By Monica Achode and Linda Awuor June, 2013 Judicial opinions are an important tool for evaluating the constitutionality, propriety, effectiveness and utility of statutory legislation as well as government administrative actions. Therefore, judicial pronouncements relating to an aspect of constitutional or statutory law or administrative actions that may be in need of reform are an important driver of the legal and administrative reform process. Below is an analysis of issues raised in judicial opinions delivered between April 2012 and April 2013 and the full text of the judicial opinions. a) Constitutionality of section 13(A) of the Government Proceedings Act and section 3(1) of the Public Authorities Limitation Act b) Whether there is need to expand the grounds of marriage i.e. adultery, cruelty and desertion and by the wife on the ground of rape, sodomy or bestiality on the part of the husband as provided in the Matrimonial Causes Act c) Whether a party can make an application for stay pending appeal within winding up proceedings themselves even though it is not provided for under Section 223 of the Companies Act d) Whether the requirement of notice of intention to sue the Government under section 13(A) of the Government Proceedings Act is unconstitutional e ) Whether section 25 of the Matrimonial Causes Act is unconstitutional in lieu of Article 27 and 45(3) of the Constitution of Kenya, 2010 since it only provides for payment of alimony to wives f) Whether an unsuccessful candidate in the first round of presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution. g) Whether the Industrial Property Tribunal can be said to be legally constituted in the absence of one or more of its five members as provided for under Section 113(1) of the Industrial Property Act of 2001 h) Whether Regulation 61 (2)(a) of the Elections (General) Regulations 2012  which provided for the use of fairly transparent or translucent ballot boxes, was in contravention with section 2 of the Election Act, 2011 which provided for the use of transparent ballot boxes and therefore unconstitutional i) Whether the High Court has jurisdiction to determine an appeal against an arbitrator's decision, in an employment dispute, pursuant to Section 17 (6) of the Arbitration Act, No. 4 of 1995.   1. Constitutionality of section 13(A) of the Government Proceedings Act and section 3(1) of the Public Authorities Limitation Act Kenya Bus Service Ltd and another v Minister for Transport and 2 others [2012] eKLR High Court of Kenya at Nairobi D.S. Majanja September 21, 2012 Constitutional law-bill of rights-equality before the law-right of access to justice-Constitutionality of section 13(A) of the Government Proceedings Act (GPA) and section 3(1) of the Public Authorities Limitation Act (PALA)-limitation of actions against the government-Whether section 13(A) of the Government Proceedings Act (GPA) and section 3(1) of the Public Authorities Limitation Act (PALA) contravened Articles 48, 27(1), (2) and (4) of the Constitution of Kenya 2010, was discriminatory and contrary to the law Issue Whether section 13(A) of the Government Proceedings Act (GPA) and section 3(1) of the Public Authorities Limitation Act (PALA) contravened Articles 48, 27(1), (2) and (4) of the Constitution of Kenya 2010, was discriminatory and contrary to the law. Government Proceedings Act (GPA) Section 13A (1) provides as follows; 13A. (1) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing has been served on the Government in relation to those proceedings. Held: 1.  The application of the provisions of the Limitation of Actions Act (LAA) for extension to time for limitation under PALA mitigates the rigors of a strict limitation period by providing a window for extension of time and in so far as PALA provides for a period for extension of time it does not run afoul of Article 48. That was not to say that the one-month limitation was not harsh, the general consensus worldwide was that such limitations are no longer tenable and I would recommend that the legislature takes an opportunity to review this aspect of the law as other countries have done. 2. The issues of notice of action and limitation of actions had been taken up as law reform issues and most legislatures had implemented the recommendations of their respective law reform bodies.  In Kenya though, law reform efforts had assumed a rather glacial pace particularly where technical and non-political matters were concerned.  The courts were now required to address these matters through litigation founded on enforcement of fundamental rights and freedoms. The issues raised must dealt with in accordance with the Constitution which provides that all law existing prior to the promulgation of the Constitution must, according to section 7 of the Sixth Schedule to the Constitution, “be construed with the alterations, adaptations, qualification and exceptions necessary to bring it in conformity with the Constitution.”   