The National Land Commission, the County and National Governments are barred from dealing with land held, used or occupied by a State organ

Law Society of Kenya v Service & 5 others; Migot-Adholla & another (Interested Party) (Environment & Land Petition E029 of 2022) [2022] KEELC 3962 (KLR) (12 August 2022) (Ruling)
Environment and Land Court at Nairobi
OA Angote, J
August 12, 2022
Reported by Kakai Toili
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Summary Significance: The petitioner filed the instant application seeking to stay the enforcement of directives issued to the Vice-Chancellor of Kenyatta University to surrender the University’s title deed to effectuate transfer of portions of its land to various institutions. The court held among others that; the National Government, the County Government and the National Land Commission were barred from dealing with land held, used or occupied by a national State organ. The court also held that letters by the Head of Public Service and any purported Cabinet resolution with regard to the University’s land amounted to being a request to the University’s Council to set aside the land for public purpose.


Constitutional Law – constitutional commissions – National Land Commission (NLC) – powers of the NLC - whether the NLC could allocate land held, used or occupied by a national State organ on behalf of the National or County Governments – what was the rationale for exclusion of the National Land Commission, the National and County Governments from dealing with land held, used or occupied by a national State organ - what was the effect of a Cabinet resolution to alienate land belonging to a university - Constitution of Kenya, 2010, articles 62(2) and (3); Land Act, 2012 section 12.
Constitutional Law – constitutional petitions – institution of constitutional petitions - whether an entity which was not part of a university’s council had the locus standi to institute a constitutional petition challenging an alienation of the university’s land – Constitution of Kenya, 2010, article 22 and 258.
Civil Practice and Procedure – orders – conservatory orders - what was the nature of conservatory orders.
Constitutional Law – fundamental rights and freedoms – economic and social rights – right to housing – when did the right to housing over public land crystallize – Constitution of Kenya, 2010, article 60(1)(a).
Words and Phrases - locus standi – definition of locus standi- the right to bring an action or to be heard in a given forum - Black’s Law Dictionary, 9th Edition.

Brief facts:
The petitioner filed the instant application seeking to stay the enforcement of the directives contained in the letters of July 4 and 7, 2022 and or the sub division, alienation or interference with the ownership of the suit property. The letter of July 4, 2022 informed the Vice Chancellor-Kenyatta University (2nd interested party) that the Cabinet had approved allocation of the suit property to various institutions. The letter, signed by the 1st respondent, requested the University to surrender its title deed to the Ministry of Lands and Physical Planning to effectuate the transfer whereas the letter of July 7, 2022 reiterated what was contained in the earlier letter.
According to the petitioner, the University was the registered owner of the suit property and as such, its proprietary rights were protected and that a university granted a charter was a body corporate capable of acquiring, holding and disposing off immovable property. The petitioner’s case was that the 1st respondent’s actions were akin to compulsory acquisition of the suit property without following due process and that it was only the 4th respondent, the National Land Commission (NLC) who was mandated to initiate the process of compulsory acquisition of the suit property.
The petitioner further argued that the NLC and the public, pursuant to sections 12 and 14 of the Land Act, should have been involved in the allocation of a portion of the suit property to the World Health Organization (WHO), Africa Centre for Disease Control (ACDC), Kenyatta University Teaching and Referral Hospital (KUTRH) and the Ministry of Lands and Physical Planning to settle the squatters at Kamae.
The respondents took the position that the suit property was public land which was allocated to the University by the Government; that the Government had an unfettered right to compulsorily acquire public land, which acquisition could be done administratively and that the University was not eligible for compensation because it was a public body holding the land in trust for the public.

Issues

  1. Whether the National Land Commission could allocate land held, used or occupied by a national State organ on behalf of the National or County Governments.
  2. What was the rationale for exclusion of the National Land Commission, the National and County Governments from dealing with land held, used or occupied by a national State organ?
  3. What was the effect of a Cabinet resolution to alienate land belonging to a university?
  4. Whether an entity which was not part of a university’s council had the locus standi to institute a constitutional petition challenging an alienation of the university’s land.
  5. What was the nature of conservatory orders ?
  6. When did the right to housing over public land crystallize?


