of Law, University of Nairobi Mr Long’et Terer
Editor/CEO
Ms Jennifer Gitiri
Advocate & Public Officer,
Office of the Attorney General & DoJ
Members co-opted to serve in ad-hoc Advisory Capacity
Ms Anne Amadi Mr Michael Sialai, EBS

Chief Registrar, The Judiciary Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Mr Henry Rotich, EGH
Cabinet Secretary, The National Treasury Ms Caroline Kigen
Represented by Mr Jona Wala Ag. Director, Financial Expert, The Judiciary
Accounting Services, National Treasury
BB Issue 41, April - June 2018
Editor’s Note
Long’et Terer
CEO/Editor
K
enya Law once again achieved a “Very Good” score in the performance measurement
and management understanding of the financial year 2016/2017. On achieving its
core mandate, which includes the tracking of jurisprudence from the superior courts
of record and the revision and consolidation of the Laws of Kenya, Kenya Law achieved 99
per cent and scored 100 per cent in all other perspectives, including customer relations and
innovation and learning. This is an affirmation that we are working towards achieving our
set objectives and it can only be an upward trajectory from now on.
As the Chief Justice stated in his speech during the launch of the performance Management
and Measurement Understanding Evaluation Report, the Kenyan Judiciary stands out
globally as one of the few that have put in place a well structure performance system and are
helping others benchmark with us as we lead the way. Indeed, Kenya Law has led the way in
law reporting and law revision in Africa. During this quarter, we received a delegation from
the Law Development Centre in Uganda who came to benchmark with Kenya Law on law
reporting and law revision. This was closely followed by a visit from the Republic of South
Sudan which seeks to establish an official law reporting institution for their country. In the
month of June, Kenya Law was invited by the Judiciary of the Republic of Tanzania and the
Tanzania Legal Information Institute (TanzLii) to provide specialist training on law reporting
and the compilation of legislative databases. Further still, we hosted the Coordinator of the
Ghana Legal Information Institute (GhanaLii) who was on a benchmarking trip to learn
how Kenya Law carries out its law reporting and law revision functions. This in itself is an
attestation to the important role that Kenya Law plays in carrying out its mandate and setting
the pace for other jurisdictions.
As you will see from this edition of the Bulletin, the Judiciary is constantly producing
progressive decisions in response to the unique disputes and circumstances facing
our jurisdiction. This includes a decision on the constitutionality of the Election Laws
(Amendment) Act and one on the rights of children adoptees to know the identity of their
parents. It is our pledge to continue enhancing the quality of our work in in tracking the
robust and indigenous jurisprudence of our courts in order to continue being the benchmark
in law reporting and law revision for various jurisdictions.
1
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Remarks By Hon. David K. Maraga, Chief Justice And President Of

The Supreme Court Of Kenya During The Launch Of Performance
Management And Measurement Understandings Evaluation Report,
2016/2017 On April 27, 2018
I
am delighted to welcome you all here today for the launch of our performance evaluation
results. At about this time last year, we had a similar event and I made a promise to the
people of Kenya that each year, I will be releasing the Judiciary Performance Scorecard
detailing how each of our court stations has been fairing over the assessment period. This
is significant in many ways. For one, by opening ourselves up for evaluation and speaking
openly about our successes and challenges, we earn the trust of Kenyans. Secondly, on the
part of our officers, it is impressive how quickly they have become accustomed to constant
monitoring and evaluation of their individual outputs.
Not too long ago, some of our colleagues were opposed to the introduction of performance
measurement instruments. They feared that the system would erode their independence
and interfere with the way things were done in the courts. Today, I can confirm with great
confidence that these fears have been proven to be unfounded: Our judges, judicial officers and
other staff have fully embraced the system and are successfully implementing it throughout
the country. Indeed, our Judiciary stands out globally as one of the few that have put in place
a well-structured performance management system. We are ready to help others benchmark
with us as we lead the way in the delivery of justice. The Performance Evaluation Report we
are launching today is the culmination of the successful implementation of the second cycle
of Performance Management and Measurement Understandings (PMMUs) that were signed
by more than 257 implementing units comprising Courts, Registries, Directorates and other
administrative units.
The report details the achievements of the courts and other units measured against variables
that are critical to the success of our work, with a particular focus on our blueprint, Sustaining
Judiciary Transformation. These include reduction of case backlog especially those that are
older than 5 years; determination of cases within the set timelines and delivery of judgments
and rulings on the date first scheduled, among others. I am happy to announce that during the
period under review, there was a dramatic improvement in the performance of our courts.
For example, the number of resolved cases increased by 58 per cent, from 192,100 cases
in 2015/2016 to 304,182 in 2016/2017. Resolved criminal cases increased from 156,024 to
218,796 while civil cases increased from 36,076 cases to 85,386 cases over the same period.
In regard to case backlog, the number of cases older than five years came down by 15 per
cent, from 139,256 in 2015/2016 to 118,566 cases in 2016/2017. On delivery of services,
the Judiciary achieved a court user satisfaction index of 64 per cent. Even though the
improvement in the performance has been realized across the entire Judiciary, 20 units have
been singled out for special recognition for coming out tops within their specific categories.
They scored highly in most of the key performance indicators measured. For example, one of
the court stations reduced case backlog by 62 per cent while in another, the court achieved
2
Judge’s Productivity of 331 cases. This means that one judge was able to hear and determine
these many cases within the year. These units, besides receiving recognition certificates, will
receive a cash reward of Sh150000 to use on a project of their choice. Let me congratulate
these units for their sterling efforts. Well done and keep it up.
The Judiciary continues to implement various strategies that are aimed at enhancing
efficiency and effectiveness in the delivery of justice. These include initiatives such as Service
Weeks, Justice at Last, Circuit Courts, enhancement of Court User Committees and so on. I
am convinced that these interventions are bearing fruit.
As we continue with other measures such as the introduction of case management systems
and other technological interventions, we can only produce better results in the coming years.
I wish to thank the Performance Management and Measurement Steering Committee and
the Performance Management Directorate for working tirelessly to put this report together.
Well done and keep it up.
Hon. David K. Maraga, EGH,

Chief Justice And President of The Supreme Court of Kenya.
3
What they said
“
… the Wildlife Conservation and Management (Compensation Scheme) Regulation
2015 which contemplate how to deal with claims for human death or injury and
crop and property damage caused by wildlife, is yet to be implemented. There is
therefore urgent need for parliament to pass into law the said regulations to make the
compensation process provided for in the Act functional.”
“… globally, the insurance sector is so advanced that there are insurance covers
available for virtually any conceivable type of loss that may be suffered. Consequently, one
would reasonably expect an owner of land adjoining a Game Reserve to take an insurance
policy, to cover the crop against possible destruction by wildlife. By so doing, they avoid the
contingency of hefty losses being suffered due to destruction of the crop by wildlife. Indeed,
an owner of land that has close proximity to a National Park or Game Reserve is expected
to insure his crop, failing which a Court of law would have to apportion to him a degree of
negligence. Consequently, based on the apportionment, the claimant only recovers part of
the loss incurred as opposed to the full amount. In view of this, it is our recommendation that
the Legislature ought to consider whether or not affected parties such as farmers, ought to
take up mandatory insurance policies.”
Supreme Court Judges – M K Ibrahim, J B Ojwang, S C Wanjala, S. N Ndung’u & I Lenaola, SCJJ in Kenya Wildlife Service v Rift
Valley Agricultural Contractors Limited - Petition 11 of 2015
“
… upon gazettement of nominated members of County Assemblies, any aggrieved
party would have to initiate the process of challenging the said nominations by
filing an election petition at the Resident Magistrate Court designated as an Election
Court under Section 75 of the Election Act. In this instant matter therefore, upon the
gazettement of the name of the 3rd respondent as a nominated member of County
Assembly for Bungoma County, any aggrieved party ought to have filed an election
petition before an Election Court. It is only upon such filing and determination by an
Election Court, and where such a matter rises through the ordinary appellate process, that
other Courts in the judicial hierarchy can rightly assume jurisdiction with powers to give any
consequent orders.”
Supreme Court Judges – M K Ibrahim, J B Ojwang, S C Wanjala, S. N Ndung’u & I Lenaola, SCJJ in Independent Electoral &
Boundaries Commission v Jane Cheperenger, United Republican Party & Irine Kimutai Chesang - Petition 5 of 2016
“
There is no requirement under the Insolvency Act or the Companies Act which
stipulates that liquidation of a company should be as a last resort. Liquidation is one
of the options under the Insolvency Act which a creditor such as the respondent in the
case, could pursue to secure payment of a debt, especially a debt that remains unpaid
for several years and in respect of which the appellant has been given adequate time,
opportunity and indulgence.”
Court of Appeal Judges – A Visram, & M K Koome, JJ A (Concurring Majority Decision) in Prideinn Hotels & Investments Limited
v Tropicana Hotels Limited - Civil Appeal 98 of 2017
4
“
I am convinced that the respondent is just using the winding up avenue to put
pressure on the appellant to settle the debt in question. This in my view is the wrong
route… The petition for winding up order of a company should never be presented as
a means of exerting pressure to pay even an admitted debt where there is no evidence
of insolvency and inability to meet the deb”
Court of Appeal Judge – W Karanja, JJ A (Dissenting Opinion) in Prideinn Hotels & Investments Limited v Tropicana Hotels Limited
- Civil Appeal 98 of 2017
“
‘Identity’ is not defined under the Convention for the Rights of the Child and only
instances of identity such as nationality, name and family relations are listed. Article
8 was particularly meant to address unusual conditions such as natural parents
versus adoptive parents and other such conditions. Article 8, therefore imposes an
obligation on the State to not only preserve the identity of a child i.e. to preserve all
the information relating to the biological parents of the adopted child, but also not
to deprive the child of such information and to assist the child in getting such information.”
High Court Judge – J M Mativo, J in D W T v B N T & 3 others - Petition 46 of 2016
“
The amendment now means that for an election to be annulled there must not only
be failure to comply with the Constitutional principles and election laws but also
the failures must substantially affect the result of the election. The essence of this
amendment is to allow violation of constitutional principles and election laws as long
as they do not substantially affect the result. Any amendments must be forward looking
in order to make elections more free, transparent and accountable, than to shield
mistakes that vitiate an electoral process. It is my holding that there was no constitutional
compulsion or rational in amending section 83 of the Act to remove the disjunctive word ‘or’
and introduce the conjunctive word ‘and’ so that only where there are failures in complying
with the constitution and election laws and they substantially affected the results should an
election be annulled. Removing the twin test for annulling faulty election results negates the
principles of electoral system in the Constitution.”
High Court Judge – E C Mwita, J in Katiba Institute & 3 others v Attorney General & 2 others – Constitutional Petition 548 of 2017
“
A persons’ right to privacy entails that such a person should have control over his
or her personal information and should be able to conduct his or her own personal
affairs relatively free from unwanted intrusions. Information protection is an aspect
of safeguarding a person’s right to privacy. It provides for the legal protection of a
person in instances where such a person’s personal particulars are being processed by
another person or institution.”
High Court Judge – J M Mativo, J in Kenya Human Rights Commission v Communications Authority of Kenya, Attorney General,
Safaricom Limited. Airtel Networks Kenya Limited & Orange-Telkom Kenya - Constitutional Petition 86 of 2017
5
Feature Case
Court holds that the Installation of a DMS System Device with the
Capacity to Access Information Belonging to Subscribers of Certain
Networks in the Telecommunications Industry is Unconstitutional
Kenya Human Rights Commission v Communications Authority of Kenya & 4 others
Constitutional Petition No 86 of 2017
High Court at Nairobi
Constitutional and Human Rights Division
April 19, 2018
J M Mativo, J
Reported by Long’et Terer
The Kenya Human Rights Commission determining the matter, the court disposed
brought a petition challenging the of the following issues:
introduction of a Device Management
Whether the DMS system threatened the right
System (DMS) by the Communications
to privacy of the subscribers of the third, fourth
Authority of Kenya (CAK) into the networks
and fifth Respondents’ or their Consumer
of Safaricom Limited, Airtel Networks
Rights; if yes, did the limitation meets the
Kenya Limited and Orange-Telkom
Article 24 analysis test?
Kenya, the 3rd, 4th and 5th Respondents,
respectively. These Respondents provide The Court held that article 2(4) of the
various telecommunication services to Constitution provided that any law that was
their customers and those services include inconsistent with the Constitution was void
mobile telephone, data, internet, and mobile to the extent of the inconsistency. Similarly,
money transfers. The proposed system any act or omission in contravention of the
device had the capacity to access customers’ Constitution would be invalid. Further, it
information, which could only be accessed stated that article 259 of the Constitution
in a manner prescribed by law, and was provided that the Constitution would be
therefore said to be a violation of the right interpreted in a manner that promoted its
to privacy. The petition also challenged the purposes, values and principles, advanced
manner in which the device was introduced. the rule of law, and human rights and
The Petitioner stated that the device was fundamental freedoms in the Bill of Rights
introduced without public participation and and permitted the development of the
there was no guarantee that the information law and contributed to good governance.
accessed would remain confidential. The Consequently, the Court would examine
Petitioner said that the intended purpose the object and purport of legislation, an act
of the introduction of the DMS, which was or omission, at issue, in order to read such
the blocking of fake and duplicate IMEI, was legislation, act or omission in conformity
capable of being achieved without intruding with the Constitution.
into the privacy of Kenyans. The Petitioner The court outlined the principles of
also complained about the proposal to constitutional interpretation to include;
block phone gadgets without affording
the affected person a hearing. Therefore, i. The Constitution is not interpreted
the Petitioner stated, the device created like an ordinary statute. The spirit
unjustified limitations to the right to privacy and tenor of the Constitution
and also the rights guaranteed under articles must permeate the process of
40, 46, 47 and 50 of the Constitution. In judicial interpretation and judicial
6
discretion. A narrow, mechanistic, the task before the Court was thus to impart
rigid and artificial interpretation is constitutional meaning to individual liberty
to be avoided in favour of a broad in an interconnected world. The constitution
liberal and purposive interpretation. protects privacy as an elemental principle,
On the other hand, it is not always but the Court had to be sensitive to the needs
true that generous and purposive of and the opportunities and dangers posed
interpretation would coincide. It may to liberty in a digital world.
be necessary for generosity to yield to
In the same breath, the court provided that
purposiveness.
data protection was an aspect of safeguarding
ii. In interpreting the Constitution a person’s right to privacy. It provided for
close scrutiny should be given to the legal protection of a person in instances
the language of the Constitution in where such a person’s personal particulars
ascertaining the underlying meaning (information) were being processed by
and purpose of the provision in another person or institution (the data
question. user). Processing of information generally
referred to the collecting, storing, using
The Court held that the right to privacy
and communicating of information. The
was a fundamental human right, enshrined
processing of information by the data user/
in numerous international human rights
responsible party threatens the personality
instruments. It was central to the protection
in two ways: a) First, the compilation and
of human dignity and forms the basis of
distribution of personal information creates a
any democratic society. This right, it was
direct threat to the individual’s privacy; and
held, supported and reinforced other rights,
(b) second, the acquisition and disclosure of
such as freedom of expression, information,
false or misleading information may lead to an
and association. Further, the court
infringement of his identity.
expounded, the right to privacy embodied
the presumption that individuals should The Court Stated that Article 19 of the
have an area of autonomous development, Constitution stipulated that the Bill of
interaction, and liberty, a “private sphere” Rights was the cornerstone of democracy in
with or without interaction with others, Kenya. It enshrined the rights of all people
free from arbitrary state intervention and in the country and affirmed the democratic
from excessive unsolicited intervention values of human dignity, equality and
by other uninvited individuals. Activities freedom. Article 31 provides the right to
that restrict the right to privacy, such as privacy of the person, home or property
surveillance and censorship, could only be searched. It recognized the right of every
justified when they are prescribed by law, person to privacy, which includes the right
necessary to achieve a legitimate aim, and not to have their person searched; their
proportionate to the aim pursued. A person’s possessions seized; information relating to
right to privacy entailed that such a person their family or private affairs unnecessarily
should have control over his or her personal required or revealed; or the privacy of their
information and should be able to conduct communications infringed. The recognition
his or her personal affairs relatively free and protection of the right to privacy as a
from unwanted intrusions. Privacy, in its fundamental human right in the Constitution
simplest sense, allowed each human being to provided an indication of its importance.
be left alone in a core which was inviolable.
A persons’ right to privacy, the court
Yet the autonomy of the individual was
provided, entailed that such a person
conditioned by her relationships with the
should have control over his or her personal
rest of society. The court went on to explain
information and should be able to conduct
that equally, new challenges had to be dealt
his or her own personal affairs relatively
with. The emergence of new challenges
free from unwanted intrusions. Information
was exemplified by this case, where the
protection is an aspect of safeguarding a
debate on privacy was being analyzed in the
person’s right to privacy. This right provided
context of global information based society.
for the legal protection of a person in instances
In an age where information technology
where such a person’s personal particulars
governs virtually every aspect of our lives,
are being processed by another person
7
or institution. Processing of information article 24 of the Constitution.

