Kenya Law Weekly Issue 033/2014

Held:

1. The jurisdiction of the Court of Appeal was donated under section 3 & 3A of the Appellate Jurisdiction Act (Cap 9) and article 164(3) of the Constitution of Kenya 2010. In exercising that jurisdiction, the Court of Appeal was required to observe the prescription in article 259(1) & 259(3) of the Constitution of Kenya 2010. The prescription was to the effect that the Constitution would be interpreted in a manner that promoted its purpose, values and principles, advances the rule of law, human rights and fundamental freedoms contained in the Bill of Rights and permitted the development of the law and in accordance with the doctrine of interpretation to the effect that the law was always speaking.
2. Article 48 of the Constitution of Kenya 2010 gave open ended access to justice including access to ask the Court of Appeal to re-open, re-hear and re-determine a finally concluded matter. Further, article 20(3)(a)(b) enjoined the Court to interpret the law in such a way as not to withhold a right including a right to access to justice. The Court was also required to administer justice without undue regard to technicalities in article 159(2)(d) of the Constitution.
3. The Court of Appeal could not hide under the umbrella of previous decisions which were anchored on the Appellate Jurisdiction Act (Cap 9) and the repealed Constitution, wherein there was no benefit of the overriding objective principle.
4. The overriding objective principle as applied to the circumstances of the case and the jurisdiction of the Court of Appeal to review a Court of Appeal decision would not cause the Court to be flooded with past litigation as there were sufficient legal safeguards in effect.
5. The Court of Appeal had jurisdiction to review a Court of Appeal decision.
6. The Court of Appeal ruling for which review was being sought, was not decided on the basis of a misapprehension of the requirements of rule 5(2)(b) of the Court of Appeal Rules but was decided on the basis of an interpretation that the relief sought could be granted on grounds of the overarching principle of substantive justice. The Court of Appeal, in that ruling had noted that there was no legal provision allowing for a notice of appeal lodged in a later decision to be used in an application for a stay of execution of an earlier decision.
7. The Court of Appeal had granted orders to forestall the execution of the negative orders of G B M Kariuki, J and had effectively confused a stay of the orders of G B M Kariuki, J and a stay of the orders of Ang'awa, J. Effectively, they had stayed the orders of Ang'awa, J without being possessed of the jurisdiction to do so.
8. There were rules of procedure requiring that before such stay orders were issued, they would have to be an appeal or an intended appeal, which was expressed in the form of a Notice of Appeal. Such a Notice of Appeal would provide jurisdiction to the Court of Appeal to handle the matter. There was no Notice of Appeal in effect with respect to the orders of Ang'awa, J and therefore those orders could not be stayed.
9. Questions of jurisdiction were not technicalities and it was the Notice of Appeal that would donate jurisdiction to the Court of Appeal. The overarching principle of substantive justice, as provided for in article 159 of the Constitution of Kenya 2010, would not allow the Court of Appeal to ignore clear rules of procedure.

Per D K Musinga, J A

10. The Court of Appeal's jurisdiction was fully circumscribed and it could not be enlarged. Without an appeal or a Notice of Appeal, the Court lacked jurisdiction to grant any orders. The power of the Court of Appeal, under rule 5(2)(b) of the Court of Appeal Rules, to order a stay of execution, an injunction or a stay of further proceedings was only exercisable where a notice of appeal had been lodged.
11. As long as there was no appeal on record, the Court's hands were tied and it could not under the guise of administering justice grant any order.
12. The grant of orders without the existence of an appeal or intended appeal would amount to a violation of both article 164(3) of the Constitution of Kenya 2010 and section 3 (1) of the Appellate Jurisdiction Act (Cap 9). Once the Court realized that there was no Notice of Appeal, it ought to have struck out the application.
13. In the circumstances, concerning the question as to whether the Court of Appeal had the jurisdiction to review a Court of Appeal decision, rule 57 (2) of the Court of Appeal Rules was applicable. Under that rule an order made pursuant to an application made to the Court of Appeal could be rescinded by the Court of Appeal.
14. Neither the Appellate Jurisdiction Act (Cap 9) nor the Court of Appeal Rules contained any provision for review of the Court of Appeal's final orders but it has been held on several decisions that Court of Appeal had residual jurisdiction to reopen appeals, albeit in very limited circumstances.
15. Rule 57(2) of the Court of Appeal Rules, in particular, granted the Court of Appeal jurisdiction to vary or rescind an order made by the Court of Appeal pursuant to an application. The three judge bench decision, for which review was being sought, was made pursuant to an application and it could be rescinded.