2. Expansion of the grounds of dissolution of marriage under the Matrimonial Causes Act, Chapter 152 W.M.M  v B.M.L  [2012] eKLR High Court at Nairobi GBM Kariuki J. July 26, 2012 Family Law – petition for the dissolution of marriage - maintenance – courts to examine financial capacity of the spouses before making a finding on payment of maintenance - need to expand the menu for grounds for dissolution of marriage - need to adjust sections 25 and 26 of the Matrimonial Causes Act to align the same with the Constitution. Issue: Whether there is need to expand the grounds of dissolution of marriage namely, adultery, cruelty and desertion and by the wife on the ground of rape, sodomy or bestiality on the part of the husband as provided in the Matrimonial Causes Act Matrimonial Causes Act Section 8(1) provides as follows: (1) A petition for divorce may be presented to the court either by the husband or the wife on the ground that the respondent - (a) has since the celebration of the marriage committed adultery; or (b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or (c) has since the celebration of the marriage treated the petitioner with cruelty; or (d) is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately Held: 1.  The law applicable to the marriage is the Matrimonial Causes Act, Chapter 152 of the Law of Kenya. Under Section 8(1) of the Matrimonial Causes Act, a petition for divorce may be presented to court either by the husband or the wife on the ground, inter alia, that the Respondent has since the celebration of the marriage treated the Petitioner with cruelty. Cruelty is not defined in the Matrimonial Causes Act but what amounts to cruelty as a ground for divorce can be discerned from case law in Kenya as well as from English Common Law applicable to Kenya by virtue of Section 3(1)I of The Judicature Act, Chapter 8 of the Laws of Kenya. One may note that the grounds for divorce set out in Section 8(1) of the Matrimonial Causes Act are the age-old traditional grounds which were the only ones applied in English courts before. I have lamented in many cases the regrettable failure by the Legislature and the Law Reform Commission in Kenya to expand the menu for grounds for dissolution of marriage under the Act. While other jurisdictions have continued to review their law in this branch so as to keep it in tandem with societal changes and values, Kenya continues to lag behind in this area of our laws. As a result, the only grounds for divorce are the traditional three, namely, adultery, cruelty and desertion and by the wife on the ground of rape, sodomy or bestiality on the part of the husband. This is not good enough. In other jurisdictions, grounds such as irreconcilable differences and circumstances that make marriage untenable have been brought into the vortex of grounds for divorce. We ought to be a forward-looking jurisdiction and to set pace in development of our law so as to keep abreast with changes in our society.   3.  Application for stay pending appeal within Winding up Proceedings Where they are not Provided for under Law In Re Rupa Cotton Mills (epz) Ltd Winding up cause no. 40 of 2011, High Court at Nairobi J. M. Mutava July 12, 2012 Company Law – winding up – application for winding up of company - application for stay pending appeal within winding up proceedings – where the proceedings themselves even though it is not provided for under Law Issue: Whether a party can make an application for stay pending appeal within winding up proceedings themselves even though it is not provided for under Section 203 of the Companies Act Companies (Winding Up) Rule Section 203 provides: (In all proceedings in or before the court, or any judge, registrar or officer thereof, or over which the court has jurisdiction under the Act or these Rules, where no other provision is made by the Act or these Rules, the practice, procedure and regulations in such proceedings shall, unless the court otherwise directs, be in accordance with the rules and practice of the court. “Whereas the Companies Act and the Companies (Winding Up) Rules should ideally be a complete code on the procedure and remedies applicable to companies’ winding up, it does not address every eventuality arising in the course of winding up proceedings. Notwithstanding this, neither the Companies Act nor the Rules give the indication of an intention to completely dethrone the application of normal civil procedure to winding up proceedings. This is because a saving for such application was expressly set out in the Companies (Winding Up) Rules in Rule 203.   4.  Whether the requirement of notice of intention to sue the Government under section 13(A) of the Government Proceedings Act is Unconstitutional Dr. Anne Kinyua v Nyayo Tea Zone Development Corporation & 2 others [2012] eKLR Industrial Court, at Nairobi Abuodha J. October 18, 2012 Civil Practice and Procedure - notice of intention to sue the Government-requirement by law of the need to issue notice for intention to sue the Government-unconstitutionality of this requirement- Government Proceedings Act, section 13A; Constitution of Kenya,2010, Articles 23(3), 159(1)(d). Issue: Is the requirement that one needs to issue notice of intention to sue the Government as per section 13A of the Government Proceedings Act unconstitutional? Government Proceedings Act Section 13A provides as follows;: (1) No proceedings against the Government shall lie or be instituted until after the expiry of a period of thirty days after a notice in writing has been served on the Government in relation to those proceedings. (2) The notice to be served under this section shall be in the form set out in the Third