Kenya Law Weekly Issue 014/22-23

Held:

1. Public participation in the EIA context entailed disseminating information to members of the public about a proposed project, seeking their views on the same be it in writing or oral submissions and taking into consideration their views in decision making.
2. The law required that the lead agencies and the members of the public do participate in the EIA process through various methods. They included sending written memoranda, filling questionnaires, public hearings among other methods. Whereas it would be legally expected that all persons in the Republic of Kenya should be able to access a copy of the Kenya Gazette, read advertisements in the newspapers, listen to announcements on radio and read notices posted near the project site, it was practically impossible for residents of the informal settlements such as Chaani and Migadini estates to access some of those methods inviting them for public participation. It would be over ambitious for the residents to be expected to access page 12 of 18 the Kenya Gazette or buy newspapers every now and check out the details of the EIA study reports that were coming up for consideration.
3. To communicate more effectively in informal settlements, it would be expected that the project proponent makes deliberate efforts to invite members of the public through notices posted within areas that were closest to the proposed project site. There was no evidence of such notices during the hearing.
4. Going by the letter of the County Commissioner who was probably the highest-ranking officer of the National Government at the county level, there was a public hearing on September 25, 2019 but the letter also indicated that, attendance was quite good from both sides even though the atmosphere was highly charged. That corroborated the evidence of the appellants witnesses that there was tension in the meeting and they were prevented from adequately participating in that meeting.
5. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. Failure to take into account the requirements of public participation, as required by the law was fatal to the decision. There was no evidence that the respondents called any other public hearing after the impugned hearing of September 25, 2019 to correct the legally ineffective public hearing.
6. The public hearing could not be just mere theatrics to tick the constitutional box of public participation. Whereas the 1st respondent could not be simply vetoed by the views of the populace, it was mandatory for the populace to be heard prior to the grant of an EIA licence. The public participation for the disputed project was not done in accordance with the Environmental Management and Co-Ordination Act (EMCA) and the EIA Regulations.
7. The jurisdiction of the Tribunal was well set out under section 129 of EMCA and that jurisdiction did not include making determination on the ownership of land or title to the same. The mandate to determine the title, occupation and use of a property lay elsewhere and the Tribunal could not usurp such powers. While there could be a dispute over the property occupied by the residents of Chaani and Migadini Estates, the Tribunal could not venture into the determination of whether the residents had any rights to occupy the suit property or whether the same was owned by the Kenya Ports Authority (KPA) or any other person.
8. The powers of the Tribunal only extended to making an inquiry into whether the EIA licence granted to the 2nd respondent exposed the residents to living conditions that were dangerous or negated the rights of the residents to live in a clean and healthy environment. If the Tribunal found that such a licence exposed those residents to danger, it had a duty to protect them as long as they were there but that was not to be construed as giving the residents title to the disputed property or as a bar from eviction from the property in accordance with the law if the property indeed belonged to someone else.
9. It was not enough for the respondents to argue that the proposed project site was a dangerous zone and disregard the human life and property that could be affected by the negative impacts of the proposed project. The Tribunal could not close its eyes or shut its doors to the residents who were residing in the area adjoining the proposed project site. It was for the relevant authorities to take the requisite steps to ensure there was no human settlement in the areas where they were issuing EIA licences for such dangerous substances.
10. The initial proposed project of 30,000 MT was opposed by both the 1st respondent and the appellants on safety issues among other reasons. Upon downsizing the same to 15,000 MT, the 1st respondent proceeded to grant the EIA licence to the 2nd respondent without subjecting the same to a fresh EIA Study. The impacts of the 15,000 MT ought to be addressed in an EIA Study process and the residents be allowed to effectively participate in the same before the issuance of an EIA licence, if any.
11. Considering the poor quality of the public participation in the initial application for the EIA licence for the 30,000 MT project and the vehement objection to the same, the 1st respondent ought not to have granted the EIA licence to the 2nd respondent without subjecting the downsized project to a fresh EIA study. Should the impacts of the downsized project be dangerous to the residents or portend any other dangers to the environment, the 1st respondent had the mandate to do what was right to preserve the environment. The 1st respondent did not necessarily need to grant an EIA licence then call for a fresh EIA study report or further information where it was clear beforehand that there were gaps that required to be addressed by the project proponent.
