Bench Bulletin - Issue 19 - Kenya Law Reports

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Bench Bulletin - Issue 19 - Kenya Law Reports

The Bench Bulletin

Transforming Legal Information into Public Knowledge

A Publication of The National Council for Law Reporting

A service state corporation in the Judiciary.

The Bench Bulletin is the definitive intelligence briefing for Kenya’s judicial officers, the law practitioner,

managers and the business people. It is a quarterly digest of recent developments in law, particularly, case

law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in

Bills tabled before Parliament and selected Legal Notices and Gazette Notices.

Issue 19: April - June 2012

Address by the Chief Justice at the Launch of the

Judiciary Transformation Framework on

May 31, 2012 at KICC Grounds

Pg 77

Pg 82

Pg 11 ............and much more......


Kenya Law Reports Bench Bulletin

The Hon. Dr. W.M. Mutunga, D.Jur., S.C., E.G.H. Chief Justice of the Republic of Kenya, President of

the Supreme Court & Chairman, National Council for Law Reporting.

The Hon Mr Justice P. K. Tunoi

Judge of the Supreme Court

Issue19 | April - June 2012

Issue15: April-June 2011

The Hon. Justice (Dr.) W.M. Mutunga, D.Jur., S.C., E.G.H

Chief Justice, President of the Supreme Court &

Chairman, National Council for Law Reporting.

The Hon Lady Justice J. W. Lesiit

Judge of the High Court

Mrs. Gladys Boss Shollei

Chief Registrar, Judiciary of Kenya

Prof. J. Otieno Odek

Dean, School of Law, University of Nairobi

Mr. Antony Oteng’o Ombwayo

Attorney-General’s Representative

Mr. P. Sang

Goverment Printer's Representative

Mr. Evans Monari

Law Society of Kenya

THE NATIONAL COUNCIL FOR LAW REPORTING

THE BOARD OF THE COUNCIL

Ms Florence Muoti Mwangangi

Law Society of Kenya

Mrs. Flora Mutua,

Snr. Management Analyst

Directorate of Personnel Management,

Ministry of State for Public Service

Mr. Christopher Ombega,

Senior Assistant Inspector General

Inspectorate of State Corporations

Mr. Jeremiah M. Nyegenye ,

Head, Office of Legal Counsel

The Office of the Clerk of the Kenya

National Assembly

Mr. M.M. Murungi

Editor/C.E.O

Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy

and comprehensiveness of the information contained in this publication, the Council makes no warranties

or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an

inaccuracy or the omission of any information.

1


Contents

Regulars

1

3

4

5

86

89

90

94

115

NCLR Board members

Editors Note

Citizen Jane

What they said

Features

6

11

16

18

29

65

69

71

77

79

82

Departmental

Reports

21

24

33

75

132

147

153

154

Keynote speech for the Africa and

International Law Conference Albany Law

School, at 9.15 on April 13, 2012

Address by the Chief Justice at the Launch

of the Judiciary Transformation Framework

on May 31, 2012 at KICC Grounds

NCLR joins Global Forum on Law Justice

and Development

NCLR-KCDF Partnership: Community

Development through Support and

Mentorship

Report on-E-Accessibility Workshop for

persons with disabilities held on 10 &11th

May, 2012 at the Laico Regency, Nairobi.

Laws of Kenya and Editorial Departments

attend Training on electronic publishing

for Print.

Legal Definition of Disability

A Comparison between the Constitution of

Kenya and the East African Treaty

The National Council for Law Reporting

partners with MRYG For CSR activities

Parenting: How much time do you spend

with your children?

Talent beyond Law Reporting: Winners

‘Uwazi football tournament, 2012’

Strategic planning quality

assurance and performance

department

Editorial department

Laws of Kenya depatment

Information communication

technology (ICT) department

Cases

Feature Case

Supreme court cases

Court of Appeal

High Court Cases

A compilation of summaries

of selected cases on emerging

Jurisprudence

A compilation of summaries of

selected cases on the Interpretation

of the new constitution of Kenya

In the East African Court of Justice

appellate division at Arusha

In the Constitutional Court of South

Africa

The Supreme Court of the United

Kingdom

EDITOR

Michael Murungi

EDITORIAL ASSISTANT

Monica Achode

CONTRIBUTORS

Michael Murungi

Esther Nyaiyaki

Monica Achode

Cornelius W. Lupao

Andrew Halonyere

Njeri Githang’a

Emma Kinya

Wambui Kamau

Bench Bulletin April - June 2012 Issue 19

Christian B. Ateka

Nelson K. Tunoi

Wanjala Sikuta

Phoebe Ayaya

Monicah Mwangi

Brenda Orau

Stanley Mutuma

Yvonne Kirina

Martin Mbui

11

82

DESIGN AND LAYOUT

Catherine Moni

John Muriuki

Geoffrey Andare

PROOFREADERS

Phoebe Ayaya

Innocent Ngulu


Editors Note

Issue19 | April - June 2012

Our Esteemed Readers,

First, my apologies for the delay in the release of this edition. I hope that the breadth of its

content will compensate for that. Evidently, the legal and judicial space has been in a state

of flux – quite expectedly so – since the promulgation of the Constitution of Kenya, 2010.

In the wake of this new ‘constitutional dispensation’ is a lot to write about – developments

in the transformation of the Judiciary, and of course the emerging jurisprudence from the

interpretation and application of the new constitution.

At the Council, we are also undertaking an editorial transformation exercise whose purpose

has been best captured by The Hon. Justice (Dr.) W.M. Mutunga, the Chief Justice: “…[T]

he Council is now discharging its mandate in the context of a country that has enacted a

new Constitution and a Judiciary that is going through a phase of transformation. Its role

in the creation of a robust, indigenous, progressive and patriotic jurisprudence cannot be

underestimated.”

In this edition we have featured an article by Ms. Monica Achode, who is the Team Leader

for the Editorial Department, which has more information on the key aspects of the editorial

transformation. The transformation is inspired by The Hon. The Chief Justice and certain

recommendations expressed to the Council by The Hon. Justice (Prof.) JB Ojwang, Judge

of the Supreme Court and it is informed by the advice of the Council’s Board of Directors.

We are re-engineering the Council’s role in the nurturing of a ‘robust, patriotic and indigenous

jurisprudence’ by effectively monitoring and reporting on judicial opinions that contribute

to the development of jurisprudence. The editorial emphasis will not be on the hierarchical

standing of a court but on the place of the court’s judicial opinion in the place of existing

jurisprudence on the subject at hand. The Council will also partner with the Judiciary Training

Institute, the Bar, the academia, civil society and other institutions in stimulating scholarly

discourse and improving the quality and quantity of scholarly legal research material. The

discourse will not only focus on Kenyan jurisprudence but also place that jurisprudence

in the context of comparative international jurisprudence, not merely for the purpose of

‘benchmarking’ against it but in order for Kenya’s emerging jurisprudence to serve as a

‘product for export’ to other jurisdictions.

In reclaiming ‘lost jurisprudence’ - past judicial opinions that are key to the development

of Kenyan jurisprudence that may not have been given reporting consideration - we are

engaging a Consulting Editor to supplement our team of Law Reporters and work with us in

identifying, collecting and reporting these opinions.

Finally, we will continue to avail ourselves of all the opportunities for interacting with and

obtaining the feedback of Judges and the judiciary community at large.


Kenya Law Reports Bench Bulletin

C :M, Murungi. illustration: E. Obare

4 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Issue19 | April - June 2012

WHAT THEY SAID

“More importantly, the Council is now discharging its mandate in the context of a country that

has enacted a new Constitution and a Judiciary that is going through a phase of transformation.

Its role in the creation of a robust, indigenous, progressive and patriotic jurisprudence cannot

be underestimated”.

The Hon. Justice W.M. Mutunga, D.Jur, SC, EGH, Chief Justice, President of the

Supreme Court of Kenya & Chairman of the National Council for Law Reporting, in

his foreword to the 2011 NCLR Annual Report - June 2012.

“The uncontestable object of reporting court decisions is to extract the essence of juristic thought and to lay

it out as one of the beacons for the legal path for conflict resolution, in the advancement of civilized society”.

The Hon. Justice (Prof.) J.B. Ojwang, Judge of the Supreme Court of Kenya, in a letter making

certain recommendations for a review of the Council's editorial policy - April 2012.

"Some of the important principles which apply to the interpretation of a constitution are that: a court should avoid a

construction that produces an absurd, unworkable or impracticable result; a court should find against a construction that

creates an anomaly or otherwise produces an irrational or illogical result; and that the court should strive to avoid adopting

a construction which is adverse to public interest, economic, social and political or otherwise."

Court of Appeal Justice[s] EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A, in Centre

for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR

The Hon. Mr Justice Justice

Erastus M Githinji

The Hon. Lady Justice

Martha Koome

The Hon. Lady Justice

Hannah M Okwengu

The Hon. Lady Justice

K. H. Rawal

The Hon. Mr Justice David K

Maraga

5


Feature

(*These remarks were also submitted in the

United States' House of Representatives through

Congressman Steve Cohen of Tennessee and are

part of the Congressional Record for April 25 2012

pp. E652-E654)

Fellow Africans and our Friends

I

thank the Albany Law School and Professor

James Gathii for inviting me to this conference. I

am delighted to be among so many practitioners

and scholars of international law who share

a commitment to Africa. There is a very special

reason for me to be delivering this address today.

April 13th was the late President -- Mwalimu– Julius

Nyerere’s birthday. He would have been 88 today.

Nyerere was a special and inspirational leader – he

believed in the solidarity of the African people as

well as in human dignity.

Nyerere was interested in both constitutional law

and international law. There is a picture of him as a

student at Edinburgh holding a copy of Dicey’s Law

of the Constitution. His interest was both scholarly

and practical. It fell to him to develop a constitution

suitable for his country—where his commitment to

a one party state, although intended to increase

democracy, must have come sorely in conflict with

the Diceyan preference for the rule of law. As far as

international law goes, he was greatly concerned

to promote African unity, redefine the relationship

between Africa (indeed the whole of the South) and

the West—as well as deal with Tanzania’s colonial

legacy, including that relating to treaty succession.

He ruled out automatic succession, so the newly

independent country was not burdened with unfair

and unequal obligations.

KEYNOTE SPEECH FOR THE

AFRICA AND INTERNATIONAL

LAW CONFERENCE ALBANY

LAW SCHOOL, NEW YORK,USA

AT 9.15 ON APRIL 13, 2012

By: The Hon. Justice W.M. Mutunga, D.Jur, SC, EGH,

Chief Justice, President of the Supreme Court of Kenya

I also felt honored as I read the biographies of the

other participants in this conference: they read like a

“Who’s Who?”of international law and Africa. One

only has to look at the conference program to see

the broad depth of international law work relating

to Africa. The papers submitted are impressive. I am

looking forward to the deliberations here and the

opportunity to get to know you and to talk about our

common commitments and concern about Africa.

My challenge to you always is to continue making

transformative contributions in your work on Africa

and international law. This will at times require those

of you who are based outside Africa to return home

and help contribute to the growing use and practice

of international law in Africa.

My focus this morning is the new Constitution of Kenya

and the role of the judiciary within it. First I want to

tell you about that constitution and the vision that it

espouses. We are now engaged in the challenging

but difficult task of implementation in which a key role

has been assigned to the judiciary. The judiciary has

already made a good start on a progressive, indeed

in some respects, radical jurisprudence—and now

enjoys great public support.

The Constitution is one of the most progressive in

the world. It was overwhelmingly approved in a

referendum as a result of the most consultative and

participatory processes of Constitution making

anywhere in the world. The long period before

the Constitution was upheld in the referendum was

characterized not only by delays and deadlock, but

by a series of governance challenges familiar in many

countries of Africa:

• An absence of a political culture of obedience

6 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

to and respect for rules, and a cavalier

treatment, even of constitutional texts;

• Failed systems including the electoral

system;

• Failed institutions including a corrupt

judiciary and police force;

• A population tortured and inhibited from

fulfilling its full potential;

• Exclusion of women and many groups from

full participation in society;

• Gross manipulation of ethnic, racial,

regional, religious, generational, clan,

class, and occupational divisions by

politicians for their personal ends;

• Extreme inequality, great poverty and

failure of even development;

• An institutional culture of timidity, even

where no threats existed;

• A society and politics characterized by

violence, fragility and instability; and

• An international community that excelled

in perfidy and double standards and that

could not be relied upon to consistently

support progressive constitutional reforms.

The result of the above has been a massive culture

and practice of impunity and the marginalization of

the constitution. The Constitution, which was, as my

old teacher, and one of the leading constitutional

scholars in Africa and the world, Yash Ghai is fond

of saying, “forced upon the rulers by the ruled.”

Here Yash’s reference to rulers means both internal

and external rulers – for Ghai, the Constitution has

to be written to address these ills.

The 2010 Constitution of Kenya seeks to incorporate

such rules in a number of ways. For example, it

constantly emphasizes the sovereignty of the

people, and is full of people oriented values. So

Article 10 enumerates the national values and

principles of governance that bind all state organs

as well as everyone who applies or interprets the

Constitution or any law or performs any public duty:

• patriotism, national unity, sharing and

devolution of power, the rule of law,

democracy and participation of the people;

• human dignity, equity, social justice,

inclusiveness, equality, human rights,

non-discrimination and protection of the

marginalized;

• good governance, integrity, transparency

Issue19 | April - June 2012

and accountability; and

• sustainable development.

I had argued before its promulgation that our

constitution should establish a human rights state and

society whose vision is radical social democracy. It is

my view that this has now happened. It is, therefore,

not surprising that there is considerable internal and

external resistance to the constitution from people who

have a vested interest in bad old habits—exploitation,

oppression, tribalism, nepotism and corruption. This

increases the responsibility of the judiciary to ensure

the enforcement of the constitution, as indeed is

envisaged in Art. 20(3), which requires that a court

develops the law where the Bill of Rights fails to give

effect to a right or fundamental freedom.

The extent of my personal pride, sense of responsibility,

and hope, as head of the judiciary, can perhaps be

judged from the fact that I once wrote a book about

efforts for a new Constitution, in the 1990s, in which

I said


The process of making the new

constitution, the credibility of the final

document and whether the people would be

convinced that they own the new constitution

are all issues at the root of the problem

of constitution making. It is a fact that the

judiciary has not fully implemented the Bill

of Rights to protect the rights of the people

against encroachment by the executive and

state apparatuses. The overhauling of the

judiciary and judicial system is also at the

root of these issues”.

I still believe in the key importance of the judiciary.

And the Constitution does give it a central role. Article

259 requires that the Constitution be interpreted in a

way that promotes its purposes, values and principles,

an obligation placed specifically upon courts and

tribunals by Article 159(2) (e). And it provides a

practical basis for this central role of the courts by its

provisions designed to make them truly accessible,

including through the institutionalization of public

interest litigation. It destroys old concepts of standing

by providing that anyone may bring an action to

protect rights or enforce the constitution, even if they

have no interest other than that of concerned citizen.

It prohibits the charging of court fees for actions to

enforce the Bill of Rights. It endorses the practice that

the Indian Courts call “epistolary jurisdiction” – the

possibility of actions being commenced by informal

documentation. And while requiring the rules of

natural justice to be observed, it denies the possibility

of “unnatural justice” in the form of procedural

technicalities standing in the way of justice. Much

of this comes ultimately from the jurisprudence of the

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Kenya Law Reports Bench Bulletin

Supreme Court of India, some by way of the South

African Constitution.

The judiciary was one of the most criticized of the

institutions of the old order. The legacy of the one

party state was still discernible in judicial pandering

to executive wishes. And I do not mean merely the

sort of deference to the legislature that lawyers may

legitimately argue about, but judges who would

adjourn matters before them to take instructions

from State House. The judiciary was one aspect

of the machinery of impunity. Simple financial

corruption was also rife. And, if you are auctioning

your judgment to the highest bidder, it is probably

counter-productive to exhibit much legal skill! For

many years law reports were not up to date, and

legal literature was all but non-existent.

Radical measures were needed. And they are

found firstly in a process of subjecting all serving

judges and magistrates to an examination of their

suitability to remain in office. This process is under

way, in the hands of an independent body, a

process with which I have nothing to do, and on

which it is of course improper for me to comment.

Secondly, the appointment system was revamped.

Now judges are interviewed and nominated by a

Judicial Service Commission truly independent of

government. The President is to have no discretion

but must act on the Commission’s recommendation.

The Chief Justice and Deputy must be approved

by Parliament. I was myself interviewed by the

parliamentary committee, on live television, and

questioned about, among other things, my finances,

my attitudes to certain sensitive issues, my sexuality

and my earring!

The judiciary has embarked upon many

organizational changes intended to realize the

Constitution’s vision. These include the recruitment

of judges and magistrates and professional

administrative staff. Recently we appointed 26

judges to the High Court (that is the court of first

instance of unlimited jurisdiction) – half of them

women. The Court of Appeal now has 7 more

judges, 5 of them women. We will recruit 160

Magistrates before the end of May, 2012. We

have delinked judicial functions from administrative

functions, boldly set out to stamp out corruption

in the judiciary while speeding up reforms in

computerization and other electronic justice

measures. We have achieved some significant

progress in reducing the backlog of cases and

changing backward judicial culture. The 12 clusters

that reflect these reforms, including the creation of

progressive, indigenous and patriotic jurisprudence

that I touch on later are contained in a write-up

named the Judicial Transformation Framework that

I will launch in May, 2012.