generally refers to the collecting, storing,
The Court held that under article 24 of
using and communicating of information.
the Constitution, a limitation placed on
‘Privacy,’ ‘dignity,’ ‘identity’ and ‘reputation’
the enjoyment of a fundamental right and
are facets of personality. Privacy includes
freedom had to be reasonable and justifiable
at its core the preservation of personal
in an open and democratic society based
intimacies, the sanctity of family life,
on human dignity, equality and freedom,
marriage, procreation, the home and sexual
considering all relevant factors including
orientation. Privacy also connotes a right to
the nature of the right or fundamental
be left alone. Personal choices governing a
freedom, the importance of the purpose
way of life are intrinsic to privacy. Privacy
of the limitation, the nature and extent
attaches to the person since it is an essential
of the limitation, the need to ensure that
facet of the dignity of the human being.
the enjoyment of rights and fundamental
The court went on to state that technological freedoms by any individual would not
change has given rise to concerns which prejudice the rights and fundamental
were not present several decades ago and freedoms of others and the relation between
the rapid growth of technology may render the limitation and its purpose and whether
obsolescent many notions of the present. there were less restrictive means to achieve
Hence the interpretation of the Constitution the purpose.
must be resilient and flexible bearing
The reason offered for the device by CAK
in mind its basic or essential features.
was that it would help combat illegal mobile
Like other rights which form part of the
telecommunication devices. The question
fundamental freedoms protected by the Bill
that arose from that was whether the
of Rights, privacy is not an absolute right. A
reason was a limitation that was reasonably
law which encroaches upon privacy will have
justifiable in a democratic society. The
to withstand the touchstone of permissible
court averred that that question ought to be
restrictions on fundamental rights.
answered in light of the standards of review
According to the Court, privacy has both laid down by courts for situations when the
positive and negative content. The negative validity of a statute was challenged, which
content restrains the state from committing included two main standards:-
an intrusion upon the life and personal
i. The rationality test.
liberty of a citizen. Its positive content
imposes an obligation on the state to take all ii. The reasonableness or proportionality
necessary measures to protect the privacy test. The limitation would have to be
of the individual. The right of privacy is reasonable and justifiable in an open
a fundamental right. It protects the inner and democratic society.
sphere of the individual from interference In determining reasonableness relevant
from both State, and non-State actors and factors include an assessment as to whether
allows the individuals to make autonomous there was a valid, rational connection
life choices. between the limitation and a legitimate
Two letters dated January 6, 2017 and January public interest to justify it and that connect
31, 2017 were exhibited by the Petitioner and would need to be not so remote as render
the Communications Authority of Kenya the decision arbitrary or irrational. A second
(CAK) did not dispute writing the letters. The factor in determining reasonableness was
letter dated January 31, 2017 indicated that whether there were alternative means of
the purpose of the DMS system was to access exercising the right that was threatened.
information relating to mobile telephone With regard proportionality, the court held
subscribers. Such access to information that the test of proportionality was applicable
could only be lawful if it was permitted in determining whether a limitation paced
within the parameters if section 27A of the on rights was justified. It involved assessing
Kenya Information and Communications whether there was a legitimate objective and
Act (KICA). For the DMS system to be whether the means in service of the objective
lawful, the reason given for it had to not only were reasonably connected to the objective.
be lawful but also meet the requirements of It was also necessary to assess whether
8
those means had the effect of minimally freedoms if it was adopted legally. It was
impairing the enjoyment of the right in therefore necessary to assess whether it was
light of alternative means of achieving that legally adopted.
objective. An assessment of the balance
It was the Court’s view that the mandate of
between the beneficial and negative effects of
combating illegal devices was not within
the limitation, including the balance between
the scope of the mandate of CAK. There
public interest and private rights would be
were statutory bodies mandated to combat
done. The Court thus found that a limitation
counterfeits, ensure standards and curb the
on the enjoyment of constitutional rights
importation of illegal devices. Therefore, the
would be permissible if-
DMS system did not satisfy the article 24
i. It was designated for a proper analysis test. Where the CAK purported to
purpose, perform functions vested on other statutory
ii. The measures undertaken to bodies it was acting ultra vires its functions.
effectuate such limitation were Combating illegal and counterfeit devices
rationally connected to the fulfillment was not within the CAK’s mandate.
of that purpose,
iii. The measures undertaken were Whether the process leading to the decision to
necessary in that there were no the acquisition and installation of the DMS
alternative measures that could system in the first, second and third Interested
achieve that same purpose with a Parties Mobile Networks was subjected to
lesser degree of limitation, adequate public participation
iv. A proper relation (“proportionality The Court was of the view that there was a
strictu sensu” or “balancing”) catena of foreign and local court decisions
between the importance of achieving holding that an analysis of the Constitutional
the proper purpose and the special provisions yields a clear finding that public
importance of preventing the participation plays a central role in legislative,
limitation on the constitutional right policy as well as executive functions of the
was necessary. Government. All these decisions are in
Whether the installation of the DMS system agreement that public participation ought to
fell within the statutory mandate of the CAK be real and not illusory and ought not to be
treated as a mere formality for the purposes
The court held that there were lawful
of fulfilment of the Constitutional dictates. It
and less restrictive means to achieve
is also an established jurisprudence that any
the stated objective. Illegal devices were
decision to exclude or limit fundamental
not manufactured in Kenya. There were
participatory rights must be proportionate
importation laws, laws governing counterfeit
in order to be lawful.
goods, the Kenya Bureau of Standards to
monitor standards, the Kenya Revenue In determining this particular issue, the
Authority and the National Police Service. court held that the key consideration
Those laws and institutions were not shown was whether the CAK acted reasonably in
to be insufficient. In the past it was shown that the manner it facilitated and engaged the
1.89 million illegal devices were switched third, fourth and fifth Respondents in the
off. Mobile Network Owners were able to particular circumstances of this case and
identify and block black listed devices. the failure to engage the subscribers and the
general public. It was held that the nature
Subscriber information could only be released
and the degree of public participation that
under terms prescribed in section 27A of the
was reasonable in a given case would depend
Kenya Information and Communications
on a number of factors. These included the
Act. There was no evidence tendered to show
nature and the importance of the policy or
that the DMS system in question fit into the
decision, and the intensity of its impact on
circumstances contemplated under the said
the public. The public whose data is held
section 27A.
by the third, fourth and fifth Respondents
The DMS system could only pass the test and whose constitutional right to privacy
provided for in article 24 of the Constitution, is at risk in the event of breach must as of
for the limitation of fundamental rights and necessity be involved in the engagements.
9
Thus, the process must be subjected to it could be read in a manner that conformed
adequate public participation wide enough to the relevant statute. Every act of the state
to cover a reasonably high percentage of or public bodies must pass the constitutional
affected population in the country. The test. Put differently, it must conform to the
more discrete and identifiable the potentially principal of legality.
affected section of the population, and the
A contextual or purposive interpretation
more intense the possible effect on their
of the challenged decision must of course
interests, the more reasonable it would
remain faithful to the actual wording of the
be to expect CAK to be astute to ensure
statutes, namely the Fair Administrative
that the potentially affected section of the
Action Act, the Constitution, KICA and
population is given a reasonable opportunity
the Regulations made there under and the
to have a say. In the circumstances of this
Consumer Protection Act. The challenged
case and applying the above considerations,
decision must be capable of sustaining an
the conclusion becomes irresistible that
interpretation that would render it compliant
there was absolutely in adequate public
with the Constitution and the statutes;
participation prior to the attempt implement
otherwise the courts were required to declare
the DMS system.
it unconstitutional and invalid. The Court
Whether CAK violated the Petitioners´ Rights noted that that a contextual interpretation
to Fair Administrative Action of the impugned decision, therefore, must
be sufficiently clear to accord with the rule
The court provided that it must always be
of law. Mindful of the imperative to read the
remembered that the courts were concerned
challenged decision in conformity with the
with the process a statutory body employs to
Constitution and the relevant statute, I find
reach its decision and not the merits of the
and hold that the DMS was introduced in a
decision itself. Once it had been established
manner not inconformity with the law and is
that a statutory body had made its decision
tainted by illegality.
within its jurisdiction following all the
statutory procedures, unless the decision From the facts of this case, the court was of
was shown to be so unreasonable that it the view that it was clear that the impugned
defies logic, the court could not intervene decision fell within the definition of an
to quash such a decision or to issue an order administrative action as contemplated under
prohibiting its implementation since a the act. The decision affected the subscribers
judicial review court does not function as an and the public generally, that the subscribers
appellate court. and the general public were never involved
at all nor where they supplied with reasons
From the evidence tendered in this Petition,
for the decision, hence was the conclusion of
the court held that it was clear that the
the Court that CAK violated the provisions
subscribers or the general public were
of Article 47 and the Fair Administrative
not engaged at all, yet the law demands
Action Act.
otherwise. In light of the principle of
legality which required the CAK’s actions Whether the impugned decision violated
must conform to the law, the Court found consumer rights of the subscribers of the third,
that failure to engage the public and the fourth and fifth Respondents;
subscribers offends the provisions of the Fair
From the definition in section 2 of the Act
Administrative Action Act. Put differently,
and the Preamble and purpose of the Act,
the question was whether, properly
it was clear that the whole tenor of the Act
construed, the manner in which the DMS
was to protect consumers. The Act must
system was implemented conforms to the
therefore be interpreted keeping in mind
above sections and the constitution. When
that its focus is the protection of consumers.
the constitutionality or legality of a decision
The court thus held that consumer rights
made by a public body in the exercise of its
litigation was not a game of win-or-lose in
statutory mandate was questioned, the duty
which winners must be identified for reward,
of the court was to determine whether the
and losers for punishment and rebuke. It is
impugned decision was capable of being
a process in which litigants and the courts
read in a manner that was constitutionally
assert the growing power of the expanded
compliant or as in the present case whether
10
Bill of Rights in our transformative and incurring the other sides. For all potential
progressive Constitution by establishing its litigants, the risk of exposure to an adverse
meaning through contested cases. costs order is a critical consideration in
deciding whether to proceed with litigation.
The Court stated that the proper approach to
Should the fear of costs prevent an issue of
constitutional construction was embodying
public importance and interest from being
fundamental rights and protections. What
heard? The Judge borrowed from Lord
was to be avoided was the imparting of
Diplock’s dictum stating:-“... it would, in my
a narrow, artificial, rigid and pedantic
view, be a grave lacuna in our system of public
interpretation; to be preferred was one
law if a pressure group... or even a single public-
which served the interest of the Constitution
spirited taxpayer, were prevented by outdated
and best carried out its objects and promoted
technical rules of locus standi from bringing the
its purpose. All relevant provisions were to
matter to the attention of the court to vindicate the
be considered as a whole and, where rights
rule of law and get the lawful conduct stopped...”.
and freedoms were conferred on persons,
derogations there from, as far as the language The court held that the petition sought to
permits, should be narrowly or strictly enforce constitutional rights and obligations
construed. in public interest. Courts were reluctant to
award costs in such public interest litigation.
In line with the dictates of the Constitution,
In public interest litigation costs were a
the court held that it would reject the narrow,
potential barrier to access to justice as the
literal reading of the above provisions and
fear of incurring legal fees could prevent an
opt for a construction that promotes wider
issue of public importance and interest from
access to protection of consumer rights.
being heard. In constitutional litigation,
Article 46 (3) provided that the Article
the primary consideration with respect to
applied to goods and services offered by
costs was the way in which a costs order
the public entities or private persons. First,
would hinder or promote the advancement
the consumers were never involved in the
of constitutional justice. The nature of the
discussions, hence, they were never provided
issues raised in the petition would be more
with information on the device. This was a
important that the parties’ financial ability.
breach of their constitutional and statutory
Accordingly, a frivolous or vexatious petition
rights. Secondly, the court reiterated that
could attract costs.
their constitutionally guaranteed right to
privacy. The court therefore found and What were the appropriate reliefs in this case?
held that the DMS was introduced in a
The Court held that this was a proper case for
manner that was inconsistent with the
it to fashion appropriate reliefs as the justice
constitutionally and statutory guaranteed
and circumstances of the case demanded.
rights of the consumers and or subscribers
The Court was empowered by article 23
of the third, fourth and fifth Respondents.
(3) of the Constitution to grant appropriate
What was the appropriate order regarding reliefs in any proceedings seeking to enforce
costs? fundamental rights and freedoms such as
the instant case. Appropriate relief would in
The Court held that this was a constitutional
essence be relief that was required to protect
Petition seeking to enforce constitutional
and enforce the Constitution. Depending on
Rights and obligations and brought in public
the circumstances of each particular case,
interest. It was common knowledge that
the relief could be a declaration of rights,
courts have been reluctant to award costs in
an interdict, a mandamus or such other
constitutional Petitions seeking to enforce
relief as could be required to ensure that the
constitutional rights brought in public
rights enshrined in the Constitution were
interest. Relying on the the phrase “Justice is
protected and enforced. If it was necessary to
open to all, like the Ritz hotel” attributed to a
do so, the Court could even have to fashion
19th Century jurist, the court stated that costs
new remedies to secure the protection and
have been identified as the single biggest
enforcement of those all-important rights.
barrier to public interest litigation in many
The Courts had a particular responsibility
countries. Not only does the applicant incur
in that regard and were obliged to forge
their own legal fees; they run the risk of
new tools and shape innovative remedies,
11
if need be to achieve that goal. The court issued declaring that the first Respondents
therefore allowed the petition and granted request and or purported intention and or
the following orders: decision and or plan contained in its letter
a. A declaration be and is hereby issued dated 31st January 2017 addressed to the first,
that policy decisions or Regulations second and third interested parties seeking to
affecting the Public must conform to the integrate the DMS to the first, second and
Constitution and the relevant statute in third interested parties networks to inter
terms of both its content and the manner alia create connectivity between the DMS
in which it is adopted and failure to comply and the first, second and third Interested
renders the policy decision, Regulation or Parties system to access information on the
guideline invalid. IMEI, IMSI, MSISDN and CDRs of their
b. A declaration be and is hereby issued subscribers on their network is a threat to
decreeing that the decision, policy or the subscribers privacy, hence a breach of
regulation seeking to implement the DMS the subscribers constitutionally guaranteed
System was adopted in a manner inconsistent rights to privacy, therefore unconstitutional
with the provisions of the Constitution, null and void.
Section 5 (2) of KICA and the Consumer f. A declaration be and is hereby issued
Protection Act, hence the said decision, policy declaring that the first Respondents decision
and or regulation is null and void for all to set up connectivity links between the
purposes. DMS and the first, second and third
c. Further and or in the alternative Interested Parties networks communicated
a declaration be and is hereby issued in its letter dated 6th February 2017 is
decreeing that the decision, policy and or unconstitutional, null and void to the extent
regulation seeking to implement the DMS that it was arrived at unilaterally, without
System was adopted in a manner inconsistent adequate public participation and that it a
with the Constitution, Section 5 (2) of KICA threat to the right to privacy of the first, second
and the Consumer Protection Act in that and third interested parties subscribers and a
there was no adequate public participation gross violation of their constitutionally and
prior to its adoption and implementation with statutory protected consumer rights..
the first, second and third interested parties g. An order of prohibition be and is hereby
and further the subscribers of the first, second issued prohibiting the first Respondent, its
and third Interested Parties were not engaged servant or agents from implementing its
at all in the public consultations, hence the decision to implement the DMS system to
same is null and void for all purposes. establish connectivity between the DMS
d. A declaration be and is hereby issued and the first, second and third Interested
decreeing that the first Respondent was Parties system to access information on the
obligated to craft and implement a meaningful IMEI, IMSI, MSISDN and CDRs of their
programme of public participation and subscribers on their network.
stakeholder engagement in the processleading h. That this being a public interest litigation
to the decision, policy and or regulation or there will be no orders as to costs.
implementation of the DMS System.
e. A declaration be and is hereby
12
Supreme Court
Kenya Wildlife Service is Liable for Destruction of Crops and Animals
Caused by Wildlife Migration
Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited
Petition No 11 of 2015
Supreme Court of Kenya
April 27, 2018
M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu, I Lenaola, SCJJ
Reported by Ian Kiptoo
Tort Law-negligence-negligence of a statutory producing crops, and raising livestock and in
duty-where a provision imposed an obligation varying degrees the preparation and marketing of
but not a remedy of compensation for negligence- the resulting products-Merriam-Webster Online
whether a claimant could enforce a common law dictionary
action of negligence for destruction of crops by
Words and Phrases-act of God-definition of-
wildlife against the Kenya Wildlife Service even
an overwhelming, unpreventable event caused
though it was not given provision for under the
exclusively by forces of nature, such as an
Wildlife (Conservation and Management) Act-
earthquake, flood, or tornado. The definition has
Wildlife (Conservation and Management) Act,
been statutorily broadened to include all natural
section 3A (l)
phenomena that are exceptional, inevitable,
Stare decisis-Rylands v Fletcher-strict liability- and irresistible, the effects of which could not be
applicability of the principle-factors a court takes prevented or avoided by the exercise of due care or
into consideration in applying the principle- foresight- Black’s Law Dictionary
whether the principle of strict liability in Rylands
Brief facts
v Fletcher relied upon by the Respondent was
applicable in determination of the suit The matter before the Court was a petition
of appeal anchored on the grounds that the
Stare decisis-Donoghue v Stevenson-neighbour
Court of Appeal erred:
principle-applicability of the principle-factors
a court takes into consideration in applying the a) In wrongly finding that the Judge
principle-whether the neighbor principle relied of the High Court was right in his
upon by the Respondent in Donoghue v Stevenson analysis of the statutory duties of the
was applicable in determination of the suit Appellant as set out in section 3A (c)
and (l) of the Wildlife Act.
Statutes-interpretation of statute-interpretation b) In finding that the Appellant was liable
of section 3A of the Wildlife (Conservation and to compensate the Respondents.
Management) Act in regards to liability of Kenya c) In finding that the rules in Ryland v.
Wildlife Service vis-à-vis the liability of County Fletcher applied to the case before the
Governments in regards to destruction of crops Court.
by wildlife-whether it was the Appellant who was d) In failing to find that migration of
liable for compensation for destruction of crops by wildlife was a natural phenomenon
wildlife in the Maasai Mara or the Narok County hence an act of God.
Government-Constitution of Kenya, 2010 article
Issues
62; Wildlife (Conservation and Management)
Act, section 3A (l) and section 18 i. Whether a claimant could enforce a
common law action of negligence
Tort Law-Negligence-defences-act of God-what for destruction of crops by wildlife
amounted to an act of God- whether the Appellant against the Kenya Wildlife Service
could rely on the defence of act of God for the even though it was not given provision
destruction of crops caused by the migration of for under the Wildlife (Conservation
wildlife and Management) Act.
Words and Phrases-agriculture-definition-the ii. Whether the principle of strict liability
science, art, or practice of cultivating the soil, in Rylands v Fletcher relied upon by
13
the Respondent was applicable in wildlife.

determination of the suit. 2. It was clearly established in all common
iii. Whether the neighbor principle in law jurisdictions that public bodies
Donoghue v Stevenson relied upon by could be held liable in negligence for
the Respondent was applicable in the negligent exercise of statutory duties
determination of the suit. and powers. A simple claim of a breach
iv. Whether it was the Appellant who of statute could not be maintained on
was liable for compensation for its own. As statutes rarely specifically
destruction of crops by wildlife in the conferred a common law right of action
Maasai Mara or the Narok County on individuals, a common law right of
Government. action could however be inferred in the
v. Whether the Appellant could rely interpretation of the statute if the statute
on the defence of act of God for the was intended to protect a particular
destruction of crops caused by the class of persons. A second claim of the
migration of wildlife. negligent or careless performance of
Relevant Provisions of the Law a statutory duty or power could be
maintained provided the Plaintiff could
Wildlife (Conservation and Management) establish the first claim of breach of
Act statutory duty.
Section 3A 3. Though there was no obligation
expressly imposed on the Appellant
“The functions of the Service shall be to—
under the Wildlife Act to compensate
…; for destruction of crops by wildlife, the
(c) manage National Parks and National statutory duty imposed under section
Reserves; 3A (l) of the Act was actionable under
common law. It would therefore be liable
… under the tort of negligence despite the
(l) render services to the farming and lack of an express provision of statute
ranching communities in Kenya necessary to that effect. Under the tort four
for the protection of agriculture and elements had to be proved - a duty of
animal husbandry against destruction by care, a breach of that duty, causation and
wildlife.” damage. A defendant had to owe a duty
of care to the person bringing the claim,
Held in the sense that they fell within a class
1. Section 3A (l) was unequivocal that the of interests which the law considered
Appellant, the Kenya Wildlife Service would be protected; if there was a breach
(KWS), had the obligation of rendering of that duty involving a failure to take
services to communities in Kenya, such reasonable care; causation had to be
as would be necessary for the protection proved and the type of damage alleged
of agriculture and animal farming against had to be protected by the law.
destruction by wildlife. It could not be 4. In the instant case, section 3A without a
gainsaid that the services to be rendered doubt imposed a duty on the Appellant
by the Appellant pursuant to section to protect the crops from destruction by
3A (l) of the Wildlife (Conservation and wildlife. In addition, the Respondents
Management) Act (Wildlife Act) was had demonstrated to the Court that
to ensure crops cultivated, as well as their crops were destroyed by migrating
animals reared on land were protected wildlife hence; the duty imposed by
from destruction by wildlife. Any other section 3A was towards persons such
interpretation of the provision would as the Respondent. Furthermore, the
be grossly narrow and simplistic. The Respondents had also demonstrated that
Court had to determine whether the the loss they suffered was a direct result
duty to protect the crops and animals of the migration of wildlife.
reared on the land was accompanied 5. Article 62 of the Constitution of Kenya,
by a corresponding duty to compensate 2010 (Constitution) brought to bear
for destruction to crops, occasioned by that national parks and game reserves
14
were not among the land that vested and managed by the Narok County
in county governments. In the same government. There had been recent
vein, management of national parks developments in the principle in Rylands
and game reserves was not a function v Fletcher such as the inclusion of the
that had been devolved to the County element of foreseeability. However, the
Government under the Fourth Schedule Court would not delve into that as the
to the Constitution. The Court was principle was not applicable.
not privy to the arrangement between 8. The principle in Donoghue v Stevenson was
the Appellant and the Narok County applicable in respect of where a person
Government, which was not a party in owes a duty of care to persons who are
the appeal, concerning the management closely and directly affected by his act, so
of the game reserve in question. that he ought to reasonably foresee they
6. Where a statutory obligation was will be affected. However, the principle,
imposed on a person, such obligation to the effect that a manufacturer owes
could not be abdicated by that person a duty of care to the consumer of his
even if it was expressly permissible goods was inapplicable in the instant
under the Constitution or statute to do case since it had nothing to do with the
so. The express provisions imposing the manufacture of goods.
obligation would trump any agreement, 9. For an act of God; there had to be an
whether contractual or not, purporting aspect of natural causation; the event or
to relinquish such obligation. The act ought to have been one that could
Appellant’s obligations under section not have been foreseen; that nature had
3A (l) could not and were not abdicated to be the exclusive or sole cause; and, the
in favour of, or transferred to Narok effects could not have been avoided by
County Government. Therefore, breach reasonable due care or foresight on the
of section 3A (l) imposed a liability on the part of the Defendant. The element of
Appellant to compensate for destruction foreseeability was commonly taken into
of crops by wildlife. consideration in determining whether
7. The elements of the principle in Rylands an impugned act was an act of God.
v. Fletcher were: 10. The Courts ought to have limited the
i. the Defendant must make a non- applications of act of God to events that
natural use of his land; could truly be classified as extraordinary
ii. the Defendant must bring and unforeseen in view of the readily
something onto his land which is available knowledge of weather patterns
likely to do mischief if it escaped; and climate change. In like manner, the
iii. the thing in question must actually migration patterns of wild animals were
escape; and, predictable and adequate preparation
iv. Damage must be caused to the had to be made by relevant authorities to
Plaintiff’s person or property as a ensure that loss arising from migration
result of the escape. was avoided. In the instant case, the
The principle in Rylands v. Fletcher was defence of an act of God was inapplicable
not applicable in the instant case; because, for the reason that migration of wildlife,
first, the presence of the wildlife on the especially within the land in question
land was not a non-natural use of the was an annual occurrence hence
land in question–even without delving foreseeable to any reasonable person.
into the question whether the Appellant Similarly, the occurrence of drought was
was the owner of the land. Secondly, the reasonably foreseeable within the region
Appellant did not bring the wild animals in question. Therefore, the Appellant’s
onto the land. Thirdly, the escape had claim of act of God inevitably failed.
to be from land in occupation of and/or 11. The provisions of section 3A of the
under the control of the Appellant. The Wildlife Act were very clear as to who
Appellant was not in occupation of the bore the obligation to protect agriculture
land in question, neither was the land and animal husbandry – it was KWS.
under its control. It was not in doubt Though the Government would ideally
that the land in question was owned be expected to have control of the
15
wildlife, factually it was KWS which 18 of the Wildlife Conservation and

had the duty of control of the wildlife Management Act: compensation for loss
by dint of section 3A of the Wildlife to crops, livestock or other property
Act. Consequently, the liability for the from wildlife was subject to the rules
damage occasioned fell on it. made by the Cabinet secretary, which
12. A global comparison of laws and had not yet been enacted. Similarly the
jurisprudence relating to animal Wildlife Conservation and Management
and wildlife management normally (Compensation Scheme) Regulations
provided that an entity charged with 2015, which contemplated how to deal
such a management task also collected with claims for human death or injury
the revenues generated from activities and crop and property damage caused
relating to the same. The rationale being by wildlife, was yet to be implemented.
that such revenue supported the costs of Therefore, there was an urgent need
management and any related outcomes, for parliament to pass into law the said
including compensation for damage regulations to make the compensation
made by animals and wildlife. The process provided for in the Act
architecture of the Wildlife Conservation functional.
and Management Act No.47 of 2013 15. The insurance sector was so advanced
followed the rational principle – that that there were insurance covers
the management of national parks lay available for virtually any conceivable
with Kenya Wildlife Service which was type of loss that might have been suffered.
also the revenue collector at the parks, Consequently, one would reasonably
with the exception of the Maasai Mara expect an owner of land adjoining
National Park. In the case of Maasai a game reserve to take an insurance
Mara, although the management of the policy to cover the crop against possible
park lay with Kenya Wildlife Services, destruction by wildlife. By so doing, they
the recipient of revenue collection avoided the contingency of hefty losses
belonged to the County of Narok. being suffered due to destruction of the
13. The Wildlife Act gave responsibility crop by wildlife. An owner of land that
to Kenya Wildlife Service as the Park had close proximity to a national park
revenue collector to compensate for or game reserve was expected to insure
damage occasioned by wild animals. his crop, failing which a court of law
That had been the procedure in all other would have to apportion to him a degree
parks in Kenya. However, the instant of negligence. Consequently, based on
case was an interesting one, where the apportionment, the Claimant only
the Kenya Wildlife Service which did recovered part of the loss incurred as
not collect revenue from the Maasai opposed to the full amount. In view of
Mara but had been found liable for that, it was the Court’s recommendation
compensation by dint of the law and the that the Legislature ought to consider
County that received the revenue was whether or not affected parties such as
not liable. Therefore, when the issue of farmers, ought to take up mandatory
compensation was raised, its application insurance policies.
and resolution appeared disjointed Orders
compared to the norm as practiced
i. The Judgement of the Court of Appeal
elsewhere in Kenya and the world. The
dated October 10, 2014 was upheld.
Court deemed it fit to recommend the
ii. For the avoidance of doubt, the Judgement
dilemma ought to be studied and possibly
of the High Court delivered on July
remedied by Parliament.
27, 2011 awarding the Respondent
14. Whereas compensation for damage
Kshs.31,500,000 was affirmed.
occasioned by wildlife had been
iii. Each party would bear its own costs.
devolved to counties under section
16
Court of Appeal has no Jurisdiction to Determine Electoral Disputes

Involving Nominated Members of County Assembly
Independent Electoral and Boundaries Commission v Jane Cheperenger and 2 others
Petition No 5 of 2016
Supreme Court of Kenya
April 27, 2018
M K Ibrahim, J B Ojwang, S C Wanjala, N S Ndungu, I Lenaola; SCJJ
Reported by Ian Kiptoo
Civil Practice and Procedure-appeals-appeals jurisdiction to revoke the nomination

to the Supreme Court-pleadings-where an and election of a member of county
appellant filed submissions out of the prescribed assembly after gazettement.
time-whether the Petitioner’s failure to file its iii. Whether the Court could make
record of appeal and submissions within the an order for appropriate remedy
prescribed timelines rendered the appeal fatally where a court’s decision initiated
defective-Constitution of Kenya, 2010, article Constitutional processes that made
159; Supreme Court Rules, 2012, rules 31, 33 it difficult to revert to the original
and 53 process.
Jurisdiction-jurisdiction in election petitions- Held
jurisdiction of the Court of Appeal vis-à-vis the 1. Ordinarily and in accordance with rules
Resident Magistrate Court-where a nominated 31 and 33 of the Supreme Court Rules,
member of county assembly had been gazetted- 2012, where a party was aggrieved by
whether the Court of Appeal had jurisdiction to a decision of the Court of Appeal and
revoke the nomination and election of a member desired a further appeal to the Supreme
of county assembly after gazettement-Election Court, such a person ought to have filed
Act, section 75 a Notice of Appeal within 14 days after
the delivery of the Court of Appeal
Civil Practice and Procedure-reliefs-
decision. The Notice of Appeal signified
enforcement of reliefs-where a Judgement from a
an intention to appeal. Upon the filing
court with no jurisdiction initiated Constitutional
of the Notice of Appeal, the intending
processes-whether the Court could make an order
Appellant would file his petition and
for appropriate remedy where a court’s decision
record of appeal within 30 days. In
initiated Constitutional processes that made it
the instant case, the Petitioner did not
difficult to revert to the original process
file the Notice of Appeal within time
Brief facts necessitating it to approach the Court
The Petitioner filed her appeal to the seeking an extension of time to file the
Supreme Court stating that the Court of said Notice of Appeal.
Appeal lacked jurisdiction to entertain and 2. The concerned consent order did
determine the 1st Respondent’s appeal in light not specifically provide for the time
of article 87(1) of the Constitution of Kenya, within which service should have been
2010 (Constitution), and section 75(1A) effected. The Order read, the Applicant
of the Elections Act; by directing the 2nd would file their record of appeal and
Respondent to conduct fresh nominations submissions within 10 days. The 3rd
and that the Court of Appeal’s jurisdiction in Respondent was under the impression
relation to nomination of parties to special that service of the record ought to
seats ceased to exist immediately after the have taken place simultaneously with
gazettement of the nominees. the filing of the record. Whereas that
would have been a valid expectation,
Issues the Court Order was silent as to when
i. Whether the Petitioner’s failure to file service ought to have taken place.
its record of appeal and submissions Therefore, the 3rd Respondent’s strong
within the prescribed timelines objection and utmost refusal to file any
rendered the appeal fatally defective. response on the basis of late service was
ii. Whether the Court of Appeal had questionable. Irrespective of the time
17
when service would have been effected, the 3rd Respondent sought to vacate
the Respondents still had 10 days within the Consent Orders and stated that the
which to respond. Petitioner needed to first make a formal
3. The Court affirmed the general application in Court seeking extension
principle of law which was recognized of time to file the documents out of time.
in the Constitution of Kenya, 2010 6. Although the Petitioner’s conduct of
(Constitution)that where a particular filing submissions 30 days after the
time is not prescribed for performing initial agreed period was inexcusable,
a required act, the act should be done the Court was at pains to understand
without unreasonable delay. In the why the 1st Respondent’s counsel would
instant case, the 3rd Respondent did not fail to respond at all to the Petitioner’s
indicate when service was effected and case which had been lying in the Court
hence the Court could only speculate for more than a year.
whether service was done within a 7. The 3rd Respondent’s objection was at
reasonable time or not. Consequently, the very least an epitome of infringement
the 1st Respondent’s objection was of article 159 of the Constitution which
unmerited and without any basis. not only dissuaded the Court from
Furthermore, the 3rd Respondent was being tied to the ropes of procedural
not in any way prejudiced as to handicap technicalities but also reminded it that
him from responding to the Petitioner’s justice delayed was justice denied. Most
case within 10 days after service of the unfortunate was the fact that Kenya was
record. at another election cycle and matters
4. The Petitioner’s submissions were filed such as were in the instant case which
out of time. Whereas that would have emanated from 2013 general elections
given the 3rd Respondent a basis, if at were still pending in the Court. Whereas
all, for objecting, it was not upon the 3rd breach of timelines was not condoned
Respondent to decide on the punitive by the Court, the 1st Respondent was
measure to befall upon a party who not prejudiced by the late filing of
failed to comply with the directions submissions since she still had 10 days
of the Court, as every other party had within which to respond. Accordingly,
a respective individual obligation to the 1st Respondent’s objection was
honour Court’s directions. Underscoring dismissed.
the importance of complying with Court 8. Counsel ultimate duty was to the Court
orders and directions given especially first. They were officers of the Court
with regard to filing and service of and were meant to help the Court in its
documents within the requisite time. role of dispensation of justice. Hence, it
Cognizance was taken of rule 53 of the was absurd when an advocate appeared
Supreme Court Rules, 2012 which gave before Court, especially the Supreme
the Court power to extend the time Court, not prepared to advance his
limited by the Rules, or by any decision client’s case. That unpreparedness flew
of the Court. Therefore, to that extent on the face of an advocate’s role as an
the late filing of submissions was not officer of the Court, and also bordered
patently incurable. on breach of his duty to the client and
5. It had been more than a year since the the obligation to diligently represent
Petitioner filed its submissions and his/her client. Consequently, before
effected service on the 1st Respondent appearing in Court to represent a client,
on the same day. Since then, as could be it was of paramount importance that
deduced from the various mentions that advocates got all the necessary facts
had been before the Deputy Registrar, clear and appeared in Court prepared
counsel for the 1st Respondent had in order to properly advance their
repeatedly affirmed his position that he clients’ case. Counsel’s conduct in the
would not respond to the Petitioner’s instant case notwithstanding, the Court
case since the Petitioner had failed to was not absolved from undertaking its
comply with the Court Orders. One duty which was to dispense justice and
such mention was where counsel for neither would the said conduct prejudice
18
the Court in execution of its mandate as and issue any consequent orders, as a
before the Court, were legal issues which result of the Court’s pronouncement,
had been clearly fleshed out. other constitutional processes were
9. Upon gazettement of nominated initiated which culminated in the
members of County Assemblies, any nomination of the 1st Respondent as
aggrieved party would have to initiate the URP member of Bungoma County
the process of challenging the said Assembly. Therefore, the Court was
nominations by filing an election constrained to make any order which
petition at the Resident Magistrate Court would defeat the resultant electoral
designated as an Election Court under process.
section 75 of the Election Act. Therefore Appeal allowed
in the instant case, it was only upon such
filing and determination by an election Orders
court, and where such a matter rose i. The Court affirmed that the Court of
through the ordinary appellate process, Appeal had no jurisdiction to revoke the
that other courts in the judicial hierarchy nomination of the 3rd Respondent or to
could rightly assume jurisdiction with give any consequent orders.
powers to give any consequent orders. ii. The resultant electoral process that
Therefore to that extent, the Court of culminated in the removal of the 3rd
Appeal had no jurisdiction to revoke Respondent was sustained.
the nomination and election of the iii. For the avoidance of doubt, the status quo
3rd Respondent or to issue any other remained.
consequent orders. iv. Parties would bear their own respective
10. Though the Court of Appeal had no costs.
jurisdiction to revoke the Gazette Notice
History teaches us that unity is strength, and cautions us to submerge and overcome our differences in the quest for common goals, to strive, with all
our combined strength, for the path to true African brotherhood and unity - Haile Selassie
Some rights reserved by Jerru Friedman
19
Court of Appeal
It is not Compulsory for Liquidation of a Company to be an Option of
Last Resort Where a Company Failed to Pay its Debts
Prideinn Hotels & Investments Limited v Tropicana Hotels Limited [2018] eKLR
Civil Appeal No. 98 of 2017
Court of Appeal at Mombasa
March 22, 2018.
A. Visram, M.Koome & W. Karanja, JJA
Reported by Kakai Toili
Civil Practice and Procedure – appeals – for over a 5 year period.