12. Section 63 of EMCA provided that the Authority could require any proponent of a project to carry out at his own expense further evaluation or EIA study, review or submit additional information for the purposes of ensuring that the EIA study, review or evaluation report was as accurate and exhaustive as possible. That section covered the period before the issuance of an EIA licence whereas section 64 of EMCA covered the period after the issuance of the licence.
13. The 1st respondent erred in granting the EIA licence to the 2nd respondent without subjecting the downsized project to a fresh EIA study report. The appellants had made numerous prayers to the Tribunal among them a prayer that the 2nd respondent be restrained from setting up an LPG facility in any residential area within Mombasa County. The Tribunal was hesitant to issue blanket orders as to do that would prevent the relevant regulatory authorities from effectively carrying out their work which was their statutory mandate. The Tribunal being a statutory body to hear appeals from specific disputes touching on specific licences would serve the public better when approached to resolve specific disputes.

Appeals allowed; EIA licence number NEMA/EIA/PSL/9219 issued to the 2nd respondent on April 30, 2020 cancelled and/or revoked; each party to bear own costs.

Relevant provisions of the law
Constitution of Kenya, 2010
Article 47 - Fair administrative action
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall–

(a)provide for the review of administrative action by a court or, if appropriate, and independent and impartial tribunal; and
(b)promote efficient administration.

Held:

1. For a litigant to invoke the court’s appellate jurisdiction under article 163(4)(a) of the Constitution , it had to be demonstrated that the matter in issue revolved around constitutional contestation that had come through the judicial hierarchy, running up to the Court of Appeal and requiring the court’s final input. At the very least, an appellant had to demonstrate that the court’s reasoning and conclusions which led to the determination of the issue, put in context, could properly be said to have taken a trajectory of constitutional interpretation or application.
2. The issues before the High Court and Court of Appeal, leading to the impugned judgments squarely brought the instant appeal within the ambit of article 163(4)(a) of the Constitution. Besides, the 1st respondent having filed a constitutional petition and succeeded before the two superior courts could not claim that the resultant appeal therefrom was not sustainable under article 163(4)(a). The court had the jurisdiction to hear and determine the instant matter.
3. The argument that the impugned warrants which triggered the appeals were sought, issued and enforced in 2015 and as such there was no justiciable issue between the parties was far-fetched given the fact that the enforcement of the impugned warrants did not resolve the grievances. Indeed, it was the issuance of those warrants that prompted the 1st respondent to move to the High Court seeking to have them quashed.
4. Articles 47 and 260 of the Constitution did not define an administrative action. Section 2 of the Fair Administrative Action Act (FAA Act) which was enacted to give effect to article 47, defined ‘administrative action’ as including the powers, functions and duties exercised by authorities or quasi-judicial tribunals or any act, omission or decision of any person, body or authority that affected the legal rights or interests of any person to whom such action related.
5. The definition of an administrative action under section 2 of the FAA Act did not provide an accurate picture of the meaning of an administrative action. It simply addressed the elemental aspects of the phenomenon before describing its nature. On the face of it therefore, any power, function, and duty exercised by authorities or quasi-judicial tribunals constituted an administrative action. Likewise, any act, omission or decision of any person that affected the legal rights or interests of any person to whom such action related constituted an administrative action. Such definition, without more, would bring within the ambit of an administrative action just about anything done or any exercise of power by an authority or quasi-judicial tribunal.
6. A close scrutiny of article 47 of the Constitution gave a glimpse of what an administrative action entailed. Towards that end article 47 provided that Parliament was to enact legislation to give effect to the rights in clause (1) and that legislation should promote efficient administration. By stipulating that the legislation so contemplated had to among other things, promote efficient administration, the Constitution left no doubt that an administrative action was not just any action or omission, or any exercise of power or authority, but one that related to the management of affairs of an institution, organization, or agency. That explained why such action was described as “administrative” as opposed to any other action.