The constitution also provides for the decentralization

and democratization of the judiciary. Unlike previous

years when the old constitution made the Chief Justice

a judicial autocrat and monarch, under the new

constitution I do not control everything from the top.

I have already set up a management and leadership

committee that is representative and participatory.

Organization is of course important, even essential,

to make the courts accessible, to end the interminable

delays, the strain on the pockets and the patience,

and to end impunity and, as far as the courts can,

injustice. But I want briefly to emphasize something

else.

I preside over the Supreme Court. As I understand the

reasoning of the Constitution makers when creating

this new court, apart from the desire to reintroduce

the possibility of a second appeal, was similar to

that that motivated the drafters of the South African

Constitution when they created the Constitutional

Court: to have at the apex of the system a court

that would be respected, was committed to the

Constitution and could set a new standard, and a

new tone. In my view, one of the most important

tasks that court will perform will be as a source of a

new, highly competent and indigenous jurisprudence.

I link this last adjective to the Constitution’s value of

patriotism. Patriotism (when not being abused as the

“last refuge of the scoundrel” in Samuel Johnson’s

words) requires putting love of country above love

of self. For a judge it does not mean putting country

above justice. I conceive that it requires the judge to

develop the law, for, as we all know, in the common

law system that is what judges do, in a way that

responds to the needs of the people, and to the

national interest. I call this patriotic and indigenous

jurisprudence. Above all, it requires a commitment to

the Constitution and to the achievement of its values

and vision.

But don’t get me wrong: by “patriotic and indigenous”

I do not mean insular and inward looking. The values

of the Kenyan Constitution are anything but that. We

need to learn from other countries. And we need to

learn from scholars like this assembled company. We

intend to build up a network of interested and highly

qualified academics who share our vision. I hope

that some of you here will form part of that network.

My concern, when I emphasize “indigenous” is

simply that we should grow our jurisprudence out

of our own needs, without unthinking deference

to that of other jurisdictions and courts, however,

distinguished. The Kenyan judiciary has, therefore,

a great opportunity to develop a robust, indigenous,

patriotic and progressive jurisprudence that will give

the country direction in its democratic development.

This transformative mission is a duty to all judicial

8 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

officers. They have all undertaken a constitutional

obligation to undertake it and I have challenged

them to make a personal obligation to help

accomplish it.

Former Justice Krishna Iyer of the Indian Supreme

Court expressed the same ambition, in his

inimitable style:

Jurisprudence must match jurisdiction and

jurisdiction must broaden to meet the challenges

of the masses hungry for justice after a long night of

feudal-colonial injustice….The rule of law must run

close to the rule of life and the court, to be authentic,

must use native jural genius, people-oriented

legal theory and radical remedial methodology

regardless of Oxbridge orthodoxy, elitist petulance

and feudal hubris.

Far from being inward looking, it would be my

hope that we could learn from, and even emulate,

distinguished courts in other countries, including,

for example, the Supreme Court of India and the

South African Constitutional Court. The Kenyan

courts do not need to be as bold as the Indian

apex court: many of its procedural innovations in

public interest litigation are already enshrined in

our constitution. And I would argue that the types

of jurisprudence that that court has been so creative

in developing are already part of our constitution.

Protection of the environment, recognition of rights

of communities especially in land, affirmative

action, rights of persons with disability, rights to

education, health and food—and the redress of

past injustices-- are engraved in our constitutional

text.

What the first President of the South African

Constitutional Court, Arthur Chaskalson, said of

their constitution could just as well be said of ours:

We live in a society in which there are great

disparities in wealth. Millions of people are living

in deplorable conditions and in great poverty.

There is a high level of unemployment, inadequate

social security, and many do not have access to

clean water or to adequate health services. These

conditions already existed when the Constitution

was adopted and a commitment to address them,

and to transform our society into one in which there

will be human dignity, freedom and equality, lies at

the heart of our new constitutional order.

For these reasons, including that our Constitution is

couched often in language similar to that of South

Africa, I anticipate that we shall learn a great deal

from them, though always, as I say, suiting the

decisions to our own realities.

Upendra Baxi wrote, of Public Interest Litigation

Issue19 | April - June 2012

(PIL) ,

The Supreme Court of India is at long last

becoming…the Supreme Court for Indians. For

too long the apex court had become “an arena of

legal quibbling for men with long purses”. Now

increasingly, the court is being identified by the

Justices as well as people as “the last resort of the

oppressed and bewildered”.

I would hope that the Supreme Court of my country

will be the Supreme Court for Kenyans where the

oppressed and bewildered will find justice.

But it is not enough for the Supreme Court to shine

in jurisprudential terms. Most cases will never

get beyond the High Court. The corollary of the

decision to create a new, final, court of general, not

specifically constitutional jurisdiction, was the desire

that courts at all levels could confront constitutional

issues and deal with them in a way that fulfills

the constitutional dream. We are hoping to raise

standards of judging and standards of advocacy,

including through the work of the Judicial Training

Institute, and by adopting frequent use of written

briefs, rather than just skeleton oral arguments.

The development of a new jurisprudence must be

a collaborative effort between judges at all levels,

and practicing and academic lawyers.

The internet is making access to precedents much

easier, and there is an improvement in the law

reporting situation. There is even some sign of a

resurgence of interest in writing about Kenyan law.

Do add your bit!

If I may turn now to the focus of concern of most

of you: international law. The Constitution took

a bold step and provides that “The general rules

of international law shall form part of the law of

Kenya” and “Any treaty of convention ratified by

Kenya shall form part of the law of Kenya under this

Constitution”. Thus Kenya has become a monist

state rather than a dualist one!

The implications of this will have to be worked out

over time, as cases come before the courts. I would

not have you imagine that Kenyan judges have

ignored international law. I know first-hand from

Kenya’s supercharged civil society that constantly

makes claims of international law to hold the

government accountable, exemplifies the growing

importance of international law in our courts. The

courts have often applied the familiar common

law approach, and indeed quoted the Bangalore

Principles on Domestic Application of International

Human Rights Norms, including:

7. It is within the proper nature of the judicial

process and well-established judicial

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Kenya Law Reports Bench Bulletin

functions for national courts to have regard

to international obligations which a country

undertakes– whether or not they have

been incorporated into domestic law- for

the purpose of removing ambiguity or

uncertainty form, national constitutions,

legislation or common law.

8. However, where national law is clear

and inconsistent with the international

obligations of the State concerned in

common law countries the national court

is obliged to give effect to national law.

In such cases the court should draw

such inconsistency to the attention of the

appropriate authorities since the supremacy

of national law in no way mitigates a

breach of an international legal obligation,

which is undertaken by a country.

Now, however, the courts have greater freedom.

Many issues will have to be resolved: what

precisely are the “The general rules of international

law”?; what is the effect of the direct application of

a treaty of which the language is not self-executing,

such as “States Parties shall take all appropriate

measures” rather than “everyone has the right”?

And what is the effect of a treaty provision that

does not fill a gap in domestic law but inescapably

conflicts with it? And what if the general rules of

international law are exploitative, oppressive and

subvert the radical social democratic vision of our

constitution? All these questions clearly identify

where the scholarship of people like yourselves,

will be much appreciated by both bar and bench.

I should also like to quote another Bangalore

Principle, relevant to my theme of indigenous

jurisprudence:

6. While it is desirable for the norms contained

in the international human rights instruments

to be still more widely recognized and

applied by national courts, this process

must take fully into account local laws,

traditions, circumstances and needs.

How can we achieve this marriage consistent with

international law obligations?

Let me also emphasize that Kenya does not intend

to be a “user” of international law, but a producer,

shaper and developer of it as well. This is the link

to the Nyerere Doctrine where I began. Nyerere

refused to accede to existing international rules

on treaty succession and came up with his own

innovation. Kenyan judiciary will not just import

all international legal rules including those which

are disempowering to the South as a political and

economic category. Instead, as I pointed above in

our strategy to create an indigenous, patriotic and

progressive jurisprudence, the Kenyan judiciary

will use our new constitution to begin a dialogue

with international legal communities to nudge the

jurisprudence of social justice in a progressive

direction. In particular, we have a chance to

develop jurisprudence on economic and social

rights in ways that are unique to our social and

economic development. We intend, therefore, to

be able to export progressive jurisprudence to the

rest of the world.

Finally, let me not give the impression that I am

negative about the work of my judicial colleagues.

There are many competent and committed members

of the bench. Even under the former constitution with

its inadequate Bill of Rights (more limitations than

rights!) creative judges were doing their best. And

now many of them, new and longer established,

are responding with enthusiasm to the challenges

and opportunities of the new Constitution. I cannot

really comment on individual cases – none has come

before us yet, and some will undoubtedly do so. But I

personally feel encouraged by signs of willingness to

draw on international instruments, not only treaties,

and by reliance on the values including those of Article

10 – as Article 259 requires.

As we say in Kenya in Kiswahili – Asante Sana.

We also say Shukrani, shukran and shukria.

Thank you very much.

There are many competent and committed members of

the bench. Even under the former constitution with its

inadequate Bill of Rights (more limitations than rights!)

creative judges were doing their best. And now many

of them, new and longer established, are responding

with enthusiasm to the challenges and opportunities of

the new Constitution.

The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President,

Supreme Court of Kenya

10 Issue19 | April - June 2012


Feature

ADDRESS BY THE CHIEF JUSTICE AT THE LAUNCH OF THE

JUDICIARY TRANSFORMATION FRAMEWORK ON MAY 31,

2012 AT KICC GROUNDS

By: The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President, Supreme Court of Kenya

Ladies and Gentlemen, Country Women and

Men, Friends and Colleagues,

I feel privileged to speak to you today about

the distance we have covered and the journey

upon which we wish to embark in reclaiming the

Judiciary for the Kenyan public. In my Progress

Report after 120 days in office, I painted a broad

picture of the Judiciary we found. The details of

that picture are much more engaging and warrant

revisiting, even if only briefly. And in launching the

Judiciary Transformation

Framework today, I

have chosen the eve of

Madaraka Day, a day

that marks our transition

to self- rule as a signal to

own our determination

to create an independent

and effective Judiciary.

An oft-repeated criticism

of the Judiciary has

been over how it

has accumulated an

impossible case backlog.

Case delays have become

the badge of inefficiency

and ineffectiveness the

Judiciary wears as its

mark of distinction. Case

backlogs constitute the

single most important

source of public

frustration with the

Judiciary. They open a door for fugitives from

justice to seek refuge in the courts by turning them

into a playground for the rich and corrupt.

Inefficiency manufactures artificial shortages of

justice, manures the soils in which corruption is

planted and manicures a culture of ineptitude.

This environment distorted values and perverted

Issue19 | April - June 2012

the cause of justice. It created a vicious cycle

where poor service, inadequate staff, graft and

unfavourable working conditions fed on each other

to create the crisis of confidence in whose grip the

Judiciary found itself.

We sought innovative ways that would yield

the quickest benefits for the Kenyan public. We

adopted the rapid results approach to jumpstart

organisational change and increase the capacity

of staff to implement programmes. Confronting the

issue of case backlogs in the

Court of Appeal as well as

in five divisions of the High

Court has generated results

as well as important lessons

that inform the changes

we wish to undertake in

moulding the new Judiciary.

The Court of Appeal was

an important starting point

in this journey towards

transformation. The average

waiting period for a case

in the Court of Appeal was

six years. With the backlog

of 3,800 cases, with each

requiring three judges at

the same time at current

capacity levels, the Court of

Appeal presented special

logistical challenges. There

appeared to be no way to

conclude all the cases in

under three years -- even if there were to be a

sitting every day. Still, there are many roadblocks

to justice in the unique Court of Appeal Rules, the

special manner in which records of appeal must be

prepared, and the low number of judges.

These challenges notwithstanding, the Court of

Appeal judges voluntarily adjusted their work

11


Kenya Law Reports Bench Bulletin

schedules and created training manuals for

preparing records of appeal. In 100 days, the

Court of Appeal had reduced its case backlog by

451 cases. The Court continues to encourage those

who take cases before it to file written submissions

as a time-saving measure, and is reviewing its

rules to place greater emphasis on efficiency and

concluding matters with dispatch.

The Judiciary is transforming.

At the High Court, similar initiatives were rolled

out with encouraging results. Although the case

backlog in the Environment and Land Division was

5,000, a baseline survey established that 16,907

new cases had been filed between the year 2000

and 2011. Within 100 days, this division of the

High Court had reduced its backlog by 3,419

cases. In the Commercial and Admiralty division,

where a baseline survey surfaced 29,000 cases,

a whopping 27,000 cases were removed from the

backlog: Many cases consisted only of files that

had been opened, with no further action. They

had been floating around the courts for years in

the guise of backlog.

Similar initiatives have been launched in the

Constitutional, Human Rights and Judicial Review,

the Criminal and the Family divisions. Out of

the 58,800 cases captured as backlog in these

courts, 30,670 were disposed of in just 100 days.

I salute the judges and staff in these courts for

demonstrating what is possible even under difficult

circumstances.

The Judiciary is already transforming.

The lessons from this initiative, as from many others

like it, are numerous. In many instances, the cases

were greater in number than had previously been

thought, and in some instances, far less. This

speaks to the importance of court records and

their management. Where the records storage,

management and retrieval system is weak or nonexistent,

the sagacity of a judge or magistrate

alone can be woefully inadequate in preventing a

miscarriage of justice.

Some of the archives and exhibits stores around the

country had fallen into such neglect as to become

the habitations for snakes and rodents. Termites

had developed a literal taste for the delicacy of

the court file, which they would devour without a

thought on the details contained therein. In several

instances, some staff, acting on their own initiative,

have created accessible filing and storage systems

that facilitate the easy retrieval of records. We

continue to encourage these efforts as we tap into

the reservoir of creativity and energy that already

abounds in the Judiciary. Already, the Judiciary is

transforming.

Concomitant with these rapid results approaches

have been other emergency interventions to deal

with roadblocks the public encounters in the quest for

justice. The Office of the Judiciary Ombudsperson,

set up to receive and investigate complaints against

judicial officers by the public, and by the staff

against each other or their employer, has opened

a great avenue for contact and interaction. With

the Ombudsperson’s office now peopled with

liaison officers from court stations across the country

and the establishment of an online and short text

message service through the number 5834, I am

confident that responses to complaints will be

faster, better, more transparent and cost-effective.

This office will be the beachhead of the strategy to

reduce the citizens’ alienation from the Judiciary

and demonstrate that the institution is open and

available for all those who seek its help.

Across the board, the Judiciary is making

heavy investments in information communication

technology to improve service delivery, increase

efficiency, lower the transactional cost of justice and

modernise the Judiciary. It is one of the platforms

on which we continue to encourage public

participation. A recent, remarkable outcome of this

approach was the crowd sourcing of designs for the

prototype court. Besides the many brilliant designs

entered in the competition, whose winners were

unveiled and awarded this week, Kenyans spoke

candidly about the discomforts they suffer when

they use the present court infrastructure – from lack

of toilets to the absence of separate holding cells for

men and women. Inconveniences around paying

court fines and fees, and the deficit of compassion

in the manner courts treat people are some of the

other observations the public has voiced.

Aware that happy staff make happy clients, we have

undertaken several measures within the Judiciary

to professionalise the work environment. A revised

code of conduct and ethics is being finalized,

as well as a sexual harassment policy whose

enforcement are a matter of priority. Staff are being

trained and sensitized on their implementation. We

have undertaken nepotism and ethnicity audits, as

well as a disability survey among Judiciary staff as

first steps towards eliminating artificial barriers to

career progression and creating a safe, rewarding

work environment.

Additionally, we have sought to give every member

of staff the tools they need to perform their duties.

We have also begun to improve the compensation

packages for the staff working in the Judiciary. We

embrace training and continuous learning as the

12 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

anvil upon which we sharpen our professionalism

and prepare us for the challenges the environment

will throw at us.

In return for the heavy investment the public is

being required to make to secure the comfort of

Judiciary staff, they must obtain value for money

in the services they receive. That is why I remind

my colleagues that no one has a title deed to a job

in the Judiciary.

Talking of confidence, technocratic reforms alone

are not sufficient to win public confidence. They

may produce results, but they are not sufficient

to deliver fully on the promise the Constitution

makes to Kenyans. They are probably reactive

to situations that have undermined the Judiciary

in the past but do not speak to the totality of our

constitutional mandate. The face of justice in Kenya

has remained forbidding and unapproachable

because the Judiciary has largely been bereft

of compassion, disinterested in the daily lives of

ordinary people and manifestly indifferent in the

name of maintaining neutrality.

The Constitution does not require the Judiciary to

merely clear case backlogs, eliminate the problem

of lost files and computerise its operations for

greater efficiency – important as these are. It

demands a cultural shift to enable the Judiciary to

lead the transformation of the Kenyan society to

bring it in line with national values.

The Judiciary will only lead this transformation by

interpreting and defending the Constitution, but it

can only do so by first transforming itself.

This transformation, therefore, aims to ultimately

reconstruct the Kenyan society. That is why reform

alone would not be sufficient. The Judiciary is

transforming because the Constitution requires it to.

