Kenya Law
Case Updates Issue 13/2014 |
Case Summaries |
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CONSTITUTIONAL LAW |
Guiding Principle in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction
Naomi Wangechi Gitonga & 3 others v Independent Electoral & Boundaries Commission &4 others (IEBC)
Civil Application No 2 of 2014
Supreme Court at Nairobi
March 18, 2014
MK Ibrahim and JB Ojwang, SCJJ
Reported by Andrew Halonyere & Anne Mbuthia
Download the Decision
Brief Facts
The Applicants brought an application before the Supreme Court seeking orders for extension of time within which to file a Notice of Appeal. According to the Applicants, the said Notice of Appeal was for the purpose of appealing against the judgment and orders of the Court of Appeal.
The Applicants argued that they were unable to file a Notice of Appeal in time because of an implementation timeline given by the Court of Appeal of submitting a proper list of candidates to the Independent Electoral Boundaries Commission.
- Whether the Supreme Court had the power to extend the time within which to file a Notice of Appeal at the Court of Appeal, for an intended appeal to the Supreme Court?
- What is the guiding principle when interpreting any law touching on the Supreme Court’s appellate jurisdiction?
Constitutional Law- jurisdiction of the Supreme Court to entertain an appeal from the Court of Appeal - guiding principle in the interpretation of any law touching on the Supreme Court’s appellate jurisdiction – Constitution of Kenya 2010, Article 163(4)(a)
Civil Practice and Procedure-appeal – application to the Supreme Court to file Notice of Appeal out of time - what is the guiding principle when interpreting any law touching on the Supreme Court’s appellate jurisdiction - whether the Supreme Court has the power to extend time within which to file a Notice of Appeal at the Court of Appeal, for an intended appeal to the Supreme Court – Supreme Court Rules, 2012, Rule 53 Read More...
- Under the Constitution, an appellant could proceed from the Court of Appeal to the Supreme Court in well specified circumstances, where the complaint in question had been certified as entailing a matter of general public importance or where such a complaint involved the interpretation or application of the Constitution.
- Although the Court of Appeal had the first opportunity to determine a matter on whether to certify or decline to certify it for further appeal in the Supreme Court, the Supreme Court had the competence to reconsider the decision of the Court of Appeal on such certification or non-certification.
- In the interpretation of any law touching on the Supreme Court’s appellate jurisdiction, the guiding principle was that the chain of Courts in the constitutional set up, running up to the Court of Appeal, had the professional competence and proper safety designs to resolve all matters turning on the technical complexity of the law, and only cardinal issues of law, or of jurisprudential moment would deserve the further input of the Supreme Court.
- Although the Applicants perceived their grievance as entailing the application of the Constitution and, therefore, as a matter in respect of which an appeal to the Supreme Court lay by virtue of Article 163(4)(a) of the Constitution, the true question before the Court was the failure to comply with time limits before the Court of Appeal,which was a matter of procedural arrangement which, but for good cause, was squarely within the jurisdiction of the Court of Appeal.
- A court order based on foundations of evidence, submissions and judicial reasoning bore the force of law which lay on a higher plane of authority than the informal regime of a political party’s constitution. Besides, the case, mounted on such reasoning, was marked by a significant degree of remoteness from the vital commitment established for the Supreme Court under Article 163(4) of the Constitution. Such was not a basis for the Supreme Court to assume jurisdiction.
- The Supreme Court, as the ultimate judicial agency, had to exercise its powers strictly within the jurisdictional limits prescribed, and it had to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals.
Application disallowed
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CIVIL PRACTICE AND PROCEDURE |
Koinange Investments & Development Ltd V Robert Nelson Ngethe
Application No. 4 Of 2013
Supreme Court of Kenya
Tunoi, Ibrahim, Ojwang, Wanjala & Njoki Ndungu SCJJ
March 13, 2014
Reported by Njeri Githang’a Kamau
Brief Facts
The application before the court was for review of the Court of Appeal’s ruling denying the applicant leave to appeal to the Supreme Court. The application was brought under Article 165(5) of the Constitution and Section 15 (1) of the Supreme Court Act. The Court of Appeal in a ruling dismissing the application for leave to appeal observed that the sale-contract nature of the Applicant’s claim as well as the procedural aspects that characterized the default judgment at the High Court were not matters that could be categorized as being of public importance.
Counsel for the applicant argued that service of Court documents was a critical aspect of the litigation process, bearing significantly on all litigants in the country. It was submitted that it was a matter involving the proper conduct of administration of justice when a specific court order regarding personal service was overlooked by the judges and deemed as postal service, in spite of absence of evidential proof of a search from the Companies Registry.
Issues:
- Whether service of court documents was a “matter of general public importance” to be certified to go on appeal?
- Whether there was any uncertainty in the law of service of process; or it was an issue of administration of justice bearing upon public interest?
- Whether the ‘interest of justice’ was a relevant factor in considering the peculiarities of the instant matter in relation to “general public importance”
Civil Practice and Procedure-review –application for review of the decision of the Court of Appeal denying the applicant leave to appeal to the Supreme Court with respect to a matter of general public importance -what amounts to a matter of public importance – criteria to be considered – whether service of court documents was a “matter of general public importance” to be certified to go on appeal-whether there was any uncertainty in the law of service of process; or it was an issue of administration of justice bearing upon public interest- Constitution of Kenya, 2010, article 165(5) - Supreme Court Act, section 15 (1) Read More...
- The jurisdiction of the Court, especially on matters predicated on article 163(4) (b) of the Constitution, which relate to “a matter of general public importance”, was well settled. Two factors must be borne in mind by an Applicant who wished to move the Court under article 163(4) (b) of the Constitution. One, to move the Court under the provision, an Applicant had to first seek leave at the Court of Appeal, consequent to which a party aggrieved by denial of permission or certification may exercise a right, under article 163(5), to seek a review, affirmation or overturning of the decision (Sum Model Industries Limited v Industrial and Commercial Development Corporation, Sup. Ct. Civ. Appl. No. 1 of 2011).
- The right to seek such a review is not a carte blanche: for a question or issue of law or fact, however framed, must be a substantial one, transcending the concerned parties, and satisfying or falling within the category of the Hermanus Steyn principles on matters of general public importance. These principles were defined by both the majority and minority opinions, and restated, in the case of Malcom Bell v Daniel arap Moi & Another Sup. Ct. Application No. 1 of 2013.
- Service of Court documents was an important component in the administration of justice, and was a common aspect of litigation that confronts courts of all cadres, in the normal business schedule. Service as a procedural function was regulated by law and other relevant instruments.
- The onus of proving that a law bears uncertainty or lacunae impacting adversely on the public interest falls on the party who seeks to convince the Court that such was the case.
- A matter of general public importance warranting the exercise of appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad-based, transcending the litigation-interest of the parties, and bearing upon the public interest. As the categories constituting the public interest are not closed, the burden falls on the intending appellant to demonstrate that the matter in question carries specific elements of real public interest and concern.
- Though service was an obvious procedural aspect of every Court-oriented action, the matter was regulated by law. Service was an issue of law that affected a broad spectrum of individuals in commercial and domestic relations. As the law on service of process on corporations stood, there was no lacuna calling for clarification, for the good of the public at large.
- It was not the object of the Court to intervene in the jurisdictional domains of other judicial organs a principle already stated inPeter Ngoge v Ole Kaparo Sup. Ct. Petition No. 2 of 2012 [2012] eKLR
- The Supreme Court, as the ultimate judicial agency ought to exercise its powers strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous exercise of the respective jurisdictions of the other Courts and tribunals.
