Impact of Non-compliance with Procedures Regarding the Suspension or the
Termination of the Electronic System under Regulation 26 of the Elections (Technology) Regulations, 2017, where Electronic Voter Identification Mechanisms Failed
Nixon Ngikor Nicholas v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR
Election Petition Appeal No. 28 Of 2018
Court of Appeal at Eldoret
E. M. Githinji, H.Okwengu, J. Mohammed JJA
July 12, 2018
Reported by Rutto Jepchirchir Faith
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Jurisdiction- appellate jurisdiction-jurisdiction of the Court of Appeal in election petitions-jurisdiction to consider matters of law-what was the scope of the jurisdiction of the Court of Appeal in regards to appeals from an Election Court- Constitution of Kenya 2010, article 164(3) & Elections Act, section 85A
Election Law- election petition - parliamentary elections – considerations governing determination on whether an election was conducted in accordance with the law- whether the election was conducted substantially in compliance with the Constitution and section 83 of the Elections Act- Elections Act, section 83
Electoral Law- election petition- parliamentary elections-nullification of elections-declaration of an election as void-whether the election Court erred in its application of section 83 of the Elections Act on nullification of an election and in its finding that the elections met the qualitative test- Elections Act, section 83

Brief facts:
The election of the position of Member of Parliament for Turkana East Constituency was held alongside other elections in the General Elections on August 8, 2017. The Independent Electoral Commission (IEBC), declared the 3rd respondent, as the duly elected Member of Parliament for Turkana East Constituency with 5,528 votes. The Appellant was the closest contestant having garnered 4,437 votes. The Appellant was aggrieved with the declaration and filed a petition seeking inter alia, the nullification of the election. After considering the issues raised by the appellant, the Election Court in its judgment found no merit in any of the grounds raised by the Appellant, dismissed the petition finding that the election for member of Parliament of Turkana East Constituency was free and fair, and a true reflection of the will of the voters of Turkana East, and that there was no election offence committed. Aggrieved by that finding, the Appellant filed the instant appeal. Those grounds included, inter alia that the Trial Court erred in fact and in law in failing to: find that the election conducted in Turkana East did not meet the qualitative test for a free and fair election; the appellant was unfairly and deliberately disadvantaged as he was excluded from the WhatsApp group whose purpose was to inform the agents of the aspirants of the dates of the training and their accreditation.

Issues:

  1. What was the scope of the jurisdiction of the Court of Appeal in regards to appeals from an Election Court?
  2. Whether the Appellant’s issues raised pure questions of law in the appeal.
  3. What principles ought to be taken into account in concluding that an instituted appeal dealt with matters of law only?
  4. Whether the election was conducted substantially in compliance with the Constitution and section 83 of the Elections Act.
  5. Whether there was bias on the part of the 1st and 2nd respondents against the Appellant with regards to employment of county staff by the IEBC and employment of relatives of the aspirants.
  6. What was the proper application of section 83 of the Elections Act on nullification of an election, and in determining whether the elections met the qualitative test?
Relevant provisions
Elections Act
Section 44(1)
“Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.”

Section 44A
Notwithstanding the provisions of section 44, the Commission shall put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.

Elections (Technology) Regulations
Regulation 69 (e)
“(e) in case the electronic voter identification device fails to identify a voter the presiding officer shall—
(i) invite the agents and candidates in the station to witness that the voter cannot be identified using the device;
(ii) complete verification Form 32A in the presence of agents and candidates;
(iii) identify the voter using the printed Register of voters; and
(iv) once identified proceed to issue the voter with the ballot paper to vote;”

Regulation 72(5)
“(5) The following shall apply with respect to a person who assists a voter under this regulation -
(a) the person shall, before assisting or supporting the voter, make a declaration of secrecy before the presiding officer in Form 32 set out in the Schedule;
(b) a person who breaches his or her declaration commits an offence under the Act;
(c) the person shall assist or support only one voter at that election and have a mark as proof of assisting or supporting a voter.”
Regulation 26(2)
“2) Before suspending or terminating the use of election technology under sub-regulation (1),
(a) the clerk at the polling station shall inform the presiding officer of the failure of the technology;
(b) the presiding officer at the polling station shall retry the system to confirm the failure of the technology;
(c) the presiding officer at the polling station shall document the incident on an incident report in the polling station diary which shall be signed by all the agents;
(d) the presiding officer shall notify the returning officer of the failure and submit a copy of the incident report;
(e) the returning officer shall inform the director in charge of information communication and technology of the incident and the director shall investigate the incident and advise on the suspension or termination of the use of the election technology;
(f) the returning officer shall approve the request for suspension of the use of technology based on the advice under paragraph (e) and invoke the
complementary mechanism.”

