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KLR WEEKLY e-NEWSLETTER
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| Issue 46/2011 Newsletter Archive | Friday 18th November 2011 | |
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VETTING OF JUDICIAL OFFICERS CHALLENGE THROWN OUT Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLR The Constitutional and Human Rights division of the High Court has dismissed a petition challenging the vetting of Judges and Magistrates. The Court found that the Vetting of Judges and Magistrates Act, 2011 (VJM Act) was sanctioned by the new Constitution and its provisions did not violate the doctrines of separation of powers and the independence of the judiciary and that it did not threaten the constitutional rights of judges and magistrates. While admitting that the vetting process may cause some anxiety, the Court observed that the process would help to underpin the values of accountability and integrity in the Judiciary and restore it to its respected place as the arbiter of justice in Kenya. The petition was filed by lawyer Dennis Mong’are and joined by six interested parties: The Party of Independent Candidates of Kenya (PICK); The International Commission of Jurists – Kenyan Chapter (ICJ-K); Law Society of Kenya (LSK); Kenyans for Peace with Truth and Justice (KPTJ); African Centre for Open Governance (AfriCOG); and the Kenya Judges and Magistrates Association (KMJA). The bench of three High Court judges described the petition as raising ‘critical questions regarding the Judiciary… and the constitutional and legislative provisions aimed at restoring public confidence in [it].’ The Judges recalled that in the period leading to the new constitution, Kenya’s Judiciary had been criticized for its perceived failure to uphold the rule of law and therefore, the constitutional provisions on the Judiciary must be understood in the light of public perceptions of the Judiciary during that period. In the Constitution of Kenya, 2010 (promulgated on August 27, 2010 after a national referendum), Article 262 provided for the coming into effect of certain ‘transitional and consequential provisions’ set out in the Sixth Schedule to the Constitution. Among these provisions was section 23 of the Schedule, which required that within one year after the coming into force of the Constitution, Parliament was to enact legislation establishing mechanisms for vetting the suitability of all judges and magistrates who were in office then to continue to serve in the Judiciary. Later, in March 2011, the VJM Act came into force. The Act established the Judges and Magistrates Vetting Board which was to carry out the vetting exercise. Sections 17-23 of the Act set out the procedure for and the criteria to be applied in the vetting exercise. He asked the High Court to declare that the following constitutional rights of judges and magistrates had been violated or threatened: the right to equality and freedom from discrimination; human dignity; freedom and security of the person; the right to a fair administrative action; and the right to a fair hearing. He also asked for the compensation of all judges and magistrates likely to be affected by the VJM Act and for an injunction restraining the respondents from doing anything prejudicial to the judges and magistrates pending the hearing of the petition. While PICK and the KMJA submitted that the Vetting Board was not the proper body to undertake the vetting exercise, the other interested parties opposed the petition, with at least one of them challenging the jurisdiction of the High Court to hear it. The findings of the High Court Was section 23 of the Sixth Schedule to the Constitution in conflict with the substantive provisions of the Constitution and therefore null and void? Section 23 of the Constitution fell under the Sixth Schedule which contained the Transitional Provisions of the Constitution and along with the other provisions of the Constitution, the section came into force on August 27, 2010. It was not open to the Court to question the sovereign will of the people and to decide that one part of their Constitution was null and void as compared to another. The authority conferred on the Court by the people of Kenya was to give effect to the whole Constitution. Did the VJM Act violate the Principle of Separation of Powers and the Independence of the Judiciary? Did the VJM Act violate the Bill of Rights, particularly the right to equality and the freedom from discrimination? As the Court further observed, all judges and magistrates appointed prior to the coming into force of the Constitution were treated equally and had the same rights under the Act. While judges appointed under the former Constitution were required to undergo vetting, judges and magistrates appointed under the new Constitution must undergo a process that complies with the dictates of Article 10 of the Constitution and ensures compliance of prospective judicial officers with the provisions of Chapter 6 of the Constitution. In fact the relevant considerations which the Board must take into account in determining the suitability of judges and magistrates under section 18 of the Act were the same considerations applied by the Judicial Service Commission in considering the suitability of nominees for judgeship under section 13 of the First Schedule to the Judicial Service Act, 2011 Did the vetting process subject the judges and magistrates to inhuman and degrading treatment and was their right to inherent dignity violated? Was there a threat to the right to a fair hearing and the rules of natural justice? The Court found nothing in the Act that violated the right of judges and magistrates to a fair hearing or derogated under Article 50(1) of the Constitution. The Court found that neither the Act nor Section 23 of the Sixth Schedule to the Constitution prescribed a right of appeal from the decision of the Vetting Board. The removal of a judge from office by virtue of that section was clearly stated not to be subject to question in, or review by any court. Since the Constitution itself clearly foreclosed on the possibility of appeal to a higher court, the Court could not imply a right of appeal. For these reasons the Court found that the petition lacked merit and it was dismissed with no order as to costs. Download Full Text of This Judicial Opinion