Relevant provisions of the law
Land Act, 2012
(1) .. Whenever the national or county government is satisfied that it may be necessary to allocate the whole or part of a specific public land, the Cabinet Secretary or the County Executive Committee member responsible for matters relating to land shall submit a request to the Commission for the necessary action by way of

(a) . public auction to the highest bidder at prevailing market value subject to and not less than the reserved price;
(b) . application confined to a targeted group of persons or groups in order to ameliorate their disadvantaged position;
(c) . public notice of tenders as it may prescribe;
(d) . public drawing of lots as may be prescribed;
(e) . public request for proposals as may be prescribed; or
(f) ... public exchanges of equal value as may be prescribed.

(2) The Commission shall ensure that any public land that has been identified for allocation does not fall within any of the following categories—

(a) public land that is subject to erosion, floods, earth slips or water logging;
(b) public land that falls within forest and wild life reserves, mangroves, and wetlands or fall within the buffer zones of such reserves or within environmentally sensitive areas;
(c) public land that is along watersheds, river and stream catchments, public water reservoirs, lakes, beaches, fish landing areas riparian and the territorial sea as may be prescribed;
(d) public land that has been reserved for security, education, research and other strategic public uses as may be prescribed; and
(e) natural, cultural, and historical features of exceptional national value falling within public lands;
(f) reserved land; or
(g)any other land categorized as such, by the Commission, by an order published in the Gazette.