7. Part IV of the ACECA specifically provided for the EACC’s investigative powers. The powers granted therein included powers, privileges and immunities of a police officer under section 23(3), to search premises under section 29, to apply for surrender of travel documents under section 31, to arrest persons under section 32 amongst others. Strictly speaking, those powers when exercised could not be described as administrative actions within the meaning of article 47 of the Constitution.
8. Article 20(1) of the Constitution provided that the Bill of Rights applied to all and bound all State organs and all persons. It entrenched the enjoyment of rights and fundamental freedoms in the Bill of Rights by every person and to the greatest extent consistent with the nature of the right or fundamental freedom. The right to fair administrative action, that was expeditious, efficient, lawful, reasonable and procedurally fair was one such right under the Bill of Rights.
9. There was no basis for holding that the 1st respondent’s rights were violated for failure to observe the requirements of article 47 of the Constitution. Therefore, in the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of that claim.
10. Under section 26 of the ACECA, the EACC was required to issue a notice in writing where the Secretary to the EACC (the Secretary) was satisfied that it could assist or expedite an investigation. The language in section 26 was permissive rather than mandatory. It all depended on whether the Secretary was satisfied that the furnishing of information regarding specified property could assist or expedite an investigation. That explained why the person reasonably suspected of corruption was the one required through a notice in writing to furnish the requisite information relating to the property or properties specified in the notice.
11. If the Secretary was not satisfied that such notice would assist or expedite an investigation, then he/she did not have to issue it. The Secretary could very well be of the opinion that such notice, instead of assisting or expediting an investigation, could actually jeopardize or delay it. Such notice, if necessary, would be issued during an ongoing and not prior to an investigation. Before the conclusion that certain information was required, preliminary investigative processes had to have been undertaken.
12. Under section 27 of the ACECA, the EACC had two options, either, it could move directly and obtain an ex-parte order from court against an associate of a person suspected of corruption, requiring such associate to produce certain documents or information, or it could with notice in writing require the associate to produce the specified information. Where the EACC opted for the court process, no notice was required to be issued to the associate. Only where it chose to get the information directly from the associate was the EACC required to issue the notice in writing. The language of the statute was permissive rather than mandatory.
13. Under section 28 of the ACECA, the EACC could with notice in writing to the affected parties seek a court order requiring the production of specified records in the possession of any person whether or not suspected of corruption. The notice could be issued to any person, and not just one suspected of corruption. It could be reasonably assumed that in such a situation, the notice was to be issued before the commencement of an investigation. The section stated that such specified records could be required for an investigation, hence what was envisaged was a process of investigation that was yet to commence. That explained the fact that the notice was not confined to persons suspected of corruption but extended to any others that the EACC believed were in possession of such records.
14. Under section 28 of the ACECA, the EACC could issue notice directly to a person suspected of corruption or economic crimes, requiring him to produce specified property as opposed to specified records. The property was so required for inspection. In the instant case, it could be reasonably assumed that such notice could be issued by the EACC during an on-going investigation. Section 28 was however silent as to whether in that regard, the issuance of notice by the EACC was also dependent on the opinion of the Secretary.
15. Section 23(4) of the ACECA conferred upon the Secretary and investigators under the Act, powers, privileges and immunities of a police officer in so far as the same were not inconsistent with the provisions of the Act or any other law. Therefore, the Secretary and investigators were given police powers, which they could exercise in the course of their duties under the relevant provisions of other applicable laws. Such laws included the Police Act, the Criminal Procedure Code (CPC), the Evidence Act, among others. The EACC was not limited to the provisions of the ACECA, in carrying out its investigative mandate. Where the provisions of the ACECA were clear and unambiguous, the EACC’s first resort had to be to that enabling statute.
16. The EACC had a wide and critical mandate under the Constitution and the law to combat corruption and economic crime in the society. In executing that mandate, the EACC assumed different postures depending on the nature of the specific function it was carrying out. Thus, the EACC could assume a non-confrontational and largely facilitative role when for example, it was educating the public on the nature and vices of corruption, or conducting research into the nature of corruption, or when undertaking a systems’ review of a specific agency with a view to sealing corruption loopholes.
