Child Welfare Society of Kenya v Republic & 2 others; Law Society of Kenya & 8 others (Interested Parties) (Civil Appeal 20 of 2015) [2017] KECA 175 (KLR) (17 November 2017) (Judgment)
Child Welfare Society of Kenya v Republic & 2 others Ex-parte Child in Family Focus Kenya [2017] eKLR
Neutral citation:
[2017] KECA 175 (KLR)
Republic of Kenya
Civil Appeal 20 of 2015
PN Waki, RN Nambuye & K M'Inoti, JJA
November 17, 2017
Between
Child Welfare Society of Kenya
Appellant
and
Republic Ex parte
Ex parte
and
The Honourable Attorney General
1st Respondent
The Cabinet Secretary, Ministry of Labour, Social Security and Services
2nd Respondent
and
The Law Society Of Kenya
Interested Party
Kenyans to Kenyans Peace Initiative Adoption Society (Kkpi)
Interested Party
Little Angels Network
Interested Party
Kenya Children’S Home Adoption Society
Interested Party
Buckner Kenya Adoption Services
Interested Party
Beneah Otieno Onyango
Interested Party
Jennifer Wanjiku Kanusu
Interested Party
Anne Nungari Thairu
Interested Party
Baby J & 219 others (Suing Through Titus Nyoro as Next Friend)
Interested Party
Judgment
1.The law applicable in this country on the rights and welfare of children has come a long way. From the inadequacies of the The Children and Young Persons Act (Cap. 141); The Adoption Act (Cap. 143); The Guardianship of Infants Act (Cap. 144), all of which were repealed in 2001, Parliament put in place a comprehensive regime of laws under The Children Act, No. 8 of 2001. In its preamble, the Act makes provision for 'parental responsibility, fostering,adoption, custody, maintenance, guardianship, care and protection of children; administration of children’s institutions; to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes'. Parliament also enacted The Counter-Trafficking in Persons Act, No. 8 of 2010 which focuses on women and children. The guiding principle in all the provisions relating to children is that "the best interests of the child is the first and paramount consideration" which has since been etched in our supreme law as Article 53 of the Constitution 2010. In this appeal, the focus is on Adoption.
2.The oldest adoption society in the country is the Child Welfare Society (CWSK), the appellant herein. It is not clear how and when it started off or under what legal regime, but the information before us indicates that it was gazetted in 1955 as an approved society for the 'care, protection and control of children' under the Prevention of Cruelty to and Negligence of Children Ordinance (No. 12of 1955). It was also among three Societies which were exempted from registration under the Societies Ordinance (No. 52 of 1952) in 1955 (the two others being 'Patidar Institute, Kitale' and 'Sahiwal Breeders Society of Kenya'). In 1969, it was approved as an Adoption Society for purposes of the Adoption Act, Cap 143, and continued as such under the transitional provisions of the Children Act (Regulation 9 of Schedule 7). Lately, on 23rd May 2014, LegalNotice No. 58 of 2014 was published under the State Corporations Act, Cap 445 creating a state corporation known as "The Child Welfare Society of Kenya" with the object, inter alia, of taking over and succeeding CWSK. It was declared the "National Adoption Society". That was done one month after commencement of these proceedings in the High Court, but whether or not the process of creating the State Corporation was in accordance with the law is beyond the scope of this appeal and we make no consideration of it.
3.All the elaborate provisions for adoption of children, whether local or international, are to be found in Part XII of the Children Act (the Act). As relevant to this appeal, and in line with The Hague Convention on the Rights ofthe Child (the Hague Convention), The African Charter on the Rights and Welfare of the Child and The United Nations Convention on the Rights of the Child, which Kenya has ratified and therefore are part of our laws vide Article 2 (6) of the Constitution, an Adoption Committee is set up under section 155 with specific functions in the administration of adoptions, including:(a)formulating the governing policy in matters of adoption(b)effecting liaison between adoption societies, the Government and Non-governmental Organizations(c)considering and proposing names of the officers who may serve as guardians ad litem(d)monitoring adoption activities in the country(e)such other functions as are conferred on the Committee by this Act.