Held:
  1. The term locus standi meant a right to appear in court and conversely to say that a person had no locus standi meant that he had no right to appear or be heard in such proceedings. The lack of the requisite capacity to bring a suit went to the root of the case, and without locus standi, the suit could not stand. The law on locus standi in constitutional petitions was envisaged under articles 22 and 258 of the Constitution of Kenya, 2010 (Constitution).
  2. The petition was premised upon articles 22 and 258 of the Constitution which granted every person the right to institute court proceedings claiming that a fundamental freedom in the Bill of Rights had been denied, violated or threatened. Whereas not expressly stated, the issue at hand was within the ambit of public interest. The petitioner had the requisite locus standi to move the court in the manner that it had done.
  3. Conservatory orders bore a more decided public-law connotation: for those were orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, were not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case; or high probability of success in the applicant’s case for orders of stay.
  4. In determining whether or not to grant conservatory orders, the court was alive to the fact that it had to be careful not to make a final determination of the issues in contention. It was not enough to merely establish a prima facie case and show that it was potentially arguable. Potential arguability was not enough to justify a conservatory order but rather there had to be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis.
  5. Kenyatta University was a public body and or a State organ and owned the suit property. Under article 62 (1)(b) of the Constitution, any land that was lawfully held, used or occupied by any State organ, except where it occupied such land as lessee under a private lease, was public land. Section 12 of the Land Act provided the mechanism under which public land could be allocated.
  6. The mandate of the NLC to administer land on behalf of the National and County Governments was provided for in the Constitution. That mandate was very deliberate and specific. The suit property fell within the category of land held, used or occupied by Kenyatta University, which was a national State organ. The reading of article 62(2) and (3) of the Constitution showed that the Constitution expressly barred the NLC, the County or National Governments from dealing with land held, used or occupied by a State organ in any manner, including allocation of such land.
  7. Land held, used or occupied by a national State organ was the only category of public land, pursuant to article 62(2) and (3) of the Constitution, that neither vested in the two levels of Government nor administered by the NLC on behalf of the two levels of Government. If the Constitution did not vest land held, used or occupied by a State organ in the National or County Governments, and excluded the NLC from administering it, the NLC could not allocate such land on behalf of the National or County Governments pursuant to the provision of section 12 of the Land Act. Section 12 was applicable in respect to all other categories of public land defined under article 62(1) except land held, used or occupied by a State organ, in which category the suit property fell.
  8. The exclusion of the National Government, the County Government and the NLC from dealing with land held, used or occupied by a national State organ by the Constitution was not accidental. It was a deliberate constitutional imperative to enable State organs to deal with such land pursuant to the laws governing them, and to avoid the past incidences where the Executive would deal with land reserved for State organs in any manner it deemed fit.
  9. The provisions of section 12 and 14 of the Land Act which provided the manner in which the NLC allocated public land, upon being moved by the National or County Governments, was inapplicable in the instant suit.
  10. In view of the provisions of articles 62(2)(b) and 62(3) of the Constitution, the letters of July 4, 2022 and July 7, 2022 authored by the 1st respondent, and any purported Cabinet resolution, were inconsequential, other than being a request to the 2nd respondent (University Council), just like any request that could be made by a Kenyan, for setting aside the University’s land for public purpose and or for the benefit of the University.
  11. From section 48 of the Universities Act, the manner in which a public university dealt with its land was determined by the university itself, subject to any endowment, bequest or donation. Section 60 of the Universities Act provided for the functions of the university council to include managing, supervising and administering the assets of the university in such a manner as best promoted the purpose for which the university was established.
  12. The law establishing Kenyatta University allowed the University, through its Council, to dispose of its immovable property, including land. While doing so, the Council had to comply with section 17 (8) of the Charter of Kenyatta University. The Council of Kenyatta University was supposed to administer the assets of the University, including disposing its land, in the interest of the University and the public at large, and in accordance with the procedures laid down by the Government.
  13. Where the landless occupied public land and established homes thereon, they acquired not title to the land, but a protectable right to housing over the same. The right to housing over public land crystallized by virtue of a long period of occupation by people who had established homes and raised families on the land. That right derived from the principle of equitable access to land under article 60(1)(a) of the Constitution.
  14. According to the Supreme Court in the Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable, however unrecognizable, or however transient, in public land. According to the Supreme Court, the landless people occupying public land should be allocated such land, or be compensated if any eviction was to occur. The residents of Kamae informal settlement, who, as admitted by Kenyatta University in Kenyatta University & 1699 others v Kimani Mbugua & 78 others [2021] eKLR and the NLC, had been in occupation of a portion of the suit property since 1984, had to be protected by the court.
  15. The evidence before the court showed that the University’s Council, vide its meeting of July 15, 2022 approved the re-planning of the suit property as suggested by the Cabinet for the allocation of a portion of the University land to KUTRRH, WHO, ACDC and the squatters. The Council did allocate the land in the manner suggested in the letter, and gave its reasons for doing so.
  16. The court was not shown any evidence by the petitioner, prima facie, that the University’s Council, which passed the resolution of July 15, 2022 to alienate a portion of the University land for public purpose was in the office illegally.
  17. Although the letter by the 1st interested party (who did not file an affidavit to support or oppose the application) showed that the Council rejected the alienation of the University land, that letter could not be equated to a resolution of the Council. The resolution, if it existed at all, should have been exhibited.
  18. The main lacuna in the instant application was that the same was filed on July 14, 2022, while the resolution of the Council was made on July 15, 2022. That being the case, the court expected the petitioner to file a further affidavit to counter, if at all, the Council’s resolution of July 15, 2022. That was not done despite the court having given the petitioner leave to do so when the matter came up for inter partes hearing on July 27, 2022.
  19. From the minutes of the University’s Council dated July 15, 2022, the Council, prima facie, justified the allocation of a portion of the University’s land, to wit, 30 acres to the WHO; 10 acres to the ACDC; 180 acres to KUTRRH and 190 acres to facilitate the resolution of Kamae Settlement Scheme impasse. The petitioner had not established a prima facie case with chances success.
Application dismissed with no order as to costs


Kenya Law
Case Updates Issue 005/22-23
Case Summaries

CONSTITUTIONAL LAW

Role of the court in sentencing an accused person who was mentally ill

Republic v SWN (Criminal Case 20 of 2019) [2022] KEHC 3312 (KLR) (7 July 2022) (Sentence)
High Court at Nakuru
JM Ngugi, J
Reported by Kakai Toili

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Summary Significance: The instant case was on the sentencing of an accused person who was mentally ill at the time she stabbed her son thus killing him. During sentence hearing, the accused was more accepting of her conditions and regularly attended clinic. The court held that it was one more illustration that the criminal justice system could play its rightful role in the society: to facilitate a truly just society where those who needed healing of body, mind and soul were given the opportunity and facilities to pursue it; where restoration rather than retribution was privileged.

Criminal Law - sentencing - sentencing of mentally ill accused persons - what was the role of a court in sentencing an accused person who was mentally ill.

