KLR WEEKLY e-NEWSLETTER |
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| Issue 111| Newsletter Archive | Tuesday 22th June 2010 | |
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POST ELECTION VIOLENCE: COURT RULES ON A DELICATE BALANCE BETWEEN INDIVIDUAL AND PUBLIC RIGHTS By Ann Asugah Advocate “This court has the onerous task of maintaining the delicate balance between an individual right and those of the public. Sometimes private rights have to bow to public interest. “ Republic v the Kenya National Commission on Humans Rights ex-parte Hon. Uhuru Muigai Kenyatta [2010] eKLR (www.kenyalaw.org|) The High Court of Kenya sitting in Nairobi has struck out an application by the applicant, Hon Uhuru Kenyatta to expunge his name from a report compiled by the respondent, the Kenya National Commission on Human Rights (Commission) relating to post election chaos and observed that a delicate balance needs to be maintained when enforcing individual rights against public interest and that sometimes private interests have to bow to public interest. The facts of the case involved the Kenya National Human Rights Commission, a creature of statute mandated to investigate human rights violations in Kenya. After the 2007 post election chaos, the Commission launched investigations and compiled a report titled “On the Brink of the Precipice. A Human Rights Account of Kenya’s post – 2007 Election Violence. In that report at paragraph 545, the applicant herein Mr Uhuru Muigai Kenyatta, was adversely mentioned as one of the persons who allegedly financed post election violence. Being aggrieved with the report, Mr. Kenyatta sought judicial review orders to expunge his name from the said report. Mr. Kenyatta filed an exparte application against the Commission and prayed an order of certiorari to forthwith quash and annul the decision of the respondent made in the report “On the brink of the precipice. A human rights account of Kenya’s post – 2007 election violence” that alleged that the applicant participated or was involved in 2007 post election violence. Further, Mr. Kenyatta prayed for an order of certiorari to quash and annul the decision made by the respondent in the said report alleging that he participated in the planning and organized gangs in Central Province. Kenyatta’s case mainly rested on the premise that the basis that he was not accorded a chance to be heard therefore the rules of natural justice were not followed. He argued that his name was put in the report which was circulated to the Attorney general, the police, Head of State, the Prime Minister and other bodies and at paragraph 545 where his name appears as one of the financiers of the post elections chaos, he was not accorded a chance to be heard. He also contended that the Commission had no jurisdiction to make a decision on evidence that had no probative value thus making the report a nullity. It was the applicant’s submission to the court that the Commission admittedly undertook investigations in discharge of its statutory mandate and its objective of the investigations was to simply document what happened in the post election violence. Mr. Kenyatta also took issue with the Commission’s defence that the Court had no jurisdiction to determine the case since section 33 of the Kenya National Human Rights Commission Act shielded the Commission from suits against it when carrying out its mandate in good faith. The Commission, the respondent in this matter refuted the allegations of Mr. Kenyatta but admitted to having undertaken investigations as mandated under the law that establishes the Commission. It contended that its report was compiled to assess if Kenya had complied with its human rights obligations and also to investigate and analyse criminal responsibility on the part of the perpetrators and make recommendations to the authorities. The Commission contended that in its investigations, it did not arrive at any decisions but handed over its findings to the relevant authorities for further investigations. In disputing the allegations that the Commission did not observe the rules of natural justice, the Commission reiterated that it sent out an invite to all members of Parliament on April 15, 2008 to come forward and give information relating to the post election chaos and Mr. Uhuru Kenyatta was also sent an invite which he did not honour. In analysing the evidence before it, the Court first dealt with the issue of jurisdiction and stated that the High Court of Kenya exercises a supervisory jurisdiction over all public bodies which are creatures of statute in situations where they act outside the Act. The Court held that it had jurisdiction to hear the suit. Mr. Kenyatta had invoked the supervisory jurisdiction of the Court which was a sui generis jurisdiction. In dealing with the issue of natural justice, the court observed that section 17 of the Kenya National Commission on Human Rights Act gives out the guidelines to be followed by the Commission when carrying out its mandate. The section provides inter alia, that the Commission shall observe the rules of natural justice and fairness. The Court was of the view that although the Commission sent out an invite to all Members of Parliament to give views on the post election chaos, the general invite could not suffice as sufficient notice on the part