Sections 77(1) and (3) of the Penal Code declared unconstitutional for limiting the right to freedom of expression and for being broad and vague

Headnote: The petition challenged the constitutional validity of section 77 of the Penal Code on the ground that it limited the freedom of expression through the vaguely worded offence of subversion. The court held that the provisions of the section 77 were over broad and vague, and they limited the right to freedom of expression and there was lack of clarity as to the purpose and intent. The court finally declared sections 77(1) and (3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code as unconstitutional.

Katiba Institute & 8 others v Director of Public Prosecutions & 2 others; Ayika (Interested Party) (Petition E016 of 2023) [2024] KEHC 2890 (KLR) (18 March 2024) (Judgment)
Neutral citation: [2024] KEHC 2890 (KLR)
High Court at Nakuru
SM Mohochi, J
March 18, 2024
Reported by Kakai Toili
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Constitutional Law – constitutionality of statutes – constitutionality of section 77(1) and (3) of the Penal Code – where section 77 of the Penal Code provided for the offence of subversive activities - whether sections 77(1) and (3) were unconstitutional for limiting the right to freedom of expression and being over broad and vague - whether the derogation of the freedom of expression in section 77(1) was a derogation envisioned under article 24(2) of the Constitution on the limitation of rights and fundamental freedoms – Constitution of Kenya, 2010, articles 24 and 33; Penal Code, Cap 63, sections 77(1) and (3).
Constitutional Law – interpretation of the Constitution – factors to consider in constitutional interpretation - what were the factors to consider in constitutional interpretation – Constitution of Kenya, 2010, article 259.
Constitutional Law – constitutionality of statutes - factors to consider in determining the constitutionality of statutes - what were the factors to consider in determining the constitutionality of statutes.

Brief facts
The interested party using his verified twitter/x handle account posted among others that people should prepare for an army to take over Government for the 90 days then there would be elections. The interested party was subsequently arrested and charged with subversive activities contrary to section 77(1) (a) of the Penal Code. It was the 1st and 2nd respondents’ contention as particularized on the interested party’s charge-sheet, that the words were prejudicial to the public order and security of Kenya and which information was calculated to cause panic and chaos among citizens of Kenya.
The petition challenged the constitutional validity of section 77 of the Penal Code, Cap 63. The petitioners claimed that the section limited the freedom of expression through the vaguely worded offence of subversion. The petitioners sought for among others a declaration that, section 77(1) and (3) of the Penal Code are unconstitutional.

Issues
  1. Whether section 77(1) and (3) of the Penal Code was unconstitutional for limiting the right to freedom of expression and being over broad and vague.
  2. Whether the derogation of the freedom of expression in section 77(1) of the Penal Code on subversive activities was a derogation envisioned under article 24(2) of the Constitution on the limitation of rights and fundamental freedoms.
  3. What were the factors to consider in constitutional interpretation ?
  4. What were the factors to consider in determining the constitutionality of statutes?
Relevant provisions of the law
Penal Code, Cap 63, Laws of Kenya
Section 77 - Subversive activities
(1) Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with a subversive intention, is guilty of an
(3) For the purposes of this section, "subversive" means—
(a) supporting, propagating (otherwise than with intent to attempt to procure by lawful means the alteration, correction, defeat, avoidance or punishment thereof) or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice;
(b) inciting to violence or other disorder or crime, or counselling defiance of or disobedience to the law or lawful authority;
(c) intended or calculated to support or assist or benefit, in or in relation to such acts or intended acts as are hereinafter described, persons who act, intend to act or have acted in a manner prejudicial to public order, the security of Kenya or the administration of justice, or who incite, intend to incite or have incited to violence or other disorder or crime, or who counsel, intend to counsel or have counselled defiance of or disobedience to the law or lawful authority;
(d) indicating, expressly or by implication, any connexion, association or affiliation with, or support for, any unlawful society;
(e) intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the removal of any causes of hatred or enmity between races or communities;
(f) intended or calculated to bring into hatred or contempt or to excite disaffection against any public officer, or any class of public officers, in the execution of his or their duties, or any naval, military or air force or the National Youth Service for the time being lawfully in Kenya or any officer or member of any such force in the execution of his duties:
Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the remedying or correction of errors, defects or misconduct on the part of any such public officer, force or officer or member thereof as aforesaid and without attempting to bring into hatred or contempt, or to excite disaffection against, any such person or force; or
(g) intended or calculated to seduce from his allegiance or duty any public officer or any officer or member of any naval, military or air force or the National Youth Service for the time being lawfully in Kenya.