Brief facts:
The accused person was, according to her former boyfriend and father to the deceased, a careful though sickly mother who always took care of her deceased son, aged 4, until, in the night of March 16/17, 2019, when she fatally stabbed the deceased two times on the chest with a kitchen knife killing him immediately. The accused then turned the knife on herself three times in an attempt to kill herself.
The accused was charged with one count of murder and one count of attempted suicide. For some time, a psychiatrist adjudged her unfit to take plea. The court ordered that the accused be confined for treatment where she remained for at least two months before a psychiatrist confirmed that she was fit to take plea and she pleaded not guilty to both charges. On November 22, 2021, the accused signed a plea agreement in which she pleaded guilty to the lesser charge of manslaughter.

Issue:

What was the role of a court in sentencing an accused person who was mentally ill ? Read More..

Held:

  1. The accused was a young woman in need of treatment, care and protection. She was certainly not a deranged criminal in need of retribution and confinement. During sentence hearing, the accused was upbeat about her situation. She was more accepting of her conditions. She regularly attended clinic; and more readily accepted help from her mother. She looked forward to bringing up her remaining son in a healthy environment.
  2. The probation report’s recommendation was that the best role that the criminal justice system could play in the instant case was not to punish; it was to facilitate healing and wellness; not to extract retribution but to sustain restoration. It was a happy day when the criminal justice system played that positive role.
  3. It was not a happy ending; but it was a hopeful one for the accused and her remaining son. It was one more illustration that the criminal justice system could play its rightful role in the society: to facilitate a truly just society where those who needed healing – of body, mind and soul - were given the opportunity and facilities to pursue it; where restoration rather than retribution was privileged. That was therapeutic jurisprudence in action.

One-year probationary period prescribed to the accused.
CIVIL PRACTICE AND PROCEDURE

A person with multiple nationalities was not qualified to run for public elective posts.

Njau v Gedi & 2 others; United States of America Embassy in Kenya & 3 others (Interested Party) (Constitutional Petition 10B of 2022) [2022] KEHC 11889 (KLR) (21 July 2022) (Judgment)
High Court of Kenya at Garissa
Ali-Aroni, J
Reported by Ribia John

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Civil Practice and Procedure – pleadings – petitions – constitutional petitions – form and content - requiring constitutional petitions to be pleaded with reasonable precision - whether the principle requiring constitutional petitions to be pleaded with reasonable precision was met in the instant petition - Anarita Karimi Njeru V Republic (1979) eKLR; Mumo Matemo V Trusted Soceity of Human Rights Alliance & 5 Others [2013] eKLR.
Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court vis-à-vis the mandate of the Independent Electoral and Boundaries Commission (IEBC) – mandate to certify eligible candidates to vie for public elective posts - whether the High Court had the jurisdiction to consider a case that questioned the eligibility of a candidate to vie for public elective posts on grounds that they had multiple nationalities, considering that the mandate to certify eligible candidates lay with the Independent Electoral and Boundaries Commission - whether the clearance of the 1st respondent by the IEBC (2nd respondent) to run for a public office was undertaken in accordance with the Constitution and the law – Constitution of Kenya, 2010 article 165
Law of Evidence – admissibility of evidence – admissibility of illegally obtained evidence - whether illegally acquired evidence could be admissible on grounds that failing to consider would go against public interest and would violated the values and principles of the Constitution - Constitution of Kenya, 2010, article 50(4); Evidence Act, Cap 80, section 35
Law of Evidence – burden of proof– burden of proof in constitutional petitions – principle that burden of proof lay on the one that alleges – shift of burden of proof - At what point did the burden of proof placed on a petitioner to prove allegations in a constitutional petition shift to the respondents to disprove the allegations.