appeals from the High Court to the Court of
The parties entered into a surrender of
Appeal – procedure - what was the procedure to
the lease agreement. However, neither the
be followed when appealing against a decision of
Appellant nor its Guarantors honoured
the High Court to the Court of Appeal - Court of
the terms of the surrender of the lease.
Appeal Rules, rule 75 (1) & (2)
The Appellant and its Guarantors made a
Land Law – lessor and lesee relationship – where payment proposal and undertaking which
a lesee owed a lessor money – where the lesee failed was accepted by the Respondent. The
to pay the lessor money owed – in duplum rule Appellant paid the agreed amount save for
– applicability of the in duplum rule - whether the principal renovation amount and interest
the in duplum rule applied to a lessee who owed thereon. The Appellant drew monthly posted
money to a lessor cheques beginning May, 2012. However, the
cheque in respect of the month of July, 2012
Insolvency Law – creditors – where a company
upon presentation was dishonoured.
owed a creditor – where the creditor failed to
pay the debt – options available to a creditor - The Appellant did not make any further
liquidation -whether liquidation of a company payments and subsequently the Respondent
was to be an option of last resort which a creditor served the Appellant with a notice
could pursue to secure payment of a debt demanding payment of the amount which
stood at Kshs.69, 353,908.20. After the lapse
Company Law – companies – winding up of
of 21 days from the date of service of the
companies – mandatory winding up by a court
notice, the Respondent filed a petition in
order – where a company was alleged to be
the Trial Court seeking the winding up of
unable to pay its debts - whether winding up of a
the Appellant. The Trial Court issued orders
company was to be an option of last resort where
that the Appellant had shown inability to pay
a creditor sought the winding up of a company by
the debt owed to the Respondent and placed
a court order
it into liquidation among other orders.
Words and Phrases – file – definition of file - Aggrieved by that decision the Appellant
to deliver a legal document to the court clerk or filed the instant Appeal. The Respondent also
record custodian for placement into the official filed an application for the striking out of the
record, also termed lodge Notice of Appeal and the Record of Appeal
Brief Facts: for allegedly being filed out of time. The
Notice of Appeal bore the Trial Court stamp
By a lease agreement between the Respondent, indicating that it was filed on September 25,
the Appellant and the Respondent’s 2017 and an endorsement by the Deputy
Guarantors, the Respondent leased out the Registrar that it was lodged in the same court
suit premises to the Appellant. The parties on November 21, 2017.
later on entered into an agreement to carry
Issues:
out renovations and other works on the suit
i. Whether liquidation of a company was
premises. The Respondent was to carry out
to be an option of last resort which
the renovations and other works and would
a creditor could pursue to secure
be reimbursed by the Appellant with interest
20
payment of a debt. Appeal in question on November 21,

ii. What was the procedure to be followed 2017 as opposed to the date it was filed
when appealing against a decision of was a question which could only be
the High Court to the Court of Appeal answered by the said Deputy Registrar.
iii. Whether the in duplum rule applied to The Appellant could not be held
a lessee who owed money to a lessor. responsible for the Deputy Registrar’s
Relevant Provisions of the Law: late action. The Appeal before the
Insolvency Act Court was competent.
Section 384 4. The Court’s mandate under rule 29(1)
(1) For the purposes of this Part, a company (a) of the Rules as the first Appellate
is unable to pay its debts— Court was to re-appraise the evidence
(a) if a creditor (by assignment or and draw its own inferences of fact. The
otherwise) to whom the company decision of the Trial Court was entitled
is indebted for hundred thousand to some measure of deference unless
shillings or more has served on the conclusions made on the evidential
the company, by leaving it at material on record were perverse or
the company’s registered office, the decision as a whole was bad in law.
a written demand requiring the The Petition was properly before the
company to pay the debt and the Court. The Ruling dated July 9, 2017
company has for twenty-one days was not subject of the appeal before
afterwards failed to pay the debt the Court.
or to secure or compound for it to 5. From the facts of the case it was without
the reasonable satisfaction of the doubt that the parties entered into
creditor; several agreements which regulated
Held their relationship and obligations
1. Under rule 75 (1) of Court of Appeal thereunder. The appeal turned to a
Rules (the Rules), any person who substantial extent on the construction
desired to appeal to the Court had to of those agreements. There was
give a notice in writing which had to no element of coercion against the
be lodged in duplicate with the Deputy Appellant. Apart from alleging that
Registrar of the High Court. Rule 75 (2) it was coerced by the directors of the
of the Rules stipulated that the notice Respondent. The Appellant did not
had to be lodged within 14 days of the adduce any evidence to show coercion
date of the decision against which it in entering into the lease agreement.
was desired to appeal. There was no With respect to misrepresentation,
distinction between filing and lodging the Deed of variation was crystal
a document in court, those words clear on the Appellant’s willingness to
meant one and the same thing. continue with the lease even after the
2. The Appellant presented the Notice earlier lease in favour of Caracas was
of Appeal at the High Court registry, terminated hence it could not rely on
paid the requisite fees and a stamp the same to vitiate the lease.
was affixed on the face of it signifying 6. The object of construction of terms of
its receipt. The Notice of Appeal was a contract was to ascertain its meaning
lodged/filed on the date reflected by or in other words the common
the High Court stamp. Taking into intention of the parties thereto. Such
account that the impugned decision construction had to be objective, the
was delivered on September 22, 2017 question was not what one or the other
the Notice of Appeal, which was filed parties meant or understood by the
on September 25, 2017, was filed words used, rather what a reasonable
within time. person in the position of the parties
3. The purpose of the Deputy Registrar would have understood the words to
endorsing a Notice was to indicate the mean.
date it was lodged in the Trial Court. 7. There was no evidence that the
As to why the Deputy Registrar, in parties concluded an oral agreement.
the instant case, signed the Notice of Accordingly, it could not be a basis
21
of varying the terms of the payment Appellant suspended for a period

proposal. In light of the circumstances of 30 days to enable the appellant
of the case and more so, the fact to make full payment of all the
that the Appellant had not met its moneys due failing which the
obligations under the surrender orders of the Court would stand
of lease and payment proposal, final.
the Respondent’s aforementioned
obligations thereunder had not arisen. Per W.Karanja, JA(Dissenting)
Under clause 8 of the Surrender of 1. Before an aggrieved creditor could file a
Lease, the Appellant was entitled to winding up petition against a company
refund of the deposit only after paying or before the Court could give orders
Kshs.25,000,000 for the renovation of winding up of a company, there had
and the interest thereunder. Similarly, to be evidence that all other efforts
under clause 9, the Respondent was to recover the debt had failed to yield
to reimburse the Appellant the sum the desired result. The Court that was
of Kshs.25,000,000 after 7 years and 6 called upon to make a winding up
months of payment of the same or after order should establish if there existed
the sale of the suit premises whichever an alternative remedy to the creditor
came earlier. The Respondent did not that was less draconian than a winding
owe the appellant any money. up order that was because winding up
8. There was no bonafide dispute on the had to be the last resort.
Appellant’s indebtedness. As to the 2. If the winding up order was sought
extent of its indebtedness, the amount because the company had been unable
which stood at Kshs.44,910,724 on or reluctant to pay a debt, the Court
April 4, 2012 when the payment had to consider if alternative remedies
proposal was made, had escalated existed which could at the end yield
to Kshs.69.353.908 on account of the same result. In the instant case the
accrued interest. The in duplum rule debt was admitted. Even if the debt
was not applicable, the said rule was was disputed the Respondent would
only applicable in cases of loans or file a suit for summary judgment in
financial facilities offered by financial an ordinary civil suit, that remedy
institutions as defined under the would be just as fast and expedient as a
Banking Act. winding up order.
9. The Appellant did not make any 3. There had to be other ways for the
payments after being served with a Respondent to recover its debt than
notice of demand by the Respondent by way of liquidation of the Appellant
hence the Respondent was entitled which was still on its feet, perhaps
to bring a petition for liquidation of limping, but definitely still on its feet.
the Appellant on the ground of its The Respondent was using the winding
inability to pay its debt. There was no up avenue to put pressure on the
requirement under the Insolvency Act Appellant to settle the debt in question,
or the Companies Act which stipulated that was the wrong route.
that liquidation of a company should 4. The Appellant owed other people or
be as a last resort. Liquidation was one institutions money and was servicing
of the options under the Insolvency its debts with the banks. The Appellant
Act which a creditor such as the was not insolvent to an extent that the
Respondent in the case, could pursue only cure available for it was a quick
to secure payment of a debt, especially dispatch to the netherworld. An order
a debt that remained unpaid for several winding up the company was not the
years and in respect of which the best remedy in the circumstances of
Appellant had been given adequate this suit.
time, opportunity and indulgence.
Appeal dismissed with costs Appeal would have been allowed with no orders
as to costs
i. Order of liquidation of the
22
Court of Appeal Affirms High Court Decision to Nullify the Results of the
Wajir County Gubernatorial Elections.
Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
Election Petition Appeal No 2 of 2018
Court of Appeal at Nairobi
April 20, 2018
P N Waki, Asike-Makhandia & P O Kiage, JJ A
Reported by Beryl A Ikamari
Statutes-interpretation of statutory provisions- unlawful assisted voting, incorrect tallying

section 85A of the Elections Act-appellate of votes, an excess in votes cast as compared
jurisdiction in election petitions-appeals from to registered voters in some polling stations,
the High Court to the Court of Appeal-the tampering with the number of registered
requirement that election petition appeals to the voters as indicated in the public portal,
Court of Appeal were to be founded on questions making of false entries, manipulation of
of law only-the nature of questions that would results which caused striking coincidences
constitute questions of law-Elections Act, No 24 and incredible figures, commission of
of 2011, section 85A. electoral offences and failure to secure ballot
papers and boxes.
Jurisdiction-jurisdiction of the High Court-
jurisdiction of the High Court in an election At the High Court, the Appellant’s election
petition-jurisdiction over issues relating to the as Governor was nullified. The Appellant
nominations stage and qualifications of candidates appealed to the Court of Appeal. His grounds
nominated to contest for posts-questions relating of appeal included wrongful assumption of
to the educational qualifications of such jurisdiction by the High Court over matters,
candidates-whether questions or disputes relating concerning educational qualifications, that
to the nominations stage were exclusively within ought to have been handled at the nomination
the competence of the Independent Electoral and stage, the High Court’s alleged failure to
Boundaries Commission (IEBC)-Constitution of appreciate that the 1st and 2nd Respondents
Kenya 2010, article 88(4)(e); Elections Act, No 24 ought to have proved the accusations they
of 2011, section 22(2). made against the Appellant and that all the
clerical irregularities, if any, did not affect the
Electoral Law-elections-stages in an election-
outcome of the election or give the Appellant
extent of activities that would form part of an
a numerical advantage. The Appellant also
election-whether an election was a process or an
asserted that the High Court finding that he
event and whether nominations were part of an
was not validly elected as the Governor of
election.
Wajir County was wrongful.
Electoral Law-gubernatorial elections- Issues
qualifications necessary for candidate to vie for i. What issues or questions would
the post of Governor-educational qualifications- constitute questions of law in an
bachelor’s degree-effect of failure by an elected election petition?
Governor to show possession of the requisite ii. Whether an election was a process or
educational qualifications-Elections Act, No 24 an event.
of 2011, section 22(2). iii. Whether the High Court had
Brief facts jurisdiction to determine whether a
candidate met all the qualifications,
The Appellant was the declared winner of the
including educational qualifications,
Wajir gubernatorial elections held on August
for nomination in order to contest in
8, 2017. The 1st and 2nd Respondents, who
a gubernatorial election.
were his closest competitors in the elections
iv. Whether the Appellant satisfied the
challenged the result of the election at the
legal qualification criteria applicable
High Court. The result of the election was
to candidates who were nominated to
challenged at the High Court on grounds
vie for the post of Governor.
which included the alleged failure of the
Held
Appellant to have the required educational
1. All the grounds of appeal, with the
qualifications to vie for the post of Governor,
23
exception of the alleged wrongful Orders made without jurisdiction were

assumption of jurisdiction over the issue empty nullities with neither coercive nor
on educational qualifications required compulsive authority.
for purposes of contesting for the post 5. The issue as to whether the IEBC under
of Governor, raised both issues of fact article 88(4)(e) of the Constitution
and law. Section 85A of the Elections had the exclusive mandate to make
Act expressly stipulated that appeals to determinations as to whether a
the Court of Appeal in election matters candidate met the legal qualifications
would be limited to questions of law for nomination, including academic
only. qualifications, rested on a determination
2. For purposes of election petitions, on whether an election was a process. An
questions of law are questions or issues election was a process and not an event
involving the following:- and hence, the High Court, as an election
a) the interpretation of a provision of court, was possessed of jurisdiction to
the law in the High Court concerning enquire into matters of nomination.
membership of the National Nominations were part of the continuum
Assembly, the Senate, or the office of consisting of a plurality of stages that
the County Governor; made up an election.
b) the application of a provision of the 6. The election Court had jurisdiction
law in the High Court concerning to enquire into a question as to the
membership of the National qualification of a candidate which went
Assembly, the Senate, or the office of to his eligibility to vie in cases where the
the County Governor; matter had not been handled with finality
c) conclusions arrived at by the High by any other body constitutionally or
Court concerning membership of the statutorily mandated to do so.
National Assembly, the Senate, or the 7. The case was first and foremost about
office of the County Governor where whether or not the Appellant had the
it was claimed that the conclusions requisite degree qualification for one to
were not based on evidence or were so run for Governor under section 22(2) the
perverse or illegal that no reasonable Elections Act. At the High Court some
tribunal would have made them but evidence was tendered to show that the
it was not enough to contend that the Appellant did not have a valid degree
High Court would have arrived at a certificate from Kampala University.
different conclusion on the basis of 8. Evidence was adduced to show that the
the evidence. Appellant did not have qualifications
3. In electoral matters there was no such that would allow him to be admitted to
thing as questions of mixed law and fact. study for a degree at Kampala University.
Grounds of appeal that were of such a It was shown that while being vetted
mixture were clearly inappropriate and for an ambassadorial posting to Saudi
probably incompetent. It was therefore Arabia, the Appellant made a statement
appropriate to strike out all grounds on oath before a committee of the
of appeal presented by the Appellant national assembly on September 3, 2014,
on factual foundations. The appeal stating that he was yet to graduate. It was
would be based on two legal issues only, shown that after being posted to Riyadh
namely, whether the Appellant had there was no evidence that he attended
met the constitutional and statutory classes at Kampala University. It was also
qualifications to vie for the post of shown that in his statutory declaration
Governor and whether the High Court for purposes of contesting in the
had jurisdiction to enquire into the gubernatorial elections, the Appellant
issue which related to the Appellant’s indicated that his highest educational
nomination to vie for the post. qualification was a bachelor’s degree yet
4. Jurisdiction is everything and without it he produced before the IEBC a Master’s
a Court has no power to make one more degree dated March 12, 2015. There was
step. Jurisdiction is the soul, source, no evidence that he engaged in full time
breath and life blood of judicial authority. accelerated post-graduate studies to
24
qualify for the Master’s degree and the required the Appellant to avail himself
Appellant’s name did not appear in the for cross-examination on his replying
university’s graduation booklet. affidavit. No explanation was given for
9. The Appellant did not deny any of the the Appellant’s failure to testify. The
allegations concerning his educational consequences of non-attendance were
qualifications. His response was that that where there was evidence tending
the issue concerning those allegations to prove a particular fact, albeit slender,
had been litigated at the Ugandan High silence in circumstances where a party
Court and that High Court dismissed was expected to controvert that evidence
the case. The Appellant did not attend would potentially convert that evidence
the High Court proceedings and was not into proof.
cross-examined on his replying affidavit. 12. The High Court’s conclusion that the
Therefore, his replying affidavit was Appellant was not legally cleared to vie
robbed of probative value. for the position of Governor as he did
10. The High Court’s finding that prima facie not satisfy the qualification criteria set
evidence had been tendered to prove out in section 22(2) of the Elections Act,
the invalidity of the bachelor’s degree was justified. The consequence of the
certificate dated March 1, 2012 and finding was that the Appellant’s election
that the evidential burden of proof had had to be invalidated.
shifted to the Appellant to discharge that 13. A person who was not qualified to vie for
evidence, could not be faulted. The legal a particular seat could not hold onto his
burden of proof remained with the 1st false victory by pointing to the margin
and 2nd Respondent but the evidentiary of his vote vis-a-vis his competitors. He
burden shifted to the Appellant. ought not to have been in the race in the
11. Unless the parties agreed by consent first place and the alleged victory would
to have affidavit evidence admitted be a distortion of reality and a subversion
without cross-examination of the of the electoral process.
deponent, the Election Petition Rules Appeal dismissed.
This world was not created piecemeal.

Africa was born no later and no earlier than
any other geographical area on this globe.
Africans, no more and no less than other
men, possess all human attributes, talents
and deficiencies, virtues and faults - Haile
Selassie
Some rights reserved Philip Sheldrake
25
High Court
Children Adoptees Have a Right to Know the Identity of their Parents, the
Parent’s Origin and the Existence, if any, of their Siblings.
D W T v B N T & 3 others [2018] eKLR
Petition No. 46 Of 2016
Milimani Law Courts
Constitutional & Human Rights Division
April 18, 2018
J.M. Mativo, J
Reported By Felix Okiri
Constitutional Law- fundamental rights and years when he was compelled by adverse
freedoms –rights of a child - rights of an adoptee treatment to leave their home. He stated that
– application to know biological parents and sometimes in 2011, he was charged, tried and
circumstances of adoption - whether an adopted convicted of the offence of violently robbing
child had a right to know his or her biological the 2nd Respondent. His appeal against the
parents- what were the limitation of that right said conviction was pending in the Court of
- Constitution of Kenya, 2010 articles 24,27, 28, Appeal.
29, 35 and 45
The Petitioner sought a declaration that
Constitutional Law- fundamental rights and despite not being their biological son
freedoms- rights of a child- enforcement of the and regardless of criminal proceedings
Bill of Rights- whether a right to the information against him, he was part of the 1st and 2nd
of the child’s background and the identifying Respondents’ family, and was consequently
information about his/her biological parents eligible to parental care, love and support
could be articulated as a fundamental right and was entitled to enjoy the right to dignity,
guaranteed in the Bill of Rights. security of person, family and equality like
other members of the family to the greatest
Civil Practice & Procedure- parties to a suit
extent possible.
-joinder of parties-where a party was improperly
enjoined in the suit- whether joinder, misjoinder The Petitioner had also enjoined the fourth
or non-joinder of a party was sufficient to defeat Respondent, the British High Commission
a constitutional Petition - whether the Petition in the instant Petition.
was bad for misjoinder of parties and for raising
several causes of action- Constitution of Kenya Issues
(Protection of Rights and Fundamental Freedoms) i. Whether an adopted child had a right
Practice and Procedure Rules, 2013. to know his or her biological parents.
Brief facts ii. Whether a right to the information
of the child’s background and the
The Petitioner, a male adult, was an adopted
identifying information about his/
son of the 1st and 2nd Respondents. He
her biological parents could be
sought to know his biological parents and
articulated as a fundamental ‘right’
circumstances of his adoption from the 3rd
guaranteed in the Bill of Rights.
Respondent. The Petitioner claimed that
iii. Whether the Petition was bad for
his rights under articles 27, 28 and 35 of
misjoinder of parties and for raising
the Constitution had been violated in that
several causes of action.
the adopting parents adopted him under
circumstances unknown to him, yet they had Relevant Provisions of the Law
denied him parental compassion, love, care Convention on the Rights of Child 1989
and support. Article 8
The Petitioner claimed that he lived with 1. States Parties undertake to respect the
the 1st and 2nd Respondents until he was 17 right of the child to preserve his or her
identity, including nationality, name
26
and family relations as recognized by dispute.