- For a matter to be categorized as one of general public importance, its impact and consequences must raise substantial and broad-based questions of law or fact that affect the public interest. It is not sufficient to merely allege that a provision of a law that touches on the administration of justice, ought to be categorized as “a matter of general public importance”. It must be a substantial question of law, if a party is to invoke the input of the Supreme Court.
- The issue of service was a matter that Courts could competently deal with as an ordinary component of administration of justice, as long as there was no uncertainty or ambiguity occasioned by some law, or incongruent Court decisions. It falls ordinarily, outside the fine line of “matter of general public importance”, since “as a matter of principle and of judicial policy, the appellate jurisdiction of the Supreme Court is not to be invoked save in accordance with the terms of the Constitution and the law, and not merely for the purpose of rectifying errors with regard to matters of settled law” (Malcom Bell v Moi).
- Courts are the wellsprings of justice, the bastion to which recourse in law is sought. Whenever a party seeks to vindicate infringed rights at any tier of Courts, the duty to do justice is always the rule of thumb. It was also a cardinal principle that flowed from the Constitution, and which demanded that the ends of justice be met when any Court of justice in the Republic of Kenya has been properly seized of a pertinent question. “Interest of justice” cannot therefore be an isolated criterion, on the basis of which the Court may be urged to allow an appeal as a matter of general public importance.
- The Applicant had failed to demonstrate that the matter was of general public importance, in the terms of the Hermanus Steyn principles. The Application failed to disclose any proper basis upon which an appeal may be preferred from the Court of Appeal to the Supreme Court under Article 163(5) of the Constitution.
Application for review of the Court of Appeal’s ruling dismissed.
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CIVIL PROCEDURE & PRACTICE |
Principles that would guide the Supreme Court in awarding costs
Jasbir Singh Rai& 3 others v Tarlochan Singh Rai & 4 others
Petition No. 4 of 2012
The Supreme Court of Kenya
W.M.Mutunga, K.H.Rawal, P.K. Tunoi, M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala, SJJ
March 4, 2014
Reported by Lynette A. Jakakimba& Valarie Adhiambo
Download the Decision
Brief Facts:
The applicants were the respondents in petition no 4 of 2012 before the Supreme Court which was disallowed for lack of jurisdiction by the Supreme Court. This application sought to have the petition struck out as it substratum had been determined by the court and also to determine a question on costs.
- What were the principles that could guide the Supreme Court in awarding costs.
- Whether failure by the respondents to take other paths of relief as had been directed by the Court of Appeal had put them at default.
Civil Procedure & Practice- costs-who bears costs- what are the principles that guides the Supreme Court in determining who to bear the costs – Supreme Court Act no 7 of 2o11,section 21(2)-Supreme Court Rules rule3(5)- Civil Procedure Act(Cap 21) section 27(1)Read More...
Supreme Court Act
Section 21(2)
“In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs as it thinks fit to award.”
Supreme Court Rules
Rule3 (5)
“Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders or give such directions as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
Civil Procedure Act
Section 27(1)
“Subject to such conditions and limitations’ as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order
Held:
- Rule 3(5) of the Supreme Court Rules and section 27(1) of the Civil Procedure Act was clear and Supreme Court like other superior courts had an open ended application of discretion to ensure ends of justice.
- The basic principle on attribution of costs that cost follow event was a well-recognized principle but could not be used to penalize the losing party rather it was for compensating the successful party for trouble taken in prosecuting or defending the suit
- The vital factors in settling the preference was the discretion of the court accommodating the special circumstances of the case and being guided by ends of justice. Further claims of public interest, motivations and conduct of parties during litigation process were also relevant factors.
- Though the petitioners could have adhered to directions for arbitration while they were before the Court of Appeal, their rights to judicial resolution of conflict were unaffected; and consequently, they had quite properly moved the Supreme Court.
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ELECTION LAW |
Dickson MwendaGithinji v Gatirau Peter Munya & 2 others
Civil Appeal No.38 of 2013
Court of Appeal of Kenya at Nyeri
A Visram, J Mohamed & J Otieno - Odek, JJA
March12, 2014
Reported by Teddy Musiga
Issues:
- Whether or not the gubernatorial election for Meru County was conducted substantially in accordance with the Constitution and the relevant electoral laws.
- Whether electoral irregularities and malpractices materially affect the results of the election so as to annul an election.
- Whether the court of appeal could hear an appeal arising from an interlocutory ruling by the Election court.
Election Law – Election petition – nullifying election petitions – grounds for nullifying election petitions – who bears the degree and standard of proof in nullifying election petitions –Elections Act, section 83
Election Law – Election petition – vote tallying – scrutiny and recount of votes – allegations of discrepancies in certain polling stations – Elections Act, section 82
Evidence Law - burden of proof – standard of proof in electoral matters – where burden and standard of proof lies – circumstances when the burden shifts.Read More...
- Irregularities in elections referred to mistakes and serious administrative errors in the conduct of elections. In determining whether irregularity affected the result of an election, one had to look at the number by which irregular votes exceeded the plurality of the winning candidate.
- The margin between the winning candidate and losing candidate was a factor in determining whether to annul an election; an important consideration was whether the number of the impugned votes was sufficient to cast doubt on the true winner of the election or whether the irregularities were such as to call into question the integrity of the electoral process. If a court was satisfied that, because of the irregularities, the winner was in doubt, it would be unreasonable for the court not to annul the election. Before annulling an election based on irregularity, the magic number test had to be considered. That meant that the contested or irregular votes cast when set aside had to exceed the margin between the winner and runner up.
- “Materially affecting the result of the election” was interpreted to mean that the final aggregate figure arising from the tallying process had to be affected arithmetically to the extent that the margin between the returned candidate and the runner up was not only narrowed but significantly eliminated to the point that a reasonable doubt was raised as to whether the returned candidate garnered votes that exceeded the runner up. If after an arithmetical calculation had been made and the returned candidate still maintained a lead over his nearest rival, the results of the election had not been materially affected. The purpose of the arithmetical calculation was to remove any possibility that any difference in votes between returned candidate and the nearest rival could be wiped out and the result of the election being materially affected.
- Article 164(3) of the Constitution of Kenya, 2010 vested the court of Appeal with jurisdiction to hear appeals from the High court. That jurisdiction did not limit the jurisdiction of the court of appeal from hearing appeals from interlocutory orders of the High court. Likewise, section 80(3) of the Elections Act, was not an ouster clause that ousted the jurisdiction of the court of appeal in relation to interlocutory orders of the High court made in an election petition. Further, that appeals lay from all decisions of the High court to the court of appeal unless otherwise expressly provided by law. Issues arising out of the interlocutory application determined by the High court were issues of law. Therefore the court of appeal had jurisdiction to consider appeals lodged by the appellant in relation to the interlocutory ruling pertaining to the orders of scrutiny and recount.
- The evidential burden to prove the total number of registered voters was on the IEBC and not the petitioner. The constitutional and statutory duty to register and prepare the voters register was on the IEBC and that duty entailed generating the total number of registered voters in the country in general and in each polling station in particular. That duty could not be confused with the legal burden to prove the allegations raised in the petition. The legal burden to prove allegations raised in an election petition rests with the petitioner but the evidentiary burden to provide the total number of registered voters was a constitutional and statutory obligation on the IEBC. That constitutional and statutory duty was constant and could not shift since the IEBC was the statutory custodian of the voter register. Therefore the High court erred in placing the burden to prove the total number of registered voters on the appellant/ petitioner.