Held
  1. The transformative constitutional design deliberately appreciated that Kenyans wanted a break with the dark past, the entire system of law was a colonial hand-down with very minor and cosmetic variations that were intended for self-preservation and colonial repression. The need to align legislation with the Constitution shall entail a continuous scrutiny and examination of statutes and provisions thereof that were no longer fit for purpose.
  2. The developing precedent on constitutional interpretation from the superior courts had evolved and coalesced as follows:
    1. Article 259 of the Constitution as a mandatory principle obliged courts to protect and promote the spirit, purposes, values and principles of the Constitution, advance the rule of Law, human rights and fundamental freedoms in the Bill of Rights and contribute to good governance while permitting development of the law.
    2. The Constitution must be construed holistically, liberally, purposively and in a broad manner so as to avoid a narrow and rigid interpretation tainted with legalism.
    3. The Constitution must be interpreted in a contextual manner, that courts were constrained by the language used and so could not impose a meaning that the text was not reasonably capable of bearing. Furthermore, constitutional interpretation did not favour a formalistic or positivistic approach but a generous construction of the text in order to afford the fullest possible constitutional guarantees.
    4. In considering the purposes, values and principles while interpreting the Constitution, courts must take into account the non-legal phenomena by reflecting on the history of the text.
    5. Constitutional interpretation demanded that no one provision of the Constitution should be segregated from the others or be considered alone. The provisions were to be interpreted as an integrated whole so as to effectuate the greater purpose of the Constitution.
    6. Where there was an impugned provision in a statute the same must as much as possible be read in conformity with the Constitution to avoid a clash.
    7. The court ought to examine the object and purpose of the Act (statute) and if any statutory provision read in its context could reasonably be construed to have more than one meaning the court must prefer the meaning that best promoted the spirit and purposes of the Constitution.
    8. The principles of interpretation required that the words and expressions used in a statute be interpreted according to their ordinary literal meaning in the statement and in the light of their context.
  3. When the constitutionality of a statute or provision of a statute was called to question, the court was under obligation to employ the constitutional mirror laying the impugned legislation or provision alongside the article(s) of the Constitution and determine whether it met the constitutional test. The court must also check both the purpose and effect of the section or the Act, and see whether any of the two could lead to the provision being declared unconstitutional. That was to say, the purpose of a provision or effect thereof, may lead to unconstitutionality of the statute or provision.
  4. Where criminal prosecution had been undertaken by the Director of Public Prosecutions under the mandate conferred by article 157(6) of the Constitution, the court could only interfere under article 157(11) thereof where any of the principles in that sub-article were flouted.
  5. Any law that conflicted with the Constitution was void to the extent of the inconsistency, and any act or omission in contravention of the Constitution was invalid. There was also a rebuttable presumption of legality, that the Act or provision was intended to serve the people and was therefore constitutional. The onus was always on the person challenging the legislation to prove the unconstitutionality alleged.
  6. The offence as created by section 77(1) and (3) of the Penal Code was a felony offence. The offence created was a derogation to the freedom of expression and the court was thus called upon to determine whether that derogation was a reasonable and a justifiable limitation of the freedoms of expression in an open and democratic society based on human dignity, equality and freedom under article 24 of the Constitution.
  7. Freedom of expression and the rights to information were the cornerstone of any democratic State and every person had the right to freedom of expression, which included, freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.
  8. As a derogation, the right to freedom of expression did not extend to, propaganda for war; incitement to violence; hate speech; or advocacy of hatred that;-
    1. constituted ethnic incitement, vilification of others or incitement to cause harm; or
    2. was based on any ground of discrimination specified or contemplated in article 27(4).
  9. While there was no cogent evidence or material placed before the court in regard to the tweets by the interested party being subject to limitations under article 24(2) of the Constitution and that the tweet was a propaganda for war and incitement to violence as justification of the constitutionality of the provision by the 2nd and 3rd respondents, the tangent was a chilling reminder of the liberal and broad interpretation on making a decision to prosecute that led to prosecution for a felony and the possibility for abuse of such provision.