law without unlawful interference. Rule 5 (d)
2. Where the child is illegally deprived “The Court may at any stage of the
of some or all of the elements of his or proceedings, either upon or without the
her identity, States Parties shall provide application of either party, and on such
appropriate assistance and protection, terms as may appear just—
with a view to re-establishing speedily (i) order that the name of any party
his or her identity.” improperly joined, be struck out; and
(ii) that the name of any person who
Hague Convention on Protection of Children
ought to have been joined, or whose
and Cooperation in Respect of Inter-country
presence before the court may be
Adoption.
necessary in order to enable the court
Article 30
adjudicate upon and settle the matter,
(1) The competent authorities of a be added”.
contracting State shall ensure that
information held by them concerning the Held
child’s origin, in particular information
1. A person was significantly shaped by his
concerning the identity of his or her
identity as a person who was adopted
parents, as well as the medical history,
and his biological identity was as much a
is preserved.
part of his life as was his adopted identity.
(2) They shall ensure that the child or That information which was critical
his or her representative has access to to the formation of a person’s identity
such information, under appropriate was often inaccessible to most adopted
guidance, in so far as is permitted by the children, who did not know who their
law of that State.” biological parents were.
The Declaration on Social and Legal Principles 2. Whereas the law in Kenya merely
relating to the Protection and Welfare of provided for adoption, it did not address
Children any concerns or the rights of adopted
children to know the identity of their
Article 9 biological parents, the circumstances that
... need of a foster or an adopted child to led to their adoption, and the suitability
know about his or her background was of the adopting parents.
to be recognized by persons responsible 3. Whereas pertinent questions were
for the child’s care, unless that was determined by the court handling the
contrary to the child’s best interests. adoption, there was no provision stating
that such information was to be provided
The Evidence Act
to the child either during minority or
Section 107 (1)
upon attaining the age of majority. Part
Whoever desires any court to give X11 of the Children’s Act lay down
judgment as to any legal right or parameters as to who could adopt
liability dependent on the existence and under what conditions, but other
of facts which he asserts must prove than parental rights, it did not address
that those facts exist.” Sub-section (2) pertinent rights of the adopted child
provides that “when a person is bound such as: the right to identity, the right to
to prove the existence of any fact it is be informed about his or her biological
said that the burden of proof lies on that parents, the right to be informed of the
person. circumstances leading to his adoption,
Constitution of Kenya (Protection of Rights and the right to know the whereabouts
and Fundamental Freedoms) Practice and of her/his biological parents or the
Procedure Rules, 2013. suitability of the adopting parents.
Rule 5(b) 4. Every person had the right to know where
A petition shall not be defeated by they came from and their family lineage.
reason of the misjoinder or non-joinder A big dilemma however arose in adoption
of parties, and the Court may in every cases. Adoption processes throughout
proceeding deal with the matter in the world were shrouded in secrecy,
perhaps due to the sensitive nature of the
27
relationship that was being severed or the biological parents were known. There
created out of the adoption exercise. The could be no objection in furnishing to the
Children’s Act was silent on the question adoptive parents particulars in regard to
of whether or not adopted children had the biological parents of the child taken
a right to know their origin. Further, the in adoption, but it was to be made clear
Act was also silent on what information that it was to be entirely at the discretion
the children could or could not access of the adoptive parents whether and if
and at what age. The information on the so when , to inform the child about its
origin of the child was in the custody of biological parents. But if after attaining
the government and adoption agencies the age of maturity, the child wanted to
and the court handling the adoption. know about its biological parents, there
That lacuna in Kenya’s law led the Court could not be any serious objection to
to resort to international law as a source the giving of such information to the
of law in Kenya. child because after the child had attained
5. Article 8 of the Convention on the Rights maturity, it was not likely to be easily
of the Child provided that States Parties affected by such information and in such
were to undertake to respect the right of a case, the adoptive parents could, in
the child to preserve his or her identity, exercise of their discretion, furnish such
including nationality, name and family information to the child if they thought
relations as recognized by law without fit.
unlawful interference. It further provided 8. In Kenya, when issues of the need for
that where the child was illegally deprived the child to know the biological parents
of some or all of the elements of his or arose, the Court could refer to the
her identity, States Parties had to provide Constitution for reference and guidance.
appropriate assistance and protection, Article 35 of the Constitution provided
with a view to re-establishing speedily that every citizen had the right of
the child’s identity. Article 30 of the same access to information held by the State,
convention provided that the competent information held by another person and
authorities of a Contracting State were required for the exercise or protection
to ensure that information held by of any right or fundamental freedom.
them concerning the child’s origin, in Information regarding adoption of
particular information concerning the children in Kenya was held by the
identity of the child’s parents, as well State and adoption agencies. Article 35
as the medical history, was preserved. enabled the child either during the age
It required State parties to ensure that of minority through her legal guardian
the child or his or her representative or after attaining the age of majority to
had access to such information, under apply to be furnished with information
appropriate guidance, in so far as was about their biological parents.
permitted by the law of that State. 9. Article 31 of the Constitution provided
6. The law in the United Kingdom provided that every person had the right to privacy,
that children could apply for a copy of which included the right not to have
their original birth certificate and for information relating to their family or
information about their birth family from private affairs unnecessarily required or
the adoption agency, which arranged revealed. That provision brought about
the adoption. Adult adoptees and birth a competition of rights and interests.
family members could also apply to The biological parents of the child had
the Registrar General for entry of their the right to have their matters kept in
names on the Adoption Contact Register secrecy but the child on the other hand
which included the names of adopted had the right to the information and to
persons and the relatives of adopted know their true identities. Article 53 of
persons. In other Jurisdictions, the right the constitution provided that the best
was guaranteed once one reached the age interest of the child was of paramount
of majority. importance in all matters affecting the
7. From the child study report, one would child. Children adoptees had a right to
be able to gather information as to who know the identity of their parents, the
were the biological parents of the child, if parent’s origin and the existence if any
28
of their siblings. In pursuing the right one’s roots or identity was found
to know one’s origins as a fundamental to be the most important reason
right, the three interests that emerged as to why adoptees wanted to
were - medical, legal and genetic. Also, know about their biological
when enjoying the right, one had to parents since it underlay the need
strike a balance between the need for to know and could shape the
one to know the biological parents, and identity of an adopted person.
protection of confidentiality/privacy of 13. It could now be claimed with some
the biological and adopting parents. confidence from the available evidence
10. The need to know one’s parentage and that there was a psychological need in
background was crucial to children and all people, manifest principally among
adults who did not have that information. those who grew up away from their
That right to know one’s origins meant original families, to know about their
having the information and identity of background, geneology, and personal
one’s biological parents and conditions history, if they were to grow up feeling
of birth. The right to know stemmed complete and whole. The idea of the
from the desire to know the identity of importance of blood ties and genes
self. Social scientists had considered the was common to most people and they
meaning of identity to be determined felt profoundly deracinated if brought
by three main aspects: - self-definition, up with no knowledge of their blood
coherence of personality and a sense of origins. That psychological need to know
continuity over time. one’s origins had now been recognized as
11. Identity was thus seen as essentially ‘self- sufficiently fundamental or vital to give
in-context.’ That meant that identity rise to a human right. It was an important
was often determined by social changes element in one’s psychological balance
and one’s definition of self was affected to know where one came from and that
by how a relationship was seen in the everyone had a right to know the truth
social context. Adoption transgressed about their origins.
the notions of identity and the journey 14. Adopted persons who did not have
of identity development in Kenya was information about their roots often had
complex and problematic for adopted difficulty establishing a personal identity.
persons. Adoption was governed by Problems with identity formation were
different kinds of social arrangements; particularly acute during adolescence
those arrangements had implications on and at crisis points in adulthood.
the development of the identity of the A diminished sense of self was also
child. related to genealogical bewilderment.
12. Many adopted persons felt the need Genealogical bewilderment could occur
to know information about their birth when children either did not have any
parents. That need translated to an knowledge of their biological parents
assertion of the right to know one’s or possessed only uncertain knowledge
origins. There were three main needs to and the resulting State of confusion and
have that information – uncertainty fundamentally undermined
a. There was often the desire to children’s sense of security, thus
know one’s medical and health affecting their mental health. In addition
history and for that purpose, to the psychological need, medical crises
knowing the medical history also often precipitated the need for
of one’s parents and ancestors information about biological relatives.
became important. Ranging from allergies to searches for
b. One’s legal interest in property, transplant donors, medical needs could
which blood relationship could have left adoptees without sufficient
confer on children. Those information to get proper treatment.
two interests were subsidiary Short of a crisis, impending marriage
interests. and childbearing led to concerns about
c. The primary interest was a genetic disease and hereditary traits.
psychological need for identity. Other reasons for open records advanced
The psychological need to know by adoptees included inheritance rights,
29
religion, and simply a longing to meet and private life and guaranteed against
their birth parents. arbitrary interference with the same.
15. It was beyond doubt that there was an The right to privacy and family life was
international recognition of the Child’s also guaranteed under article 8 of the
Right to identity as a fundamental right. European Convention of Human Rights.
That psychological need to know one’s 19. That need of the child to know about
identity had been articulated as a right her background was also recognized
in the Convention for the Rights of the in the Declaration on Social and Legal
Child 1989 (CRC) in articles 7 and 8. The Principles relating to the Protection
CRC had gone on to protect several rights and Welfare of Children, with Special
of the child, such as the right to identity Reference to Foster Placement and
that were not recognized as fundamental Adoption Nationally and Internationally
human rights before, a recognition that in article 9 which stated that the need
it was a right worthy of international of a foster or an adopted child to know
recognition. “Identity” was not defined about his or her background was to be
under the CRC and only instances of recognized by persons responsible for
identity such as nationality, name and the child’s care, unless that was contrary
family relations were listed. to the child’s best interests.
16. Article 8 was particularly meant to 20. The competing rights such as the right to
address unusual conditions such as privacy for the biological parents and the
natural parents versus adoptive parents adopting parents all had to be balanced.
and other such conditions. Article 8, With those competing interests, courts
therefore imposed an obligation on the were obligated to ensure that the best
State to not only preserve the identity of interests of the child where the child
a child i.e. to preserve all the information was still a minor, had to prevail over
relating to the biological parents of the all interests of all other parties. On the
adopted child, but also not to deprive the other hand, where the child had attained
child of such information and to assist the age of majority as in the instant case,
the child in getting such information. the reasons for refusal to supply the
17. The CRC thus affirmed that an adoptee information had to satisfy the limitations
could seek a right against the State test under article 24 of the Constitution.
or any person for providing him/her 21. The law in Kenya was in favour of the
information about her identity and disclosure. First, the adopted person
about her biological parents. In addition had a constitutional right to dignity and
to the CRC, the child’s right to know privacy which included right to know
her identity was also protected in the their biological parents. By insisting
Hague Convention on Protection of on the information, the person was
Children and Cooperation in Respect of seeking to exercise a fundamental right
Inter- Country Adoption. In article 30, it recognized in Kenya’s Constitution and
required State authorities to ensure that international Instruments discussed
information held by them concerning the above. Article 35 of the constitution
child’s origin, in particular information provided that every citizen had the right
concerning the identity of his or her of access to information held by the state,
parents, as well as the medical history, information held by another person and
was preserved and that the child or required for the exercise or protection of
his or her representative had access to any right or fundamental freedom.
such information, under appropriate 22. Information regarding adoption of
guidance, in so far as it was permitted by children in Kenya was held by the State and
law in that State. adoption agencies. The only limitation
18. The child’s right to know his or her in the case of a minor would be the best
origin was derived from the general right interests of the child contemplated under
to privacy guaranteed under article 17 article 53 (2) of the Constitution. For an
of the International Covenant on Civil adult as in the present case, the reasons
and Political Rights 1966. The right to for refusal could only pass constitutional
privacy would include the right to know muster if they satisfied limitation of
and receive information of one’s family rights under article 24. For example, the
30
need to ensure that the disclosure did issues. Decisions on violation of

not prejudice the rights and fundamental constitutional rights could not be based
freedoms of others. Examples here would upon the unsupported hypotheses.
have included the right to privacy of 26. There was also no evidence that the
the biological parents and the Adoptive Petitioner ever requested the information
parents, but even then, the burden lay in question from the 3rd Respondent or
on the person who sought to justify the any of the Respondents and was denied.
limitation to demonstrate to the Court There had to be a request for information
that the requirements of article 24 of the before a party entitled to that information
Constitution had been satisfied. could allege a violation. Even where a
23. There was no material before the Court citizen was entitled to seek information
to demonstrate that the 3rd Respondent under article 35(1), he or she was under
handled the adoption in question or an obligation to request for it. Only if it
had in its custody, care or control the was denied after such a request could a
information sought. The adoption was party approach the court for relief.
done in Court. The Petitioner did not 27. Failure by the Petitioner to adduce
avail the court proceedings, judgment evidence to link the 3rd Respondent
and documents produced in court in the with the adoption led the Court to the
adoption proceedings to demonstrate irresistible conclusion that there was no
that indeed the 3rd Respondent was material for the Court to conclude that
involved in the Adoption. The Court had the 3rd Respondent handled the adoption
the Petitioner’s averments on one side in question or had in their custody,
and a denial by the 3rd Respondent on control or power the information sought.
the other and it was expected to make a Consequently, the answer to the issue
determination. under consideration was in the negative.
24. All cases were decided on the legal 28. The 1st and 2nd Respondents cited
burden of proof being discharged (or provisions of the Civil Procedure Rules
not). No Judge liked to decide cases and heavily relied on decisions rendered
on the burden of proof if he could in civil cases. They over looked the
legitimately avoid having to do so. There fact that the case was a constitutional
were cases, however, in which, owing to Petition seeking to enforce fundamental
the unsatisfactory state of the evidence rights and that the same was expressed
or otherwise, deciding on the burden of under the provisions of the Constitution.
proof was the only just course to take. The proceedings were governed by the
Whether one liked it or not, the legal Constitution of Kenya (Protection of
burden of proof was consciously or Rights and Fundamental Freedoms)
unconsciously the acid test applied when Practice and Procedure Rules, 2013.
coming to a decision in any particular 29. It was evident both from the Constitution
case. The court’s decision in every case and the rules which required that
was to depend on whether the party substantive justice be done that the
concerned had satisfied the particular joinder, misjoinder or non-joinder of
burden and standard of proof imposed a party was not sufficient to defeat a
on him. constitutional Petition. Those rules
25. It was a fundamental principle of law were in accord with the requirements
that a litigant bore the burden of proof of the Constitution that in exercising
in respect of the propositions he asserted judicial authority, the Court was to
to prove his claim. Decisions on violation seek to do substantive justice, hence the
of constitutional rights were not to be provisions of article 159 (2)(d) of the
made in a factual vacuum. To attempt to Constitution which provided that justice
do so had the impact of trivializing the was to be administered without undue
Constitution and inevitably result in ill- regard to procedural technicalities. In
considered opinions. The presentation the circumstances, the objection which
of clear evidence in support of violation premised on the alleged misjoinder of
of constitutional rights was not, a mere parties failed.
technicality; rather, it was essential to a 30. In a mathematical proof, elegance was
proper consideration of constitutional the minimum number of steps to achieve
31
the solution with greatest clarity. In The instant pleading was not so prolix
dance or the martial arts, elegance was that the opposite party was unable to
minimum motion with maximum effect. ascertain with precision the causes of
In filmmaking, elegance was a simple action and the material facts that were
message with complex meaning. The alleged against them. The issues raised
most challenging games had the fewest in the Petition were not confusing. The
rules, as do the most dynamic societies objection based on the said ground thus
and organizations. An elegant solution failed.
was quite often a single tiny idea that 35. The Petitioner was an adult in his late
changed everything. Elegance was thirties or thereabouts. He could not be
the simplicity found on the far side of heard to say he had a fundamental right
complexity. to receive financial support from his
31. While elegance in a pleading was not parents or even to be facilitated to travel
a precondition to its legitimacy, it was abroad as of right as he alleged. Failure
an aspiration which, if achieved, could to visit him in prison could have been
only but advance the interests of justice. distressing but the victims of the crime
A poorly drawn pleading, on the other were his parents. They could have been
hand, which did not tell a coherent story distressed too.
in a well ordered structure, would fail 36. The apprehension that the adoptee could
to achieve the central purpose of the have been disinherited remained a mere
exercise, namely communication of the apprehension. Courts did not deal with
essence of case which was sought to be hypothetical situations. Differently put,
advanced. whether or not the Petitioner’s fear of
32. Pleading was not to be dismissed as his right to inherit his parents could be
a lost art. It had an important part to canvassed in the instant Petition raised
play in civil litigation conducted within common law principles in relation to
the adversarial system. Crafting a good what were called abstract, academic or
pleading called for precision in drafting, hypothetical questions. The principle
diligence in the identification of the is called ripeness; it prevents a party
material facts marshaled in support of from approaching a court prematurely
each allegation, an understanding of the at a time when he/she has not yet been
legal principles which were necessary to subjected to prejudice, or the real threat
formulate complete causes of action and of prejudice, as a result of the conduct
the judgment and courage to shed what alleged to be unconstitutional.
was unnecessary. 37. The essential flaw in the applicants’ cases
33. Although a primary function of a was one of timing referred to as ‘ripeness’.
pleading was to tell the defending party The doctrine of ripeness serves the useful
what claim it had to meet, an equally purpose of highlighting that the business
important function was to inform the of a court is generally retrospective; it
court or tribunal of fact precisely what deals with situations or problems that
issues were before it for determination. have already ripened or crystallised, and
34. The function of a pleading in civil not with prospective or hypothetical
proceedings was to alert the other ones. Although, the criteria for hearing a
party to the case they needed to meet constitutional case were more generous
and hence satisfy basic requirements of than for ordinary suits, even cases for
procedural fairness and further, to define relief on constitutional grounds were not
the precise issues for determination so decided in the air. The time of the instant
that the court could conduct a fair trial. Court was too valuable to be frittered
The cardinal rule was that a pleading away on hypothetical fears of corporate
had to state all the material facts to skeletons being discovered.
establish a reasonable cause of action (or 38. It had always been a fundamental feature
defence). The expression material fact of Kenya’s judicial system that the Courts
was not synonymous with providing all decided disputes between the parties
the circumstances. Material facts were before them; they did not pronounce
only those relied on to establish the on abstract questions of law when there
essential elements of the cause of action. was no dispute to be resolved. It was
32
perfectly true that usually the court and regardless of criminal proceedings
did not solve hypothetical problems against him. The Petitioner had however
and abstract questions and declaratory not demonstrated that a dispute existed.
actions could not be brought unless the There was nothing on record to show
rights in question in such action had that the parents had denied, disowned
actually been infringed. The requirement the Petitioner as their son.
of a dispute between the parties was a 41. Courts decided disputes between
general limitation to the jurisdiction of the parties before them; they did not
the Court. The existence of a dispute was pronounce on abstract questions of law
the primary condition for the Court to when there was no dispute to be resolved.
exercise its judicial function. Ripeness The court did not solve hypothetical
asked whether a dispute existed, that was, problems and abstract questions and
whether the dispute had come into being. declaratory actions could not be brought
39. In the instant case, a dispute on the alleged unless the rights in question in such
inheritance rights did not exist. Before action had actually been infringed. The
the Court was a constitutional Petition declaration sought if granted in the
seeking declarations premised on alleged instant Petition, owing to the peculiar
violation of constitutional rights but not circumstances of the case, would have
a succession dispute. A dispute premised been tantamount to determining
on alleged inheritance right was a matter succession rights or property rights or
primarily to be determined in succession declaring the Petitioner a beneficiary
proceedings where beneficiaries were which would have had far reaching
identified and their rights over the consequences because it would have
property, if any, determined. amounted to encroaching in to the
40. On the question of ripeness, the court mandate of the succession court in the
was being asked to make a declaration on event of a succession dispute.
an issue whether the Petitioner was part Orders
of the 1st and 2nd Respondents family, Petition dismissed with no orders as to costs.
despite not being their biological son
Constitutionality of the Election Laws Amendment Act, 2017 after the

Annulment of the August 8, 2017 Elections
Katiba Institute and 3 Others V. Attorney General and 2 Others
Constitutional Petition No. 548 of 2017
April 6, 2018
E. C Mwita, J
Reported by Robai Nasike Sivikhe and Faith Jepchirchir
Electoral Law - structure of the Independent Electoral Law- transmission and declaration
Electoral and Boundaries Commission- the of results- the process of transmission of results-
office of the Chairperson of the Commission- the whether the amendment that made no requirement
functions and powers of the Chairperson of the regarding a prescribed form in which results
Commission- what was the definition of a person could be transmitted was unconstitutional-
qualified as chairperson of the Independent whether section 39 (1D) as read with section 39
Electoral and Boundaries Commission- whether (1C) of the IEBC Act created a potential tension
any other person in the commission, including between physically transmitted results and
the vice chairperson, could take over the electronically transmitted results- whether live
position and function of the chairperson of the streaming of election results was crucial to the
IEBC- whether IEBC Commissioners had the electoral process and section 39 (1G) that seemed
power to select a chairperson of the IEBC from to curtail live streaming of election results was
amongst themselves- Independent Electoral and unconstitutional- whether the Chairperson could
Boundaries Commission Act, 2011 sections 2, 7A declare a person as President Elect even though
(4), 7A (5), 7A (6) and paragraphs 5 and 7 of the results from some constituencies were yet to be
Second Schedule transmitted- Elections Act, 2011 sections 39(1C)
(a), 39(1D), 39(1E), 39(1F), 39(1G), and 83
33
Jurisdiction- jurisdiction of the High Court- vi. Whether live streaming of election
co-shared jurisdiction of the High Court and results was crucial to the electoral
Supreme Court with regard to interpretation of process and section 39(1G) that seemed
the Constitution- whether the Supreme Court to curtail live streaming of election
had determined the issue regarding amendments results was unconstitutional
made to section 83 of the Elections Act- whether vii. Whether the Chairperson could declare
court had jurisdiction to determine the issue of the a person as President Elect even though
constitutionality of the amendment to section 83 results from some constituencies were
of the election act although the issued had been yet to be transmitted.
raised before the Supreme Court. viii. Whether court had jurisdiction
to determine the issue of the
Brief Facts
constitutionality of the amendment to
The Petitioners challenged the Election Laws section 83 of the election act although
Amendment Act, 2017 which was enacted the issued had been raised before the
by the 3rd Respondent to amend various Supreme Court.
provisions of the Elections Act, 2011, the Relevant provisions of the Law
Independent Electoral and Boundaries Constitution of Kenya, 2010
Commission Act, and the Election Offences Article 88 (5)
Act contending that the amendments The Commission shall exercise its powers
were unconstitutional. The Petitioners and perform its functions in accordance with
contended that the amendments introduced this Constitution and national legislation.
after the annulled 2017 Presidential election Article 137 (1)(C)
violated national values and principles in A person qualifies for nomination as a
articles 10, 81 and 86 of the Constitution presidential candidate if the person -(c)…
in that they tended to inhibit rather than is nominated by a political party, or is an
enhance transparency and accountability independent candidate..
of the electoral process. They argued that Article 250(2)
those amendments were unconstitutional The chairperson and each member
and violated not only articles 10, 81 and 86 of a commission, and the holder of an
of the Constitution, but also were intended independent office, shall be—
to circumvent the majority Judgment of (a) identified and recommended for
the Supreme Court in Raila Odinga and appointment in a manner prescribed by
another v Independent Electoral and Boundaries national legislation;
Commission & 2 others. (b) approved by the National Assembly; and
Issues (c) appointed by the President.
i. What was the definition of a person Article 250(3)
qualified as chairperson of the … to be appointed, a person shall have
Independent Electoral and Boundaries the specific qualifications required by this
Commission? Constitution or national legislation.
ii. Whether any other person in the Article 259(1)
commission, including the vice This Constitution shall be interpreted in a
chairperson, could take over the position manner that –
and function of the chairperson of the (a) promotes its purposes, values and
IEBC principles;
iii. Whether IEBC Commissioners had the (b) advances the rule of law, and the human
power to select a chairperson of the rights and fundamental freedoms in the Bill
IEBC from amongst themselves. of Rights; (c) permits the development of the
iv. Whether the amendment that made law; and (d) contributes to good governance
no requirement regarding a prescribed Article 259 (3)
form in which results could be Every Article of the Constitution should be
transmitted was unconstitutional construed according to the doctrine that the
v. Whether section 39(1D) as read with law is always speaking and that
section 39(1C) of the IEBC Act created (a) a function or power conferred by
a potential tension between physically the Constitution on an office may be
transmitted results and electronically performed or exercised as occasion
transmitted results. requires, by the person holding the office
34
The Independent Electoral and Boundaries tallying centre;

Commission Act (b) tally and verify the results received
Section 2 at the constituency tallying centre and
“Chairperson” means “the Chairperson the national tallying centre; and
of the Commission appointed in (c) publish the polling result forms
accordance with Article 250(2) of the online public portal maintained by
Constitution or the Vice chairperson Commission.”
or a member of the Commission Held
when discharging the functions of the 1. The Constitution, in article 250(2),
chairperson”. provided that there should be a
chairperson identified and appointed in
Section 7B accordance with a national legislation.
(l) Whenever the chairperson is absent, In the case of the Independent Electoral
the vice-chairperson shall assume the and Boundaries Commission (IEBC),
duties of the chairperson and exercise the Chairperson had to be identified
the powers and responsibilities of the in accordance with the Independent
chairperson; Electoral and Boundaries Commission
(2) Whenever the chairperson and the Act and appointed in accordance with
vice-chairperson are absent, members the Constitution. Once appointed, the
of the Commission shall elect from Chairperson performed constitutional
amongst themselves a member to act as functions that only the person appointed
the chairperson and exercise the powers in accordance with the Constitution
and responsibilities of the chairperson; could perform. In that regard therefore,
(3) the provisions of section 6(1) shall there could be only one chairperson who
not apply to the vice chairperson or a was appointed in the manner provided
member acting as chairperson under for by the Constitution and the IEBC
this section”. Act. The Vice Chairperson or any other
The Elections Act member, however appointed, could not
Section 83 be defined as Chairperson.
“(l) A Court shall not declare an 2. The definition in the amended section 2
election void for non-compliance with IEBC Act was too broad and overboard.
any written law relating to that election It conferred a title and status on a person
if it appears that- who was not intended by the Constitution.
(a) the election was conducted in That was because section 6 (1) of the IEBC
accordance with the principles laid Act provided for qualifications one had
down in the Constitution and in that to have to be appointed chairperson of
written law; and the Commission. He had to be qualified
(b) the non-compliance did not to hold the office of Judge of Supreme
substantially affect the result of the Court.
election. 3. Only a person, who possessed
(2) Pursuant to section 12 of the the requisite qualifications, could
Interpretation and General Provisions qualify to be appointed chairperson
Act, a form prescribed by this Act or the of the Commission. And only a
regulations made thereunder shall not person appointed as required by the
be void by reason of a deviation from Constitution could fall in the definition
the requirements of that form, as long of chairperson. Therefore, the definition
as the deviation is not calculated to of chairperson had to be limited to the
mislead.” person who met the qualifications and
Section 39 (1C) was appointed in accordance with the
“For purposes of a presidential election, Constitution. Anyone else, whether
the Commission shall- in acting capacity, or not could not be
(a) electronically transmit and defined as chairperson. There was no
physically deliver the tabulated results justification to have a different definition
of an election for the President from assigned to the chairperson of IEBC. The
a polling station to the constituency former definition was in line with the
tallying centre and to the national Constitution as opposed to the new one.
35
4. The import of the amendment 7A(4) and 7A(5) IEBC Act was to allow
introduced by section 7A(4) of the IEBC a person who was not the chairperson,
Act was that the vice chairperson could had no qualifications required by section
act as chairperson and discharge the 6(1) and not appointed in accordance
full constitutional responsibilities of with the Constitution to take over
the chairperson should a vacancy occur leadership of the Commission and
in that office. Although that could, on perform constitutional functions of the
the face appear a simple issue, one had chairperson. That was a clear violation
to bear in mind that the chairperson of the Constitution and in particular
appointed in accordance with the articles 138(10) and 250(2) and (3).
Constitution, performed some critical 8. It was more intriguing that section
constitutional functions only reserved 7A(6) of the IEBC Act suspended section
for the chairperson. The role and 6(1) of the IEBC Act with regard to
authority of the chairperson emanated qualifications of the chairperson. At that
from the Constitution. In a nutshell, time section 7A(4) and 7A(5) IEBC Act
he was the head and spokesperson, became applicable notwithstanding that
provided leadership and direction to the the person could perform and exercise
Commission. On being appointed, he/ full responsibilities of the chairperson.
she took the oath of office to execute his In essence, section 7A(6) IEBC Act read
mandate as such. purposively, had the singular effect
5. It was not possible for a person who of suspending article 250(3) of the
had not met the qualifications required Constitution regarding the qualifications
to assume and perform constitutional of the Chairperson. When the framers
functions of the Chairperson. Ordinarily, of the Constitution included sub article
the vice chairperson would perform 3 in article 250, they had no illusion that
certain minimal administrative functions it would be followed.
in the absence of the chairperson. That 9. Where the Constitution provided
would not however entitle him/her to the manner of appointment and
assume the full duties and perform critical went further to state in a plain and
functions including constitutional unambiguous language that the
mandate of the Chairperson when he qualification contained in the national
does not meet the qualifications to be legislation that one had to meet to be
chairperson, and has not been appointed appointed to a particular position had
in accordance with the Constitution. to be strictly followed. Parliament, as
When the Constitution provides that the legislative organ of state, had only
chairperson be appointed in a particular one option; to obey and observe that
manner, there can be no shortcut but to constitutional decree. It could not, in the
stick to the constitutional dictates. An exercise of its legislative authority, enact
appointment done in any other manner a law whose effect was to circumvent
would be unconstitutional. that constitutional command. Short of
6. The qualifications for the chairperson that, such a law would fall to be declared
set out in section 6(1) IEBC Act was unconstitutional as demanded by article
anchored in the Constitution and were 2(4) of the Constitution.
mandatory. A person without those 10. Article 259(3) had to be read purposively
qualifications could not by any means be and in harmony with article 250 of
chairperson whether in acting capacity the Constitution. In the case of IEBC
or not, since the Constitution left no the person holding the office had to be
option. Some of the chairperson’s placed in that position as required by
mandate were clearly spelt out in the Constitution and the law. Article
article 138(10) of the Constitution to 259(3) could not be the motivation for
declare presidential results. That was a enacting a legislation that overrode
responsibility that only the chairperson the Constitution. Moreover, the
identified, recommended and appointed chairperson’s appointment had to
as required by the Constitution could be differentiated from that of the
perform. vice chairperson who was elected by
7. The purpose and effect of the sections Commissioners under article 250(10)
36
and a vacancy in that office filled in Therefore, Parliament was alive to that
accordance with article 250(11). If the when it enacted section 6(1) of the IEBC
Constitution provided how a vacancy Act providing the qualifications one
in the vice chairperson’s position should would have to meet to be appointed
be filled, that of the Chairperson had to, to the position of chairperson. It was
in the same vain, be filled in accordance inconceivable that the same Parliament
with the Constitution as read with the would suspend operations of the same
section 6(1) of the IEBC Act to give the provision at some convenient time.
Constitution a harmonious reading. 13. Weighing section 7B as read with section
Therefore, section 7A(6) of the IEBC Act 6 of the IEBC Act against the articles of
was unconstitutional. the Constitution, it emerged clearly that
11. A reading of section 7B of the IEBC Act it was not only unconstitutional but it
had a similar effect as section 7A(4), (5), would also have unintended negative
and (6). Even though a dully appointed consequences. It would engineer
chairperson could be in office, the section divisions, fights, disharmony and cause
empowered the vice chairperson to disorientation within the Commission
exercise the chairperson’s functions for in the discharge of its constitutional
reasons other than inability to discharge mandate. The provision would also
his functions under the Constitution and weaken the position of the Chairperson
the law. The same applied to a situation and cause unnecessary tension.
where both the chairperson and vice Members of the Commission could take
chairperson were absent which would advantage of the chairperson’s absence
allow members of the Commission to make fundamental decisions with
to elect an unqualified member of the serious ramifications to the Commission
Commissioner to act as chairperson and the country, taking into account
and exercise responsibilities of the the divisive nature of politics in the
chairperson. The Act had not defined country viz a viz the important role the
the word absent. However, taken in Commission played in the management
its ordinary meaning and context; that of elections. It could not be in the best
absent meant not being present in a place, interest of the Commission to allow
at an occasion or as part of the meeting, commissioners to choose one of their
the section created mischief. Section own, albeit unconstitutionally, to
7B(3) of the IEBC Act also suspended exercise constitutional mandate of the
section 6(1) of the IEBC Act in such an chairperson who was lawfully in office.
eventuality. 14. The law had to be certain and support
12. Section 7B of the IEBC Act not only the functioning of an Independent
flew in the face of article 250(2) and Constitutional Commission given that
(3) of the Constitution just like section the tenure of the chairperson once
7A(4), (5) and (6) but also generally appointed, was guaranteed by the
made nonsense of the Constitution and Constitution. Allowing Commissioners
the IEBC Act on the importance of the to choose one of them to act as
office of chairperson of the Commission. Chairperson, was to allow them to oust
IEBC was an independent Commission the Chairperson and or his Vice from
that discharged critical mandate under office should an opportunity present itself
article 88(4) of the Constitution. The despite the fact that Chairperson’s tenure
framers of the Constitution were clear and independence was constitutionally
when they stated in article 88(5) that the protected. A provision such as section
Commission would exercise its powers 7B weakened the Commission. It would
and perform its functions in accordance most certainly affect its institutional
with the Constitution and national independence guaranteed by the
legislation. They also tasked Parliament Constitution and emphasized under
with the responsibility of enacting section 26 of the IEBC Act. It also
legislation to operationalize article 88. exposed the Commission to external
They said in plain language in article pressure or direction in violation of the
250(3) that the qualifications for the Constitution.
chairperson had to be strictly followed. 15. The Commission was composed of 7
37
members including the Chairperson. to exercise powers and functions of