Held:
  1. A court’s jurisdiction flows from either the Constitution or legislation as conferred by the Constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by written law. The issue of whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.
  2. Jurisdiction of the Court of Appeal was limited to only issues of law by section 85A of the Elections Act. That section provided in part that an appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of County Governor lay to the Court of Appeal on matters of law only.
  3. With specific reference to section 85A of the Elections Act, the phrase “matters of law only”, meant a question or an issue involving:
    1. the interpretation, or construction of a provision of the Constitution, an act of parliament, subsidiary legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of the County Governor;
    2. the application of aprovision of the Constitution, an act of parliament, subsidiary legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of the County Governor;
    3. the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.
    It was for the Appellate Court to determine whether the petition and memorandum of appeal lodged before it by the Appellant conformed to the foregoing principles, before admitting the same for hearing and determination.
  4. A petition which required the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invited the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. The principles defining matters of law struck a balance between the need for an appellate court to proceed from a position of deference to the trial Judge and the trial record, on the one hand, and the trial Judge’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.
  5. The Appellant took issue with the Election Court’s application of the law to the facts before it. In addition, the Appellant called upon the Court of Appeal to make a determination on the interpretation of section 44A of the Elections Act, Regulations 69(e) of the Regulations, as well as the application of Regulation 26 of the Elections (Technology) Regulations, 2017. There was no substance in the 3rd Respondent’s complaint that the appeal was defective and had not raised matters of law only. The application by the 3rd Respondent to strike out the appeal on that ground failed.
  6. Under Regulations 69 (i) (e) (ii) and 72 (5) (a) of the elections (General) Regulations, 2012, only 2 scenarios were envisaged. First, where the KIEMS failed to identify a voter. That meant that the KIEMS would be working, but had failed to identify the voter. The 2nd instance was for voters who were assisted. There was no legal requirement that form 32A must be filled when a voter used the manual register to vote. Regulation 69 applied in the instance that a voter presented himself to the polling station and then was not identified by the KIEMS kit. It was for that reason that the voter would require to first place their finger on the finger print scanner, and then, where the kit failed to identify them, then the presiding officer would complete verification of Form 32A in the presence of agents and candidates. The election court had not erred in finding that regulation 69 applied to instances where a voter was for whatever reason, not identified. Similarly, the application of regulation 72 would not be appropriate. Regulation 72(5) gave the procedure that would apply to a person who was assisting a voter. In that case, it was the person assisting the voter who would fill in the form, and not the voter himself.
  7. The appropriate regulation that applied in the instant appeal was regulation 26 of the Election (Technology) Rules. That regulation stipulated the procedure for the suspension or the termination of the electronic system. There was no misdirection in law upon which the Court of Appeal could interfere with the findings of fact of the election court that the evidence adduced did not prove the extent to which the failure to strictly adhere to regulation 26 of the Election (Technology) Regulations, 2012 in respect of three polling stations for 30 minutes was an irregularity that manifestly affected the outcome of the election.
  8. Elections must be carried out in an impartial manner. However, the burden to prove that the recruitment of certain select officials was calculated to put the Appellant at a disadvantage lay solely on the Appellant. It was unclear how the employment of the two officials would lead a reasonable person, to irresistibly conclude that those two officials were working in concert with the 3rd Respondent to the disadvantage of the Appellant. The election court properly considered the facts on that point, and found no evidence led by the Appellant to prove the allegations of bias. There was no reason upon which the conclusion of the trial court that there was no bias could be faulted.
  9. WhatsApp was a messaging service that was available to the officials of the 1st Respondent to use for communication. The election court was of the view that the 2nd Respondent was being innovative and accepted the evidence that all the candidates had been included in the group. There was no misdirection in law to warrant interference with the conclusions made by the election court on the facts before it.
  10. The Appellant claimed that results from some of the two polling stations were swapped around in a bid to confuse voters and deny him votes. The judgment of the election court indicated that the trial judge had considered that complaint by the Appellant, but found that it was unsupported by the evidence led by the Appellant. Thus, there was no basis upon which the finding by the election court could be disturbed.The election court properly addressed itself to the specific issues raised by the Appellant. There was an instance of failure to comply with regulation 26 of the Elections (Technology) Regulations, 2017, however, that minor infraction did not affect the outcome of the election.
  11. Costs were meant to compensate a successful litigant for their labor. It was up to the election court to determine whether a party would be awarded costs or not and in doing so the court must be guided by the principles of fairness, justice and access to justice. It was meant to compensate a successful litigant. It was not a punishment or a deterrent measure to scare away litigants from the doors of justice. The costs awarded were not manifestly excessive, and therefore the award made by the election court could not be interfered with.
Appeal dismissed.

