Rights and interest previously vested in a group, family or individual under African Customary Law are not extinguished upon registration of trust land

Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR

Petition No. 10 of 2015

Supreme Court of Kenya

D K Maraga, CJ; M K Ibrahim, J B Ojwang, S C Wanjala & N S Ndungu, SCJJ

October 5, 2018.

Reported by Kakai Toili

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Land Law-registration of land-registration of trust land-where the rights and interest in the land were previously vested in a group, family or individual under African Customary Law- whether upon registration of trust land, rights and interest previously vested in a group, family or individual under African Customary Law were extinguished-what were the circumstances in which African customary rights to trust land could be excluded-Constitution of Kenya(repealed), section 115, 116 & 117; Registered Land Act(repealed), section 27, 28(b) & 30 (g)

Land Law – interests in land- overriding interests in land-customary trusts-what were the factors to consider in determining whether a claim of a right to land qualified as a customary trust- whether it was mandatory for one to be in actual physical possession and occupation of the land in order to prove a customary trust in land- what were the differences between the Registered Land Act (repealed) under the Constitution (repealed) and the Land Registration Act under the Constitution with regard to overriding interests on land-Registered Land Act (repealed), section 28(b) & 30 (g)

Brief Facts:

The Respondents filed a suit at the Chief Magistrate’s Court; however, the suit was transferred to the High Court. The Respondents were members of a clan, which owned a large parcel of ancestral land. They averred that during the process of land adjudication, it had been agreed that the land would be sub-divided and each portion registered in the name of an appointed member who would then hold the land in trust on behalf of a specific household. Pursuant to that agreement, the Respondents averred that the suit was allocated to their grandfather’s household and registered in the names of the Respondents’ uncles to hold in trust on behalf of the entire household. As such, the Respondent claimed that the Appellants held one third of the suit property in trust on behalf of their deceased father. They averred that they had lived on the said property, were in possession of it and had made substantial developments on the same.

The High Court while entering judgment for the Respondents held that the Respondents had established the existence of a trust in their favour on the basis of their being in actual occupation and also as bona-fide members of the household. Aggrieved by the decision, the Appellants filed an appeal to the Court of Appeal which affirmed the High Court’s decision. Aggrieved by the Court of Appeal’s decision, the Appellants filed the instant Appeal.

Issues:

  1. Whether upon registration of trust land, rights and interest previously vested in a group, family or individual under African Customary Law were extinguished.
  2. What were the circumstances in which African customary rights to trust land could be excluded?
  3. What were the factors to consider in determining whether a claim of a right to land qualified as a customary trust?
  4. Whether it was mandatory for one to be in actual physical possession and occupation of the land in order to prove a customary trust in land.
  5. What were the differences between the Registered Land Act (repealed) under the Constitution (repealed) and the Land Registration Act under the Constitution with regard to overriding interests on land?

Relevant Provisions of the Law

Constitution of Kenya (repealed)

Section 115

1) All Trust land shall vest in the county council within whose area of jurisdiction it is situated.
2)
Each county council shall hold the Trust land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests, or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual provided that no right, interest or other benefit under African customary law, shall have effect for the purposes of this sub-section so far as it is repugnant to any written law.”

Section 116

1) A county council may, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this sub-section applies shall apply to an area of Trust land vested in that county council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the county council it shall cease to be Trust land.

Section 117

(2) Where a county council has set apart an area of land in pursuance of this section, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group, family or individual under African customary law shall be extinguished.
(4) No setting apart in pursuance of this section shall have effect unless provision is made by the law under which the setting apart takes place for the prompt payment of full compensation to any resident of the land set apart who-

a) under the African Customary law for the time being in force and applicable to the land, has a right to occupy any part of the land;

Registered Land Act(repealed)

Section 27

a) The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”

Section 28

The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together will all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-

a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and
b)
unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by Section 30 not to require noting on the register;

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

Section 30

Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register-

(f) rights acquired or in the process of being acquired, by virtue of any written law relating to the limitation of actions or by prescription.
(g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed.”

Held:

  1. Three statements of legal principle were deducible from the Bennett J, doctrine in Obiero v Opiyo (1972) E.A 227(Obieroo v Opiyo), which decreed that rights to land under customary law became extinguished upon registration of the land in question. They were:
  1. The registration of land under the Registered Land Act (repealed) extinguished customary rights to that land for all purposes.
  2. Rights under customary law or such rights as existed prior to registration were not overriding interests under section 30 of the Registered Land Act (repealed).
  3. The trust envisaged under the proviso to section 28 of the Registered Land Act(repealed) was the trust known under English common law and doctrines of equity. In other words, customary law was incapable of creating a trust to which a registered proprietor would be subject after registration.
  1. The Bennett doctrine was a jurisprudence borne out of colonial land tenure policy. It was a jurisprudence, whose unstated contrivance was to consign customary land law and rights flowing therefrom, to the dustbins of eternity. It was a judicial validation of the Swynnerton Plan whose architect argued that sound agricultural development was dependent upon a system of land tenure which would make available to the African farmer, a unit of land and a system of farming whose production would support his family. He had to be provided with such security of tenure through an indefeasible title as would encourage him to invest his labour and profits into the development of his farm and as would enable him to offer it as security for such financial credits as he could wish to secure.
  2. Land in a traditional African setting, was always the subject of many interests and derivative rights. The content of such interests and rights was often a complex area of inquiry. Such rights could be vested in individuals or group units. The rights and interests frequently co-existed with each other, for example, the rights of members of a family did not necessarily derive from the corporate rights of the family as such, but by operation of the applicable law and customs. Besides, the enjoyment of the rights was dependent on the fulfilment of certain conditions unique to the group unit. Several rights of the members could be inferior to, or co-terminus with, or indeed superior to the sum total of the rights of a group. Hence, customary law did not vest ownership, in land in the English sense, in the family, but ascribed to the family the aggregate of the rights that could be described as ownership.
  3. The decisions in Obiero v Opiyo and Esiroyo v Esiroyo (1973) E.A 388 were based on faulty conceptual and contextual premises. Faulty conceptually because, they did not take into account the complex nature of customary rights to land, and faulty contextually because in interpreting sections 27, 28 and 30 of the Registered Land Act(repealed), the courts paid little or no attention to the relevant provisions of the Constitution(repealed) regarding trust land. It was the registration of land in the trust land areas that had triggered the enduring tension between registered proprietors and claimants under customary law.
  4. Neither section 115 nor 116 of the Constitution (repealed) stipulated that upon registration of trust land, any rights, interests or other benefits in respect of that land that were previously vested in a tribe, group, family or individual under African Customary Law had to be extinguished. All that the section provided was that no right, interest or other benefit under African Customary Law had to have effect for the purposes of section 115 (2)) of the Constitution(repealed)so far as it was repugnant to any written law. On the contrary, the Constitution(repealed) was categorical that each county council had to give effect to such rights, interests or other benefits in respect of the land as could, under African Customary Law for the time being in force or applicable thereto, be vested in any tribe, group, family or individual.
  5. The obligation imposed upon a county council to give effect to rights under African Customary Law applicable to trust land did not cease upon the application of the Land Consolidation Act and the Land Adjudication Act to that land. In fact, the duty to give effect to those rights, became more pronounced, during the land registration process. Given the fluidity and complexity of those rights, such rights could not find expression in the register in their totality. Such customary rights as could not be noted on the register would have to be recognized somehow, for they had already been recognized by the Constitution.
  6. The obligations of a registered proprietor upon a first registration, as embodied in section 28(b) and section 30 (g) of the Registered Land Act (repealed), could only logically, be traceable to the rights, interests or other benefits under African Customary Law. Given that historical context and the constitutional and statutory provisions, it could not have been so easy to declare that rights under customary law were extinguished for all purposes upon the registration of a person and that none could survive whatsoever.
  7. The only situation where the Constitution (repealed) envisaged the extinction of African customary rights to trust land was where such land had been set apart for a public purpose under section 117. Besides, the setting apart of trust land under section 117, hence the extinction of rights under African customary law, could only take effect upon the prompt payment of full compensation. The only situation where African Customary Law would be excluded was where such law was determined to be repugnant to any written law. Repugnancy was such a polemical and subjective notion that it could hardly have provided a stable yardstick for the extinction of customary land rights.
  8. Courts vide section 163 of the Registered Land Act(repealed) had been more willing to import the doctrines of implied, resulting and constructive trust as known in English law, into section 28 of the Act. The notion of a customary trust, which should have been the first port of call had only been gradually and hesitatingly embraced. Due to that judicial hesitancy, the vital elements and content of a customary trust had yet to be fully and clearly developed.
  9. The rights of a person in possession or actual occupation of trust land before registration were rights arising under African Customary Law, put differently, the rights of a person arising under African customary law as evidenced by his/her being in possession or actual occupation of the land were overriding interests under section 30 (g) of the Registered Land Act(repealed). Such rights of a person that subsisted at the time of first registration, as evidenced by his being in possession or actual occupation, were rooted in customary law. They arose under African Customary Law. They derived their validity from African Customary Law. They were rights to which one was entitled in right only of such possession or occupation. They had no equivalent either at common law or in equity. They did not arise through adverse possession; neither did they arise through prescription. If they arose through those processes, they would be overriding interests, not under section 30(g), but under section 30(f) of the Registered Land Act (repealed).
  10. It was customary law and practice that clothed the rights of a person in possession or actual occupation with legal validity. If customary law and practice did not recognize such possession or actual occupation, then it could not be a right to which a person was entitled.
  11. A customary trust, as long as the same could be proved to subsist, upon a first registration, was one of the trusts to which a registered proprietor was subject under the proviso to section 28 of the Registered Land Act(repealed). Under that legal regime, the content of such a trust could take several forms. For example, it could emerge through evidence that part of the land registered was always reserved for family or clan uses, such as burials and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses such as construction of houses and other amenities by youth graduating into manhood. The categories of a customary trust were therefore not closed. It was for the Court to make a determination on the basis of evidence as to which category of such a trust subsisted as to bind the registered proprietor.
  12. Each case had to be determined on its own merits and quality of evidence. It was not every claim of a right to land that would qualify as a customary trust. In that regard, what was essential was the nature of the holding of the land and intention of the parties. If the holding was for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they were in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee were:
    1. The land in question was before registration, family, clan or group land.
    2. The claimant belonged to such family, clan, or group.
    3. The relationship of the claimant to such family, clan or group was not so remote or tenuous as to make his/her claim idle or adventurous.
    4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.
    5. The claim was directed against the registered proprietor who was a member of the family, clan or group.
  13. Rights of a person in possession or actual occupation of land under section 30(g) of the Registered Land Act (repealed) were customary rights. Once it was concluded that such rights subsisted a court needed not to fall back upon a customary trust to accord them legal sanctity since they were already recognized by statute as overriding interests.
  14. To prove a trust in land one needed not be in actual physical possession and occupation of the land. A customary trust fell within the ambit of the proviso to section 28 of the Registered Land Act(repealed) while the rights of a person in possession or actual occupation were overriding interests and fell within the ambit of section 30(g) of the Registered Land Act(repealed).
  15. Although the Respondents were not in possession or actual occupation of suit property, both the High Court and the Court of Appeal were entitled to enquire into the circumstances of registration to establish whether a trust was envisaged. Since the two courts were satisfied that indeed elements of a customary trust in favour of the Respondents pertaining to the parcel existed, there was no reason to interfere with their conclusions.
  16. Legislative intent could not always be attributable to what the Legislature said through statute. To assume that what Parliament did not say in the final legislative edict was never meant to be, was to tread the dangerous path of judicial cynicism. Parliament could not legislate for every exigency of human existence. Indeed, there was nothing easy when the Legislature sat to make laws; just as there was never a straight-forward or clear-cut route when a court embarked on the interpretation of a written law.
  17. The provisions of section 28 of the Registered Land Act(repealed) including the proviso thereto, were re-enacted as section 25 of the Land Registration Act. The provisions of section 30 of the Registered Land Act(repealed) were re-enacted as section 28 of the Land Registration Act. However, Parliament introduced two categories of overriding interests namely;
    1. Spousal rights over matrimonial property.
    2. Trusts including customary trusts.

