Kenya Driving Schools Association v National Transport and Safety Authority & 3 others; National Assembly & another (Interested Parties) (Petition E251 of 2020) [2022] KEHC 78 (KLR) (Constitutional and Human Rights) (27 January 2022) (Judgment)
Kenya Driving Schools Association v National Transport And Safetyy Authority & 3 others ;National Assembly & another (Interested Party) [2022] eKLR
Neutral citation:
[2022] KEHC 78 (KLR)
Republic of Kenya
Petition E251 of 2020
AC Mrima, J
January 27, 2022
Between
Kenya Driving Schools Association
Petitioner
and
National Transport and Safety Authority
1st Respondent
Ministry of Transport, Infrastructure, Housing & Urban Development
2nd Respondent
Hon. Attorney General
3rd Respondent
Inspector General of Police
4th Respondent
and
National Assembly
Interested Party
The Senate
Interested Party
Court Suspends the Implementation of the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 pending fresh consideration by Parliament.
Constitutional Law – arms of government - Legislature – role of the Senate and the National Assembly when processing delegated legislations - finding that delegated legislation could only be dealt with by the house of Parliament having mandate to deal with the parent bill or statute – whether delegated legislation relating to transport ought to have been considered by both houses of Parliament - what was the consequences of delegated legislation which was required to be considered by both houses of Parliament but only one house considered it - what was the effect of delegated legislation that was only partly considered by Parliament – Constitution of Kenya, 2010, articles 109(3), 110, 111, 112 and 113 & Fourth Schedule; Statutory Instruments Act No. 23 of 2013.Constitutional Law – national values and principles – public participation – public participation in enactment of delegated legislation – what were the parameters to be considered – whether the relevant stakeholders ought to be involved in the enactment process of delegated legislation – whether there was effective public participation in the enactment of the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 – Constitution of Kenya, 2010, article 10.Legislation - devolved legislation - nature and scope of legislative roles of the different houses of parliament - whether all bills must be passed through both houses of Parliament Statutes – interpretation of statutes – interpretation of section 13 of the Statutory Instruments Act – what was the meaning and effect of the term scrutiny as used in section 13 of the Statutory Instruments Act – Statutory Instruments Act, No. 23 of 2013, sections 13 & 17.Words and Phrases – scrutiny – definition of scrutiny – a searching study, inquiry, or inspection, examination, a searching look – close watch, surveillance – Merriam Webster Dictionary.Words and Phrases – scrutinize – definition of scrutinize, scrutiny and scrutineer - as a verb scrutinize meant to examine or inspect closely and thoroughly-scrutiny as a noun meant critical observation or examination – scrutineer as a noun meant a person who examined something closely and thoroughly- Concise Oxford English Dictionary, 12th Edition, Oxford University Press, page 1295.
Brief facts
The petition challenged the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 (the impugned Rules) for violating articles 109(3) and 118(1)(b) of the Constitution of Kenya 2010 (the Constitution), sections 5(1) and (2), 3,10, 11, 12, 13, 17 and 18 of the Statutory Instruments Act No. 23 of 2013 as well as sections 3(1), (2) and (3), 39 and 73 of the Traffic (Amendment) Act, 2012. The petitioner also sought conservatory orders staying and suspending the implementation of the impugned Rules pending the determination of the petition. The petitioner averred that under the Fourth Schedule to the Constitution, transport was a national government function and as such any legislative agenda on the matter was a preserve of the National Assembly. The petitioner contended that the 1st respondent did not send the impugned Rules to the National Assembly as required under the Constitution, but instead sent them to both the Senate and the National Assembly contrary to the directions given in 2018 by the National Assembly. According to the petitioner, by the provisions of article 109(3) of the Constitution, the Senate had nothing to do with the impugned Rules.
Issues
- Which body between the Senate, the National Assembly or both had the mandate to consider the delegated legislation relating to transport.
- What were the consequences of delegated legislation which was required to be considered by both houses of Parliament but only one house considered it?
- What was the effect of delegated legislation that was only partly considered by Parliament?
- What were the parameters that a court considered when determining whether or not there was adequate public participation prior to enactment of a law or legislation?
- Whether there was effective public participation in the enactment of the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020.
- Whether the relevant stakeholders were involved in the enactment of the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020.
- What was the effect of delegated legislation that had undergone comprehensive and satisfactory public participation but was not properly considered by Parliament?
- What was the meaning and effect of the term scrutiny as used in section 13 of the Statutory Instruments Act, No. 23 of 2013?
- Whether the Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 offended sections 5 and section 13 of the Statutory Instruments Act, No. 23 of 2013 for;
- failure by the National Transport and Safety Authority to make appropriate consultations with the relevant stakeholders;
- failure by either house of Parliament to properly scrutinize it;
- failure by either house of Parliament to consider whether the Rules aligned with the 17 parameters listed under section 13 (a) to (q) of the Statutory Instruments Act.
Held
- Article 109(3) of the Constitution dealt with bills concerning counties and not delegated legislation. The manner in which delegated legislation was to be laid before Parliament was provided for in the Statutory Instruments Act, No. 23 of 2013. However, a consideration of article 109(3) of the Constitution was relevant in the instant matter since, once it was determined, for instance, that the impugned Rules fell under the category of matters not concerning county governments, then the Senate would not have any business considering such delegated legislation. The correct House of Parliament to consider delegated legislation could only be the one having mandate to deal with the parent bill or statute.
- In ascertaining whether a bill concerned the counties, the Fourth Schedule to the Constitution was the first port of call. If the function in question was assigned to the National Government, then the bill should only have been considered by the National Assembly. If the function was a shared one, then the bill could originate from either the National Assembly or the Senate and its passage was required to be in accordance with articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of the Houses.
- The impugned rules were on transport. Under the Fourth Schedule to the Constitution, transport was a shared function by both the national and county governments. From the provisions of paragraph 18 of part 1 and paragraph 5 of part 2 of the Fourth Schedule to the Constitution, if the impugned Rules were a Bill, then both Houses of Parliament had specific roles to play in its passage. In that case, therefore, the impugned Rules, being delegated legislation, would have also required the consideration of both Houses of Parliament.
- The impugned Rules concerned county governments and as such they were to be considered by the two Houses of Parliament. Since there was evidence that indeed the impugned Rules were forwarded to the two Houses of Parliament for consideration, the impugned Rules did not violate article 109(3) of the Constitution.
- Further to the requirement that the impugned Rules were to be subjected to public participation, there was also the aspect of stakeholders’ engagement. Consultation or stakeholders’ engagement tended to give more latitude to key sector stakeholders in a given field to take part in the process towards making laws or formulation of administrative decisions which to a large extent impacted on them. That was because such key stakeholders were mostly affected by the law, policy or decision in a profound way. Therefore, in appropriate instances a government agency or a public officer undertaking public participation could have to consider incorporating the aspect of consultation or stakeholders’ engagement.
