Kenya Law Weekly Issue 51/2011

| Issue 51/2011 Newsletter Archive | Friday 30th December 2011 |

A Select Land Mark Cases for 2011.

By Andrew Halonyere

Following the promulgation of the new Constitution on August 27, 2010 that ushered in a new set of national values, bill of rights and system of governance among other things, the Kenyan courts have dealt with various Constitutional issues and non constitutional issues in which the courts have made  landmark decisions. The National Council for Law Reporting being the official publisher of the judicial opinions of Kenyan Courts of record has managed to publish some of the Landmark cases for the year 2011 in the weekly newsletters, normally circulated every end of the week to thousands of subscribers. The landmark judicial opinions that featured in this year’s newsletter inter-alia included those that touched on subjects such as fundamental rights and freedoms, the historic ruling by the Supreme Court of Kenya, the taking of evidence by video conferencing, evictions and right to adequate housing, appointments to constitutional offices etc. The following is a recap of some of the issues that were determined by the courts in the year 2011.

SUPREME COURT’S MAIDEN RULLING .

On November 2, 2011 history was made when the Supreme Court of Kenya delivered its first ruling. In Re: Commission for the Implementation of the Constitution [2011]eKLR the  Supreme Court was faced with the question whether it had jurisdiction to adoptprevious proceedings relating to an advisory application filed by the Commission on the Implementation of the Constitution relating to the question of nomination of persons for constitutional offices under the Constitution of Kenya 2010. The proceedings in this case had been before the Court of Appeal sitting as a Supreme Court and were adjourned indefinitely following the establishment of the Supreme Court and appointment of the Supreme Court Judges. At the time, the Court of Appeal had established interim Supreme Court Rules to guide its proceedings. The Supreme Court ruled that  it would indeed adopt the proceedings including all its pleadings.  In making the ruling, the Court observed that due to the urgency of the motion and the issues which had been raised, time was of the essence and the questions which were of national importance and interest could not await the establishment of the Supreme Court.  It was the court’s view that it would be totally improper, irregular and unfair for the court to set aside all proceedings and record and to order the applicant to file a fresh application so that they could comply with the new Supreme Court Rules.  The court observed that it would be prejudicial, costly and oppressive to the applicant   (Commission on the Implementation of the Constitution) and even the interested parties who had invested heavily in terms of expenses and precious time in reaching the stage of proceedings that had been recorded.

APPOINTMENTS TO CONSTITUTIONAL OFFICE & GENDER BALANCE

Prior to the adoption of the current Constitution, the appointment of persons to a constitutional office was solely the prerogative of the president. That position has since changed. In the case of Centre for Rights Education and Awareness & 7 others v Attorney General [2011] eKLR
www.kenyalaw.org  . The court determinedwhether the nomination of the candidates to the offices of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget by the President had been done after consultation between the President and the Prime Minister in accordance with the National Accord and Reconciliation Act. The Court ruled that it would be unconstitutional for the State to carry on with the process of approving and eventual appointment of persons to those offices based on the nominations had been made by the President on January 28, 2011.  Justice Musinga observed that it appeared that there was some consultation between the two principals but there had been no consensus or agreement between them. The consensus or agreement, the Judge noted, was not a requirement under the Constitution. However, that notwithstanding, he stated that “the values and principles stated under Article 10 of the Constitution and the spirit of the National Accord and Reconciliation Act ought to have been borne in mind in making the nominations. Accordingly the nominations were halted   

Similarly in the case of Federation of Women Lawyers Kenya (FIDA-K) & 5 Others v Attorney General & Another [2011] eKLR - www.kenyalaw,org,the issue of gender balance was raised in the appointment of persons to a constitutional office. The gender composition of the persons recommended for the position of the Supreme Court Judges elicited a petition filed by (FIDA-K). It was alleged that the JSC did not meet the mandatory requirement and threshold set by the Constitution. It was contended that with two women and five men in the Supreme Court, it meant that the percentage composition of the female gender was 28.57% whereas the percentage composition of the male gender was 71.43%, thereby breaching Article 27 of the Constitution which provided that not more than two thirds of the members of elective or appointive bodies shall be of the same gender. The court recognized that persons to be appointed to any judicial office have to be learned persons who have gone through vigorous learning and experience and that the criteria for appointment of the judicial officers were clearly spelt out in the Constitution and the provisions of the Judicial Service Act particularly Articles 166, 172 and Regulation 13 respectively. The court took the view that Article 27 as a whole or in part did not address or impose a duty upon the Judicial Service Commission in the performance of its constitutional, statutory and administrative functions. It opined that Article 27 could only be sustained against the Government with specific complaints and after it had failed to take legislative and other measures or after inadequate mechanisms by the State. On that note, the court dismissed the petition.