Brief facts:
The petitioner challenged the clearance of the to vie for the seat of Member of Parliament Fafi Constituency in the 2022 General Elections by the the Independent Electoral and Boundaries Commission (IEBC/2nd respondent). The petitioner alleged that the 1st respondent held multiple nationalities. The petitioner presented a copy of the 1st respondent’s Kenyan National Identity Card, that indicated the 1st respondent was a Kenyan by birth; and copies of the 1st respondent’s American Passport and e-Visa application that indicated that the 1st respondent’s place of birth was Somalia and further indicated that he was Somali-American dual national.
The 1st respondent questioned the admissibly of the evidence placed before court by the petitioner obtained and as such was not admissible. The 1st and 2nd respondents also contended that the petition was not raised with precision as it did not state the alleged provisions violated and the acts and or omission leading to the alleged violation of the Constitution. Further no particulars and manner of the contravention or injury to be suffered was demonstrated.

Issues:

  1. Whether the principle requiring constitutional petitions to be pleaded with reasonable precision was met in the instant petition.
  2. Whether the High Court had the jurisdiction to consider a case that questioned the eligibility of a candidate to vie for public elective posts on grounds that they had multiple nationalities, considering that the mandate to certify eligible candidates lay with the Independent Electoral and Boundaries Commission.
  3. Whether a passport was a public or private document.
  4. Whether illegally acquired evidence could be admissible on grounds that failing to consider would go against public interest and would violated the values and principles of the Constitution.
  5. At what point did the burden of proof placed on a petitioner to prove allegations in a constitutional petition shift to the respondents to disprove the allegations?
  6. Whether the clearance of the 1st respondent by the IEBC (2nd respondent) to run for a public office was undertaken in accordance with the Constitution and the law. Read More...

Relevant Provision of the Law
Constitution of Kenya, 2010
Article 50(4)
50. Fair hearing
(4) Evidence obtained in a manner that violates any right or fundamental freedom in the bill of rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

Evidence Act, Cap 80
Section 35(1) and (2)
35. Admissibility of documentary evidence as to facts in issue
(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—

(a) if the maker of the statement either—

(i) had personal knowledge of the matters dealt with by the statement; or
(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) if the maker of the statement is called as a witness in the proceedings:

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.

(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence—

(a) notwithstanding that the maker of the statement is available but is not called as a witness;
(b) that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.

Held :