The rights of a person in possession or actual occupation of land to which he was entitled in right only of such possession or occupation as previously provided for under section 30 (g) of the Registered Land Act(repealed), were no longer on the list of overriding interests under section 28 of the Land Registration Act.

  1. Customary trusts as well as all other trusts were overriding interests. Those trusts being overriding interests were not required to be noted in the register. However, by retaining the proviso to section 28 of the Registered Land Act (repealed) in section 25 of the Land Registration Act, it could be logically assumed that certain trusts could be noted in the register. Once so noted, such trusts, not being overriding interests, would bind the registered proprietor in terms noted on the register.
  2. The rights of a person in possession or actual occupation of land, as envisaged under section 30 (g) of the Registered Land Act (repealed), had been subsumed in the customary trusts under section 25 (b) of the Land Registration Act. Under section 25 (b) of the Land Registration Act, a person could prove the existence of a specific category of a customary trust, one of which could arise, although not exclusively from the fact of rightful possession or actual occupation of the land. The instant Judgment was forward looking and had no effect on cases already decided.

Appeal dismissed, Appellant to bear costs of the Appeal.



Kenya Law
Case Updates Issue 041/2018
Case Summaries

LAND LAW The Water Resources Management Authority has power to regulate the use of seawater on behalf of the State.

Water Resources Management Authority v Krystalline Salt Limited [2018] eKLR
E.L.C. Case No. 47 of 2015
High Court at Nairobi
J.K. Bor J.
April 5, 2018
Reported by Felix Okiri

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Land Law - sea water – ownership of sea water - extent of proprietary interest in sea waters at common law- whether seawater was res nullius and incapable of ownership at common law- whether the National Land Commission was mandated to levy charges for the use of seawater- National Land Commission Act
Land Law-National Land Commission-mandate of the National Land Commission- whether the National Land Commission was mandated to levy charges for the use of seawater- National Land Commission Act
Constitutional law- public land- the territorial sea and the sea bed-all land between the high and low water marks-claim that tideland constituted public land- whether tideland constituted public land-Constitution of Kenya,2010, Article 62(1)( j) ,(l)
Words and phrases – meaning of the term ‘seawater’- water from the sea or ocean that is salty- Oxford Advanced Learner’s Dictionary
Words and phrases – definitions- definition of the term ‘creek’- a narrow area of water where the sea flows into the land or a small river or stream - Oxford Advanced Learner’s Dictionary

Brief facts:
The Water Act and the Water Management Resources Rules of 2007 vested the Plaintiff (Water Resources Management Authority) with the power to issue water permits and charge water users for water use. Through Legal Notice No. 171 of September 28, 2007, water use charges were gazetted requiring water users to pay to the Plaintiff 50 cents/m3 for the raw water they abstracted for their use with effect from October 1, 2007. The Plaintiff argued that following the gazettement, the Defendant was under an obligation to pay it for the raw water it used for the commercial production of salt at the rate of 50 cents/m3 from October 1, 2007. The Plaintiff claimed that the Defendant had wilfully and deliberately refused to submit the self-assessment forms indicating the water it used for its commercial salt production forcing the Plaintiff to estimate the amount of water used by the Defendant in order to calculate the amount of water use charges due from the Defendant.
On its part, the Defendant contended that the Plaintiff had no power under the Water Act and the Water Resources Management Rules, 2007 to develop principles guidelines or procedures for the use of seawater, nor to receive nor determine applications for use of seawater.

Issues:

  1. Whether the Plaintiff had power under the Water Act 2002 and the Water Resources Management Rules of 2007 to develop principles and guidelines, and to monitor and regulate the use of seawater.
  2. Whether tideland constituted public land.
  3. Whether seawater was incapable of ownership (res nullius) at common law.
  4. Whether the National Land Commission was mandated to levy charges for the use of seawater.
  5. Whether the Water Resources Management Authority was legally mandated to charge Krystalline Salt Limited (the Defendant) for the use of seawater. Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 62(3)
Public land classified under clause (1)(f) to (m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission

United Nations Convention on the Law of the Sea
2)(1) "States Parties" means States which have consented to be bound by this Convention and for which this Convention is in force.
(2) This Convention applies mutatis mutandis to the entities referred to in article 305, paragraph l(b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent "States Parties" refers to those entities.

Held :