However, the court emphasized that judicial appointments should be based on the concept of equal opportunity, non-discrimination and above all must reflect the diversity of the people of Kenya taking into consideration the values, beliefs and experience brought about by an individual appointed for a particular position. It stressed that women are just as likely as men to possess attributes of good judges and experience.

FORCEFUL EVICTIONS AND THE RIGHT TO ADEQUATE HOUSING.

The year 2011 was marked by a number of petitions in respect to land, forceful evictions and right to adequate housing.  For instance In Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others [2011] eKLR  the petitioners , residents of Muthurwa estate went to court seeking an Injunction against forceful removal from the respondent. The court considered the competing rights between the tenants and the owners of the estate. The court observed that Kenya lacked appropriate legal guidelines on eviction and displacement of people from informal settlements and even formal ones, particularly in instances where low income earners have to be displaced from public or private land. The court further stated that while it appreciated the first respondents good intentions of developing modern residential and commercial properties on the suit land, subject to compliance with all the necessary contents and/or approvals it recognized that the  developments could not be undertaken while the tenants of Muthurwa estate remained in occupation of the dilapidated houses, thus holding  that it could not overlook the fundamental rights of the tenants and that even though at some particular point in time the tenants would have to move out of the estate , when the that time came, the court opined, it ought to be done in a humane manner. Similarly In the case of  Susan Waithera & 4 Others v the Town Clerk, Nairobi City Council and 2 others [2011] eKLR (www.kenyalaw.org)the court considered  whether twenty four hours notice was adequate notice to vacate the premises ,in this case an informal settlement, where the applicants had lived for over fourty years, was adequate notice .The court held that such notice  was unreasonable and indeed unconstitutional.lt further observed that eviction should not result in individuals being rendered homeless or vulnerable to the violation of other human rights and that where those affected are unable to provide for themselves, the State party had to take all reasonable measures to the maximum of its available resources  to ensure that adequate alternative housing  resettlement or access to productive land as the case may be was available.

TAKING EVIDENCE BY VIDEO CONFERENCE

In October 2010, Kenya’s Judiciary had commissioned video conferencing terminals installed at the Nairobi and Mombasa Law Courts and the Court of Appeal had heard a number of procedural applications argued by lawyers appearing by video link. However, the participation of the advocates and their parties was consent-based to guard against the possibility of parties challenging the legality of the use of video conferencing as a way of receiving evidence. But Precedent was set when the High Court allowed taking of evidence by video conference. In Livingstone Maina Ngare v Republic [2011] eKLR (www.kenyalaw.org) the court in an application for review considered whether it was legal to have two witnesses resident in the USA who were reluctant to travel to Kenya because of fear of their safety could have given their evidence through video conferencing. The Court observed thatsince the video terminal through which the testimony of the two witnesses was to be received was located in Nairobi-Kenya, the respondent was wrong in arguing that the court would have been sitting outside the territorial jurisdiction of Kenya. The court therefore cleared the way of the evidence of the two witnesses to be given and received through video conferencing terminals placed at the Kenyan embassy in the USA and the Nairobi Law Courts.

