The County Government of the City of Nairobi’s school feeding programme was not a transfer of function from the National to County Government.

Headnote:      In 2023, Nairobi City County initiated the "Dishi Na County" feeding program for public primary schools. Petitioners alleged constitutional violations, citing unauthorized transfer of functions, inadequate public participation, and misuse of funds that could address Early Childhood Education deficits. The county and National Governments argued the program was a collaborative effort under article 189 of the Constitution, aimed at promoting inclusivity and children's welfare. The High Court upheld the program, affirming its alignment with constitutional principles and public interest. The court held the programme related to children and was for the welfare of children. Article 53(1)(c) of the Constitution provided that every child had the right to basic nutrition, shelter and health care; while article 53(2) provided that a child’s best interests were of paramount importance in every matter concerning the child.

Tunza Mtoto Coalition Kenya & another v Sakaja & 4 others; Office of the Controller Of Budget & 5 others (Interested Parties) (Petition E246 of 2023) [2024] KEHC 7571 (KLR) (Constitutional and Human Rights) (21 June 2024) (Judgment)

Neutral Citation: [2024] KEHC 7571 (KLR)

High Court at Nairobi

EC Mwita, J

June 21, 2024

Reported by John Ribia

Devolution – functions of the National Government vis-à-vis the functions of county governments – education – school feeding programme - whether the school feeding programme by the County Government of Nairobi was a transfer of function from the count to the National Government as the County governments’ function in so far as education was concerned, was limited to pre-primary education, village polytechnics, home craft centres and childcare facilities – Constitution Schedule 4 part 2; articles 1(4), 2, 6, 10, 21(2), 35, 43, 53(1)(b), 174, 185(2), 186(1), 187(2), 189, 196, 201, and 226(5); Intergovernmental Relations Act (cap 265F) sections 23(a) and 26(5); County Assemblies Powers And Privileges Act (cap 265C) section 11(2); County Government Act (cap 265) section 87, 115.

Constitutional Law – fundamental rights and freedoms – rights of the child – best interests of the child - right of the child to basic nutrition, shelter and health care - school feeding programme – petition that sought to halt a school feeding programme – whether an order that would stop a school feeding programme, would be acting against the best interests of the child and violating the right of children to basic nutrition – Constitution of Kenya articles 52 and 53; Children Act (cap 141) section 4(3), 5, 7(1), (2); 8(1), and 10

Constitutional Law – national values and principles – public participation – school feeding programme by Nairobi City County – where meetings with the public were held before the programme was launched - whether the school feeding programme of the County Government of the Nairobi City County was subjected to public participation – Constitution of Kenya, article 10

Brief facts

On June 20, 2023, the Governor of Nairobi City County launched a school feeding program, "Dishi Na County," allocating Kshs. 1.224 billion for meals and Kshs. 500 million for kitchen construction in the county's 2023/2024 budget. Tunza Mtoto Coalition Kenya and Janet Muthoni Ouko challenged the program's constitutionality, arguing it improperly transferred a national function to the county without public participation or legal framework. The program's proponents claimed it was a collaborative effort to benefit over 250,000 children in public schools.

Issues

  1. Whether the school feeding programme by the County Government of Nairobi was a transfer of function from the count to the National Government as the County governments’ function in so far as education was concerned, was limited to pre-primary education, village polytechnics, home craft centres and childcare facilities.
  2. Whether the school feeding programme of the County Government of the Nairobi City County was subjected to public participation.
  3. Whether an order that would stop a school feeding programme, would be acting against the best interests of the child and violating the right of children to basic nutrition