Mr. Uhuru Kenyatta or any other person adversely mentioned in the report. The rules of natural justice required more than that. Fundamental principles require that one should be given an opportunity to be heard with no bias. The general invite did not inform Mr. Kenyatta of the allegations against him, neither was he given an opportunity to state his case and therefore, there was no procedural fairness. Contrary to the Commission’s contention that the investigations were not in the form of hearings and therefore not amenable to judicial review, it was the High Court’s view that even where investigations are in the form of a hearing and a party is likely to be mentioned or has been mentioned adversely, he must be given an opportunity to be heard. The Commission therefore failed to act within the provisions of section 17 by failing to give Mr, Kenyatta a chance to be heard. Further since the Commission was a defender and watchdog of human rights, it ought to respect the rules of natural justice and to uphold the same without distinction. Despite this finding by the court, was the applicant likely to get recourse elsewhere where he would be able to give his side of the story? The High court noted that the Commission’s report was based on allegations. Further investigations had to be carried out by any agency that wished to rely on the report. The Commission had made several recommendations in the contested report, among them, that the Attorney General and the police should undertake investigations in terms of Section 26 of the Constitution on the list of alleged perpetrators and to determine their culpability for human rights violations. In addition, the report recommended that the Chief Justice should establish special courts in theatres of violence where many crimes may have been committed to expedite post election violence related cases. The International Criminal Court’s prosecutor was also advised to open investigations on Kenya to determine who bears the greatest responsibility of crimes against humanity detailed in the report. In making its judgment, the High Court noted that an order of certiorari is a discretionary remedy, which a court may refuse to grant even when the requisite grounds exist as stated in the case of Republic v Judicial Service Commission ex parte Pareno (2004) 1KLR 203. In the court’s analysis, even though the grounds to grant certiorari existed in this case, the issues raised in the report were weighty public matters and quashing the report would not be the most efficacious remedy available. Having considered all the facts and circumstances of the case, the court held that public interest far outweighed Mr. Kenyatta’s rights and in exercising its judicial discretion declined to give the orders sought. No order was made in relation to costs.
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Kenya Gazette Vol CXII – No 61. Dated June 18,2010 GAZETTE NOTICE NO. 6806 PROPOSED MERGE BETWEEN EQUITORIAL COMMERCIAL BANK LIMITED AND SOUTHERN CREDIT BANKING CORPORATION LIMITED IN EXERCISE of the powers conferred by section 31 of the Restrictive Trade Practices, Monopolies and Price Control Act, the Deputy Prime Minister and Minister for Finance authorizes the proposed merger between Equatorial Commercial Bank Limited and Southern Credit Banking Corporation Limited. Dated the 4th June, 2010. UHURU KENYATTA, ![]() GAZETTE NOTICE NO. 6808 APPOINTMENT IN EXERCISE of the powers conferred by section 5 (1) (h) of the Agricultural Development Corporation Act, the Minister for Agriculture appoints- WILLIAM .K. KIRWA to be the Managing Director, Agricultural Development Corporation, for a period of three (3) years, with effect from 18th June, 2010. Dated the 4th June, 2010. S.J. KOSGEI, ![]() GAZETTE NOTICE NO. 6809 APPOINTMENT IN EXERCISE of the powers conferred by section 85 of the Criminal Procedure Code, the Attorney -General appoints- Edna Mwalenga, to be public prosecutors for the purposes of cases arising under the Wildlife (Conservation and Management) Act (Cap. 376) Dated the 5th June, 2010. S.A. WAKO, ![]() GAZETTE NOTICE NO. 6810 APPOINTMENT IN EXERCISE of the powers conferred by section 10 (1) of the Community Service Orders Act, 1998, the Chief Justice appoints- LAWRENCE MUGAMBI NTHIGA to be the National Community Service Co-ordinator, for a term of three (3) years, with effect from 1st March, 2010. Dated the 7th June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6811 APPOINTMENT IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints- CHRISPINE OTIENO OWIYE Resident Magistrate, Isiolo, to represent the High Court for the Purposes of that section with effect from 1st July, 2010. Dated the 4th June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6812 APPOINTMENT IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, 2001, the Chief Justice appoints- JOSHUA KIARIE Principal Magistrate at Nyeri, to preside over cases involving children in respect of Central Province, with effect from 1st July, 2010. Dated the 2nd June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6813 APPOINTMENT IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, 2001, the Chief Justice appoints- CHRISPINE OTIENO OWIYE Resident Magistrate at Isiolo, to preside over cases involving Children in respect of the Eastern Province, with effect from 1st July, 