- Issues of irregularity and malpractices cited by the appellant were issues of fact. However, if the trial judge erred in the interpretation of facts as tendered in evidence, then it became a point of law. An appellate court could not normally interfere with a finding of fact by the trial court unless such finding was based on no evidence or on a misapprehension of the evidence or the judge was shown demonstrably to have acted on wrong principles in reaching the finding (Mwangi v Wambugu (1984) KLR 453)
- If one was not entitled to be at a polling station or tallying center, then he/she could not claim to have been unlawfully excluded thereat. The failure of the appellant and his witnesses to prove that they were authorized agents of any political party and failure to tender evidence that they had badges issued by the IEBC was fatal to the allegation that authorized agents were excluded from the polling station and tallying center.
- The appellant failed to point out and prove that an irregularity of law occurred from the failure to sign form 35s and 36s and whether that irregularity materially affected the result.
- It was not mandatory to compare Forms 34 (relating to presidential elections) and Forms 36 (relating to gubernatorial elections) but once a discrepancy between the two had been brought to the trial court’s attention then it was incumbent for the court to consider the issue.
- Whereas human error could be an excuse for tallying mistakes, a party that raised that excuse had to prove the existence of human error. Human error was not a blanket excuse that justified and excused any arithmetic, collating or tallying mistakes. Human error was neither an excuse for all errors or mistakes in transposition nor was it an excuse for failure to have statutory forms duly signed by authorized persons. Simply stating that human error was responsible for the mistakes was not proof of existence of the error. The burden to prove the existence of human error was excusable if it was a single, isolated and random occurrence. When the mistakes or errors were multiple and persistent such mistakes ceased to human errors and pointed towards an inefficient, negligent, careless or even deliberate occurrence of the errors and that affected the credibility of the declared results. In the instant case, the mistakes on record did not reveal a pattern in favour of any one candidate but showed that there were multiple errors and mistakes that went towards the overall integrity and credibility of the figures entered for each candidate. Due to the multiplicity of the mistakes, there were indications that human error was not a plausible explanation for all the irregularities identified. It could not be said that human error was the cause of the mistakes with certainty because there was no evidence. Therefore, the 2nd(IEBC) and 3rd (County Returning officer) respondents raised human error as an excuse but failed to discharge the burden to prove the existence.
- The High court erred in law in placing a restrictive and technical interpretation to Rule 33(4) of the Elections (Parliamentary and County) Petition Rules in stating that scrutiny and recount of votes could not be done in constituencies. For electoral purposes, a constituency was made up of polling stations within the constituency. If the trial court had adopted a purposive interpretation of Rule 33(4), it would be apparent that if a petitioner sought scrutiny and recount of votes in a constituency, the purposive approach was that he sought scrutiny and recount of votes in all the polling stations in the constituency. Under section 82 of the Elections Act, the mandate of the court was to order scrutiny of votes and not scrutiny of polling stations. It did that without imposing a restriction that scrutiny was confined to polling stations. A regulation could not add a limitation to a statutory provision when no such limitation existed in the enabling statute.
- Rule 9(3)(b) of the Election Petition Rules provided that an election petition had to be supported by an affidavit of the petitioner containing the grounds upon which the relief was sought. The plain reading of that rule was that an affidavit in support of the petition was a mandatory requirement. That meant that by virtue of the express provision of the rule, such an affidavit was admissible. Admissibility was a question of law and in the instant case, Rule 9(3)(b) of the Election Petition Rules made the affidavit in support of a petition to be admissible.
- The trial judge could not properly make a determination on the weight to be given to the affidavits in relation to the alleged irregularities and malpractices after striking those exhibits/affidavits from the record and denying him the opportunity to test in judicial proceedings the veracity of the allegations made. The allegations were substantial enough that the truth thereof could not rationally be established without a proper inquiry to resolve the issue one way or the other. The appellant’s evidence whatever their weight was contained in the exhibits/affidavits attached. In striking out those exhibits the trial judge breached rules of natural justice and fair hearing in that no person could be condemned unheard. The failure to exercise the duty to judiciously and diligently enquire into the allegations raised in the exhibits made the trial judge err as he excluded items of evidence that would have enabled him to judiciously arrive at a decision after giving all parties an opportunity to tender any evidence that they wished. Guided by Rule 9(3)(b) of the Election Petition Rules and noting that the said exhibits/ annexures were expressly referred to in the body of the petition lodged by the appellant, made those annexures’ to be part of the petition and the trial judge therefore erred in finding that they were not part of pleadings in the petition. The trial judge’s conclusion was made per in curium.
- When a petition was for relief of scrutiny and recount on the allegation of miscount, all that the petitioner had to offer was prima facie proof of errors in counting and if errors in counting were prima facie established a recount could be ordered. If proof was furnished of some errors in respect of some ballot papers, scrutiny and recount could not be limited to those ballot papers only. Consequently, the trial judge erred in not ordering scrutiny and recount in all the polling stations in the four identified constituencies.
- Post declaration non-compliance with electoral rules for the proper custody of the election material by the election staff was not per se one of the grounds for setting aside the election of a returned candidate. However, non-compliance with the electoral rules as to the proper custody of electoral material could be evidence that a pre-declaration irregularity did in fact take place. When the ballot boxes and their seals had been tampered with or there were fewer votes in the ballot boxes, that could be evidence of a pre-declaration irregularity.
- Failure by the 2nd and 3rd respondents to transmit the results of the Meru gubernatorial elections electronically was not fatal and did not affect the outcome of the election results. As regards, the failure to display the results on the door of the polling stations, the trial judge was right that the appellant failed to lead evidence to show in which polling stations there was failure to display the results.
- Rule 80 of the Election General Regulations Rules did not establish a rule that barred any person from questioning the declared results. If that were so, then there would be no need for section 82 of the Elections Act that made provision for scrutiny of ballots rule 80 of the Election General Regulations Rules did not establish a principle that if no complaint was made at a polling station then a candidate or any other person had to be deemed to have waived the right to scrutiny and a recount or the right to challenge the electoral results.
- In the conduct of elections, there was no rule that if the announced results were not questioned at the polling station, then the declared results were final and inclusive for all intents and purposes. The doctrine of estoppel or waiver was inapplicable in electoral law. The constitutional and statutory obligation on the IEBC to conduct free, fair, transparent, accountable and verifiable elections could not be deemed to be waived simply because no complaint was lodged at the polling stations. It was a misdirection in law to hold that if no recount was requested at a polling station and no complaint was lodged, then the declared results was deemed accurate and valid.
- The responsibility to tally the results for the Meru Gubernatorial elections lay with the County Returning Officer and the errors identified in the scrutiny and recount report as well as the errors disclosed in the testimony of DW10 squarely lay on the shoulders of the County Returning officer (3rd respondent). Therefore the trial judge erred in not considering the legal effect of the identified errors on the tallying process. The errors identified led to the conclusion that in law, the tallying process was not accurate, efficient and verifiable.
- The validity of elections was not dependent on the results alone but as a factor of the entire tallying process. It was evident that in some polling stations, the 3rd respondent accepted and tallied results which did not conform to the law. That meant that the total votes cast were not verifiable from the evidence on record. The identified irregularities led to quantitatively conclude that the candidate returned and declared as the winner did not garner a majority of the votes cast. Applying the quantitative and qualitative tests, the results of the Meru gebernatorial elections as declared did not conform to the principles in article 81(e) (iv)& (v) and article 86 of the Constitution of Kenya, 2010.