And this is how we intend to answer the command

of the Constitution.

As the engine of societal transformation, the

Judiciary is required to adopt a culture of service

that is people-centred. We must create an

environment that supports the delivery of justice,

upholds the rights of the Kenyan people and

promotes national values. We must recapture the

public imagination, not through outdated rituals

and posture, but by evoking a common appeal.

Drawing on the lessons of the last elections, we

have established a Judiciary Working Committee

on Election Preparedness to draw up a curriculum

that will prepare judicial officers to try election

offences and resolve election disputes.

The Judiciary Transformation Framework that we

launch today will be carried out in line with four

Issue19 | April - June 2012

pillars: focusing on people outside the institution;

focusing on people within the institution, providing

the resources and infrastructure required, and

employing information communication technology

across the board.

In order to give structure to the numerous initiatives

we are undertaking, and create coherence among

them, I am happy to unveil the following 10-point

action plan for transforming the Judiciary:

Access to and expeditious delivery of justice:

Justice is not the privilege of a few. We seek to

expand access to the expeditious delivery of

justice for all Kenyans. Every court shall have a

customer care desk and a court counsel to provide

information about the procedures one’s needs to

follow, especially in cases where one would like

to represent oneself. Court documents will be

simplified. Our justice system will give due regard

to traditional mechanisms of dispute resolution, as

far as the constitution allows. There will be a High

Court in every county and a magistrate’s court in

every district and decentralize the Court of Appeal.

We shall increase the number of mobile courts, and

ensure that they work. Ultimately, our performance

will be weighed on the scales of humanity and

democracy. These commitments will be published

in a Litigants’ Charter, which will be our contract

with the Kenyan people.

Public participation and engagement: We will

never forget who the boss is. We shall explain

ourselves simply and coherently even as we seek

the views of the public in undertaking our various

activities. We shall listen keenly, not just to satisfy

the letter of the Constitution, but also to respond

appropriately. For it is not our intention to talk at the

Kenyan public, but rather to begin a conversation

with them. The Office of the Ombudsperson will be

strengthened and supported through technology to

be responsive, effective and efficient at all times.

We shall open dialogue with students and the

public so that people know what we do.

Stakeholder engagement: We take our

responsibilities in the justice chain seriously

and encourage our partners to do likewise. The

independence of the Judiciary is complementary

to our interdependence with others working within

the justice system. We shall lead the National

Council on the Administration of Justice in

unlocking problems that hinder our work, just as

we will collaborate with the Executive, independent

commissions and other actors. We shall always

defend our independence as a separate arm of

government is guided by the national values of

patriotism and national unity in helping the other

arms of government to realize a new Kenya.

13


Kenya Law Reports Bench Bulletin

Philosophy and culture: We shall evolve a new

philosophy and culture that recognises the people

of Kenya as the source of judicial authority. We

pledge to offer imaginative leadership on law,

accountable service with integrity, openness, and

an orientation towards delivering results and ethical

conduct.

Leadership and management: People are our

most critical asset. That is why we are adopting

professionalism in leading and managing this

critical resource. We shall equip our staff with

skills, motivate them to perform, reward them

fairly and create opportunities for their personal

and professional growth. We shall match staff to

work, skills to career progression, and additionally

set up mortgage,

medical and loan

facilities. Policies

on transfer as

well as training

and scholarships

will be designed

to make working

in the Judiciary

a competitive

career choice.

Our management

style will be

participatory and

representative of

all sectors of the

Judiciary.

Organizational

structure: We

will simplify the

way the Judiciary

is organised in

order to clarify

reporting lines

and create clear

accountabilities

in order to fasttrack

decision

making. Our

organisational

design will be

devolved to

encourage discipline and reward performance.

There shall also be a court inspectorate unit. Human

resource and finance functions will be devolved to

17 regions around the country.

Growing jurisprudence and judicial practice:

Training, research and partnerships will be at

the heart of our efforts to enable judges and

magistrates to develop the law and its application

in order to bring it to par with practices around

the world. We shall embrace continuous learning,

mentoring and peer review in order to create new

thinking about the law and how it is applied.

Physical infrastructure: We shall have courts that

are friendly, accessible and have the required

facilities. We have begun the process of creating

a model court from the designs received from a

recent competition. Once the public makes further

contributions to these designs, they will be turned

into a model design to be used in building standard

courts. We shall also have an infrastructure

development master plan to guide development,

and an inspectorate department.

Financial resources. We shall get the Judiciary

Unveiling of the Wanjiku statue at the Launch of the

Judiciary Transformation Framework on May 31, 2012

at KICC

Fund working in order to secure our financial

autonomy, but we shall also embrace budget for

results, manage our finances responsibly and be

accountable at all times. Although some of the

Judiciary’s activities are currently supported by

development partners, the public must eventually

pay for it in order to own it and demand the

requisite accountability of it.

ICT as an enabler: We shall harness ICT to improve

the administration of justice and right across

14 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

all the key result areas. We undertake to deploy

electronic case management, integrated document

management and audio-visual recording to cut back

on delays and other opportunities to frustrate the

search for justice.

This blueprint encourages every court station to

innovate. It allows the creativity of every Judiciary

official to show. With it, we are creating a structure

that encourages resourcefulness and enables it to

thrive. Unlike other reports, plans and frameworks,

the Judiciary Transformation Framework will not

just be a document. It is a roadmap for action.

That is why I have created a full-time Judiciary

Transformation Secretariat within my office to drive

its implementation. The person I have picked to lead

the Judiciary Transformation Secretariat is highly

talented and has shown a remarkable sense of

commitment to serve by leaving a tenured position

as professor at one of the foremost universities in

the world to take up a position as a judge. Justice

Professor Joel Ngugi, who has been a critical part of

implementing the pilot transformation programme at

the Machakos Law Courts, brings invaluable insights

into how each station can make this framework a

living reality.

All citizens must be reminded that this is their

Judiciary. They pay for it, and it must work for them.

This Judiciary Transformation Framework is their

tool for holding each of us, at every level of the

Judiciary, to account. Civil Society has a special

role as our partners in promoting this framework as

the new template for how the Judiciary will work. As

stated before, we regard the co-ordinate branches

of government as interdependent and look forward

to a healthy relationship as we seek that society the

Constitution commands us to build.

We require more scrutiny from the media – not just

here in Nairobi, but around the country, so that it

can never be said we had a good plan that we

failed to implement.

Finally, for those who may be inclined to resist this

Judiciary Transformation Framework, I would say

this to you: the train has already left the station.

The forces against change have no alternative

Issue19 | April - June 2012

but to obey the Constitution -- unless they want to

overthrow it. This I am certain of: the old order

is dead. What is uncertain is how expensive the

forces of resistance will make the funeral.

Those who may think focusing on an individual can

halt or derail this transformation have not made the

necessary mental shift. There is a critical number

of Kenyans in the Judiciary who share this vision

for transformation.

They would do well to note that the office of

the Chief Justice is not a transmission station for

instructions from any quarter – the Executive, the

legislature, civil society, capital or any organised

interest. I do not tell judges what to decide and no

Kenyan, however low or high, should think that

they can ask me to do so. I have not done it and I

will not do it. Ultimately, our aim is not to defeat or

humiliate anyone. It is only to deliver to Kenyans

what is promised to them in the Constitution.

And to my colleagues in the Judiciary, I wish to

say this: The journey of an earnest transformation

of the entire Judiciary begins today. It is a cause

long pre-determined by the Constitution and high

expectations and on which we have no choice.

You owe it to yourselves to create an institution of

pride – make the Judiciary the most prestigious,

attractive, and effective arm of government. I am

sure that a great deal of professional satisfaction

is to be derived from working for an institution of

distinction and not one that is the object of constant

public scorn and ridicule.

As the Chief Justice and head of this institution, I

will do my part to help us realize our transformation

objectives. The burden of history requires me

to provide leadership in the creation of a new

institution. It is a burden I have taken up with

pleasure and will pursue with uttermost conviction.

No decision will be too tough for me to make if that

is the price we have to pay to meet the aspirations

of the Kenyan people. The time for testing is past.

Now is the time for results. We must all transform

or perish.

Thank you.

And to my colleagues in the Judiciary, I wish to say this: The

journey of an earnest transformation of the entire Judiciary

begins today. It is a cause long pre-determined by the

Constitution and high expectations and on which we have

no choice. You owe it to yourselves to create an institution of

pride – make the Judiciary the most prestigious, attractive,

and effective arm of government.

The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President,

Supreme Court of Kenya

15


Feature

The National Council for Law Reporting has

joined the Global Forum for Law, Justice

and Development (GFLJD) – www.bbi.syr.

edu/gfljd/

Mr. Michael M. Murungi (third from left), the CEO/Editor of the National Council

for Law Reporting, with a delegation from the World Bank’s Legal Vice Presidency

led by Mr. Hassane Cisse, Deputy General Counsel, Knowledge and Research

(second left); Ms. Nightingale Rukuba-Ngaiza, Senior Counsel (extreme left) and

Mr. Steven Mukaindo, Counsel (extreme right), when the delegation visited the

Council in March 2012 and invited the Council to join the Global Forum on Law,

Justice and Development.

The GFLJD seeks to:

- Promote a better understanding of the role

of law and justice and;

- Strengthen and better integrate legal and

NCLR JOINS GLOBAL FORUM

ON LAW JUSTICE AND

DEVELOPMENT

By: Michael Murungi,CEO/Editor

judicial institutions in the development process,

through selected capacity building initiatives

and an open repository of knowledge.

Rationale: Across the globe,

isolated spheres of legal

excellence exist that are

advancing civic, economic,

and social development

outcomes, but their advances

are not sufficiently translated

or available broadly for

replication. In particular,

development experts are

not currently able to directly

and easily access and assess

international research, policy,

and practice. Because strong

legal and judicial systems are

an important cornerstone of

sustainable economic and

social development, there is

a need in the international

community for a permanent

global knowledge exchange

forum. Such a forum can

greatly advance opportunities

to connect experts and

stakeholders from around

the world for identifying,

co-generating, sharing, and

disseminating relevant knowledge and solutions.

In our ever increasingly interconnected world, this

can be accomplished by harnessing technological

advances that are providing new opportunities to

connect geographically distributed experts and

stakeholders.

16 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

The GFLJD consists of two mutually reinforcing

pillars:

- a permanent forum; and

- an ICT web-based platform designed and

administered by the Burton Blatt Institute

(BBI) at Syracuse University (SU).

The GFLJD is composed of three broad participant

groups involved in the legal dimension of

international development:

- the World Bank as promoter, facilitator and

convener;

- a group of international and regional

organizations, such as International

Financial Institutions (IFIs), Universal and

Regional Organizations; and

- a group of national stakeholders, such as

government authorities, academia, thinktanks

and civil society organizations.

The forum will be supported by a web-based

Information and Communication Technology

(ICT) platform that will facilitate the internal and

external communication, host relevant knowledge

(databases, research, documents, etc.) and provide

easy and free access to knowledge relevant to

policy makers, development practitioners and the

general public.

The GFLJD partners believe that harnessing these

new technologies can fill the gap in the international

community for a permanent legal forum.

The forum is organized by thematic areas where

partners are clustered based on their expertise, and

each cluster of partners is expected to collaborate

via Communities of Practice (CoP) using blogs,

discussion forums, multi-media collaborative

Issue19 | April - June 2012

problem-solving, and professional networking.

Information will be shared online - for immediate,

free to access (no cost) and free to use (no

restrictions on re-use other than attribution) - and

will be made available in alternative formats, for

locations that have low or no access to internet.

The platform will incorporate reviews of knowledge

products by allowing users to rate every knowledge

product on multiple scales, thus using the crowdsourcing

of consumer reviews to provide information

on the usability, efficacy, impact, and effectiveness

of shared knowledge products.

The sustainability of the initiative is based on a

menu of options that include:

- “in-kind contributions” from intellectual

partners;

- “financial contributions” from financial

partners, sponsors and supporters; and

- combinations of in-kind and financial

support.

In order to encourage financial partnerships from

the South GFLJD sets US$ 250,000 as minimal

threshold for financial contribution for developing

countries.

The GFLJD is expected to provide a tremendous and

unprecedented return on investment by fostering

enhancement of human capital capacity through

knowledge sharing as well as participation in larger

social networks.

Sources: GFLJD Brochure

GFLD Website - www.bbi.syr.edu/gfljd/

National Council for Law Reporting

The whole aim of the constitution we passed in 2010 was, and is,

to move away from past ideas of leadership and past standards of

integrity. Those are the past ideas that had brought Kenya down in

the damaging years 1964-2010

Pheroze Nowrojee

17


Feature

NCLR-KCDF PARTNERSHIP: COMMUNITY DEVELOPMENT

THROUGH SUPPORT AND MENTORSHIP

April 4, 2012 - Mr. Kipkemoi Sang (middle

in black suit) and Mr. MacDonald

Shiundu (4th from right) when they were

introduced to their mentors, Dr. Willy

Mutunga, the Chief Justice, (4th from left) and Mr.

Michael Murungi, the CEO/Editor of the National

Council for Law Reporting (3rd from right) by

the Kenya Community Development Foundation

(KCDF). With them is a delegation from the KCDF

led by Ms. Janet Mawiyoo, the Executive Director

(3rd from left); Ms. Catherine Kiganjo, Programme

Co-ordinator (2nd from right); Ms. Damaris Njeri

(extreme left); Mr. Melvin Chibole (2nd from left)

and Ms. Neema Mutemi (extreme right).

April 4, 2012 - Mr. Kipkemoi Sang (middle in black suit) and Mr. MacDonald Shiundu

(4th from right) when they were introduced to their mentors, Dr. Willy Mutunga,

the Chief Justice, (4th from left) and Mr. Michael Murungi, the CEO/Editor of the

National Council for Law Reporting (3rd from right) by the Kenya Community

Development Foundation (KCDF). With them is a delegation from the KCDF led by

Ms. Janet Mawiyoo, the Executive Director (3rd from left); Ms. Catherine Kiganjo,

Programme Co-ordinator (2nd from right); Ms. Damaris Njeri (extreme left); Mr.

Melvin Chibole (2nd from left) and Ms. Neema Mutemi (extreme right).

On April 4, 2012, two young men stood in the

office of Dr. Willy Mutunga, the Chief Justice

and Chairman of the National Council for Law

Reporting, at the Supreme Court building in

Nairobi and shared the stories of their lives and

more importantly, their dreams for a bright future.

Mr. Kipkemoi Sang, 22, served as an usher at a

Nairobi church and nursed a deep and passionate

ambition to study law and become a human rights

By: Michael Murungi, CEO/Editor

lawyer. Mr. MacDonald Shiundu, 21, had battled

many odds to secure an admission at a local university

to study a degree in Economics.

The occasion was the introduction of the two young

men to their mentors – the Chief Justice and Mr.

Michael Murungi, the Editor/CEO of the National

Council for Law Reporting - by the Kenya Community

Development Foundation (KCDF).

Through a partnership between the KCDF and the

Council, the Board and members of staff of the

Council can support KCDF’s beneficiaries financially

through voluntary payroll-deducted donations from

their salaries and emoluments

and socially through KCDF’s

mentorship programme.

Founded in 1997 and

registered in Kenya as a public

foundation, KCDF is a Kenyan

development organisation

that supports communities to

drive their own development

priorities, by linking them to

resources and information. The

foundation promotes sustainable

development approaches by

among other things, encouraging

local resource mobilization, and

helping communities to utilize

resources that they have.

Mr. Sang, who’s mother has

taught him that service to God

is a virtue, an obligation and

a lifestyle, gave a bold and

eloquent statement of his vision

“My dream has continued to

flame in my heart for several years beginning with

mere wishes like; ‘when I grow up I want to be

a lawyer’. This dream has now blossomed into a

genuine passion for life. I have always learned and

accepted the challenges that have threatened this

dream and refused to quit because I have grown up

experiencing a lot of injustices to the humble people

in the neighborhood of my village. I have always had

the passion to be a lawyer, a bully of injustice that

18 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

have seemed detrimental to the human lives. This is

because every injustice that diminishes humankind

diminishes me”.

For Mr. Shiundu, the challenges of his life have

only strengthened his resolve to be of service to

humankind: “I am highly interested in helping

the needy in society to solve their problems,

enlightening the society and serving them as a

leader”, he said. “I strongly believe in intrinsic

features of motivation within myself. A free

minded person does what is right according to the

expectations of the society. I am never satisfied if I

see conflict and I fail to solve it whether it’s above

or below me”.

Thanking and congratulating the KCDF for its work

and for its partnership with the Council, the Chief

Justice observed that mentorship is commonly and

mistakenly viewed and applied as patronage –

where a mature and supposedly wise mentor

lords over his perceived life lessons and ideas

on a younger and supposedly naïve mentee. His

idea of mentorship, he said, was one in which

both the mature and the young individual regard

each other as equal partners bonded together by

a gentleman’s/ladies’ agreement to mutually and

reciprocally share life lessons and ideas. In this

regard, he hoped to learn at least as much from

Mr. Sang as Mr. Sang would learn from him.

KCDF is also the local implementing partner

of the Global Give Back Circle, which is a

KCDF MEMO ON MENTORSHIP

Issue19 | April - June 2012

registered Clinton Global Initiative Commitment.