- Given the concurrence on the need for public engagement in coming up with the impugned Rules and from the principles discussed in the foregoing considerations and since the impugned Rules were specifically on driving schools, driving instructors and driving licenses and which licenses were only issued once a learner was trained and tested in a driving school, then, in the worst-case scenario, even stakeholders’ engagement would have sufficed in the unique circumstances of the instant matter.
- From previous superior court decisions on the nature and adequacy of public participation and stakeholders’ engagement, the manner in which public participation was carried out depended on the matter at hand. There was no straight-jacket application of the principle of citizen participation. However, any mode of undertaking public participation which could be adopted by a public entity ought to factor, in the minimum, the following basic four parameters:
- the public had to be accorded reasonable access to the information which they were called upon to give their views on the mode of conveying the information to the public reigned;
- the people ought to have been sensitized or be made to understand what they were called upon to consider and give their views on. The language used in conveying the information to the public was of paramount importance;
- once the public was granted reasonable access to the information and was made to understand it, the public ought to have been accorded reasonable time to interrogate the information and to come up with its views; and,
- there had to be a defined manner in which the public or stakeholders would tender their responses on the matter.
- The effect of the foregoing constitutional and statutory parameters was to ensure that public participation was realistic and not illusory. Public participation should not have been a mere formality, but it ought to have accorded reasonable opportunity for people to have their say in what affected them. In that way, the dictates of the Constitution and the law would have been achieved.
- In the instant matter, the respondents demonstrated that they carried out the public engagement. The 1st respondent first carried out a public advertisement in a newspaper on national circulation wherein it stated how and where the engagements were to be conducted. It gave the dates and venues of the meetings and also explained what was to be discussed in the meetings. The 1st respondent, as well, made provision for sign language interpreters in the meetings. The meetings covered all the 47 counties in Kenya. The 1st respondent made a further provision for those who wished to send their written memoranda. It gave an email address to that end.
- From the 1st respondent’s report on the outcome of the public participation exercise upon completion of the exercise, there was detailed information on all the issues of concern which led to the annulment of the 2018 Rules and the actions taken by the 1st respondent before undertaking public participation. It also gave the list of the meetings, dates and venues of meetings held during the exercise. It further gave the names and qualifications of the facilitators of the meetings. There was no doubt that the facilitators were senior officers of the 1st respondent and were possessed of the requisite knowledge and experience to conduct such meetings.
- The 1st respondent, carried out a nation-wide public participation exercise on the impugned Rules. The petitioner, however, alleged that the impugned Rules were not part of the discussions in the meetings and demanded the provision of minutes of the meetings. However, the issues were similar. There was no evidence by those who were in attendance in each of the said meetings to back the petitioner’s position. There was evidence, as well, to confirm that most of the members of the petitioner had complied or were in the process of complying with the impugned Rules.
- The contention by the petitioner that there was no adequate public participation in coming up with the impugned Rules was unsustainable. To the contrary, the 1st respondent satisfactorily demonstrated that it undertook a comprehensive public participation exercise and adduced evidence in proof.
- The petitioner pleaded in an omnibus manner. It neither tendered arguments nor any evidence in support of the contravention of the alleged sections 3, 10, 11, 12, 17 and 18 of the Statutory Instruments Act. In that case, the court could not consider whether the impugned Rules infringed any of those provisions.
- Section 2 of the Statutory Instruments Act defined a regulation-making authority to mean any authority authorized by an Act of Parliament to make statutory instruments. In the instant case, the regulation-making authority was the 1st respondent.
- Section 5 of the Statutory Instruments Act required the regulation-making authority to make appropriate consultations with persons who were likely to be affected by the proposed instrument. The onus of carrying out the consultation was on the regulation-making authority and not on the Houses of Parliament. The role of the Houses of Parliament was captured in section 13 of the Statutory Instruments Act.
- Some of the parameters to be considered by the regulation-making authority included notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, were likely to be affected by the proposed instrument or invitation of submissions to be made by a specified date or could invite participation in public hearings to be held concerning the proposed instrument. The 1st respondent undertook all the requirements. There was evidence that it placed a public advertisement in a local newspaper, it conducted public hearings and invited written memoranda. The 1st respondent, therefore, complied with section 5 of the Statutory Instruments Act.
- With respect to compliance with section 13 of the Statutory Instruments Act, the Committee of the House was required to scrutinize the statutory instrument or published bill and in doing so it had to be guided by the principles of good governance and rule of law. In the course of carrying out the scrutiny, the Committee was required to consider whether the instrument aligned with the 17 parameters listed under section 13 (a) to (q) of the Statutory Instruments Act.
- Scrutiny involved a detailed examination with careful or critical attention. Simply put, it was to examine something with great care. Scrutiny was, hence, more than the ordinary observation of something. It went further to unravel the inner state of affairs of a thing. In scrutinizing the impugned Rules, the Houses of Parliament were, by law, called upon to undertake critical and detailed examination of the same. Such scrutiny was guided by inter alia the parameters set out in section 13 of the Statutory Instruments Act.
- Section 11(1) of the Statutory Instruments Act required every Cabinet Secretary responsible for a regulation-making authority to, within seven (7) sitting days, after the publication of a statutory instrument, ensure that a copy of the statutory instrument was transmitted to the responsible Clerk for tabling before the relevant House of Parliament. In the instant case, there was evidence that the impugned Rules were gazetted on March 20, 2020 vide a special issue of the Kenya Gazette in Legal Notice No. 28. Vol. CXXII- No 50. There was further evidence that the Principal Secretary, State Department of Transport in the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works, transmitted the impugned Rules together with Explanatory Memorandum and Public Participation Report to the Clerk of the Senate and the Clerk of the National Assembly for approval through a letter dated March 27, 2020.
- The Senate appeared in the instant matter upon service. The National Assembly did not. There was no averment to the effect that the National Assembly considered the impugned Rules at all. Accordingly, the impugned Rules were not considered by the National Assembly. The Statutory Instruments Act outlined what would happen if a House of Parliament failed to act on a subsidiary legislation presented to it.
- The Senate Committee, on June 12, 2020 under MIN. NO. SEN/SCDL/092/2020, noted that it had previously considered the draft impugned Rules and proposed a more robust public participation to be undertaken by the 1st respondent. The Committee also reviewed the 2018 Rules alongside the impugned Rules and noted that the impugned Rules had made substantial changes to the 2018 Rules as directed. The Senate Committee then went through the impugned Rules and was satisfied with the new-look Rules. It, however, resolved to be availed with evidence of public participation. On June 15, 2020 the Committee approved the impugned Rules and the 1st respondent was duly informed.
- The 2018 Rules had been annulled by the National Assembly on account of several infringements to the guaranteed rights and freedoms. Such were captured in the National Assembly Hansard of August 14, 2018. The Senate in dealing with the impugned Rules allegedly went through the 2018 Rules and satisfied itself that all the contentious areas raised before were properly and fully addressed. It then approved the impugned Rules as gazetted, without any amendments.