- Whereas the election itself was conducted substantially in accordance with the constitutional requirements, errors and irregularities became manifest at the tallying and declaration of results. Therefore the declared results were not accurate, verifiable and accountable. The tallying process was not efficient and accurate.
The 1st respondent (Gatirau Peter Munya) was not validly elected, announced and declared as winner of the Meru gubernatorial elections.
Certificate issue to IEBC (2nd respondent) under section 86(1) of the Elections Act certifying the determination of the court that the declaration of the 1st respondent as the Governor of Meru in the March, 4th 2013 general elections was null and void.
The respondent to notify the relevant speaker to issue notifications as necessary.
The 2nd respondent to bear the costs of the petitioner at the High court and the costs of the appellant before the instant court.
The 2nd respondent to also bear the costs of the 1st respondent before the High court
The 1st respondent to bear his own costs in the appeal.
All costs to be verified and taxed by the Deputy Registrar.
Costs in the High court not to exceed Ksh. 2.5 Million while the costs at the Court of appeal not to exceed Ksh. 1.5Million.
High court orders directing the arrest and prosecution of PW4 (Stephen Mugambi) and PW 6 (Christine Kananu George) substituted with a recommendation to the Director of Public Prosecution to investigate whether an election offence was committed by the said PW4 and PW6.
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CRIMINAL LAW |
Dickson Mwangi Munene & another v Republic
Criminal Appeal No 314 of 2011
Court of Appeal at Nairobi
R N Nambuye, D K Maraga & J Mohammed, JJ. A
February 28, 2014
Reported by Beryl A Ikamari
Brief facts
On Friday afternoon, on January 23, 2009, the two appellants who were friends met at the 2nd appellant's home and drunk alcohol at the home. Thereafter they proceeded to various clubs and bars within Nairobi area for more drinking. They had drunk for 14 hours when the events leading up to the killing of the deceased person began at Crooked Q Club.
It was alleged that the deceased insulted a person called Tish and also insulted a friend to the appellants, known as Sagini, asking him whether he was gay. It was said that the remark made against Sagini caused a scuffle between the deceased person and his friends on one part and Sagini and his friends, who included the appellants, on the other part. It was claimed that in the course of the scuffle, the deceased person also insulted the 2nd appellant, while asking who the 2nd appellant was.
The bouncers at Crooked Q Club attempted to separate the two groups involved in the scuffle. When the 2nd appellant was restrained he called out to the 1st appellant in anger. Meanwhile, the deceased was driven off the club by his brother. In response, 1st appellant pursued the deceased person. The 1st appellant, an armed police officer, caught up with the deceased near Sarit Centre. In an attempted arrest, he threw handcuffs at the deceased. The deceased did not agree to take up the handcuffs. There was a struggle in which gunshots were heard and the deceased was fatally injured.
At the High Court hearing, in a judgment delivered on October 5, 2011, by Justice Warsame, the appellants were both convicted and sentenced to death. The appellants lodged an appeal against the judgment at the Court of Appeal.
Issues:
- Whether the weapon, a gun, used to kill the deceased was identified.
- Whether the person who killed the deceased was identified.
- Whether the 1st appellant had the intention, malice aforethought, necessary to convict him of the offence of murder.
- Whether there was a common intention, between the two appellants, to kill or to cause grievous harm to the deceased.
Criminal Law-murder-intention to commit murder (malice aforethought)-whether firing gunshots at a person on the stomach in an alleged attempt to carry on an arrest was sufficient to constitute an intention to murder-Penal Code (Cap 63); section 206.
Criminal Law-joint offenders-common intention-the circumstances in which the court would find that an accused person had a common intention to commit an offence jointly with other persons-Penal Code (Cap 63); section 21. Read More...
- There were various serial numbers given to identify the gun which was used to shoot the deceased and such inconsistencies created confusion. However, the evidence of the 1st appellant was that it was the deceased who grabbed his gun, which was insecurely fastened on his waist and fired it. Therefore, the evidence availed was sufficient to identify the weapon used as the gun which the 1st appellant had in his possession.
- There was also confusion concerning the rounds of ammunition used. The Arms Movement Book showed that the 1st appellant was issued with 13 rounds of ammunition but he surrendered 11 rounds of ammunition and 2 empty cartridges were recovered from the scene of crime. Further, the pathologist's evidence was that 3 shots were fired at the deceased.
- The figures on the rounds of ammunition and the shots fired did not tarry, but such differences in figures would not negate the finding that it was the 1st appellant's gun that was used to fire the fatal shots at the deceased.
- When the 1st appellant attempted to handcuff the deceased, there was a struggle between them. However, for two reasons, the deceased could not have shot himself, namely;
- The 1st appellant, at the investigation stage had not alleged that any other person gained possession of his gun, at the material time. Therefore, the gun was not dusted for fingerprints by the investigating officers.
- The pathologist's evidence was that the accused had been shot at close range from a higher level in front. There was no evidence that the deceased and the appellant had a struggle on the ground (floor). The struggle ensued while they were both standing. If the deceased had grabbed the gun and accidentally shot himself, the trajectory of the gunshots would have been horizontal and not vertical and not downwards as the pathologist had found.
- It was the 1st appellant that shot the deceased.
- The mens rea, malice aforethought, for murder, as recognized in section 206 of the Penal Code (Cap 63) included an intention to cause death or to do grievous harm to any person, whether that person was actually killed or not. If the 1st appellant intended to subdue the deceased, he would have aimed to shoot him on the legs or arms. By shooting the deceased on the stomach the 1st appellant either intended to kill the deceased or recklessly shot him, while being indifferent to the consequences of the shooting.
- The circumstances were such that the 1st appellant had the malice aforethought necessary to convict him of the offence of murder.
- As provided in section 21 of the Penal Code (Cap 63), for a common intention to be deemed to have existed, it was necessary to show that the accused person: -
- had the criminal intention to commit the offence charged, jointly with others;
- where the criminal act committed was outside the common purpose pursued, such an act was a natural or foreseeable consequence of pursuing the common purpose; and,
- the accused was aware of the common intention pursued and the nature of the act to be carried on, when he or she agreed to participate in the joint criminal act.
- There was some confrontation between the deceased person and the 2nd appellant outside the club. The confrontation arose from an insult made by the deceased, questioning whether one of the appellants' friends was gay. It was not clear whether the confrontation included physical violence in the form of hitting or kicking, either by the deceased person or the 2nd appellant. It was the 2nd appellant who called on the 1st appellant when he had been restrained in order to end the scuffle.
- The link between the 2nd appellant and the 1st appellant's act of shooting the deceased was extremely tenuous.
- The evidence availed did not reveal a common intention to shoot and kill the deceased. The 2nd appellant could not be liable for the 1st appellant's actions.
The 1st appellant's appeal was dismissed & the 2nd appellant's appeal was allowed.
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CONSTITUTION LAW |
Basil Criticos V Independent Electoral and Boundaries Commission &Others
Civil Application No. Msa 33 of 2013
Court of Appeal at Mombasa
H.M Okwengu J.
February 21, 2014
Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva
Brief facts:
The Applicant, one of the unsuccessful contestants for the position of a Member of the National Assembly for Taveta Constituency during the 2013 national elections, brought an application before the Court of Appeal seeking for orders for extension of time for filing of an appeal against the judgment of the Election Petition court delivered on 27th September 2013.