The quorum for purposes of conducting the Chairperson, to the quorum of the
business was half of the members but not Commission for purposes of meetings, it
less than three. Hence the Commission was obvious that those amendments had
could comfortably conduct business a negative and unconstitutional effect
with three out of seven members, a to the functioning of the Commission.
minority of the Commissioners. The new An unconstitutional purpose or an
paragraph 7 of the second schedule to unconstitutional effect was enough to
the IEBC Act which required that if there invalidate legislation. If the effect of
was no unanimous decision, a decision implementing a statute or provision
of the majority of the Commissioners infringes a right, the impugned
present and voting would prevail had statute or section should be declared
one fundamental flaw. With a quorum of unconstitutional. The amendments to
three Commissioners, there was a strong the IEBC Act were unconstitutional.
possibility of three Commissioners 18. Prior to the amendments, section
meeting and two of them being the 39(1c) of the Elections Act required the
majority, making a decision that would Commission to electronically transmit,
bind the Commission despite being in the prescribed form, the tabulated
made by minority Commissioners. That results of an election for the president
would not auger well for an Independent from a polling station to the constituency
Constitutional Commission that tallying centre and to the national tallying
discharged very important constitutional centre; (b) tally and verify the results
mandate for the proper functioning received at the national tallying centre;
of democracy in the country. Such and (c) publish the polling result forms
a provision encouraged divisions on an online public portal maintained
within the Commission given that the by the Commission. The difference
Commission’s decisions had far reaching between the old subsection (1C) and the
consequences on democratic elections new subsection was that:
as the foundation of democracy and the a) whereas the results were to be
rule of law. transmitted only electronically, the
16. Quorum being the minimum number of new subsection required that election
Commissioners that had to be present to results be not only transmitted
make binding decisions, only majority electronically but also delivered
commissioners’ decision could bind the physically from the polling stations
Commission. Quorum was previously to the constituency tallying centres
5 members out of the 9 commissioners and the national tallying centre.
including the Chairman, a clear majority b) Whereas the results were to be
of members of the Commission. With transmitted in the prescribed form,
membership of the Commission reduced there was no requirement for any
to 7, including the Chairperson, half of particular form for purposes of
the members of the Commission, or transmission of results.
3 commissioners formed the quorum. 19. The problem was with regard to
Instead of making the quorum higher, transmission of results from the polling
Parliament reduced it to 3 which was not stations to the constituency and national
good for the proper functioning of the tallying centres as required by the new
Commission. In that regard therefore, in section 39(1C)(a) of the IEBC Act. There
decision making process where decisions was no requirement for the results to
were made through voting, only decisions be transmitted in any prescribed form
of majority of the Commissioners could which was an essential requirement in the
be valid. Short of that anything else deleted subsection. That was an essential
would be invalid. Paragraphs 5 and 7 safeguard that guaranteed verifiability,
of the Second Schedule were plainly transparency and accountability of the
skewed and unconstitutional. election results transmitted from polling
17. Looking at the amendments and reading centres to the constituency and national
the Act as a whole, from the definition tallying centres. That was made even
of Chairperson, election of a member more troubling by the fact that results
38
would also be physically delivered to accuracy, verifiability and reliability

the constituency and national tallying of elections. Accuracy guaranteed
centres but in no particular prescribed democratic elections as the foundation
form. That not only opened the results to of a democratic state. Section 39(1D)
possible adulteration and manipulation as read with 39(1)(F) of the Elections
but also mischief. The amendment Act were vague and ambiguous on
obviously reversed the gains the country which results were the accurate record
had made in electoral reforms including of the election as tallied verified and
results transmitted in a particular form. announced by the presiding officers
20. The changes that had been introduced since there could be only one result
in the former section 39(1)(c) had been from an election. Those subsections
introduced in line with the dictates of downgraded the significance of accuracy
the Constitution. For that reason, a law and transparency of an election thus
allowing election officials once again to opened room for speculation and
troop to the Constituency and national manipulation of election results. The
tallying centres with hard copies of Commission had the enviable role of
election results in no particular forms not only guaranteeing the accuracy of
was to take several steps backward from elections and results therefrom, but also
the progress the country had made to ensuring that they were in conformity
guarantee free, fair and transparent with constitutional principles in articles
elections in conformity with the 10, 81 and 86. There should never be
Constitution. That amendment was room again in the election laws for the
clearly against the spirit of articles 10, 81 possibility of manipulating elections or
and 86 of the Constitution and could not results as that would undermine free and
pass the constitutionality test of validity. fair elections which were the hallmark of
21. Section 39(1D) of the Elections Act, on a democratic society.
the face of it, appeared to be in line with 24. Section 39(1F) of the Elections Act
article 138(3)(c) of the Constitution. absolved presiding or returning Officers
However, section 39(1D) presented who, though without justification, failed
a problem when read together with to transmit or publish election results
section 39(1E). A reading of the two in an electronic format. The country’s
sub-sections created a potential tension experience over tinkered results was
between physically transmitted results well known and would not like to
and those transmitted electronically. go back there. It adopted electronic
First, the results were supposed to be transmission of election results as a
from the same process, they should have way of guaranteeing free, fair, accurate,
been counted, tallied and verified before transparent and accountable elections
being transmitted. They therefore ought as required by the Constitution. The
to have been the same. The way those Election laws were enacted to ensure that
sub-sections were crafted was not only counting was done at polling stations
vague and ambiguous but also created and presiding and returning officers
a conflict between the two modes of electronically transmitted verified
transmission of results thus opened elections results in conformity with the
a window for tinkering with election spirit of the Constitution.
results. 25. The enactment of section 39(1F) of the
22. Ambiguity or vagueness in a statutory Elections Act was clearly a drawback on the
provision made that provision void. A very principle of accuracy, transparency
provision was said to be vague and or and accountability of election results
ambiguous when the average citizen was enshrined in the Constitution. Free and
unable to know what was regulated and fair election was the process towards
the manner of that regulation; or, where electoral democracy and the highway to
the provision was capable of eliciting a democratic state. Rather than a move
different interpretations and different forward, section 39(1F) was a backward
results. Such a provision would not meet step in so far as the requirements for
constitutional quality. free and fair elections were concerned.
23. The Constitution was very clear on the Juxtaposed against articles 10, 81 and 86
39
of the Constitution, it was obvious that results were a product of the same
section 39(1F) struck at the heart of the process. One process could not have two
principles of the electoral system in the different results. Live streamed results
Constitution, for saving results that had played a significant role in determining
not been transmitted as required by law. the final results. Those results had to be
That violated constitutional principles as much correct as those finally declared.
and was invalid. Section 39(1G) was a mockery of the
26. Live transmission of election results requirements for free, fair and credible
announced at the polling stations elections. It violated the principles of
to the Constituency and national electoral systems in the Constitution.
tallying centres was critical when it That amendment could not hold in the
came to openness, transparency and Kenya transformative constitutional
accountability of the electoral process. dispensation.
Live transmission of election results was 29. Amendments introduced by section
adopted after reforms were introduced 39(1C)(a), 39(1D), 39(1E), 39(1F) and
in election laws as a means of avoiding 39(1G) of the Election Act, had the effect
situations where election results of weakening rather than strengthening
announced at the polling station would the electoral process. Any amendments
later significantly differ from those that would have the effect of
declared at the constituency and national circumventing constitutional principles
tallying centres. The results announced were unconstitutional.
at the polling stations formed the basis 30. The Constitution required that the
of any other results declared either at the Commission held elections in all the 290
constituency or national tallying centres. Constituencies in the case of Presidential
27. The import of section 39(1G) was to Elections. Therefore, it had to discharge
make live streaming of results from its mandate by holding elections in each
polling stations of no value when it came constituency and ensuring that voters in
to the finality of the declared results. If the constituency have had an opportunity
the intention of the legislature was that to vote. In that regard, the reading of
results streamed live from the primary section 39(2) of the Elections Act was
source should not matter when it came not that elections had not been held, but
to the final tally, why should the country that the Commission had held elections,
invest heavily in technology as provided received election results and was satisfied
for in section 44 of the Act, have results that results from the Constituencies that
streamed live from polling stations were yet to transmit, would not change
for public information only? Live the election results. The Chairperson
streaming of election results was one could in such circumstances declare a
way of conforming to the constitutional person elected president. The mandate
principles of transparency and of the IEBC was to declare the winner
accountability. Citizens should be able of the presidential contest after tallying
to compare the live transmitted results the results received and determining
with the final declared results to confirm that those remaining were such that they
the accuracy of the election results. would change the position regarding the
28. When Parliament enacted a law that winner.
significantly eroded the element of 31. A plain reading of section 39(2) and (3)
transparency and accountability in the of the Elections Act had not disclosed
electoral process, such a law overrode the any unconstitutionality. Section
constitutional principles of the electoral 39(2) and (3) of the Elections Act had
systems contemplated in articles 10, 81 removed provisional results so that
and 86 of the Constitution. You could the Commission was only to announce
not have results that were streamed live final results and made it clear that the
from polling stations but which were of chairperson could declare a person
no value when it came to declaration of elected president if results from the yet
final results. The results streamed live to transmit constituencies would not
from polling stations were the primary affect the final tally. There was really
source of those finally declared. Final nothing unconstitutional if final results
40
were announced when it was clear that Constitution when they included those
those from the remaining constituencies principles of electoral system in the
would not change the election result Constitution. Those principles were part
as to who the winner was. There was and parcel of the Constitution and were
no constitutional invalidity in those important in holding free, fair, open,
provisions. However, it was desirable transparent, impartial and accountable
that all results be received and tallied elections. Those were constitutional and
before a declaration of the winner was not statutory requirements. Parliament
made. could not enact a legislation that had the
32. Section 44 of the Elections Act dealt effect of whittling down constitutional
with use of technology and established principles that had been harmonized
an integrated electronic electoral system and embodied in section 83 prior to its
that enabled biometric voter registration, amendment by demanding that failures
electronic voter identification and in complying with the Constitution or
electronic transmission of results. the law had to be “substantial” as to affect
Section 44(5) only required the the result for an election to be annulled.
Commission, in consultation with 35. The existing amendment meant that
stakeholders, to come up with regulations for an election to be annulled there
on the implementation of the Integrated had not only to be failure to comply
Biometric Voter Registration, Electric with the Constitutional principles and
Voter Identification and Electronic election laws but also the failures had
Transmission of results (KIEMS). The to substantially affect the result of the
Petitioners had not demonstrated election. The essence of that amendment
how, if at all, that provision violated was to allow violation of constitutional
the Constitution to require that it be principles and election laws as long as
declared unconstitutional. There was they do not substantially affect the result.
neither unconstitutional purpose nor Any amendments had to be forward
effect in the implementation of that looking in order to make elections
provision. more free, transparent and accountable,
33. The complimentary mechanism than to shield mistakes that vitiated an
contemplated in the new section 44A was electoral process.
only complimentary. It had not replaced 36. There was no constitutional compulsion
the electronic voter identification or rationale in amending section 83 of
system. The word “complimentary”, in the IEBC Act to remove the disjunctive
the context in which it was used in that word ‘or’ and introduce the conjunctive
section, could only mean to assist or word ‘and’ so that only where there
aid. It could only be resorted to in the were failures in complying with the
event the principle voter identification constitution and election laws and they
system had failed. It was to be used only substantially affected the results should
when there was technology failure. It an election be annulled. Removing the
could not be seen how that provision twin test for annulling faulty election
violated articles 10, 38, 81 and 86 on the results negated the principles of
values and principles of transparency electoral system in the Constitution.
and accountability of the electoral And allowing such an amendment would
system. Rather, it was intended to aid be to ignore constitutional principles in
and or complement the main voter the transformative Constitution that
identification system in the event there there should be free, fair, transparent
was failure and ensure that the electoral and accountable elections.
process continued. 37. Parliament had a duty to defend and
34. Even though the Constitution values the protect the Constitution and enact
quality of elections, the amendment to laws that were in conformity with its
section 83 had the effect of disregarding values and principles. Section 83(2)
those principles when it came to could not invite the aid of the Statutory
considering whether or not to annul Interpretations Act to shield violations
an election. That could not have been of the Elections Act and Regulations
the intention of the framers of the enacted to enforce the Constitutional
41
principles. Constitution. The section was necessary

38. Lady Justice Njoki Ndungu’s opinion for clarity and efficiency. There was no
on the amendment to section 83 in John constitutional invalidity.
Harun Mwau & 2 others v Independent 40. Certain amendments introduced through
Electoral and Boundaries Commission & the Election Laws (Amendment) Act No.
3 others [2017], was obiter dictum. The 34 of 2017 failed the constitutional test of
Supreme Court having decided to validity. All the amendments made to the
leave the issue for the High Court’s Independent Electoral and Boundaries
determination, it was not an issue falling Commission Act, namely; section 2,
for determination by the Supreme Court on definition of the word chairperson,
and therefore, there was no decision section 7A(4),7A(5), and7A(6), the entire
by the Supreme Court on the matter section 7B and paragraphs 5 and 7 of
that was binding on the High Court. the Second Schedule to the Act on the
That was one of those situations where quorum for purposes of meetings of
the Supreme Court was faced with the the Commission were unconstitutional.
question of co-shared jurisdiction on With regard to the Elections Act, 2011,
the interpretation of the Constitution. It the amendments introduced to section
declined jurisdiction and left the matter 39(1) (C) (a), 39(1D), 39(1E), 39(1F),
for the High court’s decision. 39(1G) and the entire section 83 failed
39. The introduction of section 86A was the constitutionality test. There was
in response to the challenges the no fault in the amended sections, 39(2),
Commission faced after annulment of 39(3), 44(5), and 44A of the Elections
the 2017 presidential election and the Act, 2011.
subsequent disputes that followed, more Petition partly allowed.
so on the person who was eligible to Orders
participate in the fresh election. Section i. Declaration issued to the effect that
86A cleared a lacuna that made the sections 2, 7A (4), 7A (5), 7A (6) of the
holding of the 2017 fresh presidential IEBC ACT, 2011, and Paragraphs 5 and
election a challenge to the Commission. 7 of the Second Schedule to the Act were
The section clarified what would happen constitutionally invalid.
and the timelines. It also made it clear ii. Declaration issued to the effect that
what would happen when only one sections 39(1C) (a), 39(1D), 39(1E),
candidate remained after withdrawal 39(1F), 39(1G), and the entire 83 of the
of the other candidates which was Elections Act, 2011 were constitutionally
in tandem with article 138(1) of the invalid.
In Addition to the Prayer for Production of the Persons or Bodies of the

Persons who are the Subject of Habeas Corpus, Compensation can also be
Sought for Violation of Rights and Fundamental Freedoms of the Subjects
of Habeas Corpus
Law Society of Kenya & 2 Other v Attorney General & 2 others
Constitutional Petition No. 311 of 2016
April 13, 2018
E.M Muriithi, J
Reported by Robai Nasike Sivikhe and Safiya Awil
Constitutional Law- capacity to institute a suit- recognition of international treaties and
institution of a suit on behalf of another person- conventions- recognition and application of
where the suit was a petition of Habeas corpus- treaties not ratified in Kenya – where a convention
whether the Law Society of Kenya could institute that was not yet ratified by Kenya made provisions
a suit of Habeas corpus on behalf of persons on a matter that was of global concern- whether a
who had allegedly disappeared upon arrest- convention that was not yet ratified by Kenya was
Constitution of Kenya, 2010, Article 22 (2) applicable in Kenya by virtue of the fact that it
made provisions on enforced disappearance which
International Law- international treaties-
was a matter of global concern- Constitution of
42
Kenya, article 2 (6) Kenya by virtue of the fact that it made

provisions on enforced disappearance
Evidence law- standard of proof – the standard
which was a matter of global concern
of proof in habeas corpus petitions- what was the
iii. What was the established standard of
established standard of proof in Habeas corpus
proof in Habeas corpus proceedings
proceedings- whether it had been proven to the
iv. Whether it had been proven to the
required standard that the 2nd and 3rd Respondents
required standard that the 2nd and
had been detained by the Respondent hence
3rd Respondents had been detained
requiring orders of habeas corpus
by the Respondent hence requiring
Evidence Law – hearsay evidence- admissibility orders of habeas corpus
of hearsay evidence- exclusion of hearsay v. Whether hearsay statements by
statements that implicated the police- whether witnesses were inadmissible and
hearsay statements by witnesses were inadmissible ought to be excluded
and ought to be excluded vi. Whether the 2nd and 3rd Petitioners
Constitutional Law- fundamental rights and were availed to Court within the
freedoms- rights of an arrested person- the right proper time as stipulated by the
of an arrested person to be availed to court within Constitution upon their arrest
the proper time upon arrest- whether the 2nd and vii. Whether the police officers who
3rd Petitioners were availed to Court within the were involved in the arrest of the
proper time as stipulated by the Constitution 2nd and 3rd Petitioners were open to
upon their arrest- whether the 2nd and 3rd investigation.
Petitioners were detained arbitrarily hence ought Held
to be compensated- Constitution of Kenya, 2010, 1. The matter of disappearance of
article 49 (1) (f) persons under police arrest or custody
was a matter for public interest and a
Brief Facts concern of the 1st Petitioner- the Law
The 1st Petitioner was a statutory body Society of Kenya in terms of its rule of
corporate established under section 3 of the law objectives under the Law Society
Law Society of Kenya Act. It had commenced of Kenya Act. The two Petitioners
the instant suit on behalf of the 2nd and 3rd subject of the habeas corpus application
Petitioner’s pursuant to article 22 (2) (a) and were not in a position to sue and file
(c) of the Constitution. The 1st, 2nd and 3rd depositions on their own behalf. The
Respondents were offices established under circumstances of the case were apt for
articles 146, 157 and 245 of the Constitution invocation of the expanded standing
respectively. Article 22(1) of the Constitution provisions of article 22 (2) (a) and (c)
gave every person the right to institute court of the Constitution.
proceedings where fundamental freedom in 2. Although Kenya had not ratified
the bill of rights had been denied, violated the United Nations International
or infringed and a person who had been Convention for the Protection
detained could be produced pursuant to an of all Persons from Enforced
order of Habeas corpus under article 51 of the Disappearance, 2007 as to make it part
Constitution. of the law of Kenya under article 2 (6)
of the Constitution, global concern
The Petition sought an order of habeas over disappearance of persons gave
corpus for the production of the 2nd and 3rd the instant matter the grave moment
Petitioners who, it was alleged, were arrested which had to drive a deliberate
by Administrative Police Officers on the June effort to resolve cases of disappeared
1, 2016, a fact denied by the Respondents who, persons. Articles 1 and 2 of the
consequently, prayed that the application for Convention provide for protection
habeas corpus be dismissed. against enforced disappearance for
Issues all circumstance so that the vice
i. Whether the Law Society of Kenya was indefensible by any justification
could institute a suit of Habeas corpus or exceptional circumstances. The
on behalf of persons who had allegedly events proved by evidence in the
disappeared upon arrest instant case neatly fit the billing of
ii. Whether a convention that was not an enforced disappearance within
yet ratified by Kenya was applicable in the Convention for which there was
43
a total ban under the international order for Mandamus to compel the
treaty law. police to investigate the matter and
3. The burden of proof in habeas corpus take appropriate action consistent
petitions lay with the Petitioner until he with the finding of the investigations.
proved detention by the Respondent, The practical reality where impunity
upon which the Respondent had to abounded could, however, not
prove the lawfulness of detention. inspire too much confidence and
The arrest and detention of the 2 since the Court had to give Orders,
Petitioners subject of the proceedings not suggestion or advice, needless
was tenuously denied with the to state, should the office of the
Respondent’s implicated officers Inspector General and the Director
indicating arrest only on the material of Criminal Investigation or other
day of wholly unrelated persons. The relevant officer, abscond their
burden of proving the arrest by the statutory duty or refuse to carry out
police of the 2nd and 3rd Petitioner the investigation as directed by the
rested wholly with the Petitioners court, the judicial review order of
which they had to discharge to the Mandamus as a suitable sanction
applicable standard of proof before of the Court could be invoked,
the Respondents could be put on not the least of them being article
their defense, as it were, calling for 245 (7) petition for removal of the
evidence in rebuttal or lawful reasons Inspector General and prosecution
for the arrest and detention. for contempt of court under the
4. Much of the statements made by Contempt of Court Act, 2016.
witnesses PW3 and PW4 involving 8. The police officers implicated had
the police officers in the arrest and clearly an opportunity to be heard in
subsequent disappearance of the the matter and together took benefit
persons subject of the habeas corpus of that opportunity by granting one
application was hearsay, and therefore of them authority to plead and act
inadmissible for purposes of proving for them whereupon he filed the
the truth of those statements. Replying Affidavit on their behalf.
5. On the evidence presented before the They, however, did not make oral
Court, the Petitioner’s case was more testimony before the Court at the
probable than the defense version of oral hearing as directed by the Court
events that they had not arrested the and they could not be heard to say
2nd and 3rd Petitioners. It had been that they were not heard or given an
proven on a balance of probabilities opportunity to be heard in the matter.
that the three police officers arrested 9. The High Court as the Constitutional
and detained the two Petitioners who Court had a duty under article 23 of
were subjects of the habeas corpus the Constitution to address denial or
proceedings. violation or infringement of, or threat
6. In accordance with article 49(1) (f) of to rights and fundamental freedoms
the Constitution, the arresting officers in the Bill of Rights. The Judiciary was
were obliged to produce the two the custodian of the Judicial authority
petitioners before a court within 24 of the people of Kenya under article
hours. That constitutional obligation 1 (3) (c) of the Constitution. It had
was breached by the three police to take the lead role when applying
officers when they failed to produce and interpreting the Constitution,
the arrested persons before a court on to uphold and promote the national
June 2, 2016, and consequently, the value and principles of the Law
2nd and 3rd Petitioners were detained entrenched under article 10 of the
without trial within the meaning Constitution and, through it, help
of article 29 of the Constitution. combat the specter as well as reality
The Petitioners were consequently of impunity in the state and society of
entitled to damages for unlawful Kenya.
arrest and detention without trial 10. It was the height of impunity if Police
under article 29 of the Constitution. Officers, who were constitutionally
7. As a rule of law country it sufficed to charged with the duty to maintain
44
law and order and to enforce the report and deference to him.
law for the protection of life, liberty 14. Judicial review was available where
and property and observation of a public body failed to exercise a
the human rights and freedoms, constitutional or statutory duty. The
were to arrest persons for whatever Court in exercise of the delegated
transgressions of the law only for judicial authority of the people
such arrested persons to subsequently of Kenya under Article 1 (3) (c) of
disappear and the Police to deny ever the Constitution directed the 2nd
arresting such persons, cover up their and 3rd Respondents to conduct
actions and get away with it. It was investigations as appropriate and to
cheating Justice. Not only should such bring to justice the persons found to
Police Officers be held personally have participated in the disappearance
liable in a criminal process for their of the 2nd and 3rd Petitioners.
offences against the person but the Petition partly allowed
State had to be held vicariously i. The Petitioner’s Petition for an
liable for the unlawful actions of its order of habeas corpus was declined
employees. as there was no evidence that the
11. While the adjudication of the criminal Respondents had custody of the 2nd
aspect of the matter for conviction and 3rd Petitioners.
and punishment as appropriate of the ii. The 2nd and 3rd Petitioners were arrest
officer ultimately found responsible by Administration Police Officers
had to take place consistently with Benson Simiyu Makhoha, Simon
the right to fair trial through the Mbau Muriithi and Kennedy Mburu
Criminal Courts established for the Njoroge and thereafter disappearance
purposes, the liability of the State in unclear circumstances, had to be
for the wrongful violation of rights investigated and appropriate action
arising out of the actions of its taken in the circumstances.
officers had to be determined under iii. The 3rd Respondent to pay on behalf
proceeding in that behalf before a of the National Police Service of
Civil Court. the Government of Kenya Ksh.5,
12. The arrest of the 2nd and 3rd Petitioners 000,000/= each for the 2 petitioners
by the Administration Police Officers - the 2nd and 3rd Petitioners - to be
named was proved on a balance of paid to the Petitioners’ respective
probabilities to the required high mothers, Beatrice Kajairo and Sarah
standard of proof applicable to the Khadi Muyera – as compensation for
Petition. The arrests were not shown breach of the Petitioners’ rights under
to have been justified on account of article 29 of the Constitution against
investigation of any crime, and were deprivation of freedom arbitrarily
denied. The arrests were arbitrary, and without just cause, and detention
unlawful and an unconstitutional without trial upon arrest by the
violation of the victims’ rights to Administration Police Officers.
liberty and to protection from iv. A Judicial Review Order of
detention without trial, under article Mandamus to issue to the 3rd
29 of the Constitution. Respondent directing him to carry
13. In accordance with section out their constitutional and statutory
193A of the Criminal Procedure function of investigation of crime
Code, criminal prosecution and under article 245 of the Constitution,
investigation were unaffected by and section 24 (e) of the National
the instant petition. The 2nd and 3rd Police Service Act, and to the 2nd
Respondents were at liberty and Respondent thereafter to consider
obligation under the Constitution the results of the investigation and to
to investigate and prosecute such prosecute persons found culpable for
crimes as were established by such any offence.
investigations. The officer charged v. The costs of the Petition shall be
with investigation in the matter, paid by the 3rd Respondent to the
demonstrated reluctance or inability Petitioners.
to investigate the matter despite
45
Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Hon. AbdulQadir Lorot Dear CaseBack team,

H. R. Your feedback mechanism is awesome. The matters
S.R.M – Nairobi Law raised on appeal enrich our future decisions. You remain a
courts treasured partner in the process.
Thanks to case back.