4.Section 177 of the Act makes provision for Adoption Societies and restriction on making arrangements for adoption. It provides in mandatory tone as follows:
5.Under those provisions, several Adoption Societies have been approved and licenced by the Adoption Committee (the Committee) including the seven entities enjoined as Interested Parties before us and in the High Court. In line with the section, CWSK obtained licences from the committee for several years since 2005 until the year 2013 when the committee insisted on compliance with certain requirements of the Regulations before renewal, viz-:a)independently audited accounts and balance sheet for the previous year in line with Regulation 20 of the Children (Adoption) Regulations, 2005;b)registration as a non- profit making organization in accordance with Regulation 10 (a);c)Annual report for the period 2011/2012 under Regulation 12.
6.CWSK did not respond to the committee's demand or appeal the decision as provided under section 177 (6) of the Act. Instead, purporting to appeal under section 195 of the Act, it reacted by applying to the Cabinet Secretary responsible for the administration of the Act, (the Minister) (3rd respondent) seeking exemption from the provisions of the Act under section 198. It informed the minister that it was being "victimised, harassed and interfered with" by the committee which was insisting on compliance with procedural regulations before renewal of its licence. It cited its long existence and special treatment by the authorities since 1955, and its continuation as an adoption society despite the enactment of the Children Act. CWSK also said it was 'impractical andinexpedient' to apply the provisions of section 177 to it.
7.The minister acceded to the application by letter dated 16th October, 2013 and proceeded to issue and publish gazette notice No. 206 on 25th October, 2013 exempting CWSK in the following manner:
8.The Child in Family Focus Kenya (CFFK) (2ndrespondent) was aggrieved by that exemption. It describes itself as a company limited by guarantee for the objective of advocacy for the protection and promotion of family based care options for disadvantaged children, children rights and practices relating to children. It also clarified that it was not an adoption society. By a Judicial Review (JR) application lodged with leave on 8th May, 2014, it sought an order of certiorari to have the exemption quashed, and an order of prohibition to stop the minister from issuing the legal notice or similar legal notices without legal justification. It's view was that the exemption was inimical to the interests and welfare of the child contrary to Article 53 of the Constitution; it was contrary to Article 10 on accountability, public participation and transparency; the minister acted ultra viressection 177 sub sections (1) to (12) and did not have the power under section 198 to issue the exemption; acted ultra viressection 177 (9), (10), (11) and (12) by placing CWSK above the law; arbitrarily granted adoption powers to an unregistered body; elevated CWSK above the supervision and accountability of the committee; acted contrary to the Hague convention, thus endangering inter-country adoptions; exempted the CWSK from criminal liability; and acted in a manner discriminatory of other adoption societies.
9.In seeking that order, CFFK was supported by Little Angels Network (LAN) (3rd interested party); Law Society of Kenya (LSK) (1st interested party); Kenyans to Kenyans Peace Initiative Adoption Society (KKPI) (2nd interested party); Kenya Children's Home Adoption Society (KCHAS) (4th interested party); and Buckner Kenya Adoption Services (Buckner) (5th interested party). They asserted that there was no distinction between the so-called 'private adoptionsociety' or 'profit making agency' and 'government sponsored adoption agency', since all adoption societies were equal under Article 27 of the Constitution in terms of registration, regulation, compliance and mandate. They contended that the transiting of CWSK as an adoption society ended in 2005 when the Regulations governing registration and operations of all adoption societies became operational. In their view, the historical exemption from registration under the Societies Act as touted by CWSK did not mean there was exemption from registration and licencing under the Regulations.