  1. The Water Act defined “use” in relation to water in or forming part of water resource to mean abstraction, obstruction or diversion of the water; or discharge of materials or substances into the water. Water resource was defined to mean, lake, pond, swamp, marsh, stream, watercourse, estuary, aquifer, artesian basin or any other water flowing or standing whether above or below the ground.
  2. The Water Act allowed water users to fill self-assessment forms which the Defendant declined to fill. Without filling the self-assessment forms and in the absence of evidence of the amount of seawater the Defendant used in its manufacture of salt. The Plaintiff was entitled to calculate the water charges the Defendant ought to pay based on the amount of salt the Defendant indicated on its website that it was producing. No evidence was led by the Defendant to show that the information on its website was erroneously put there by its IT officers. It could have done that by adducing evidence on the actual amounts of salt it extracted from its salt works in Magarini from 2007 to 2017.
  3. All land between the high and low water marks constituted public land under article 62(1) (l) of the Constitution. The Defendant did not therefore own the tideland as it argued.
  4. The United Nations Convention on the Law of the Sea (UNCLOS), defined the rights and responsibilities of nations with respect to their use of the world's oceans and established guidelines for businesses, the environment, and the management of marine natural resources. Section 2 of the Convention on the limits of the territorial sea provided that waters on the landward side of the baseline of the territorial sea formed part of the internal waters of the State. The Coastal State was free to set laws, regulate use, and use any resource within its internal waters.
  5. Article 2 of the Convention stated that the sovereignty of a Coastal State extended beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. The sovereignty extended to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea was exercised subject to the Convention and to other rules of international law. Under article 3, every State had the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention.
  6. Article 62(1) (i) and (j) of the Constitution defined public land to include all rivers, lakes and other water bodies as defined by an Act of Parliament (such as the Water Act) as well as the territorial sea, the exclusive economic zone and the sea bed. Article 260 of the Constitution defined land to include any body of water on or under the surface as well as the marine waters in the territorial sea and exclusive economic zone; while natural resources was defined as the physical non-human factors and components including surface and ground water. From that Constitutional definition, seawater constituted public land.
  7. Article 62(3) of the Constitution stipulated that all rivers, lakes and other water bodies as defined by an Act of Parliament; the territorial sea, the exclusive economic zone and the seabed; and all land between the high and low water marks vested in the national government to hold in trust for the people of Kenya and were administered by the National Land Commission. Seawater being public land, the State had control over it. Based on the United Nations Convention on the Law of the Sea and articles 62 and 260 of the Constitution, seawater was not res nullius. It vested in the National Government and would not be excluded from the meaning of ‘natural resources’ which were to be utilised for the benefit of the people of Kenya.
  8. There was nothing to show that under the Constitution, the mandate and powers which were being exercised by the Plaintiff were transferred to the National Land Commission. The National Land Commission Act did not mandate the Commission to levy charges for the use of seawater.
  9. Article 67 of the Constitution created the National Land Commission and clothed it with the power to manage public land and regulate the use of land on behalf of the State. That would include regulating the use of seawater as an integral component of land. The Constitution recognised that the National Land Commission had to work with other authorities and that was why article 67(f) tasked the Commission to conduct research related to land and the use of natural resources and made recommendations to appropriate authorities. Such authorities would include the Plaintiff.
  10. Article 69 (1)(h) of the Constitution enjoined the State to utilise the environment and natural resources for the benefit of the people of Kenya. That was the basis for charges imposed by the State on water use and other natural resources for the benefit of the people of Kenya. The Constitution did not envisage a situation in which the National Land Commission would levy charges or taxes. Articles 209 and 210 of the Constitution made the imposition of taxes and other charges the preserve of the national government and the county government in specified instances. No tax could be imposed, waived or varied except as provided by legislation.
  11. Article 66 of the Constitution provided that the State could regulate the use of any land or any interest in or right over any land. It was the State which regulated use of land including seawater, and not the National Land Commission. To ‘regulate’ was to control something by means of rules. The Water Act and the Water Management Resources Rules of 2007 empowered the Plaintiff to issue water permits and charge water users for water use in line with the State’s mandate pursuant to article 66 of the Constitution. The Plaintiff which was a creature of Statute, had power under the Water Act 2002 and the Water Resources Management Rules of 2007 to regulate the use of seawater on behalf of the State.
  12. Prior to the promulgation of the Constitution in 2010, the State through the Plaintiff, was well within its statutory mandate to charge the Defendant for the seawater it abstracted for salt extraction because under article 193 of the UN Convention on the Law of the Sea, States had the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.
  13. The Plaintiff was legally mandated to charge the Defendant for the use of seawater it abstracted for the salt extraction with effect from Octobet 1, 2007 when water use charges were gazetted requiring water users to pay to the Plaintiff 50 cents/m3 for the raw water they abstracted for their use until April 19, 2017 when the Water Act of 2016 was amended to expressly remove the obligation to obtain a permit or pay water use charges with regard to abstraction and or use of seawater to extract salt.
  14. The Defendant was also enjoined to pay compound interest on the sum due at the rate of 2%. The Defendant was also obligated to pay a fixed permit fee of Kshs. 135,000/= per year to the Plaintiff during that period.

Judgement entered for the Plaintiff with costs

CIVIL PRACTICE AND PROCEDURE Even though preliminary objections were to be preferably raised early during the proceedings, they could be raised at any time while the suit was still active.

Jackson Koome v M’limongi M’ikuamba & 2 others [2018] eKLR
ELC Appeal No. 1 of 2018
Environment and Land Court at Meru
M. Njoroge, J
June 29, 2018
Reported by Felix Okiri

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Civil practice and procedure -preliminary objection- time of raising a preliminary objection- where a preliminary objection was raised after 12 years of filing a suit - whether a preliminary objection on points of law could be raised by the objector at any point of the proceeding
Civil practice and procedure - institution of suits – prerequisites of institution of civil proceedings concerning an interest in land in an adjudication section – where the Respondent had filed a suit at the Trial Court without obtaining a consent from Land Adjudication Officer – a what time was such consent to be filed - Land Consolidation Act, section 8; Land Adjudication Act, section 30

Brief Facts:
The Defendants in the Trial Court filed their respective defences to the suit and later filed a notice of preliminary objection to the effect that the suit offended the provisions of section 8 of Land Consolidation Act as read with section 30 of Land Adjudication Act and sought that the suit be struck out with costs.
Upon the hearing of the preliminary objection, the Trial Court struck out the plaint. The Appellant being dissatisfied with the whole of that decision on the preliminary objection lodged the instant appeal contending that the Trial Court erred in law in finding that consent of the Land Adjudication Officer was to be filed at the time the suit was instituted.

Issue:

  1. Whether the consent of the Land Adjudication Officer was to be filed at the time of institution of suit; Whether a consent not so filed at the time of institution of suit but produced by the Plaintiff’s counsel at the hearing of the preliminary objection should be considered or acknowledged by the court.
  2. Whether it was proper to entertain and uphold a preliminary objection raised 12 years after the institution of a suit. Read More...