Kenya Law
Case Updates Issue 035/2018
Case Summaries

CONSTITUTIONAL LAW The conflict between sections 297(2) of the Penal Code which provided for death sentence and section 389 which provided for imprisonment for a term not exceeding seven years violated the Petitioner’s rights under the Constitution

Felix Ochieng Omolo v Attorney General & another [2018] eKLR
Constitutional Petition No. 27 ‘B’ of 2017
High Court
At Mombasa
E. K. O. Ogola, J
July 5, 2018.
Reported by Felix Okiri

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Constitutional law – Fundamental Rights and Freedoms – allegation of infringement of rights under the Bill of Rights – where section 297 (2)of the Penal Code on the one hand provided the death sentence while section 389 provided for a sentence of imprisonment for a term not exceeding seven years if the offence was punishable by death or life imprisonment - whether a conflict section 297 (2) and 389 of the Penal Code infringed on the Petitioner’s fundamental rights and freedoms under the Bill of Rights - Penal Code, sections 297 (2) and 389; Constitution of Kenya, 2010, article 23. (1)
Statutes – interpretation of statutes – rules of interpreting statutory provisions –rules of interpreting statutory provisions where the literal words used in a statute created an ambiguity what was the rule of statutory interpretation where the literal words used in a statute created an ambiguity
Jurisdiction - jurisdiction of the High Court - jurisdiction to entertain a matter regarding the infringement of the Bill of Rights - where the Petitioner had already appealed his conviction at the Court of Appeal - whether the High Court had jurisdiction to entertain a matter regarding the infringement of the Bill of Rights where the Petitioner had already appealed his conviction at the Court of Appeal- Constitution of Kenya, 2010, article 23 (1,) article 165,

Brief facts:
The Petitioner was charged and convicted of the offence of attempted robbery with violence contrary to section 297 (2) of the Penal Code and sentenced to death. The Petitioner subsequently lodged a first appeal before the High Court and a second appeal in the Court of Appeal. Both appeals were dismissed and he was serving a life sentence after his death sentence was commuted.
The Petitioner claimed that his rights under articles 26, 25, 27, 28, 48, 50 (2) (b) (c) and (p) had been violated by the alleged conflicting nature of section 297 (2) and 389 of the Penal Code.

Issues:

  1. Whether the High Court had jurisdiction to entertain a matter regarding the infringement of the Bill of Rights where the Petitioner had already appealed his conviction at the Court of Appeal.
  2. Whether a conflict between sections 297(2) of the Penal Code which provided for death sentence and section 389 which provided for imprisonment for a term not exceeding seven years violated the Petitioner’s rights under the Constitution
  3. What offences were felonies as per section 389 of the Penal Code?
  4. What was the rule of statutory interpretation where the literal words used in a statute created an ambiguity? Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 23 (1)
The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including—
(a) a declaration of rights;
(b) an injunction;
(c) a conservatory order;
(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
(e) an order for compensation; and
(f) an order of judicial review.

Penal Code
Section 297
(1) Any person who assaults any person with intent to steal anything, and, at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to it being stolen, is guilty of a felony and is liable to imprisonment for seven years.
(2) If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more person or persons, or if, at or immediately before or immediately after the time of assault, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.

Section 389
Any person who attempts to commit a felony or a misdemeanor is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.

Held:

  1. Article 23 of the Constitution gave the instant Court the jurisdiction to hear and determine matters involving violation of fundamental rights under the Bill of Rights. The jurisdiction of the High Court to determine issues of violation of fundamental rights was further cemented by article 165 which established the High Court and at sub-article (3) (b) gave the court jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened.
  2. The Petitioner had not in any way approached the Court in a manner to suggest that he wanted his conviction reviewed. The Petitioner submitted that his criminal case had run its course. The Petitioner came to the Court seeking redress for alleged violation of his rights under the Bill of Rights. That being the case, the instant Court had the jurisdiction to entertain the matter by virtue of article 23 and 165 (3) (b) of the Constitution.
  3. The Petitioner was charged under section 297 (2) of the Penal Code which provided the sentence for attempted robbery with violence as death. However, section 389 of the Penal Code provided the sentence for an attempted felony as being imprisonment for a term not exceeding seven years if the intended offence was punishable by death or life imprisonment.
  4. Section 4 of the Penal Code defined a felony as an offence which was declared by the law to be a felony or if not declared to be a misdemeanor, was punishable, without proof of previous conviction, with death, or with imprisonment for three or more years. Robbery with violence fell within the definition of a felony. Section 297 (2) on the one hand provided the death sentence while section 389 provided for a sentence of imprisonment for a term not exceeding seven years if the offence was punishable by death or life imprisonment. There was clearly a conflict between the two sections as to the sentence that was to be meted out for the offence of attempted robbery with violence.
  5. Article 259 of the Constitution provided that the Constitution was to be interpreted in a manner that promoted its purposes, values and principles; advanced the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; permitted the development of the law; and contributed to good governance. The Constitution should be given a purposive interpretation where all provisions were read as a whole with each provision sustaining the other.
  6. A purposive interpretation should be given to statutes so as to reveal the intention of the statute. Purposive approach to legislative interpretation had evolved to resolve ambiguities in meaning. Where the literal words used in a statute created an ambiguity, the Court was not to be held captive to such phraseology. Where the Court was not sure of what the legislature meant, it was free to look beyond the words themselves, and consider the historical context underpinning the legislation.
  7. The object of the court in interpreting legislation was to give effect so far as the language permitted to the intention of the legislature. If the language proved to be ambiguous, the Hansard was to be consulted to see if there was a clear statement of the meaning that the words were intended to carry. Strict constructionist view of interpretation which required Courts to adopt the literal meaning of the language was no longer fashionable as the courts had now adopted a purposive approach which sought to give effect to the true purpose of legislation.
  8. Article 50 of the Constitution guaranteed the Petitioner the right to a fair trial which included the right to the benefit of the least severe of the prescribed punishments for an offence. Sections 297(2) and 389 of the Penal provided sentences for the crime of attempted robbery with violence. Section 297 of the Penal Code which was the substantive provision for robbery with violence prescribed a sentence of death while section 389 of the Penal Code under which the crime also fell prescribed a sentence not exceeding seven years.
  9. An interpretation of both provisions of the Penal Code revealed that the drafters of the legislation seemed to have created two sentences for the offence in question. As a result, a conflict emanated that could only be resolved by way of amendment.
  10. The Constitution was the supreme law and any other legislation was subordinate to it. The Constitution mandated that an accused was to be entitled to the least severe sentence which in the instant case was that provided by section 389 of the Penal Code.
  11. There had been instances where Appellants faced with similar circumstances as the Petitioner were accorded the benefit of the least severe sentence during their appeals before the Court of Appeal. Examples were the cases of Evanson Muiruri Gichane vs. Republic [2010] eKLR and Boniface Juma Khisa vs. Republic [2011] eKLR. It was in line with the provisions of article 27 of the Constitution to accord the Petitioner the same treatment. Affording the Petitioner same treatment also guaranteed his right to life under article 26 of the Constitution and his right to human dignity under article 28 of the Constitution.
  12. The conflict between sections 297(2) and 389 of the Penal Code violated the Petitioner’s rights under article 26, 27, 28 and 50 (2) (p) of the Constitution.
Orders
  1. The Petitioner was entitled to benefit from the lesser sentence provided under section 389 of the Penal Code
  2. There was a conflict between section 297 (2) and 389 of the Penal Code as to the sentence for the offence of attempted robbery with violence and the conflict violated the Petitioner’s right as espoused under articles 26, 27, 28 and 50 (2) (p) of the Constitution.
  3. The Petitioner having been convicted on July 21, 2008 and having served a sentence in excess of seven years imprisonment, was to be released from prison unless held for reasons not indicated in the Petition.
  4. Each party to bear own costs.
PUBLIC PROCUREMENT LAW It was upon the Advocates to ensure that they had the necessary contractual documents before they offered legal services to public entities.

Mugoye & Associates Advocates v Kiambu County Assembly Speaker [2018] eKLR
Misc. Application No. 18 of 2017
High Court
At Nairobi
E C Mwita, J
July 30, 2018
Reported By Felix Okiri

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Public Procurement Law procurement process – procurement for legal services – where the Advocates had not acquired written instructions as per the Public Procurement and Asset Disposal Act, 2015 (the Act) as read with section 131(1) of the County Government Act - whether in the absence of written instructions, the Advocates had instructions to act for the client in petition No. 71 of 2014 – Constitution of Kenya, 2010, article 227 ; the County Government Act, section 6; Public Procurement and Asset Disposal Act, 2015 (the Act), section 3 & section 53(1)
Advocates – instructions to act – where the Advocates acted for client without written instructions – whether unwritten instructions did not amount to proper instructions