17. The EACC could assume a law enforcement posture, when conducting investigations into suspected corrupt conduct, effecting arrests of corruption suspects, disrupting corruption networks and through the Office of the Director of Public Prosecutions, arraigning suspects before courts of law. The EACC could assume an intelligence gathering posture, when for example it was tracing the proceeds of crime (asset tracing) with a view to recovering the same.
18. The EACC would apply different sets of laws and strategies. Regarding investigations, it all depended on what was at stake, the nature of the evidence required and the urgency with which the evidence had to be acquired. In the circumstances, it could not be said that the EACC had to always give prior notice to those it intended to investigate before commencing an investigation .
19. Sections 26, 27 and 28 of the ACECA set out very specific circumstances in which the EACC could issue notice. If the conditions so specified obtained, then the EACC could issue notice in writing to the affected parties. If the EACC was carrying out a police operation or an intelligence gathering or asset tracing exercise, it could not be required to issue a prior mandatory notice to the intended targets. In such a situation, the provisions of section 23 of the ACECA, the Evidence Act, the CPC, and any other enabling legislation came into play. At all times, whatever the nature of the investigations the EACC could be undertaking, it had to do so within the confines of the Constitution and the law.
20. The court could not state with certainty that the EACC ought to have moved to court under section 26 of the ACECA because there was no information on record showing that the Secretary had formed an opinion that the information sought was to aid or expedite the on-going investigation. Neither could the court state that the 1st appellant ought to have moved to court under section 27 of the ACECA since it was not investigating the 1st respondent as an associate of a person suspected of corruption or economic crime. The EACC ought not to have moved to court under section 28 of the ACECA, which was confined to notices requiring the production of records or property as the case could be because in that instance, the investigations had already commenced.
21. It was difficult to sustain the declaration by the Court of Appeal to the effect that, the EACC was inflexibly bound to issue notice in the conduct of its investigations. Where the EACC was acting under its police powers, it was bound by the laws pursuant to which the police conducted their investigations and connected purposes. Where it conducted investigations in circumstances where the law required it to issue written notice, then it had to issue the notice. At the end of the day, the people expected that the law enforcement agencies established under the Constitution and the law were effective enough to protect them from crime and related dangers. By the same token, the people expected that such agencies would carry out their mandates in accordance with the Constitution and the law.

Consolidated appeals allowed; judgment of the Court of Appeal dated June 28, 2019 overturned; each party to bear its own costs.

Held :

1. The national values set out under article 10(2) of the Constitution included democracy and participation of the people; equity; social justice; non-discrimination, good governance; transparency and accountability inter-alia. Once a petitioner attacked the legislative process on grounds that the law-making process did not meet the constitutional standard of public participation, the onus was on a respondent to demonstrate there was public participation that met the constitutional standards.
2. The petitioners who participated in the meetings adduced by the respondents did not dispute that they attended the meetings and that the subject of discussion was the impugned National Social Security Fund Bill. The petitioners did not expressly state that they did not participate in the process of enactment of the impugned Act. The petitioners bore the initial burden of proof that they were not involved in any and or in any reasonable public participation process during the enactment of the Bill. It was only then that the evidential burden of rebuttal shifted to the respondents to demonstrate that indeed there was reasonable public participation in the enactment process of the Bill.
3. There was no evidence adduced by the petitioners either the nature or the method used by the 1st respondent for public participation were wanting. The petitioners did not discharge their onus of proof for the burden of rebuttal to shift to the respondents. Therefore, the presumption of legality of the impugned Act applied in the instant case and indeed there was reasonable public participation in the enactment of the Bill.
4. The impugned Act dealt with matters to which the Senate and the National Assembly had concurrent jurisdiction and specifically matters finance, budget and planning and public service in that it imposed mandatory and optional pension schemes for public officers in the National and County Governments even though the Act avoided to mention county governments expressly. Consequently, failure by the National Assembly to involve the Senate in the process of enacting the impugned Bill was fatal to the impugned Act.
5. Article 10, 20, 191(5) and 259 of the Constitution provided a guide to statutory interpretation under the constitutional order. The provisions thereof created an obligation to interpret all legislation in a manner that promoted the spirit, purport and objects of the Bill of Rights. That meant that all statutes, including the impugned Act had to be interpreted through the prism of the Bill of Rights.