The 'Circle' integrates mentoring; private sector

investment and local community support in a circle

of empowerment that socially and financially

empowers young girls to pursue their educational

and professional goals and to become agents

of change themselves. In return, the mentees

implement ‘Give Back Commitments’ in their

local communities, undertake to mentor the next

generation of girls, and commit to ‘give back’

once they realize their professional and financial

independence. KCDF’s mentorship programme for

young men is modeled on the Global Give Back

Circle's girls' programme.

The event was witnessed by Mrs. Gladys Shollei,

the Chief Registrar of the Judiciary; two members

of the Council’s Board of Directors, namely, Prof.

James Otieno-Odek (Dean of the School of Law,

University of Nairobi) and Mr. Paul Sang (Snr.

Printer, Government Printer); Ms. Ann Asugah, an

Assistant Editor at the Council; and a delegation

from the KCDF led by Ms. Janet Mawiyoo (Chief

Executive Officer); Catherine Kiganjo (Programme

Coordinator); Ms. Damaris Njeri, Melvin Chibole

and Neema Mutemi.

Kenya Community Development Foundation

www.kcdf.or.ke

Global Give Back Circle

www.globalgivebackcircle.org

MISSION

To harness the talents of women globally to transition disadvantaged girls out of the

circle of poverty and into a circle of social participation, contribution, fulfillment and

independence.

SCHOLARS are disadvantaged girls who come to the Nairobi area or other large towns

(to attend high school) from villages and towns all over Kenya. Most have lost a father,

a mother or both. They come from extreme poverty. They may be Christian or Muslim.

They are girls who have scored high enough on the national primary school exams to

qualify for a place in high school – girls with an opportunity to move beyond poverty,

to become global citizens.

FINANCIAL PARTNERS are corporations, foundations, government agencies and

individuals who provide funding. USAID, GGBC’s largest partnering funder, provides

half of the support. The corporations who fund GGBC are typically global organizations,

which fund from their Kenyan operations. Each scholar should know who is sponsoring

her through ICT training and university or collage.

THE COMMUNITY is made up of several “on the ground” institutions in Kenya including

19


Kenya Law Reports Bench Bulletin

the schools, universities and colleges. The Kenyan Community Development Foundation

(KCDF) implements GGBC in Kenya. KCDF is a world-standard model for grass-roots

implementation of community-based programs and an outstanding example of transparent

rant making. KCDF ensures that all funding from Financial Partners reaches the scholars

and is granted to them in a manner that makes them accountable for their spending,

thus embedding financial literacy skills. KCDF dedicates a staff of three professionals

and two interns to the implementation of the GGBC process.

MENTORS are the heart of GGBC- they are the women who fulfill the role of sisters,

aunts, teachers, friends and angles who guide the scholars in developing in maturity

and making decisions that will lead them to independence.

GLOBAL GIVE BACK CIRCLE

IS A CLINTON GLOBAL INITIATIVE COMMITMENT

What is the Clinton Global Initiative?

President Clinton, tires of attending conferences that were all talk, no action, created the

Clinton Global Initiative (CGI) in 2005 to turn ideas into action.

In September 2008, GGBC was invited to attend CGI and formed a commitment with ATE

Bank of Greece, Equity Bank (Kenya) and Microsoft to raise $350,000 to transition 35

girls onto tertiary education. In 2009, GGBC was invited back as a featured commitment

makers. In 2011, GGBC updated its commitment progress report to show that it has raised

$7 million dollars to transition 535 girls. The new goal is 1,000- 1,000 empowered

young women in Kenya! Read the Article.

Becoming a member of CGI was important on two levels. First it gave GGBC high level

of credibility in obtaining additional funding. Second, it provided the model for each

GGBC scholar to give back. CGI commitments must be specific and measurable. With

a goal of sustainability, GGBC asks the girls in the program to develop and implement

their own give back commitment. Ask your mentee how she is giving back to the world

around her.

USAID is an independent US federal government agency that receives foreign policy

guidance from the Secretary of State. It provides foreign aid to developing countries with

the mission to promote democracy and improve the lives of millions of people around

the world.

In early 2011, the GGBC program (at KCDF) received $ 3.5 million from USAID, allowing

GGBC to increase its reach to a total of 535 girls over the next three years. As a result,

over half of the GGBC scholars will be sponsored by USAID for their tertiary education.

Read about USAID and GGBC.

20 Issue19 | April - June 2012


Strategic Planning Quality Assurance and Performance Department

If you are an executive, manager, or team

leader, one of your toughest responsibilities is

managing your people's performance. Does this

From left to right Pascal Othieno (Finance), Michael Mayaka (ICT), Ann Asugah

(Laws of Kenya) Ms. Mutindi Musuva (HR), Ms. Esther Nyaiyaki (Deputy CEO).

Ms. Monica Achode (Editorial) Ms. Linda Awuor (Sales and Marketing and Mr.

Nganatha Karugu (Senior Principal Lecturer KIA)

sound familiar? It is performance review session,

you ask each of your direct supervisees into a

conference room one by one, hand them an

official looking document and then start with the

same old conversation. You say some positive

things about what the employee is good at, then

some unpleasant things about what he is not good

at – and end with some strokes of his ego. The

result - a mixed message that leaves even the best

of your employees feeling disappointed. Yet if you

Issue19 | April - June 2012

NCLR MANAGERS LEARN

HOW TO CONDUCT EFFECTIVE

APPRAISALS

take the right approach, appraisals are an excellent

opportunity to reinforce sold performers and redirect

poor ones.

It is for this reason the Council’s

managers convened at the

Kenya Institute of Administration

for a weeklong training (May

7- 11 2012) on performance

appraisal and management

course. The managers sought

insights on how to carry out

an objective appraisal, how to

design an effective appraisal

performance tool, the nexus

between performance and

reward, the role of mediation

in performance management

to name but a few. While the

managers’ expectations were

numerous the focus of this article

is the lessons we took away

What the experts said

By: Esther Nyaiyaki Onchana,

Senior Assistant Editor

on how to conduct effective

appraisals.

Why is appraisal necessary? The government for a

long time was resistant to measuring the performance

of persons holding public office. If it was done, it

was done in a perfunctory manner. The Government

of Kenya introduced performance contracts in the

public service through Legal Notice No. 93, the State

Corporations (Performance Contracting) Regulations,

2004 in August 2004.

21


Kenya Law Reports Bench Bulletin

This was part of the broader Public Sector Reforms

aimed at improving efficiency and effectiveness in

the management of the public service.

Performance appraisal is necessary in the public

sector to meet the citizens’ expectations, to

ensure a holistic approach performance and to

entrench continuous performance and to embed

a performance culture. A performance contract

is a mutually agreed document that specifies the

responsibilities, commitments and obligations

of both parties to the agreement. The contract

stipulates the key result areas, the level of

performance expected towards achievement of

agreed targets and how the performance will be

measured.

According to Mr. Humphrey Mokaya, a lecturer at

the Kenya Institute of Administration, the concept of

performance management encompasses the 4 Ps,

that is the organization’s policies, practices, people

and procedures. The policies should be consultative

and participatory while taking caution to borrow

only the best fitting practices when bench marking.

The organization should be keen in hiring the right

people whom they will facilitate and empower.

What about the employees? The employees

ought to have a clear line of sight towards the

organizational goals and their individual goals.

They must ask themselves this question ‘How do

my daily activities contribute to the organization’s

objectives?

Ms. Muthoni Gachire, also a lecturer at the Kenya

Institute of Administration gave lessons on how to

set performance objectives. The objectives should

flow from the national objectives down to the

agencies departmental and individual objectives.

For example at the national level the Key Result

Areas may be derived from the Millennium

Development Goals, and the national development

plans while departmental performance objectives

will be drawn from the agency’s mandate. She

defined Key Result Areas (KRAs) as ‘ that area

where performance is critical to the achievement

of the organization's goals, objectives and

strategies’. Failure in a KRA may constitute failure in

organizational performance. The Key Performance

Indicators (KPIs) are quantifiable measurements in

terms of performance levels and/or standards. They

reflect the achievement of performance objectives.

KPIs are used to observe progress and measure

actual results compared to expected results

Delivering an effective performance appraisal

For many employees, a face-to-face performance

review is the most stressful work conversation they

will have all year. For managers, the discussion

is just as tense. No matter what kind of appraisal

system an organization uses, below are several

strategies to help you make performance review

season less nerve-racking and more productive.

Set expectations early - Mr. Paul Mathenge,

a lecturer at KIA emphasized that performance

review does not start with a sit down in the spare

conference room at the end of the year. You must

be clear from the outset how, when and what you

will evaluate the employee. It is advisable to do

so at the beginning of the year. In that meeting

the supervisor and supervisee will not only set the

individual performance targets but will also discuss

the employee’s personal goals and expectations.

Understanding what the employees want from their

careers will help you figure out ways to broaden

their professional experiences.

Lay the groundwork - Weeks before the face-toface

review ask your employee to write down a

few things he or she has achieved over the review

period. You may ask the employee to conduct a

self-assessment on the various pre-agreed targets.

This will help both of you to refresh your memory

and it will put a positive focus on the event that

is often seen as negative. Next go over the other

reports you have kept over your employee over the

year: a well-executed project, a missed deadline,

the deft handling of a difficult client. However

Mrs. Esther Gachango, a senior lecturer at KIA,

reminds us that nothing should be a surprise

during the appraisal meeting. It is assumed that

appraisal is an on-going two-way conversation

throughout the year. When evaluating the values

and competencies of the employee you may seek

for feedback from others who work closely with

him in the organization. Inform the employee in

advance the topics you intend to bring up during

the face-to-face meeting, as well as the order you

plan to cover them.

Set the tone - Open the face –to-face meeting with

an upbeat tone. Keep your feedback focused on

the employee’s performance and let your message

be clear and concise. Walk through the evaluations

with your employees and provide them with specific

information regarding the rationale behind your

ratings. If you use self-evaluations, discuss the

points where you and your employees agree and

disagree. Most people are good solid workers,

so for the vast majority, you should concentrate

exclusively on things the person has done well.

This method tends to motivate people who are

already competent at their jobs. For your marginal

workers, however, do not sugarcoat the bad news.

Performance reviews are your chance to confront

22 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

poor performers and demand improvement.

Constructively coach - After discussing the

strengths and achievements of your solid performers,

ask them how they feel about how things are

going. In many cases you are dealing with mature

adults and you will draw out their honest opinion.

Angela Baron suggests that the feedback should

be framed in terms of a "stop, start, and continue"

model. What is the employee doing now that is

not working? What are they doing that is highly

effective? What actions should they adopt to be

more so? This will take the personal edge out of

the conversation.

End the sessions positively - Summarize the

discussion, ask for final questions, set follow-up

dates for goal setting, have the employees sign

hard copies of the evaluations, and end with

Issue19 | April - June 2012

positive expectations.

Additional information obtained from How to Be

Good at Performance Appraisals by Dick Grote

published by the Harvard Business Review Press

“ You

can’t manage what you can’t

measure; and you can’t measure

what you can’t describe”

Peter Drucker

23


Editorial Department

As you are aware the National Council

for Law Reporting is a semi-autonomous

state agency enacted under the National

Council for Law Reporting Act, Act No.

Below is the front cover image of the latest specialised edition of the

Gender Based Violence (GBV) Law report.

11 of 1994..., which tasks the Council with the

mandate of law reporting. In fulfillment of part

of this mandate the Editorial Department collects,

analyzes and provides affordable access to

accurate and relevant case law in order to aid

the administration of justice, the practice and

teaching of the law and the development of Kenya’s

jurisprudence. You may be familiar with some of our

products such as Kenya Law Reports Volumes, the

Specialized KLR Volumes – G & F, E & L, EP & GBV,

TRANSFORMING THE EDITORIAL

DEPARTMENT; FOLLOWING IN

OUR PARENT'S FOOTSTEPS

By: Monica Achode,

H.O.D Editorial Department

the KLR Monthly publication and the Bench Bulletin.

Under the Judiciary Transformational Framework

pillars our contribution falls under Pillar two

regarding Transformative

Leadership, Organizational

culture, and Professional and

Motivated Staff; KRA 7: Growth

of Jurisprudence and Judicial

Practice. The Constitution

requires the Judiciary to

develop jurisprudence, which

is the lifeblood of any Judiciary.

Sound jurisprudence will enable

the Judiciary to assert its

authority, command respect and

distinction among its peers, and

earn respect and legitimacy in

the eyes of the public. Indeed the

ultimate test of transformation of

the Judiciary should be manifest

in the quality of jurisprudence

emanating from the Bench, and

who better than the Council?

With this in mind the Editorial

Department of the Council after

receiving constructive feedback from the Bench,

specifically the Supreme Court, has undertaken

a transformative process aimed at improving the

following key areas of its functions and workflow

processes:

• The manner in which the Department receives

feedback and suggestions from the Judiciary

community regarding its editorial policy,

scope and content – more specifically, to

take advantage of the close relationship

24 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

between the Council and the Judiciary

Training Institute by working closely in the

development of jurisprudence;

• To move away from the hierarchical

standing of the court rendering the opinion

in the reporting of judicial opinions and

focus more on the contribution being made

by the said court and its contribution to

the growth of jurisprudence – specifically

expanding the scope of reportage for the

judicial opinions of the High Court that

contribute to the growth of jurisprudence;

• In-order to ensure that “no stone remains

unturned” the Department in its bid to

capture all jurisprudence emanating from

the Courts also intends to engage a law

reporting consultant to read through the

superior court decisions of Kenya for the

last 10-20 years for the consideration of

the Department for the publication of an

additional law report to cover judicial

opinions of jurisprudential value that may

not have been reported;

• The Department is also looking into

improving on the technical aspects of

it’s publications, particularly the style of

formatting, grammar, sentence structure

and punctuation and make a benchmarking

comparison with the editorial policy and

style adopted by other respected law

reporting establishments such as Lexis

Nexis, the publishers of the All England

Law Reports; and the Incorporated Council

for Law Reporting of England and Wales.

• The Department is also looking into getting

ICT consulting services to streamline

its online content, specifically the case

search database, in order to make it

Issue19 | April - June 2012

more manageable, more accessible and

make the whole online experience more

pleasurable for our users.

• One area that has been a challenge for

the department is staffing. The Department

recognizes that the judicial officers have

been increased over the last year, directly

increasing the workload of the department,

while the staffing levels in-house have

remained the same. It is recognized that

the working environment will require an

enhanced budget, modern working tools

and equipment and an enhanced and

enabled workforce. We look forward to

engaging with the Judiciary in achieving

this.

The Department does not intend to achieve all

this on its own; indeed we have a very committed

and engaged leadership giving strategic direction

to this transformative process. Each member

of the department has internalized the fact

that the responsibility for the success of the this

transformative process does not solely rest on the

Editor or the Head of the Department, it lies with

each and every one of us at all levels and in all

our different capacities. We hope the Judiciary will

strengthen the capacity of the National Council for

Law Reporting in order to improve the Council's

capacity to continue monitoring and reporting on

the development of jurisprudence.

We also hope to leverage on the new judicial

researchers who were recently hired and inducted

by the Judiciary, to assist with some of our

processes, especially with regard to bringing

jurisprudential issues to the Department’s attention.

In this way we hope to foster an environment in

which constructive feedback can be given and

received.

EDITORIAL TRANSFORMATION FRAMEWORK

25


Kenya Law Reports Bench Bulletin

EXPRESSION OF INTEREST

EOI No.: NCLR-EDITORIAL/006/12-13

Consultant Editor, Kenya Law Reports

About the National Council for Law Reporting

The National Council for Law Reporting is a state corporation in the Judiciary charged

with the mandate of publishing the Kenya Law Reports, which contain the Judicial

Opinions of the Superior Courts of Kenya, the Laws of Kenya and other types of public

legal information.

The vision of the Council is to be the leading legal institution in Africa in providing reliable

and accessible legal information to the public.

The Council invites expression of interest from qualified individuals or firms to provide

Law Reporting Editorial Services under the supervision and direction of the Editor of the

Kenya Law Reports.

Background

The Kenya Law Reports series was first published in 1906 by the East Africa Protectorate.

Later, after Kenya became a republic, the publication of the series was continued by the

Government Printer. After the publication of the 1980 edition, there followed a lapse of

two decades before the series was revived by the National Council for Law Reporting,

which had been established as state corporation in 1995. The Council has since published

24 editions of the Kenya Law Reports volumes covering the years 1980-1994 and 2000-

2009, a consolidated Index and four specialized editions on the subjects of Land &

Environment, Gender & Family, Election Petitions and Gender Based Violence.

Due to previous difficulties in accessing the records of judicial opinions, challenges in the

resourcing of the Council and also due to a limitation in the Council’s scope of editorial

coverage, a number of judicial opinions that contribute to the advancement of Kenya’s

jurisprudence may not have been given reporting consideration.

The Council seeks to collect, review and report these judicial opinions through the services

of a Consultant Editor

Scope of the Assignment

The purpose of this Consultancy is to supplement the Editorial Department of the National

26 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Council for Law Reporting by:

o Identifying, collecting, reviewing the judicial opinions delivered by the High Court of

Kenya and the Court of Appeal of Kenya which have not been reported in the Kenya

Law Reports and which contribute to the advancement of jurisprudence;

o Advising the Editor of the Kenya Law Reports on the suitability of the selected judicial

opinions for reporting;

o Upon the advise of the Editor of the Kenya Law Reports, compiling the selected

judicial opinions into a manuscript for a special edition or editions of the Kenya Law

Reports that conform to the Council’s Editorial Policy, guidelines and house rules. This

manuscript, the final published editions as well as all other information collected or

generated under this consultancy shall be the property of the Council.