Hon. Justice Patrick J Keep it up and save us the prospects of litigant citing
O Otieno
before us decisions by court of appeal from our judgments
High court Mombasa
before we learn of the same
Thank you for your feedback which is highly appreciated. It

Hon. Christine Wekesa goes a long way in helping me to improve in my understanding
S.R.M – Lodwar Law
and application of the law, with special regard to Sustaining
Courts
the Judiciary Transformation. I humbly request for more,
even from my former station i.e. Nyeri Law Courts.
Hon. Justice Fred A. Well received, thanks.

Ochieng The fine distinction made by the Court of Appeal is noted.
High Court Nairobi
46
Legislative Updates
By Christine Thiong’o, Laws of Kenya Department
T
his is an outline of legislation that have been gazetted between March, 2018 and May,
2018.
A. ACTS OF PARLIAMENT
ACT DIVISION OF REVENUE ACT, 2018

Act No. 1 of 2018
Commencement 11th April, 2018
Objective The object and purpose of this Act is to provide for the equitable division of revenue
raised nationally between the national and county levels of government for the financial
year 2018/19 in accordance with Article 203(2) of the Constitution of Kenya, 2010.
ACT SUPPLEMENTARY APPROPRIATION ACT, 2018
Act No. 2 of 2018

Commencement 7th May, 2018
Objective This Act authorizes the issue of certain sums of money out of the Consolidated Fund
and their application towards the service of the year ending on the 30th June, 2018. It
appropriates those sums for certain public services and purposes.
ACT EQUALIZATION FUND APPROPRIATION ACT, 2018

Act No. 3 of 2018
Objective This is an Act of Parliament to authorize the issue of a sum of money out of the Equalization
Fund and its application towards the service of the year ending 30th June, 2018 and to
appropriate that sum for certain public basic services.
ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2018
Act No. 4 of 2018

Commencement 21st May, 2018
Objective This is an Act of Parliament to make minor amendments to the following Laws-
i.) Pensions Act (Cap.189);
ii.) Pharmacy and Poisons (Cap. 244);
iii.) Clinical Officers (Training, Registration and Licensing) Act (No. 20 of 2017);
iv.) Environmental Management and Coordination Act, 1999 (No. 8 of 1999);
v.) Salaries Remuneration Commission Act (No. 10 of 2011);
vi.) Statutory Instruments Act (No.23 of 2013);
vii.) Occupational Therapists Training, Registration and Licensing Act (No.31 of 2017).
ACT COMPUTER MISUSE AND CYBERCRIMES ACT, 2018

Act No. 5 of 2018
Objective This is an Act of Parliament to provide for offences relating to computer systems; to
enable timely and effective detection, prohibition, prevention, response, investigation
and prosecution of computer and cybercrimes; to facilitate international co-operation in
dealing with computer and cybercrime matters; and for connected purposes.
47
B. NATIONAL ASSEMBLY BILLS
NATIONAL DIVISION OF REVENUE BILL, 2018

ASSEMBLY BILL
Dated 6th March, 2018
Objective The principal object of this Bill is to provide for the equitable division of revenue raised
nationally among the national and county levels of government as required by Article 218
of the Constitution in order to facilitate the proper functioning of county governments
and to ensure continuity of county services.
Sponsor Kimani Ichung’wa, Chairperson, Budget and Appropriations Committee.
NATIONAL GOVERNMENT CONTRACTS BILL, 2018

ASSEMBLY BILL
Dated 10th April, 2018
Objective This Bill seeks to repeal and re-enact the Government Contracts Act and to provide for
the powers of the Government to enter into contracts.
Sponsor Aden Duale, Leader of Majority Party.
NATIONAL COUNTY GOVERNMENTS RETIREMENT SCHEME BILL, 2018

ASSEMBLY BILL
Objective The principal object of this Bill is to establish the County Government’s Retirement
Scheme as a mandatory Scheme for all County Government Officers; provide for the
establishment of the Scheme’s Board of Trustees and provide for the Scheme’s management
and administration. The Bill proposes to have the scheme offer lump sum payments as
provident, periodic payments as pensions and income draw-downs. The proposed Scheme
will transition the former local authorities’ and national Government employees under a
national retirement scheme and retirement arrangements into one universal scheme for
all the forty seven county governments besides being open to other public officers and any
other person approved by the Board.
NATIONAL TAX LAWS (AMENDMENT) BILL, 2018

ASSEMBLY BILL
Objective The Tax Laws (Amendment) Bill, 2018 seeks to make several amendments to the follow-
ing tax-related statutes –
i.) Income Tax Act (Cap. 470);
ii.) Stamp Duty Act (Cap. 480);
iii.) Value Added Tax Act, 2013 (No.35 of 2013).
NATIONAL AS- STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2018

SEMBLY BILL
48
Objective The Statute Law (Amendment) Bill, 2018 seeks to make various, wide ranging amend-
ments to the following statutes-
i. Judicature Act (Cap. 8)
ii. Oaths and Statutory Declarations Act (Cap. 15)
iii. Advocates Act (Cap. 16)
iv. Public Archives and Documentation Service Act (Cap. 19)
v. Civil Procedure Act (Cap. 21)
vi. Foreign Judgment (Reciprocal Enforcement) Act (Cap. 43)
vii. Probation of Offenders Act (Cap. 64)
viii. Criminal Procedure Code (Cap. 75)
ix. Extradition (Contiguous and Foreign Countries) Act (Cap. 76)
x. Registration of Persons Act (Cap. 107)
xi. Public Holidays Act (Cap. 110)
xii. Law of Succession Act (Cap. 160)
xiii. National Youth Service Act (Cap. 208)
xiv. Kenya Ports Authority Act (Cap. 391)
xv. Kenya Airports Authority Act (No.3 of 1991)
xvi. Traffic Act (Cap. 403)
xvii. Kenya Post Office Savings Bank Act (Cap. 493)
xviii. Export Processing Zones Act (Cap 517)
xix. Kenya Revenue Authority Act, 1995 (No. 2 of 1995)
xx. Higher Education Loans Board Act, 1995 (No. 3 of 1995)
xxi. Kenya Information and Communications Act, 1998 (No. 2 of 1998)
xxii. National Hospital Insurance Fund Act 1998 (No. 4 of 1998)
xxiii. Community Service Orders Act, 1998 (No. 10 of 1998)
xxiv. Environmental Management and Co-ordination Act, 1999 (No. 8 of 1999)
xxv. Industrial Property Act, 2001 (No. 3 of 2001)
xxvi. Children Act, 2001 (No. 8 of 2001)
xxvii. Copyright Act, 2001 (No. 12 of 2001)
xxviii. Privatization Act, 2005 (No. 2 of 2005)
xxix. Witness Protection Act, 2006 (No. 16 of 2006)
xxx. Labour Institutions Act, 2007 (No.12 of 2007)
xxxi. Labour Relations Act, 2007 (No. 14 of 2007)
xxxii. Anti-Counterfeit Act, 2008 (No. 13 of 2008)
xxxiii. Biosafety Act, 2009 (No. 2 of 2009)
xxxiv. Proceeds of Crime and Anti Money Laundering Act, 2009 (No. 9 of 2009)
xxxv. National Youth Council Act, 2009 (No. 10 of 2009)
xxxvi. Competition Act, 2010 (No. 12 of 2010)
xxxvii. Judicial Service Act, 2011 (No. 1 of 2011)
xxxviii. Tourism Act, 2011 (No. 28 of 2011)
xxxix. National Construction Authority Act, 2011 (No. 41 of 2011)
xl. Engineers Act, 2011 (No.43 of 2011)
xli. Land Registration Act, 2012 (No. 3 of 2012)
xlii. Land Act, 2012 (No. 6 of 2012)
xliii. National Authority for the Campaign Against Alcohol and Drug Abuse Act, 2012 (No. 14 of
2012)
xliv. Kenya Defence Forces Act, 2012 (No. 25 of 2012)
xlv. Kenya School of Law Act, 2012 (No. 26 of 2012)
xlvi. Legal Education Act, 2012 (No. 27 of 2012)
xlvii. National Transport and Safety Authority Act, 2012 (No. 33 of 2012)
xlviii. Universities Act, 2012 (No. 42 of 2012)
xlix. Treaty Making and Ratification Act, 2012 (No.45 of 2012)
l. Public Private Partnership Act, 2013 (No. 15 of 2013)
li. Kenya Agricultural and Livestock Research Act, 2013 (No. 17 of 2013)
lii. Kenya Law Reform Act, 2013 (No. 19 of 2013)
liii. Nairobi Centre for International Arbitration Act, 2013 (No. 26 of 2013)
liv. Science, Technology and Innovation Act, 2013 (No. 28 of 2013)
lv. National Social Security Fund Act, 2013 (No. 45 of 2013)
lvi. Wildlife Conservation and Management Act, 2013 (No. 47 of 2013)
lvii. National Drought Management Authority Act, 2016 (No. 4 of 2016)
lviii. Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 (No. 33
of 2016)
lix. Forest Conservation and Management Act, 2016 (No. 34 of 2016)
lx. Bribery Act, 2016 (No. 47 of 2016).
NATIONAL STATUTE LAW (MISCELLANEOUS AMENDMENTS) (NO. 2) BILL, 2018

ASSEMBLY BILL
49
Objective This Bill is in keeping with the practice of making various amendments which do not merit
the publication of separate Bills and consolidating them into one Bill. The Bill contains
proposed amendments to the following statutes-
i.) Betting, Lotteries and Gaming Act (Cap. 131);
ii.) Dairy Industry Act (Cap.336);
iii.) Co-operative Societies Act, (Cap. 490);
iv.) National Hospital Insurance Fund Act, 1998 (No. 9 of 1998);
v.) Statistics Act, 2016 (No.4 of 2006);
vi.) Energy Act, 2006 (No. 12 of 2006);
vii.) Sacco Societies Act (No. 14 of 2008);
viii.) Urban Areas and Cities Act, 2011 (No.13 of 2011);
ix.) Micro and Small Enterprises Act, 2012 (No. 55 of 2012);
x.) Public Private Partnership Act, 2013 (No. 15 of 2013);
xi.) Crops Act, 2013 (No. 16 of 2013);
xii.) Kenya Medical Supplies Authority Act, 2013 (No. 20 of 2013);
xiii.) Technical and Vocational Education and Training Act, 2013 (No. 29 of 2013);
xiv.) Public Procurement and Asset Disposal Act, 2015 (No.33 of 2015);
xv.) Fisheries Management and Development Act, 2016 (No. 35 of 2016).
NATIONAL HEALTH LAWS (AMENDMENT) BILL, 2018

ASSEMBLY BILL
Objective This Bill seeks to make various, wide- ranging amendments to various health-related
statutes on matters relating to health policy. The Bill contains proposed amendments to
the following statutes-
i.) Radiation Protection Act (Cap. 243);
ii.) Medical Practitioners and Dentists Act (Cap. 253);
iii.) Nurses Act (Cap. 257);
iv.) Kenya Medical Training College Act (Cap. 261);
v.) Nutritionists and Dieticians Act (No. 18 of 2007);
vi.) Kenya Medical Supplies Authority Act, 2013 (No. 20 of 2013);
vii.) Counselors and Psychologists Act, 2014 (No. 14 of 2014);
viii.) Physiotherapists Act, 2014 (No. 20 of 2014);
ix.) Health Records and Information Managers Act, 2016 (No. 15 of 2016);
x.) Clinical Officers (Training, Registration and Licensing) Act, 2017 (No.20 of
2017).
NATIONAL EQUALIZATION FUND APPROPRIATION BILL, 2018

ASSEMBLY BILL
Dated 3rd May, 2018
Objective This Bill seeks to authorize the issuance of a sum of money out of the Equalization
Fund and its application towards the service of the year ending 30th June, 2018 and to
appropriate that sum for certain public basic services.
Sponsor Kimani Ichungw’ah, Chairperson, Budget and Appropriations Committee.
50
C. SENATE BILLS
SENATE RETIREMENT BENEFITS ( DEPUTY PRESIDENT AND DESIGNATED STATE OFFI-

BILL CERS) (AMENDMENT) BILL, 2018
Dated 28th February, 2018

Objective The principal objective is to amend the retirement benefits (Deputy President & Designated
State Officers) Act. It seeks to ensure the executive does not intimidate or maltreat the entitled
person. Establishes a joint committee within parliament to review decisions of the executive to
alter or modify the personnel attached to the entitled person.
Sponsor Ledama Olekina, Senator.
SENATE OFFICE OF THE COUNTY ATTORNEY BILL, 2018

BILL
Dated 2nd March, 2018
Objective This Bill establishes the Office of the County Attorney; provides for its functions & powers;
the discharge of duties & the exercise of powers of the County Attorney and other related
purposes. The County Attorney would be the principle legal adviser to the county executive. It
also provides for the powers of the County Attorney & the appointment of a County Solicitor
& County Legal Counsel.
Sponsor Samson Cherarkey, committee on Justice, Legal Affairs and Human Rights.
SENATE PUBLIC PARTICIPATION BILL, 2018

BILL
Objective This Bill, gives effect to the constitutional principles of public participation & participatory
democracy as well enunciated in Articles 1(2), 10(2), 35, 69(1)(d), 118, 174(c) (d), 184 (1)(c), 196,
201(a) and 232(1) (d) of the Constitution; and for related purposes. It designates the responsible
authorities for purposes of developing the specific guidelines & offering oversight for public
participation.
Sponsor Amos Wako, Senator.
SENATE COUNTY GOVERNMENT RETIREMENT SCHEME BILL, 2018

BILL
Objective The objective of this bill is to establish a County Governments’ Retirement scheme for persons
in the County Government Service as a mandatory scheme and for other related purposes.
It applies to all 47 county governments, and is open to public officers and any other person
approved by the Board. This Bill proposes to have the scheme offer lump sum payments as
provident; periodic payments as pensions and income draw-downs. The Bill however, does not
delegate any legislative powers nor does it limit fundamental rights and freedoms.
Sponsor Johnson Sakaja, Chairperson, Committee of Labour & Social Services.
SENATE COUNTY WARDS DEVELOPMENT EQUALISATION FUND BILL, 2018

BILL
51
Objective The objective of this bill is to provide for the establishment of a kitty for promoting development
in the wards and to set up institutional framework for coordinating development initiatives and
projects in the Wards, and for related purposes. This Bill seeks to promote the decentralization of
development for coordinating development initiatives and projects in the Wards, for connected
purposes. It seeks to promote the decentralization of development within the counties by
identifying projects that are beneficial to the residents of the respective wards and the county
generally & providing a framework for the implementation of such projects.
Sponsor Irungu Kang’ata, Senator.
SENATE OFFICE OF THE COUNTY PRINTER BILL, 2018

BILL
Objective The objective is to establish the office of the county; to provide for the functions, mandate,
management and administration of the office; and for connected purposes. It also publishes
all authorized documents, advise and form partnerships on all matters relating to printing &
publishing ensuring there is no plagiarism.
Sponsor P.W. Lokorio, Senator.
SENATE LOCAL CONTENT BILL, 2018

BILL
Dated 21st March, 2018
Objective This Bill seeks to provide for a framework to facilitate the local ownership, control and financing
of activities connected with the exploitation of gas, oil and other petroleum resources; to provide
a framework to increase the local value capture along the value chain in the exploration of gas,
oil and other petroleum resources.
Sponsor Gideon Moi, Senator.
SENATE SALARIES AND REMUNERATION COMMISSION (AMENDMENT) BILL, 2018

BILL
Dated 23rd April, 2018
Objective The principal object of this Bill is to amend sections 7 and 9 of the Salaries and Remuneration
Act, No. 10 of 2011, to provide for notification of the expiry of term for Commissioners in the
Gazette and to provide for timelines for the filling of vacancies in the Commission upon the
expiry of term for Commissioners.
Sponsor Mohamed M. Mahamud, Chairperson, Senate Standing Committee on Finance and Budget.
SENATE COUNTY GOVERNMENTS (AMENDMENT) BILL, 2018

BILL
Objective The principal object of this Bill is to amend section 58 of the County Governments Act, No.
17 of 2012, to provide for the appointment of human resource management professionals as
chairpersons of the County Public Service Boards. The Bill is intended to inject professionalism
in the human resource functions of the County Public Service Boards to ensure quality service
delivery in the counties.
Sponsor Aaron Cheruiyot, Senator.
SENATE DIVISION OF REVENUE (AMENDMENT) BILL, 2018

BILL
Dated 15th May, 2018
Objective The principal object of this Bill is to provide for three additional conditional allocations to
county governments in the financial year 2018/19 to be financed by loans and grants from
donors. These additional conditional allocations had not been provided for in the Division of
Revenue Act, No. 1 of 2018.
52
Sponsor Mohamed M. Mahamud, Chairperson, Senate Standing Committee on Finance and Budget.
SENATE IMPEACHMENT PROCEDURE BILL, 2018

BILL
Dated 21st May, 2018
Objective This Bill seeks to clearly set out impeachment procedures that would ensure procedural justice
for every person who is sought to be impeached. It also proposes a period within which court
matters relating to impeachment proceedings shall be concluded so as to minimize anxiety over
prolonged undecided fate of the chief executive of the Nation or a County or other members of
their cabinets.
This legislative proposal is partly informed by challenges identified from the several proceedings
for the removal of a governor and for the removal of a deputy governor that the Senate has
conducted and the court proceedings to which some of the impeachment proceedings have
been subjected on the basis of the procedures followed.
The Bill therefore seeks to provide for a harmonized procedure to be applied in considering a
motion for the removal of a President, Governor, a Deputy Governor, a Cabinet Secretary or
a County Executive Committee Member. It also proposes appropriate solutions to procedural
gaps identified with respect to the provisions in the Constitution for the removal of a President,
Deputy President or Cabinet Secretary.
Sponsor Samson Cherarget, Chairperson Standing Committee on Justice, Legal Affairs and Human Rights.
The preservation of peace and the guaranteeing of man’s basic freedoms and rights require courage and eternal vigilance: courage to speak and
act - and if necessary, to suffer and die - for truth and justice; eternal vigilance, that the least transgression of international morality shall not go
undetected and unremedied - Haile Selassie
Some rights reserved Benh LIEU SONG
53
Legal Supplements
By Christine Thiong’o, Laws of Kenya Department
T
his article presents a summary of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers the period between
21st March, 2018 and 31st May, 2018.
DATE OF PUBLI- LEGISLATIVE CITATION PREFACE

CATION SUPPLEMENT
NUMBER
21st March, 11 Public Finance The Parliamentary Service Commission
2018 Management makes the following Regulations in exercise
(Senate Monitoring of the powers conferred by section 24 of the
and Evaluation) Public Finance Management Act (No. 18 of
Regulations, 2018 2012).
The purpose of the Regulations is to guide the
L. N. 71/ 2018 Senate Sessional Committee on Monitoring
and Evaluation in the administration,
disbursement and management of the Fund
to ensure efficiency and effectiveness.
The regulations –
a) Specify the sources of monies to
the Fund;
b) Provide guidance on the
administration and management
of the Fund; and
c) Provide the financial procedures
for the Fund.
The object of the Fund is to facilitate
a Senator to carry out monitoring and
evaluation activities in exercise of the
Senate’s oversight role over county
governments in accordance with Article 96
of the Constitution.
26th April, 16 Traffic (Driving The Cabinet Secretary for Transport,