Application allowed.

Held:

1. Under article 164 of the Constitution, the court had jurisdiction to hear appeals from the High Court and any other court or tribunal as prescribed by an Act of Parliament. Section 17 of the Industrial Court Act and section 3(1) of the Appellate Jurisdiction Act also provided for a right of appeal from the Industrial Court to this court on matters of law only. On the other hand rule 29 of the Court of Appeal Rules empowered the court to reappraise evidence, draw inferences of fact, and take additional evidence. The rule was inconsistent with section 17(2) of the Industrial Court Act which limited the jurisdiction of the Court in hearing appeals from the Industrial Court to matters of law only. However, the inconsistency was resolved by article 164(3) (b) of the Constitution which provided that the jurisdiction of the Court where the right was conferred by an Act of Parliament had to be as prescribed by that particular Act. Therefore rule 29 had to be read together with the section 17(2) of the Industrial Court Act such that the power of the court in re-considering and re- evaluating evidence was limited to matters of law only.
2. Article 23(1) and article 165(3) (b) of the Constitution granted the High Court powers to hear and determine questions involving redress of violations or infringement or threatened violations of fundamental rights and freedoms in the Bill of Rights. Article 23(2) provided for legislation giving original jurisdiction to subordinate courts to hear and determine disputes for enforcement of fundamental rights and freedom and in addition, article 23(3) did not limit jurisdiction in the granting of relief in proceedings for enforcement of fundamental rights to the High Court only, but empowered a court to grant appropriate relief including orders of Judicial Review in the enforcement of rights and fundamental freedoms under the Bill of Rights. Further article 20(3) that placed an obligation on any court in applying a provision of the Bill of Rights to develop the law and to adopt the interpretation that most favoured the enforcement of a right or fundamental freedom. The provisions confirmed that the Constitution did not give exclusive jurisdiction in the enforcement of the Bill of Rights to the High Court, but anticipated the enforcement of the Bill of Rights by other Courts.
3. Although the dispute between the appellant and the respondent was anchored on the employment relationship, the respondent’s claim arose from the alleged violation of her fundamental rights in the disciplinary process. The Industrial Court could determine Industrial and labour relation matters alongside claims of fundamental rights ancillary and incidental to those matters. The respondent’s petition was properly transferred to the Industrial Court by the High Court as the violations alleged arose from the employment relationship. Further it was not the merits of the appellant’s decision, or the merit of the allegations made against the respondent that were in issue, but the procedural fairness, legality of the process and the reasonableness of the appellant’s decision. The questions that needed to be addressed included the nature of the process subject of the respondent’s complaint, the jurisdiction of the appellant in the process, and the application of the constitutional provisions relating to a fair hearing and right to administrative action.
4. The Constitution established the office of the Chief Registrar of the Judiciary but it did not provided any specific provisions for appointment or removal in regard to that office. The appointment could only have been made pursuant to the appellant’s mandate under article 172 (1)(c) of the Constitution that gave the appellant general powers to appoint, investigate and discipline officers of the Judiciary, read together with section 9 of the Judicial Service Act which provided for qualifications for appointment of Chief Registrar of the Judiciary.
5. While article 226 (2) of the Constitution provided that the accounting officer of a national public entity was accountable to the National Assembly for its financial management, that was in actual fact external accountability of the public entity through its accounting officer, for the public funds allocated to it and it was mandatory. It did not however absolve the accounting officer from internal accountability within the public entity, nor did it remove the accounting officer from the authority of the public entity. Such internal accountability was not only prudent but also imperative in facilitating the achievement of the appellant’s objectives as set out in section 3 of the Judicial Service Act that provided wide powers to the appellant and the Judiciary for the management, accountability and facilitation of the efficient, effective and transparent administration of justice.
6. An employer had to of necessity have control over its officers and the operations of its establishment. Therefore as the chief administrator and accounting officer, the respondent had to answer to the Chief Executive and the board, which in was a role played by the Chief Justice as the head of the Judiciary, and the appellant as the oversight body. In the absence of any specific provisions in the Constitution, it had to be inferred that the Constitution contemplated that the appellant was to handle the discipline of the respondent.
7. Article 172(1)(c) of the Constitution as read together with section 12 of the Judicial Service Act, did not provide the disciplinary process of the Chief Registrar of the Judiciary as a function or power of the appellant that was restricted by the Constitution in terms of article 259(11). It could not therefore be a function that was exercisable only on the advice or recommendation or in consultation with another person. In addition the argument for an investigation report, presupposed that the disciplinary proceedings had to relate to financial mismanagement, yet under section 12 of the Judicial Service Act the grounds for removal from office were not restricted to financial mismanagement. Further a report from the external oversight bodies could have been a necessary prerequisite in criminal proceedings, but it was not a prerequisite in the disciplinary function of the appellant and therefore, the appellant had jurisdiction to initiate the disciplinary proceedings against the respondent suomoto without any recommendation or report from any of the external oversight bodies.
8. The disciplinary process was a quasi- judicial process as it involved the appellant in an adjudicatory function that required the appellant to ascertain facts and make a decision determining the respondent’s legal rights in accordance with the Constitution and the Judicial Service Act, both of which provided for fair hearing. The proceedings were anchored on a contractual relationship and the appellant was not empowered to provide penal sanctions. Notwithstanding the seriousness of the allegations made against the respondent, the disciplinary proceedings could not be treated like criminal proceedings, as the nature of the sanctions that could be imposed in the disciplinary proceedings did not include penalties or forfeitures akin to those that could be applied in a criminal trial. Thus the Criminal Procedure Code which was an Act providing for the procedure in criminal cases had absolutely no application in the disciplinary proceedings.