10.CWSK, the minister, as well as the Attorney General (AG) (1st respondent) opposed the JR application, narrating the long history of CWSK, going back to the colonial days, as a government sponsored and funded agency with wide and unique duties of offering a wide range of welfare amenities to disadvantaged and vulnerable children. It flaunted its pedigree by having His Excellency President Uhuru Kenyatta as its patron and the guaranteed direct funding by the National Treasury of its hefty annual budgets in excess of half a billion shillings to carry out its wide ranging roles and duties throughout the country. As regards adoptions, it claimed that unlike the private adoption societies which were motivated by financial gain, CWSK was not driven by commercial/profit interests since adoption for it was the last resort and was done locally under stringent conditions. CWSK charged that CFFK and the other private adoption societies were selling Kenyan children in the name of international adoptions making big money in the process and were merely ganging up against it for laying emphasis on local adoptions and its adherence to the principle of subsidiarity under the Hague Convention. It further asserted that the Minister acted lawfully within section 198 since he based his discretion on the 'impracticable and inexpedient' yardstick provided therein which was applicable in this case. According to them, the exemption was merely on registration requirements and not criminal liability unassociated with such registration. The exemption did not remove CWSK from supervision of the committee and there was no risk therefore that alleged violations like child trafficking, child abuse and such like, would occur.
11.Joining CWSK in opposition to the application were the 7th to 10th interested parties who are individuals whose adoption applications through CWSK were already at various stages of consideration by the Courts and who feared that the success of the application would be prejudicial to them. In their view, the application was not made in the best interests of the child.
12.The learned Judge (W. Korir, J.) considered the application, the bulky affidavits and annexures thereto, the written and oral submissions of all counsel and the numerous authorities cited --- in all, three volumes containing in excess of 1500 pages --- and in the end granted the order for certiorari but refused to grant the order of prohibition. In arriving at that conclusion, the learned Judge observed that the interested parties had unduly expanded the scope of the JR application by raising a deluge of issues outside the grounds and relief set out in the statutory statement, contrary to the provisions of Order 53 Rule 4 (1) of the CivilProcedure Rules. The Judge then determined several issues which are not relevant in this appeal, and framed two issues relevant to this appeal as follows:1.Whether the 2nd Respondent (the minister) had power to exempt the CWSK from the provisions of Section 177 of the Act.2.If the 2nd Respondent had power to exempt the CWSK, the next question would be whether he exercised his discretion properly.
13.The 1st issue called for the construction of section 198 of the Act which states as follows:
14.The Judge decided that the section had disjunctive categories of exemption as emphasized above, and so the minister had the power to exempt CWSK. He reasoned as follows:-
15.There is no challenge by way of a cross appeal to that finding. Only an improper and feeble attempt was made to revisit the issue in submissions before us by counsel for CFFK & LAN Mr. Charles Kanjama. In passing, even if we were to consider it, we find no error in the reasoning of the trial Judge. It is apparent that the section is not elegantly drafted and perhaps the addition of "any other person" or "group of persons" between "or" and "whom" would have brought more clarity. But we think the disjunctive use of "or" alone before "whom" makes all the difference and creates a third category, unlike the first two, which the minister may consider exemptions for.
16.As for the 2nd issue, the learned Judge faulted the exercise of discretion by the minister even after expressing the view that:
17.The Judge was of the view that the court could not abdicate its supervisory jurisdiction to ensure that the exercise of discretion by decision makers was lawful and proper, and that there was no abuse of power. He examined several authorities on the applicable principles including:Republic v Chief Magistrate’s Court & 2 Others ex-parte Safaricom Limited, Misc. Civil Application No. 299 of 2012; Republic v Minister for Home Affairs and Others ex-parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323 and Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997, 1030 B. D. where Lord Reid stated thus:
18.He also examined the circumstances demonstrated by the appellant in support of the wrong exercise of discretion including: the composition of the Adoption committee under section 155 (1) and 9thSchedule of the Act; the role and functions of the committee under section 155 (2); the creation, registration and functions of adoption societies in order to legally operate under section 177; the offences created under section 177; the facilitative Regulations made by the Minister to operationalize the Act; Part XII of the Act which Parliament dedicated to adoption only; Article 6 of the Hague Convention which obligates Contracting States to designate a Central Authority to discharge the duties which are imposed by the Convention upon such states, hence the Adoption Committee which has been given a key role of managing inter-country adoptions; and Article 53 (2) of the Constitution and section 4 of the Act , all of which dovetail with the universal principle of "the best interests of the child."