Brief Facts:
The firm of Mugoye & Associates Advocates (the Advocates) filed their advocate/client Bill of costs against Kiambu County Assembly Speaker, the client. When the Bill of costs came up for taxation before the Deputy Registrar, the issue of instructions was raised and the taxing officer referred the matter to the Court for resolution of the question of instructions before taxation could proceed.
The advocates’ case was that they offered legal services to the County and were therefore entitled to payment. The client had maintained that there were no written instructions as per the Public Procurement and Asset Disposal Act, 2015 (the Act) as read with section 131(1) of the County Government Act on public finance expenditure hence the advocates were not entitled to any payments

Issues:

  1. Whether the Advocates had instructions to act for a public entity where there were no written instructions as per the Public Procurement and Asset Disposal Act, 2015 (the Act) as read with section 131(1) of the County Government Act.
  2. What was the criteria for procurement of goods and services and disposal of assets required for the purposes of the County Government?Read More...

Held:

  1. The client was a State organ and any payments made by the County were Public funds which had to be expended in accordance with the Constitution of Kenya, 2010 (the Constitution), the County Government Act and public Finance Management Act.
  2. Section 6 of the County Government Act provided that the County might enter into contracts which are binding. In that regard, only in the case of a lawful contract, could the County Government as a Public entity, use public funds and only as authorized by law.
  3. Section 6 of the County Government Act allowed the County Government to enter into contracts and section 6(4) thereof stated that all contracts lawfully entered into under that section were to be valid and binding on the County Government, its successors and assigns.
  4. Article 227 of the Constitution provided that when a State organ or any other public entity contracted for goods or services, it should do so in accordance with a system that was fair, equitable, transparent, competitive and cost-effective.Article 227 (2) of the Constitution required Parliament to enact a law to prescribe a framework within which policies relating to procurement and asset disposal were to be implemented.
  5. In compliance with article 227(2) of the Constitution, the National Assembly enacted the Act, the principle law regulating procurement and asset disposal by state organs and public entities. The preamble to the Act stated that it was an Act of Parliament to give effect to article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes. The Act defined procurement to mean the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination and included advisory, planning and processing in the supply chain system. The Act further defined procuring entity as a public entity making a procurement or asset disposal to which the Act applied. The Act also defined a procurement contract as an agreement concluded between the procuring entity and a contractor (or contractors) resulting from a tendering proceeding.
  6. Public entities had to procure goods and services through an open and transparent procurement process as required by the Act. Section 3 of the Act provided that public procurement and asset disposal by State organs and public entities was to be guided by the values and principles of the Constitution and relevant legislation including the national values and principles in article 10; equality and freedom from discrimination in article 27; and the principles of public finance under article 201 including the fact that there should be openness and accountability, including public participation in financial matters.
  7. While the Advocates contended that they provided legal services to the client which was a public entity, they did not produce a contract signed between them and the client or a letter of instruction for provision of legal services. They did not also produce any evidence to show that their professional services were procured in accordance with the law and that thereafter, they signed a contract with the client to offer those services. In the absence of a contract or evidence to that effect, the Court could not find that there was a contractual relationship between the advocates and the client for purposes of taxing the Advocate- Client Bill of costs.
  8. The client as a public entity was required to procure for goods and services in compliance with the Constitution and the Act. There was no evidence that there was any compliance with the law in so far as procurement of legal services from the advocates was concerned. There was not even a contract signed between the advocates and the client conferring the advocate – client relationship that could enable the advocates offer legal services. The advocates seemed to have taken the risk of offering their professional services premised on a false belief that they would be paid as it may have happened before the enactment of the Constitution.
  9. Post 2010 legal regime, procurement of goods and services was a constitutional requirement and had to be done in accordance with the guidelines contained in the Act. Section 53(1) of the Act provided that all procurement by state organs and public entities were subject to the rules and principles of the Act, while subsection (8) stated that accounting officer was not to commence any procurement proceeding until satisfied that sufficient funds to meet the obligations of the resulting contract were reflected in its approved budget estimates.
  10. Section 121 of Public Finance Management Act stated that all procurement of goods and services and disposal of assets required for the purposes of the County Government were to be carried out in accordance with article 227 of the Constitution and the Act. Consequently, in the absence of evidence that the law was followed, the Court would find it difficult to find in favour of a party who violated the Constitution and the law
  11. The advocates had relied on previous conduct between them and the client and some authorities to argue that the previous conduct of the parties entitled them to infer advocate-client relationship and therefore payment. Conduct could not override clear provisions of the Constitution and the law with regard to expenditure of public resources. It was upon the Advocates to ensure that they had the necessary contractual documents before they offered legal services to the client. If the Advocates had previously acted and their fee was paid without following the law, the omission could not be construed as a certificate to use public resources without following the Constitution and the law.
  12. The provisions of the Advocates Act had to be read in tandem with the 2010 Constitution and the Act. In doing so, regard had to be had to section 7(1) of the sixth schedule to the Constitution thatall law in force immediately before the effective date was to continue in force and was to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.
  13. There was no evidence that there was advocate – client relationship between the firm of Mugoye & Associates Advocates and the Speaker of Kiambu County Assembly.