9. The Third Schedule of the Judicial Service Act provided a more elaborate procedure at regulation 23 to 25 for disciplinary proceedings leading to dismissal of judicial officers and staff. Judicial officer was defined under section 2 of the Judicial Service Act to include: a registrar, deputy registrar, magistrate or Kadhi or the presiding officer of any other court or local tribunal as could be established by an Act of Parliament. Judicial staff was defined in the same section as persons employed in the Judiciary but without power to make judicial decisions and included the staff of the Commission. As per section 8(b) of the Judicial Service Act the functions of the Chief Registrar included performing judicial functions. Therefore, the Chief Registrar did not fall within the definition of judicial officer or judicial staff as defined in section 2 of the Judicial Service Act.
10. The position of Chief Registrar was defined under section 2 of the Judicial Service Act as Chief Registrar of the Judiciary. That position had neither been included under section 32 of the Judicial Service Act nor the Third Schedule to that Act which provided general provisions applicable to judicial officer and judicial staff as defined in section 2 of the Judicial Service Act. The definition in section 2 of the Judicial Service Act had to be distinguished from the definition of judicial officer in article 172(1)(c) of the Constitution that included the Chief Registrar of the Judiciary as the definition in the Constitution was applicable to the Constitution only. Unlike the Judicial Service Act, which defined Chief Registrar, the Constitution did not define the Chief Registrar hence the adoption of the definition of Judicial Officer in the Act.
11. Under section 12 of the Judicial Service Act, the issue of drawing of charges did not arise, as all that was required was for the respondent to be informed of the case against her in terms of the specific matters that were subject of the disciplinary proceedings. No particular format was necessary as long as the information given was sufficiently clear for the respondent to understand the allegations and complaints against her. The allegations communicated to the respondent were clear, and the respondent not only understood the case against her, but also specifically responded to the case against her.
12. Article 50(2) of the Constitution provided for a right to a fair trial to an accused person in criminal trials. That sub-article was not applicable in the disciplinary proceedings against the respondent which, were neither criminal proceedings nor quasi-criminal proceedings. The respondent was entitled to a right to a fair hearing as provided under article 50(1) of the Constitution that dealt with any dispute that could be resolved by application of law.
13. It was crucial in determining real or apparent bias, that the first step be the ascertainment of the circumstances upon which the allegation of bias was anchored. The second step was to use the ascertained circumstances to determine objectively the likely conclusion of a fair minded and informed observer, on the presence or absence of reasonable apprehension of bias. Even though the allegations of bias by the respondents were of a serious nature, it was one thing to allege facts and another to establish the facts. The perception of bias could only be based on established facts. The circumstances giving rise to the respondent’s allegations were not established and therefore could not be the basis of the perception of a reasonable man.
14. In regard to the respondent’s request for a public hearing and a right to call witnesses, the proceedings before the appellant being disciplinary proceedings of a quasi-judicial nature, there was no trial per se upon which an automatic right of public hearing could be anchored. Subject to compliance with basic fairness procedures, and taking into account the nature of the complaints and the peculiarities of the matter before it, the appellant was at liberty to determine whether the hearing should be public or private. To that extent that the respondent was in charge of public funds allocated to the Judiciary, and that some of the allegations against her involved misuse and misappropriation of the public funds entrusted to her, the disciplinary process was a matter of public interest and the request for a public hearing to enable the respondent clear her name appeared reasonable. Nevertheless, in light of the fact that the issue of external auditing of the judiciary accounts and misappropriation of public funds was still subject to action by other specialized bodies, a public hearing and the calling of oral evidence could have been pre-emptive and prejudicial to both the respondent and any subsequent investigations.
15. The functions and powers of the appellant as provided under article 172 of the Constitution as read with sections 3 and 12 of the Judicial Service Act, revealed that the appellant exercised powers that were administrative in nature and which involved decision making process that could affect the rights of judges and officers of the Judiciary. In that regard there the right of the respondent was likely to be adversely affected by the exercise of the appellant’s disciplinary powers, and therefore it was necessary for the appellant to comply with article 47 in the exercise of such powers. The element of procedural fairness in article 47 had to be balanced against reasonableness, expediency and efficiency in the decision making process. Of further relevance was whether the respondent was given reasons for the administrative action taken by the appellant.
16. The termination letter given to the respondent read together with section 12 of the Judicial Service Act conveyed the reason that the respondent had been removed on the grounds of misbehavior, incompetence, violation of the prescribed code of conduct for judicial officers, violation of the provisions of Chapter Six of the Constitution, and any other sufficient cause. Section 12 of the Judicial Service Act did not require all the grounds mentioned in that section to be established. Any single ground if sufficiently demonstrated was enough to justify the dismissal of the Chief Registrar of the Judiciary.
17. Rule 84 of the Court of Appeal Rules, required the respondent to have brought an application for striking out the notice within thirty days from the date of service of the record of appeal and the respondent not having brought such an application was caught up with time. Secondly, the failure of service of the notice of appeal had not caused any injustice to the respondent nor was it one that went to jurisdiction. It was the kind of technicality of procedure that article 159(2) (d) of the Constitution enjoined the court not to pay undue regard to.