THE VETTING OF JUDICIAL OFFICERS

Judges and Magistrates appointed before the constitution was promulgated (on August 27, 2010) will be vetted following the High Court's dismissal of an application seeking to stop the process. In Dennis Mogambi Mong’are v Attorney General & 3 others [2011] eKLRthe court considered whetherby permitting parliament to enact legislation for the removal of judges, the Sixth Schedule to the Constitution was unconstitutional. Secondly, whether both the Schedule and certain sections of the Vetting of Judges and Magistrates Act were null and void on the allegation that they violated the constitutional principles of separation of powers and the independence of the Judiciary.  The court held that the Vetting of Judges and Magistrates Act, 2011 (VJM Act) was sanctioned by the new Constitution and its provisions had not violated the doctrines of separation of powers and the independence of the judiciary and that it had not threatened the constitutional rights of judges and magistrates. While admitting that the vetting process may have caused some anxiety, the Court observed that the process would have helped 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.

MARRIED DAUGHTERS’ RIGHT TO INHERIT .

In the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga 2011 [eKLR] (www.kenyalaw.org)   Lady Justice Mary Kasango  held that married daughters had a right to inherit their parents’ estate under the current Constitution. The brief facts of the case were that the objector, Consolata Ntibuka had  challenged  her brother’s decision to evict her from a piece of land  left behind by her late father on the ground that she was married. Justice Kasango in her ruling stated  “…….In my view, the law as it is now, it matters not, whether a daughter of the deceased is married or not when it comes to consideration of whether she is entitled to inherit her parent’s estate.  Article 60 (f) of the Constitution of Kenya 2010 provides for elimination of gender discrimination in respect of land. Marital status of a daughter is not a basis to deny her the right to inherit her father’s estate…’’. Similarly  in  Monica Jesang Katam v Jackson Chepkwony & Another [2011] eKLR (www.kenyalaw.org)the High Courtaffirmed the right of Inheritance in woman to woman marriage.  Monica Jesang had claimed the right of inheritance by affirming that she was a beneficiary of the estate of Cherotich Kimong’ony Kibserea (deceased) by virtue of having been married to the deceased in a woman to woman marriage under the Nandi tradition. The High Court at Mombasa in deciding the case upheld customary law by observing that contemporary social systems for instance, in the shape of current practices in the domain of family among the Nandi were to be regarded as aspects of culture which would rightly claim protection under Article 11 (1) of the Constitution of Kenya 2010. The Constitution under the Article recognized culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation.

ARREST WARRANT AGAINST SUDAN’S PRESIDENT

In International Commission of Jurists-Kenya v Attorney General & 2 others [2011] Eklr (www.kenyalaw.org)  a warrant of arrest was issued against President Al Bashir, the President of Sudan, due to the obligation that Kenya has to arrest him should he set foot in its territory, the court  held. This followed an application by the International Commission of Jurists (ICJ)-Kenya which sought orders to the effect that a provisional warrant of arrest against President Bashir is issued and a subsequent order against the Minister of State for Provincial Administration to effect the said warrant of arrest.  The application by ICJ was predicated upon the affidavit of, George Kegoro, ICJ’s Executive Director , and was based on grounds that the Constitution of Kenya at Article 2 (5) applies all treaties and conventions that have been ratified by Kenya to be part of the Laws of Kenya; that Kenya ratified the Rome Statute on 15th March 2005 and followed up on that act by domesticating the Statute vide the International Crimes Act of  2008; that the Constitution of Kenya, 2010 at Article 3 puts an obligation on every person to respect, uphold and defend the Constitution; that there were two outstanding warrants of arrest against President Al Bashir issued by the International Criminal Court on 4th March, 2009 and 12th July 2010 respectively; that there were also two requests for co-operation in the arrest and surrender of President Al Bashir issued by the International Criminal Court on 6th March, 2009 and 21st July, 2010 to State s that are parties to the Rome Statute; an that despite these, President Al Bashir came to Kenya, on the 27th August, 2010, yet he was not arrested as required.
The court, upon applying various International Law principles held that the High Court in Kenya had jurisdiction not only to issue a warrant of arrest against any person, irrespective of his status, if he has committed a crime under the Rome Statute, under the principle of universal jurisdiction, but also to enforce the warrants should the Registrar of the International Criminal Court issue one. The Attorney General was aggrieved with the decision and brought an appeal. The Court of Appeal however upheld the High Court’s ruling, stating that the appeal was insufficient and unconvincing.