Held

  1. The National Government was responsible for education at all levels, except pre-primary education, village polytechnics, home craft centres and childcare facilities which fell under the responsibility of county governments. Article 6(2) of the Constitution provided that the governments at the national and county levels were distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation. The article recognised that although the governments at the two levels were distinct, they were interdependent and should, when conducting their affairs, do so mutually and in consultation. Interdependence and mutual consultation was a constitutional imperative in the discharge of the mandate and performance of functions at the two levels.
  2. The was an intergovernmental partnership agreement entered into between the National Government through the Ministry of Education, and the 2nd respondent, through the 1st respondent. The agreement was in relation to implementing the school meals programme in public primary schools within the county. The agreement did not intend to transfer any functions. The primary school was function from the National Government to the 2nd respondent. Rather, the mutual arrangement between the two levels of governments for the benefit of learners in the 2nd respondent county with the funding to be shared equally.
  3. The petitioners had not placed evidence to demonstrate that children from informal schools and poor families had been denied the opportunity to enrol in government learning centres to benefit from the programme. The petitioners had also not shown that there were no children from informal settlements or poor families attending government learning institutions who benefited from the programme. The petitioners had merely made an assertion without proof.
  4. The impugned programme was not a transfer of functions as contemplated under article 187 of the Constitution.
  5. Public participation, as a national value, was central in the legislative or policy formulation processes. The respondents provided evidence to demonstrate that public participation was conducted. The petitioners had not demonstrated that there were no such meetings, or that they attended the meetings but nothing happened. There was no reason to persuade the court that there was no sufficient public participation. There was sufficient public participation on the programme.
  6. The programme related to children and was for the welfare of children. Article 53(1)(c) of the Constitution provided that every child had the right to basic nutrition, shelter and health care; while article 53(2) provided that a child’s best interests were of paramount importance in every matter concerning the child. The right was replicated in section 8(1) of the Children Act. Since the programme was for the welfare of children, it was in the best interest of children that the programme was initiated and could not be faulted.

Petition dismissed, each party was to bear its own costs.

Supreme Court strikes out application for lack of jurisdiction

Headnote:      The dispute arose from a Distribution Agreement granting Maxam Limited exclusive rights to distribute Heineken products in Kenya. After Heineken International B.V. terminated the agreement in 2016, Maxam challenged the termination, resulting in a High Court award of Kshs. 1,799,978,868.00 in special damages, upheld by the Court of Appeal. The petitioners sought the Supreme Court's intervention, arguing constitutional interpretation issues. The Supreme Court found that the matter primarily involved contractual disputes, with minimal reliance on constitutional provisions, failing the jurisdictional threshold under article 163(4)(a) of the Constitution. It struck out the petitions and applications, including for stay of execution, citing lack of jurisdiction.

Heineken East Africa Import Company Limited & another v Heineken International BV & 2 others (Petition (Application) E027 & E028 of 2024 (Consolidated)) [2024] KESC 59 (KLR) (Civ) (18 October 2024) (Ruling)

Neutral Citation: [2024] KESC 59 (KLR)

Supreme Court of Kenya

MK Koome, CJ and P; PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, and N Ndungu, SCJJ

October 18, 2024

Reported by John Ribia

Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction – jurisdiction to determine appeals that raise matters of general public importance and constitutional interpretation - whether an appeal to the Supreme Court, grounded on the Court of Appeal's reference to the application of national values and principles under article 10 of the Constitution in a commercial dispute, met the threshold for invoking the Supreme Court’s appellate jurisdiction – Constitution of Kenya articles 10 and 163(4)(a)

Brief facts

The dispute arose from a Distribution Agreement dated May 21, 2013, between Heineken East Africa Import Company Limited and Maxam Limited. The agreement provided for the exclusive distribution of Heineken products in Kenya. On January 27, 2016, Heineken International B.V. issued a termination notice to Maxam, leading to the filing of suits contesting the validity of the termination and seeking damages. The High Court awarded Maxam special damages of Kshs. 1,799,978,868.00, which the Court of Appeal upheld. The petitioners sought redress from the Supreme Court, challenging the jurisdiction and decisions of the lower courts.

Issue

Whether an appeal to the Supreme Court, grounded on the Court of Appeal's reference to the application of national values and principles under article 10 of the Constitution in a commercial dispute, met the threshold for invoking the Supreme Court’s appellate jurisdiction.

Held

  1. Jurisdiction was a preliminary issue and ought to be dealt with at the onset. Without jurisdiction a court was obligated to down its tools as it did not have the power to adjudicate upon the proceedings before it. Not all intended appeals lie from the Court of Appeal to the Supreme Court. It was only those appeals arising from cases involving the interpretation or application of the Constitution that can be entertained by the Supreme Court.
  2. Whereas there was mention of constitutional provisions by the High Court and the Court of Appeal, the material question before the two superior courts was on the validity of the termination notice issued to the 2nd respondent. In arriving at its final orders, the two courts examined the Distribution Agreement, in the grant of the orders sought. Its final determination was therefore not pegged on and indeed had nothing to do with the interpretation or application of the Constitution. Whereas there was a mention of article 10(2) of the Constitution at the Court of Appeal, that was only to aid the court but had no impact on the final decision as the court. Further, the appellate court even held that the law of contract was sufficient in determining the matter and found that the trial court erred to base its findings on the renewal of the Kenya Distribution Agreement on the application of public law principles or interpretation of the Constitution. The Supreme Court had no jurisdiction to determine the appeals.