The Applicant’s counsel submitted that the Constitution did not impose any time limit on the Court of Appeal for determination of an appeal arising out of an Election Petition and that Section 85 (A) of the Elections Act, 2011 which limited time for filing appeals was ultra vires Article 159 and 164 of the Constitution of Kenya, 2010.The Applicant also asserted that the right of access to court granted by the Constitution of Kenya, 2010 and the jurisdiction of Court of Appeal to hear parties couldn’t be taken away by time limit ouster clauses.
Issues:
- Whether the Court of Appeal had jurisdiction to hear appeals arising from Election Petitions.
- Whether Section 85 (A) of the Elections Act, 2011 which limited time for filing appeals was ultra vires Articles 159 on principles guiding exercise of judicial authority and 164 of the Constitution of Kenya , 2010 on Court of Appeal jurisdiction.
- What was the effect of the Court of Appeal rules being inconsistent with the provisions of the Elections Act, 2011 with regard to period within which an appeal ought to have been filed ?
- Whether the election law allowed for extension of time for filing an appeal arising from a High Court determination on an election petition.
Constitution Law-Judicial authority-Principles guiding courts in exercise of judicial authority-Timely settlement of election disputes--Whether section 85 (A) of the Elections Act, 2011 was ultra vires - Articles 159 and 164 of the Constitution of Kenya, 2010.
Jurisdiction- Appellate Jurisdiction to hear appeals from Election Petitions-Whether the Court of Appeal had powers to hear appeals on election disputes- Section 85 of the Elections Act, 2011 Read More...
- The Court of Appeal had jurisdiction to hear election petitions by virtue of Section 85 of the Elections Act, 2011.
- Section 85 (A) of the Elections Act,2011 was not ultra vires Article 159 and 164 of Constitution of Kenya,2010 but played a complimentary role in providing for right of appeal in election disputes. It did s not take away the authority of the court to hear appeals under Article 164 of the Constitution of Kenya, 2010.
- The right to hear appeals from election petitions was tied to the timeline provided in the Elections Act, 2011.
- The right to hear appeals was balanced with the public interest of expeditious disposal of electoral disputes because it affected the public’s right of representation.
- The 30 days period for filing appeals in election disputes provided in the Elections Act prevailed over the period of 60 days provided in the Court of Appeal rules, 2010.
- There was no provision for extension of time for filing an appeal in regard to the time limited by the Elections Act, 2011.
- The court could not exercise its inherent jurisdiction or apply the oxygen principle to provide for extension of time for filing an appeal arising out of an election petition and it had a duty to ensure timely settlement of disputes
- Delay in filing the appeal was unreasonable and ought to have been explained.
Motion rejected. |
EMPLOYMENT LAW |
Stephen Miheso v Kaimosi tea estate
In the Industrial Court of Kenya at Nakuru
Cause no 346 of 2013
B Ongaya J
March 14, 2014
Reported by Teddy Musiga and Getrude Serem
Brief facts:
The claimant was employed as a tea picker at the respondents company. He was illiterate as he could not read or write hence he authenticated his documents by a thumb print. In October 2012 the claimant, while at work in the farm, was given a letter dated 23.10.2012 by the supervisor. It was only after he thumb printed the said letter that his colleagues told him that he had signed his resignation letter. He did not know or understand the meaning of the letter. Subsequently on the 29.10.2012 he received a letter titled notice of resignation, it was from the field manager accepting his resignation.
Issues:
- Whether the termination of employment was unfair
- Whether the claimant was to be treated as disabled because he was illiterate under sec 2 of the employment act 2007
- Whether the claimant was entitled to a claim of gratuity
Employment law-unfair termination of employment-whether illiteracy amounts to a disability sec 2 of the Employment act,2007 -whether an illiterate employee was allowed freedom from harassment due to his disability as an illiterate sec 5(3) of the Employment act, 2007. Read More...
Section 5(3) a of the Employment act, 2007
(3) No employer shall discriminate directly or indirectly, against an employee nor prospective employee or harass an employee or prospective employee—
(a) on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status;
- There was no doubt that the claimant’s termination was triggered by the alleged letter of resignation purportedly authored by the claimant and expressing the claimant’s alleged request to resign
- Section 2 of the Employment Act, 2007 defined “disability” to mean a physical, sensory, mental or other impairment, including any visual, hearing, learning, or physical incapability, which impacts adversely on a person’s social and economic participation. The court held that a person with illiteracy like the claimant was a person with disability and was entitled the rights of persons with disabilities as protected in the constitution and the relevant statutes.
- It further held that under section 5 (3) (a) of the Employment Act, 2007, the claimant was entitled to freedom from harassment by the respondent on account of the disability of illiteracy and in particular, under the section the claimant was entitled to freedom from harassment in respect of termination of employment or other matters arising out of the employment relationship.
- The claimant being a person with illiteracy, he was entitled to other appropriate means of communication (other than writing and reading) as provided for in Article 54(1) (d) of the Constitution. In particular, the claimant was entitled to verbal explanations of applicable terms and conditions of service in a language that the claimant understood in view of the employment relationship. This is under the employment act in section 9(3) and (4).
- The court arrived at that finding because the respondent had initiated the idea of resignation and it ought to have been an offer under which the claimant ought to have been invited to accept or reject. The opinion of the court was that it was fraudulent for the respondent to hatch a request to resign on the part of the claimant without the claimant harboring any such intention and in which case, the court’s view is that the respondent ought to have made an offer for resignation and in good faith invited the claimant to accept or reject it but which never happened in the case.
- Thus, the court found that there was no valid agreement to end the employment relationship by resignation as was submitted and suggested for the respondent. Further, the respondent was required to cause the contents of the alleged letter to be explained to the claimant in a language that the claimant understood. In the circumstances, the court ffound that the respondent failed to discharge the crucial statutory obligations imposed upon the respondent as an employer and in protection of the claimant as provided for in the quoted section.
- The court found that acceptance of the alleged claimant’s letter requesting to resign was not a valid reason for the termination because at the time of termination the respondent’s field manager and the General Manager failed to confirm that the claimant had authored the alleged request to resign and the respondent was reckless in failing to address the claimant’s ensuing grievance.
- The court further found that the claimant was entitled to the declaration that the termination was unlawful and unfair. In the circumstances, the court awards the claimant the maximum compensation of 12 months last gross monthly salary under section 49(1) (c) of the Employment Act, 2007 at the rate of Kshs.10,362.00 making Kshs.124, 344.00.
- The court found that there was no dispute between the parties that the claimant was entitled to gratuity as provided for under the CBA.
- The court considered the evidence and found that the claimant opted to stay at his home throughout the employment despite the respondent’s provision of reasonable housing at the farm. The claimant confirmed in his testimony that the respondent’s General Manager had issued an internal memo and at a meeting with the workers explained the availability of reasonable housing at the farm. Thus, the court found that the prayer shall fail.
- The court was not setting a principle that an employer could not pay reasonable house allowance where the employer has imposed reasonable available housing accommodation for the employee but nevertheless, the employee has opted to stay in own better or equally reasonable housing.in the circumstance the provisions of section 31 of the employment act ,2007 should be adhered to.
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CONSTITUTIONAL LAW |
Kenya Country Bus Owners Association & 8 others v Cabinet Secretary for Transport & Infrastructure & 5 others
Judicial Review Case No. 2 of 2014
High Court at Nairobi
G.V Odunga J
March 14, 2010
Reported by Phoebe Ida Ayaya and Maryconcepter Nzakuva
Brief facts:
The Applicants applied to the High Court seeking for an order of certiorari to quash the Respondents’ decision via legal notice No. 219 of 2013 which banned them from undertaking night travels and an order of prohibition to stop the Respondents from arbitrary arresting the servants/agents of the Applicants on the premises of violation of the said ‘night travel ban’ regulations.
