KLR WEEKLY e-NEWSLETTER |
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| Issue 112| Newsletter Archive | Tuesday 25th June 2010 | |
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WHY COURT ALLOWED PRISONERS TO VOTE AT REFERENDUM By Petronella Mukaindo Priscilla Nyokabi Kanyua v Attorney General & All eligible prisoners in Kenya have a right to participate in the upcoming referendum on the Constitution, thanks to a five bench ruling by the Interim Independent Constitutional Dispute Resolution Court (IICDRC) that the inmates were entitled to participate in the constitutional making process as of right, and further that the Constitution only barred inmates from participating in a general election but not in a referendum. In the petition filed under a certificate of urgency dated May this year, the petitioner argued that the section 43 of the Constitution only excluded prisoners from voting in general elections but not in a referendum and that therefore, the exclusion of prisoners by the Interim Independent Electoral Commission (IIEC) from its voter registration exercise was illegal, given their mandate to undertake fresh registration of voters and create a new voters’ register for the upcoming referendum without expressly prescribing limitation to exclude any category of people. The petitioner, through her counsel Mr. Osoro, asked the court to, among other things make a declaration that prisoners were eligible to be registered to participate in the upcoming referendum and an order that IIEC do extend the period for voter registration for the purposes of including the excluded inmates. The petition asserted that the inmates of Shimo la Tewa prison acting through the Chairman of the Shimo la Tewa Paralegals Association authorized Kituo cha Sheria to petition the relevant authorities tasked with the responsibility of registering voters for upcoming referendum to consider the need for the prisoners to participate in the exercise. In its response, Mr Onyiso, counsel acting for the Attorney General, asked the court to dismiss the petition stating that the court did not have jurisdiction to entertain the petition because the National Assembly and Presidential Elections Act set out the mechanism as to the determination of questions of registration of voters. Mr. Onyiso argued that matters of registration of voters were supposed to be dealt by registration officers as set out in that Act. The IIEC, represented by Mr. Muhoro averred that the petition was time-barred since the Constitution of Kenya Review Act required the IIEC to suspend the registration of voters once it had published the referendum question. Reopening of the voter registration process would scuttle the entire constitutional review course. Further, the IIEC contended that the petition was defective since the petitioner had no locus standi to bring the action as she had not alleged that any individual right guaranteed by the Constitution had been violated with respect to her. It argued that the petitioner's attempt to bring a representative suit fell on its face because she had not shown what individual rights had been infringed.Furthermore the petitioner had not demonstrated that specific persons had applied for registration and that such person were denied registration. Noting that the IICDRC was empowered to rule on its own jurisdiction under the Court’s (Practice and Procedure) Rules of 2010, the court held that it had exclusive original jurisdiction on matters arising out of the constitutional review process and therefore the issue of registration of inmates by the IIEC, in the just concluded registration of voters for the August 4th referendum was a matter of constitutional making process. The court stated that the procedure set out for the determination of questions concerning registration of voters under the National Assembly and Presidential Elections Act did not apply to a referendum as the referendum had its own rules set out. On the question as to whether the petitioner had the legal capacity to file the representative suit on behalf of the prisoners, the court noted that Kituo cha Sheria being a registered Non-Governmental Organization, had capacity to sue and be sued under the Non-Governmental Organization Coordination Act. Accordingly there was no reason why the matter should not have been instituted in the name of Kituo cha Sheria (an organization which champions the interests of the public in matters concerning human rights of the poor and marginalized such as prisoners), and an affidavit sworn by the M/s Kanyua as its Executive Director. The Court made reference to several legal authorities that ruled that a person or an organization had standing to bring a representative suit as long as the person could demonstrate that he had 'sufficient interest'in the matter and not necessarily that he had suffered legal injury as had been the traditional approach. The court further observed that many people whose fundamental rights were violated were in a position to approach the Court for relief because they may be unsophisticated and indigent.Where large numbers of persons were affected in this way, there was merit in one person or an organization approaching the court on behalf of all those persons whose rights were allegedly infringed. In so doing human rights became