2010. Dated the 4th June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6814 INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrate’s Courts Act, the Chief Justice increases the limit of jurisdiction of- SUSAN N. NDEGWA Senior Resident Magistrate to Kenya Shillings eight hundred thousand (Ksh. 800,000), with effect from 1st July, 2010. Dated the 2nd June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6815 INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of – HESTON N. NYAGA Principal Magistrate to Kenya shillings one Million (Ksh. 1,000,000), with effect from 1st July, 2010. Dated the 2nd June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6817 INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- ROSE A. A. OTIENO Principal Magistrate to Kenya shillings one million (KSh. 1,000,000), with effect from 1st July, 2010. Dated the 2nd June, 2010. J.E. GICHERU, INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- BERNARD M. MARARO Senior Resident Magistrate to (Ksh. eight hundred thousand), (Ksh. 800,000) with effect from 1st July, 2010. Dated the 2nd June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6819 INCREASE OF LIMIT OF JURISDICTION IN EXERCISE of the powers conferred by section 5 (1) of the Magistrates’ Courts Act, the Chief Justice increases the limit of jurisdiction of- SAMUEL K. GACHERU Senior Resident Magistrate to Kenya shillings eight hundred thousand (Ksh. 800,000), with effect from 1st July, 2010. Dated the 2nd June, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 6820 APPOINTMENT IN EXERCISE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act, 2005, and second schedule to the public procurement and Disposal Regulations, 2006, the District Commissioner, Marsabit South District, appoints- EDWARD I. LENTOROR to be the Chairman of Marsabit South District Tender Committee. Dated the 4th June, 2010. MUTUKU MWENGA ![]() GAZETTE NOTICE NO. 6821 APPOINTMENT IN EXERCISE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act, 2005, and second schedule to the public procurement and Disposal Regulations, 2006, the District Commissioner, Embu East District, appoints- CHARLES NJARAMBA WANJAU to be the Chairman of Embu East South District Tender Committee. Dated the 29th April, 2010. T.G. MACHENERI ![]() GAZETTE NOTICE NO 6771 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed construction of the Syokimau Housing Scheme. The proposed project intends to establish a residential housing scheme in Syokimau area comprising of a total of 75 units in phase 1 and another 75 units in phase 2 totaling to 150 housing units. The proponent will also sink a borehole and install a jet system for sewer treatment. The proposed project will be located on L.R. Nos. 12715/515 and 516 in Syokimau area, Mlolongo Town/Mavoko The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO 6772 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed reconstruction of Bomet-Litein road (C24) The road cuts across two districts, Bomet and Bureti Districts and branches off from Bomet-Kaplong road B3 at Bomet Town and ends at the junction of Kaplong-Kericho road (C23) near Litein town thus connecting Bomet (district headquarters), Tenwek, Kapkoros, Mogogosiek and Litein (district headquarters) The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI ![]() GAZETTE NOTICE NO. 7040 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed construction of godowns and installation of machinery.
The proposed site is a 14 acre plot located in Kikambala Area 30 Km from Mombasa town centre in Kilifi District. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. WILKISTER MAGANGI ![]() GAZETTE NOTICE NO 7041 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed housing development The proposed project will involve construction of 18 blocks each with 8 three bed roomed residential flats. The project is located on Plot No. Nairobi/Block 153/576, Embakasi/Nairobi South District about 500 m from Kenya National Builders. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI ![]() GAZETTE NOTICE NO 7042 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed premix and concrete works plant. The proposed 0.9776 ha. Piece of land is located within the Dandora Industrial zone, 40 meters off Kangundo road within Embakasi, Nairobi East District. The site is opposite Komarock estate of Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN ![]() GAZETTE NOTICE NO 7043 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed oil and gas exploration. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. WILKISTER MAGANGI, ![]() GAZETTE NOTICE NO7044 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed construction of Asphalt plant. The proposed project will involve establishment of an asphalt plant that will manufacture asphalt, macadam and other forms of coated roads stone. The proposed site is located between the railway line that serves and Mbituru road passes adjacent to the site. The site is about 500m east of Kabati Trading Centre along Thika-Muranga Road on plot ABC, Kabati. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI ![]() SUPPLEMENT No. 38 Legislative Supplement LEGAL NOTICE NO. 92- The Traffic Act – Exemption
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Kenya Law Weekly Issue 111/2010
22 June 2010
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