Relevant provisions of the law
Land Consolidation Act (Cap 283)
Section 8
Staying of land suits
8.(1)Subject to the provisions of this section, no person shall institute and no court whatever shall take cognisance of, or proceed with or continue to hear and determine, any proceedings in which the ownership or the existence under native law and custom of any right or interest whatsoever in, to or over any land in an adjudication area is called in question or is alleged to be in dispute unless the prior consent in writing of the Adjudication Officer to the institution or continuance of such proceedings has been given.
(2)No officer of any court whatever shall issue any plaint or other legal process for the institution or continuance of any proceedings which by virtue of the provisions of subsection (1) of this section are for the time being prohibited, except upon being satisfied that the consent required by those provisions has been given.
(3)Nothing in the foregoing provisions of this section shall prevent the enforcement or execution of any final order or decision given or made in any proceedings in respect of any land in an adjudication area, where such order or decision is not the subject of a pending appeal at the time of the application of this Act to such land.
(4)A certificate signed by an Adjudication Officer certifying any parcel of land to be, or to have become on a specified date, land within an adjudication area shall be conclusive evidence that the land is such land.
(5)Every certificate purporting to be signed by an Adjudication Officer shall be received in evidence and be deemed to be so signed without further proof, unless the contrary is shown.

Land Adjudication Act (Cap 284)
Section 30
Staying of land suits
30(1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.
(2) Where any such proceedings were begun before the publication of the notice under section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.
(3) Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twenty-eight days after the refusal, appeal in writing to the Minister whose decision shall be final.
(4) The foregoing provisions of this section do not prevent a final order or decision of a court made or given in proceedings concerning land in an adjudication section being enforced or executed, if at the time this Act is applied to the land the order or decision is not the subject of an appeal and the time for appeal has expired.
(5) A certificate signed by an adjudication officer certifying land to be, or to have become on a particular date, land within an adjudication section shall be conclusive evidence that the land is such land.
(6) Every certificate purporting to be signed by an adjudication officer shall be presumed to be so signed unless the contrary is shown.

Held:

  1. The mandatory terms and language employed in section 8 of Cap 283 and section 30 of Cap 284 was that the provisions of the two Acts were an absolute bar and they made the suit incompetent from its inception if no consent was filed with the suit and that implementation of that law was placed on the litigants and the Court, with additional remedial safeguards applicable where a violation of those provisions was noted.
  2. The burden of preventing the institution of the prohibited proceedings was distributed twofold: first, before the institution of proceedings. It was cast upon both the person intending to commence any proceedings and the court. Both had to ensure that the consent had been obtained beforehand. The intending litigant was to desist, and the court was to decline, the institution of a suit before consent was issued. The other measures of barring any hearing of the matter were merely supplemental to the main bar which was that no person was to institute any proceedings.
  3. The Act also recognized the probability of instances where a litigant had managed to institute the proceedings for one reason or another, including human error, notwithstanding that such a litigant had failed to obtain consent. The burden in such instances was shifted to the Court to take appropriate action to bar issuance of process, or if process had issued, to bar such suit from proceeding to hearing and determination. The suit before the Trial Court fell into that last category. Section 8 of Cap 283 and section 30 of Cap 284 opened up a window through which a preliminary objection could be raised against the suit.
  4. Proof of the obtainance of the consent had to be furnished at the time the suit was being instituted. Nullity of the suit begun at inception of the proceedings if no prior consent had been obtained and the jurisdiction of the court had not been properly invoked.
  5. Jurisdiction was everything, without which, a court of law was to down its tools in respect of a matter before it the moment it held the opinion that it was without it. Want of consent warranted the court to determine that it had no jurisdiction from the commencement of the suit, and to dismiss or strike it out.
  6. The production of such a consent at the hearing of the preliminary objection did not save the suit from dismissal as it was the production at the commencement and the satisfaction of the Court that consent had been issued at that stage, that made it possible to deem the legal requirements in either of the two sections as having been met at the time of the filing of the suit.
  7. When the suit was already rendered a nullity by reason of default of the plaintiff to satisfy the Court at the commencement of the suit, no subsequent production of a consent could redeem it.
  8. Preliminary objections on points of law could be raised at any stage of the proceedings.Whereas they were to be preferably raised early during the proceedings, they could be raised at any time while the suit was still active.
  9. There was no merit in the ground that the preliminary objection was raised after 12 years.

Appeal dismissed with costs to the Respondent.

JURISDICTION The Constitution does not envisage the creation of the position of Deputy Speaker of a County Assembly and the creation of such a position would be unconstitutional.

Douglas Bundi Kirimi v Joseph Kaberia Arimba, Speaker County Assembly of Meru & 3 others
Constitutional Reference No 26 of 2017
High Court at Meru
F Gikonyo, J
May 31, 2018
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the High Court-jurisdiction over matters relating to Standing Orders-whether the High Court had jurisdiction over a matter in which the constitutionality of the provisions of Standing Orders was questioned-Constitution of Kenya 2010, article 165(3).
Devolution Law-County Assembly-Speaker of the County Assembly-temporary absence of the Speaker of the County Assembly-whether a permanent position of Deputy Speaker could be created by Standing Orders in order to deal with the absence of the Speaker, in spite of constitutional provisions requiring the election of a temporary appointee from the membership of the County Assembly in order to deal with the Speaker's absence-Constitution of Kenya 2010, article 178(2)(b); County Governments Act, No 17 of 2012, section 9.
Constitutional Law-constitutional interpretation-interpretation of article 178(2)(b) of the Constitution-how the absence of the Speaker of a County Assembly would be dealt with-whether the Constitution would allow for such an absence to be dealt with by the creation of a permanent position of the Deputy Speaker via County Assembly Standing Orders-Constitution of Kenya 2010, article 106, 107 & 178(2)(b); County Governments Act, No 17 of 2012, section 9.

Brief facts:
The Petitioner challenged the constitutionality of the office of Deputy Speaker provided for in Standing Orders 4, 14 and 15 of the County Assembly of Meru. He stated that the Constitution recognized the office of the Speaker in article 177 and provided in article 178(2)(b) that in the absence of the Speaker, the County Assembly would appoint any other member of the County Assembly to serve in his place. He further elaborated that section 9 of the County Governments Act referred to the stated article 178(2)(b) of the Constitution. The Petitioner's case was that there was no constitutional or statutory provision that allowed for the existence of the office of the Deputy Speaker of a County Assembly. The Petitioner stated that the illegal position of Deputy Speaker in Meru County continued to attract benefits, emoluments and special allowances at public expense.