  10. The purported breach of law or illegal act created by section 77 of the Penal Code, could not be discerned in the provision itself, the section encompassed any person who did, attempted to do, made any preparation to do, conspired with any person to do, with a subversive intention, or uttered any word(s) with a subversive intention and a secondary definition as contained in section 77(3) on “subversive” where in a tautologous language to “Wanjiku”, the meaning of “subversive” took in quite a variety of activities, and that its contents were therefore broad and wide that it was vague or indefinite.
  11. The purported breach of law or illegal act created by section 77 of the Penal Code ultimately failed to define what subversive intention would constitute. The only stark aspect of that provision was where automatically under section 77(1) an offence was created without ingredients, need for the intention or knowledge of wrongdoing that constituted part of a crime “mens rea”, whereby any person who uttered any words with a subversive intention was guilty of an offence and was liable to imprisonment for a term not exceeding seven years.
  12. The last limb of section 77(1) of the Penal Code created a derogation to the right to freedom of expression as the human conduct of uttering was ordinarily in human expression and that the derogation was blanket in form, “subversive intention” remained undefined leaving the prosecutor to conjure and that even with the definition of “subversion” under section 77(3) it remained a mystery what conduct would constitute an offence where one uttered any words with a subversive intention.
  13. The purported derogation to the right to freedom of expression created in section 77(1) of the Penal Code existed prior to the promulgation of the Constitution and would thus not be a derogation envisioned under article 24(2) of the Constitution.
  14. The court took judicial notice of the legal framework subsisting with regard to Public Order Act, Cap 56, an Act of Parliament to make provision for the maintenance of public order, and for purposes connected therewith and Official Secrets Act Cap 187, an Act of Parliament to provide for the preservation of State secrets and State security, the National Cohesion and Integration Act of 2008 and Act to provide for specific legislation limiting the right the right to freedom of expression to, propaganda for war; incitement to violence; hate speech; or advocacy of hatred that;-
    1. constituted ethnic incitement, vilification of others or incitement to cause harm; or
    2. was based on any ground of discrimination specified or contemplated in article 27(4) of the Constitution.
  15. The framework and legislation derogating the right to freedom of expression created offences that were misdemeanor in classification with a penalty of imprisonment for a term not exceeding three (3) years or a fine of not more than Kshs 1,000,000 for the offence of hate speech and the offence of incitement to ethnic contempt.
  16. Section 77(1) and (3) of the Penal Code was a colonial legacy which limited freedom of expression through the vaguely worded offence of subversion. The provisions of the section 77 were over broad and vague , and they limited the right to freedom of expression and there was lack of clarity as to the purpose and intent.
  17. The limitation in section 77 of the Penal Code was not provided by law. The section was vague and over-broad firstly by not explicitly limiting the freedom of expression but adding the limitation on to other acts or conduct , there existed confusing definition of subversion especially about the meaning of "prejudicial to public order, security of Kenya and administration of justice", "in defiance of or disobedience to the law and lawful authority; unlawful society" or "hatred or contempt or excite disaffection against any public officer or any class of public officer". None of the terms used in the offence were defined or capable of precise or objective legal definition or understanding.
  18. The 1st and 3rd respondents had not justified the necessity of the provisions in section 77 of the Penal Code as pursuing a legitimate aim, and being strictly necessary in an open and democratic society, that provision served no legitimate aim and was not strictly necessary in an open and democratic state. In fact, there existed least restrictive measures in derogation to the freedom of expression.
  19. The interested party elected to spectate on the sidelines, and did not participate by filling any submissions, thereby making it difficult to issue any orders of prohibition, however having found the provisions of section 77 of the Penal Code to be unconstitutional, no criminal prosecution may be sustained under that provision and the 1st respondent had the constitutional mandate to determine whether or not to proceed with the prosecution of the interested party with regard to the facts alleged against him should they disclose an offence under any other provision of law.
Petition allowed.
Orders
  1. A declaration was issued that, section 77(1) and (3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code, Cap 63, was unconstitutional .
  2. A declaration was issued that, the continued enforcement of section 77(1) and (3)(a), (b), (c), (d), (c), (e) (f), and (g) of the Penal Code by the respondents against the interested party or any member of the public was unconstitutional.
  3. No orders as to costs.