Per G B M Kariuki

18. The appellant was a body corporate with perpetual succession and a seal by dint of article 253 of the Constitution and it was capable of suing and being sued in its corporate name. Its functions included appointing, receiving complaints against, investigating and removing from office or otherwise disciplining registrars, magistrates, other judicial officers and other staff of the judiciary in the manner prescribed by an Act of Parliament. The Chief Registrar of the Judiciary was one of the registrars referred to in article 172(1) (c) of the constitution.
19. The process of removal was an administrative action within the meaning of article 47 of the Constitution which conferred on every person the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action. The tenets of fair administrative action were spelt out in section 12(2) of the Judicial Service Act and they were that before the Chief Registrar was removed from office pursuant to section 12(1) of the said Act, the Chief Registrar had to be informed in writing of the case against him/her; and be given reasonable time to defend himself/herself against any of the grounds cited for the intended removal.
20. Perusal of section 12 of the Judicial Service Act showed that the appellant was vested, with power to remove the holder of the office of the Chief Registrar from office on any of the grounds set out in the section and that the exercise of that power was of civil nature and In exercising it, criminal law did not come into it. While criminal proceedings were normally mounted to determine the guilt or innocence of a person in relation to specific criminal offence/s the culpability of which resulted in punishment as could be provided in a given statute, disciplinary proceedings were of civil nature between an employer and an employee and where the employee was not vindicated, the outcome was normally dismissal from employment. That did not, of course, stop law enforcement agencies from pursuing criminal proceedings where criminal offences had been committed.
21. In the administrative action leading to the removal of the 1st respondent from office the appellant was enjoined, in public interest, to act fairly and in addition, apply the principles of natural justice to the administrative action. The Judicial Service Act were complied with and the principles of natural justice were adhered to for the simple reason that the 1st respondent was afforded reasonable time to answer the charges. The grounds for her removal were set out with clarity and the 1st respondent responded copiously to them. She was also invited by the appellant to appear before it ostensibly to highlight or amplify her answers. Her appearance before the appellant was not necessary nor could her absence prejudice her rights as she had been heard on her written answers.
22. The Industrial Court, though not entitled to handle Constitutional petitions that were to otherwise go to the High Court Constitutional and Human Rights Division had power to determine constitutional issues arising in and intertwined with labour relations litigation before it. The Industrial Court had jurisdiction to determine the 1st Respondent’s petition alleging wrongful termination of her employment and whether the 1st Respondent’s fundamental rights and freedoms were breached in the process of the termination of the latter’s employment.
23. The invocation of article 50(2)(a)(b) & (c) of the Constitution was misplaced. In the context, it did not apply to the 1st Respondent who faced disciplinary proceedings and removal from office as Chief Registrar of the Judiciary. The Constitution showed that article 50(2) (a),(b) &(c) applied to criminal trials and not to civil litigation or disciplinary proceedings. So too with regard to article 25(c) relating to the constitutional right to fair trial, the trial judge failed to appreciate that the disciplinary proceedings were not a trial and the issue of fairness in the proceedings was addressed by Principles of natural justice and article 47 which enjoined the appellant in the disciplinary proceedings to ensure that the 1st Respondent’s right to administrative action was observed.
24. The alleged bias was pegged to a trove of emails which the 1st respondent had attributed to several of the members of the appellant body. But the genesis of the emails was not established and no evidence was adduced or presented to link any of the members of the appellant to the emails. As the basis for the alleged bias was the trove of emails and their origin and authenticity not having been established, the allegation had to fail.
25. To the extent to which the trial Judge of the Industrial Court dealt with and evaluated the evidence relating to the disciplinary proceedings against the 1st respondent on the basis that they were quasi-criminal and that criminal law principles and procedures applied, he was clearly wrong. While the standard of proof in the disciplinary proceedings was not beyond the balance of probabilities, the test in quasi-criminal proceedings was much higher.
26. Regulation 25 of part iv of the third schedule of the Judicial Service Act and section 32 of the Act applied to discipline and removal of judicial staff and judicial officers other than Judges of the Superior Courts and the Chief Registrar of the Judiciary. The latter’s removal from office was provided in article 172(1) (c) of the Constitution and section 12 of the Judicial Service Act while the former’s removal was provided for in article 168 of the Constitution.
27. The relationship between the appellant and the 1st respondent was that of an employer and an employee and it thus imported the existence of power in the appellant as employer to demand information from the 1st respondent as the employee in discharge of the latter’s duties and that relationship was characterized by a contract of employment and inherent in it was the principle that misbehavior inconsistent with the faithful discharge of the employee’s duties was good cause for dismissal as was also breach of the prescribed code of conduct for judicial officers and disobedience of lawful and reasonable order as these were in tandem with the grounds stipulated in section 12(1) of the Judicial Service Act for removal of the Chief Registrar.