Schedule and shall include the following particulars – (a) the full names, description and place of residence of the proposed plaintiff; (b) the date upon which the cause of action is alleged to have accrued; (c) the name of the Government department alleged to be responsible and the full names of any servant or agent whom it is intended to join as a defendant; (d) a concise statement of the facts on which it is alleged that the liability of the Government and of any such servant or agent has arisen; (e) the relief that will be claimed and, so far as may be practicable, the value of the subject matter of the intended proceedings or the amount which it is intended to claim. (3) The provisions of this section shall not apply to such part of any proceedings as relates to a claim for relief in respect of which the court may, by virtue of proviso (i) to section 16 (1), make an order declaratory of the right of the parties in lieu of an injunction. Held: 1. On the issue of issuance of notice of intention to sue the Government as required by section 13A of the Government Proceedings Act the Court is of view that this section in no longer tenable in context of the new Constitution and the Attorney General and Law Reform Commission need to take cue and propose to Parliament its repeal or amendment to align with the Constitution. The reason I say this is that under article 23(3) of the Constitution injunction lies against the Government and this includes interlocutory injunctions, which are traditionally issued in situations of urgency where a right is threatened. 2.    To require a party to give a thirty days’ notice in such circumstances is not only unrealistic but runs against the principle of access to justice enshrined in the Constitution. In any event article 159(1)(d) enjoins the Court while exercising Judicial authority to do so without undue regard to procedural technicalities.   5. Discrimination of Section 24 of the Matrimonial Causes Act in Payment of Alimony K.M v AG & Another [2012] eKLR High Court at Nairobi Constitutional and Human Rights Division D.S Majanja J. November 15, 2012 Family Law - dissolution of marriage – claim for alimony – requirement for husbands to pay alimony to their wives – petitioner claiming unconstitutionality of the Matrimonial Causes Act with the provisions of the Constitution providing for equality in marriage – whether the petitioner had a valid claim Issue: Whether section 25 of the Matrimonial Causes Act is unconstitutional in lieu of Article 27 and 45(3) of the Constitution of Kenya, 2010 since it only provides for payment of alimony to wives. Matrimonial Causes Act Section 25 provides as follows; (1)    In any suit under this Act, the wife may apply to the court for alimony pending the suit, and the court may thereupon make such order as it may deem just: Provided that alimony pending the suit shall in no case exceed one-fifth of the husband's average net income for the three years next preceding the date of the order, and shall continue in the case of a decree nisi of dissolution of marriage or of nullity of marriage until the decree is made absolute. Held: 1.    The provisions of the Matrimonial Causes Act requiring alimony to be paid to wives was contrary to Article 27 which provides for equality and outlaws discrimination and Article 45(3) which provides for equality of parties within a marriage. However, section 7(1) of the Sixth Schedule to the Constitution provides a solution to the petitioner’s grievance by entitling the court to read into the Act, words that would bring it in conformity with the Constitution. 2.    In the circumstances, section 25 of the Matrimonial Causes Act which applies to the wife is now to be read as “spouse” to bring it in conformity with Article 27 and 45 of the Constitution and section 25 of the Act and shall be read with all the necessary alteration to make it gender neutral.   6. Challenge by Presidential Candidate of the outcome of the first round of the election under Article 140 or any other provision of the Constitution. In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR Supreme Court of Kenya Mutunga, CJ; Tunoi, Ojwang, Wanjala, Ndungu SCJJ December 11, 2012 Jurisdiction – Supreme Court – presidential election – jurisdiction of the court to hear and determine disputes arising from a presidential election – constitutional provision providing for the filing of a petition challenging the election of a president-elect in the Supreme Court – whether Supreme Court would have jurisdiction to hear a petition where an election has not resulted in a president-elect in the first round – Constitution of Kenya, 2010 Article 140 Issue: Whether an unsuccessful candidate in the first round of presidential election under Article 136 of the Constitution or any other person is entitled to petition the Supreme Court to challenge the outcome of the first round of the said election under Article 140 or any other provision of the Constitution. Constitution of Kenya, 2010 Article 140 provides: (1) A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. (2) Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final. (3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination. Held: 1. There is a lacuna in Article 140 of the Constitution as it provides for disputes settlement only at final stages of presidential election and not at earlier stages. With no provision on the mode of resolution of disputes at the earlier stages, there would be no express right to seek the Court’s intervention, for instance, in respect of the runner-up position. Such a dispute may be, on the facts, one of merit and, therefore, one to be resolved judicially. The urgency of the issue would remain the same as that which attends dispute-settlement in relation to the position of the President-elect; and accordingly, this would still be a contest on an issue of the Presidential election.   