Application allowed, each party to bear their own costs

CONSTITUTIONAL LAW Members of UASU are not required to comply with a government circular requiring government officials to obtain clearance from the President before travelling outside the country.

University Academic Staff Union (UASU) v Attorney General & another
Petition No 501 of 2017
High Court at Nairobi
E C Mwita, J
August 15, 2018
Reported by Beryl A Ikamari

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Constitutional Law-fundamental rights and freedoms-freedom of movement-limitations placed on the enjoyment of the right to freedom of movement-where government officials were required to obtain clearance from the President before travelling outside the country and the requirement was contained in a circular that did not offer a justification or rationale for that requirement-whether such a limitation was reasonable and justifiable in an open and democratic society-Constitution of Kenya 2010, articles, 10, 24, 20, 39 & 259.
Constitutional Law-the executive-the presidency-powers of the President to direct and co-ordinate the functions of ministries and government departments-whether the President's powers to direct and co-ordinate the functions of ministries and government departments included powers to limit fundamental rights and freedoms-Constitution of Kenya 2010, article 132(3)(b).

Brief facts:
On September 13, 2017, the 2nd Respondent, the Chief of Staff in the Office of the President and Head of Public Service, wrote a circular reference SH/1/6/XIV addressed to all Cabinet Secretaries, the 1st Respondent (the Attorney General) and all Principal Secretaries. The circular was to the effect that from the date of the circular, government officials would not travel outside the country without clearance from the President.
The Petitioners were a trade union representing the academic staff of public universities in Kenya. They contended that the circular was made without them being given notice or being consulted and that the rules of natural justice were violated. The Petitioners stated that its members were physically prevented from boarding flights departing from the country or were denied clearance for the flights deliberately or through delays in processing clearance. They said that the circular violated articles 10, 27, 28, 29, 33, 39, 43, 47 and 48 of the Constitution.
The Petitioners explained that its members travelled outside the country for purposes of international collaborative research workshops, specialized conferences and seminars and that such travel was highly beneficial in their engagement as academic staff. They also stated that they travelled in their individual capacities in exercise of their fundamental rights and freedoms.

Issues:

  1. Whether a requirement, contained in a government circular, to the effect that government officials had to obtain clearance from the President before travelling outside the country violated the right to freedom of movement.
  2. Whether the President's powers under article 132(3)(b) of the Constitution to direct and co-ordinate the functions of ministries and government departments, included power to limit fundamental rights and freedoms.
  3. Whether government circulars could be used effectively to limit fundamental rights and freedoms. Read More..

Held:

  1. Article 39 of the Constitution guaranteed the right to freedom of movement and stated that every person had the right to freedom of movement and the right to leave Kenya. That right was not granted by the State and the State's duty was to respect, protect and promote fundamental rights and freedoms in the Bill of Rights.
  2. The right to freedom of movement was not absolute and it was capable of being limited in accordance with the terms of the Constitution. Article 24(1) of the Constitution provided that a right or fundamental freedom in the Bill of Rights shall not be limited except by law and only to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. The relevant factors were the nature of the right or fundamental freedom, the importance and purpose of limitation, the nature and extent of the limitation and the need to ensure that enjoyment of rights and fundamental freedoms by an individual did not prejudice rights and fundamental freedoms of others.
  3. Under article 24(1) of the Constitution, there was need to have a relationship between a limitation and its purposes and the use of less restrictive means other than the limitation to achieve that purpose. The circular which created a limitation to the right to freedom of movement did not state the purpose or importance of the limitation but it stated that the extent of the limitation was that government officials would need to get clearance from the President before travelling outside the country.
  4. The circular needed to refer to a law which limited the Petitioners' members' right to freedom of movement to leave the country without clearance. That would enable the Court to weigh the legitimate objectives of the law as compared to the Constitution in order to determine whether the law was reasonable and justifiable in a democratic society in terms of article 24(1) of the Constitution.
  5. The circular did not provide a rationale for the requirement that government officials would have to seek clearance from the President before travelling outside the country. It was not clear whether the circular was issued for reasons of state security, public health or other reasons. The introduction of the requirement for clearance had to be explained and justified in the existing constitutional dispensation.
  6. Under article 20(1) of the Constitution, the Bill of Rights was applicable to all law and bound all State organs and all persons. Any action that tended to negate, impede or derogate a fundamental right or freedom guaranteed in the Bill of Rights had to be measured for its conformity with article 20(1) of the Constitution. It was upon the Court to consider the circular and measure it against the articles of the Constitution.
  7. Under the terms of articles 10 and 259 of the Constitution, the interpretation of the Constitution as against the impugned circular had to not only promote but also advance human rights and fundamental freedoms in the Bill of Rights.
  8. The Petitioner was a trade union that represented academic staff in public universities who had a fundamental right to movement. They also needed academic freedom that would enable them to do collaborative research and attend conferences, either to further knowledge or for the sake of their institutions. Some academic staff taught at both public universities and at private universities and it was possible for them to be invited to attend seminars and conferences from either of the universities. For that reason, the circular was vague when it came to members who taught across universities and wanted to travel outside the country.
  9. In interpreting article 39 of the Constitution, on the right to freedom of movement, the Court would adopt a liberal and flexible approach that allowed for its expansion rather than constriction. The Bill of Rights was the framework for Kenya's socio-economic, political and cultural values whose benefit had to be extended to the possible maximum. Social policies, actions and decisions could not devalue fundamental rights and freedoms in the Bill of Rights.
  10. The Respondents did not explain why it was necessary to limit the right to freedom of movement when the Petitioners' members' travelled outside the country. When undertaking such travel, the said members would inform their Vice Chancellors, Deans of Faculties, Schools or Principals of Colleges of their absence and make arrangements in relation to their classes or lessons. That was all they needed to do.
  11. Under article 132(3)(b) of the Constitution, the President had power to direct and co-ordinate the functions of ministries and government departments. That meant that the President could direct which ministry or department would perform what function and how they were to discharge those functions. Those words did not, however, imply limiting fundamental rights and freedoms as guaranteed under article 39 of the Constitution. Such an implication would bring tension between article 132(3) (b) and article 24(1) of the Constitution.
  12. The circular did not meet the threshold set in article 24(1) of the Constitution in so far as limitation of the Petitioner’s members’ fundamental rights and freedom of movement was concerned. The limitation was neither reasonable nor justifiable in an open and democratic state.

Petition allowed.
Orders:-

  1. A declaration was issued to the effect that the letter reference No SH/1/6/X1V dated September 13, 2017 by the 2nd Respondent addressed to all Cabinet Secretaries, the 1st Respondent and all Principal Secretaries, was issued in contravention of article 39 as read with articles 10, 19, 20(1),(2), 21(1) and 24(1) of the Constitution in so far as it related to the Petitioner’s members’ fundamental right to movement guaranteed under article 39(1) and (2)of the Constitution and was, to that extent, null and void.
  2. An order of certiorari was issued to quash the letter dated September 20, 2017 from the Ministry of Education, State Department of University Education, addressed to Vice Chancellors and Principals of Constituent Colleges implementing the letter dated September 13, 2017 requiring the Petitioner’s members to seek clearance from the President before travelling outside the Country.
  3. For avoidance of doubt, the judgment was only applicable to the Petitioner and its members.
  4. Costs to the Petitioner.
CONSTITUTIONAL LAW The Salaries and Remuneration Commission does not have the mandate to limit the number of remunerable meetings that a constitutional commission can have.

Judicial Service Commission v Salaries and Remuneration Commission & another
Petition No 274 of 2016
High Court at Nairobi
E C Mwita, J
July 30, 2018
Reported by Beryl A Ikamari

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Constitutional Law-constitutional commissions-Salaries and Remuneration Commission-extent of the mandate of the Salaries and Remuneration Commission-whether the Salaries and Remuneration Commission could determine the number of remunerable meetings that a constitutional commission could have-Constitution of Kenya 2010, article 230(4)(a).
Constitutional Law-constitutional commissions-independence of constitutional commissions-Judicial Service Commission-constitutionality of a decision by the Salaries and Remuneration Commission to cap the number of remunerable meetings that the Judicial Service Commission could have to eight meetings a month-whether the decision violated the financial and administrative independence of the Commission-Constitution of Kenya 2010, articles 172 & 230(4)(a); Judicial Service Act, No 1 of 2011, section 22(4).