19.From the consideration of all those matters, the court was of the view and held that:-
20.The learned Judge declared that the exercise of the discretionary power given to the Minister was not only improperly exercised but also exercised in bad faith. He reasoned thus:-
21.And so, the order of certiorari was issued and the Children (Exemption Order)2013 contained in Legal Notice No. 206 of 25th October, 2013 was quashed. On application made by CWSK, the orders were stayed pending the hearing and determination of this appeal.
22.It is the findings and holding made on the 2nd issue that aggrieved CWSK. It sought to challenge them on seven grounds listed in the memorandum of appeal but which counsel appearing for them, M/s Ogeto, Otachi & Company Advocates, urged as four grounds in written submissions which were not orally highlighted. They may be summarized:The learned Judge erred in that:(i)Having found that the Minister had the power to exempt, it was not open to the learned judge to find that the Minister had exceeded the power.(ii)holding that the exemption meant that CWSK was not subject to the supervisory role of the committee.(iii)holding that the Minister exercised his power in bad faith.(iv)making contradictory, legally baseless findings and quashing the exemption notice without appreciation of the evidence on record.
23.On the 1st ground, counsel submitted that so long as the minister had the jurisdiction to adjudicate upon the matter of exemption and did so in a regular manner, he was as much entitled to decide wrongly as he was to decide rightly. Reliance was made on the case of Kenya Pipeline Company Limited v HyosungEbara Company Limited & 2 Others [2012] eKLR. In counsel's view, there was no finding that the Minister had exceeded his powers and it was not for the Judge to substitute himself for the Minister after expressing the view that it was for the Minister to determine what amounted to 'impracticable and inexpedient'. In effect, submitted counsel, the Judge converted the JR into an appeal against the decision of the Minister and thus wrongly substituted his opinion for that of the Minister. The cases of Republic v Kenya Revenue Authority[2014] eKLR and Republic v Retirement Benefits Appeals Tribunal ex-parte Augustine Juma & 8 Others [2013] eKLR were relied on in that regard.
24.On the 2nd ground, counsel referred to section 177 and the exemption made under section 198 and submitted that the provisions and exemption related to registration and the consequences of non-registration only. In counsel's view, the provision and exemption did not cover supervision and oversight by the committee which functions are part of the 'monitoring of adoption activities' reflected in section 155 of the Act. Parliament found it prudent to separate the two sections and it was therefore wrong for the Judge not to read the Act as a whole. Parliament also made provisions under Part XII for further controls in adoption matters, for example: section 154 (1) where only the High Court has the authority to make adoption orders; sections 156 to 159 setting up the pre-requisites for adoption which must be complied with; section 163 on the discretion of the court in all matters adoption; section 179 on payments to be made; and section 181 which creates offences with regard to adoption. All these, it was stressed, were not exempted and the Judge was wrong to state that the appellant was exempt from oversight and accountability.
26.Moving to the 3rd ground, counsel submitted that bad faith was a question of fact but there was no pleading or evidence to support it. Relying on the case of Republic v Inspector General (State Corporations) ex-parte Isaiah F. Kiplagat [2012] eKLR counsel submitted that:
26.The 4th ground was adopted as drawn to be evaluated on the basis of the earlier submissions. Neither the minister nor the AG appeared at the oral hearing of the appeal. They did not file any written submissions either.
27.However, Beneah, Jennifer and Anne (7thto 9threspondents) represented byM/s Ojienda & Company Advocates, as well as Baby J & 219 Others (10th respondent) represented by M/s Odiya & Company Advocates filed written submissions in support of CWSK. Both emphasized that exemption from registration did not amount to exemption from supervision and oversight by the committee. They also emphasized the intention of Parliament in giving the powers of exemption to the minister and the need therefore to respect the decision of the minister. According to them, there was no evidence of illegality, irrationality, procedural impropriety or bad faith to warrant interference with the minister's decision. The case of Mumo Matemu v Trusted Society of HumanRights Alliance & 5 Others [2013] eKLR citing with approval the South African case of Democratic Alliance v The President of the Republic of South Africa& 3 Others: CCT 122/11 [2012] ZACC 24, was relied on for the proposition that:
28.In opposition to the appeal, CFFK and LAN, represented before us by M/sMuma & Kanjama Advocates filed written submissions which Mr. Kanjama highlighted orally. Counsel submitted that the duty squarely fell on the High Court to examine, through JR, whether the minister acted in excess of the powers given by statute. The case of Keroche Industries Limited v Kenya RevenueAuthority & 5 Others [2007] 2 KLR 240 was relied on. In their view, the learned judge was examining the decision-making process and not the decision itself. That is because under the Act, the minister would only be involved in the registration/licencing process after the committee had made a decision which then the minister could, if justified, overturn on appeal, but the minister never waited for the committee to make a decision on CWSK's application. Instead the minister short-circuited the procedure, defied the law, and exempted CWSK from the checks and balances which have been put in place by the law. The High Court had the right to examine whether the minister acted ultra vires the law as stated in the cases of Republic v The Minister for Local Government[2002] eKLR and Bukoba Gymkhana Club [1963] EA 478 at pg 479. In counsel's view, the High Court did not hold that the minister had power to exempt CWSK from registration but held that he had power to exempt a certain class from registration and renewal but CWSK did not fall under the group of listed persons.