In the scope of consideration, there is no limitation in the range of the years in which

the judicial opinions were delivered save that they should be the decisions of a superior

court of record established under the law of the Republic of Kenya.

Qualifications

The consultancy will involve individual consultants or a firm comprised of individuals

possessing at least the following mix of skills, knowledge and experience:

i. A postgraduate degree in Law or its equivalent;

ii. An undergraduate degree in Law;

iii. An advocate admitted to practice law in the superior courts of Kenya;

iv. At least 8 years post-admission experience as:

a. a distinguished academic in law; or

b. a legal practitioner in a busy and challenging litigation environment; or

c. an eminent author and/or publisher of legal materials, including but not

limited to the review of Kenyan case law.

v. A highly competent grasp of the law with a thorough understanding of Kenya’s

legal system and jurisprudence, and the theoretical and practical elements of

the doctrine of precedent;

vi. At least 5 years of experience in legal research, and report writing; review

of judicial precedent, legal analysis and the drafting legal briefs on a variety of

legal issues;

vii. Excellent command of written and spoken English, with proficiency in Business

English and Legal English;

viii. Excellent analytical and report-writing skills.

Deliverables

The Consultant is expected to provide the following deliverables:

i. An Inception Report setting out the Consultant’s understanding of

the assignment and the methodology the Consultant proposes to apply

in undertaking the assignment to be presented within thirty [30] days

of signing the contract;

ii. A report of the Judicial Opinions of the superior courts of record identified,

Issue19 | April - June 2012

27


Kenya Law Reports Bench Bulletin

collected and reviewed, setting out each opinion’s contribution to the advancement

of jurisprudence, to be presented with four [4] months after the presentation of the

Inception Report;

iii. A draft manuscript or manuscripts for a special edition or editions of the Kenya

Law Reports containing the Judicial Opinions selected for reporting set out in the

style of the Council’s Editorial Policy, guidelines and house rules, to be presented

within four [4] months after the presentation of the report detailing the records

collected and reviewed;

iv. An exit report setting out, in the Consultant’s opinion, the extent to which

the Consultant had satisfied the terms of the assignment and making any pertinent

recommendations to the Editor of the Kenya Law Reports; and

v. Periodic progress reports detailing the progress of the consultancy to be submitted

at least every six [6] weeks.

[Unless otherwise advised by the Council, all reports and documentation are to be

submitted in both electronic and print formats].

Duration and locus

The consultancy shall be undertaken in Nairobi, Kenya in close consultation with the

Editor of the Kenya Law Reports. The estimated time for the consultancy is one year.

Expression of Interest documents must be submitted in plain sealed envelopes with

Expression of Interest reference number and name clearly marked on top to the address

below or placed in the tender box at our office.

National Council for Law Reporting,

ATT: Procurement Unit,

P.O BOX 10443-00100,

Nairobi, Kenya.

Tel No: (+254) (020) 271 27 67, 271 92 31

Email: procurement@kenyalaw.org

The deadline for submission of the Expression of Interest documents is 21st

August 2012 at 1100hrs. Expression of Interest documents will be opened immediately

thereafter on the above respective date in the presence of prospective bidders or their

representatives who choose to attend.

CHIEF EXECUTIVE OFFICER

NATIONAL COUNCIL FOR LAW REPORTING

28 Issue19 | April - June 2012


Feature

The Communications Commission of Kenya

(CCK) is the regulatory authority for the

communications sector in Kenya and also

has the mandate to protect the interests of

consumers of communication services.

Having recognized that persons with disabilities

have numerous challenges in accessing, purchasing

and using communication services in Kenya and in

an effort to address these issues and challenges,

the Commission facilitated a two day workshop

whose theme was "E-accessibility for Persons with

Disabilities”. Persons with disabilities (PWD’s) form

an integral part of consumers of communication

services and they face numerous challenges in

accessing, acquisition and usage of communication

services. They hence require protection under the

law like any other citizen.

Issue19 | April - June 2012

TARGET GROUPS

Michael Murungi, CEO/Editor giving a speech at the E-accessibility workshop

for persons with disabilities at the Laico Regency, Nairobi.

REPORT ON-E-ACCESSIBILITY

WORKSHOP FOR PERSONS WITH

DISABILITIES HELD ON 10 &11TH MAY, 2012 AT THE LAICO REGENCY,

NAIROBI.

By: Njeri Githang’a Kamau,

Assistant Law Reporter, Editorial Department

The workshop was attended by representatives from

government agencies, disabled

person’s organizations (DPO's),

parents, residential associations,

communication service providers

and many others. The main focus

of the workshop was challenges

experienced by persons with

disabilities with regard to

access, acquisition and usage

of ICT services and interventions

required to enable persons with

disabilities access, purchase and

use communication services.

The objective of the workshop was:

• To enhance participants'

understanding of the policy

and legislative framework

around or relating to the

promotion of e-accessibility

for PWD's.

• To encourage the design of accessible

information, ICT products and services to

mitigate limitations to access to information,

employment, social inclusion and training of

PWD's.

• To have an appreciation of assistive

technologies, other methodologies and best

practices that mitigate against financial,

physical and functional barriers.

29


Kenya Law Reports Bench Bulletin

The National Council for Law reporting was

represented by Michael Murungi-CEO/Editor,

Wambui Kamau-Laws of Kenya department and

Njeri Githang’a Kamau- Editorial department

The workshops started with the launch of the PWD

web portal www.kenyadisability.or.ke which is

a collaborative initiative of the Communications

Commission of Kenya (CCK), National Council for

Persons with Disabilities (NCPWD) and Disability

Rights Organization through the United Disabled

Persons of Kenya (UDPK). Access to information

is a human right guaranteed in the Constitution

of Kenya 2010 and International Conventions

including the Convention on the Rights of Persons

with Disabilities (CRPD).

The web portal aims to:

• Enhance access to information by persons

with disabilities.

• Provide to the public information on

available services for persons with

disabilities.

• Create awareness about disability as a

human rights issue.

There after various presentations were made on

Policy Legislation and Regulatory Framework,

Promoting Accessible Computing Devices and

Applications, Promoting Accessible Websites,

challenges facing PWD in accessing ICT and so

on. Under Promoting Accessible Websites, Mr.

Murungi –NCLR CEO/EDITOR made a presentation

entailing some of the efforts the council has made

to make its website universally accessible and also

to accommodate persons with disabilities (PWDs)

which includes;

• Raising the universal access IQ: this has

been done through engaging with persons

and institutions dealing with the welfare

of persons with disabilities in order to

obtain baseline data and information to

help its understanding of the situation of

persons with disabilities both generally

and with regard to access to public legal

information.

• Employment integration: This is through

affirmative action in the form of head

hunting, including a statement in vacancy

advertisements that ‘the Council is an equal

opportunity employer and persons with

disabilities, persons from minorities and

marginalized communities are encouraged

to apply’; bringing the job advertisement

to the particular attention of institutions

dealing with the welfare of persons with

disabilities, etc.

• Developing comprehensive universal

accessibility guidelines: Through the

support of the Rockefeller Foundation,

the Council has engaged a consultant to

develop a comprehensive set of guidelines

and standards to serve as the reference for

the Council in originating and providing

its web content in universally accessible

formats.

• Implementing basic universal accessibility

guidelines: Through consultations with

persons and institutions dealing with

the welfare of persons with disabilities

and through research, the Council

has formulated certain guidelines and

standards for the universal accessibility of

web content. The Council is progressively

applying the guidelines in converting public

legal documents that were originated in

formats that are not universally accessible.

So far, the Council has published Braille

copies of the Persons with Disabilities

Act(No. 14 of 2003) and distributed it to

key institutions dealing with the welfare of

persons with disabilities; it is earmarking

further content for Braille production; and

has converted some if its documents into

access-friendly formats.

• Leveraging on extra-budgetary support

towards universal access: this has been

done through the support of the Rockefeller

Foundation in engaging a consultant to

guide the Council in developing universal

web content accessibility guidelines and

standards.

• Integration through Impact Sourcing: The

Council will be seeking to outsource some

of its business processes, including the

conversion of documents into universally

accessible formats, to an Impact Sourcing

Service Provider – i.e. a BPO provider who

engages the labour of socio-economically

disadvantaged persons, including persons

with disabilities.

• Shifting public policy, law and practice on

universal access: The Council has engaged

a consultant to develop guidelines for both

the translation of legal documents from

English to Swahili and also for the universal

accessibility of web content. We hope that

the demonstrable success of our efforts

30 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

will serve to inspire other government

departments.

• IMPACT-IS: (Improving Public Access to

Information through Impact Sourcing –

IMPACT-IS.) This is an initiative that has

obtained the seed funding of the Rockefeller

Foundation but which will ultimately be

mainstreamed into the Council’s operations.

The IMPACT-IS initiative will inspire other

institutions:

• by demonstrating how government agencies

can be more effective and efficient by

outsourcing all or some of their routine

business processes;

• by providing a model on how corporate

objectives and also government

procurement processes can be aligned with

the attainment of positive social outcomes,

such as indirectly providing employment to

persons with disabilities and other socioeconomically

disadvantaged persons;

• by cultivating an interest in and demand

for Impact Sourcing as a viable business

proposition;

• ultimately, by catalyzing a positive shift in

government approaches towards poverty

alleviation and universal access.

• International partnerships and

benchmarking:

• Bookshare – www.bookshare.org : The

Council is a partner of Bookshare, the largest

online accessible library of copyrighted

content for people with print disabilities.

Through its technology initiatives and

partnerships, Bookshare seeks to raise

the floor on accessibility issues so that

individuals with print disabilities have the

same ease of access to print materials as

people without disabilities.

Some of the Challenges mentioned in the conference

included;

• Lack of sign interpreters for Television

programming.

• Learning institutions lack sign language

interpreters e.g Kenyatta University which

has about 8 deaf students with no sign

language interpreters yet it’s their right to

access Education.

Issue19 | April - June 2012

• Access to buildings for physically disabled

persons-lack of lifts and ramps etc

• Banking –Few banks with ATMs that

accommodate the visually impaired persons.

• Lack of Sign Language interpreters in banks

• Software’s needed by visually impaired

persons are expensive hence cannot be

accessed by most of the PWDs.

Proposals were made on how to curb some of the

challenges which included.

• Broadcasting to issue warning before issuing

flash lights as they trigger epilepsy attacks.

• CCK and Persons with disabilities

organizations to meet with media owners and

discuss some of the issues in broadcasting.

• Government to make internet affordable and

accessible

• Banks to offer sign Language for their

products also have universally accessible

ATMs

• Need for blanket copyright allowing

conversion of all audio productions of books

in print.

• All public information to be posted on the

PWD web portal

KEY LESSONS LEARNT

Integration not segregation

• It is the right of persons with disabilities

to live in a world which integrates rather

than segregates them. They have a right

to community integration – meaning that

rather than having separate facilities

and conveniences set aside for persons

with disabilities, we should have all our

public and private spaces designed and

conceptualized in a way that they are

accessible to all persons. This way we will

not view their challenges as disabilities or

inabilities, because they are not. What

makes them challenges, disabilities or

inabilities is the fact that we have not built

our communities and our world for everyone

– Universal Access.

• Employment integration of persons with

disabilities helps to improve two things:

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Kenya Law Reports Bench Bulletin

a. the employer’s understanding of the

situation of persons with disabilities;

b. the employer’s capacity to make its content

universally accessible.

• The same approach – that is integration

rather than segregation – would apply to

web content, whether for public institutions

or private ones. The approach would not

be to set aside certain segments of our

websites that have content that is accessible

to persons with disabilities – segregation

of content. I think the proper approach

would be to integrate universal accessibility

standards into the concept, structure and

design of all website content.

• A majority of government content is

originated in the English language and

in paper format or in digital formats that

are not universally accessible. Integrating

rather than segregating the welfare of

persons with disabilities means that all

web content is originated in universally

accessible formats so that the need for

downstream conversion is eliminated.

The Constitution of Kenya 2010

54.(1) A person with any disability is entitled ––

• Through Impact-Sourcing, government

institutions can achieve two very important

objectives:

• Convert their historical/legacy content into

universally accessible formats; and

• Indirectly provide employment to persons

with disabilities and other socialeconomically

disadvantaged persons.

• Universal access is not a favor, it is a

constitutional responsibility

The welfare of persons with disabilities has been

the subject of welfare initiatives such as corporate

social responsibility initiatives, ‘giving back to

society’, ‘caring for the less fortunate’. While

concern for others is altruistic and is good for

humanity, the tragedy is that such initiatives and

vocabulary towards persons with disabilities only

serves to socially segregate them as the subjects of

pity and the objects of charity. It may look good on

corporate brochures and company reports but in

my opinion, it does not help at all with the social

integration of persons with disabilities.

(a) to be treated with dignity and respect and to be addressedand referred

to in a manner that is not demeaning;

(b) to access educational institutions and facilities for personswith disabilities

that are integrated into society to the extentcompatible with the interests

of the person;

(c) to reasonable access to all places, public transport and

information;

(d) to use Sign language, Braille or other appropriate means of

communication; and

(e) to access materials and devices to overcome constraints

arising from the person’s disability.

(2) The State shall ensure the progressive implementation of the

principle that at least five percent of the members of the public in elective

and appointive bodies are persons with disabilities.

32 Issue19 | April - June 2012


Laws of Kenya Department

On January 13th, 2012, the High

Court, (Justices Isaac Lenaola, Mumbi

Ngugi and David Majanja delivered

its judgement on the election date to

be within sixty days of 15th January, 2013. This

followed a constitutional petition to the High Court

of John Harun Mwau &3 others v Attorney General

& 2 Others (2012). They based their judgment on

section 9 and 10 of the Sixth Schedule constitution

which states that the first elections for the president,

the National Assembly, Senate, County assemblies

and county governors shall be held at the same

time, within sixty days after the dissolution of the

National Assembly at the end of its term or upon

expiry of the term of the 10th Parliament on the

5th Anniversary of the day it first sat which is

designated by Legal Notice No. 1 of 2008 as 15th

2008. The term therefore expires on 14th January,

2012. The elections will be held within sixty days

after 15th January, 2013.

This pronouncement had an immense influence on

the shape of politics within the country. The Political

Parties Act (No. 11 of 2011) is the main legislative

framework when it comes to political parties. It is

guided by the principles set out in the Constitution of

Kenya, 2010 and other governing Articles such as

Article 91which provides for the basic requirements

for political parties. These requirements include:

a) having a national character

b) a democratically elected governing body

c) Promotion of national unity

d) Abiding by the democratic principles of

Issue19 | April - June 2012

POLITICAL PARTIES AND THE

INGREDIENTS OF THE LAW

By: Wambui Kamau,Legal researcher,

Laws of Kenya Department

good governance, rule of law free and fair

elections

Further the Constitution restricts political parties from:

a) being founded on a religious, linguistic,

racial, ethnic, gender or regional basis or

seek to engage in advocacy or hatred.

b) engaging in violence or intimidation of its

members, supporters or opponents

c) establishing or maintain a paramilitary force,

militia or similar organisation.

d) Accepting or using public resources to

promote its interests or its candidates in

elections, unless otherwise provided for by

law.

Under the Political Parties Act, a party may register

either provisionally or full. However, a party that

is provisionally registered should apply for full

registration not later than one hundred and eighty

days from the date of provisional registration. The

difference between provisional registration and full

registration is that with provisional registration, a

party shall not be entitled to participate in an election.

The Registrar of Political Parties is charged with

the mandate of registering, regulating, monitoring,

investigating and supervising political parties to

ensure compliance with the provisions of the Political

Parties Act.

Having registered parties due for election, Kenyans

must be enlightened in dealing with political parties.

A repeat of the post election violence that occurred

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Kenya Law Reports Bench Bulletin

in 2007 is totally unacceptable. The law through

the Political Parties Act has taken steps to ensure

a smooth coverage of the elections. These steps

include:

a) Naming of a Political Party

Section 8 dictates that the Registrar of Political

parties may refuse to register a party which has the

abbreviation of the name or symbol that is obscene

or offensive.

b) Registration of Coalitions/ Mergers

Two or more political parties may from a collation

before an election, however, the coalition agreement

should be deposited with the Registrar at least three

months before that election.

c) Integrity of leaders

In applying the principle of integrity, section 13 of

the Act provides that a person who is disqualified

from holding public office under any written law

shall not hold office in the governing body of a

political party or be its founding member.

d) Deregistration of political party

A political party will be deregistered if it does not

promote free and fair nomination of candidates,

does not respect the national values and principles

of the Constitution, obtained its registration in a

fraudulent manner or has instigated or participated

in the commission of an election offence.

e) Accountability

A political party, according to section 29, must

within ninety days of the end of its financial year,

publish the sources of its funds stating the amount

of money received from the Fund, the amount of

money received from its members and supporters

and the amount and sources of the donations given

to that party. It shall also state the income and

expenditure of the political party and the assets

and liabilities of the political party. This information

should be published in at least two newspapers

having nationwide circulation.