Petition partly allowed.

Orders:

  1. The application dated June 26, 2024 and filed on June 26, 2024 was allowed.
  2. The application dated July 8, 2024 and filed on even date was allowed;
  3. The application dated June 24, 2024 and filed on June 27, 2024 was struck out for want of jurisdiction.
  4. The application dated June 1, 2024 and filed on June 13, 2024 was struck out for want of jurisdiction.
  5. The Petition of Appeal No. E027 of 2024 dated June 1, 2024 and filed on June 13, 2024 was struck out for want of jurisdiction.
  6. The Petition of Appeal No. E028 of 2024 dated June 24, 2024 and filed on June 27, 2024 was struck out for want jurisdiction;
  7. The sum of Kshs. 6,000/= deposited as security for costs in Petition of Appeal No. E027 of 2024 and Appeal No. E028 of 2024 be refunded to the petitioner.
  8. No orders as to costs.

An association registered under the Societies Act is not a juristic person with the capacity (locus standi) to sue or be sued.

Headnote:      The petitioner, a body registered under the Societies Act contended that the Giriama community were the inhabitants of Witu, before they were invaded by the Shifta in 1964. Their main contention was that the suit property formed part of the Giriama community ancestral land, therefore not available for setting apart or allocation by the Government. That the government’s actions amounted to historical land injustice. The respondents contended that an association such as the petitioner was not a juristic person with the capability to sue or be sued on its name but only through the trustees and officials. The court held that an association registered under the Societies Act could only sue through its officials. The petition was dismissed with costs.

Taireni Association of Mijikenda v North Witu Ranching Limited & 9 others; Kipini Wildlife and Botanical Conservatory Trust & 3 others (Interested Parties) (Petition E13 of 2020) [2023] KEELC 18778 (KLR) (10 July 2023) (Judgment)Petition (Application) E027 & E028 of 2024 (Consolidated)

Neutral Citation: [2023] KEELC 18778 (KLR)

Environment and Land Court at Malindi

MAO Odeny, J

July 10, 2023

Reported by John Ribia

Civil Practice and Procedure – capacity to sue – locus standi – juristic persons - bodies registered under the Societies Act - whether an association registered under the Societies Act was a juristic person with the capacity (locus standi) to sue or be sued – Constitution of Kenya, article 22

Land Law – classification of land – ancestral land – burden of proving land was ancestral - in a suit contending land was ancestral, which party bore the burden of proof to prove that the land was ancestral - Constitution of Kenya, article 63

Brief facts

The petitioner was an association registered pursuant to the Societies Act. The petitioner’s contended that the Giriama community were the inhabitants of Witu, before they were invaded by the Shifta in 1964. Their main contention was that the suit property formed part of the Giriama community ancestral land, therefore not available for setting apart or allocation by the Government. That the government’s actions amounted to historical land injustice. The respondents contended that an association such as the petitioner was not a juristic person with the capability to sue or be sued on its name but only through the trustees and officials.

Issues

  1. Whether an association registered under the Societies Act was a juristic person with the capacity (locus standi) to sue or be sued.
  2. In a suit contending land was ancestral, which party bore the burden of proof to prove that the land was ancestral?

Held

  1. If a party did not have a right to appear or be heard then such a party in other words did not have locus standi. The court could not bend the law to accommodate the petitioner’s claim where the law provided that an association registered under the Societies Act could only sue through its officials. That was the law and procedure unless the petitioner was envisaged in the interpretation of a person as provided for under article 260 of the Constitution and article 22 which dealt with the infringement of the bill of rights which unfortunately the petitioner did not fall under.
  2. A claim for ancestral land found its basis under article 63 of the Constitution. The applicable definition in the instant case was article 63(2)(d). The burden of proving that the suit property herein was ancestral land and that the respondents were unlawfully registered as proprietors lay squarely on the petitioner.
  3. The evidence presented did not state with precision that the members of the petitioner occupied the suit property. The document’s authenticity could not be verified. When one was presenting a constitutional petition, then they must back it up with cogent evidence. The petitioner failed to do so.
  4. The right to own land in a private capacity was protected and could not be taken away without good reason or just compensation. Allegations of fraud must be pleaded and strictly proved in a case where fraud was alleged. It was not enough to infer fraud from the facts. To constitute a breach, a petitioner must demonstrate with a degree of precision the provisions breached, the breach and the manner in which the provisions were breached
  5. There was no evidence that the petitioner’s members’ rights were breached or that Constitutional provisions were infringed.

Petition dismissed with costs.