6. When the constitutionality of legislation was in question, a court had to examine the objects and purport of that legislation and read the provisions of the legislation, as far as was possible, in conformity with the Constitution. A judicial officer had to prefer an interpretation of legislation that fell within constitutional bounds over one that did not, provided that such interpretation could be reasonably ascribed to the legislation within reasonable limits in the application of that principle.
7. The right to social security was of central importance in guaranteeing human dignity for all persons when they were faced with circumstances that deprived them of their capacity to fully realize their constitutional and covenant rights under the International Covenant on Economic, Social and Cultural Rights. The duty was on the State to avail resources, allocate resources and remove barriers which could interfere with such allocation of resources since that was not permissible on the basis that the State would have reached a different conclusion outlined under article 43(5)(c ) of the Constitution. The resources to be availed and allocated should emanate from the State pursuant to article 45 of the Constitution. For the fund to remove such duty from the State to the registered members was an overreach on its statutory mandate.
8. Article 35 of the Constitution secured the right to access to information held by another person and required for the exercise or protection of any right or fundamental freedom. The rights under article 35 were further actualized under the Access to Information Act, 2016 and the guidelines thereof. Every registered member was required to open and have an individual account and allowed access to information therefrom. Such an individual account was to be credited all contributions made to the pension fund by and in respect of each member of the pension fund.
9. Information available under the individual account was pursuant to section 24(2) of the impugned Act. Further, section 24(7) granted access rights through electronic and manually from the offices of the fund. There was nothing under section 20(2) of the Act which demonstrated how the constitutional right with regard to access to information would be negatively affected under the impugned Act.
10. Section 19(2) of the impugned Act had created a link between registration with the fund and access to other Government services. The impugned Act was predicated on the right to social security and to provide for contributions to and the payment of benefits out of the fund. For that purpose, employer and employees were required to register with the fund as well as voluntary members. The preconditions of the public services to be restricted where there was no registration were not defined.
11. Provision and access to public services was a State function which should only be limited within the parameters of the Constitution and the law. For the precondition of registration under the fund so as to allow access to public services to be lawful, the reason given had to not only be lawful, but it had to meet the article 24 of the Constitution test .
12. The import of section 19 of the impugned Act was to ensure registration with the fund and to effect contributions by among other persons, voluntary members. Such objective, though novel, was inherently addressed by the requirement that all persons described under the Act as employers and employees should register with the fund and voluntary contributors encouraged registering as members. There was therefore no legitimate purpose to be achieved by creating a precondition for registration linked to undefined dealing with or access to public services. The fund had to market its objectives in an open and democratic society and adopt measures carefully designed to achieve such objectives. Such had to be rationally connected to the objective to obtain as many members as possible from the registerable public.
13. From a reading of the entire section 19 of the impugned Act and indeed the entire Act, there was no justification given for the precondition requirement which predicated access to public services upon membership of the fund. Such provision was overreaching without good cause and created an unnecessary limitation that could not be justified in an open and democratic society secured under article 20(4)(a) of the Constitution and which then in essence violated article 21(1) which created a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights,
14. Article 47(1) of the Constitution on the right to fair administrative action and 232(1) on the right to equal protection and benefit of the law, fair administrative action and on the values and principles of the public service respectively would be an impediment were the provisions of section 19(2) of the impugned Act to be operationalized. Section 19(2) was unconstitutional to the extent of its preconditions and restrictions as a precondition of dealing with or accessing public services undefined under the Act. The precondition portended no legitimate purpose.
15. In the finance, administration and management of the fund section 49(2) of the impugned Act required that the fund should invest any of its funds which were not for the time being required to be applied for the purposes of the fund in accordance with the provisions of the Retirement Benefits Act (RBA Act). The requirements were in addition to requirements imposed by the Retirement Benefits Act pursuant to section 71 of the impugned Act. Section 38 of the RBA Act created restrictions on use of scheme funds . Those provisions were complimentary and not in conflict. Funds which were not for the time being required to be applied for the purposes of the fund should be invested in movement securities or infrastructure bonds issued by public institution as those were public funds for the benefits of the members.