Per P O kiage

28. The application of the Bill of Rights was a duty that fell on all courts while the interpretation of the same fell on a court, tribunal or other authority which had to promote the values that underline an open and democratic society based on human dignity, equality, equity and freedom as well as the spirit, purport and objects of the Bill of Rights. The Constitution did not limit or reserve this task to the High Court. Article 22 of the Constitution which dealt with the enforcement of the Bill of Rights declared every person’s right to institute court proceedings where a right or fundamental rights had been denied, violated, infringed or was threatened. The court at which such person, whether acting on his own behalf or on behalf of a person unable to act on his own behalf or of an association or in the public interest was not specified to be the High Court nor was any court excluded from contemplation.
29. There was nothing in article 165 that was exclusive in character as that article only listed the various aspects of the High Courts’ jurisdiction. It did not by investing the High Court with a Bill of Rights enforcement jurisdiction thereby bar other courts from dealing with the subject any more than the declaration of its unlimited original jurisdiction in criminal and civil matters would bar other courts from dealing with criminal and civil matters. It was not uncommon for allegations of violation of constitutional rights to be made out within the context of and related to the employment relationship and it could be absurd and quite inimical to the self-evident duty of efficient, timely and cost-effective delivery of justice were a complaining party was required to deal with the contractual aspect proper before the Industrial Court and then file separate proceedings at the High Court with regard to the violation of rights.
30. Whereas the office of Chief Registrar of the Judiciary was established by section 161 (2) (c) of the Constitution as the Chief Administrator and Accounting Officer of the Judiciary, that office was subject to the Judicial Service Commission. The Chief Registrar of the Judiciary was the first among registrars, which offices could be established by the Judicial Service Commission under article 161 (3) of the Constitution as could be necessary. The office was established by the Constitution, but the holder, qua administrative chief of the Judiciary, was neither a judge nor a judicial officer. The holder was a member, foremost though he or she was of the judicial staff complement of the Judiciary. The office was not a tenured one under the Constitution and the mode and process of removal of its holder was not governed by the Constitution save as to the need for the application of the appropriate constitutional principles and safeguards that applied to other public officers or employees generally.
31. The disciplinary process set out in part iv of the Third Schedule related to judicial officers and staff of the judiciary other than the Chief Registrar of the Judiciary. The Legislature made two distinct and separate references to the process of discipline and removal by which it made clear that the removal of the Chief Registrar of the Judiciary stood alone and apart from that of other officers and staff of the Judiciary. The Chief Registrar of the Judiciary was dealt with under section 12 while that of all the other staff was under section 32. Therefore it was never open to the appellants to substitute one process for the other. Further the statutory foundation for the detailed provision for the discipline and removal of judicial officers and staff as contained in the third schedule was expressly stated to be Section 32. There was no mention of section 12 as part of that underpinning for the process under the Schedule. And there was no corresponding set of rules or regulations created under section 12 of the Act which meant, that Parliament considered the section sufficient without further elaboration or expansion.