- The Senate Committee in dealing with the issue noted that the 2018 Rules had been amended so as to remove the educational requirement for a driving school manager. However, a cursory look at rule 8 of the Impugned Rules revealed otherwise. The prevailing position was that the educational requirements were not removed as minuted by the Senate. Therefore, the concern raised by the petitioner and the National Assembly, which the Senate allegedly stated that it was resolved in the impugned Rules, was indeed not resolved since the same educational requirements in the 2018 Rules remained intact in the approved impugned Rules.
- The petitioner also raised issue with rule 12(4) and (5) of the impugned Rules. The minutes of the Senate Committee did not capture anything on rule 12 of the impugned Rules. A careful consideration of the minutes of the Senate Committee showed that the Committee only dealt with rules 4, 5, 6, 7, 8, 16, 24, 25, 26 and 27 of the Impugned Rules.
- There was a total of 47 rules in the impugned Rules which were gazetted and forwarded to the two Houses of Parliament for scrutiny and only the Senate dealt with them. However, from the minutes of the Senate Committee, the Senate only dealt with 10 out of the 47 rules. Further, there was no statement in the minutes confirming that the Committee curiously examined all the 47 rules contained in the impugned Rules. Accordingly, in view of the scrutiny role imposed upon the Houses of Parliament, the Senate did not sufficiently scrutinize the impugned Rules. The Senate also failed to satisfy itself that the impugned Rules complied with section 13 of the Statutory Instruments Act
- A crucial step in the making of a subsidiary legislation was not properly undertaken. That put the validity of the impugned Rules to serious constitutional and legality tests. The 1st respondent undertook adequate public participation on the impugned Rules in line with articles 10(2)(a) and 118(1)(b) of the Constitution. However, the Senate did not sufficiently comply with section 13 of the Statutory Instruments Act
- Adequate public engagement on the impugned Rules was undertaken by the 1st respondent. Since it was the Houses of Parliament which failed to carry out their mandates, nullifying the impugned Rules will be a tall order and a serious waste of public resources considering the nature of the nation-wide public participation which was undertaken at the taxpayer’s cost. Further, nullifying the impugned Rules would result to confusion in the sector since the entire process would have to be undertaken afresh.
- Delegated legislation which was concerned with county governments ought to be considered by both Houses of Parliament under the Statutory Instruments Act. As the impugned Rules were on the shared transport function under the Fourth Schedule to the Constitution, the impugned Rules concerned county governments and as such they were to be considered by the two Houses of Parliament under the Statutory Instruments Act. The 1st respondent undertook sufficient public participation on the impugned Rules. Section 13 of the Statutory Instruments Act was not sufficiently complied with by either House of Parliament.
Petition partly allowed.
Orders
- The implementation of The Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 was stayed and suspended pending a reconsideration of The Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 by the two Houses of Parliament.
- The Cabinet Secretary in the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works directed to re-transmit a copy of The Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 and the explanatory memorandum together with a copy of the instant judgment to the Speakers of both Houses of Parliament within 14 days of the instant court’s decision.
- In view of the remainder of the terms of the Houses of Parliament, the respective Speakers of Parliament ordered to take necessary steps to ensure that The Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 were expeditiously dealt with by the respective Houses.
- In the event that any or both of the Houses of Parliament were/was unable to finalize the dealing with The Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 within the remainder of the current terms of the Houses of Parliament, the said Rules should be dealt with in the next term of Parliament.
- Each party ordered to bear own costs.
Citations
CasesEast Africa;
- Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated); [2015] eKLR — (Explained)
- Council of Governors & 3 others v Senate & 53 others Petition 381 & 430 of 2014 (Consolidated); [2015] eKLR — (Followed)
- Council of Governors v Attorney General & 7 others Reference 2 of 2017; [2019] eKLR — (Explained)
- County Government of Nyeri & another v Cecilia Wangechi Ndungu Civil Appeal 2 of 2015; [2015] eKLR — (Followed)
- Munya v Mwenda & 2 others [2014] 1 KLR 58 — Followed
- Institute of Social Accountability & another v National Assembly & 4 others [2015] KLR 483 — (Explained)
- In the Matter of the Kenya National Commission on Human Rights [2014] 2 KLR 356 — (Explained)
- Kaps Parking Limited & another v County Government of Nairobi & another Petition 104 of 2020; [2021] eKLR— (Explained)
- Okoiti, Okiya Omtatah v Communications Authority of Kenya & 8 others Constitutional Petition 53 of 2017; [2018] eKLR — (Explained)
- Okoiti, Okiya Omtatah v National Transport and Safety Authority & another Petition 97 of 2018; [2021] eKLR — (Explained)
- Okoiti, Okiya Omtatah v Commissioner General, Kenya Revenue Authority & 2 others Petition 532 of 2017; [2018] eKLR — (Explained)
- Republic ex parte Chudasama v Chief Magistrate’s Court, Nairobi & another [2008] 2 EA 311 — (Explained)
- Kitheka, Simeon Kioko & 18 others v County Government of Machakos & 2 others Petition 9 of 2018; [2018] eKLR — (Explained)
- Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others Civil Appeal No E084 of 2021; [2021] eKLR — (Followed)
- Total Kenya Limited v Kenya Revenue Authority Civil Application 135 of 2012; [2013] eKLR — Explained
- Ramogi, William Odhiambo & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) Constitutional Petition 159 of 2018 & 201 of 2019 (Consolidated); [2020] eKLR — (Explained)
- Constitution of Kenya, 2010 articles 23, 93, 94(5); 96(1)(2); 109(3); 110-114; 118(1)(b); 122; 165(3); 218; 259; 260 — (Interpreted)
- National Transport and Safety Authority Act, 2012 (Act No 33 of 2012) In general — (Cited)
- Statutory Instruments Act, 2013 (Act No 23 of 2013) sections 2, 3, 5(1)(2); 10; 11; 12; 13; 15(2); 17; 18 — (Interpreted)
- Traffic (Amendment) Act, 2012 (cap 403) sections 3(1)(2)(3), 39, 73 — (Interpreted)
- Traffic (Driving Schools and Instructors) Rules, 2017 (cap 403) In general - (Cited)
Judgment
1.The enactment of the National Transport and Safety Authority Act, No 33 of 2012 (hereinafter referred to as ‘the NTSA Act’) brought several changes within the transport sector in Kenya. One of such changes was in the manner driving schools were to conduct their businesses.
2.On the basis of the NTSA Act, the 1st respondent herein, the National Transport and Safety Authority (hereinafter referred to as ‘the 1st respondent’, ‘the NTSA’ or ‘the Authority’) enacted various Rules. The Rules were successfully challenged both in the High Court and in the National Assembly.
3.The 1st respondent thereafter came up with The Traffic (Driving Schools, Driving Instructors and Driving Licenses) Rules, 2020 (hereinafter referred to as (‘the impugned Rules’). Those are the rules which are currently challenged in this matter.
4.The Petition is opposed by all the respondents and one Interested Party.The Petition:
5.The petition is dated August 18, 2020. It was supported by two affidavits sworn by one Samuel Kamau Kariuki, the Chairperson of the petitioner. They are a supporting affidavit sworn on August 18, 2020 and a supplementary affidavit sworn on January 22, 2021 respectively. The petitioner also filed written submissions dated January 26, 2021 and a List of Authorities.