2018 Schools, Driving Infrastructure, Housing and Urban
Instructors And Development makes the following Rules in
Driving Licences) exercise of the powers conferred by section
Rules, 2018 119 (1) (ga) of the Traffic Act (Cap. 403).
These Rules apply to driving schools,
L. N. 81/ 2018
driving instructors and to the issuance of
driving licenses in Kenya.
The Schedules set out the various application
forms to the Authority (the National
Transport and Safety Authority).
The fees are set out in the Second schedule.
This legislation revokes the Traffic (Driving
Schools) Rules (L.N 232/1971).
54
31st May, 29 Judiciary Fund Regu- The Chief Justice makes the following
2018 lations, 2018 Regulations in exercise of the powers
conferred by section 14 of the Judiciary
L. N. 117/ 2018 Fund Act (No. 16 of 2016).
These Regulations shall apply to all matters
relating to the financial management of the
Fund. The administration of the Fund is
vested in the Chief Registrar.
The Regulations shall apply to a Judicial
Officer or Judiciary Staff in exercise of
any powers and functions relating to the
administration of the Fund whether in
exercise of delegated authority or otherwise.
The object and purpose of the Regulations
is to-
a) provide for the proper management
of the Fund;
b) set out a standardized financial
management system of the Fund
capable of producing accurate and
reliable accounts, which will be
useful in management decisions and
statutory reporting;
c) ensure accountability, transparency
and the effective, efficient and
economic use of the Fund; and
d) ensure adherence to the principles of
public finance set out in Article 201 of
the Constitution in the management
of the Fund.
The Regulations deal with:

i.) Budget Preparation;
ii.) Utilization of the Fund;
iii.) Expenditure in relation to Human
Resource;
iv.) Imprest Management;
i.) Accounts and Reporting; and
ii.) Internal Audit and Risk
Management.
31st May, 29 Kenya National The Cabinet Secretary for Education makes
2018 Qualifications the following Regulations in exercise of the
Framework Regula- powers conferred by section 29 of the Kenya
tions, 2018 National Qualifications Framework Act
(No. 22 of 2014).
L. N. 118/ 2018
These Regulations shall apply to any person
who offers or who intends to award national
qualifications in Kenya.
These Regulations provide for the-

a) Certification process;
b) Recognition, equation and approval of
foreign qualifications and recognition
of prior learning;
c) Termination, suspension and
revocation of certificate of
accreditation; and
d) Structures of the national
qualifications framework.
55
International
Jurisprudence
Government’s Access to Cell-Site Records to Track Physical Movements of
Individuals Contravenes their Reasonable Expectation of Right to Privacy
Protected under the Fourth Amendment of The Constitution of the United
States.
Carpenter V United States
Supreme Court of the United States
Certiorari to The United States Court of Appeals for The Sixth Court
No.16-402
June 22,2018
Robert C.J, Ginsburg, Breyer, Sotomayor, Kagan, Kennedy Thomas, Alito, Thomas,
Gorsuch, JJ
Reported by Linda Awuor, Faith Wanjiku &Wanjiru Njihia
Brief Facts of the firearm counts and sentenced to more

than 100 years in prison.
In 2011, police officers arrested four men
suspected of robbing a series of Radio Shack The Court of Appeals for the Sixth Circuit
and T-Mobile stores in Detroit. One of the affirmed. It held that the Petitioner lacked
men confessed that, over the previous four a reasonable expectation of privacy in the
months, the group had robbed nine different location information collected by the FBI
stores in Michigan and Ohio. The prosecutors because he had shared that information with
applied for court orders under the Stored his wireless carriers. Given that cell phone
Communications Act codified at 18 U.S.C. users voluntarily conveyed cell-site data
§§ 2701–2712 (Stored Communications to their carriers as a means of establishing
Act) to obtain cell phone records for communication, the Court concluded that
Petitioner and several other suspects. That the resulting business records were not
statute, as amended in 1994, permitted the entitled to Fourth Amendment protection.
Government to compel the disclosure of
Held by the Majority
certain telecommunications records when
it offered specific and articulable facts 1. The Fourth Amendment protected
showing that there were reasonable grounds the right of the people to be secured
to believe that the records sought were in their persons, houses, papers, and
relevant and material to an ongoing criminal effects, against unreasonable searches
investigation. and seizures. The basic purpose of the
Amendment was to safeguard the privacy
The Petitioner was charged with six counts and security of individuals against
of robbery and an additional six counts of arbitrary invasions by governmental
carrying a firearm during a federal crime of officials. The Founding generation crafted
violence. Prior to trial, the Petitioner moved the Fourth Amendment as a response to
to suppress the cell-site data provided the reviled general warrants and writs
by the wireless carriers. He argued that of assistance of the colonial era, which
the Government’s seizure of the records allowed British officers to rummage
violated the Fourth Amendment rights through homes in an unrestrained
because they had been obtained without a search for evidence of criminal activity.
warrant supported by probable cause. The The Fourth Amendment protected
District Court denied the motion. The agent people, not places, and expanded the
produced maps that placed the Petitioner’s conception of the Amendment to
phone near four of the charged robberies. protect certain expectations of privacy
The Petitioner was convicted on all but one as well. When an individual sought to
56
preserve something as private and his an individual maintained a legitimate

expectation of privacy was one that expectation of privacy in the record
society was prepared to recognize as of his physical movements as captured
reasonable, official intrusion into that through CSLI. The location information
private sphere generally qualified as a obtained from the petitioner’s wireless
search and required a warrant supported carriers was the product of a search.
by probable cause. 6. A person did not surrender all Fourth
2. The case before the Court involved the Amendment protection by venturing
Government’s acquisition of wireless into the public sphere. What one
carrier cell-site records revealing the sought to preserve as private, even in an
location of the Petitioner’s cell phone area accessible to the public, could be
whenever it made or received calls. That constitutionally protected. Individuals
sort of digital data personal location had a reasonable expectation of privacy
information maintained by a third in the whole of their physical movements.
party did not fit neatly under existing Society’s expectation had been that law
precedents. Instead, requests for cell- enforcement agents and others would
site records lay at the intersection of two not and indeed, in the main, simply could
lines of cases, both of which informed not secretly monitor and catalogue every
the Court’s understanding of the privacy single movement of an individual’s car
interests at stake. for a very long period.
3. The question that the Court was 7. Historical cell-site records presented
confronted with was how to apply even greater privacy concerns than the
the Fourth Amendment to a new GPS monitoring of a vehicle. A cell phone
phenomenon: the ability to chronicle a almost a feature of human anatomy,
person’s past movements through the tracked nearly exactly the movements
record of his cell phone signals. Such of its owner. While individuals regularly
tracking partook of many of the qualities left their vehicles, they compulsively
of the GPS monitoring. Much like GPS carried cell phones with them all the
tracking of a vehicle, cell phone location time. A cell phone faithfully followed
information was detailed, encyclopedic, its owner beyond public thoroughfares
and effortlessly compiled. and into private residences, doctor’s
4. At the same time, the fact that the offices, political headquarters, and other
individual continuously revealed his potentially revealing locales. When
location to his wireless carrier implicated the Government tracked the location
the third-party principle of Smith v. of a cell phone it achieved near perfect
Maryland, (no expectation of privacy in surveillance, as if it had attached an ankle
records of dialed telephone numbers monitor to the phone’s user.
conveyed to telephone company and 8. The rule that the Court adopted had
United States v. Miller, (no expectation to take account of more sophisticated
of privacy in financial records held by a systems that were already in use or in
bank) (Smith and Miller). While the third- development. While the records in the
party doctrine applied to telephone case reflected the state of technology at
numbers and bank records, it was not the start of the decade, the accuracy of
clear whether its logic extended the CSLI was rapidly approaching GPS-level
qualitatively different category of cell- precision. As the number of cell sites
site records. had proliferated, the geographic area
5. The Court declined to extend Smith and covered by each cell sector had shrunk,
Miller to cover those novel circumstances. particularly in urban areas. In addition,
Given the unique nature of cellphone with new technology measuring the
location records, the fact that the time and angle of signals hitting their
information was held by a third party did towers, wireless carriers already had the
not by itself overcome the user’s claim to capability to pinpoint a phone’s location
Fourth Amendment protection. Whether within 50 meters. When the Government
the Government employed its own accessed CSLI from the wireless carriers;
surveillance technology or leveraged it invaded the Petitioner’s reasonable
the technology of a wireless carrier, expectation of privacy in the whole of
57
his physical movements. Amendment.

9. The Government’s primary contention 12. Although the ultimate measure of the
to the contrary was that the third-party constitutionality of a governmental
doctrine governed the case. In its view, search was reasonableness, warrantless
cell-site records were fair game because searches were typically unreasonable
they were business records created and where a search was undertaken by
maintained by the wireless carriers. The law enforcement officials to discover
Government recognized that the case evidence of criminal wrongdoing. Thus,
featured new technology, but asserted in the absence of a warrant, a search was
that the legal question nonetheless reasonable only if it fell within a specific
turned on a garden variety request for exception to the warrant requirement
information from a third-party witness. material to an ongoing investigation.
The Government’s position failed 13. If the third-party doctrine did not
to contend with the seismic shifts in apply to the modern day equivalents of
digital technology that made possible an individual’s own papers or effects,
the tracking of not only the Petitioner’s then the clear implication was that the
location but also everyone else’s, not for documents should receive full Fourth
a short period but for years and years. Amendment protection. The Court
Sprint Corporation and its competitors simply thought that such protection
were not the typical witnesses. Unlike should extend as well to a detailed log
the nosy neighbor who kept an eye on of a person’s movements over several
comings and goings, they were ever alert, years. That was certainly not to say that
and their memory was nearly infallible. all orders compelling the production of
There was a world of difference documents would require a showing of
between the limited types of personal probable cause. The Government would
information addressed in Smith and be able to use subpoenas to acquire
Miller and the exhaustive chronicle of records in the overwhelming majority
location information casually collected of investigations. Only a warrant was
by wireless carriers. The Government required in the rare case where the
thus was not asking for a straightforward suspect had a legitimate privacy interest
application of the third-party doctrine, in records held by a third party.
but instead a significant extension of it 14. The Court was obligated as subtler
to a distinct category of information. and more far reaching means of
10. The third-party doctrine partly stemmed invading privacy had become available
from the notion that an individual had to the Government to ensure that the
a reduced expectation of privacy in progress of science did not erode Fourth
information knowingly shared with Amendment protections. The Court
another. But the fact of diminished declined to grant the state unrestricted
privacy interests did not mean that the access to a wireless carrier’s database of
Fourth Amendment failed out of the physical location information. In light
picture entirely. In mechanically applying of the deeply revealing nature of CSLI,
the third-party doctrine to the case, the its depth, breadth, and comprehensive
Government failed to appreciate that reach, and the inescapable and automatic
there were no comparable limitations nature of its collection, the fact that such
on the revealing nature of CSLI. The information was gathered by a third
Court had in fact already shown special party did not make it any less deserving
solicitude for location information in of Fourth Amendment protection. The
the third-party context. Government’s acquisition of the cell-
11. Given the unique nature of cell phone site records was a search under that
location information, the fact that the Amendment.
Government obtained the information Kennedy, J Dissenting ( Justice Thomas
from a third party did not overcome the and Justice Alito Concurring)
Petitioner’s claim to Fourth Amendment
1. Departure from relevant Fourth
protection. The Government’s
Amendment precedents and principles
acquisition of the cell-site records was a
was unnecessary and incorrect, requiring
search within the meaning of the Fourth
58
the respectful dissent. The new rule the information held by third parties, yet the
Supreme Court seemed to formulate did Court failed to provide clear guidance
put needed reasonable, accepted, lawful, to law enforcement and courts on key
and congressionally authorized criminal issues raised by its reinterpretation of
investigations at serious risk in serious Miller and Smith.
cases, often when law enforcement 5. First, the Court’s holding was premised
sought to prevent the threat of violent on cell-site records being a distinct
crimes. And it placed undue restrictions category of information from other
on the lawful and necessary enforcement business records. The Court did not
powers exercised not only by the explain what made something a distinct
Federal Government, but also by law category of information. Whether credit
enforcement in every State and locality card records were distinct from bank
throughout the Nation. Adherence to records; whether payment records from
the Court’s longstanding precedents and digital wallet applications were distinct
analytic framework would have been the from either; whether the electronic bank
proper and prudent way to resolve the records available were distinct from the
case. paper and microfilm records at issue
2. Cell-site records were no different in Miller; or whether cell-phone call
from the many other kinds of business records were distinct from the home-
records the Government had a lawful phone call records at issue in Smith,
right to obtain by compulsory process. were just a few of the difficult questions
Customers like the Petitioner did not that required answers under the Court’s
own, possess, control, or use the records, novel conception of Miller and Smith.
and for that reason had no reasonable 6. Second, the majority opinion gave
expectation that they could not be courts and law enforcement officers no
disclosed pursuant to lawful compulsory indication how to determine whether
process. any particular category of information
3. A person’s movements were not fell on the financial-records side or
particularly private. When one traveled the cell-site-records side of its newly
over the public streets he voluntarily conceived constitutional line. The
conveyed to anyone who wanted to Court’s multifactor analysis considering
look the fact that he was traveling over intimacy, comprehensiveness, expense,
particular roads in a particular direction, retrospectivity, and voluntariness put the
the fact of whatever stops he made, law on a new and unstable foundation.
and the fact of his final destination. 7. Third, even if a distinct category of
The expectations of privacy in one’s information was deemed to be more
location today, if anything, are even like cell-site records than financial
less reasonable than when the Court records, courts and law enforcement
decided Knotts over 30 years ago. officers would have to guess how much
Millions of Americans chose to share of that information could be requested
their location on a daily basis, whether before a warrant was required. The
by using a variety of location-based Court suggested that less than seven
services on their phones, or by sharing days of location information would not
their location with friends and the public require a warrant. But the Court did not
at large via social media. The records at explain why that was so, and nothing
issue revealed the Petitioner’s location in its opinion even alluded to the
within an area covering between around considerations that ought to determine
a dozen and several hundred city blocks. whether greater or lesser thresholds
The troves of intimate information the could apply to information like IP
Government could and did obtain using addresses or website browsing history.
financial records and telephone records 8. Fourth, by invalidating the Government’s
dwarfed what could be gathered from use of court-approved compulsory
cell-site records. process, the Court called into question
4. The Court’s decision also would have the subpoena practices of federal and
ramifications that extended beyond state grand juries, legislatures, and
cell-site records to other kinds of other investigative bodies, yet the Court
59
failed even to mention the serious enter private premises and root through
consequences that would have for the private papers and effects and an order
proper administration of justice. The merely requiring a party to look through
Court’s new and uncharted course its own records and produce specified
would inhibit law enforcement and keep documents. The former, which intruded
defendants and judges guessing for years on personal privacy far more deeply,
to come. required probable cause; the latter did
9. The case could be resolved by interpreting not. Treating an order to produce like
accepted property principles as the an actual search, as the decision made
baseline for reasonable expectations of did, was revolutionary. It violated
privacy. The Government did not search both the original understanding of the
anything over which the Petitioner could Fourth Amendment and more than a
assert ownership or control. Instead, it century of Supreme Court precedent.
issued a court-authorized subpoena to a Unless it was somehow restricted to
third party to disclose information it alone the particular situation in the present
owned and controlled. That could suffice case, the Court’s move would cause
to resolve the case. Having concluded, upheaval. Must every grand jury
however, that the Government searched subpoena duces tecum be supported by
the Petitioner when it obtained cell- probable cause? If so, investigations of
site records from his cell phone service terrorism, political would be stymied.
providers, the proper resolution of the And what about subpoenas and other
case could have been to remand for document-production orders issued by
the Court of Appeals to determine in administrative agencies?
the first instance whether the search 3. Second, the Court allowed a defendant
was reasonable. The Court’s reflexive to object to the search of a third party’s
imposition of the warrant requirement property. That also was revolutionary.
obscured important and difficult The Fourth Amendment protected the
issues, such as the scope of Congress’ right of the people to be secure in their
power to authorize the Government to persons, houses, papers, and effects, not
collect new forms of information using the persons, houses, papers, and effects
processes that deviated from traditional of others. The majority had been careful
warrant procedures, and how the to heed that fundamental feature of
Fourth Amendment’s reasonableness the Amendment’s text. That was true
requirement could apply when the when the Fourth Amendment was tied
Government used compulsory process to property law, and it remained true
instead of engaging in an actual, physical after Katz v. United States. By departing
search. Those reasons all lead to the dramatically from those fundamental
respectful dissent. principles, the Court destabilized long
Alito J, Dissenting ( Justice Thomas established Fourth Amendment doctrine.
concurring) It would be making repairs or picking up
the pieces for a long time to come.
1. The majority’s concern about the effect
4. The majority inexplicably ignored the
of new technology on personal privacy
settled rule of Oklahoma Press Publishing
was shared, but it was feared that the
Co. v. Walling in favor of a resurrected
decision would do far more harm
version of Boyd v. United States. That was
than good. The majority’s reasoning
mystifying. That ought to have been an
fractured two fundamental pillars of
easy case regardless of whether the Court
Fourth Amendment law, and in doing
looked to the original understanding
so, it guaranteed a blizzard of litigation
of the Fourth Amendment or to the
while threatening many legitimate and
modern doctrine. As a matter of original
valuable investigative practices upon
understanding, the Fourth Amendment
which law enforcement had rightfully
did not regulate the compelled
come to rely.
production of documents at all. The
2. First, the majority ignored the basic
Government received the relevant cell-
distinction between an actual search
site records pursuant to a court order
dispatching law enforcement officers to
compelling the Petitioner’s cell service
60
provider to turn them over. That process could not be defended under either a
was thus immune from challenge under property-based interpretation of that
the original understanding of the Fourth Amendment or the Court’s decisions
Amendment. applying the reasonable expectations of
5. The type of order obtained by the privacy test adopted in Katz. By allowing
Government almost necessarily the Petitioner to object to the search of
satisfied that standard. The Stored a third party’s property, the majority
Communications Act allowed a court to threatened to revolutionize a second and
issue the relevant type of order only if independent line of Fourth Amendment
the governmental entity offered specific doctrine.
and articulable facts showing that there 8. The Fourth Amendment guaranteed the
were reasonable grounds to believe right of the people to be secure in their
that the records sought were relevant persons, houses, papers, and effects The
and material to an ongoing criminal Fourth Amendment did not confer rights
investigation. And the court could quash with respect to the persons, houses,
or modify such order if the provider papers, and effects of others. Its language
objected that the records requested made clear that Fourth Amendment
were unusually voluminous in nature or rights were personal, and as a result, the
compliance with such order otherwise Court had long insisted that they would
would cause an undue burden on such not be asserted vicariously. It followed
provider. No such objection was made that a person who was aggrieved only
in the instant case, and the Petitioner did through the introduction of damaging
not suggest that the orders contravened evidence secured by a search of a third
the Oklahoma Press standard in any other person’s premises or property had not
way. That was what made the majority’s had any of his Fourth Amendment rights
opinion so puzzling. infringed.
6. It decided that a search of the Petitioner Gorsuch J, Dissenting
occurred within the meaning of the
1. The instant Court said that judges
Fourth Amendment, but then it leapt
could use Katz’s reasonable expectation
straight to imposing requirements that
of privacy test to decide what Fourth
until that point had governed only actual
Amendment rights people had in cell-site
searches and seizures. Lost in its race
location information, explaining that no
to the finish was any real recognition
single rubric definitively resolved which
of the century’s worth of precedent it
expectations of privacy were entitled to
jeopardized. For the majority, the instant
protection. But then it offered a twist.
case was apparently no different from
Lower courts could be sure to add two
one in which Government agents raided
special principles to their Katz calculus:
the Petitioner’s home and removed
the need to avoid arbitrary power and
records associated with his cell phone.
the importance of placing obstacles
7. To ensure that justice was done, it was
in the way of too permeating police
imperative to the function of courts
surveillance. While surely laudable, those
that compulsory process be available
principles didn’t offer lower courts much
for the production of evidence. For
guidance. The Court did not say how far
over a hundred years, the Courts
to carry either principle or how to weigh
understood that holding subpoenas to
them against the legitimate needs of law
the same standard as actual searches and
enforcement.
seizures would stop much if not all of
2. The Court’s application of those
investigation in the public interest at the
principles supplied little more direction.
threshold of inquiry. A skeptical majority
The Court declined to say whether
decided to put that understanding to the
there was any sufficiently limited period
test. Compounding its initial error, the
of time for which the Government
Majority also held that a defendant had
could obtain an individual’s historical
the right under the Fourth Amendment
location information free from Fourth
to object to the search of a third party’s
Amendment scrutiny. But then it
property. That holding flouted the clear
said that access to seven days’ worth
text of the Fourth Amendment, and it
61
of information did trigger Fourth protection as he did when papers

Amendment scrutiny even though were subjected to search in one’s own
the carrier produced only two days household.
of records. Why was the relevant fact 5. To be sure, courts had to be wary of
the seven days of information the returning to the doctrine of Boyd v.
government asked for instead of the two United States. Boyd invoked the Fourth
days of information the government Amendment to restrict the use of
actually saw? Why seven days instead of subpoenas even for ordinary business
ten or three or one? And in what possible records and, as eventually proved
sense did the government search five unworkable. But if they were to overthrow
days’ worth of location information it Jackson too and deny Fourth Amendment
was never even sent? The Court did not protection to any subpoenaed materials,
know. they would do well to reconsider the
3. Beyond its provenance in the text scope of the Fifth Amendment while
and original understanding of the they were at it. Their precedents treated
Amendment, that traditional approach the right against self-incrimination as
came with other advantages. Judges applicable only to testimony, not the
were supposed to decide cases based on production of incriminating evidence.
democratically legitimate sources of law But there was substantial evidence that
like positive law or analogies to items the privilege against self-incrimination
protected by the enacted Constitution was also originally understood to protect
rather than their own biases or a person from being forced to turn over
personal policy preferences. A Fourth potentially incriminating evidence.
Amendment model based on positive 6. The case offered a cautionary example.
legal rights carved out significant room It seemed to the court entirely possible
for legislative participation in the Fourth a person’s cell-site data could qualify
Amendment context, too, by asking as his papers or effects under existing
judges to consult what the people’s law. Yes, the telephone carrier held the
representatives had to say about their information but designated a customer’s
rights. Nor was that approach hobbled cell-site location information as customer
by Smith and Miller, for those cases were proprietary network information and
just limitations on Katz, addressing only gave customers certain rights to control,
the question whether individuals had use of and access to customer proprietary
a reasonable expectation of privacy in network information (CPNI) about
materials they shared with third parties. themselves. The statute generally forbade
Under that more traditional approach, a carrier to use, disclose, or permit
Fourth Amendment protections for the access to individually identifiable CPNI
papers and effects did not automatically without the customer’s consent, except
disappear just because one shared them as needed to provide the customer’s
with third parties. telecommunications services. It also
4. The Fourth Amendment jurisprudence required the carrier to disclose CPNI
already reflected that truth. Sealed upon affirmative written request by the
letters placed in the mail were as to their customer, to any person designated by
outward form and weight, as if they the customer. Congress even afforded
were retained by the parties forwarding customers a private cause of action for
them in their own domiciles. The reason, damages against carriers who violated
drawn from the Fourth Amendment’s the Act’s terms. Plainly, customers
text, was that the constitutional guaranty had substantial legal interests in that
of the right of the people to be secure information, including at least some
in their papers against unreasonable right to include, exclude, and control its
searches and seizures extended to their use. Those interests could even rise to
papers, thus closed against inspection, the level of a property right.
wherever they could be. It did not matter 7. Unfortunately, too, the case marked the
that letters were bailed to a third party second time the term that individuals
(the government, no less). The sender had forfeited Fourth Amendment
enjoyed the same Fourth Amendment arguments based on positive law by
62
failing to preserve them. Litigants had Okiya Omtatah Okoiti v Communication

fair notice that arguments like those Authority of Kenya & 8 others [2018] eKLR
could vindicate Fourth Amendment and Kenya Human Rights Commission v
interests even where Katz arguments Communications Authority of Kenya & 4
did not. Yet the arguments had gone others [2018] eKLR
unmade, leaving courts to the usual
The two Petitions challenged the
Katz hand-waving. Those omissions did
introduction of a Device Management
not serve the development of a sound
System (DMS system) device into the
or fully protective Fourth Amendment
networks of the Interested Parties and
jurisprudence.
Respondents respectively (Safaricom
The judgment of the Court of Appeals was Limited, Airtel Networks Kenya Limited
reversed, and the case was remanded for further and Orange-Telkom Kenya) who provided
proceedings consistent with the above opinion. various telecommunication services to their
Relevance to the Kenyan Situation customers and those services included mobile
telephone, data, internet and mobile money
Kenya too has laws on protection of people’s transfers. The Petitions alleged that the
privacy and unlawful searches and seizures device had the capacity to access customers’
of their person and possessions in relation information, which could only be accessed in
to cell phone data stored by mobile service a manner prescribed by law and was therefore
providers. The Constitution of Kenya, 2010 said to be a violation of the right to privacy.
provides for the right to privacy in Article The Petitions also challenged the manner in
31. It goes ahead to state that every person which the device was introduced and that
has the right to privacy, which includes there was no guarantee that the information
the right not to have their person, home or accessed would remain confidential.
property searched; their possessions seized;
information relating to their family or private The Court held that that the decision, policy
affairs unnecessarily required or revealed; or regulation seeking to implement the DMS
or the privacy of their communications System was adopted in a manner inconsistent
infringed. with the provisions of the Constitution,
section 5 (2) of KICA and the Statutory
There is also the Kenya Information Instruments Act and the plan seeking to
and Communications Act, No. 2 of integrate the DMS to the Parties’ networks
1998 which states in its preamble that was a threat to the subscribers privacy, hence
it is an Act of Parliament enacted to a breach of the subscribers’ constitutionally
provide for the establishment of the guaranteed rights to privacy, therefore
Communications Commission of Kenya, unconstitutional, null and void.
to facilitate the development of the
information and communications sector It is clear that Kenyan law as it stands holds it
(including broadcasting, multimedia, unconstitutional to access customers’ mobile
telecommunications and postal services) network information as it’s a breach of the
and electronic commerce to provide for right to privacy. The cell-site data conveyed to
the transfer of the functions, powers, the mobile network providers by customers
assets and liabilities of the Kenya Posts and while establishing communication arouses
Telecommunication Corporation to the reasonable expectation of privacy, the
Commission, the Telcom Kenya Limited and same as the holding by the United States
the Postal Corporation of Kenya, and for Supreme Court which has held that the
connected purposes. resulting business records are entitled to
constitutionally guaranteed rights to privacy
Section 5 of Act provides for the in and the Government could not breach that
Communications Commission of Kenya right to privacy by want of use of compulsory
whose object and purpose shall be to production of cell-site data records.
licence and regulate postal, information and
communication services in accordance with
the provisions of the Act.
There has also been case law on the same as
seen below.
63
Law Reform Issue

Court Declares Amendment Of Sections 35A (5) And 35I (B) Of The Pharmacy
And Poisons Act Unconstitutional
Republic v The National Assembly and 7 others ex-parte Dr. George Wang’anga’a
High Court at Nairobi,
Miscellaneous Civil Application 391 of 2017
January 17, 2018
G V Odunga, J
Brief Facts ney General giving the Bill a clean bill of