CAN A KENYAN MUSLIM MAN, OF THE SHIA DAWOODI BOHRA PERSUASION, WITHOUT IMMEDIATE DESCENDANTS OR ASCENDANTS, LEAVE HIS ENTIRE ESTATE BY WILL TO HIS WIFE? 

A Kenyan Muslim man, of the Shia Dawoodi Bohra persuasion, who has no immediate family members such as children, grandchildren, parents or grandparents can leave his entire estate by will to his wife without making any provision to a surviving relative like a cousin, the Court of Appeal held.  This ruling was delivered by the Court of Appeal in an appeal in which the appellant, a cousin to the testator, was challenging the testator’s Will, which Will had mad provision leaving the entire estate of the testator to his wife without assigning any part of the estate to devolve to the surviving cousin (the appellant). This ruling was delivered in the case of  Saifudean Mohamedali Noorbhai v Shehnaz Abdehusein Adamji (www.kenyalaw.org).


The a foregoing therefore are a select few landmark decisions that our Courts of Record have delivered over the past one year (2011) which, and many more, can be accessed at the National Council for Law Report’s website-www.kenyalaw.org.

Back toTop

SPECIAL ISSUE
THE KENYA GAZETTE Vol. CXIII - No. 127, Dated 23rd December, 2011
GAZETTE NOTICE NO. 16478

BUSINESS PROCESS OUTSOURCING/INFORMATION
TECHNOLOGY SERVICES (BPO/ITES) WORKING GROUP

APPOINTMENT

IN EXERCISE of the powers conferred by section 4 (1) (a) of the National Accord and Reconciliation Act, I, Raila Amolo Odinga, Prime Minister of the Republic of Kenya, extend the term of the BPO/ITES Working Group, for a period of one (1) year beginning 18th December, 2011. The following are the members of the Working Group:

Gilda Odera —Chairperson
Sam Sigei —Vice-Chairperson
Nicholas Nesbit —Member
Peres Were —Member/Joint Secretary
Victor Kyalo —Member/Joint Secretary
Sammy Buruchara —Member
Joseph Njenga Mwai —Member
Dickson Ogolla —Secretariat Manager

Terms of reference and the powers for the BPO/ITES Working Group are as set out in the Gazette.

Dated the 23rd December, 2011.

RAILA  A. ODINGA,
Prime Minister.

THE KENYA GAZETTE Vol. CXIII -  No. 128, Dated 30th December, 2011

GAZETTE NOTICE NO. 16479

THE STATE CORPORATIONS ACT
(Cap. 446)

THE KENYA TRADE NETWORK AGENCY ORDER
(L.N. 6 of 2011)
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Deputy Prime Minister and Minister for Finance appoints—

Susan A. Mboya,
Sam. K. Njonde,
Aggrey G. K. Chabeda,
Gilbert Langat,

to be members of the Board of Kenya Trade Network Agency, for a period of three (3) years, with effect from 1st July, 2011.

Dated the 20th December, 2011.

UHURU KENYATTA,
Deputy Prime Minister and Minister for Finance.

GAZETTE NOTICE NO. 16480

THE KENYA POLYTECHNIC UNIVERSITY COLLEGE ORDER
(L.N. 159 of 2007)

APPOINTMENT
IN EXERCISE of the powers conferred by section 11 (1) (g) (iv), (v) and (vii) of the Kenya Polytechnic University College the Minister for Higher Education, Science and Technology appoints—

Luke Adoket Plapan,
Vimal Shah,
Elizabeth Katanu Mbebe (Ms.),

to be Council members of the Kenya Polytechnic University College Council, for a period of three (3) years, with effect from 3rd November, 2011.

Dated the 14th December, 2011.

M. J. KAMAR,
Minister for Higher Education,
Science and Technology.

GAZETTE NOTICE NO. 16481

TASKFORCE ON ALIGNMENT OF THE EDUCATION, SCIENCE
AND TECHNOLOGY SECTOR WITH THE CONSTITUTION

APPOINTMENT

PURSUANT to the establishment of the taskforce on Alignment of the Education, Science and Technology Sector with the Constitution vide Gazette Notice No. 11626 of 23rd September, 2011, the Minister for Higher Education, Science and Technology appoints—

Elizabeth M. Ng’ang’a,
Vane Nyaboke Akama,

as members of the Taskforce with effect from 1st October, 2011 and 21st November, 2011, respectively.