Issues:

  1. Whether the High Court had jurisdiction over a matter relating to County Assembly Standing Orders.
  2. Whether in providing for the position of Deputy Speaker, despite the fact that the Constitution did not contemplate the existence of such a position, Standing Order 14 of the Meru County Assembly was unconstitutional. Read More..

Held:

  1. A court's jurisdiction flowed from the Constitution or legislation or both and it could only exercise jurisdiction as conferred by the Constitution or written law. The Court could not arrogate to itself jurisdiction which exceeded that which was conferred upon it by law.
  2. The constitutional reference was about a matter of constitutional interpretation and a determination as to whether something done under the authority of the Constitution was or was not consistent with the Constitution. The High Court's jurisdiction to make determinations on such matters was provided for in article 165(3) of the Constitution.
  3. Standing Orders were made by the County Assembly under the authority of the Constitution and enabling legislation. They had to be consistent with the Constitution and the enabling legislation, which was the County Governments Act.
  4. Standing Order 14 of the Meru County Assembly drew its authority from article 178(2)(b) of the Constitution. Article 178(2)(b) of the Constitution provided for the election by the County Assembly of a member of the County Assembly to serve the role of the Speaker in the absence of the Speaker. Only persons elected in accordance with article 178(1) and 178(2)(b) of the Constitution were capable of exercising the functions of the Speaker. Any other person by whatever name called could only pretend to exercise the power and duties of Speaker; and of course, in violation of the Constitution.
  5. Articles 106 & 107 of the Constitution provided for Speakers and Deputy Speakers of the House of Parliament. Those provisions expressly provided for the position of Deputy Speaker with a clear procedure of appointment and the relevant duties.
  6. Standing Order 14 of the Meru County Assembly proclaimed that it gave effect to article 178(2) (b) of the Constitution. While the person elected as Speaker under article 178(2) (b) of the Constitution would serve as Speaker only for a particular time, the Deputy Speaker contemplated under the Standing Orders had a procedure for appointment and replacement in case of a vacancy in the office of Deputy Speaker. The person elected under article 178(2)(b) would not be referred to as Deputy Speaker and would only serve in the absence of the Speaker for a particular period.
  7. The drafters of Standing Order 14 attempted to borrow from constitutional provisions relating to the Speakers and the Deputy Speakers of the House of Parliament. That kind of transposition was not permissible where there was no lacuna or gap in the Constitution. Article 178 of the Constitution was clear in providing that the only person who would otherwise perform the functions of the office of the Speaker was the person elected in accordance with article 178(2)(b) of the Constitution. The County Government Act, which was in line with the Constitution, did not envisage or authorize the creation of the office of Deputy Speaker for a County Assembly.

Petition allowed.
Orders:-

  1. Judgment to be served upon the Speaker as well as the County Assembly of Meru for appropriate action.
  2. No orders as to costs.
JURISDICTION The test of whether a question was one of law or of fact was whether the appellate court could determine the issue raised without reviewing or evaluating the evidence

Sumra Irshadali Mohammed v Independent Electoral and Boundaries Commission & another [2018] eKLR
Election Petition Appeal No.22 of 2018
Court Of Appeal
At Nairobi
M. Warsame, A. Makhandia & J.O Odek, JJ.A
July 6, 2018.
Reported by Felix Okiri

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Jurisdiction-appellate jurisdiction-jurisdiction of the Court of Appeal - jurisdiction of the Court of Appeal in election petition appeals - appeals relating to matters of law - where the phrase ‘erred in law and fact was inserted in the Memorandum of Appeal – whether the Memorandum of Appeal called the Court to determine matters of fact and as a result deprived the Court Jurisdiction to entertain a matter - Elections Act, section 85A
Statutes-interpretation of statutory provisions-section 85A of the Elections Act-appellate jurisdiction in election petitions-appeals from the High Court to the Court of Appeal-the requirement that election petition appeals to the Court of Appeal were to be founded on questions of law only-the nature of questions that would constitute questions of law- the test of determining what was a matter of law in an election petition appeal -Elections Act, No 24 of 2011, section 85A.
Electoral Law – elections – election documents – Form 35B – the absence of 35B– what was the effect of the absence of Form 35B which was a material document
Electoral Law – election petition – joinder of parties – scope of parties who can be joined as respondents in an election petition – where the Returning Officer (R.O) was not enjoined as a Respondent - whether the R.O who conducted the election that was complained of was supposed to be a mandatory party to the petition –whether the non-joinder of the R.O was fatal - Elections (Parliamentary and County Elections) Petition Rules, Rule 2
Election law- election petition-scrutiny and recount of votes – where scrutiny report indicated that the original form 35B was not presented by the 1st Respondent for scrutiny due to the reason that the initial R.O had since left office and the subsequent R.O could not trace Form 35B - what was the purpose for an order of scrutiny and recount?
Judicial Officer - judge – recusal of a judge of the Court of Appeal – application for the recusal of a judge of the Court of Appeal - principles for determining the recusal of a judge – what was the test of determining bias where an application was made for the disqualification of a person from acting in a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding

Brief facts:
The Appellant was aggrieved by the conduct of the elections and the results declared by the 1st Respondent. The Appellant alleged that there were different sets of results, including: those that were announced by the returning officer (R.O); those that were shown on the public portal; and the others that were published in the Kenya Gazette. It was contended that each of those results showed different discrepancies and therefore, it was impossible to ascertain the actual results declared after the elections in Embakasi South Constituency.
The Appellant sought declarations that the 2nd Respondent was not validly elected; and that the Appellant was the validly elected Member of National Assembly for Embakasi South Constituency.