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COURT BARS CMC SHAREHOLDER FROM HOLDING EXTRA-ORDINARY GENERAL MEETING Andy Forwarders Services Limited v The Capital Markets Authority & CMC Holdings Limited www.kenyalaw.org The petitioner had filed a chamber summons application concurrently with the petition in which it sought among others, an injunction to restrain the respondent from interfering with the meeting of shareholders of CMC to be held pursuant to the petitioners requisition notice issued in accordance with section 132(1) of the Companies Act. CMC holdings thereafter applied to be joined as an interested party when the matter came up for hearing. The Capital Markets Authority filed a cross-application seeking a conservatory order maintaining the status quo regarding CMC Holdings Company and the composition of its Board of Directors pending the hearing and determination of the petition. CMA also sought an order restraining the petitioner from proceeding with the Extra-ordinary General meeting. The two applications were heard concurrently by Justice Mumbi Ngugi. Mr. Ojiambo appearing for the petitioner submitted that in exercise of rights granted under section 132 (1) of the Companies Act, the petitioner had requisitioned for an EGM upon failure of the Directors of CMC to convene one. He further submitted that the right of shareholders under section 132 of the Companies Act was a right that could not have been abridged and a right of property which could have been exercised by the shareholders whatever their motive for exercising that right was. Counsel contended that the right under section 132 was not just a statutory right but had constitutional underpinnings and was protected under Article 40 (2) of the Constitution which prohibited parliament from enacting any law that permitted the deprivation of property. He therefore stated that the right was a fundamental right which could not be limited except as had been provided under Article 24 of the Constitution and that CMA could not therefore as a statutory body have interfered with the petitioner’s right. In addition, counsel submitted that any limitation under Article 24 of the Constitution should not have limited the right so far as to derogate from its core and essential content. In the petitioner’s view, the core and essential content of the rights of a shareholder under section 132 of the Companies Act was to call an EGM and therefore, to limit the right to call an EGM was to derogate from that right’s core and essential content. Counsel further averred that there was no provision in the CMA Act permitting the respondent to stop the shareholders from holding an EGM. He went on averred that while it was argued that the respondent was carrying out its statutory duty in seeking to stop the petitioner from holding an EGM, no specific duty had been drawn to the attention of the court. More over, argued that in such a matter, the applicant seeking a conservatory order ought to have shown a prima facie case. He submitted that there was nothing sacrosanct about the right conferred by Section 132 of the Companies Act and that the court was entitled to have interfered where there was an abuse of this right in the case of an unlisted company. He therefore submitted that in the circumstances, the court should have been concerned with the question of balancing of rights and that CMA as a regulator must balance the interests of one shareholder against those of investors and the entire market. CMC Holdings as the interested party on its part associated itself with the submissions of CMA. The High Court after entertaining rivalry submissions considered whether or not to grant conservatory orders either to the petitioner or the respondent. In determining the matter the Court relied on the case of Centre For Rights Education and Awareness (CREAW) & 7 Others v Attorney General & Others Petition No. 16 of 2011 and observed that the court’s discretion to grant conservatory orders required the applicant to demonstrate that it had a prima facie case with a likelihood of success and that unless the court had granted the conservatory order, there was a real danger that he would have suffered prejudice as a result of the violation of the Constitution. The Court also considered the decision in Muslims For Human Rights & Others v The Attorney General & Others Petition No. 7 of 2011 where it had been noted that a conservatory Order was not an injunction as was known in civil matters but was an order that was intended to preserve the subject matter in such a way that the Constitutional proceedings and cause of action was not rendered nugatory. The Court upon the aforegoing decisions observed that two conditions had to be satisfied for a conservatory order to issue. First, that the situation required conservation so as to have maintained the status quo pending the hearing of the petition and if the order was not issued, the petition would have been rendered nugatory. Secondly the court was to consider whether the petitioner or other party seeking a conservatory order had established a prima facie case with a probability of success. To this end, the court had to weigh the respective interests of other investors and the market. A change in the status quo in CMC would have radically altered the situation and rendered the questions for determination in the petition moot. The judge therefore found that the petitioner had not demonstrated that it had an arguable case with a probability of success and that it would have suffered prejudice if conservatory orders in its