32. A disciplinary process under the control of a committee or panel, being a part only of the Judicial Service Commission, with the full Judicial Service Commission’s role being that of determining punishment only, was appropriate for other judicial officers and staff of the Judiciary as the Third Schedule decrees. It was not, and could not be appropriate for proceedings that could lead to the suspension or removal of the Chief Registrar of the Judiciary. The status and importance of the office of the Chief Registrar of the Judiciary required the participation of the entire Judicial Service Commission at all stages and not merely limited to inflicting punishment. Further, the punishment contemplated under the 3rd Schedule at paragraph 19 was clearly different and inappropriate for the Chief Registrar of the Judiciary for whom only removal or suspension were open for imposition by the full Judicial Service Commission once the stipulated grounds were established
33. It was wrong to seek guidance from the provisions of the Criminal Procedure Code; with regard to the framing of charges and treating the removal proceedings as if they were full-fledged judicial proceedings, of a criminal kind. The trial judge dealt with the matter as would a judge sitting in the Criminal Division of the High Court scrutinizing the record of proceeding of a subordinate court to determine their legality, propriety or correctness. That approach had no place in the employment dispute that was before the Industrial Court.
34. The fact that under article 172 (1) (c), the Judicial Service Commission had power to receive complaints against, investigate and remove Registrars, Magistrates and other Judicial Officers was to dispel any notion that the Chief Registrar of the Judiciary was not accountable to the Judicial Service Commission. Not only was the Chief Registrar of the Judiciary’s accountability to the Chief Justice and the Judicial Service Commission a matter of statutory and constitutional requirement, but such accountability and responsibility was in no way lessened or diluted by any other responsibility to account and answer to other organs, offices or institutions as could be by law required. A denial, defiance, violation or repudiation of such accountability and answerability to the Judicial Service Commission on the part of the Chief Registrar of the Judiciary was therefore an act of insubordination inviting appropriate disciplinary measures.
35. The right to fair hearing as enshrined in article 50 (1) related to legal proceedings in courts and other judicial tribunals. There was nothing in the constitutional text that suggested that the right applied to internal disciplinary hearings whether or not they could lead to dismissal, touching on the conduct of an employee. Employers and their disciplinary panels were not courts or judicial tribunals and it was therefore a huge misdirection to assess their conduct of disciplinary hearings using the judicial paradigm. As to the application of article, 50 (2) of the Constitution, which was the content and essence of the right to a fair trial envisaged in article 25, it related solely to criminal proceedings before a court of law and had absolutely no application in an employee’s disciplinary hearing.
36. The Petition was neither premised nor predicated on the ground of bias. No evidence by way of affidavit under oath was tendered. It being trite that parties were bound by their pleadings, it was improper for the trial Judge to have permitted an issue not properly before him by way of pleadings to intrude upon the decision of the matter to the extent that it did. The thesis that bias was established merely by the seriousness or the stridentness of the allegations could not be accepted. What was required was proof by evidence, the burden being borne by he or she that alleged.

Appeal allowed

The School’s code of regulations stated:

“It is your responsibility to know the uniform guidelines and to dress appropriately. Shirts must be tucked in neatly and trousers should not be allowed to sag. Jewellery is not allowed, but girls may wear one stud on each ear lobe. Boys are not allowed to keep beards and must have short, neat, well groomed hair. Hairstyles for girls should be simple and of natural colour. Hair and braids must be tied back so as to look neat and tidy. Only clear nail vanish is allowed.”