16. The reading of the provisions under section 18 of the impugned Act revealed a solution to the matter under subsection (3) and which resolved the issue of assets and liabilities arising out of the repealed Act. The individual member account known as the pension fund credit to which should be credited all contributions made to the pension fund by and in respect of each member of the pension fund. The account should have a breakdown of the employer and member contributions outlined separately. Section 51 of the impugned Act directed that keeping of proper books of accounts in relation to the old provident fund and pension fund and all undertakings, investment activities and properties and to render annual accounts. Those provisions well insulated any member under the old provident fund, the provident fund and pension fund.
17. A reading of section 17 of the impugned Act was that the appointed compliance officer was bound by the rules of natural justice in the execution of such mandate and was required to only sanction conduct that was found to be refusal and or neglect to furnish information by willful delays or obstruction in the exercise of any power under that section.
18. Under section 13 of the impugned Act the remuneration, fees and allowances of the board and committee members thereof was subject to the approval of the CS Labour. The SRC mandate was codified under article 230(4)(a) of the Constitution read together with section 11 of the Salaries and Remuneration Commission Act (SRC Act). Under section 11 of the SRC Act, the SRC was conferred with additional functions to those set out under article 230(4). The SRC was the independent constitutional commission mandated to set and regularly review the remuneration and benefits of all State officers and to advise the National and County Governments on the remuneration and benefits of all other public officers. It was to set and regularly review the remuneration and benefits of all State officers.
19. State corporations were creatures of the National Government and its officers were so regulated. Any funds drawn out of such entities were subject to Public Finance Management Act as such were public funds. The fund under the impugned Act could not therefore arrogate such function/mandate to approve the remuneration payable to board and committee members to the CS Labour under section 13 of the Act. Though the sittings of the board and its committees were regulated under section 11 and 12 of the impugned Act funds drawn for payment of any remuneration, fees and allowances were drawn from members’ contributions to the fund were regulated under Part VI of the Act and which comprised public funds. For checks and balances, the mandate of the SRC was imperative.
20. The notion that section 27 of the impugned Act was unconstitutional for charging of interest on late payment without a provision that such interest should be credited to a member’s account was incorrect in the context of section 24(2)(d) and (4) of the Act stated in mandatory terms that all interests charged should be credited into the individual member account. A statement therefrom should also reflect the interest credited into the account.
21. The principles governing public finances mandated all State actors to abide the values of openness and accountability, including public participation. Those were the principles addressed under article 201 of the Constitution and article 227(1) on procurement of public services. The challenged provisions under section 35(4) of the impugned Act in their nature were self-enforcing and did not in any manner relate and or linked to articles 201 or 227(1).
22. A validly nominated beneficiary could be rejected by the board subjection to being furnished with written reasons thereof. Section 47(3)(a) of the impugned Act allowed an appeal to the trustee and further under subsection (3) a member or an aggrieved party was allowed a reference to the court on any question of law arising in connection with the determination of any question by the managing trustee any officer or agent of the fund or the tribunal, and for appeals to court from the decision of the managing trustee, any officer or agent of the fund or the tribunal on any such question of law.
23. The payment addressed under section 37(1) of the impugned Act arose in the unfortunate demise of the contributing member before the pensionable age and at the time was contributing to the pension fund at the time of his death and not less than thirty-six monthly contributions had been made by the member immediately preceding the date of death. The contention that the provisions pegged the payment of benefits to 36 months and hence a denial of the total contributions by the deceased member was not correct. That was more so putting into context the provisions of section 37(2) thereof.
24. The benefits payable under section 37(1) of the impugned Act resulted from the total aggregate equal in value to the member’s credit. For members under Tier I, there was an increase by a multiplier of half the number of months of potential employment from the date of death to the envisaged pensionable age and 90 months. Such benefit accrued to the beneficiary without any disadvantage save for the demise of the contributing member. In any event, section 37(6) made sufficient and adequate provisions towards benefits of a survivor’s family members. Those provisions were reasonable and justifiable in an open and democratic society based on human dignity and not prejudicial to the beneficiaries in any manner.