The Application before the Court challenged health.
the Constitutionality of the Clinical Officers iv. Whether the Parliamentary Powers and
(Training, Registration and Licensing) Bill, Privileges Act No. 29 of 2017 was meant
2016 in which section 34 of the said subject to act retrospectively and therefore limit
Bill amended sections 35A (5) and 35I (b) the Applicants’ right to challenge amend-
of the Pharmacy and Poisons Act. The said ments to the Pharmacy and Poisons Act.
amendments were inserted by the National Holdings pertinent to Law Reform
Assembly in the Bill during the Commit- 1. The Constitution of Kenya, 2010 had
tee Stage through a notice of motion. It was been hailed as being a transformative
averred that the substantive amendment to Constitution as opposed to a structural
the Act in the said Bill was a different subject Constitution; it was a value-oriented
matter and unreasonably or unduly expand- one. Its interpretation and application
ed the subject of the Bill and was not in logi- had to therefore not be a mechanical
cal sequence to the subject matter of the Bill. one but had to be guided by the spirit
It was further stated that the Respondents’ and the soul of the Constitution itself
failure to refer the impugned amendments as ingrained in the national values and
of the Bill to the Senate violated articles 109, principles of governance espoused in the
110, 112,113, 122 and 123 of the Constitu- preamble and inter alia article 10 of the
tion of Kenya, 2010 (Constitution) and Na- Constitution.
tional Assembly standing orders No. 121 to 2. Kenya’s Constitution embodied the val-
123 ues of the Kenyan Society, as well as the
Issues aspirations, dreams and fears of the na-
i. What was the extent and role of the ju- tion as espoused in article 10 of the Con-
diciary in reviewing parliamentary pro- stitution. It was not focused on present-
ceedings? ing an organisation of Government, but
ii. Whether the process of enactment of the rather was a value system itself hence
Clinical Officers (Training, Registration not concerned only with defining hu-
and licensing) Bill 2016 under which sec- man rights and duties of individuals and
tion 34 intended to amend sections 35A state organs, but went further to find val-
(5) and 35I (b) of the Pharmacy and Poi- ues and goals in the Constitution and to
sons Act was unconstitutional for: transform them into reality. Therefore,
a) Lack of public participation as pro- the Court was required in the perfor-
vided for in article 10 and 118 of the mance of its judicial function to espouse
Constitution of Kenya, 2010; the value system in the Constitution and
b) For being unrelated to the substance to avoid the structural minimalistic ap-
of the Clinical Officers (Training, Reg- proach.
istration and licensing) Bill 2016. 3. The general rule or principle applying to
c) Failure to involve the Senate in legisla- legislation is that there is a presumption
tion that involved Counties. of constitutionality of statutes. Under
iii. In regards to the shortcomings above, article 1 of the Constitution, sovereign
whether the presidential assent to the Bill power belonged to the people and it was
was unconstitutional despite the Attor- to be exercised in accordance with the
64
Constitution. That sovereign power was Constitution by the Respondents, it was

delegated to Parliament and the Legisla- the Court’s finding that the principle of
tive Assemblies in the County Govern- independence of the Legislature did not
ments; the National Executive and the inhibit the Court’s jurisdiction or pro-
Executive structures in the County Gov- hibit it from addressing the Applicant’s
ernments; the Judiciary and independent grievances so long as they stemmed out
tribunals. of alleged violations of the Constitution.
4. There was however a rider that the said To the contrary, the invitation to do so
organs had to perform their functions in was most welcomed as that was one of
accordance with the Constitution. The the core mandates of the Court.
Constitution of Kenya, 2010 having been 8. The Constitution is the Supreme Law of
enacted by way of a referendum, was the the country and all State Organs have to
direct expression of the people’s will and function and operate within the limits
therefore all State organs in exercising prescribed by the Constitution. In cases
their delegated powers had to bow to where they step beyond what the law
the will of the people as expressed in the and the Constitution permit them to do,
Constitution. Article 2 of the Constitu- they could not seek refuge in indepen-
tion provided for the binding effect of dence and hide under that cloak or mask
the Constitution on state organs and of inscrutability in order to escape judi-
proceeded to decree that any law, includ- cial scrutiny.
ing customary law, which was inconsis- 9. The doctrine of independence had to be
tent with the Constitution, was void to read in the context of Kenya’s Constitu-
the extent of the inconsistency, and any tional framework and where the adop-
act or omission in contravention of the tion of the doctrine would clearly mili-
Constitution was invalid. tate against the constitutional principles
5. Where the Court was convinced that the that doctrine or principle had to bow
orders ought to have been granted, the to the dictates of the spirit and the let-
Court would not shy away from doing ter of the Constitution and the enabling
so. The Constitution was a living thing: it legislation. It was not only the role of
adopted and developed to fulfil the needs the Courts to superintend the exercise
of living people whom it both governed of such powers but their constitutional
and served. Like clothes, it ought to have obligation to do so. In effect, the Legis-
been made to fit people and never to lature’s independence under the Con-
have been strangled by the dead hands of stitution only remained valid and insur-
long discarded custom, belief, doctrine mountable as long as it operated within
or principle. It had, of necessity, to adapt its legislative and constitutional sphere.
itself; it could not lay still. It had to adapt Once it left its stratosphere and entered
to the changing social conditions. the airspace outside its jurisdiction of
6. The doctrine of constitutionality of stat- operation, the Courts were then justified
utes, when in conflict with the constitu- in scrutinizing its operations.
tional obligation of the Court to investi- 10. The Constitution instilled a culture of
gate the constitutionality of a statute, had justification, in which every exercise of
to give way to the latter. When any of the power was expected to be justified. The
State Organs or State Officers stepped stages through which a bill passed be-
outside its mandate, the Court would fore being enacted were to be found in
not hesitate to intervene and that was the National Assembly Standing Orders
appreciated. Therefore, the Court vested 120 to 139, which were made pursuant
with the power to interpret the Con- to the provisions of articles 109 to 113,
stitution and to safeguard, protect and 119, 122 and 123 of the Constitution and
promote its provisions as provided for those stages were:
under article 165(3) of the Constitution, i. The publication of the Bill;
had the duty and obligation to intervene ii. Determination through concur-
in actions of other State Organs where rence of speakers of both houses
it was alleged or demonstrated that the on whether or not the Bill con-
Constitution had either been violated or cerned County Governments;
threatened with violation. iii. First Reading of the Bill;
7. As the Petition alleged a violation of the iv. Committal of the Bill to the rel-
65
evant Committee to commit it to played distinctive and complimentary

the Public Participation; roles with one body having the regula-
v. Second Reading of the Bill; tory role while the other ensuring qual-
vi. Committal of the Bill to the Com- ity assurance compliance, being two
mittee of the whole house; complimentary regulatory bodies under
vii. Third Reading of the Bill and pas- the Pharmacy and Poisons Act. While
sage into law. the Court appreciated that it was within
It was clear that public participation the province of Parliament to delineate
took place between the First Reading the respective roles where an enactment
and the Second Reading. In that case, the left a particular role unregulated without
impugned amendments were introduced expressly stating that was its intention, it
at the Committee Stage well after the pe- could only be deemed as a failure to con-
riod for the public participation. sider relevant material.
11. Public participation was one of the na- 14. It was true that Parliament had vide sec-
tional values and principles of gover- tions 62 & 63 of the Health Act, 2017
nance enunciated in article 10 of the contemplated a single regulatory body
Constitution which bound all State or- for the regulation of health products and
gans, State officers, public officers and all health technologies. However, what was
persons whenever any of them inter alia contemplated was the creation of such
enacted, applied or interpreted any law. body through future legislative enact-
One of the principles thereunder was the ment in accordance with the aforemen-
participation of the people. Therefore tioned sections. The effective and op-
where the principle of public participa- erational statutory law on regulation of
tion was not inculcated in the process of medicines remained the Pharmacy and
legislative enactment, the process of such Poisons Act, Cap 244 Laws of Kenya,
enactment could not be said to meet the since apart from the purported transfer
constitutional threshold. In the instant of sampling of medicinal samples under
case, it was not contended that after the production and carrying out analytical
amendment the Bill was re-subjected to testing for issuance of certificate of Anal-
public participation. The result was that ysis provided for under sections 35A (5)
the public’s input in the said amendment and 35K of Pharmacy and Poisons Act,
was ignored. it was the 3rd interested party’s mandate
12. It was clear that the introduced amend- to issue certificate of analysis.
ment to the Pharmacy and Poisons Act, 15. The effect of the amendment was clearly
deleted section 35I (b) and also substi- not just a formal amendment but a sub-
tuted the Director of National Quality stantive one that required public in-
Control Laboratory with the Pharmacy put. The failure to seek the public input
and Poisons Board in section 35A (5). In could not therefore be brushed aside.
addition, it was clear that the aim and The Court not only had the power but
or motivation of the amendment was the obligation to determine whether a
to transfer the GMP inspection func- particular legislation was in fact and in
tions from the National Quality Control substance enacted in accordance with
Laboratory to the Pharmacy and Poisons the Constitution and not to just satisfy
Board, the resultant effect of the dele- itself as to the formalities or the motions
tion of section 35I(b) which dealt with of doing so.
inspection of premises and issuance of 16. By introducing totally new and substan-
certificates of compliance, left that im- tial amendments to the Pharmacy and
portant power unregulated. Therefore, Poisons Act at the Committee Stage of
the Applicant’s view that the effect of the whole house, which was neither con-
the amendment was an exposure of Ke- sequential amendment nor amendment
nyan citizens to dangerous substandard within statute law (Miscellaneous) Bill,
and counterfeit medicines could not be but concerned drugs-control of manu-
without merit. facture of medicines, Parliament not
13. By acting in the manner it did, the 1st only set out to circumvent the constitu-
Respondent improperly ignored the tional requirements of public participa-
Court’s earlier decision where it held tion but, with due respect, mischievously
that the Board and the Laboratory short-circuited and circumvented the
66
letter and the spirit of the Constitution. sion were determined by construction
Its action amounted to a violation of ar- of the statute conferring the discretion.
ticles 10 and 118 of the Constitution. Statutes might expressly state the con-
17. What was before the House was Clini- siderations that need to be taken into ac-
cal Officers (Training, Registration and count or ignored. Otherwise, they had to
Licensing) Bill, 2016 which repealed be determined by implication from the
the existing Clinical Officers (Training, subject matter, scope and purpose of the
Registration and Licensing) Act, Cap. statute. Had the 1st Respondent consid-
260 of the Laws of Kenya which made ered the effect of the late amendments
provision for training, registration and no doubt it would not have passed the
licensing of Clinical Officers; to regulate same in the manner it did.
their practice and to provide for the es- 21. It was expressly provided that control
tablishment, powers and functions of the of drugs and pornography was the func-
Clinical Officers Council. The Pharmacy tion of county governments. The Phar-
and Poisons Act on the other hand was macy and Poisons Act dealt with con-
an Act of Parliament to make better pro- trol of drugs. Therefore a bill proposing
vision for the control of the profession amendments to that Act ought to have
of pharmacy and the trade in drugs and necessarily been deemed as a Bill con-
poisons. cerning county governments pursuant
18. Section 34, instead of 35 because sec- to article 110 of the Constitution and
tion 22 was deleted, of the Clinical Offi- therefore ought to have been referred to
cers (Training, Registration and Licens- the Senate.
ing) Act, which came in by virtue of the 22. There was no evidence of concurrence
said amendment however read that the of the Speaker of the Senate having ex-
Board (Pharmacy and Poisons Board) pressed that the Bill did not concern
or any person authorized in writing county governments. However, the final
by the Board would have power to en- decision as to whether a bill concerned
ter and sample any medicinal substance county governments had to rest on the
under production in any manufacturing Court. While the opinions of the Speak-
premises and certify that the method of ers of the two houses were entitled to
manufacture approved by the Board was their respect, the ultimate decision was
being followed. vested in the Court. There was no evi-
19. There was absolutely no nexus between dence that the Bill in question was re-
section 34 and the rest of the sections ferred to and passed by the Senate as
of the Clinical Officers (Training, Reg- ought to have been done. Parliament as a
istration and Licensing) Act. Clearly by law making body ought to have set stan-
amending the provisions of the Pharma- dards for compliance with the Constitu-
cy and Poisons Act, which had nothing tional provisions and with its own Rules.
to do with the objectives of the Clinical 23. As regards the advice of the Attorney
Officers (Training, Registration and Li- General, that opinion ought to have it-
censing) Bill, 2016, the 1st Respondent self been lawful. In the case, with due
purported to deal with a different sub- respect to the office of the Attorney
ject and proposed to unreasonably or General, in a rather convoluted opinion,
unduly expand the subject of the Bill and misdirected the President on the legal-
in a manner not appropriate or in logi- ity of the impugned amendments. The
cal sequence to the subject matter of the Attorney General, rightly in the Court’s
Bill. In other words, the 1st Respondent view opined that section 34, which was
exceeded its powers conferred on it by unrelated to the substance of the Bill and
the Constitution as read with the Stand- which was inserted during the Commit-
ing Orders. tee Stage, intended to amend sections
20. The 1st Respondent deleted a provision 35A(5) and 35I(b) of the Pharmacy and
of the Act which there was no express Poisons Act. He further opined that the
intention to be deleted. In so doing, the National Assembly might not have acted
1st Respondent failed to consider a rel- strictly in accordance with its Standing
evant matter. The considerations that a Orders.
decision-maker was bound to consider 24. Despite those clear grave misgivings, the
or bound to ignore in making the deci- Attorney General proceeded to give the
67
whole Bill a clean bill of health by con- the Parliamentary Powers and Privileges
firming that the Bill was consistent with Act that it was meant to operate retro-
the provisions of the Constitution and spectively. Before its commencement,
other existing laws and that the President the ex parte Applicant had the right to
could assent to the Bill, if he approved. challenge the amendments to the Phar-
The opinion was unsupported by the macy and Poisons Act. Therefore, sec-
law and the authorities. The Bill ought tion 11 of the Parliamentary Powers and
not to have been signed in the manner Privileges Act, No. 29 of 2017, assuming
in which it was passed and the Attorney without deciding that the provision was
General ought to have advised the Presi- in the first place constitutional, did not
dent along those lines as was rightly pro- apply to those proceedings.
posed by the Chief of Staff and Head of 28. Section 12 only dealt with civil proceed-
the Public Service on April 18, 2017. ings. Those were judicial review pro-
25. Consequently, the manner in which sec- ceedings. High Court in the exercise of
tions, 35A(5) and 35I(b) of the Pharmacy its judicial review jurisdiction exercised
and Poisons Act, were amended by the neither a criminal jurisdiction nor a civil
impugned Clinical Officers (Training, one since the powers of the High Court
Registration and Licensing) Act, was to grant judicial review remedies was
clearly unprocedural, unlawful and ultra sui generis. However, in conducting its
vires and was consequently unconstitu- proceedings, Parliament was bound to
tional. adhere to the provisions of the Constitu-
26. The Court was aware that on July 21, tion and where its actions contravened
2017, the Parliamentary Powers and the Constitution; the same was null and
Privileges Act, No. 29 of 2017 was as- void.
sented to by the President. Under sec- Application allowed.
tion 38(1) of the said Act the National i. An Order of Certiorari removing into the
Assembly (Powers and Privileges) Act Court for the purposes of being quashed all
was repealed. However the commence- attendant proceedings and the decision of
ment date of the Act was indicated as the 1st Respondent dated April 5, 2017 that
August 17, 2017. Those proceedings passed the motion to amend sections 35A(5)
were commenced before the commence- & 35I(b) of the Pharmacy and Poisons Act
ment date of the said Act. Section 11 of under Clinical Officers (Training, Registra-
the Parliamentary Powers and Privileges tion & Licensing) Bill 2016;
Act provided that no proceedings or de- ii. A declaration that the amendment to sec-
cision of Parliament or the Committee tions 35A(5) & 35I(b) of the Pharmacy and
of Powers and Privileges acting in accor- Poisons Act under section 34 of the Clinical
dance with the Act would be questioned Officers (Training, Registration & Licens-
in any court. ing) Bill 2016 was passed in a manner that
27. The general rule was that all statutes oth- breached the express provisions of the Con-
er than those which were merely declar- stitution and was thus unconstitutional, null
atory or which relate only to matters of and void.
procedure or evidence were prima facie iii. Costs awarded to the Applicant.
prospective and retrospective effect was
not to be given to them unless by express
words or necessary implication, it ap-
peared that that was the intention of the
legislature. There was no stipulation in
68
Legality of the Offence of Criminal Defamation

By Linda Awuor & Kakai Toili
Introduction: The Court was of the view that sentencing

of the Applicant to a 12 months term of
Criminal defamation can be defined as
imprisonment for defamation, contempt
the action damaging the good reputation
and insult was inconsistent with the Charter,
of someone that constitutes a crime and
the Covenant and the Revised ECOWAS
is subject to criminal penalties. Criminal
Treaty. Consequently, the Court held that
defamation occurs when one purposely
enforcement of such laws amounted to
communicates to any person orally or in
a violation of the relevant human rights
writing, any information which he or she
provisions in that regard.
knows to be false and knows will tend to
expose any other living person to public The Court further held that the custodial
hatred, contempt or ridicule. The issue of sentence under the Burkina Faso’s
the legality or constitutionality of criminal Information Code and the Penal Code
defamation has been handled by various constituted a disproportionate interference
courts in Africa in landmark judgments. in the exercise of the freedom of expression
by the Applicant as a journalist.
Comparative case law analysis:
The High Court of Kenya in Jacqueline Okuta
The African Court on Human and People’s
& another v Attorney General & 2 others,
Rights in Lohe lssa Konate v. Burkina Faso,
Petition No 397 of 2016 was also faced with
Application No. 00412013 was faced with the
a similar issue. The Court in this case held
issue of the legality of criminal defamation.
that the freedom of speech and expression
The Court held that restrictions on freedom
carried with it the right to publish and
of expression had to be assessed within the
circulate one’s ideas, opinions and views
context of a democratic society and such an
with complete freedom and by resorting to
assessment had to be ascertained whether
any available means of publication; subject
that restriction was a proportionate measure
to such restrictions as could be legitimately
to achieve the set objective, the protection of
imposed under article 24 of the Constitution
the rights of others.
of Kenya. The Court went on to hold that the
The Court held that the Respondent State reasonable restrictions were those which were
failed to show how a penalty of imprisonment meant to prevent the expression of thought
was a necessary limitation to freedom of which was intrinsically dangerous to public
expression in order to protect the rights and interest and would not include anything else.
reputation of members of the judiciary. The The Court further held that the enabling
Court further held that sections 109 and 110 power in article 24 of the Constitution to
of the Information Code and section 178 impose reasonable restrictions on the right
of the Penal Code of Burkina Faso on the conferred by article 33 of the Constitution
basis of which the Applicant was sentenced was intended to safeguard the interests of
to a custodial sentence, was contrary to the State and the general public and not of
the requirements of article 9 of the African any individual, and therefore article 24 could
Charter on Human and Peoples’ Rights (the not be regarded as the source of authority for
Charter) and article 19 of the International section 194 of the Penal Code which made
Covenant on Civil and Political Rights (the defamation of any person an offence.
Covenant).
The Court also held that defamation of an
The Court went on to hold that violations individual by another individual was a civil
of laws on freedom of speech and the wrong or tort for which the common law
press could not be sanctioned by custodial remedy was an action for damages. The
sentences unless it was serious and very Court went on and stated that defamation
exceptional circumstances like incitement of a private person by another person
to international crimes, public incitement could not be regarded as a crime under the
to hatred, discrimination or violence or constitutional framework and hence, what
threats against a person or a group of people. was permissible was the civil wrong and the
69
remedy under civil law. justified in a free and democratic society and
that the crime of defamation had no place in
The Constitutional Court of Lesotho was
Lesotho’s constitutional dispensation
also faced with this issue in Basildon Peta v
Minister of Law, Constitutional Affairs and Conclusion:
Human Rights and 2 Others, Constitutional
From the foregoing, it is evident that courts
Case No. 11 of 2016. Section 104 of Lesotho’s
Penal Code provided that a person who in the region are moving towards doing away
publishes defamatory matter concerning with criminal defamation. The courts dealt
another person commits the offence of with criminal defamation in the context of
criminal defamation. The Court in this a free and democratic society and viewed
case held that criminalizing defamation criminal defamation as encroaching on
had a chilling effect on the journalistic the freedom of expression which was not
freedom of expression, resulting in self- reasonable. The courts gave instances in
censorship by journalists and a less informed which the freedom could be restricted and
public. The Court cited with approval calls they included circumstances which were
by the African Commission and United intrinsically dangerous to public interest.
Nations Special Rapporteur on Freedom The courts were of the view that defamation
of Expression which encouraged states to was a civil wrong between a private person
repeal criminal defamation laws. The Court by another person and could therefore not
held that the extent of the section 104 of the be regarded as a crime.
Act encroached on the freedom of expression
was not reasonable and demonstrably
An awareness of our past is essential to the establishment of our personality and our identity as Africans - Haile Selassie
Some rights reserved Philip Sheldrake
70
Kenya Law Visits Kwetu Home Of Peace as part of it’s Annual CSR initiative.
Kenya Law Staff and children of Kwetu home

of peace pose for a picture. Kenya Law welfare
association visited the children’s home in
Madaraka on Friday the 20th of April 2018 and
donated food stuff, stationery, books, school
bags, shoes, socks and other personal effects.
Nelson Tunoi, Chairman Kenya Law Welfare association receives a certificate of appreciation from the
Director Kwetu Home of Peace Sr. Carol. Kenya Law welfare association visited the children’s home
in Madaraka on Friday the 20th of April 2018 and donated food stuff, stationery, books, school bags,
shoes, socks and other.
Kenya Law at the 5th Annual Devolution Conference
Kenya Law’s Senior Law Reporter Mr. Christian Ateka (Left ) interacts with members of the
public during the 5th Annual Devolution Conference held at Kakamega High School from 23rd
to 27th April 2017.
71
Kenya Law Showcases at the Employment and Labour Relations Court Open Day
(ELRC)
A Judicial Officer is all smiles after receiving a free copy of the Constitution from the
Kenya Law stand during the Employment And Labour Relations Court Open Day (ELRC) held
at the Milimani Commercial Court on 4th May, 2018.
Kenya Law Knowledge exchange Programme
Kenya Law’s CEO Mr. Longet Terer presents the new Kenya Law
Report to Ms.Kawesa Rose and Ms. Namukasa Mariam (in stripes) of
the Uganda Law development Center during a knowledge exchange
program at Kenya Law.
Kenya Law’s team Wambui Kamau (Team Leader LoK), Linda Awuor (Team Leader R&D) and
Andrew Halonyere (Senior Law Reporter) presents the new Kenya Law Report volume to Hon.
Justice James Alala, Judge of the Supreme Court of the Republic of South Sudan, during a
Benchmarking trip on Law Reporting and Law Revision at Kenya Law.
Mr Long’et Terer , Editor/CEO Kenya Law presents Kenya
Law Reports volume to Prof. Moni Wekesa, Dean, School
of Law, Daystar University
72
Kenya Law Senior Law Reporters, Christian

Ateka and Njeri Githanga (centre)
together with a team from the Judiciary of
Tanzania during a training session on Case
Summarization for the Judiciary of Tanzania
and TanzLII in Dar es salam, Tanzania.
Director of the African Legal

Information Institute (Africanlii)
centre together with representatives
from Kenya Law (National Council
For Law Reporting), Njeri Githang’a
(right) and Christian Ateka during a
workshop on Case Summarization for
the Judiciary of Tanzania and TanzLII
in Dar es salam, Tanzania.
Kenya Law team, Emma Kinya, Victor

Cheruiyot, Linda Awuor, Wambui Kamau,
Andrew Halonyere and Musa Okumu
present Kenya Law Publications to Mr.
Eric Apeadu, coordinator for Ghana
Legal Information (GhanaLii) after
benchmarking session on Law Reporting
and Law Revision at Kenya Law
73
The Devolution Case Digest gives a synopsis of selected cases on devolution emanating from
the Kenyan Courts and draws comparative lessons from other commonwealth jurisdictions.
The Digest is arranged thematically along the following seven key areas: Public Service;
Public Finance Management; Equity and Inclusivity; Removal from Office and Suspension
of County Governments; Transition to Devolved Government and Transfer of Powers and
Functions; Intergovernmental Relations as well as Public Participation and Citizen
Engagement.
Each @
Ksh.3000
Address of Principal office and Contacts:
ACK Garden Annex, 5th Flr., 1st Ngong Avenue, Off Ngong Road
P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
Mobile: +254 718 799 464, 736 863 309

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Issue 41,

April - June 2018

Court Rules on the Constitutionality of the

It is not Compulsory for Liquidation of a Company to be an Option of Last Resort Where

EDITORIAL TEAM 1. Editors Note 1

Publishing, Design and Layout

The official Law Reports of Kenya

The Hon. Mr Justice David K. Maraga, EGH

Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi Mr Michael Sialai, EBS

Remarks By Hon. David K. Maraga, Chief Justice And President Of

Hon. David K. Maraga, EGH,

What they said

High Court Judge – J M Mativo, J in D W T v B N T & 3 others - Petition 46 of 2016

or institution. Processing of information article 24 of the Constitution.

the Respondent was applicable in wildlife.

wildlife, factually it was KWS which 18 of the Wildlife Conservation and

Court of Appeal has no Jurisdiction to Determine Electoral Disputes

Civil Practice and Procedure-appeals-appeals jurisdiction to revoke the nomination

Some rights reserved by Jerru Friedman

Civil Practice and Procedure – appeals – for over a 5 year period.

payment of a debt. Appeal in question on November 21,

of varying the terms of the payment Appellant suspended for a period

Statutes-interpretation of statutory provisions- unlawful assisted voting, incorrect tallying

exception of the alleged wrongful Orders made without jurisdiction were

This world was not created piecemeal.

Some rights reserved Philip Sheldrake

and family relations as recognized by dispute.

need to ensure that the disclosure did issues. Decisions on violation of

Constitutionality of the Election Laws Amendment Act, 2017 after the

The Independent Electoral and Boundaries tallying centre;

members including the Chairperson. to exercise powers and functions of

would also be physically delivered to accuracy, verifiability and reliability

principles. Constitution. The section was necessary

In Addition to the Prayer for Production of the Persons or Bodies of the

Kenya, article 2 (6) Kenya by virtue of the fact that it made

Feedback For Caseback Service

Hon. AbdulQadir Lorot Dear CaseBack team,

Thanks to case back.

Thank you for your feedback which is highly appreciated. It

Hon. Justice Fred A. Well received, thanks.

ACT DIVISION OF REVENUE ACT, 2018

ACT SUPPLEMENTARY APPROPRIATION ACT, 2018

Act No. 2 of 2018

ACT EQUALIZATION FUND APPROPRIATION ACT, 2018

ACT STATUTE LAW (MISCELLANEOUS AMENDMENTS) ACT, 2018

Act No. 4 of 2018

ACT COMPUTER MISUSE AND CYBERCRIMES ACT, 2018

B. NATIONAL ASSEMBLY BILLS

NATIONAL DIVISION OF REVENUE BILL, 2018

Sponsor Kimani Ichung’wa, Chairperson, Budget and Appropriations Committee.

NATIONAL GOVERNMENT CONTRACTS BILL, 2018

NATIONAL COUNTY GOVERNMENTS RETIREMENT SCHEME BILL, 2018

Sponsor Aden Duale, Leader of Majority Party.

NATIONAL TAX LAWS (AMENDMENT) BILL, 2018

Sponsor Aden Duale, Leader of Majority Party.

NATIONAL AS- STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL, 2018

Sponsor Aden Duale, Leader of Majority Party.

NATIONAL STATUTE LAW (MISCELLANEOUS AMENDMENTS) (NO. 2) BILL, 2018

Dated 10th April, 2018

Sponsor Aden Duale, Leader of Majority Party.

NATIONAL HEALTH LAWS (AMENDMENT) BILL, 2018

Sponsor Aden Duale, Leader of Majority Party.