Kenya Law Weekly Issue 40/2011

KLR WEEKLY e-NEWSLETTER

| Issue 40/2011 Newsletter Archive | Friday 7th October 2011 |

Case of the Week | Kenya Gazette Notices | Forward this newletter

CASE OF THE WEEK

FORM ONE QUOTA SYSTEM NOT DISCRIMINATORY
By Njeri Githang’a Kamau

“…the adoption of temporary special measures intended to bring about a de facto equality for disadvantaged groups is not a violation of the right to non-discrimination with regard to education, so long as the measures do not lead to the maintenance of unequal or separate standards for different groups and provided they are not continued after the objectives for which they were taken have been achieved”

John Kabui Mwai and 3 Others V Kenya National Examination Council and 2 others (2011) eKLR www.kenyalaw.org
Petition No. 15 of 2011
High Court of Kenya at Nairobi
J.Gacheche, G. M. Dulu, A. O. Muchelule
September, 2011

The Court has ruled that the policy introduced by the Ministry of Education to curb the private schools' dominance in National secondary schools in the country is not discriminative.

On January 6, 2011 the Permanent Secretary in the Ministry of Education issued guidelines for form one selection for the year 2011 which indicated that to determine the number of candidates to be placed in national schools from public or private institutions of a particular district a certain formula would be used. The same formula was reiterated by the Minister for Education Prof. Sam K. Ongeri (2nd Respondent). He noted that in 2010, private schools had registered 107,514 (or 14.41%) candidates as compared to 638,593 (or 85.59%) in public schools. Using the formula, he announced that out of the 4,517 available spaces in national schools, 1,224 would be availed to private schools. He explained that Free Primary Education Policy had increased the number of candidates in public schools to 746,107. According to the Minister, the Policy was in line with the Government’s commitment to Millennium Development Goals, Education to All, Vision 2030 and the Constitution of Kenya, 2010.

The applicants were aggrieved by the directive and consequently filed a Petition on behalf of the Kenya Private Schools Association to challenge the 2nd respondent’s policy guidelines regarding the selection of candidates to national schools. The petition, brought under Articles 3, 19, 20, 21, 22, 23, 27 and 43 (f) of the Constitution, sought to have the policy found to be discriminatory against candidates from private schools and therefore unconstitutional. The applicants were represented by Mr. Gachuhi, the 1st respondent by Mrs Kiarie and the 2nd and 3rd respondents by Mr. Onyiso.

The basic contention by the applicants was that under Article 53 of the Constitution, a child’s best interests was of paramount importance in every matter concerning the child and hence the policy violated the rights of their candidates. It was submitted for the applicants that under Article 27 (1) every person had the right to equal protection and equal benefit of the law and under Article 27(4) the state should not directly or indirectly discriminate against any person on any ground. It was hence contended that the policy was discriminatory to the candidates from private schools who sought places in national schools when it put quotas. The applicants argued that the policy did not afford candidates from private schools the opportunity for them to realize their full potential as provided for under Article 19 (2) of the Constitution.

Counsel for the applicants submitted that his clients were supplementing the Government’s effort in the provision of basic education and that previous to the policy in question the candidates of both public and private schools were being treated equally in accessing form one places in national schools and the only criteria was merit. According to the applicants, the effect of the policy was that a candidate from a private school wishing to join a national school had to score a higher mark than the one from a public school. It was shown by the applicants that to join Alliance High School for example, a candidate from a private school had to score at least 403 marks whereas his counterpart from a public school could join the same national school with as low as 360 marks. This, it was submitted, was unequal treatment of the candidates and therefore discriminatory.
Counsel pointed out that there was an erroneous perception that children from private schools have parents/guardians who are more financially endowed than those in public school. Even if that were true, it was argued, the children in private schools could not be discriminated against on basis of their social origin, place of birth and or perceived economic status of their parents and or guardian.

In response, it was Mrs. Kiarie’s submission that the applicants had not demonstrated that the children in private schools were a group capable of being discriminated against under the provisions of article 27 (4), and that their attempt to place the children under “social origin” could not be legally tenable.

While arriving at it’s decision, the court recognized that under Article 10 (2) (b) of the Constitution there were national values and principles of governance that had to be borne in mind which included equality, human rights, non-discrimination and protection of the marginalized. Under Article 20(4) (a), the court was obligated, in interpreting the Bill of Rights, to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom. Article 21 (3) enjoined the court to address the needs of the vulnerable groups within the society, including children.