Brief facts:
The 1st Respondent's mandate was to determine salaries and allowances for state and public officers in Government. On December 19, 2013, the 1st Respondent wrote a letter addressed to the Petitioner's Chairperson detailing its determinations on remuneration and benefits of the Petitioner's officers. The 1st Respondent set the sitting allowances and also limited the number of the Petitioner's remunerable meetings to 8 meetings a month, effective from the date of the letter.
The Petitioner stated that before a limitation was placed on the remunerable number of sittings it could have, it ought to have been consulted. It elaborated that the limitation interfered with its independence and the wide mandate it had in recruitment of judges, judicial officers and staff, handling promotions and handling disciplinary cases. The Petitioner contended that the decision was made ultra vires the mandate of the 1st Respondent and it interfered with its independence and mandate contrary to articles 249(2)(b) & 172 of the Constitution and section 22(4) of the Judicial Service Act. The Petitioner sought various reliefs from the Court against that decision.

Issues:

  1. Whether the mandate of the Salaries and Remuneration Commission included determinations on the number of remunerable meetings that a constitutional commission could have, for purposes of reducing the commission's expenditure.
  2. Whether a decision by the Salaries and Remuneration Commission to cap the number of remunerable meetings held by a constitutional commission to eight meetings a month for purposes of reducing the commission's expenditure, was a violation of the commission's financial and administrative independence. Read More..

Held:

  1. Under article 230(4)(a) of the Constitution, the 1st Respondent's mandate was to set and regularly review the remuneration and benefits of all State officers and to advise the National and County Governments on the remuneration and benefits of all other public officers. In undertaking that mandate, the 1st Respondent was required to take into account, the following:-
    1. the need to ensure that the total public compensation bill was fiscally sustainable;
    2. the need to ensure that the public services were able to attract and retain the skills required to execute their functions;
    3. the need to recognise productivity and performance; and
    4. transparency and fairness.
  2. Article 249(2) of the Constitution provided that the constitutional commissions and holders of independent offices were subject only to the Constitution and the law and were independent and not subject to direction or control by any person or authority. The effect of the provision was that constitutional commissions and independent offices were independent in the execution of their mandate and they should not take directions from any person or authority. Further, article 249(3) of the Constitution was to the effect that each commission and independent office would have sufficient financial allocation to enable it discharge its mandate.
  3. The 1st Respondent's mandate was limited to setting and reviewing remuneration and benefits for state officers and advising the National and County Governments on the issue of remuneration and benefits of public officers. That mandate did not extend to superintending how an independent commission utilized its budgetary allocations.
  4. Section 22(4) of the Judicial Service Act provided that the Judicial Service Commission shall hold such number of meetings, in such places, at such times and in such manner as the Commission shall consider necessary for the discharge of its functions under the Constitution and the Act. The Legislature did not deem it necessary to limit the number of monthly sittings that the Petitioner could have. It appreciated the unique and possibly heavy mandate of the Petitioner and thought it was inappropriate to limit the sittings. The Legislature in its enactment gave the Petitioner discretion on the number of meetings to have in order to discharge its constitutional mandate.
  5. The 1st Respondent had no mandate to limit the Petitioner's remunerable monthly sittings. Any attempt by the 1st Respondent to restrict the Petitioner from holding more than eight remunerable meetings a month was not only ultra vires its constitutional and statutory mandate but also clearly unconstitutional and illegal.
  6. The Petitioner enjoyed financial and administrative independence and was accountable to Parliament. Parliament and not the 1st Respondent was the organ that was mandated to oversee how the Petitioner expended its budgetary allocation. Therefore, the 1st Respondent could not restrict the number of the Petitioner's remunerable monthly sittings as a way of reducing the Petitioner's expenditure.

Petition allowed.
Orders:-

  1. A declaration was issued to the effect that the role of the Salaries and Remuneration Commission under article 230(4) (a) of the Constitution was limited to setting the remuneration and benefits of State Officers serving in the Judicial Service Commission and not to determining the number of remunerable meetings the members of the Judicial Service Commission could have in discharging their mandate.
  2. A declaration was issued to the effect that the decision of the Salaries and Remuneration Commission to cap remunerable meetings for members of the Judicial Service Commission to eight (8) meetings a month was made ultra vires its powers under article 230(4) (a) of the Constitution and was a violation of the provisions of article 172 of the Constitution and section 22(4) of the Judicial Service Act.
  3. An order for certiorari was issued to quash the decision of the Salaries and Remuneration Commission contained in the letter dated December 19, 2013, capping the remunerable meetings for members of the Judicial Service Commission to not more than eight (8) meetings a month.
  4. An order of Prohibition was issued to prohibit the Salaries and Remuneration Commission from interfering in any way with the work and constitutional independence of the Petitioner.
  5. No order as to Cost.