The Applicants submitted that the Transport Licensing Board issued them with valid licenses for their vehicles for a period of one year to operate without conditions. Their contention was that the said Legal Notice No. 219 of 2013 had in essence revoked their licenses for 12 hours daily without them being given a notice or hearing or ample time hence a violation of rules of natural justice.
The Applicants stated that the said legal notice ought to be quashed for not having been laid before parliament for approval as was required by the Statutory Instruments Act, 2013 and that the legal notice violated the definition of ‘Public Service Vehicle’ set out in the Traffic Act, 1989.
It was the Applicants’ argument that, their rights to be treated with dignity under Article 28 of the Constitution of Kenya, 2010 were infringed and that the enforcement of the ‘night travel ban’ against the Applicants’ vehicles violated Article 47 of the Constitution of Kenya, 2010 on fair administration. They also argued that the Cabinet Secretary acted ultra vires his powers in prescribing the brands of speed governors to be installed in their vehicles.
The Respondents stated that the Cabinet Secretary for Transport had the power to make regulations and that the rules had been necessitated by the increase in road accidents in the country. They also stated that they invited the public and stakeholders who participated in the formulation of the regulations and clarified that there was no blanket ban on night travel and only vehicles that met the set conditions were allowed to operate at night.
Issues:
- Whether the provisions of the Statutory Instruments Act, 2013 regarding tabling of regulations before parliament were complied with and what was the effect of failure to comply?
- Whether there was conflict between the regulations and provisions of the Traffic Act, 1989 on definition of ‘Public Service Vehicles’.
- Were the Applicants’ licenses valid?
- Did the Cabinet Secretary for Transport act ultra vires his powers in prescribing the brands of governors to be installed in the Applicants’ vehicles
- Whether the Applicants were consulted by the Respondents during the formulation of the traffic regulations.
- Whether the regulations were illegal, irrational and unconstitutional.
- Whether the regulations were retroactive in their application.
- Whether or not there had been a night travel ban imposed by the Respondents on passenger service transportation.
Constitutional Law-Fundamental rights and Freedoms-Right to human dignity-Freedom of movement-Equality and freedom from discrimination-Whether the Respondents’ act infringed on the Applicants’ right to dignity-Whether the regulations violated the Applicants’ freedom of movement –Whether the regulations discriminated against the Applicants’ vehicles in the imposition of the night travel ban- Regulations 16 of the National Transport and Safety Authority, 2013; Statutory Instruments Act, 2013; Regulation 5(1) (f) of the traffic regulations, 2013
Judicial Review-Orders of Certiorari and Prohibition-Rules of Natural Justice-Right to fair hearing-Whether the Applicants were given the opportunity to present their views before the night travel ban conditions were imposed on them.- Article 39(1) of the Constitution of Kenya, 2010
Judicial Review-Orders of Certiorari and prohibition-Doctrine of Ultra Vires –-Whether the Cabinet Secretary acted ultra vires his powers in banning night travel –Whether the Cabinet Secretary acted ultra vires his powers in prescribing the brands of speed governors- Whether the regulations were null and void- Article 39(1) of the Constitution of Kenya, 2010 Read More...
-
Regulations 16 of the National Transport and Safety Authority, 2013 were ultra vires provisions of the Statutory Instruments Act, 2013 because they were not tabled before parliament 7 days after resuming of its sittings. This was a mandatory requirement and consequently the regulations were void and had no effect.
-
The Regulations had the effect of cancelling the Applicants’ subsisting licenses issued by the Transport Licensing Board and hence they were invalid.
- The Cabinet Secretary for Transport acted ultra vires his power in prescribing the brands of speed governors to be purchased by the Applicants rather than the standards they should meet.
- The Applicants were consulted by the Respondents on the draft regulations although the end product may not have reflected the Applicants’ views.
- The provisions of the Regulations in regard to creation of another type of long distance passenger vehicle were not inconsistent with those of the Traffic Act since the provisions could stand together.
- Regulation 5(1) (f) of the traffic regulations, 2013 was unreasonable, retroactive and ultra vires in expecting the Applicants to comply with the said regulations in the preceding year.
- The regulations did not expressly ban night travel by public service vehicles in the country.
- A ban on night travel would amount to limitation of rights under Article 39(1) of the Constitution of Kenya, 2010 which provided that everyone had the right to freedom of movement.
- To declare a ban on night travel as a result of compliance with regulations without taking into account the safety of passengers whose journeys would be brought to sudden halt in the wilderness would be an abrogation of the right to human dignity.
- The remedy of structural interdict was available in the Constitution of Kenya, 2010 which required the violator to rectify the breach of Fundamental rights under the court’s supervision especially where declaration of invalidity of such regulations would disrupt law enforcement process and deny the society benefits of some useful provision contained in the regulations.
Regulations declared ultra vires but the declaration suspended and the Respondents directed to initiate process to remedy the defects in the regulations and to file a report within 60 days of the ruling on the measures taken for consideration of the court and for further orders.
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JURISDICTION |
Nick Githinji Ndichu v Clerk, Kiambu County Assembly & another
Petition 11 of 2014
Industrial Court of Kenya at Nairobi
Mathews N Nduma, J
March 14, 2014
Reported by Beryl A Ikamari
Brief facts:
The petitioner was elected to serve as the speaker of Kiambu County Assembly. On February 25, 2014, a motion of impeachment for the removal of the petitioner from the office of speaker was passed. The basis of the motion was that the petitioner had engaged in misconduct in the carrying on of his duties.
After being impeached, the petitioner filed a petition on grounds that his impeachment was illegal, unlawful and unconstitutional. He sought orders for his reinstatement to office and to prevent his replacement.
As an interim measure, the petitioner also sought a temporary injunction to restrain the respondents from filling the position of speaker of the Kiambu County Assembly in a bid to replace him while the petition was pending in court.
Issues:
- Whether the Industrial Court had the jurisdiction necessary to handle a dispute concerning the impeachment of an elected official- speaker of a County Assembly.
- Whether for purposes of the Industrial Court, there was a distinction between an employee and an elected official and a difference between an impeachment and a termination from employment.
- Whether a temporary injunction would be available to prevent a County Assembly from replacing an impeached County Speaker.
Jurisdiction–jurisdiction of the Industrial Court-whether the Industrial Court had the jurisdiction necessary to handle a cause concerning the impeachment of an elected speaker of a County Assembly-Constitution of Kenya 2010; articles 22, 23 & 162(2), and Industrial Court Act, No 20 of 2011; sections 2 &12.
Constitutional law –County Government-speaker of County Assembly-remedies available to an impeached speaker of a County Assembly-whether a temporary injunction would be available to prevent a County Assembly from replacing an impeached speaker- Constitution of Kenya 2010; article 178(2)(b) and County Government Act, No 17 of 2012; section 9(4). Read More...
- The jurisdiction of the Industrial Court as provided for in section 12 of the Industrial Court Act, No 20 of 2011, and article 162(2) of the Constitution of Kenya, 2010, included the determination of disputes relating to employment and labour relations. Such jurisdiction would extend to determination of employment and labour relations issues for which claims on the enforcement of fundamental rights and freedoms in article 22 and 23 of the Constitution of Kenya 2010, were made.