Kenya Law
Case Updates Issue 038/23-24
Case Summaries
EVIDENVCE LAW Governing principles on allowing the filing of additional or new evidence

Headnote: The applications sought leave to adduce new and additional evidence and orders to strike out the 1st respondent’s submissions for non-compliance with the directions of the Deputy Registrar of the court as well as Supreme Court (General) Practice Directions, 2020. The court highlighted the governing principles on allowing the filing of additional or new evidence.

Garama v Karisa & 3 others (Petition E020 of 2023) [2024] KESC 1 (KLR) (16 February 2024) (Ruling)
Neutral citation: [2024] KESC 1 (KLR)

Supreme Court of Kenya
MK Koome, CJ, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola & W Ouko, SCJJ
February 16, 2024
Reported by Kakai Toili


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Evidence Law – evidence - filing of additional or new evidence - what were the governing principles on allowing the filing of additional or new evidence.

Brief Facts
Before the court were two separate applications; the first application was by the 2nd and 3rd respondents dated October 13, 2023, seeking leave to adduce new and additional evidence while the second application dated October 13, 2023, was by the appellant seeking orders to strike out the 1st respondent’s submissions for non-compliance with the directions of the Deputy Registrar of the court as well as Supreme Court (General) Practice Directions, 2020.
The 2nd respondent contended that the additional evidence was not for the purpose of removing lacunae and filling gaps in evidence but was needful to assist the court in making its determination in the interest of justice. The 2nd and 3rd respondents’ submitted that the additional evidence was directly relevant to the issue regarding the election result for Mapimo Youth Polytechnic polling station 1 of 6 and that it was likely to influence the court’s determination of whether the process of opening the ballot boxes to retrieve the original Form 35A and consequential recount met the tests of transparency.
The appellant contended that the Deputy Registrar issued directions that all parties present file their submissions within the stipulated timelines; however, the 1st respondent in total disobedience of the court’s directions filed two sets of submissions, one for his preliminary objection and the other for the main petition. The appellant further contended that the 1st respondent disregarded Direction 17 of the Supreme Court (General) Practice Directions, 2020 by exceeding the limit of 15 pages and the font size requirement.

Issue:

  1. What were the governing principles on allowing the filing of additional or new evidence? Read More..

Held:

  1. Section 20(1) of the Supreme Court Act, 2011 granted the court the authority to admit further evidence in determining an appeal, where it considered necessary and appropriate. Section 20(2) provided for things to consider in admitting additional evidence. The governing principles on allowing the filing of additional or new evidence were as follows:
    1. the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;
    2. it must be such that, if given, it would influence or impact upon the result of the verdict, although it needed not be decisive;
    3. it was shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
    4. where the additional evidence sought to be adduced removed any vagueness or doubt over the case and had a direct bearing on the main issue in the suit;
    5. the evidence must be credible in the sense that it was capable of belief;
    6. the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;
    7. whether a party would reasonably have been aware of and procured the further evidence in the course of trial was an essential consideration to ensure fairness and due process;
    8. where the additional evidence disclosed a strong prima facie case of willful deception of the court;
    9. the court must be satisfied that the additional evidence was not utilized for the purpose of removing lacunae and filling gaps in evidence. The court must find the further evidence needful.
    10. A party who had been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.
    11. The court would consider the proportionality and prejudice of allowing the additional evidence. That required the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.
  2. Applying the principles of allowing the filing of additional or new evidence, the 2nd and 3rd respondents at all material times had knowledge of the existence of and were in actual custody of the additional or the so-called new evidence during the trial of the matter in the superior courts below. They admitted that the additional or the so-called new evidence was in their custody and had not reasonably explained to the court why the evidence was not produced before the trial court or was not part of the record despite the trial court having custody of the same. It was upon them to adduce and point out the evidence and its relevance to the trial court, whether or not it was part of the record, and not wait until the second appeal to do so.
  3. The 2nd and 3rd respondents not only had prior knowledge of, but were in actual possession of the additional or the so-called new evidence, their attempt to adduce additional or new evidence before the court was intended to fill up omissions or patch up the weak points in their case which action, the court refused to countenance. Consequently, the application seeking to adduce additional evidence failed and was dismissed.
  4. A perusal of the impugned submissions revealed that the 1st respondent filed two separate submissions, the submissions in respect of the appeal were 14 pages while the submissions in support of the preliminary objection were 12 pages. The Deputy Registrar’s directions issued on September 18, 2023, were clear that the 1st respondent ought to file composite submissions in respect of the appeal and the preliminary objection. The 1st respondent failed to comply with those directions but instead filed separate submissions for the preliminary objection and the appeal. The two added up to 26 pages and the explanation for doing so given was escapist. Directions were given to ensure orderly conduct of proceedings and it was not for parties to choose which ones to comply with and which ones to disregard.
  5. As the submissions on the appeal went to the root of the dispute, the court admitted them but the 1st respondent’s submission in regard to the preliminary objection, filed outside the directions of the court, were struck out.
  6. As the ruling was limited to the application seeking leave to adduce additional and new evidence and the striking out of the 1st respondent’s submissions, the court would give directions on the 1st respondent’s preliminary objection at the hearing of the appeal and being on points of law only, the 1st respondent could submit on the issues raised orally.

Application seeking to adduce additional evidence dismissed; application seeking to strike out the 1st respondent’s submissions partly allowed.
Orders

  1. The 1st respondent’s submissions dated October 12, 2023 in respect of the preliminary objection were hereby struck out.
  2. Each party to bear its own costs.
CIVIL PRACTICE AND PROCEDURE

Court of Appeal declines to grant a conservatory order against the provisions of the Finance Act, 2023 that were declared unconstitutional.

Headnote: The appeal arose from a decision of the High Court that declared sections 76, 77, 78, 84, 87, 88 and 89 of the Finance Act, 2023 (impugned provisions) unconstitutional. The appellants sought stay of execution/ conservatory orders against the suspension of the impugned provisions pending the determination of the appeal. The Court of Appeal held that the presumption of constitutional validity in respect of the impugned sections was extinguished the moment the trial court issued the declaration. It would not be in public interest to grant a stay whose effect was to allow a statute that had been found to be constitutionally infirm to continue being in the law books pending the hearing of an appeal. Should the court hearing the appeal affirm the constitutional invalidity of the impugned laws, then all actions that would have been undertaken under the impugned sections of the law during the intervening period would be legally frail.