6.The gist of the petition is that the impugned Rules were enacted in violation of articles 109(3) and 118(1)(b) of the Constitution and are also contrary to sections 5(1) and (2), 3,10, 11, 12, 13, 17 and 18 of the Statutory Instruments Act, 2013 as well as sections 3(1), (2) and (3), 39 and 73 of the Traffic (Amendment) Act, 2012, hence unconstitutional.
7.The petitioner also filed two applications together with the petition. They are an application by way of notice of motion and another application by way of a chamber summons. Both applications are also evenly dated. The notice of motion sought for conservatory orders staying and suspending the implementation of the impugned Rules pending the determination of the Petition whereas the chamber summons sought for leave that the matter be heard during the court’s recess.
8.The matter was certified urgent by the Duty Court and leave granted to be heard during the then court’s recess. The petitioner was directed to effect service of the pleadings and the notice of motion accordingly. The court, however, declined to issue any conservatory orders.
9.In the end, the court directed that both the notice of motion and the Petition on be heard together and by way of reliance on the pleadings, affidavit evidence and written submissions.The Responses:
10.In opposition to the petition and the application, the 1st respondent filed a replying affidavit sworn by one George Njao, the Director–General of the NTSA, on September 7, 2020 as well as written submissions dated 1st February, 2021.
11.The 2nd, 3rd and 4th respondents were represented by the Hon Attorney General. They opposed the petition and the application by filing grounds of opposition dated October 28, 2020 and a replying affidavit sworn by one Solomon Kitungu, the Principal Secretary, State Department for Transport in the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works. The affidavit was also evenly sworn.
12.The Hon Attorney General also filed written submissions dated February 22, 2021.
13.The 1st interested party, The National Assembly, did not participate in this matter despite being enjoined by the court on July 15, 2021 and being accordingly served.
14.The 2nd interested party, The Senate, appeared in the matter. It opposed the Petition and the application by filing a replying affidavit sworn by the Clerk to the Senate one Jeremiah Nyegenye on September 23, 2021 and written submissions dated September 29, 2021.Issues for Determination:
15.From the reading of the documents filed, the parties’ submissions and the decisions referred to, the following two issues arise for determination: -Analysis and Determination:
16.I will deal with each issue separately.(a)Whether the impugned Rules violate articles 109(3) and 118(1)(b) of the Constitution:
17.The petitioner pleaded that under article 109(3) of the Constitution, any legislation, including subsidiary legislation, that is not for County Government must be considered only in the National Assembly.
18.It was further pleaded that under the Fourth Schedule of the Constitution, transport is a national Government function and as such any legislative agenda on the matter is a preserve of the National Assembly.
19.The petitioner deposed that the tussle between itself and the 1st respondent had a history. According to the petitioner, since inception, the 1st respondent has been out to unlawfully control the petitioner members’ businesses by passing illegal rules.
20.It was contended that in 2014 the 1st respondent enacted The Traffic (Driving Schools and Instructors) Rules, 2014 (hereinafter referred to as ‘the 2014 Rules’). The petitioner challenged the said rules through the National Assembly. In August 2018 the National Assembly through the Justice and Legal Affairs Committee wholly rejected the 2014 Rules for various reasons. The petitioner contended that the 1st respondent was directed to relook at the 2014 Rules and revert to the National Assembly after having taken into account the issues raised.
21.According to the petitioner, the 1st respondent instead enacted various policy documents on the basis of the 2014 Rules through The Traffic (Driving Schools and Instructors) Rules, 2014 (2017) (hereinafter referred to as ‘the 2017 Rules’).
22.The 2017 Rules were challenged in Nairobi High Court Constitutional Petition No 97 of 2018 Okiya Omtatah Okoiti v National Transport and Safety Authority & another Judgement was rendered on 19th November, 2018 where the 2017 Rules and all the policy documents made thereunder were quashed.
23.The 1st respondent, still undeterred, enacted the impugned Rules. The petitioner contended that the 1st respondent did not send the impugned Rules to the National Assembly as required under the Constitution, but instead sent them to both the Senate and the National Assembly contrary to the directions given in 2018 by the National Assembly.
24.The petitioner held to the position that the Senate had nothing to do with the impugned Rules courtesy of article 109(3) of the Constitution.
25.As to whether the passage of the impugned Rules complied with the requirements on public participation as required under article 118(1)(b) of the Constitution, the petitioner was categorical that the alleged public participation undertaken fell way below anything which would be described as reasonable.
26.The petitioner contended that publication of notices and collection of signatures were a mere ritual exercise and did not prove that any meaningful engagement took place for want of minutes for such meetings. The petitioner contended further that no meaningful engagement took place in any of the 43 Counties and that the impugned Rules were not even part of the meetings’ agenda.
27.The petitioner cited several decisions on the threshold of public participation in support of its position.
28.The 1st respondent held a contrary position to that of the petitioner.
29.In its replying affidavit, NTSA traced the history of the events leading to the enactment of the impugned Rules. For ease of reference I will reproduce what was deponed: -
30.The 1st respondent expounded on the foregoing disposition in its submissions. It also referred to several decisions in buttressing the arguments.
31.The Hon Attorney General also re-emphasized the position taken by the 1st respondent. Through the replying affidavit sworn by Solomon Kitungu, it reiterated the steps taken by the respondents in ensuring that adequate public participation was undertaken. Several decisions in support of the position that there was reasonable public engagement were referred to in the submissions.
32.The Senate, as well, posited that indeed satisfactory public participation was carried out. The Clerk of the Senate deponed as follows: -
33.In its submissions, the Senate rebutted the petitioner’s argument that the impugned Rules were unconstitutional as the Senate did not carry out public participation contrary to the provisions of article 118(1)(b) of the Constitution and section 5(1)(a) and (b) of the Statutory Instruments Act, 2013. It submitted that contrary to the above allegations, there is no requirement for either House of Parliament to carry out public participation in relation to approval of statutory instruments.
34.The Senate, however, submitted that it asked the 1st respondent to avail evidence of public participation and that NTSA forwarded to the Senate copies of Attendance registers for the public participation for Driving School and Instructor Rules and Highway Code held in various regions. The Senate was satisfied that indeed adequate public consultation had been undertaken.
35.Having captured the parties’ cases and submissions on the issue, I will now deal further. The issue at hand raises two sub-issues. The sub-issues are: -
36.As the issue rests on the manner in which this court ought to interpret the Constitution, I will, in the first instance, look at that aspect.
37.On 19th day of November, 2021, the Court of Appeal at Nairobi delivered a Judgment in Civil Appeal No E084 of 2021 The Speaker of the National Assembly of the Republic of Kenya & another v The Senate of the Republic of Kenya & 12 others (2021) eKLR wherein the court dealt with the manner in which the Constitution ought to be interpreted. The learned judges expressed themselves thus: -
38.It is with these principles in mind that we shall proceed to consider the issues raised in this appeal. The above principles will aid this court in consideration of the two sub-issues.