- Both section 12 and 2 of the Industrial Court Act, No 20 of 2011, were not concerned with whether a person who was offering services for a wage was employed or elected. What was important was that there was a dispute with a person who had a contract of service in which services were provided for a wage or salary. Concerning such a dispute, the Industrial Court would have jurisdiction.
- For the industrial court to have jurisdiction concerning the removal of a person from office, that person must have;
- Had an oral or written contract of service
- Provided a service to a real or legal person
- Received a wage or salary for the services rendered.
- The petitioner had a contract of service requiring him to render services to the Kiambu County Assembly.
- A question as to whether the speaker of the Kiambu County Assembly was lawfully removed from office would be justiciable. The court would consider whether the impeachment was carried on in violation of the requisite procedure or was done in excess of authority or jurisdiction.
- For an interim injunction to be granted in favour of the petitioner, he would have to show the existence of a prima facie case with a probability of success and that he would suffer irreparable injury which would not be compensated by an award of damages if the injunction was not granted. If the court was in doubt, the application would be decided on a balance of convenience.
- The petitioner had shown, that in his impeachment, there was an apparent breach of certain rights. Particularly, questions existed as to whether the impeachment was procedurally proper and whether there was compliance with the requirements of section 11 of the County Government Act, No 17 of 2012 and the standing orders applicable to the Kiambu County Assembly. Therefore, a prima facie case was in existence.
- The petitioner was unlikely to suffer irreparable harm as he had the liberty to pursue the payment of damages if the court found that his removal was unlawful and unconstitutional.
- The balance of convenience did not favour the grant of an injunction. The standing order 4(2) applicable to the Kiambu County Assembly provided that a vacancy in the office of the speaker would mean that no business would be transacted by the County Assembly.
- There was no automatic procedure for filling in a vacancy in the office of the speaker, provided for in the County Government Act, No 17 of 2012 or the Constitution. The procedure available in article 178(2)(b) of the Constitution of Kenya 2010 and section 9(4) of the County Government Act, No 17 of 2012 would only allow an acting speaker to be elected in a specific sitting convened by the substantive speaker, for purposes of service provision during the absence of the substantive speaker. The procedure did not concern an impeached speaker.
Application dismissed.
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JUDICIAL REVIEW |
Republic V Attorney General & 2 Others Ex-Parte Mwikali Muindi Katunga & AnotherJudicial Review Miscellaneous Civil Application 187 of 2012
High Court at Nairobi
G V Odunga, J.
March 13, 2014
Reported by Andrew Halonyere & Anne Mbuthia
Brief facts:
The Applicants instituted proceedings in the nature of judicial review for an order of mandamus, to enforce a judgment and decree issued in favour of one of them for Kshs.1,447,171.25, together with interest and costs. It was the Applicants’ case that despite having issued the Respondents with a demand notice, they had failed to settle the decree.
The Respondents on their part did not oppose the application.
Issues:
- Whether judicial review proceedings in the nature of mandamus could be equated with execution proceedings
- Whether an order of mandamus could be issued against a public officer in his official capacity rather than against the State, in light of the fact that a public officer was not distinct from the State.
Judicial Review-mandamus – application for mandamus to enforce a judgment and decree - Whether judicial review proceedings in the nature of mandamus could be equated with execution proceedings - whether an order of mandamus could be issued against a public officer rather than the State, in light of the fact that a public officer was not distinct from the State – whether the application had merit – Constitution of Kenya, 2010 Article 129 Read More...
- The Applicant had no other option of realizing the fruits of the judgment awarded in favour of the decree holder, as they were barred from executing against the Government. Apart from the order of mandamus, they had no other way of ensuring that the judgment that had been awarded was realized. That state of affairs could not be allowed to prevail under the Constitutional dispensation, in light of the provisions of Article 48 of the Constitution, which enjoins the State to ensure access to justice for all persons.
- Access to justice could not be ensured when persons in whose favour judgments had been decreed by courts of competent jurisdiction could not enjoy the fruits of their judgment due to roadblocks placed on their paths by actions or inactions of public officers. Public offices are held in trust for the people of Kenya and public officers had to carry out their duties for the benefit of the people of Kenya. To deny a citizen his/her lawful rights which had been decreed by a Court of competent jurisdiction was unacceptable in a democratic society. It was obligatory for public officers to remember that under Article 129 of the Constitution, executive authority is derived from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.
- The institution of judicial review proceedings in the nature of mandamus could not be equated with execution proceedings. In seeking an order for mandamus the applicant seeks, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament.
- The fact that the Accounting Officer was not distinct from the State, of which he was a servant, did not necessarily mean that he could not owe a duty to a subject as well as to the Government which he served. Whereas it was true that he represented the Government, it did not follow that his duty was therefore confined to his Government employer.
- In mandamus cases, when a statutory duty was cast upon a public officer in his official capacity, and the duty was owed, not to the State but to the public, any person having a sufficient legal interest in the performance of the duty could apply to the Courts for an order of mandamus to enforce it. In other words, mandamus was a remedy through which a public officer could be compelled to do a duty imposed upon him by the law. It was in fact the Republic, on whose behalf he undertook his duties, that was compelling him, a servant, to do what he was under a duty, obliged to perform.
- Where a public officer declined to perform the duty after the issuance of an order of mandamus, his/her action would amount to insubordination and contempt of Court. An action may perfectly have been commenced to have him cited for such. Such contempt proceedings were no longer execution proceedings, but were meant to show the Court’s displeasure at the failure by a servant of the State to comply with the directive of the Court, given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.
Application allowed, order of mandamus issued directed at the Respondent compelling them to pay ex parte applicant 1,447,171.25 together with costs and interest.
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JURISDICTION |
Zeddy Cherotich Rotich v Independent Electoral & Boundaries Commission & 5 others
Petition No 2 of 2013
High Court of Kenya at Kericho
Constitutional and Judicial Review Division
J K Sergon, J
March 7, 2014
Reported by Beryl A Ikamari & Karen Mwende N.
Brief facts:
The Applicants applied to the High Court seeking for an order of certiorari to quash the Respondents’ decision via legal notice No. 219 of 2013 which banned them from undertaking night travels and an order of prohibition to stop the Respondents from arbitrary arresting the servants/agents of the Applicants on the premises of violation of the said ‘night travel ban’ regulations.
The Applicants submitted that the Transport Licensing Board issued them with valid licenses for their vehicles for a period of one year to operate without conditions. Their contention was that the said Legal Notice No. 219 of 2013 had in essence revoked their licenses for 12 hours daily without them being given a notice or hearing or ample time hence a violation of rules of natural justice.
The Applicants stated that the said legal notice ought to be quashed for not having been laid before parliament for approval as was required by the Statutory Instruments Act, 2013 and that the legal notice violated the definition of ‘Public Service Vehicle’ set out in the Traffic Act, 1989.
It was the Applicants’ argument that, their rights to be treated with dignity under Article 28 of the Constitution of Kenya, 2010 were infringed and that the enforcement of the ‘night travel ban’ against the Applicants’ vehicles violated Article 47 of the Constitution of Kenya, 2010 on fair administration. They also argued that the Cabinet Secretary acted ultra vires his powers in prescribing the brands of speed governors to be installed in their vehicles.