Issues:

  1. What was the jurisdiction of the Court of Appeal in appeals from election petitions?
  2. What was the test in determining whether a question was one of law or of fact?
  3. the R.O who conducted the election that was complained of was supposed to be a mandatory party to the petition or whether his non-joinder was fatal.
  4. Whether it was incumbent upon the Independent Electoral and Boundaries Commission (the 1st Respondent) to transmit results for all the elective positions.
  5. What was the authoritative set of results between the results in - 1st Respondent public portal; those published in the Kenya Gazette; and those announced by the returning officer where there was inconsistency in those different results?
  6. What was the effect of the absence of Form 35B which was a material document in parliamentary elections?
  7. What was the purpose for an order of scrutiny and recount?
  8. What was the test of determining bias where an application was made for the disqualification of a person from acting in a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding?
  9. When was the issue of margins relevant in an election other than a Presidential election? Read More..

Held:

  1. The Court’s jurisdiction was limited by section 85A of the Elections Act (the Act). The jurisdiction of the Court in appeals from election petitions was limited to only matters of law. A matter of law was that which contained any of the following elements:
    1. the technical element: involving the interpretation of a constitutional or statutory provision; the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;
    2. the evidentiary element: involving the evaluation of the conclusions of a Trial Court on the basis of the evidence on record.
  2. With specific reference to section 85A of the Act, a question of law was one 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 County Governor; the application of a provision 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 County Governor;
    2. 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 claimed 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.
  3. Under section 85A of the Act, 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, was not to be admitted.
  4. The Court was a court of justice, and where the grounds raised in the memorandum of appeal disclosed that the Court was asked to consider a matter of law, then the Court ought to consider the ground raised despite the fact that the first words as set out in the memorandum included the phrase ‘erred in law and fact.’The test of whether a question was one of law or of fact was not the appellation given to such question by the party raising the same; rather, it was whether the appellate court could determine the issue raised without reviewing or evaluating the evidence, in which case, it was a question of law.
  5. Drafting of pleadings was a technical matter. If the judge had deduced an unknown legal principle from the facts of the case to arrive at his decision, it would be preposterous to shut out a litigant simply on account of inelegance in drafting. The Court had to ensure that justice prevailed at all times and that section 85A of the Act was not used as a roadblock to shut out genuine grounds of appeal on account of poor drafting of the grounds of appeal. The memorandum of appeal clearly set out various issues of law upon which the Appellant had challenged the judgment of the Trial Court.
  6. In line with section 85A(1)(a) of the Elections Act, any record of appeal was to be filed within thirty days of the judgment sought to be appealed from. In the instant appeal, the judgment of the High Court was delivered on March 22, 2018. Rule 9 of the Court of Appeal (Election Petition) Rules also required that the record of appeal be filed within thirty days from the date of the judgment of the High Court.
  7. The record of appeal contained 14 volumes. The first 8 volumes were filed on the March 29, 2018. Those volumes were therefore within time. However, the remaining 6 volumes were out of time as they were filed between the April 2, 2018 and the April 5, 2018. The failure to file the remaining volumes was not an omission that went to the root of the appeal or in any way affected the jurisdiction of the Court. A court dealing with a question of procedure, where jurisdiction was not expressly limited in scope – as in the case of articles 87(2) and 105(1) (a) of the Constitution could exercise discretion to ensure that any procedural failing that lent itself to cure under article 159, was cured.
  8. Certain procedural shortfalls did not have a bearing on the jurisdiction of judicial power to consider a particular matter. Procedural shortcomings only affected the competence of the cause before a Court without affecting that Court’s jurisdiction to entertain them. A Court could cure such a defect, taking into account the relevant facts and circumstances.
  9. Deviations from and lapses in form and procedures which did not go to the jurisdiction of the Court, or to the root of the dispute or which did not at all occasion prejudice or miscarriage of justice to the opposite party were not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who might in many cases be innocent since the rules of procedure were complex and technical. Instead, in such instances, the Court should do justice by sparing the parties the draconian approach of striking out pleadings.
  10. While it was good practice to seek leave to file documents out of time when filing a memorandum of appeal, in the instant appeal, it was only the supplementary record of appeal that was filed late. That was the kind of defect that article 159 of the Constitution mandated the Court to cure. There was no merit in the complaint.
  11. The fact that the R.O was not joined, yet he was alleged to have participated in a scheme to rig in the 2nd Respondent amounted to condemning him unheard and would go against the rules of natural justice. It was necessary to make the R.O a party to the petition. However, the contention that the Appellant exposed himself to any risk by the said omission was not right. That was because the issue was moot having been conclusively determined as a preliminary issue and no appeal had been preferred against the said decision.
  12. The Trial Court failed to take into consideration the provisions of section 106, 107 and 110 of the Evidence Act. The said provisions bestowed upon the Respondents the duty to answer to the case of the Appellant. That was not done.
  13. While pleadings played a pivotal role, they did not lead to the conclusion that elegant or well drafted pleadings would automatically guarantee a success in a case. What guaranteed success was the evidence tendered by the parties and application of the facts on the law.
  14. Rule 2 of the Elections (Parliamentary and County Elections) Petition Rules defined a ‘Respondent’ in an election petition as including the R.O who conducted the election that was complained of. Rule 14 of those Rules further required a Respondent to file affidavits sworn by him as well as each of the witnesses that he intended to call during hearing of the petition. However, the election court had canvassed that issue and found out that the R.O was not a mandatory party to the petition.
  15. Section 39 of the Elections Act did not require the 1st Respondent to transmit results for all the elective positions, only for the presidential election. However, for reasons best known to itself, the 1st Respondent opted to electronically submit the results of the election that was subject of the appeal, and as conceded by it, made various errors in that transmission. That of itself was not a ground to vitiate an election.
  16. The results contained in the form 35A were the final results that ought to be declared. It was incumbent upon the R.O to count, collate, tabulate and declare the winner after an election. That exercise had to be based on the results contained and captured in Forms 35A from all polling stations. The tallying, tabulation and collation had to be accurate, verifiable and secure in order to meet the constitutional threshold set out under article 81 and 86 of the Constitution. That position was fortified under section 39 (1) of the Election Petition Act, which provided that the R.O was responsible for tallying, announcement and declaration of the results in the prescribed form.