  1. The petition set out the foundation or basis of grievances and facts of the case are detailed. It articulated alleged violations, had linked the alleged acts and omission to the rights of the Petitioner and the people on whose behalf he had petitioned the court and the manner in which the articles concerned him and in view of this court thus reasonably meeting the threshold of ring constitutional petitions to be pleaded with reasonable precision.
  2. A constitutional issue was one which confronted the various protections laid out in the constitution. Such protections could be in respect to the Bill of rights or the Constitution itself. The issue had to demonstrate the link between the aggrieved party, the provision of the Constitution alleged to had been contravened or threatened and the manifestation of contravention or infringement.
  3. In as much as the issue of qualification in terms of citizenship of a nominee ought to have been considered at the clearance stage by the 1st respondent, the same was no less a constitutional question, and if for whatever reason the 1st respondent or any other organs failed to diligently consider the issue or did not fully consider the said issue leading to a violation of the Constitution the court had the duty to consider any such violation, uphold and safeguard the Constitution.
  4. The evidence placed before the court if considered would not be unfair to the administration of justice in any way. The document which had not been denied as being a copy of the 1st respondent’s passport would be of assistance to the court in determine a matter of general public importance, a matter touching on a value and principle espoused by the Constitution. It would place before the court information necessary to see if there was a violation of citizenship. The passport belonged to the 1st respondent; he had not denied it neither had he negated the assumption that it was in possession. The passport was not a public document and no matter how diligent the petitioner was he could not have gained possession of the same.
  5. The document in question was an individual’s document. Though a passport was a public document so to speak, it was in the possession of the holder thereof. The urgency of the matter required quick action. The Attorney General could not quickly access information from the Department of Immigration services. The information was relevant to the issue in question and necessary in the public interest. Therefore, balancing between the need to access the document and the interest of fair adjudication of the matter and in the circumstances of the instant matter, justice would be done if the secondary evidence was admitted.
  6. Though the 1st respondent did not have the primary duty to present his passport before the court merely because the petitioner spoke of it, the petitioner in the circumstance made a prima facie case, the 1st respondent in his own interest and in the public interest ought to have made the passport available to lay to rest the alleged issue of his multiple nationality and to prove that indeed what he enjoys was dual nationality. That was a typical case where the burden of proof shifted to the 1st respondent.
  7. Citizenship and representation of citizens were key chapters of the Constitution, they played a major role in the governance structure not to be taken lightly on the phase of allegations of violation of the Constitution. The respondents sat back and casually as if in defence of the 1st respondent, without any quick investigation through a multiagency approach to quickly put information before court to negate or affirm the issue. The petitioner had placed prima facie evidence before court but they came to court with complacency; citing the court’s lack jurisdiction in an all-important subject touching on the interpretation and protection of the Constitution and state security and one’s allegiance. The evidentiary burden had shifted to them.
  8. Article 3 of the Constitution mandated every person to up hold and defend the Constitution. The petitioner placed his evidence of the 1st respondent’s passport indicating that he was an American born in Somalia in contrast to the information on the Kenyan Identity Card which information he gave to 2nd respondent that he was born in Garissa County.
  9. The petitioner discharged his legal burden and at that point the evidentiary burden shifted to the 1st respondent to explain whether he was born in Somalia or Kenya and why the conflicting information in the two crucial nationality documents, secondly his connection to Somalia which in the American passport as opposed to his connection with Kenya which he claimed was his country of birth as well.
  10. The conflicting information in the American passport and the Kenyan National Identity card raised also the question of credibility and integrity as espoused in chapter six as read with the Leadership and integrity Act. The petitioner in the absence of any evidence to the contrary by the respondents and the 2nd, 3rd and 4th interested parties, placed before court evidence that the 1st respondent was a holder of Somalia/American and Kenyan nationalities and there was violation of the Constitution and or likely violation and /or threat to the Constitution and the law.
  11. The Constitution of Kenya permitted citizens of Kenya by birth to have dual citizenship and not multiple nationalities as is the case of the 1st petitioner. The acts and /or Omissions of the 2nd and 3rd respondents, the 2nd, 3rd and 4th interested parties failed their mandate and their obligations under the Constitution and statute. The 1st respondent failed to present documents ascertaining that he was indeed a Kenyan Citizen as prescribed by the Constitution and Electoral laws to qualify to run for the seat of Member of Parliament for Fafi Constituency. The 1st respondent was in violation of chapter 6 of the Constitution as read with the Leadership and Integrity Act. The petitioner was within his right as a Kenyan for himself and the Public Good to move this court.

Petition allowed.
Orders.

  1. Declaration issued that the acts and /or omissions of the 1st and 2nd respondents, were unconstitutional, null and void ab initio
  2. Declaration issued that the 1st respondent was not qualified to run for the position of Member of Parliament for Fafi Constituency.
  3. The 2nd respondent was ordered to withdraw its clearance certificate issue to the 1st respondent to run for the seat of Member for Parliament for Fafi Constituency.
  4. The 2nd Respondent was ordered not to print or to cause to be removed the name of the 1st respondent in the ballot papers of the elections scheduled for the August 9, 2022 for Fafi Constituency.
  5. The 1st respondent was to meet the costs of the petition.
CONSTITUTIONAL LAW

Court overturns the decision of the National Cohesion and Integration Commission followed the proper procedure laid in its decision to classify and ban the terms “hatupangwingwi” and “watajua hawajui” as hate terms.

Republic v National Cohesion and Integration Commission; Chama Cha Mawakili Limited (Exparte) (Judicial Review Application E057 of 2022) [2022] KEHC 10206 (KLR) (Judicial Review) (14 July 2022) (Judgment)
High Court at Nairobi
AK Ndung’u, J
Reported by John Ribia
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Constitutional Law – fundamental rights and freedoms – right to fair administrative action – administrators – the National Cohesion and Integration Commission - whether the National Cohesion and Integration Commission was an administrator in the meaning of the Fair Administrative Action Act - whether the mandate of the National Cohesion and Integration Commission to classify and ban hate terms/speech was an administrative action that was amenable to judicial review - whether the National Cohesion and Integration Commission followed the proper procedure laid in its decision to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms - whether the decision of the National Cohesion and Integration Commission to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms violated the petitioner’s right to fair administrative action – Constitution of Kenya, 2010 articles 33 and 47; National Cohesion and Integration Act, No.12 of 2008, section 26; Fair Administrative Action Act, , sections 2, 4 and 5.