29.As to what amounts to 'impracticable and inexpedient' counsel construed it to mean 'unachievable or unattainable' and wondered how the minister could set up Regulations which were impracticable and inexpedient. No proof was shown that CWSK was incapable of complying with the requirements sought from it by the committee. On the contrary, observed counsel, CWSK had for many years complied with the law on renewal of its annual licences and nothing had changed. Furthermore, observed counsel, the basis upon which the minister granted the exemption was erroneous since it was grounded on a previous exemption as an approved society but not an adoption society. Everything changed, according to counsel, when the law on adoption was consolidated in the Children Act thus subjecting all adoption societies to one law. CWSK which had become an adoption society in 1969 and transited as such in 2001 was no exception.
30.As regards the effects of exemption, counsel submitted that the committee's mandate was limited to the adoption societies in its register and it was open therefore for CWSK, if it was exempted, to commit some acts which the committee had no mandate to interfere with.
31.Turning to the issue of bad faith, counsel submitted that there was sufficient basis in the facts analysed by the learned Judge to find that the minister was actuated by bad faith. He called for dismissal of the appeal.
32.Next came the LSK represented by M/s Muriungi & Company Advocates. They too filed written submissions and emphasized the primacy of the Constitution and the Act in guiding all affairs relating to children's welfare and best interests. In waiving some provisions of the law that protect and promote children's welfare, they contended, the minister utterly disregarded the spirit and letter of the Constitution and the Act. The actions of the minister also amounted to usurpation of the statutory powers bestowed on the committee, and caused disharmony and discriminative treatment of adoption societies. For those reasons, it was submitted, the Judge was right to question the process of reaching the decision the minister did and was within the law as stated by various courts including the House of Lords case of Anisminic Ltd v The ForeignCompensation Commission & Another [1969] 2 A.C 147; and Republic v The Commissioner of Lands ex-parte Lake Flowers Limited Misc. Application No. 1235 of 1998.
33.On the effect of exemption, counsel submitted that the notion advanced by CWSK that the exemption did not affect the supervision of the committee was fallacious and illogical. That is because the essence of subjecting adoption societies to section 177 was to ensure oversight and supervision of the committee and the purported exemption effectively curtailed that statutory power. Section198 could not be read in isolation.
34.Finally on bad faith, it was submitted that there was a clear intention by the minister to frustrate the purpose of the Act by aiding CWSK to circumvent clear provisions of the law and international conventions. Counsel called on us to follow the principles enunciated in the case of Mbogo & Another v Shah [1968] E A 93 in refusing to interfere with the trial court's discretion.
35.For KKPI, KCHAS represented by M/s M'limbiine and Mungai CompanyAdvocates and Buckner represented by M/s Musyimi & Company Advocates, written submissions were also filed largely supportive of the submissions of CFFK, LAN and LSK. However, M/s Musyimi & Company emphasized that the brazen acts of the minister in accepting without verifying the accusations made by CWSK against the committee, disbanding the committee without a hearing, allowing CSWK's appeal on a non-existent decision of the committee; and publishing the offending gazette notice --- all done within a short span of time --- amounted to a biased abuse of discretionary power and was in bad faith. As to the effects of exemption, counsel submitted that the heart of supervisory functions of the committee, which is the only central authority set up under the Act, is principally expressed through the process of registration and renewal of licences. Furthermore, urged counsel, exemption of one of the adoption societies would be an affront to our national values in Article 10 of the Constitution relating to transparency, integrity and accountability. They supported the dismissal of the appeal.