25. In as far as section 20 of the impugned Act made it mandatory to contribute to the fund , it violated rights of employees and employers ’ free choice. It especially violated the rights of employees who were members of other pension funds and who were members of trade unions with collective bargaining agreements providing categorically that gratuity was payable and those who were on casual employment, on fixed term contracts and piece rate workers. For members who were already under exiting contributory schemes, there was no constitutional justification to deny contributors their choice of pension scheme to subscribe to as the impugned Act had done which was contrary to article 49 of the Constitution.
26. In employment and labour relations, any matter relating to discrimination had to be addressed within the confines of article 27 of the Constitution read together with section 5 of the Employment Act, 2007. Both prohibited discrimination against any person under the listed grounds of race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth, national extraction or social origin which had the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
27. Differential treatment did not necessarily lead to discrimination. Discrimination meant affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description were subjected to restrictions to which persons of another description were not made subject or had accorded privileges or advantages which were not accorded to persons of another such description. Discrimination also meant unfair treatment or denial of normal privileges to persons because of their race, age, sex, a failure to treat all persons equally where no reasonable distinction could be found between those favoured and those not favoured.
28. Article 27 of the Constitution advocated for non-discrimination as a fundamental right which guaranteed that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. Under section 26 of the impugned Act the CS Labour was given the mandate to make regulations with regard to voluntary registration of person outside the defined relationships under section 23 of the Act. Save for the singled-out issues, the provisions covered all aspects of contracts of service and contracts for service and inclusive of any party seeking to be registered as a member of the fund under the Act hence removing any aspect of the alleged discrimination.
29. Under article 10(1)(b) and (c) of the Constitution, Parliament was obliged to observe national values and principles whenever it made policy decisions and enacted legislation. Section 3 of the Competition Act provided for objectives of the Competition Act, among the objectives was to protect consumers of services and products. Section 4(a) defined competition as meaning competition in a market in Kenya and referred to the process whereby two or more persons supplied or attempted to supply to or acquired or attempted to acquire from, the people in that market the same or substitutable goods or services.
30. In the case of getting into a pension scheme, the impugned Act favored the fund over other pension providers as social security providers in the entire country. The implementation of the impugned Act would therefore kill or stifle other pension and social security schemes across Kenya. Therefore, the impugned Act was in conflict with the Competition Act.

Consolidated petitions partly allowed; each party to bear own costs.
Orders:

1. A declaration was issued that the impugned Act had implications on county finances and therefore the Bill ought to have been tabled before the Senate prior to its enactment in terms of articles 205(1) and 110 of the Constitution and to that extent the Act was null and void.
2. A declaration was issued that the impugned Act’s provisions were inconsistent with the provisions of article 10(1)(b) and (c) of the Constitution as read with section 3 of the Competition Act by giving the fund a monopoly in the provision of pension and social security services in Kenya and to that extent was unconstitutional, null and void.
3. To the extent that section 13 of the impugned Act required the payment of allowances and fees approved by the CS for Labour, a mandate of the SRC, section 13 was in conflict with article 230(4) of the Constitution and was therefore null and void.
4. Section 19(2) of the impugned Act required access to public services upon membership of the fund, section 19(2) was in conflict with articles 21(1), 47(1) and 232(1) of the Constitution and to that extent unconstitutional, null and void.
5. Section 20 of the impugned Act which made it mandatory to register and contribute to the fund and obliged the petitioner's members (and other employees who had adequate alternative pension or social security schemes) to join the pension or social security schemes operated by the 1st respondent violated rights of employees and employers’ free choice contrary to article 49 of the Constitution and thereby declared null and void.
6. An order was issued restraining the 1st and 2nd respondents from applying the impugned Act on the petitioners’ members (or any other employees who had adequate alternative pension or social security schemes) unless they opted in.
7. An order of injunction was issued prohibiting and restraining the respondents by themselves, their servants, agents, assigns or any person claiming through them or otherwise from demanding, compelling and or requiring mandatory registration, enrolment or listing of any employer or employee whether registered as a member of any retirement benefit scheme or not to register, enroll or list and contribute their earnings or any part thereof in terms of the impugned Act.