In addition to this, a political party shall at least

ninety days before a general election, submit to the

Registrar a register of its members and a statement

of its assets and liabilities in the prescribed form.

Failure to comply, the party risks deregistration.

However, for a fair verdict, parties have the right

to appeal to the Political Parties Disputes Tribunal

which has the jurisdiction to hear appeals from

decisions of the Registrar under the Act.

34 Issue19 | April - June 2012


Laws of Kenya Department

A

Bill is a proposed law under consideration

by the legislature. Under the Kenyan

jurisdiction, Parliament is tasked with

the legislative authority. Once a Bill is

introduced in Parliament, it must go through a

number of stages before it can become law. This

allows the Bill's provisions to be debated in detail,

and for amendments to the original Bill to also

be introduced, debated, and agreed to. Below

is a synopsis of various Bills before Parliament at

various stages for the period between April-June,

2012.

Public Financial Management Bill, 2012

The principal object of this Bill is to provide for the

effective management of public finances by the

national government and the county governments

in accordance with the Constitution and for

the accountability of public officers, given the

responsibility of managing those finances, to the

public, through Parliament and the respective

county assemblies.

The Bill provides for the establishment of the

National Treasury under Article 225 of the

Constitution which establishes the National

Treasury as an entity of the National Government,

comprising the Cabinet Secretary who will be the

head and the Principal Secretary responsible for

finance.

The Bill provides for responsibilities of the National

Treasury as contemplated in Chapter 11 and 12

of the Constitution which include: formulating,

monitoring and implementation of macroeconomic

policies; managing public debt, including loan

Issue19 | April - June 2012

A SYNOPSIS OF THE BILLS

UNDER CONSIDERATION IN

PARLIAMENT FOR THE PERIOD

APRIL-JUNE, 2012

By: Christian B. Ateka, Legal Researcher,

Laws of Kenya Department

guarantees; promoting economic and financial

policies and facilitating social and economic

development; Designing and prescribing of financial

management systems; Capacity building for effective

and efficient financial management.

The Bill also provides for the powers and responsibilities

of both national government and county governments

with respect to the management and control of public

finance.

Finally, the Bill provides for the establishment of the

Intergovernmental Budget and Economic Council

whose purpose is to provide a forum for consultation

and cooperation between the national government

and the county governments on matters relating to

budgeting, the economy and financial management at

the National and County level; on matters relating to

borrowing and national government loan guarantees;

among others.

Traffic (Amendment) Bill, 2012

The Traffic (Amendment) Bill, 2012 seeks to bring

a raft of major changes to the existing traffic law

in Kenya. One of the more radical measures being

proposed is the abolishment of the Kenya Traffic

Police Department. According to the Bill, which is

sponsored by Gem MP Jakoyo Midiwo, all police

officers would be required to enforce traffic laws.

The main objective of this Bill is to amend the Traffic

Act (Cap.403) by vesting ownership of motor

identification plates on the Kenya Revenue Authority,

and to require surrender of the plates to the Registrar

of Motor Vehicles once a motor vehicle is transferred

from one person to another. The Bill further seeks to

enhance the penalties for various traffic offences in

35


Kenya Law Reports Bench Bulletin

order to deter commission of those offences and

consequently minimise loss of lives on Kenyan

roads through accidents.

The following is a quick overview of some of the

major points in the Bill:

• The Administrative Unit of the Kenya Police

Service known as the Traffic Department

would be abolished;

• Ownership of vehicle registration plates

would be given to the Kenya Revenue

Authority (KRA);

• Driving under the influence would attract

a penalty of 10 years in jail or a minimum

of KES 500 000 fine, or both;

• Overlapping, driving on pavements and

pedestrian walkways or using petrol

stations to avoid traffic would get you a

three month prison term or a fine of KES

30 000, or both;

• The licence of a person found guilty of

exceeding speed limits would be invalid

for not less than 3 years if the limit is

exceeded by up to 10 KPH or if the offense

is repeated more than three times.

Prohibition of Pyramid Schemes Bill, 2012

The object of this Bill is to prohibit certain acts in

relation to pyramid schemes and proposes stiffer

penalties for anybody or institution that engages

in the business. The Bill, sponsored by Ikolomani

MP Boni Khalwale proposes up to 10 years

imprisonment or a fine of Sh10 million, or both

for those involved in pyramid schemes that have

in the past seen Kenyans lose billions of shillings.

The Bill has a wide definition of a pyramid scheme

and says it could involve marketing of goods or

services, or both.

Among other provisions of the Bill, it is an offence to

participate in a pyramid scheme or induce another

person to participate in it knowing that any benefit

gained is entirely or substantially derived from the

introduction to the scheme of new participants.

Further, directors and partners of illegal firms

fleecing Kenyans will also have no excuse that

they were in the dark about the activities. The Bill

provides for the liability of a relevant person of a

corporate body or unincorporated body the firm or

a person as a member of the unincorporated body

commits an offence. The proposed law proposes

that perpetrators of the schemes pay compensation,

which is recoverable as a civil debt. Such payment

might be financial or non-financial.

However, the Bill will not interfere with pending

claims filed by victims against owners of pyramid

schemes that have since collapsed.

Social Assistance Bill, 2012

This Bill seeks to establish a law that will mandate

the government to identify and provide social

assistance to persons in need. The Bill, prepared

by Sotik MP Joyce Laboso, seeks to establish the

National Social Assistance Authority which, other

than identifying those in need, shall have the

power to make grants to any organisation, group

of citizens for the purpose providing assistance to

persons in need or likely to become in need.

The Bill also provides that those to qualify for

assistance include: orphans and vulnerable

children, poor and elderly persons, unemployed

persons, persons disabled by acute chronic

illnesses, persons with disabilities. However, the

unemployed persons to benefit from the programme

will have to be youths and show proof that lack of

income is not due to negligence or lack of industry.

The Authority shall also maintain and promote

the status, wellbeing, rights, safety and security

of persons in need of social assistance. It will also

develop, maintain and operate a National Social

Assistance Information Management system and

mobilize resources to support and fund social

assistance programmes.

Public Private Partnerships Bill, 2012

This Bill seeks to make it easier for the private sector

to participate in government projects. If enacted,

the Bill which was tabled by Finance Minister Mr

Njeru Githae, will see establishment of a committee

to oversee the partnerships. It will be the first

comprehensive guide on how private sector players

can engage the government and participate in

development of infrastructure and other projects.

In its Vision 2030, the government envisages rapid

expansion of infrastructure and expects publicprivate

partnerships to be among the approaches

that would enable the realisation of turning the

country into a medium status. Experts have argued

that lack of clear guidelines on public-private

partnerships has hindered private sector investors

from investing in government projects like road

construction and energy. Among the projects that

the government has indicated it will rely on publicprivate

partnerships include the multi-billion Lamu

Port Southern Sudan Ethiopia Transport (Lapset)

corridor.

The Bill also seeks to review the legal, institutional

and regulatory framework of public-private

partnerships. Further, it addresses the sharing of

36 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

revenues between the government and the private

investors where appropriate.

National Drought Management Authority

Bill, 2012

Drought continues to be a major issue affecting

Kenya. Certain sections of the country continue

to face perennial drought which results in severe

negative economic, social and environmental

effects. It is against this background, and in light

of the critical importance of drought management

and mitigation of the effects of drought, that this Bill

seeks to give the National Drought Management

Authority statutory status such that the establishment

of the Authority would be founded in statute rather

than in an executive Order.

Currently, the National Drought Management

Authority exists by virtue of National Drought

Management Order issued through Legal Notice

No. 171 of 2011. The legal effect of this Bill

therefore will be to transit the Authority established

under the 2011 Order into a statutory body.

Internally Displaced Persons Bill, 2012

The main object and purpose of this Bill is to:

provide for the protection and assistance to

internally displaced persons and to give effect to

the Great Lakes Protocol on the Protection and

Assistance to Internally Displaced Persons and

the United Nations Guiding Principles on Internal

Displacement.

The Great Lakes Protocol on the Protection and

Assistance to Internally Displaced Persons entered

into force on June 21, 2008, following ratification

by eight member states, including Kenya. Under

article 2(6) of the Constitution, any treaty or

convention ratified by Kenya shall form part of

the law of Kenya under the Constitution. The Bill

seeks to fulfill the specific aspects of Great Lakes

Protocol on the Protection and Assistance to

Internally Displaced Persons that required action

through domestic legislation.

The Bill provides for rights-based response to

internal displacement and imposes an obligation

on every person, including public bodies, State

officers, public officers and private bodies

or individuals involved in the protection and

assistance to internally displaced persons in the

Kenya to act in accordance with the Protocol and

the Guiding Principles.

Further, the Bill establishes the Protection and

Assistance to Internally Displaced Persons Fund.

Issue19 | April - June 2012

The Fund is the successor to the Humanitarian

Fund for Mitigation of Effects and Resettlement of

Victims of Post-2007 Election Violence established

by regulation 3 of the Government Financial

Management (Humanitarian Fund for Mitigation

of Effects and Resettlement of Victims of Post-2007

Election Violence) Regulations, 2008.

Public Benefits Organization Bill, 2012

This Bill seeks to provide a legislative framework to

govern the establishment and operations of public

benefit organisations. The Bill takes cognisance of

the important role that public benefit organizations

play in serving the public good, supporting

development, social cohesion and tolerance

within society, promoting democracy, respect

for the rule of law, and providing accountability

mechanisms that can contribute to improved

governance.

The Bill provides a legal mechanism for the

registration and self-regulation of public

benefit organisations. While Civil Society

Organizations in Kenya are diverse in nature,

there are also many registration and regulatory

regimes governing them, making it difficult for

effective legal and statutory compliance and

accountability. Such laws, which include: the

Non Governmental Organization Coordination

Act of 1990, the Companies Act Cap 486 (for

Companies Limited by Guarantee), Societies Act

Cap 108, Trustee Perpetual Succession Act Cap

164, and Trustees Act Cap 167 have been

unable to bring on board the diverse spectrum

of the civil society organizations, particularly

those engaged in public benefit activities. The

existing fragmented and uncoordinated legal

and institutional frameworks makes coordination

of these organizations difficult.

Finally, the Bill contains provisions on the

establishment, powers and functions of the Public

Benefit Organisations Registration Commission.

The Commission is intended to take over from the

Non-Governmental Organisation Co-ordination

Board which is a body corporate and whose

enabling legislation is the Non-Governmental

Organisations Co-ordination Act, 1990.

Prohibition of Anti-Personnel Mines Bill, 2012

The Convention on the Prohibition of the use,

Stockpiling, Production and Transfer of Anti-

Personnel Mines and on their Destruction (Ottawa

Convention) provides for a comprehensive

framework for ending the suffering caused by

anti-personnel mines. States that are parties to

the Convention (of which Kenya is one) have

37


Kenya Law Reports Bench Bulletin

undertaken to cease production and acquisition of

these weapons and to dispose of existing stockpiles.

Article 9 of the Convention requires a party to the

Convention to impose penal sanctions to suppress

activities prohibited under the Convention. The

object of this Bill is to therefore impose the required

sanctions, in such circumstances and with such

exceptions as are consistent with the terms of the

Convention.

The Bill prohibits use, development and production

of anti-personnel mines. Further, acquiring,

transferring or possessing anti-personnel mine or a

component of such a mine is also prohibited, except

for the purposes of certain military operations

or training exercises or in other circumstances

permitted under Article 3 of the Convention.

The Bill also provides for the location and rendering

safe of anti- personnel mines and component

parts, for the issue of warnings and other notices

and for the removal and destruction of mines and

components by persons authorized by the Cabinet

Secretary. Provision is also made for the issue of

warrants and authorizations to search premises

where necessary.

Public Service Commission Bill, 2012

The principal object of this Bill is to re-orient the

Public Service Commission to accord with the

Constitution of Kenya, 2010. It achieves this by

constituting and incorporating the Commission,

modernizing and expanding its functions and

clearly articulating the procedure for appointment

and removal of the chairperson, members and

secretary. The Bill also enhances the Commission's

operational and financial autonomy.

The Bill also provides for the composition,

qualifications and appointment of members of the

Commission. It clearly outlines the structure and

operations of the Commission including provisions

on the secretariat, power to employ staff, the role

of the secretary and rules applying in the conduct

of meetings of the Commission.

Further, the Bill provides that all expenses incurred

by the Commission in the execution of its mandate

shall be a charge on the Consolidated Fund and

thereby requiring the preparation of audited

accounts and annual financial estimates and

reports.

Teachers Service Commission Bill, 2012

This Bill outlines plans by Teachers Service

Commission’s to overhaul rules for its engagement

with teachers, including fresh registration of all

educators by TSC. The new measures outlined in

this Bill will require all teachers to register afresh

with TSC soon after Parliament passes it into law.

The radical reforms proposed in the Bill are

expected to enable students get quality education

as a right in line with the Constitution. The Bill gives

the Commission powers to take steps to ensure

anybody in the teaching service complies with the

teaching standards prescribed under the Bill. For

instance, all registered teachers will be required

to undertake career progression and professional

development programmes that will be prescribed

by new regulations. In this regard, a teacher

who fails to undertake a prescribed career and

professional development programmes would be

struck off the roll of the teaching fraternity.

Kenya National AIDS Commission Bill, 2012

The objective of this Act is to provide a legal

framework for the establishment, powers and

functions of the Kenya National AIDS Commission.

The Commission is established as a successor to

the National AIDS Control Council. In its current

state the National Aids Control Council is a State

Corporation established vide the National Aids

Control Council Order published in Legal Notice

No. 170 of 1999.

In the current state the Council operates under and

reports to the Office of the President. This raises

serious questions of autonomy which may end up

hampering the effective operations of the Council.

This lack of autonomy may also be a limiting factor

in the body exercising general functions. Further,

funds that the Council is dependent on are drawn

from the ministerial allocations.

The Bill seeks to reverse this state of affairs by

establishing the Commission as a body corporate

with perpetual succession and a common seal.

This gives it the full autonomy that comes with the

status of a corporate body including the capability

to sue and be sued, to enter into contracts and to

own property in its own name. The funds to the

Commission will also now be directly allocated by

the Parliament thus strengthening the Commission.

The Bill also intends to strengthen the institutional

structures of the Commission by providing for

a transparent and meritorious system for the

appointment of the members of the Commission.

The Chair and members of the Commission are

made subject to and protected by the provisions

of the Constitution as relates to state officers. The

appointment process includes nomination by a

panel and parliamentary approval.

38 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Kenya Medical Supplies Authority Bill, 2012

The principal object of this Bill is to establish, by

statute, the Kenya Medical Supplies Authority to

procure and distribute drugs and other medical

supplies to all public health institutions. The

Authority will be the successor to the Kenya Medical

Supplies Agency established under the State

Corporations Act vide the Kenya Medical Supplies

Agency Order of 2000, which this Bill proposes

to repeal. The Authority will improve the quality of

Issue19 | April - June 2012

the health care services, and ensure its long term

sustainability and availability.

The Authority will among other functions ensure

availability and accessibility of drugs and

medical commodities to public and private

health institutions, advice consumers and health

providers on the rational and cost effective use

of drugs and medical supplies and decentralize

its warehousing functions to counties.

39


Laws of Kenya Department

Synopsis of Land legislation as recently

enacted by Parliament

Chapter Five of the Constitution of Kenya,

2010 makes provisions on Land and

Environment. Article 68 specifically

stipulates the mandate of Parliament in

enacting land legislation. It provides that Parliament

shall revise, consolidate and rationalise existing

land laws. The Land Laws that have been enacted

address the folowing needs as stipulated in Arctile

68:

a) prescribe minimum and maximum land

holding acreages in respect of private land,

b) regulate the manner in which any land may

be converted from one category to another,

c) protect, conserve and provide access to all

public land amongst other objectives,

To achieve this end, Parliament has enacted

three important pieces of legislation based on the

following principles as stipulated in Article 60.

These include:

• equitable access to land

• security of land rights

• sustainable and productive management

of land resources

• transparent and cost effective adminstration

of land

The following laws were assented to by the

President on the 27th April, 2012 and came into

force on the 2nd of May, 2012.

a) THE LAND ACT (NO. 6 OF 2012)

This Act is to give effect to Article 68 of the

Constitution and to revise, consolidate and

rationalize land laws. It also seeks to provide for

the sustainable administration and management of

land and land based resources. This law repeals

the Wayleaves Act (Cap. 292) and the Land

Acquisition Act (Cap. 295).

ACTS AS PASSED BY PARLIAMENT

By: Wambui Kamau, Legal researcher,

Laws of Kenya Department

Section 3 of the Act applies to all land declared as

public land, community land and private land. The

Constitution provides for the definition of these types

of land in Artciles 62,63 and 64 respectively. In brief,

public land includes unalienated government land,

land lawfuly held, used or occupied by any State

organ, land transferred to the State, land in which

no heir can be identified by any legal process. Also

government forests, minerals and mineral oils as

defined by law and others as described in Article 62

of the Constitution of Kenya.