Dated the 20th December, 2011.

M. J. KAMAR,
Minister for Higher Education,
Science and Technology.

GAZETTE NOTICE NO. 16485

THE LAW OF SUCCESSION ACT
(Cap. 160)

APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints—

Albert Satabau Lesootia

Resident Magistrate at Kitui, to represent the High Court for the purposes of that section from 1st January, 2012.

Dated the 16th December, 2011.
WILLY MUTUNGA,
Chief Justice/President, Supreme Court of Kenya.

GAZETTE NOTICE NO. 16486

THE LAW OF SUCCESSION ACT
(Cap. 160)

APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints—

Beatrice Muthoni Kimemia (Ms.)

Principal Magistrate at Kitui, to represent the High Court for the purposes of that section from 1st January, 2012.

Dated the 16th December, 2011.

WILLY MUTUNGA,
Chief Justice/President, Supreme Court of Kenya.

GAZETTE NOTICE NO. 16487

THE LAW OF SUCCESSION ACT
(Cap. 160)

APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints—

Timothy Sironka Nchoe

Resident Magistrate at Vihiga, to represent the High Court for the purposes of that section from 1st January, 2012.

Dated the 23rd December, 2011.

WILLY MUTUNGA,
Chief Justice/President, Supreme Court of Kenya.

GAZETTE NOTICE NO. 16488

THE CHILDREN ACT
(No. 8 of 2001)

APPOINTMENT

IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, 2011, the Chief Justice appoints—

Betty Chepkemoi Koech (Ms.)

Resident Magistrate at Mombasa, to preside cases involving children in respect of Coast Province, with effect from 1st January, 2012.

Dated the 21st December, 2011.

WILLY MUTUNGA,
Chief Justice/President, Supreme Court of Kenya.

GAZETTE NOTICE NO. 16489

THE TRANSPORT LICENSING ACT
(Cap 404)
APPOINTMENT

IN EXERCISE of the powers conferred by section 3 (3) of the Transport Licensing Act,
the Chairman of the Transport Licensing Board appoints—

as licensing officers of the Transport Licensing Board.

Dated the 16th December 2011.

H. A. M. OLE KAMWARO,
Chairman, Transport Licensing Board.

GAZETTE NOTICE NO. 16455
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)

THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED MLOLONGO VILLAGE IN KATANI AREA, ATHI RIVER DISTRICT

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 development of Mlolongo Village. The project will involve construction of 2400 residential houses, recreational club and a shopping mall.
The proposed site is situated about 5.5km from Nairobi – Mombasa Highway on Plot L.R. No. 21215, in Athiriver district, Katani Location in Machakos County. The total area is 101 Acres.
The anticipated impacts and proposed mitigation are as set out in the Kenya 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, Eastern Province.
(d) District Environment Officer, Machakos 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.

Z. O. OUMA,
for Director-General,
MR8406466                                                  National Environment Management Authority.

GAZETTE NOTICE NO. 16456
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED MIXED COMMERCIAL DEVELOPMENT PLOT NOS. 10688/3 OFF REDHILL ROAD, 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 implementation of the proposed
mixed commercial development. The proponent proposes to construct a boutique hotel, an office park – 7 blocks of offices with a commercial centre (1 block), a parking silo, 8 blocks of offitels (a hotel suite with an office), a retail centre and a convention center.

The proposed project site is situated on Plot LR. NO. 10688/3, Nyari area off Red hill road, Nairobi. It is approximately 20 kilometers from Nairobi CBD. The total area is 26.645 Hectares. The land can be accessed via the Red hill road off Limuru road.
The anticipated impacts and proposed mitigation are as set out in the Kenya 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, Nairobi Province.
(d) District Environment Officer, Westlands and Langata Districts.
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,
MR8398866                                                  National Environment Management Authority.

back to top