Brief facts:
The National Cohesion and Integration Commission (the respondent) was a body that promoted national identity and values, mitigated ethno-political competition and ethnically motivated violence, eliminated discrimination on ethnic, racial and religious basis and promoted national reconciliation and healing. Part of their mandate was classifying and banning terms that they considered to be hate speech. On April 11, 2022 the respondent classifyied the words “hatupangwingwi” and “watajua hawajui” as hate speech and banned the words.
The petitioner challenged the decision of the respondent in the instant petition to ban the aforementioned terms. The petitioner faulted the respondent for unilaterally classifying the words as hate speech and contended that the ban on the words was irrational, unreasonable, made in bad faith, ultra vires and a breach of its right to fair administrative action.

Issues:

  1. Whether the mandate of the National Cohesion and Integration Commission to classify and ban hate terms/speech was an administrative action that was amenable to judicial review.
  2. Whether the National Cohesion and Integration Commission followed the proper procedure laid in its decision to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms.
  3. Whether the decision of the National Cohesion and Integration Commission to ban and/or classify the terms “hatupangwingwi” and “watajua hawajui” as hate terms violated the petitioner’s right to fair administrative action. Read More...

Relevant Provisions of the Law
Fair Administrative Action Act, Act No. 4 of 2015
Section 5
5. Administrative action affecting the public
(1) In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall–

(a) issue a public notice of the proposed administrative action inviting public views in that regard;
(b) consider all views submitted in relation to the matter before taking the administrative action;
(c) consider all relevant and materials facts; and
(d) where the administrator proceeds to take the administrative action proposed in the notice–

(i) give reasons for the decision of administrative action as taken;
(ii) issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and
(iii) specify the manner and period within the which such appeal shall be lodged.

Held :

  1. Article 47 of the Constitution granted every person the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Section 2 of the Fair Administrative Action Act (FAAA)defined an administrator as any person who took an administrative action or who made an administrative decision. The impugned action was an administrative action within the meaning of the FAAA as it affected the legal rights and interests of the applicant and other citizens who may be inclined to use the targeted words. The respondent was an administrator as defined in the FAAA in the context of the action taken.
  2. The applicant’s freedom of speech was affected by the decision of the respondent. The impugned action being an administrative action within the meaning of the FAAA brought it directly within the purview of the court’s jurisdiction conferred by section 9(1) of the FAAA. It was an action amenable to judicial review.
  3. Where an administrative action was likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, section 5(1) of the FAAA safeguarded the rights of such a group of persons or the general public by requiring an administrator to issue a public notice of the proposed administrative action inviting public vies or considering any views submitted relating to the action. There was no evidence that the respondent issued the notice or considered all material facts. Though the respondent appeared to have given reasons for the administrative action, giving the reasons at the tail end of the impugned action in the absence of hearing the affected parties could not in all possibility sanitize the action. The respondent had not issued a public notice specifying the internal mechanism available to the persons directly or indirectly affected by the action to appeal and the manner and period within the which such appeal was to be lodged.
  4. The right to be heard was cardinal and could not be derogated. The respondent undertook a crucial and sensitive role in promotion of national cohesion in an environment of pronounced diversity. The statutory power donated to it, however, had to be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and the law. However well-meaning the respondent could not get away with unilateral decisions that affected the citizenly without regard to their constitutional and legal rights topmost of which was the right to heard.
  5. Every administrator bestowed with statutory powers to make decisions or to take actions that adversely affected an individual or group of individuals was not to lose sight of the provisions of sections 4 and 5 of the FAAA and to specifically accord such person(s) notice of intended action, hear their views, consider all relevant matters, give reasons for the decision taken and inform them of the right and manner of appeal. The respondent did not follow due process in taking the impugned action. The applicant’s rights enshrined in article 47 of the Constitution and operationalized through the FAAA were trampled upon.

Petition allowed.
Orders.

  1. An order of certiorari was granted that quashed the respondent’s decision made on April 8, 2022 vide Hatelex: A lexicon of Hate Speech Terms in Kenya banning and/or classifying “Hatupangwingwi” and “watajua hawajui” as hate terms.
  2. Each party was to bear its own costs.