National Assembly & 47 others v Okoiti & 169 others (Civil Application E577, E581, E585 & E596 of 2023 (Consolidated)) [2024] KECA 39 (KLR) (26 January 2024) (Ruling)
Neutral Citation: [2024] KECA 39
Court of Appeal at Nairobi
LA Achode, JM Mativo, and PM Gachoka, JJA
January 26, 2024
Reported by John Ribia
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Civil Practice and Procedure – conservatory orders – stay of execution – where the High Court had declared provisions of the Finance Act, 2024 to be unconstitutional – appeal that sought stay orders against the decision of the High Court pending the determination of the appeal – principles courts should consider in granting conservatory orders - what factors should appellate courts consider in deciding whether or not to grant conservatory/stay of execution orders - whether on grounds of public interest the Court of Appeal could issue stay of execution orders whose effect would be to allow a statute that had been found to be constitutionally infirm to continue being in the law books pending the hearing of an appeal - Court of Appeal Rules, 2022 (Cap 9 Sub leg)
rule 5 (2) (b); 29;
Statutes – constitutionality of statutes – presumption of constitutionality – application of presumption of constitutionality in an appeal against a decision that declared provisions of the law to be unconstitutional - whether the presumption of constitutional validity of statutes still applied in appeals against provisions of a statute that had been declared unconstitutional

Brief facts:
The appeal arose from a decision of the High Court that declared sections 76, 77, 78, 84, 87, 88 and 89 of the Finance Act, 2023 (impugned provisions) unconstitutional. The appellants sought stay of execution/ conservatory orders against the suspension of the impugned provisions pending the determination of the appeal. The appellants contended that it was in public interest to issue the conservatory orders as some government projects may shut down if the tax was not collected. It was contended that the government was likely to lose revenue, and that the government risked litigation in the event it is unable to honour contractual obligations. Further, the litigation costs would be borne by the taxpayers. The applicants contended that the government would not be able to construct the affordable houses and that jobs would be lost. In addition, it was argued that 1000 statutory instruments would lapse leaving a lacuna which would endanger operations of various state entities.
In opposition, the respondents maintained that the appeals did not satisfy the public interest threshold. It was argued that no irremediable harm would accrue to the government.

Issues:

  1. What factors should appellate courts consider in deciding whether or not to grant conservatory/stay of execution orders? 
  2. Whether on grounds of public interest the Court of Appeal could issue stay of execution orders whose effect would be to allow a statute that had been found to be constitutionally infirm to continue being in the law books pending the hearing of an appeal.
  3. Whether the presumption of constitutional validity of statutes still applied in appeals against provisions of a statute that had been declared unconstitutional. Read More...

Held:

  1. An applicant who would succeed upon such an application for stay of execution must persuade the court on two limbs, that the appeal or intended appeal was arguable and not frivolous. Secondly, that if the application was not granted, the success of the appeal, were it to succeed, would be rendered nugatory. Those two limbs must both be demonstrated and it would not be enough that only one was demonstrated.
  2. Rule 5(2)(b) of the Court of Appeal Rules, 2022, granted the Court of Appeal unfettered discretion to order a stay of execution of an order pending appeal. The only qualification was that the wide discretion must be exercised judicially and not capriciously. That jurisdiction was original.
  3. An applicant needed to only to demonstrate one arguable ground and not a multiplicity of them, and further that an arguable appeal was not necessarily one that would succeed. All the applicants had satisfied the court that they had an arguable appeal.
  4. In determining whether an appeal would be rendered nugatory, the court had to consider the conflicting claims of both parties and each case had to be considered on its merits. The court had to balance preserving the status quo pending the hearing of the intended appeal and the consequences of suspending the declarations made by the trial court.
  5. Civil Application No E585 of 2023 in which the applicants urge the instant court to, pending the hearing and determination of their appeal, suspend the order granted on November 28, 2023. The order was granted pending filing of an application for stay before the court. Two applications for stay, were filed. A natural and ordinary interpretation of the said order showed that it lapsed the moment the applications were filed in the instant court. The instant court declined the invite to stay a non- existent order. Civil Application No E585 of 2023 was moot.
  6. A matter was moot if further legal proceedings with regard to it could have no effect, or events have placed it beyond the reach of the law. Courts loathed making pronouncements on academic or hypothetical issues as it did not serve any useful purpose. The applicants’ intended appeal in E585 of 2023 was premised on the question whether the High Court had jurisdiction to stay the orders. Such an appeal could not be rendered nugatory if the stay was refused. Civil application No 585 of 2023 collapsed on two fronts: for being moot and for failing both tests.
  7. The applicants invited the Court of Appeal to suspend the operation of sections of the Finance Act on an application without hearing the appeal on merits. In principle, there was a general presumption that statutes enacted by Parliament were constitutional, until the contrary was proved. Such a drastic order could not be issued on an application. No court of law properly directing its mind to the law could grant such an order.
  8. Applying the general presumption that a statue was constitutional until declared unconstitutional, the applicants had not demonstrated how the intended appeal which would determine whether the court’s determination on the said sections would stand or not would be rendered nugatory. Should the appeal succeed, the sections would be annulled. If it failed, the law would stand as it was. Civil Application No 596 of 2023 did not meet the nugatory test.
  9. Article 163(7) of the Constitution provided that courts were bound by authoritative pronouncements of the Supreme Court. However, a case was only an authority for what it decided. Each case depended on its own facts and a close similarity between one case and another was not enough because even a single significant detail may alter the entire aspect. In deciding cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case fell, the broad resemblance to another case was not at all decisive.
  10. The ratio of the Supreme Court decision in Communications Commission of Kenya & 5 others v Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others [2014] eKLR. It was distinguishable from the facts in the instant case. The said case dealt with the correct interpretation to be accorded to article 34(3) of the Constitution. That was totally different from the issues at hand. Civil Application E304 of 2023 involved interim conservatory orders suspending implementation of a statute as opposed to a final judgment declaring a statute to be constitutionally infirm. It was of no relevance to the instant case.
  11. Conservatory orders were remedies available under the Constitution. However, the remedies must be merited. Public interest was also a consideration in conservatory order applications. However, an applicant must satisfy the first two tests.
  12. Public interest was expressed by legislative enactments, constitutional constraints, or judicial pronouncements. Public interest was a legal principle founded on the concept of public good. Even though a decision may disturb only one part of community, the court should weigh the whole of the community while applying public interest considerations. Public interest was represented by constitutional values. Application of public interest must conform with the Constitution. Article 2 (4) of the Constitution affirmed the supremacy of the Constitution relative to ordinary statutes. The invalidation of any law found to be ultra vires the Constitution should be immediate. However, the appellate court could suspend declarations of invalidity under limited circumstances. 
  13. The purpose of the suspension was to enable the legislature to respond directly to a holding of invalidity. Although an unconstitutional law was maintained in force for a short time, the Constitution was still respected, because if no new law was enacted by the time the period of suspension ended, the declaration of invalidity took effect. The operation of the invalidity was suspended so as to allow parliament to cure the defect. The jurisdiction to suspend declarations of invalidity was narrow and was only exercised in limited cases. The question narrowed to whether the applicants had established a case for the suspension sought in public interest.
  14. The presumption of constitutional validity in respect of the impugned sections was extinguished the moment the trial court issued the declaration. It would not be in public interest to grant a stay whose effect was to allow a statute that had been found to be constitutionally infirm to continue being in the law books pending the hearing of an appeal. Should the court hearing the appeal affirm the constitutional invalidity of the impugned laws, then all actions that would have been undertaken under the impugned sections of the law during the intervening period would be legally frail.
  15. The trial court held that the housing levy was introduced without a legal framework. It also held that the levy was targeting a section of Kenyans. Public interest lay in awaiting the determination of the appeal. If stay sought was granted at the instant stage, then some far-reaching decisions that would have been undertaken pursuant to the impugned laws may not be reversible. Public interest tilted in favour of in not granting the stay or the suspension sought. Public interest tilted in favour of awaiting the determination of the issues raised in the intended appeals.

Appeals dismissed, no orders as to costs.