  17. Free and fair elections was the fountain source of parliamentary democracy. The attempt of the R.O to use two different and divergent results to declare and gazette the winner and the Trial Court’s attempt to chart the easy course of sustaining an invalid and unsustainable results, unsupportable by evidence was a clear manifestation of dereliction of constitutional obligation and duty on the 1st Respondent and Trial Court. The R.O, as well as the Trial Court did not exercise their jurisdiction, prudently reasonably and unfortunately arrived at a perverse conclusion.
  18. The absence of Form 35B which was a material document was fatal. It was impossible to say with certainty and precision that the 2nd Respondent was the winner. Once the validity of the declaration of results of the 2nd Respondent was in question, clear doubt was created, it was mandatory to place material to persuade the Trial Court that the results, declaration and gazettement were legitimate. That was not done. The explanation proffered and decision arrived at by the Trial Court could not stand judicial scrutiny and reasoning. The results given by the 1st Respondent were not verifiable and were in violation of the mandatory requirements of articles 81 and 86 of the Constitution, section 39 and regulation 83 of the Elections Act and General Regulation.
  19. The purpose for an order of scrutiny and recount was to:
    1. Assist the court to investigate if the allegations of irregularities and breaches of the law complained of were valid. Assist the court in determining the valid votes in favour of each candidate.
    2. Assist the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process.
  20. In the instant matter, the findings of the scrutiny report indicated that the original form 35B was not presented by the 1st Respondent for scrutiny due to the reason that the initial R.O had since left office and the subsequent R.O could not trace Form 35B. Form 35B was therefore not scrutinized as per the orders of the court. The statutory documents used in the conduct of the election belonged to the 1st Respondent, and were not personal property of the various officials who were employed for the purpose of the election. The fact that an officer had left employment was therefore not ground for refusing to avail the necessary documents pursuant to court orders.
  21. Section 39(1A)(1) of the Act made it mandatory for the R.O to tally, announce and declare in the prescribed form, the final results from each polling station in the constituency for the election of a member of the National Assembly. That information had to be captured in the Form 35B and in the manner prescribed.
  22. The only way that the Court could have verified the results of the election was by determining what the results in the original forms were; however, those were not availed and as such, it could not be said that the Appellant failed to meet the burden of proof to the required standard. The 1st Respondent failed to fully and candidly discharge its duty to bring before the Court all evidence in its possession, control and within its ability to enable the Court to decide the petition. In the absence of the validated form 35B from the 1st Respondent, there was no verifiability of Form 35C.
  23. The Court had no jurisdiction to re-evaluate a factual determination unless such conclusions were based on no evidence or not supported or arising from the evidence on record or that the conclusions were so perverse, or illegal that no reasonable Court addressing its mind and wearing its judicial lenses and being conscious to the applicable legal principles would arrive at such conclusion.That was the only acceptable and required standard that inhibited the jurisdiction of the Court.
  24. With 4 different sets of results, absence of all forms 35A and refusal of the 1st Respondent to avail the original Form 35B, it was against or contrary to fair play and in negation of the principles of accuracy, verifiability and transparency to say that the 2nd Respondent legally and legitimately won the election. The Appellant placed enough and adequate material to nullify the election of the 2nd Respondent.
  25. To disqualify a person from acting in a judicial or quasi-judicial capacity on the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias had to be shown. A real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as one might readily have ascertained and easily verified in the course of his inquiries. A real likelihood of bias had to be proved to exist before proceedings were vitiated.
  26. The apprehension of bias had to be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test was what would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude. That test contained a two-fold objective element:
    1. The person considering the alleged bias had to be reasonable and the apprehension of bias itself had to be reasonable in the circumstances of the case. The reasonable person had to be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that formed part of the background and apprised also of the fact that impartiality was one of the duties the judges swore to uphold.
    2. The reasonable person was also to be taken to be aware of the social reality that formed the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.
  27. A real likelihood or probability of bias had to be demonstrated and a mere suspicion was not enough. The existence of a reasonable apprehension of bias depended entirely on the facts. The threshold for such a finding was high and the onus of demonstrating bias lay with the person who was alleging its existence.
  28. To a reasonable man, it appeared that a party who had an interest in the outcome of the election was employed by the 1st Respondent, who had a constitutional edict to remain impartial. That not only gave rise to the apprehension of bias, but also showed that there was a real likelihood of bias. The election in that tallying center was not conducted in a free and fair manner.
  29. The margin of votes between the Appellant and the 2nd Respondent was a mere 165 votes. The issue of margins in an election other than a Presidential election, could only bear transient relevance and only where it was alleged that there were counting, and tallying errors or other irregularities that affected the final result. A narrow margin between the declared winner and the runner-up beckoned as a red flag where the results were contested on allegations of counting and tallying errors at specified polling stations. Where a re-count, re-tally or scrutiny did not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow, was immaterial as a factor in the proper election-outcome. To nullify an election in such a context would contradict article 180 (4) of the Constitution. The mere description of a percentage or margin as small or wide was of no legal import, unless it was inextricably linked to a definite uncertainty as to who won an election.
  30. The election for the Member of National Assembly for Embakasi South Constituency was not conducted in accordance with the law.

Appeal allowed with costs to the Appellant
Orders

  1. The judgment of the election Court dated March 2, 2018 and the subsequent orders were set aside in their entirety;
  2. The 2nd Respondent’s application dated April 10, 2018 seeking to strike out the appeal was dismissed with costs to the Appellant;
  3. The certificate issued by the Election Court pursuant to section 86 of the Elections Act was set aside and substituted with a Certificate that the 2nd Respondent was not validly declared as having been elected as Member of National Assembly for Embakasi South Constituency during the elections held on the August 8, 2017;
  4. The 1st Respondent was directed to organize and conduct a fresh election for the position of Member of National Assembly for Embakasi South Constituency in conformity with the Constitution and the Elections Act;
  5. The Appellant was to have costs of the petition before the High Court, which costs were to be taxed by the Deputy Registrar, but in any event not to exceed the sum of Ksh.1,500,000/= to be paid equally by the Respondents;
  6. The costs to be paid to the Appellant with respect to the application as well as the appeal were not to exceed the sum of Kshs.1,000,000/= to be paid equally by the Respondents.