39.The first sub-issue is whether the impugned Rules contravene article 109(3) of the Constitution. The provision states as follows: -A Bill not concerning county government is considered only in the National Assembly, and passed in accordance with article 122 and the Standing Orders of the Assembly.
40.Article 110 of the Constitution addresses the issue of Bills concerning County Governments. The article is tailored as follows: -
41.In dealing with this sub-issue, this court remains alive to the fact that article 109(3) of the Constitution deals with Bills concerning counties and not delegated legislations. The manner in which delegated legislations are to be laid before Parliament is provided for in the Statutory Instruments Act, No 23 of 2013. However, a consideration of article 109(3) of the Constitution is relevant in this matter since, once it is determined, for instance, that the impugned Rules fall under the category of matters not concerning county governments, then the Senate would not have any business considering such delegated legislation. In other words, the correct House of Parliament to consider a delegated legislation can only be the one having mandate to deal with the parent Bill or statute.
42.The Court of Appeal in The Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others case (supra) comprehensively dealt with the nature of the Bills envisaged by articles 109 to 114 of the Constitution. These provisions deal with the manner in which Bills are to be dealt with by the two Houses of Parliament.
43.In re-emphasizing the position that not all Bills originating from the National Assembly must also be considered by the Senate, the Learned Judges held as follows: -
44.In answering the question as to what bills do not concern counties, the Court of Appeal had the following to say at paragraph 118: -
45.Still on the same question, the court stated as follows in paragraph 132 that: -
46.The position is, therefore, that in ascertaining whether a Bill concerns counties the Fourth Schedule of the Constitution is the first port of call. If the function in question was assigned to the National Government, then the bill should only be considered by the National Assembly. If the function is a shared one, then the bill may originate from either the National Assembly or the Senate and its passage requires to be in accordance with articles 110 to 113, 122 and 123 of the Constitution and the Standing Orders of the Houses.
47.Returning to the case at hand, the impugned Rules are on transport. Under the Fourth Schedule of the Constitution, transport is a shared function by both the National and County Governments.
48.The role of the National Government relating to transport is provided for in section 18 of Part 1 of the Fourth Schedule as follows: -
49.On the other hand, section 5 of Part 2 of the Fourth Schedule provide for the transport role of a County Government as under: -
50.Drawing from the foregoing, if the impugned Rules were a Bill, then both Houses of Parliament would have specific roles to play in its passage. In this case, therefore, the impugned Rules, being delegated legislation, would also require the consideration of both Houses of Parliament.
51.Whereas the aspect of consideration by both Houses of Parliament will be dealt with under the next main issue, this court hereby finds and hold that the impugned Rules concerned County Governments and as such they were to be considered by the two Houses of Parliament. Since there is evidence that indeed the impugned Rules were forwarded to the two Houses of Parliament for consideration, this court further finds and hold that the impugned Rules do not violate article 109(3) of the Constitution. The first sub-issue is, hence, answered in the negative.
52.I will now deal with the second sub-issue on public participation.
53.The parties herein have made dispositions and submissions on this sub-issue in quite some detail. This court has greatly benefitted from such. I will not, therefore, belabor the settled and agreed position that indeed the impugned Rules were to be subject to public participation. I will, however, add that further to the issue of public participation, there is also the aspect of stakeholders’ engagement.
54.In Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 William Odhiambo Ramogi & others v Attorney General & 4 others; Muslims for Human Rights & 2 others (2020) eKLR the 5-Judge Bench dealt with the issue of public participation and stakeholders’ engagement. This is what the court stated about stakeholders’ engagement.
55.Given the concurrence on the need for public engagement in coming up with the impugned Rules and from the principles discussed in the foregoing considerations, this court finds that since the impugned Rules were specifically on Driving Schools, Driving Instructors and Driving Licenses and which licenses are only issued once a learner is trained and tested in a Driving School, then, in the worst case scenario, even stakeholders’ engagement would have sufficed in the unique circumstances of this matter.
56.The petitioner’s main concern is the nature and adequacy of the stakeholders’ engagement. As said, the petitioner contended that no adequate engagement was undertaken.
57.The nature and adequacy of public participation and stakeholders’ engagement was discussed in Petition No 104 of 2020 Kaps Parking Limited & another v County Government of Nairobi & another (2021) eKLR by this court. This is what the court rendered: -
58.In Petition Nos 532 of 2013 & 12, 35, 36, 42 & 72 of 2014 and in Judicial Review Miscellaneous Application 61 of 2014 (Consolidated), the adequacy of public participation was discussed as follows: -…. Whereas the magnitude of the publicity required may depend from one action to another a one-day newspaper advertisement in a country such as ours where a majority of the populace survive on less than a dollar per day and to whom newspapers are a luxury leave alone the level of illiteracy in some parts of this country may not suffice for the purposes of seeking public views and public participation. As was held in Doctors for Life International v Speaker of the National Assembly & others (supra): -Merely to allow public participation in the law-making process is, in the prevailing circumstances, not enough. More is required. Measures need to be taken to facilitate public participation in the law-making process. Thus, Parliament and the provincial legislatures must provide notice of and information about the legislation under consideration and the opportunities for participation that are available. To achieve this, it may be desirable to provide public education that builds capacity for such participation. Public involvement in the legislative process requires access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens….[the Assembly] should create conditions that are conducive to the effective exercise of the right to participate in the law-making process. This can be realised in various ways, including through road shows, regional workshops, radio programs and publications aimed at educating and informing the public about ways to influence Parliament, to mention a few……It is implicit, if not explicit, from the duty to facilitate public participation in the law-making process that the Constitution values public participation in the lawmaking process. The duty to facilitate public participation in the law-making process would be meaningless unless it sought to ensure that the public participates in that process. The very purpose in facilitating public participation in legislative and other processes is to ensure that the public participates in the law-making process consistent with our democracy. Indeed, it is apparent from the powers and duties of the legislative organs of state that the Constitution contemplates that the public will participate in the law-making process………..In determining whether Parliament has complied with its duty to facilitate public participation in any particular case, the court will consider what Parliament has done in that case. The question will be whether what Parliament has done is reasonable in all the circumstances. And factors relevant to determining reasonableness would include rules, if any, adopted by Parliament to facilitate public participation, the nature of the legislation under consideration, and whether the legislation needed to be enacted urgently. Ultimately, what Parliament must determine in each case is what methods of facilitating public participation would be appropriate. In determining whether what Parliament has done is reasonable, this court will pay respect to what Parliament has assessed as being the appropriate method. In determining the appropriate level of scrutiny of Parliament’s duty to facilitate public involvement, the court must balance, on the one hand, the need to respect parliamentary institutional autonomy, and on the other, the right of the public to participate in public affairs. In my view, this balance is best struck by this court considering whether what Parliament does in each case is reasonable.
59.In this case, the respondents have demonstrated how they carried out the public engagement. The 1st respondent first carried out a public advertisement in a newspaper on national circulation wherein it stated how and where the engagements were to be conducted. It gave the dates and venues of the meetings and also explained what was to be discussed in the meetings. The 1st respondent, as well, made provision for sign language interpreters in the meetings.