7.  Manner in Which the Industrial Property Tribunal should be Constituted Republic v Industrial Property Tribunal and 2 others [2012] eKLR High Court of Kenya at Nairobi W. K. Korir J. November 29, 2012 Statute law- interpretation of statutes- purposive interpretation -interpretation of Section 113(1) of the Industrial Property Act - quorum of Industrial Property Tribunal as provided for under Section 113(1) of the Industrial Property Act-whether all the five members had to sit for the proceedings of the Tribunal to be valid Issue: Whether the Industrial Property Tribunal can be said to be legally constituted in the absence of one or more of its five members as provided for under Section 113(1) of the Industrial Property Act of 2001 Industrial Property Tribunal Section 113. (1) provides – For the purposes of hearing and determining appeals in accordance with section 112 and of exercising the other powers conferred on it by this Act, there is established an Industrial Property Tribunal which shall consist of the chairman and four-members appointed by the Minister. Held: The failure by Parliament to provide for the quorum of the Tribunal has the potential of violating the rights to access to justice and fair administrative action. For purposes of clarity, the Act ought to be amended to include a provision on the quorum of the Tribunal.   8.  Legality of Regulation 61 (2)(a) of the Elections (General) Regulations, 2012 John Harrison Kinyanjui v The Independent Electoral and Boundaries Commission & 4 Others [2013] eKLR In The High Court of Kenya at Nairobi Constitutional and Judicial Review Division By Isaac Lenaola J. Feb 26, 2013 Statutes - interpretation of statutes - contradiction between the Election Regulations & the Election Act- where the Elections Regulations provided for the use of fairly transparent or translucent ballot boxes but the Election Act provided for the use of transparent ballot boxes- whether there was an inconsistency in the wording of the statutes – whether the petition was valid - Interpretation and General Provisions (Cap 2) Section 31(b) Issue: Whether Regulation 61 (2)(a) of the Elections (General) Regulations 2012 which provided for the use of fairly transparent or translucent ballot boxes, was in contravention with section 2 of the Election Act, 2011 which provided for the use of transparent ballot boxes and therefore unconstitutional Elections (General) Regulations 2012 Regulation 61 (2)(a) provides: Every ballot box shall be— (a) fairly transparent or translucent; Held: 1. Regulation 61(2) of the Elections (General) Regulations was inconsistent with section 2 of the Election Act in that the Act had created a certain condition of the ballot boxes but the Regulations had created a different condition. Therefore court ordered IEBC to revisit Regulation 61(2) and rectify the obvious contradiction with Section 2 of the Elections Act and retain the language of the Act that ballot boxes ought to be transparent.   9. High Court has jurisdiction to determine an appeal against an arbitrator's decision Invesco Assurance Company Ltd v Charles Muturi Mwangi, The High Court at Nairobi, Milimani Commercial Courts (Commercial & Admiralty Division) A. Mabeya J¬ February 11, 2013 Civil Practice and Procedure - jurisdiction-the jurisdiction of the High Court to hear appeals against the decisions of arbitrators in employment disputes-The effect of constitutional provisions on the stipulations of the Arbitration Act, No. 4 of 1995-the Arbitration Act, No. 4 of 1995, Section 17(6) and the Constitution of Kenya, 2010, Article 165(5) and Article 162(2). Issue: Whether the High Court has jurisdiction to determine an appeal against an arbitrator's decision, in an employment dispute, pursuant to Section 17 (6) of the Arbitration Act, No. 4 of 1995. Arbitration Act Section 17(6) provides: Where the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party aggrieved by such ruling may apply to the High Court, within 30 days after having received notice of that ruling, to decide the matter. Held: The jurisdiction of the courts falling under Article 162(2) is, inter alia, employment and labour relations. That jurisdiction has now exclusively been reserved for the Industrial Court under Section 12(1) of the Industrial Court Act. In my view, since the Industrial Court under Section 4 of that Act has been operationalized the proper jurisdiction for this matter is in the Industrial court and not the High Court. In this regard, my view is that Section 17(6) of the Arbitration Act should be read to conform with Articles 162 (2) and 165(5) of the Constitution whereby on matters touching on employment and labour relations, appeals are to be preferred to the Industrial Court and not the High Court.