favour were not granted. The judge further observed that if the regulator was restrained and the petitioner permitted to convene the EGM, the critical questions that the petition sought to answer relating to the mandate of the respondent as regulator with regard to the rights of shareholders under the Companies Act would have been rendered moot. She observed that conversely, should the cross application succeed, the status quo in the interested party would have been maintained and the issues raised by the petition would have remained live for determination at the hearing for the petition. Accordingly, the court dismissed the application and ordered that the status quo as regards CMC Holdings be maintained and further that the petitioner be restrained from convening an Extra-ordinary General Meeting pending the hearing and determination of the petition. Download Full Text of This Judicial Opinion
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Kenya Gazette Vol CXIII – No. 112 Dated November 18, 2011 GAZETTE NOTICE NO. 14304 IN EXERCISE of the powers conferred by section 15 (1) of the Accountants Act, 2008, the Deputy Prime Minister and Minister for Finance appoints — Under paragraph (b) – to be members of the Kenya Accountants and Secretaries National Examinations Board, for a period of three (3) years, with effect from the 21st January, 2011. Dated the 2nd November, 2011. UHURU KENYATTA,  GAZETTE NOTICE NO. 14305 IN EXERCISE of the powers conferred by section 15 (1) (h) of the Accountants Act, 2008, the Deputy Prime Minister and Minister for Finance appoints — Margaret K. Kobia (Prof.), to be members of the Kenya Accountants and Secretaries National Examinations Board, for a period of three (3) years, with effect from the 15th September, 2011. Dated the 2nd November, 2011. UHURU KENYATTA, GAZETTE NOTICE NO. 14306 IN EXERCISE of the powers conferred by paragraph 2 (1) of the schedule of the Accountants Act, 2008, the Deputy Prime Minister and Minister for Finance appoints — Wanyama Kilundu Bitonye (Prof.), to be the Chairman and Vice Chairman of the Kenya Accountants and Secretaries National Examinations Board, for a period of three (3) years, with effect from the 1st February, 2011 and 1st October, 2011. Dated the 2nd November, 2011. UHURU KENYATTA, GAZETTE NOTICE NO. 14307 IT IS notified for the general information that the Deputy Prime Minister and Minister for Loal Government appoints — Manu Chandaria – Chairman, to be trustees of the Street Family Rehabilitation Trust Fund and appoints Waruinge Muhindi as Secretary to the trust Fund for a period of three (3) years with effect from 11th December, 2011. MUSALIA MUDAVADI, GAZETTE NOTICE NO. 14308 IN EXERCISE of the powers conferred by rules 14 (b) (i) & (iv) and 19 of the Local authorities Pension Trust Rules 2007, the Deputy Prime Minister and Minister for Loal Government appoints — Julius Mark Apale, as members of the board of Trustees of Local Authorities Pension Trust (LAPTRUST) for a period of three (3) years with effect from 1st November, 2011 and revokes the appointment of Allois A. Otiende as a member of the board.. Dated the 14th November, 2011. MUSALIA MUDAVADI, GAZETTE NOTICE NO. 14310 IN EXERCISE of the powers conferred by section 8 (1) of the Multimedia University College of Kenya Order, 2008, the Minister for Higher Education, Science and Technology appoints — WALTER O. OYAWA (PROF.). to be the Principal of the Multimedia University College of Kenya, for a period of five (5) years, with effect from 8th November, 2011. Dated the 10th November, 2011. MARGARET KAMAR, GAZETTE NOTICE NO. 14311 IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints — BENSON M. NZAKYO Resident Magistrate at Githunguri to represent the High Court for the purposes of that section, with effect from 1st December, 2011. Dated the 8th November, 2011. WILLY MUTUNGA, GAZETTE NOTICE NO. 14312 NOTICE is given that the land described in the schedule hereto has been duly set apart in accordance with the provisions of part IV of the Trust Land Act, for the purposes specified in the said schedule. Place.—Shambini, Vigurungani, Kwale Description of land: This land is situated approximately 5.5 kilometres to the south of Vigurungani Township. The boundaries are demarcated on the ground and are described as follows. Starting from a point “SG8” which is a IPC from which spot height 262 and spot height 322 are 1.15 kilometres and 1 kilometre distance on bearing of 138° 30' 00" and 252° 30' 00", respectively. Thence for a distance of 14.490 metres on a bearing of 46° 35' 44.34" to point SB7–AN 1PC; thence for a distance of 37.936 metres on a bearing of 32° 47' 27" to point SB6–AN 1PC; thence for a distance of 49.86 metres on a bearing of 24°12' 32" to point SB5–AN 1PC; thence for a distance of 24.444 metres on a bearing of 30° 21' 29.22" to point SB4–AN 1PC; thence for a distance of 38.763 metres on a bearing of 34° 48' 30.59" to point SB3–AN 1PC; thence for a All bearing given above are magnetic. A plan of the area may be inspected at the office of the District Commissioner, Kilifi. Dated the 10th November, 2011. Z. A. MABEA, GAZETTE NOTICE NO. 14641 PURSUANT to regulation 13 of the Council of Legal Education (Kenya School of Law) Regulations, it is notified that the following persons 35 (thirty five) persons: Akaka Lucy Omari have complied with the provisions of section 13 of the Advocates Act as to pupilage and passing of examinations subject to such exemptions as may have been granted under subsection (2) of the section. Dated the 8th of November, 2011. PROF. W. KULUNDU, GAZETTE NOTICE NO. 14282 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed subdivision of remaining 3,053 acres in Kiu ranch. The project proposes to subdivide the remaining portion of its ranch to its 1006 members. It also wishes to allocate 2,760 acres to the former squatters on its land as directed by the high court. This final subdivision will involve a total of 3,053 acres which after putting aside 500 acres for roads, social amenities etc will see the members share the remainder with each member getting only about 2.7 acres. The proposed project will be in Kiu ranch, plot L.R No.7612 Mukaa district, Malili division, Ngaamba location. 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, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, 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 decision making process of the plan. ROBERT ORINA, GAZETTE NOTICE NO. 14283 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed rosewood nursing home and mortuary. The proposed project involves construction of a nursing home and mortuary. The design of the proposed project includes:
The proposed project site is located on plot no. Kamagambo/kabuoro/1561, Rongo County, Migori 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: 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 decision making process of the plan. B. M. LANGWEN, GAZETTE NOTICE NO. 14284 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed 200 3-bedroomed apartments. The proposed development will entail construction of 200 spacious apartments (in 20 blocks each having 10 units) with excellent finishes on a five acre compound. They will be 3 bedrooms (plus DSQ) with a plinth area of approximately 150 sq metres. These will be built in phases development will include a jogging truck, ample parking, baby swimming pool, Gazebo, baby class, shops and recreational areas. The proposed project is located on plot L.R No. 7149/26, before Mlolongo, along Mombasa Road, Mavoko Municipality. The site is next to the railway line after Muthama Heights and Easypark apartments 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, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, 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 decision making process of the plan. OUMA Z. O.,
PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed construction of a bitumen plant.. The project will involve building an emulsion bitumen plant with a boiler- bitumen preheating tank and one bitumen pump, a guardhouse, Sanitary facilities and a paved driveway running from the gate. The proposed site for construction of a bitumen plant is in Nairobi Municipality on plot no 209/13714 along Masai Road, off Mombasa road. The proposed project site measures approximately 5 hectares. 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: 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 decision making process of the plan. ROBERT ORINA, GAZETTE NOTICE NO. 14652 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed upgrading of the Busia – Malaba road c43 to bitumen standard Road construction requires the deployment heavy duty machinery and considerable earthworks. Large quantities of construction materials will be used, mainly, gravel, hard-stone, sand and water. The following activities will likely take place. 1. Road condition survey The proposed road project is located within Teso District, Western Province in the Republic of Kenya and covers a distance of 28km. The traverse of the road corridor originates at kilometer 117 on the B1 from Kisumu towards Busia and terminates at Malaba on the A104 from Eldoret 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, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, 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 decision making process of the plan. B. M. LANGWEN, GAZETTE NOTICE NO. 14653 PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation for the proposed commercial development of daz square office park & hotel. The project will construct six eco-friendly commercial buildings; five blocks of offices and a 4 star hotel which will all be storeyed, complete with associated external works including boundary walls, guard house, landscaped gardens, parking lots, and recreation centre among other components, to meet the ever-growing demand for well designed commercial space within the city of Nairobi. The commercial block is located approximately 8 Kilometers from Nairobi Central Business District on Lower Kabete Road of Nairobi. The proposed site is on plot number L.R. No. 7158/76. 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 decision making process of the plan. OUMA Z. O., GAZETTE NOTICE NO. 14654 Pursuant to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation for the proposed construction of sanitary landfill. The project involves the construction of a sanitary landfill in Ruai. The proposed site is located in the East of Nairobi City, adjacent to Dandora Sewerage Ponds on one side by Nairobi River and the Embakasi Ranching Scheme on the other. The project area is located in Ruai Location. 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 decision making process of the plan. (EIA/5/2/786) Z. O. OUMA,
Pursuant to regulation 21 of Environmental (Impact Assessment and Audit) regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed decommissioning of Dandora dumpsite. The project will involve decommissioning of the Dandora dumpsite due to the major negative environmental impacts of the local environment as a result of uncontrolled and open dumping. The dumpsite is located in the East of Nairobi City, surrounded byDandora estate, Lucky Summer, Ngomongo, Korogocho villages and the Nairobi river. The project is located within the following administrative boundaries: Njiru District, Dandora Division, Dandora location and Dandora sub-location. 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, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839-00200, 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 decision making process of the plan. (EIA/5/2/787) SALOME MACHUA,
The Public Appointments (Parliamentary Approval) Act, 2011 SUPPLEMENT No. 146 The Industrial Training (Amendment) Act, 2011. |
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Kenya Law Weekly Issue 46/2011
18 November 2011
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KenyaLawBlog