60.The meetings were to begin from October 29, 2018 to November 30, 2018. The meetings covered all the 43 counties in Kenya.
61.The 1st respondent made a further provision for those who wished to send their written memoranda. It gave an email address to that end.
62.Evidence was tendered to prove that indeed the said meetings were conducted. Copies of Attendance Registers and Sheets for each meeting were annexed. The 1st respondent prepared a Report on the outcome of the public participation exercise upon completion of the exercise. The Report was produced in evidence.
63.The Report was comprehensive. It detailed all the issues of concern which led to the annulment of the 2018 Rules and the actions taken by the 1st respondent before undertaking public participation. It also gave the list of the meetings, dates and venues of meetings held during the exercise. It further gave the names and qualifications of the facilitators of the meetings. There is no doubt that the facilitators were senior officers of the 1st respondent and were possessed of the requisite knowledge and experience to conduct such meetings.
64.The Report also captured all the views raised by the participants in each meeting. Lastly, the Report set out the actions taken by the 1st respondent after conducting the public participation. It confirmed that all the issues raised in the meetings were considered and remedial actions taken prior to the gazettement of the impugned Rules.
65.The 1st respondent, therefore, carried out a nation-wide public participation exercise on the impugned Rules. The petitioner, however, alleged that the impugned Rules were not part of the discussions in the meetings and demanded the provision of minutes of the meetings.
66.The 1st respondent captured the issues raised in each meeting in the report. There is no evidence by those who were in attendance in each of the said meetings to back the petitioner’s position. Further, the hearing of the Petition was by way of reliance on the pleadings and affidavit evidence. The petitioner did not seek to cross-examine any witness on the contents of their dispositions.
67.I have further carefully considered the issues which were recorded as having been raised during the meetings and the petitioner’s averments in this Petition. I find that the issues are similar. There is evidence, as well, to confirm that most of the members of the petitioner have complied or are in the process of complying with the impugned Rules.
68.On evaluation of the evidence at hand, this court finds that the contention by the petitioner that there was no adequate public participation in coming up with the impugned Rules to be unsustainable. To the contrary, the court is satisfied that the 1st respondent undertook a comprehensive public participation exercise and adduced evidence before court in such proof.
69.In the end, the second sub-issue is also answered in the negative.
70.In sum, this court returns a finding that the first main issue is wholly answered in the negative and is for rejection.(b)Whether the impugned Rules are contrary to sections 5(1) and (2), 3, 10, 11, 12, 13, 17 and 18 of the Statutory Instruments Act, 2013 as well as sections 3(1), (2) and (3), 39 and 73 of the Traffic (Amendment) Act, 2012 and if so, unconstitutional:
71.The petitioner pleaded that the Statutory Instruments Act, No 23 of 2013 (hereinafter referred to as ‘the Instruments Act’) gave a clear road map on how any subsidiary legislation must be dealt with. Section 5 calls for consultation with the affected persons or entities.
72.In its submissions, the petitioner contended that the impugned Rules did not also comply with section 13 of the Instruments Act. It further contended the 1st respondent failed to take into account the directives by the National Assembly on how to re-align the impugned Rules with the Constitution and the law.
73.Resulting from the foregoing, the petitioner averred that as a result of the failure on the part of the respondents and the Senate, the impugned Rules variously infringed several articles of the Constitution, hence they are unconstitutional. I will have a detailed look at the articles of the Constitution allegedly contravened in the later part of this issue.
74.The decisions in In Re Okiya Omtatah Okoiti v Commissioner General Kenya Revenue Authority & 2 others (2018) eKLR and Re Okiya Omtatah Okoiti v Communication Authority of Kenya (2018) eKLR were cited in support of the petitioner’s position.
75.The 1st respondent posited that it took into account all what had been raised by the National Assembly in the former Rules and subjected it to public engagement. The result was the impugned Rules. To the 1st respondent, the impugned Rues did not contravene any of the alleged provisions of the law.
76.The Hon Attorney General posited that the 2nd respondent complied with the law and forwarded all the relevant documents to the two Houses of Parliament as so provided under the Instruments Act.
77.The Senate also opposed the petitioner’s contention.
78.It pleaded that in accordance with Part IV of the Instruments Act, the role of Parliament is to scrutinize a statutory instrument to ensure compliance with the delegated authority and the law and to either approve or reject it.
79.It further pleaded that section 13 of the Instruments Act requires the relevant Committee of Parliament, in carrying out its scrutiny of any statutory instrument or published Bill be guided by the principles of good governance, rule of law and shall in particular consider whether the statutory instrument meets the requirements set out in section 13 of the said Act.
80.The Senate argued that the burden of ensuring that public participation had been carried out is placed on a regulation making authority and not on Parliament. On its part, Parliament is to satisfy itself that adequate participation was carried out.
81.It was posited for the Senate that the 1st respondent through the State Department of Transport in the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works forwarded to the Senate’s Committee the attendance registers for the public participation for Driving School and Instructor Rules and Highway Code held in various regions. From the attendance registers, NTSA indicated that it had carried out public participation covering forty-three (43) counties which the Sessional Committee on Delegated Legislation considered as sufficient in accordance with the provisions of section 5 of the Instruments Act.
82.In its submissions, the Senate argued that under articles 1, 94, 95, 96 and 109 of the Constitution, the legislative authority of the Republic of Kenya, is at the national level, vested in and exercised by the Parliament. Further, article 93 of the Constitution establishes Parliament consisting of the National Assembly and the Senate.
83.It further submitted that approval of statutory instruments just like any other legislative function of Parliament, is a shared function between the National Assembly and the Senate. It argued that section 11 of the Statutory Instruments Act require that every Cabinet Secretary responsible for a regulation making authority to ensure that within seven sitting days after publication of a statutory instrument to transmit to the responsible Clerk of Parliament for tabling before the relevant House of Parliament We submit that in accordance to section 11 of the Statutory Instruments Act requires that every Cabinet Secretary responsible for a regulation making authority is to ensure that within seven sitting days after publication of a statutory instrument to transmit to the responsible Clerk of Parliament for tabling before the relevant House of Parliament.
84.The Senate accordingly submitted that being one of the Houses of Parliament it is required to approve any Statutory instrument transmitted to it by the responsible Cabinet Secretary in accordance with section 11 of the Instruments Act. The assertions that the impugned Rules were not supposed to be tabled before the Senate are unfounded
85.The Senate also submitted that section 15(2) of the Instruments Act requires that where the relevant Committee of Parliament where a statutory instrument is referred does not consider the statutory instrument and make the report to Parliament containing its resolution within twenty eight sitting days after the date of referral of the statutory instrument to the Committee or such other period as the House may, by resolution approve, the statutory instrument shall be deemed to have fully met the relevant considerations.
86.It was further submitted that the Senate’s Sessional Committee on Delegated Legislation acted within the law by scrutinizing, considering the approving the impugned Rules.