In the courts view, the inclusion of economic, social and cultural rights in the Constitution aimed at advancing the socio-economic needs of the people of Kenya, including those who were poor, in order to uplift their human dignity. The protection of these rights was an indication of the fact that the Constitution’s transformative agenda looked beyond merely guaranteeing abstract equality.

According to the court, Article 27 (4) had to be read together with Article 259 (4) (b) as the framers of the Constitution did not intend to declare the categories mentioned in Article 27(4) to be closed. The categories mentioned were by way of example only. The children in private schools could not therefore be said to be a group not capable of being discriminated against.

But, had the Policy by the 2nd Respondent discriminated against these children? The court in response observed that discrimination which was forbidden by the Constitution was unfair or prejudicial treatment of a person or group of persons based on certain characteristics. The element of what was unfair or prejudicial treatment had to be determined objectively in the light of the facts of each case. It was affirmed that not all distinctions resulting in differential treatment could properly be said to violate equality rights as envisaged under the Constitution. The appropriate perspective from which to analyze a claim of discrimination had both a subjective and an objective component.

A comparison between different groups was necessary to discern the differential effect of policy and to assist the court in properly characterizing and identifying the groups that were relevant to Article 27. Accordingly, it was only by examining the larger context that a court could determine whether differential treatment resulted in equality or whether, on the other hand, it would be identical treatment which would in the particular context result in inequality or foster disadvantage.

The policy by the 2nd Respondent sought to remove merit on the part of the candidates from private schools as the only criteria for accessing secondary school places in national schools. It stated that their access would be further limited by a set quota calculated as a percentage of the total number of candidates who sit for the Kenya Certificate of Primary Education examination each year. The policy was certainly discriminatory when it sought to treat the candidates differently. But was that unfair discrimination? The court referred to Willis –Vs- The United Kingdom, No. 36042/97, ECHR 2002 – IV and Okpisz –Vs- Germany, No. 59140/00, where the European Court of Human Rights observed that in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14 (non-discrimination) of the European Convention on Human Rights.

The Court in conclusion found the policy directive not discriminatory to the Applicants, their schools or the children in those schools in relation to accessing form one places in national schools. The Petition was consequently dismissed with costs.

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SELECTED NOTICES FROM THE KENYA GAZETTE

Kenya Gazette Vol. CXIII – No. 99 Dated October 7, 2011.

GAZETTE NOTICE NO. 12303
THE STATE CORPORATIONS ACT
(Cap. 446)
KENYA TOURIST BOARD
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (a) of the State Corporations Act, I, Mwai Kibaki, President and Commander-in- Chief of the Armed Forces of the Republic of Kenya, appoint —

KITILI MBATHI

to be Chairman of Kenya Tourist Board for a period of three (3) years.

Dated the 28th September, 2011.

MWAI KIBAKI,
President.

GAZETTE NOTICE NO. 12304
THE NATIONAL MUSEUMS AND HERITAGE ACT
(No. 6 of 2006)
DECLARATION OF MONUMENT

IN EXERCISE of the powers conferred by section 25 (1) (b) of the National Museums and Heritage Act, the Minister of State for National Heritage and Culture declares the statue and area specified in the schedule, which he considers to be of historical interest, to be a national monument within the meaning of the Act.

Any objection to the declaration may be lodged with the Minister within two months from the date of publication of this Gazette notice.

SCHEDULE
TOM MBOYA STATUE

All that structure within the area of land measuring approximately 0.015 hectares, also known as the Tom Mboya Statue, situated at the junction of Moi Avenue and Bank Street in Nairobi, within the Central Business District, in Nairobi County.

Dated the 8th September, 2011.

WILLIAM OLE NTIMAMA,
Minister of State for National Heritage and Culture.

GAZETTE NOTICE NO. 12280
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED LOWER KUJA IRRIGATION
DEVELOPMENT PROJECT, NYATIKE DISTRICT, NYANZA
PROVINCE
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 Lower Kuja irrigation development project.

The proposed project involves delineation of suitable areas for surface irrigation with the adopted option 2 of having a net irrigation area of 7,717ha. The main project components include:

Intake at God Orango;
Head works (weir, retaining walls, intake, protection works);
Canals (Mains and tertiary)/ structures;
Drains (mains and tertiary)/ structures;
Canal and drain structures (drops, culverts, turnouts, division boxes, cross drainage structures, flumes, etc.)
Access and farm roads; and
Flood protection dykes.

The proposed project is located in Nyatike district, Nyanza province close to the shores of Lake Victoria within the Lower Kuja River Basin. The project area covers seven (7) locations and twelve (12) sub-locations in Nyatike and Karungu divisions.