more accessible to man or woman in the street. In its ruling that prisoners are entitled to take part in a referendum, the court observed that the peoples’ constituent power was above the Constitution itself. This is the power that enabled the people to take part in a referendum. This power could not be legislated upon by Section 43 of the Constitution to disenfranchise the very sovereign people from using their constituent power exercisable only through a referendum. The court referred to the recent constitutional amendment to section 47 through the Constitution of Kenya (Amendment) Act which further recognized this sovereignty as follows: The court further made reference to international conventions that Kenya is a signatory to, such as the International Covenant on Civil and Political Rights (ICCPR) which provides that “Every citizen shall have the right and the opportunity, … without unreasonable restrictions... to take part in the conduct of public affairs, directly or through freely chosen representatives;...” Were inmates in Kenya barred to vote by the Constitution? In answering this question, the court noted that section 43 2(c) expressly excluded people in protective custody from voting. The court however emphasized that the section referred to the National Assembly and Presidential elections and not a referendum. In allowing the petition, the court further found that the constituent rights to vote in a referendum was a basic human right and that on the balance of proportionality there was no legitimate governmental objective or purpose that would be served by denying the inmates the right to vote in a referendum. This right would however only be exercised by inmates of sound mind, who are over 18 years of age and who had not committed an electoral offence. |
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Vol. CXII-NO. 62 Nairobi 25th June 2010 Gazette Notice No. 7070 APPOINTMENT IN EXERCISE of the powers conferred by section 3 (1) of the State Corporations Act, the Minister of State for National Heritage and Culture appoints- AGHAN ODERO AGAN to be Director of the Kenya Cultural Centre, for a period of three (3) years, with effect from 2nd June, 2010. Dated the 14th June, 2010. ![]() GAZETTE NOTICE NO. 7071 APPOINTMENT IN EXERCISE of the powers conferred by section 7 (1) (a) of the Survey Act, the Minister for Lands appoints- EPHANTUS MURAGE MUNDIA to be the Chairman of the Land Surveyor’s Board, for a period of three (3) years, with effect from 28th July, 2010. Dated the 21st June, 2010. ![]() GAZETTE NOTICE NO. 7072 APPOINTMENT IN EXERCISE of the powers conferred by section 7 (1) (c) of the Survey Act, the Minister for Lands appoints- Bowers Nderma Owino, to be members of the Land Surveyors’ Board, for a period of two (2) years, with effect from 15th June, 2010. Dated the 15th June, 2010. ![]() GAZETTE NOTICE NO. 7073 APPOINTMENT IN EXERCISE of the powers conferred by section 7 (1) (c) of the Survey Act, the Minister for Lands appoints- PAUL KARANJA THAGISHU to be a member of the Land Surveyor’s Board, for a period of one (1) year, with effect from 15th June, 2010. Dated the 15th June, 2010. JAMES ORENGO, ![]() GAZETTE NOTICE NO. 7080 APPOINTMENT OF ELECTION COURT IN EXERCISE of the powers conferred by section 60 (5) of the Constitution of Kenya and section 19 of the National Assembly and Presidential Elections Act, the Chief Justice of the Republic of Kenya appoints an Election Court comprising of Justice Daniel K. Musinga, in place of Justice M. Ibrahim, whose appointment is revoked, to hear the election petition whose details are given hereunder in the High Court of Kenya at Nairobi. The election Court will give directions as to the hearing of the petition during mention thereof on Monday , 12th July, 2010. SCHEDULE
Dated the 18th June, 2010. J. E. GICHERU ![]() GAZETTE NOTICE NO. 7336 INTENDED DESTRUCTION OF COURT RECORDS IN ACCORDANCE with the Records Disposal (Courts) Rules, notice is given that three (3) months after the date of publication of this notice, the Resident Magistrate’s Court at Wundanyi, intends to apply to the Chief Justice, for leave to destroy the records, books and papers of the Resident Magistrate’s at Wundanyi as set out below: Criminal cases 1947-1985 A comprehensive list of all condemned records that qualify to be disposed under the Act can be obtained and perused at the Resident Magistrate’s Court Registry, Wundanyi. Any person desiring the return of any exhibit in any of the above cases must make his/her claim within the time stipulated in this publication should do so before the expiry of the notice. All exhibits to which no claim is substantiated before the destruction of the records shall under section 4 be deemed to be part of the records for the purposes of destruction. Dated the 14th May, 2010. F. K. MUNYI, ![]() GAZETTE NOTICE NO. 7040 REPORT FOR THE PROPOSED CONSTRUCTION AND 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 project will consist of:
The proposed site is a 14 acre plot located in Kikambala Area 30 Km from Mombasa town center 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. WILKISTSER MAGANGI, ![]() GAZETTE NOTICE NO. 7041 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED HOUSING DEVELOPMENT ON PLOT NO. NAIROBI/BLOCK 153/576 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 500m 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7042 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED PREMIX AND CONCRETE WORKS PLANT ON L.R. NO. 209/9609 ALONG KANGUNDO ROAD, EMBAKASI, NAIROBI 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 development will consist of administration buildings, visitors and staff parking, underground water tanks, two warehouses, watch tower, gate house, control room and toilets. 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. B.M. LANGWEN, ![]() GAZETTE NOTICE NO. 7043 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED OIL AND GAS EXPLORATION IN BLOCK L6, LAMU AND TANA DELTA DISTRICTS 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. Flow Energy (formerly Gippsland Offshore Petroleum Limited) in partnership with the Ministry of Energy intends to explore for hydrocarbon resources, and where successful, commercially produce those resources for local consumption and power generation and to export the excess. 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. WILKISTSER MAGANGI, GAZETTE NOTICE NO. 7044 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED ASPHALT PLANT ON PLOT NO. 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7341 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED CONSTRUCTION OF A TEA FACTORY ON L.R. NO. 18539 IN NANDI HILLS 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 a tea factory. The proposed project will include: A factory building; Stores; Boiler room; Wood shed; Parking; and waste water treatment dam. The project is located on L.R. No. 18539 in Nandi Hills, Rift Valley Province. 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. B.M. LANGWEN, ![]() GAZETTE NOTICE NO. 7342 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED RESIDENTIAL ESTATE DEVELOPMENT ON PLOT L.R. NO. 12422/21 LOCATED IN MUTHAIGA NORTH, NAIROBI 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 residential estate development. The proposed development will comprise construction of 183 residential units each with a ground floor containing Guest bedrooms, Lounge, Kitchen, Dining, Servants Quarter, vehicle parking, Bathrooms, cloaks and cooking space and the first floor containing 1 master bedroom, 2 other bedrooms, lobby, balcony, bathrooms and other partitions. The plot to be developed which is approximately 7.953 hectares is located in Muthaiga North, Nairobi Province. 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7343 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED CONSTRUCTION OF A GATED COMMUNITY OF LOW COST HOUSING PROJECT COMPRISING 20 BLOCKS OF 10 FLOOR EACH, CONTAINING A TOTAL 800, TWO-BEDROOMED LOW COST APARTMENTS WITH ASSOCIATED PARKING SPACES, COMMUNITY/RECREATION AREA AND BOREHOLE, ON PLOT L.R. NO. 209/5533/1, AT THE JUNCTION OF BONDO STREET AND NGIYA ROAD, OFF JOGOO ROAD, SHAURIMOYO ESTATE, NAIROBI 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 low cost housing project. The proposed project activities will include construction of a gated community of low cost housing project comprising 20 blocks of 10 floors each, containing a total 800, two-bedroomed Low cost apartments with associated parking spaces, recreation area and borehole. The plot size is 7.56 acres. The proposed project will be located on plot L.R. No. 209/5533/1 (currently bat village) at the junction of Bondo Street and Ngiya road off Jogoo road, Shaurimoyo Estate, 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 7344 ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED NANYUKI-MERU, ISHIARA-KIENI, MWINGI-KITUI-WOTE-SULTAN HAMUD 132 KV TRANSMISSION LINE 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 Nanyuki-Meru, Ishiara-Kieni, Mwingi-Kitui-Wote-Sultan Hamud 132 KV Transmission Line. The project will entail construction of power lines comprised of electrical conductors supported on 27 metre high pylons constructed of stainless steel metal. Close to 1000 steel towers (pylons) comprising both angle towers and line towers will be constructed for purposes of mounting the conductors on which the 132 kV power supply will be transmitted. The project will require a 30-metre wide Right of Way (ROW) corridor along the entire routes of traverse implying that about 792 ha of land will be acquired for the project. Further, all physical structures and trees growing above 7m height will be cleared in line with requirements of the KPLC. The proposed site starts at the boundary of the Rift Valley Province at Nanyuki in Laikipia East District and traverses a total of 14 Eastern Province Districts to end at Sultan Hamud Town on the boundary of Rift Valley Province. 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: (a) Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O.Box 67839-00200, Nairobi (b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi. 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. 39 LEGAL NOTICE NO. 95 - The Sacco Societies (Deposit-Taking Sacco Business) Regulations, 2010. SUPPLEMENT No. 40 LEGAL NOTICE NO. 96- The Energy (Importation of Petroleum Products) (Quota Allocation) Regulations. 2010. 98- The Regulation of Wages (General (Amendment) Order, 2010.
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Kenya Law Weekly Issue 112/2010
25 June 2010
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