Community land will include land lawfully:

a) registered in the name of group representatives

under provisions of any law

b) transferred to a specific community by any

process of law

c) held, managed or used by specific

communities as community forests, grazing

areas or shrines

d) ancestral lands and lands traditionally

occupied by hunter gatherer communities or

e) land lawfully held as trust land by the county

governments

Private land on the other hand consists of registered

land held by any person under freehold tenure, land

held by any person under leasehold tenure and any

other land declared as private land under any Act

of Parliament.

The forms of tenure shall be freehold, leasehold, such

forms of partial interest as may be defined under the

law and customary land rights.

Section 7 further articulates the methods in which title

to land may be acquired which include, allocation,

land adjudication process, compulsory acquisition,

prescription, settlement programs, transmissions,

transfers and long term leases exceeding twenty years

created out of private land.

The National Land Commission established under the

40 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Constitution of Kenya, 2010 is to be incharge of

managing public land on behalf of the national

and county governments.

On administration and management of Private

Land, all contracts on the disposition of land must

be in writing and signed by all the parties and

each signature attested to by a witness who was

present when the contract was signed by such a

party.

On transfers, section 43 defines a transfer to

include a conveyance, an assignment, transfer

of land, lease or other intrument used in the

disposition of an interest in land. Transfers are to

take effect immediately.

This Act provides for transmissions by providing

details on transmission on death and bankruptcy or

upon company’s liquidation. Provisions on leases

and charges are substantively articulated.

On compulsory acquisition of land, the national or

county government may acquire some particular

land compulsorily of which just compenstaion

shall be paid promptly in full to all persons

whose interests in land have been determined.

Disputes under this Act may be referred to the

Land and Environment Court for determination.

This Court will have exclusive jurisdiction to hear

and determine disputes, actions and proceedings

concerning land under the Act.

Settlement Programmes are provided for in Part IX.

The National Land Commission is charged with the

mandate to implement settlement programmes to

provide access to land for shelter and livelihood.

The Commission will also assist the national

and county governments in the administration

of setlement programmes. To achieve this end,

the Land Settlement Fund is established under

section 135 which shall be administered by the

Commission. This Fund will be applied for the

provision of access to land to squatters, dispalced

persons,. Development projects, conservation

and other such cayuses. It will also be used for

the establishment of refugee camps, provision of

shelter and a liveilihood to persons in need.

This Law repeals the Wayleaves Act(Cap. 292)

and the Land Acquisition Act (Cap. 295).

b) THE LAND REGISTRATION ACT (NO. 3

OF 2012)

This law seeks to revise, consolidate and rationalize

the registration of titles to land and to give effect to

the principles and objects of devolved government

in land registration. According to Section 3, this

Issue19 | April - June 2012

Act shall apply to registration of interests in all

public land, private land and registration and

recording of community interests in land. On

limitation of the Act, the Act will not prohibit or

otherwise affect the system of registration under

any law relating to mining, geo-thermal energy

or any rights over land and land- based resources

in respect of public land.

On organisation and administration, Part II

provides for the Land Register and Offices and

for the proper maintenance of the land register

and documents such as the cadastral map, parcel

files, any plans, index, presentation book and a

register and a file of powers of attorney.

Overiding interests such as spousal rights over

matrimonial property, trusts, rights of way are

provided for.

The following laws are repealed by this piece of

legislation:

c) The Indian Transfer of Property Act, 1882

d) The Government Lands Act (Cap. 280)

e) The Registration of Titles Act (Cap. 281)

f) The Land Titles Act (Cap. 282)

g) The Registered Land Act (Cap. 300)

THE NATIONAL LAND COMMISSION ACT (NO.

5 OF 2012)

This makes further provision as to the functions

and powers of the National Land Commission.

The object and purpose of the Act is to specifically

to provide for the management and adminstration

of land in accordance with the principles of land

policy, for the operations, powers, responsibilities

and additional functions of the Commission. It

also seeks to provide for the framework for the

identification and appoitnment of the chairperson,

members and the secretary of the Commission.

The function of this Commission will be to

recommend a national land policy to the national

government amongst other duties stipulated in

Article 67(2) of the Constitution. It also seeks

to give effect to the objects and principles of

devolved government in land management and

administration.

In carrying out functions, the Commission shall

work in consultation and co-operation with the

national and county governments.

41


Kenya Law Reports Bench Bulletin

KENYA SCHOOL OF GOVERNMENT ACT (NO.

9 OF 2012)

This Act establishes the Kenya School of

Government as a successor to the Kenya Institute

of Administration and the Kenya Development

Learning Centre. It is to commence on the 1st July,

2012.

The School will be responsible for the training,

consultancy and research services designed to

inform public policy, promote national development

and standards of competence and integrity in the

Public Service.It will also be responsible for the

continous learning for public service excellence

and programmes that promote a culture of

decency, honesty, hard work, transparency and

accountability. It shall be administered by a

Council which shall consist of a non- executove

chairperson, the Permanent Secretaries in the

ministry responsible for public service, finance,

higher education and other key persons stipulated

in section 6.

This Act repeals the Kenya Institute of

Administration, (No. 2 of 1996).

THE PUBLIC SERVICE SUPERANNUATION ACT

(NO. 8 OF 2012)

This Act is to establish the Contributory Public

Service Superannuation Scheme for providing

retirement benefits to persons in the public service.

However, it shall come into operation on such

date as the Minister may appoint by notice in the

Kenya Gazete.

The purpose of the Act is to pay retirement

benefits to members of the Scheme, ensure

that every member of the Scheme receives his

retirement benefits. It will aso assist to improve

the social security of members of the Scheme by

ensuring that the members save in order to cater

for their livelihood during their retirement and to

establish a uniform set of rules, regulations for the

admninistration and payment of retirement benefits

for members of the Scheme.

The Public Superannuation Fund is established

and the monies that shall be paid into it will be

contributions and any other payments required by

this Act and out of it, will be the benefits and any

other payments required under the provisions of

this Act. This Fund wil be administered by a board

of trustees. This Fund wil be valued at intervals of

five years by an actuary appointed by the Board.

The Act further seeks to amend the Pensions Act

(Cap. 189) by stipulating who the provisions of

the Act do not apply to. These persons include:

a) a person who at the commencement of this

Act is employed in the public service on

permanent and pensionable terms and has

not attained the age of forty five years.

b) Secondly, a person who joins the service

of the Government after the commencment

of this Act and

c) lastly a person who in the service of the

Government at the commencment of the

Act elects that the provisions shall apply

to him.

Further amendments of the same effect are made

to the Widows’ and Childrens’ Pensions Act

(Cap.195), National Social Security Fund Act

(Cap. 258).

Information Courtesy of the Commission for the Implementation of the

Constiution - www.cickenya.org

42 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Issue19 | April - June 2012

43


Kenya Law Reports Bench Bulletin

44 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

9th March,

2012.

Issue19 | April - June 2012

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 12.

No. 13.

Legislative Supplements: A digest

of selected legal notices recently

published in the Kenya Gazette

NAME OF

LEGISLATION

The Parliamentary

Service (Constituency

Offices) (Amendment)

Regulations, 2011

L.N. 13/2012.

The National Assembly

Constituencies And

County Assembly

Wards Order, 2012.

L.N. 14/2012

REMARKS

By: Yvonne Kirina, Copy Reader.

Laws of Kenya Department

These Regulations amend the

Parliamentary Service (Constituency)

Offices regulations, 2005 by

inserting certain words to comply

with the Constitution.

Further, regulations 2, 3, 13, 35

have been amended while a new

regulation was inserted immediately

after regulation 11 which provides

that every nominated Member of

Parliament shall have an office

within the precints of Parliament in

Nairobi.

This Order is made under the

Independent Electoral and

Boundaries Commission Act

No.9 of 2011. Pursuant to Article

89(1) of the Constitution, there

shall be two hundred and ninety

constituencies for the purposes of

the election of the members of the

National Assembly provided for in

Article 97(1) (a).

This Order determines the

number, names and delimitation

of boundaries for constituencies

and county assembly wards; and

the specific geographical and

demographical details relating to

such delimitation.

45


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

23rd March,

2012

13th April

2012

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 16.

No. 17. The Copyright

(Amendment)

Regulations, 2012

No. 22

KENYA GAZETTE

SUPPLEMENT

NUMBER

The Limited Liability

Partnership Act, No.

42 of 2011

L.N. 15/2012

L.N. 20/2012

The Medical

Practitioners And

Dentists (Disciplinary

Proceedings)

(Procedure)

(Amendment) Rules,

2012

L.N. 21/2012.

REMARKS

Through this notice, the Attorney-

General appoints the 16th March,

2012, as the date on which this

Act shall come into operation.

These Regulations seek to amend

the Second Schedule of the

Copyright Regulations 2004,

by deleting Form No. CR 1 and

substituting with Form No. CR

1(Revised).The Schedule contains

an Application for Registration of a

Copyright Work Form.

Further the Second Schedule to the

Copyright Regulations, 2004, is

amended in item1 by deleting the

number “600” and substituting it

therefor the number “1,000”. This

has the effect of raising the fees

for application of registration of

copyright work.

The Medical Practitioners And

Dentists (Disciplinary Proceedings)

(Procedure) Rules are amended by

inserting a new rule 4A, Professional

Conduct Committee. This establishes

a Committee charged with various

functions;

a) Conduct inquiries into the

complaints submitted by

the preliminary Inquiry

Committee made under Rule

4(2) and make appropriate

recommendations to the

Board.

b) ensure that the necessary

administrative and evidential

arrangements have been met

so as to facilitate the Board

to effectively undertake an

inquiry under rule 6;.

c) convene sittings in respective

counties to determine

complaints;

46 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

Issue19 | April - June 2012

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 25

KENYA GAZETTE

SUPPLEMENT

NUMBER

The Konza

Technopolis

Development Authority

L.N. 23/2012.

REMARKS

d) promote arbitration between

the parties and refer matters

to such arbitrator as the

parties may in writing agree

Made under section 3 (1) of the

State Corporations Act, Cap. 446,

this order

establishes an Authority to be

known as the Konza Technopolis

Development Authority.

Under this order, the word ‘Area’

means all that parcel of land known

as L.R. 9918/6 located within

Makueni and Machakos Counties

measuring approximately 2023.6

hectares.

The Authority will be manged by a

Board which will be comprised of a

non-executive chairperson appointed

by the President, the Permanent

Secretary to the Treasury, the

Permanent Secretary in the Ministry

for the time being responsible for

matters relating to information and

communications technology among

others.

The functions of the Board will be to;

a) to develop all aspects of

the area; to regulate and

administer approved activities

within the Area, through

implementation of a system

in which the Area enterprises

are self regulatory to the

maximum extent possible;

b)liaise with relevant government

institutions to promote both

locally and internationally

the opportunities for

investment in information and

communications technology

and such other industrial

activities of the Area;

c) liaise with the Machakos and

47


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

20th April,

2012

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 26 The Petroleum

(Amendment) Rules,

2012

These regulations amend regulation

31A of the Petroleum Rules found

in the Energy Act. With effect from

L.N. 24/2012.

the 1st July, 2012, no person shall

import or cause to be imported

refined petroleum products except—

No. 27

KENYA GAZETTE

SUPPLEMENT

NUMBER

The Kenya Water

Towers Agency Order,

2012

L.N. 27/2012.

REMARKS

Makueni County Authorities to

ensure developments within

the buffer zone are in line

with the permitted standards

of the Area.

d) generate additional economic

activities in the area and

to carry out any other

activity necessary for the

promotion and facilitation of

development of information

and communication

technology products and

services within the Area.

(a) liquefied petroleum gas;

(b) bitumen, and

(c) fuel oil for use in Kenya

other than through an Open

Tender System centrally

coordinated by the Ministry

responsible for energy.

All importation of refined petroleum

products other than those stated

above shall except where exempted

by the Minister in writting, be

through the Kipevu Oil Storage

Facility, Shimanzi Oil Terminal,

Miritini LPG Import Terminal and

Kenya Petroleum Refineries Limited,

Changamwe, Mombasa.

Under this Order, ‘Biodiversity

hotspot’ means a unique habitat

with rare and diverse animals,

organisms and endangered

species, which is under threat of

extinction;

The functions of the Agency among

other things is to co-ordinate

and oversee the protection,

rehabilitation, conservation, and

sustainable management of water

towers.

48 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

18th May,

2012

31st May,

2012

Issue19 | April - June 2012

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 41

No. 45

No. 48

KENYA GAZETTE

SUPPLEMENT

NUMBER

The Treaty for the

Establishment of

the East African

Community (Election

of Members of the

Assembly) rules,

2012.

L.N. 31/2012.

The Judiciary Fund

Regulations, 2012

L.N. 35/2012.

The Biosafety

(Labeling)

Regulations,

2012

L.N. 40/2012.

REMARKS

This Legal Notice is under the Treaty

for the Establishment of the East

African Community Act, No 2 of

2000.

The rules, among other things

provide for the election, voting and

appointment of members of the East

African Legislative Assembly.

These Regulations are found

under the Judicial Service Act,1 of

2011.The objectives of the fund

are;

(a) to utilise it for the settlement

of the administrative

expenses of the Judiciary

and such other purposes as

may be necessary for the

discharge of the mandate

of the Judiciary;

(b) for defraying personal

emoluments, program

activities for the Commission,

the Supreme Court, the

Court of Appeal, the High

Court, Subordinate Courts

and other judicial services

under the Act.

Sources of the Fund shall be from

all proceeds resulting from net

proceeds of disposal of excess or

surplus property, or stores, including

miscellaneous receipts; Funds from

Parliament, Consolidated Fund

fees or Levies administered by the

Judiciary; grants, gifts, donations or

bequests.

The Biosafety (Labelling) Regulations

are made under the BioSafety Act

2009.

In these regulations, ‘labeling’ is

defined as any written, printed, or

graphic matter that accompanies

49


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 48

No. 49

KENYA GAZETTE

SUPPLEMENT

NUMBER

The Nurses

(Nominations And

Elections To The

Council)

Regulations, 2012

L.N. 41/2012.

The Energy

(Electricity Licensing)

Regulations, 2012

L.N. 44/2012.

REMARKS

a food or is displayed near the

food, including that for the purpose

of promoting its sale or disposal.

The object and purpose of these

regulations is to ensure that

i ) Consumers are made aware

that food feed or a product

is genetically modified so

that they can make informed

choices and

ii) To facilitate the traceability

of genetically modified

organism products to assist

in the implementation of

appropriate risk management

measures where necessary.

These regulations are made under

sec 4(2) & 26 of the Nurses Act.

The regulations provide for

the procedure for nominations

of members to the Council and

procedure for appointment of

nominated members. Further,

the regulations provide for the

qualifications of various categories

of elected members to be elected

to the council.

These regulations are under the

Energy Act. Regulation 2 provides

an application to any person who

engages or intends to engage in the

generation, transmission, distribution

and supply of electricity energy in

Kenya. Such persons shall make

an application in the Form and

manner set out in the First Schedule

and the application shall contain

information required therein and be

accompanied by the information and

documents specified in the Second

Schedule;

An application for a licence shall be

accompanied by a non-refundable fee

of ten thousand shillings payable to

the Rural Electrification Authority.

50 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

DATE OF

PUBLICATION IN

KENYA GAZETTE

Issue19 | April - June 2012

KENYA GAZETTE

SUPPLEMENT

NUMBER

No. 52

15th June, 2012 No. 63

KENYA GAZETTE

SUPPLEMENT

NUMBER

The National

Construction Authority

Act.(No. 41 of 2011)

L.N. 45/2012.

The Kenya School of

Government Act (No.

9 of 2012)

L.N. 46/2012.

The Kenya

Citizenship and

Immigration

Regulations,

2012

L.N. 64/2012.

REMARKS

The Minister for Public Works

appoints 8th June, 2012 as

the date on which this Act shall

come into operation.

This Act provides for the

establishment, powers and

functions of the National

Construction Authority and for

connected purposes.

The Minister of State for Public

Service appoints the 1st July,

2012, as the date on which this

Act shall come into operation.

Subsection 5(1) provides that the

School shall provide learning and

development programmes to build

capacity for the Public Service.

The Kenya Citizenship and Immigration

Regulations, 2012, seeks to make

provisions for the application of the

Kenya Citizenship and Immigration

Act, No. 12 of 2011.

These Regulations make provisions

on the import of permanent residence

certificate and student pass, procedure

on how to regain citizenship, dual

citizenship, renunciation of Kenyan

Citizenship, application for citizenship

by registration and the revocation of

Kenyan Citizenship.

Further, the regulations make

provisions on the application of

passports and other travel documents

and the information to be contained

thereto.

Lastly, these regulations provide for

the Immigration control, points of

entry departure, reports of entry and

departure and the types of Visas to be

issued by the Directors of Immigration

services and permits of passes to

be issued by an immigration officer

and the procedure for acquiring

them. The foreign naturals register,

accommodation and employment

records.

51


Laws of Kenya Department

The Kenya Gazette is an official publication

of the Government of the Republic of Kenya.

It contains notices of new legislation, notices

required to be published by law or policy

as well as other announcements that are published

for general public information. It is published every

week, usually on Friday, with occasional releases of

special or supplementary editions within the week.

The following is a recap of notable appointments

made under the Kenya Gazette from April to June,

2012.

A). STATE CORPORATIONS AND PARASTATALS

State corporations are by order established by

the President and generally regulated by the State

Corporations Act (Cap. 446).