The Respondents stated that the Cabinet Secretary for Transport had the power to make regulations and that the rules had been necessitated by the increase in road accidents in the country. They also stated that they invited the public and stakeholders who participated in the formulation of the regulations and clarified that there was no blanket ban on night travel and only vehicles that met the set conditions were allowed to operate at night.For purposes of the gender top-up list, the petitioner applied to the United Republican Party for nomination to serve as a member of the County Assembly of Kericho. The United Republican Party, the 2nd respondent, submitted the list of nominees to the Independent Electoral & Boundaries Commission, the 1st respondent (IEBC). The IEBC published a list of nominees for the gender top-up list on May 16, 2013 in the Daily Nation. The publication erroneously indicated that the petitioner was male and that she had been placed in tenth place in the order of priority amongst female nominees from Kericho.
The petitioner, claiming that the error in the publication had cost her the chance to receive nominations, made a complaint to the IEBC's Nomination Dispute Resolution Committee. Citing lack of jurisdiction, the Committee dismissed the complaint. In relation to the same issue, the petitioner filed a petition.
Issue:
-
Whether the High Court had jurisdiction to determine an election petition concerning nominations of members to the County Assembly.
Jurisdiction-jurisdiction of the High Court-jurisdiction of the High Court in election petitions- whether the High Court had jurisdiction to hear and determine a petition questioning nominations to the County Assembly-Constitution of Kenya 2010; article 165(6) & 165(7) and Elections Act, No 24 of 2011; part VII.
Election Petition-nominations to County Assemblies-whether the High Court had jurisdiction to hear and determine a petition questioning nominations to the County Assembly-Constitution of Kenya 2010; article 165(6) & 165(7) and Elections Act, No 24 of 2011; part VII. Read More...
- The High Court had no jurisdiction to determine the petition. The Elections Act No 24 of 2011, in Part VII, envisaged that after the gazettement of any person as a member of a County Assembly, any challenge as to the validity of such person's membership in the County Assembly would be heard and determined by the Chief Magistrate's Court.
- In exercise of its supervisory jurisdiction as provided for in article 165(6) of the Constitution of Kenya 2010, the decision-making process utilized by the IEBC's Nomination Dispute Resolution Committee, could be inquired into by the court. However, that supervisory jurisdiction would not allow for an appeal or a substitution of the decision reached at by the Committee. It would only allow for the High Court's intervention where the process used to reach at the decision was shown to be flawed.
Preliminary Objection upheld; petition dismissed.
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CONSTITUTIONAL LAW |
Association of Gaming Operators Kenya & 41 others v. Attorney General & 2 others [2014] eKLR
Petition No 56 of 2014
High Court at Nairobi
D.S. Majanja, J.
March 7, 2014
Reported by Nelson Tunoi & Riziki Emukule
Brief facts:
The 1st petitioner (Association of Gaming Operators-Kenya) is a registered society and the umbrella body for companies involved in the gaming industry in Kenya. They filed a petition challenging the manner in which winnings from gaming and betting were to be taxed especially with the introduction of some clauses in the Finance Act (Act No.38 of 2013). The petitioners were opposed to the introduction of a withholding tax of 20% on all winnings from betting and gaming, and they were apprehensive that imposition of the 20% withholding tax would have adverse effects on their business since it would serve to lure away their customers. The petitioners further contended that the Finance Act was unconstitutional since it was passed without public participation contrary to articles 10, 118 and 201 of the Constitution of Kenya, 2010.
Issues:
- Whether the Finance Act, 2013 was unconstitutional for lack of public participation.
- Whether the Finance Act, 2013 was unconstitutional for want of compliance with article 205 of the Constitution of Kenya, 2010.
- Whether the implementation of the Finance Act, 2013 in so far at it concerned the petitioners gaming business was impractical and if so, what was the effect thereof.
Constitutional Law-petition-petitioners challenging the constitutionality of the provisions of the Finance Act subjecting winnings from betting and gaming to 20% withholding tax-whether the Finance Act, 2013 was unconstitutional for lack of public participation and want of compliance with article 205 of the Constitution-whether the High Court had jurisdiction to interfere with the implementation of the Finance Act, 2013 with regards to the gaming business-whether the petition had merit-Constitution of Kenya, 2010 articles 10, 118, 201, 205, 209, 210; Finance Act, 2013, sections 9, 11, 14, 15 & 23. Read More...
- Public participation as a national value was an expression of the sovereignty of the people articulated in article 1 of the Constitution of Kenya, 2010. The golden thread running through the Constitution was one of sovereignty of the people of Kenya and article 10 that made public participation a national value was a form of expression of that sovereignty. Article 94 of the Constitution of Kenya 2010 vested legislative authority of the people of Kenya in Parliament.
- Although the 1st petitioner complained that they were not accorded an opportunity to make oral submissions after forwarding a memorandum to the Parliamentary Committee when the Finance Bill, 2013 was published, an oral hearing was not necessary in every situation and the legislature had wide latitude to determine how to receive submissions.
- The opportunity availed to the petitioners to forward their memorandum was ample demonstration that there was public participation. The fact that the outcome did not result in what the petitioners wanted did not necessarily negate public participation.
- Although public participation in the law making process was required, essentially all that was required of the legislature was to provide opportunity for some form of public participation, for instance allowing the public to make either written or oral submission at some point in the legislative process. Thus the petitioners failed to establish that the Finance Act, 2013 was passed in violation of the principles of public participation espoused under articles 10, 118 and 210 of the Constitution of Kenya, 2010.
Article 205 of the Constitution of Kenya provided that it was the Commission on Revenue Allocation which ought to consider financial bills affecting Counties once it was published and make its recommendation. However, in the instant case, there was no indication that the Commission on Revenue Allocation considered the Finance Bill, 2013 and made recommendations. In the absence of such recommendation by the Commission on Revenue Allocation, article 205(2) of the Constitution of Kenya, 2010 was not applicable.
- The absence of recommendation by the Commission on Revenue Allocation could not result in the legislation being declared unconstitutional by reason that the Commission on Revenue Allocation failed to discharge its duty to make recommendations on the Finance Bill, 2013. Therefore, the Finance Act, 2013 could not be impugned on the basis of want of compliance with article 205.
- Article 209 of the Constitution of Kenya, 2010 empowered the national government to impose taxes and charges. Such taxes included income tax, value-added tax, customs duties and other duties on import and export goods and excise tax. The manner in which the tax was defined, administered and collected was a matter for Parliament to define and it was not for the court to interfere merely because the legislature would have adopted a better or different definition of the tax or provided an alternative method of administration or collection. Under article 209 of the Constitution, the legislature retained wide authority to define the scope of the tax. [See Bidco Oil Refineries v Attorney General and Others Petition No. 177 of 2012, paras. 53 – 56.]
- The impracticability or problems of implementation of the law were outside the court’s jurisdiction to resolve unless there was an allegation that there was a violation of the petitioners’ fundamental rights and freedoms or of the Constitution. In the instant case, there was no allegation in the petition that the implementation of the Finance Act, 2013 violated the Constitution.
- If there were indeed any difficulties of implementation, the 2nd interested party (Betting, Control and Licensing Board) had indicated that the same could be resolved through a tripartite process which it had initiated. The court could not therefore enter into an inquiry which would involve an interpretation of “winnings” as provided in the Finance Act, 2013. Acceding to such a request would amount to proffering what was in effect an advisory opinion as there was no real dispute between any of the petitioners and the 3rd respondent (Kenya Revenue Authority). If such a dispute arose in the collection of taxes there existed sufficient mechanisms under the Income Tax Act to resolve and interpret the law in light of the facts at hand.
Petition dismissed with no order as to costs.
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