The anticipated impacts and proposed mitigation measures are 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.

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR8054730

GAZETTE NOTICE NO. 12281
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED CLINKER MANUFACTURING PLANT
AND THE RELATED LIMESTONE QUARRIES IN MERRUESHI
LOCATION, KAJIADO CENTRAL DISTRICT, KAJIADO
COUNTY ON L.R. NOs: KAJIADO/KAPUTEI SOUTH/2637, 2639,
2641 AND 2647 AND L.R. NO. LTK/MBIRIKANI/325
INVITATION OF PUBLIC COMMENTS

The project proposes to construct a clinker manufacturing plant and related quarries in Merrueshi area of Kajiado County. The project will cover any area of about 2,000 acres.

The project falls within Merrueshi Location; Kajiado Central District in what is now Kajiado County. The proposed project will be located on L.R. No: Kajiado/Kaputei South/2637, 2639, 2641 and 2647 and L.R. No. Ltk/Mbirikani/325.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR8256033

GAZETTE NOTICE NO. 12282
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED DEVELOPMENT ON LR NO.12064 IN
MWIKI, NAIROBI COUNTY
INVITATION OF PUBLIC COMMENTS

The proponent proposes to develop modern town houses, a kindergarten, a school, shops and communal facilities. The proposed development will be implemented in four phases. Phase I will be residential cum communal facilities and will include Bungalows and masionettes totaling 400 units, 1 No primary school, 1 No secondary school, 1 No kindergarten and a worship centre. Phase II and III are purely residential (controlled developments) to be implemented by individual members on a controlled plan development and Phase IV will involve construction of 54 blocks two and 23 No blocks three bedroom 4 storey blocks (1824 apartments).

The proposed project is at Mwiki off the Thika Super Highway approximately 20 Kilometres from Nairobi City on LR No.12064 in Mwiki, Nairobi county

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR8054721

GAZETTE NOTICE NO. 12283
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED PETROLEUM DEPOT AND STRATEGIC
PETROLEUM RESERVE IN MALILI DIVISION,MUKAA
DISTRICT
INVITATION OF PUBLIC COMMENTS

The proponent proposes to develop a bulk petroleum receipt,storage, handling and distribution depot and a truck parking facility to accommodate up to one hundred petroleum tank trucks. The
proponent also wishes to develop petroleum strategic storage reserves for the country to cushion Kenyans from erratic pump prices resulting from international crude oil prices.

The proposed development is located in Malili division of Mukaa district in Makueni constituency.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR8256153

GAZETTE NOTICE NO. 12284
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED SHANCLIFF APARTMENTS ON L.R.
NUMBERS MN/1/4875 AND MN/1/4876, KISAUNI DISTRICT
INVITATION OF PUBLIC COMMENTS

The proposed project entails construction of eight (8) identical blocks of apartments each with thirteen (13) floors, totaling to 624 apartments.

The proposed project site is on land registered as MN/1/4875 and MN/1/4876 precisely located in Shanzu area near the Wildlife Clubs of Kenya Offices and YAMAS club. This site is within Shanzu location which is administratively located in Bamburi division of Kisauni District, Mombasa County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

WILKISTER MAGANGI,
for Director-General,
National Environment Management Authority.
MR8246527

GAZETTE NOTICE NO. 12285
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED PVC PIPES AND ELECTRICAL CABLES
MANUFACTURING (LIGHT) INDUSTRY ON L.R. NO.
NAIVASHA/MWICHIRINGIRI BLOCK 2/189 (NYAMATHI) –
NAIVASHA MUNICIPALITY
INVITATION OF PUBLIC COMMENTS

The proposed project involves construction of new Godowns (factory premises) within which to establish a PVC pipes manufacturing & electrical cables insulation light industry.

The proposed industry shall be located on L.R. No. Naivasha/Mwichiringiri Block2/189 in Kinungi area, on Naivasha – Nairobi Highway, in Naivasha municipality. The proposed project site is on a portion of the land measuring approximately 6.624 hectares (16.3679 acres).

The following are the anticipated impacts and proposed mitigation measures:

The full report of the proposed project is available for inspection during working hours at:

Z. O. OUMA,
for Director-General,
National Environment Management Authority.
MR8246527

GAZETTE NOTICE NO. 12658
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED APARTMENTS ON PLOT LR. NO. 9042/24
AT EMBAKASI VILLAGE, NAIROBI
INVITATION OF PUBLIC COMMENTS

The proposed project will entail construction of one hundred and fifty-two (152) apartments. The apartments will be of two-bedroomed units only in eight blocks spread across the proposed site all with a ground floor and four floors upstairs.