87.On the import of section 5 of the Instruments Act, it was submitted that contrary to the Petitioner’s position, there is no requirement for either House of Parliament to carry out public participation in relation to approval of statutory instruments. Instead, the role of Parliament is to scrutinize a statutory instrument to ensure compliance with the delegated authority and the law and to either approve or reject it.
88.In particular, section 13 of the Instruments Act requires the relevant Committee of Parliament, in carrying out its scrutiny of any statutory instrument or published Bill be guided by the principles of good governance, rule of law and shall in particular consider whether the statutory instrument meets the requirements set out in section 13 of the Instruments Act.
89.The Senate reiterated that the burden of ensuring public participation has been carried out is placed on a regulation making authority. Indeed, section 5 of the Instruments Act requires that before a regulation making authority makes a statutory instrument that have a direct, or a substantial indirect effect on business or restrict competition, the regulation making authority makes appropriate consultations with persons who are likely to be affected by the proposed instrument.
90.On whether the impugned Rules are unconstitutional, the Senate submitted that it is trite law that every legislation and every decision of Parliament is presumed constitutional and where a person allege that an Act of Parliament or any decision of Parliament is unconstitutional, the burden lies on that person to prove the unconstitutionality of the same.
91.In this case, it was submitted that the petitioner had not discharged the burden of proof by demonstrating to this honorable court the manner in which the impugned Rules were made, gazetted or approved or any of the or any of the provisions therein violate the Constitution.
92.The Senate argued that jurisprudence is replete with cases that every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. A statute or a part thereof will be sustained unless it is plainly, obviously, palpably and manifestly in conflict with some provision(s) of the fundamental law.
93.It was submitted that the test for establishing constitutionality of a statute, was exhaustively set out by the High Court in Institute of Social Accountability & another v National Assembly & 4 others High Court Petition No 71 of 2014 [2015] eKLR, and followed by the same court in Council of Governors & 3 others v Senate & 53 others [2015] eKLR and in Commission for Implementation of the Constitution – Parliament of Kenya & another.
94.The Senate summed up its submissions in that the petitioner had neither demonstrated to this Honorable court nor had it discharged the burden of proof to establish the unconstitutionality of the impugned Rules and as such, there are no grounds presented to this honorable court to enable the court to declare the Rules unconstitutional.
95.As a starting point, the petitioner prayed that this court finds that the impugned Rules contravened sections 5(1) and (2), 3, 10, 11, 12, 13, 17 and 18 of the Instruments Act as well as sections 3(1), (2) and (3), 39 and 73 of the Traffic (Amendment) Act, 2012. However, apart from dealing with Sections 5 and 13 of the Instruments Act and sections 3(1), (2) and (3), 39 and 73 of the Traffic (Amendment) Act, the petitioner did nothing in relation to the rest of the sections it pleaded on.
96.The petitioner, therefore, pleaded in an omnibus manner. It neither tendered arguments nor any evidence in support of the contravention of the alleged sections 3, 10, 11, 12, 17 and 18 of the Instruments Act. In that case, this court will not consider whether the impugned Rules infringe any of those provisions.
97.This court will now consider whether the impugned Rules infringed sections 5 and 13 of the Instruments Act and sections 3(1), (2) and (3), 39 and 73 of the Traffic (Amendment) Act and if so, void, and by extension, whether they are unconstitutional.
98.I will first deal with sections 5 and 13 of the Instruments Act. For ease of reference herein, I will reproduce the said sections. Section 5 of the Instruments Act provide as follows: -
99.Section 13 provides as follows: -The Committee shall, in carrying out its scrutiny of any statutory instrument or published Bill be guided by the principles of good governance, rule of law and shall in particular consider whether the statutory instrument-(a)is in accord with the provisions of the Constitution, the Act pursuant to which it is made or other written law;infringes on fundamental rights and freedoms of the public;(b)contains a matter which in the opinion of the Committee should more properly be dealt with in an Act of Parliament;(c)contains imposition of taxation;(e)directly or indirectly bars the jurisdiction of the Courts;(f)gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power;(g)involves expenditure from the Consolidated Fund or other public revenues;(h)is defective in its drafting or for any reason the form or purport of the statutory instrument calls for any elucidation;(i)appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made;(j)appears to have had unjustifiable delay in its publication or laying before Parliament;(k)makes rights, liberties or obligations unduly dependent upon non-reviewable decisions;(l)makes rights, liberties or obligations unduly dependent insufficiently defined administrative powers;(m)inappropriately delegates legislative powers;(n)imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;(o)appears for any reason to infringe on the rule of law;(p)inadequately subjects the exercise of legislative power to parliamentary scrutiny; and(q)accords to any other reason that the Committee considers fit to examine.
100.Section 2 of the Instruments Act defines a “regulation-making authority” to mean any authority authorized by an Act of Parliament to make statutory instruments. In this case, the “regulation-making authority” is the 1st respondent.
101.Section 5 of the Instruments Act require the regulation-making authority to make appropriate consultations with persons who are likely to be affected by the proposed instrument. On this, I agree with the respondents and the Senate that the onus of carrying out the consultation is on the regulation-making authority and not on the Houses of Parliament. The role of the Houses of Parliament is captured in section 13 of the Instruments Act, which I will shortly revert to.
102.Some of the parameters to be considered by the regulation-making authority include notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument or invitation of submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.
103.The 1st respondent undertook all the requirements. There is evidence that it placed a public advertisement in a local newspaper, it conducted public hearings and invited written memoranda. The 1st respondent, therefore, fully complied with section 5 of the Instruments Act.
104.On whether there was compliance with section 13 of the Instruments Act, the Committee of the House is required to scrutinize the statutory instrument or published Bill and in doing so it be guided by the principles of good governance and rule of law.
105.In the course of carrying out the scrutiny, the Committee is required to consider whether the instrument aligns with the 17 parameters.
106.The said parameters are listed in section 13 of the Instruments Act as (a) to (q).
107.The Merriam Webster Dictionary defines the word ‘scrutiny’ to mean: -
108.The Concise Oxford English Dictionary, 12th Edition, Oxford University Press at page 1295 defines the words ‘scrutinize’, ‘scrutiny’ and ‘scrutineer’ as follows: -
108.It can, therefore, be summed up that scrutiny involves a detailed examination with careful or critical attention. Simply put, it is to examine something with great care. Scrutiny is, hence, more than the ordinary observation of something. It goes further to unravel the inner state of affairs of a thing.
109.In scrutinizing the impugned Rules, the Houses of Parliament were, by law, called upon to undertake critical and detailed examination of the same. Such scrutiny is guided by inter alia the parameters set out in section 13 of the Instruments Act
110.Section 11(1) of the Instruments Act requires every Cabinet Secretary responsible for a regulation-making authority to, within seven (7) sitting days, after the publication of a statutory instrument, ensure that a copy of the statutory instrument is transmitted to the responsible Clerk for tabling before the relevant House of Parliament.