36.We have given due consideration to the appeal which in our assessment raises only one dispositive issue for determination, that is, whether the trial court judiciously exercised its discretion before coming to the conclusion that in issuing an order of exemption to CWSK, the minister did not exercise his discretionary power lawfully and judiciously. Judging from the numerous authorities cited before us by counsel on all sides, there is no serious divergence on the principles of law applicable in considering a JR application. Only the scope of its application calls for further discussion. The principles we have to apply in considering the appeal before us are also not in dispute. We may briefly restate them.
37.Sir Clement De Lestang V-P in Mbogoh & Anor v Shah[1968] EA 93 stated thus:For his part, the Court President, Sir Charles Newbold in the same case stated:
38.Subsequently, Madan JA (as he then was) in United India Insurance Co Ltd Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] eKLR developed the principle further urging appellate courts to resist the temptation of readily substituting the discretion of their members for that of the trial court. He stated:-
39.For a long time in the history of the common law, JR has been tried and tested as the most efficacious remedy for control of administrative decisions. It was not concerned with private rights or the merits of the decision being challenged but with the decision making process. See Commissioner of Lands v Kunste HotelLimited [1997] eKLR and R v Secretary of State for Education and Science ex-parte Avon County Council [1991] 1 ALL ER. 282. It was also principally concerned with the 3 'Is' --- "Illegality, Irrationality and (procedural)Impropriety" --- and many are the decisions which followed such narrow considerations. For example:- An Application by Bokobu Gymkhana Club [1963] EA 478; Council of Civil Unions v Minister for the Civil Service [1985] AC 2; both cited with approval in the Ugandan case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 which courts in this country have followed, stating:
40.However, the dynamism of society and the events of recent history have decidedly thrust JR into a whole new trajectory. Nyamu, J. as he then was, clearly 'smelt' the impending extension of the scope of JR in 1998 when in the case of Republic v The Commissioner of Lands, ex-parte Lake FlowersLimited Nairobi Misc. Application No. 1235 of 1998 he stated as follows:
41.In the same year, this Court expressed similar views in the case of Bahajj Holdings Ltd. v Abdo Mohammed Bahajj & Company Ltd. & Another Civil Application No. Nai. 97 of 1998 stating that the limits of judicial review continue expanding so as to meet the changing conditions and demands affecting administrative decisions. The trend continued in Kuria & 3 Others v Attorney General [2002] 2 KLR 69 where the Court expressed itself as follows:See also Re Bivac International SA (Bureau Veritas)[2005] 2 EA 43;Re: National Hospital Insurance Fund Act and Central Organisation of Trade Unions (Kenya) Nairobi HCMA No. 1747 of 2004 [2006] 1 EA 47, and Keroche Industries Limited v Kenya Revenue Authority & 5 Others (supra).
42.The bells for expansion of the scope of JR rang even louder after the promulgation of the Constitution 2010. Odunga, J. for example, in Republic v Commissioner of Customs Services ex-parte Imperial Bank Limited [2015] eKLR recognized that “Judicial review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision" and the "need to fully explore and develop the concept of judicial review in Kenya as a constitutional supervision of power and develop the law on this front". Mativo, J. similarly in the case of Ernst & Young LLP v Capital Markets Authority & Another [2017] eKLR (decided on 7th March, 2017), extensively examined comparative jurisprudence before expressing the following view:-
43.One of the sources of that bold view by the High Court is our own Supreme Court which had earlier, in the case of Communication Commission of Kenya v Royal Media Services & 5 Others [2014] eKLR held that "... the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law." and that "... the power of judicial review in Kenya is found in the Constitution, as opposed to the principle of the possibility of judicial review of legislation established in Marbury v Madison 5 U.S. 137 (1803)."