Held:

1. Educational institutions had the right to set rules of conduct for their students. Courts could not ordinarily interfere with those rules and regulations except in very exceptional circumstances. The courts recognized that it was those charged with the responsibility of educating children and nurturing them into adults who respected the rule of law and the rights of others who were best placed to make regulations for students, and enforce them. Only if it was demonstrated that such rules or the enforcement thereof, violated the rights of those subject to them, or the constitution could the courts intervene.
2. The “hair length rule” under attack in the instant case was not discriminatory and was not therefore in breach of article 27 of the Constitution. A code of conduct which applied a conventional standard of appearance was not, of itself, discriminatory.
3. It could not be said that boys were singled out because of their sex for a requirement that they had to cut their hair short. It was because long hair was conventional for girls, but was stylish for boys, that rule required boys to cut their hair short. Therefore, there was nothing discriminatory about the requirement that boys could not wear dreadlocks. The school had a right to insist upon observance of the grooming rule with respect to hair by students enrolled in the school.
4. Article 43 guaranteed everyone the right to education. The constitutional responsibility was placed on the state to achieve progressive realization of that right. However, there was no obligation placed on a private entity such as the respondent school to provide such right. Further, the respondents had not expelled the minor from school but had only insisted on his compliance with the grooming code.
5. Whereas it was accepted that dreadlocks could be part of certain cultures, and as such one could not be compelled to remove them as that would be in violation of their right to enjoy an aspect of their culture; the petitioner had an obligation to demonstrate how wearing of dreadlocks was part of Jamaican culture. The petitioner failed to do that apart from the bare allegation that the minor’s father was of Jamaican descent.

Petition dismissed

The Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules 2009; Rule 9 stated:

1. A certificate awarded to a candidate shall show the name of the candidate, the candidate’s index number, the name of the school in the case of a school candidate, and all subjects taken by the candidate in the examination with the respective codes and the grades obtained in all the subjects taken.
2. All certificates shall be issued to the head teachers and to private candidates through the Provincial Directors of Education or the District Education Officers.
3. The Council may at any time withdraw a certificate for amendment or for any other reasons where it considers it necessary.”

Held:

1. The respondents failed to provide legitimate reasons for denying the applicant’s request for the removal of the gender mark in the KSCE certificate. Records of any changes made could always be kept by KNEC and it could always verify the information when asked to do so. Criminals never clothed their nefarious activities with a semblance of legality by approaching the courts like the applicant had done.
2. The imposition of a candidate’s gender mark was not a requirement of the law under Rule 9 of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules 2009. It could have been done as a tradition to assist in the proper identification of a candidate, but it was not a tradition backed by any rules.
3. Both articles 10 and 28 of the Constitution of Kenya, 2010 provided for the protection of human dignity. Human dignity was that intangible element that made a human being complete. It went to the heart of human identity. Every human had a value. Human dignity could be violated through humiliation, degradation or dehumanization. Human dignity was the cornerstone of other rights enshrined in the constitution.
4. A KCSE certificate was complete without a gender mark. Examinations in Kenya were not administered based on the gender of the candidate. Marks were also not awarded based on gender. Removal of the gender mark could not therefore dilute the quality of the certificate.
5. The applicant had satisfactorily demonstrated that that his situation was unique and that had to be considered when addressing his application. Rule 9(3) of the Kenya National Examinations Council (Kenya Certificate of Secondary Education Examinations) Rules 2009 provided that KNEC could withdraw a certificate for amendment or for any other reason where it considered necessary. It therefore had the legal backing to comply with the applicant’s request. Where it failed to do so, then the court could issue an order of mandamus to compel it to perform its duty.

Order of Mandamus was issued to compel KNEC to recall the applicant’s KSCE certificate issued in the name of Ithibu Andrew Mbugua and replace it with one in the name Audrey Mbugua Ithibu.
The replacement certificate had to be without a gender mark.

Section 11 of the Statutory Instruments Act, 2013 provided:

1) (1) Every Cabinet Secretary responsible for a regulation-making authority shall within seven (7) sitting days after the publication of a statutory instrument, ensure that a copy of the statutory instrument is transmitted to the responsible Clerk for tabling before Parliament.
(2) An explanatory memorandum in the manner prescribed in the Schedule shall be attached to any statutory instrument laid or tabled under subsection (1).
(3) The responsible Clerk shall register or cause to be registered every statutory instrument transmitted to the respective House for tabling or laying under this Part.
(4) If a copy of a statutory instrument that is required to be laid before Parliament is not so laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day for it to be so laid but without prejudice to any act done under the statutory instrument before it became void.