111.In this case, there is evidence that the impugned Rules were gazetted on March 20, 2020 vide a Special Issue of the Kenya Gazette in Legal Notice No 28 Vol CXXII- No 50. There is further evidence that the Principal Secretary, State Department of Transport in the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works, transmitted the impugned Rules together with Explanatory Memorandum and Public Participation Report to the Clerk of the Senate and the Clerk of the National Assembly for approval. That was through a letter dated March 27, 2020.
112.The Senate appeared in this matter upon service. The National Assembly did not. There was no averment to the effect that the National Assembly considered the impugned Rules or at all. This court, therefore, finds that the impugned Rules were not considered by the National Assembly. The Instruments Act provides for what happens if a House of Parliament fails to deal with a subsidiary legislation placed before it.
113.The Senate deposed that the impugned Rules were laid before the Senate on May 19, 2020 and that the Rules were referred to the Sessional Committee on Delegated Legislation for consideration and approval. That, the Senate Sessional Committee on Delegated Legislation considered the impugned Rules and on June 15, 2020 approved them. Minutes of the proceedings before the Sessional Committee on Delegated Legislation dated 12th and 15th June, 2020 respectively were availed in support.
114.I have perused copies of the said minutes. On June 12, 2020 the Senate Committee under Min No SEN/SCDL/092/2020 noted that it had previously considered the draft impugned Rules and proposed a more robust public participation to be undertaken by the 1st respondent. The Committee also reviewed the 2018 Rules alongside the impugned Rules and noted that the impugned Rules had made substantial changes to the 2018 Rules as directed.
115.The Committee then went through the impugned Rules and was satisfied with the new-look impugned Rules. It, however, resolved to be availed with evidence of public participation.
116.On June 15, 2020 the Committee approved the impugned Rules and the 1st respondent was duly informed.
117.The 2018 Rules had been annulled by the National Assembly on account of several infringements to the guaranteed rights and freedoms. Such were captured in the National Assembly Hansard of August 14, 2018 which a copy thereof was availed by the petitioner.
118.The Senate in dealing with the impugned Rules allegedly went through the 2018 Rules and satisfied itself that all the contentious areas raised before were properly and fully addressed. It then approved the impugned Rules as gazetted, that is without any amendments.
119.The petitioner, however, contended that the analysis undertaken by the Senate was not comprehensive enough in that the Senate did not consider some aspects of the impugned Rules which are unconstitutional. I will consider some of those issues.
120.The petitioner contended that rule 8(2)(a) and (c) of the impugned Rules retained the mandatory literacy qualifications for drivers, which issue had been flagged out in the 2018 Rules by the petitioner and the National Assembly.
121.Rule 8(2)(a) and (c) of the impugned Rules states as follows:
122.The Senate Committee in dealing with the issue noted that the 2018 Rules had been amended so as to remove the educational requirement for a driving school manager. It stated as follows under Min No SEN/SCDL/092/2020 part (e) thereof: -
123.A casual look at rule 8 of the impugned Rules, however, reveal otherwise. The prevailing position is that the educational requirements were not removed as minuted by the Senate. Therefore, the concern raised by the petitioner and the National Assembly, which the Senate allegedly stated that it was resolved in the impugned Rules, was indeed not resolved since the same educational requirements in the 2018 Rules remained intact in the approved impugned Rules.
124.The petitioner also raised issue with rule 12(4) and (5) of the impugned Rules. The minutes of the Senate Committee did not capture anything on rule 12 of the impugned Rules.
125.A careful consideration of the minutes of the Senate Committee shows that the Committee only dealt with part of the impugned Rules. From the minutes, the Committee dealt with rules 4, 5, 6, 7, 8, 16, 24, 25, 26 and 27.
126.There were a total of 47 rules in the impugned Rules which were gazetted and forwarded to the two Houses of Parliament for scrutiny. As said, it was only the Senate which dealt with them. The Senate, however, only dealt with 10 out of the 47 rules. I say so because the Committee minutes so indicate and further there is no statement in the minutes confirming that the Committee curiously examined all the 47 rules contained in the impugned Rules.
127.Given the above state of affairs and in view of the scrutiny role imposed upon the Houses of Parliament, this court finds and hold that the Senate did not sufficiently scrutinize the impugned Rules. The Senate also failed to satisfy itself that the impugned Rules were in compliance with section 13 of the Instruments Act.
128.The upshot is, therefore, that a crucial step in the making of a subsidiary legislation was not properly so undertaken. That puts the validity of the impugned Rules to serious constitutional and legality tests.
129.In the end, this court finds and hold that the 1st respondent undertook adequate public participation on the impugned Rules in line with articles 10(2)(a) and 118(1)(b) of the Constitution. The court further finds and hold that the Senate did not sufficiently comply with section 13 of the Instruments Act.(c) Remedies, if any:
130.The petitioner prayed for the declaration of unconstitutionality and invalidity of the impugned Rules in their entirety.
131.This court has been informed by the 1st respondent that the impugned Rules are being implemented and infact most of the petitioner’s members have complied with some of the requirements in the rules. The court was urged not to annul the impugned Rules.
132.In such a scenario, this court ought to take into account the rival positions and submissions. It has to avail what is regarded to as appropriate remedies.
133.The Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority (2013) eKLR held that even in instances where there are express provisions on specific reliefs a court is not precluded from making any other orders under its inherent jurisdiction for ends of justice to be met to the parties. The High Court in Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others (2018) eKLR held that article 23 of the Constitution does not expressly bar the court from granting conservatory orders where a challenge is taken on the constitutionality of legislation.
134.In Republic ex parte Chudasama v Chief Magistrate’s Court, Nairobi & another Nairobi HCCC No 473 of 2006, [2008] 2 EA 311, Rawal, J (as she then was) stated that: -
135.The Constitutional Court of South Africa in Fose v Minister of Safety & Security [1997] ZACC 6 emphasized the foregoing as follows: -
136.In this case, there is no doubt that adequate public engagement on the impugned Rules was undertaken by the 1st respondent. Since it is the Houses of Parliament which failed to carry out their mandates, nullifying the impugned Rules will be a tall order and a serious waste of public resources considering the nature of the nation-wide public participation which was undertaken at the taxpayers cost. Further, nullifying the impugned Rules will result to confusion in the sector since the entire process will have to be undertaken afresh.
137.This court will consider staying the implementation of the impugned Rules as it looks for other suitable remedies.Conclusion:
138.The Petition has partly succeeded. The petitioner has failed to challenge the impugned Rules on the basis of public participation. However, it has succeeded to demonstrate that the impugned Rules did not comply with section 13 of the Instruments Act.
139.Arising therefrom, this court hereby makes the following findings: -Disposition:
140.In the end, the following orders do hereby issue: -Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 27THDAY OF JANUARY, 2022.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Muguku, Learned Counsel for the Petitioner.Miss. Sirai, Learned Counsel for the 1st Respondent.Miss. Chiringa, Learned Counsel for the 2nd and 3rd Respondents.No appearance for the National Assembly.Mr. Waliaula, Learned Counsel for the Senate.Elizabeth Wanjohi – Court Assistant