The proposed project site lies within Embakasi Village of Nairobi next to Kenya Airways Staff Housing project that is undergoing construction. The project will be located on LR No. 9042/24. The proposed site is approximately 0.8 hectares.

The major anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

SALOME MACHUA,
for Director-General,
National Environment Management Authority.
MR8245826

GAZETTE NOTICE NO. 12659
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED ACACIA JUNCTION SERVICE STATION
ON L.R. NO. KABETE /LOWER KABETE/T.342 ‘B’ IN KIAMBU
DISTRICT
INVITATION OF PUBLIC COMMENTS

The proposed project involves development of a petrol station with a basement floor, ground floor and first floor. The basement floor shall accommodate parking, a store, generator/compressor room and control room while the ground floor shall accommodate the canopy over pump (s), service bay; lubricants shop, manager’s office, reception and the cashier’s office, cloak rooms.

The project site will be on L.R. No. Kabete /Lower Kabete/T.342 ‘b’ at the junction of Lower Kabete road and Gachie-Kikuyu road in Kiambu district.

The anticipated impacts and proposed mitigation measures are 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), Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Building, Community, P.O. Box 30521, Nairobi.
(c) Provincial Director of Environment, Central Province.
(d) District Environment Officer, Kiambu District.
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,
for Director-General,
National Environment Management Authority.
MR8256153

GAZETTE NOTICE NO. 12660
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
APPLICATION FOR ACCESS PERMIT
INVITATION OF PUBLIC COMMENTS

PURSUANT to Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetice Resources and Benefit Sharing) Regulations (L.N. 160 of 2006), the National Environment Management Authority, (NEMA) has received applications for access permit for the following:

(a) Hamadi Boga (Prof.), of P.O. Box 62000–00200, Nairobi. Activities: Collection of sediment and water samples from Lake Magadi. Culture enrichment, DNA extraction and analysis will
be done in JKUAT (Kenya) and University of Western Cape (South Africa).
(b) Tabitha M. Finch University of Missouri, 226 Tucker Hall, Columbia, Mo.65211, U.S.A.

Activity: Collection of dung from African elephant (loxodonta Africana) in Maasai Mara National Researve and regions in Transmara. Genetic analysis will be done in University of Missouri, Columbia, U.S.A.

(c) Luca Pozzi, Department of Anthropology, New York University 25 Waverly Place, New York, NY 10003, U.S.A.

Activity: Collection of skin biopsies (ear clips) from dwart galago in Lamu, Tana River, Kwale and Kilifi District. Analysis will be done in New York University, U.S.A.

Note.— The full documentation of the proposed activities are available for inspection during working hours at National Environment Management Authority (NEMA) headquarters.

The Authority is therefore inviting members of the public to submit oral or written comments within twenty-one (21) days from the date of publication of this notice to the Director-General to assist the Authority in the approval of the application.

AYUB MACHARIA,
Ag. Director-General,
National Environment Management Authority.
MR8245619

GAZETTE NOTICE NO. 12661
THE LOCAL GOVERNMENT ACT
(Cap. 265)
THE COUNTY COUNCIL OF ISIOLO
THE ISIOLO TRADE DEVELOPMENT JOINT LOAN BOARD
APPOINTMENT

IN EXERCISE of the powers conferred by paragraph 3 of the Local Government (Isiolo Trade Development Joint Board) Order, 1966, upon the Minister for Local Government and in pursuance of a directive given under section 38 (1) of the Interpretation and General Provisions Act (Cap. 2), the County Council of Isiolo appoints —

Cllr. Salesio Kiambi,
Cllr. Jarso Chucha,
Cllr. Hadija Abduba,

to be members of Isiolo Trade Development Joint Board, for a period of three (3) years.

Dated the 1st April, 2011.

MAURICE OGOLLA,
County Clerk.
MR8245589

SUPPLEMENT Nos. 127–129
Acts, 2011

The National Police Service Commission Act, 2011.
The Kenya Citizens and Foreign Nationals Management Service Act, 2011.
The Prohibition of Female Genital Mutilation Act, 2011.

SUPPLEMENT No. 130

Legislative Supplement
LEGAL NOTICE NO.

138—The Traffic (Breathylser) Rules, 2011.
139—The Traffic (Speed Limits) (Amendment) Rules, 2011.
140—The Traffic (Signs) (Amendment) Rules, 2011.

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