Held:

1. Section 11(4) of the Statutory Instrument Act which clearly provided for the consequences for the failure to lay the instrument before the house within the stipulated period voided the instrument. The section gave no option to the court since it was coached in mandatory terms which ought to be read not as merely directory.
2. Statutory instruments made by Ministers or other competent authorities were valid and effective as soon as they were made and laid before Parliament.
3. The statutory duty to lay an instrument before parliament would not of itself invalidate the instrument though it could amount to a misdemeanor and that even if not complied with, the court could not have held that the regulations and rules were not thereby rendered invalid, the lapse of seven days without the regulation being tabled in Parliament were void and ceased to have any effect. Therefore, such failure to comply with section 11 of the Statutory Instrument Act No.33 of 2012 rendered the instrument in question null and void.
4. Article 93(1) and (2) of the Constitution of Kenya, 2010 established a Parliament consisting of the National Assembly and the Senate, recognising that both had “respective” roles to play. Under article 92(6) of the Constitution of Kenya 2010, the Senate considered, debated and approved Bills concerning counties. Article 109(3) of the Constitution of Kenya 2010, provided for Bills not concerning County government to be considered only in the National Assembly, and passed in accordance with article 122 and the Standing Orders of the National Assembly.
5. In order to give a purposive effect to section 11 of the Statutory Instruments Act, the terms “responsible Clerk” and “respective house” ought to have been read with respect to the house which participated in the enactment of the parent legislation under which the Instrument was enacted or promulgated. In the instant case, the subject Statutory Instrument was enacted under the National Transport and Safety Act. It was not contended that the said Act was an Act which concerned counties and thus it was not necessary that the said Regulations had to be laid before the Senate.
6. Section 11 of the Statutory Instruments Act required that an instrument had to be transmitted but did not provide the means by which such transmission was to be effected. The law did not require a transmittal letter but that the instrument be transmitted, sent or communicated. The lack of a signature on a transmittal letter or even lack of the transmittal letter itself did not render an otherwise transmitted Instrument ineffectual or invalid. In the instant case there was a letter from the Ministry of Transport and Infrastructure addressed to the Speaker of the National Assembly and this was enough to show that the instrument in question was transmitted to the National Assembly which was the concerned house.
7. Regulation 11(e) and (f) of the Regulations subjected persons with disability to differential treatment when it came to mobility vide public transport means and thus unconstitutional, null and void. It therefore violated the constitution and the Convention on the Rights of Person with Disabilities. Through article 2(5) and (6) of the Constitution of Kenya,2010 a window of enforcement and enrichment of the rights and freedoms was created to persons with disabilities through the application of international law and principles, treaties and conventions Kenya had ratified. Article 1 of the Convention on the Rights of Persons with Disabilities defined discrimination as to include; any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on equal basis with others.
8. Article 20(3) of the Constitution of Kenya, 2010 required the court to apply the Bill of Rights to develop the law to the extent that it did not give effect to a right or fundamental freedom; that meant that where the law did not give effect to the right or fundamental freedom the court was enjoined to develop the same. The Constitution under that provision described the Constitution to be aptly of transformative character for good governance.
9. Regulation 15(1) was ultra vires section 24(5) of the Act when it imposed a fine of Ksh. 50,000 for contravention of the regulation when the maximum was Ksh. 20,000 provided under the provision of the Parent Statute. Regulation 5(1) was invalidated by its nature of retroactivity, unreasonability and ultra vires section 23 (3) of the Statutory Instrument Act No.33 of 2012 when it required that compliance with the Regulations ought to have been from the preceding year.

1. Regulation 15(1) of the Legal Notice No. 23 of 2014 was ultra vires the section 24(5) of the Statutory Instruments Act, and hence null and void.
2. All the applicants’/petitioners’ unexpired TLB licenses were valid and any attempt to bar them on the basis of the invalidity thereof was illegal, unlawful and devoid of any legal basis.
3. Regulation 5(1) (f) of Legal Notice No. 23 of 2014 was invalid null and void.
4. Regulations 11(e) and (f) of Legal Notice No. 23 of 2014 was unconstitutional, null and void.
5. The removal of the identification or number plates or licences from the petitioners’/applicants’ motor vehicles in circumstances other than those contemplated under Section 106(4) as read with sections 55 and 56 of Traffic Act and without an order of prohibition was illegal and the Respondents were directed to restore the same.
6. Costs of the applicants’/petitioners’ to be borne by the 1st Respondent.