44.Finally, as we settle the principles upon which we shall consider the matter before us, this Court, as recently as 20thJuly, 2017, in the case of Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR was in no doubt about the current place of JR in our system of governance. After extensively reviewing the CCK Supreme Court decision (supra) and other cases, including Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (2016) eKLR 51, and Pharmaceutical Manufacturers Association of South Africa in re ex-parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) at 33, the five-Judge bench held:
45.We must now apply the above learning to the appeal before us. As we do so, we must reflect on another constitutional imperative in our governance system; that of separation of powers, which is not lost to us. The caution was made by a five-Judge bench of this Court in the Mumo Matemucase (supra) stating thus:
46.The Supreme Court also weighed in, in the case of Re The Matter of the InterimIndependent Electoral Commission Advisory Opinion No. 2 of 2011 where it expressed itself as follows:In the case before us, Korir J. cautioned himself on that healthy co-existence between institutions of governance as demonstrated in paragraph 17 above.
47.In view of the principles on JR demonstrated above, the process adopted by the Minister in making his decision to exempt CWSK must be weighed against some relevant constitutional provisions. The most prominent is Article 10 (2) which sets out the national values and principles of governance, including: patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalized, good governance, integrity, transparency and accountability and sustainable development. This Court has already held that "the values espoused in Article10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable." See Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others (supra). They bind all state officers and organs and all persons applying or interpreting the Constitution; enacting, applying or interpreting any law; making or implementing public policy decisions.
48.Article 259 then obliges us to interpret the Constitution in a manner that, interalia, promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights, permits the development of the law and contributes to good governance; while Article 159 (2) (e) commands us to protect and promote the purpose and principles of the Constitution. We must therefore give the Constitution a broad, liberal and purposive interpretation in order to give effect to its fundamental values and principles.
49.It is our considered view that the Minister in this case was oblivious of the Constitutional requirements stated above and was unduly carried away by unsubstantiated pleas by CWSK that they were being "victimised, harassed andinterfered with" by the Committee without giving any opportunity to the committee to explain itself. The power of the minister to exempt, which the lower court correctly upheld, was not unlimited power. It was only exercisable where the Minister considered it "impracticable or inexpedient" to apply such provisions. Such decision, in our view, called for a demonstration by CWSK of the impracticability and inexpediency of the legal provisions in a candid, transparent and accountable manner to avoid the appearance, unavoidably drawn by the other adoption societies, that there was discriminatory treatment. The process of exemption was, to say the least opaque. Furthermore, the quick-fire reaction by the minister in accepting without verifying the accusations made by CWSK against the committee, disbanding the committee without a hearing, allowing CSWK's appeal on a non-existent decision of the committee; and publishing the offending gazette notice, did nothing more than confirm a process tainted with bad faith, even abuse of power.
50.The Constitution and the Children Act are the great equalizers in matters adoption in this country, and the northern star in promoting and protecting the best interests of the child. International Covenants on the rights of the child which Kenya has ratified, form part of that law. It cannot therefore be casually waved or circumvented in the manner the Minister appears to have done in this matter. Such process is impeachable, the trial court was right to impeach it, and we so hold.
51.The trial court appreciated, and we do too, that CWSK is more than simply an adoption society. It provides other services including 'rescue of children inemergencies, paying school fees for children across the country, providing care and protection services, tracing and reuniting children with their families, sensitizing chiefs and their assistants on child adoption, child rights, child abuse, child protection and child welfare.' It has clear pedigree and leadership. However, those services are unaffected by the legal provisions relating to adoption which is ring fenced by the Act. All players in the adoption arena must play the fair game envisaged in the Act.
52.We think we have said enough to satisfy ourselves that there was no error in principle committed by the lower court in the exercise of its discretion. We have no reason therefore to substitute our discretion for that of the lower court. In the result, this appeal is lacking in merit and we order that it be and is hereby dismissed. As the matter raises public interest issues, each party shall bear its own costs of the litigation.
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2017.N. WAKIJUDGE OF APPEAL....................................R. N. NAMBUYEJUDGE OF APPEAL....................................K. M’INOTIJUDGE OF APPEALI certify that this is atrue copy of the original.DEPUTY REGISTRAR