The President or the Minister under whose docket

the particular body lies make various appointments

to the various state corporations, parastatals and

even commissions.

State Advisory Committees are established under

section 26 of the Act and whose functions are

mandated in section 27 to advise the president on

the establishment, reorganization and dissolution

of the state corporations.

Gazette Notice No. 244 Dated 16th February,

2012

PHYSICAL PLANNERS REGISTRATION BOARD

The Minister for Lands in exercise of the powers

conferred by paragraph 1(b) of the Schedule to

the Physical Planners Registration Act, appointed-

A RECAP OF EXECUTIVE

APPOINTMENTS PUBLISHED IN

THE KENYA GAZETTE FOR THE

PERIOD APRIL- JUNE 2012

JANE M. MANASSEH

to be a member of the Physical Planners Registration

Board for a period of three(3)years effective 26th

January, 2012.

Gazette Notice No. 2444 Dated 21st February 2012

KENYA ORDINANCE FACTORIES CORPORATION

The Minister of State for Defence in exercise of section

6(1) of the State Corporations Act appointed-

MAJ.-GEN. S.N. KARANJA

as a member of the Board of Directors of Kenya

Ordinance Factories Corporation (KOFC) for a period

of three (3) years effective 18th February, 2011

Gazette Notice No. 2446 Dated 22nd February

2012

THE COMMISSION FOR HIGHER EDUCATION

The Minister for Higher Education, Science and

Technology in exercise of the powers conferred by

section 4 (1) (e) of the Universities Act appointed-

KIPLAGAT KOTUT

By: Wanjala Sikuta, Legal proof reader,

Laws of Kenya Department

to be a Commissioner for Commission for Higher

Education, for a period of five (5) years effective 31st

October, 2011.

The appointment of David Court as Commissioner

for Commission for Higher Education was revoked.

52 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Gazette Notice No. 2799 Dated 5th March, 2012

NON-GOVERNMENTAL ORGANIZATIONS CO-

ORDINATION BOARD

The Minister of State for National Heritage and

Culture in exercise of the powers conferred by

section 5(1) of the Non-Governmental Organizations

Co-ordination Act, appointed-

PETER OLOISHORUA OLE NKURAIYIA

to be the Executive Director of Non-Governmental

Organizations Co-ordination Board, for a period

of three (3) years effective 15th February, 2012.

Gazette Notice No. 2801 Dated 2nd February,

2012

HORTICULTURAL CROPS DEVELOPMENT

AUTHORITY BOARD

The Minister for Agriculture in exercise of the

Horticultural Crops Development Authority Order,

1995, appointed-

STEPHEN MBITHI MWIKYA (DR.)

to be a Board member of the Horticultural Crops

Development Authority, for a period of three (3)

years effective 3rd February, 2012.

Gazette Notice No. 2802 Dated 1st March, 2012

COAST DEVELOPMENT AUTHORITY

The Minister for Regional Development Authorities in

exercise of the powers conferred by section 4 (1)(i)

of the Coast Development Authority Act, appointed-

MICHAEL MURE

to be a member of the Coast Development Authority

for a period of three (3) years effective 12th March,

2012.

Gazette Notice No. 2801 Dated 2nd March, 2012

KENYA SUDAR BOARD

The Minister for Agriculture in exercise of the powers

conferred by section 5(1) and (3) of the Sugar Act,

2001 appointed-

Under section 5(1)(b):-

Kiptorus Arap Korir,

Ewing Makhakha Muombo,

Zakaria Okoth Obado,

Nicholas Odongo Oricho,

Billy Wanjala Mukenya,

Issue19 | April - June 2012

Mohammed Mukhwana.

Under section 5 (1) (c)-

Evans Kidero (Dr.),

Paul O. Odola,

Himesh Kumar B. Patel.

to be members of Kenya Sugar Board for a period

of three 3years effective 1st March, 2012.

Gazette Notice No. 2807 Dated 2nd March,

2012

KERIO VALLEY DEVELOPMENT AUTHORITY

The Minister for Regional Development Authorities

appointed-

MOSES LENAIROSHI

to be a member of the Kerio Valley Development

Authority for a period of three (3) years effective

12 March, 2012.

Gazette Notice No. 3218 Dated 12th January,

2012

PHARMACY AND POISONS BOARD

The Minister for Medical Services in exercise

of the powers conferred by section 3(1) of the

Pharmacy and Poisons Act, appointed-

Francis Kimani (Chairman)

Kipkerich Chumo Koskei (Dr.)

Peter Ithondeka(Dr.)

Paul Mwaniki(Dr.)

Joseph Oluoch(Dr.)

Jeniffer Orwa (Dr.)

Abdi Orma Jama,

Evans Mumo Mwangangi(Dr.)

to be members of the Pharmacy and Poisons

Board for a period of three (3) years effective

16th March, 2012.

Gazette Notice No. 3221 Dated 12th March,

2012

KENYA YEAR BOOK BOARD

The Minister for Information and Communications

in exercise of the powers conferred by section

3(2)(j) of the Kenya Year Book Order, 2007,

appointed-

Mundia Muchiri

Philip Ochieng

to be members of the Kenya Year Book Board for

a period of three(3) years effective 23rd January,

2012.

53


Kenya Law Reports Bench Bulletin

Gazette Notice No. 3222 Dated 9th March, 2012

WORKING COMMITTEE ON THE KENYAN CASE

BEFORE

THE INTERNATIONAL CRIMINAL COURT

Attorney-General notified for general information

of the public that the period of appointment of the

working committee to advise the Government on

the case before the International Criminal Court

involving Kenyan Citizens contained in Gazette

Notice No. 996 of 2012 had been extended for

a period of ten days effective 7th March, 2012.

Gazette Notice No. 3588 Dated 5th March, 2012

National Hospital Service Committee

The Minister for Medical Services in exercise of

the powers conferred by section 6(2)(a) of the

Governmental Financial Management(Hospital

Management Services) Regulations, 2009,

appointed-

SAID KAITANY

as Chairman of the National Hospital Service

Committee for a period of three(3) years. The

appointment of Beatrice Sabana was revoked.

Gazette Notice No. 3586 Dated 14th March,

2012

NATIONAL CEREALS AND PRODUCE BOARD

The Minister for Agriculture in exercise of the

powers conferred by section 32(b)(c) and (d) of

the National Cereals and Produce Board Act,

appointed-

Geoffrey Gitamo Obure,

Sunil Shah,

Daniel Damocha Dibo,

Monica Amolo,

Ahmed Ferej (Dr.)

to be members of the Board of the National Cereals

and Produce Board for a period of three (3) years

effective 16th March, 2012. The appointments

of Mohammed Islam Ali, Adrian W. Mukhebi and

Timothy K. Busienei were revoked.

Gazette Notice No. 3588 Dated 7th March, 2012

THE KENYA FORESTRY RESEARCH INSTITUTE

(KEFRI)

The Minister for Forestry in exercise of the powers

conferred by section 19 (1) of Science and

Technology Act, appointed-

BEN E.N. CHIKAMAI (DR.)

to be the Director of the Kenya Forestry Research

Institute for a period of three (3) years effective 1st

May, 2012.

Gazette Notice No. 3973 Dated 21st March,

2012

NATIONAL GENDER AND EQUALITY

COMMISSION

The President and Commander-in-Chief of Kenya

Defence Forces in consultation with the Prime

Minister and in exercise of the powers conferred

on him by section 11 (9) of the National Gender

and Equality Commission Act, 2011, as read with

section 9 of the Act, appointed-

SIMON JONI NDUBAI

to be a member of the National Gender and

Equality Commission effective 23rd November,

2011

Gazette Notice No. 4335 Dated 7th March, 2012

NATIONAL LABOUR BOARD

The Minister for Labour in exercise of the powers

conferred by section 6(1) of Labour Institutions Act,

2007, appointed-

Under part (a)

Ekuru Aukot - (Chairperson)

Under paragraph (b)

Francis Atwoli

Under paragraph (c)

Jacqueline Mugo

Under paragraph (d)

Christopher Malayu

Maureen Onyango

Under paragraph (e)

George N. Muchai

Isaiah Kubai

Under paragraph (f)

Edna Ameyo

George Kamau

to be members of the National Labour Board, for

a period of three(3) years effective 21st March,

2012.

Gazette Notice No. 4339 Dated 2nd April, 2012

COMPETENT AUTHORITY

The Attorney-General in exercise of the powers

conferred by section 48(1) of the Copyright Act,

54 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

2001, appointed-

Benard Sihanya(Prof.) – (Chairman)

Members:

Paul Musili Wambua(Prof.),

Leonard Aloo Obura,

JohnSyekei,

Michi Kirimi,

to be members of the competent Authority for a

period of three (3) years. Gazette Notice No. 6385

of 2009 was revoked.

Gazette Notice No. 4338 Dated 2nd April, 2012

ANTI-CORRUPTION AND ECONOMIC CRIMES

ACT

Chief Justice/ President of the Supreme Court in

exercise of the powers conferred by section 3 (1)

of the Anti-corruption and Economic Crimes Act,

appointed-

STEPHEN N. RIECHI

Chief Magistrate, as special magistrate to preside

over cases involving corruption and economic

crimes in the area of jurisdiction of his current court

station and future stations deployed to from time to

time effective 2nd April, 2012.

Gazette Notice No. 4680 Dated 2nd April, 2012

CONSOLIDATED BANK OF KENYA

The Minister for Finance in exercise of the

powers conferred by section 6 (1)(e) of the State

Corporations Act, appointed-

Methuselah Langat Rono,

George Mugo Murage

to be members of the Board of Consolidated Bank

of Kenya Limited for a period of three (3) years

effective 12th March, 2012.

Gazette Notice No. 4681 Dated 2nd April, 2012

COMPETITION TRIBUNAL

The Minister for Finance in exercise of the powers

conferred by section 71(2)(a) of the Competition

Act, appointed-

SAMUEL NDUNG’U MUKUNYA

to be the Chairman of the Competition Tribunal for a

period of five (5) years effective 12th March, 2012.

Gazette Notice No. 4686 Dated 4th April, 2012

NATIONAL SOCIAL SECURITY FUND BOARD

OF TRUSTEES

The Minister for Labour in exercise of the powers

conferred by section 1 of the First Schedule to the

National Social Security Fund Act, appointed-

Under paragraph 1(d)(i)-

Jacqueline Mugo,

Under paragraph 1(d)(ii)-

Francis Atwoli,

Cornelius Ogutu Nyang’un,

to be members of the National Social Security

Fund Board of Trustees for a period of three (3)

years.

Gazette Notice No. 4682 Dated 22nd March,

2012

The Minister for Trade in exercise of the powers

conferred by section 6(1)(e) of the State

Corporations Act, appointed-

JOSEPH MWANGI WACHIURI

to be a member of the Board of Directors of the

Kenya Wine Agencies Limited for three years (3)

years effective 20th March, 2012

Gazette Notice No. 4684 Dated 26th March,

2012

KENYA MEDICAL RESEARCH INSTITUTE

The Minister for Public Health and Sanitation in

exercise of the powers conferred by section 15(1)

(f) of the Science and Technology Act, appointed-

Ruth Nduati (Prof.)

Peter Omboga (Dr.)

Wilson Kipng’eno Koech (Prof.)

to be members of the Kenya Medical Research

Institute Board of Management for a period of

three (3) years effective 1st March, 2012.

Gazette Notice No. 4688 Dated 11th April,

2012

KENYA AGRICULTURAL RESEARCH INSTITUTE

The Minister for Agriculture in exercise of the

powers conferred by section 19 of the Science

and Technology Act, appointed-

EPHRAIM A. MUKISIRA(DR.)

to be Director, Kenya Agricultural Research

Institute and under section 15(1)(d) to be the

Secretary to the Board of Management of Kenya

Agricultural Research Institute for three (3) years

effective 10th April, 2012.

Issue19 | April - June 2012

55


Kenya Law Reports Bench Bulletin

Gazette Notice No. 4689 Dated 29th March,

2012

NATIONAL COUNCIL FOR LAW REPORTING

The Chief Justice/President of the Supreme Court

and Chairman of the National Council for Law

Reporting notified for general information of the

public that in exercise of the powers conferred on

him by section 4(1)(f) of the National Council for

Law Reporting Act, the Law Society of Kenya had

appointed-

Florence Muoti Mwangangi

Evans Monari

to be members of the Board of the National Council

for Law Reporting representing the Law Society

of Kenya for a period of three (3) years effective

23rd March, 2012.

Gazette Notice No. 5047 Dated 10th April, 2012

KENYA WINES AGENCIES LIMITED (KWAL)

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya, reappointed-

RICHARD MOITALEL KENTA

to be the Chairman of the Kenya Wine Agencies

Limited (KWAL) for three (3) years effective 13th

March, 2012.,

Gazette Notice No. 5048 Dated 10th April, 2012

EXPORT PROMOTION COUNCIL

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya,

appointed-

PETER NJERU NDWIGA

to be the Chairman of the Export Promotion Council

for three (3) years effective 13th March, 2012.

Gazette Notice No. 5051 Dated 10th April, 2012

KENYA ROADS BOARD

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya,

appointed-

JOEL MUTHUNGA WANYOIKE (ENG.)

to be the Chairman of the Kenya Roads Board for

three (3) years effective 13th March, 2012.

Gazette Notice No. 5052 Dated 10th April, 2012

NATIONAL GENDER AND EQUALITY

COMMISSION

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya, in

exercise of the powers conferred on him by

section 11(9) of the National Gender and Equality

Commission Act, 2011 as read with section 9 of

the Act and in consultation with the Prime Minister,

appointed-

WINFRED OSIMBO LICHUMA

to be the Chairperson of the National Gender and

Equality Commission for three (3) years effective

23rd November, 2011.

Gazette Notice No. 5049 Dated 10th April, 2012

TRANSPORT LICENSING BOARD

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya, appointed-

JOSEPH KAMAU THUO (ENG.)

to be the Chairman of the Transport Licensing Board

for one (1) year.

Gazette Notice No. 5053 Dated 13th April, 2012

NATIONAL CAMPAIGN AGAINST DRUG ABUSE

AUTHORITY( NACADAA)

The Minister of State for Provincial Administration

and Internal Security appointed-

WILLIAM N. OKEDI

The National Co-ordinator and Chief Executive

Officer of the Authority for three(3) years effective

6th April, 2012.

Gazette Notice No. 5054 Dated 15th February,

2012

NZOIA SUGAR COMPANY LIMITED

The Minister for Agriculture appointed-

SAUL WASILWA

to be the Managing Director and Secretary to the

Board of Nzoia Sugar Company Limited for three

(3) years effective 20th May, 2012.

56 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Gazette Notice No. 5055 Dated 16th April, 2012

KENYA CITIZENS AND FOREIGN NATIONALS

MANAGEMENT SERVICE BOARD

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya,

appointed-

AMB. KALIMI MUGAMBI MWORIA

to be the Chairperson of the Kenya Citizens and

Foreign Nationals Management Service Board for

six (6) years.

Gazette Notice No. 5058 Dated 10th April, 2012

CONSTITUENCIES DEVELOPMENT FUND

The Minister of State for Planning, National

Development and Vision 2030, appointed-

BONIFACE LOKAALE KOROBE

to be a member of the Board of the Constituencies

Development Fund for three (3) years effective 10th

April, 2012.

Gazette Notice No. 5060 Dated 13th April, 2012

KENYA FERRY SERVICES

The Minister for Transport appointed-

Khamis S. Khamis,

Miriam N. Mahero (Mrs.)

to be members of the Board of Directors of the

Kenya Ferry Services for three (3) years effective

16th April, 2012.

Gazette Notice No. 5061Dated 10th April, 2012

KENYA PORTS AUTHORITY

The Minister for Transport appointed-

Bernard Gaithuma Njuguna,

Eunice Wanja Njeru (Ms.),

Khadija Karim (Mrs.),

to be members of the Board of Directors of the

Kenya Ports Authority for three (3) years effective

17th April, 2012.

Gazette Notice No. 5061Dated 10th April, 2012

KENYA RAILWAYS CORPORATION

The Minister for Transport appointed-

Charity Kanyeche Maingi(Mrs.),

Michael Njau Njoroge,

to be members of the Board of Directors of the

Issue19 | April - June 2012

Kenya Railways Corporation for three (3) years

effective 8th April, 2012.

Gazette Notice No. 5068 Dated 1st April, 2012

NEW NYANZA PROVINCIAL HOSPITAL

The Minister for Medical Services notified for

public information that the name of the New

Nyanza Provincial General Hospital had been

changed to

-

JARAMOGI OGINGA ODINGA TEACHING

AND REFERRAL HOSPITAL

Gazette Notice No. 5064 Dated 10th April,

2012

KENYA CIVIL AVIATION AUTHORITY

The Minister for Transport appointed-

KEVIN KANINA KARIUKI (DR.)

to be the Chairman of the Board of Directors

of the Kenya Civil Authority for three (3) years

effective 2nd April, 2012.

Gazette Notice No. 5415 Dated 18th April,

2012

NATIONAL OIL CORPORATION OF KENYA

The President and Commander-in-Chief of

the Defence Forces of the Republic of Kenya,

appointed-

PETER K. MUNGA

to be the Chairman of the Board of Directors,

National Oil Corporation for three (3) years

effective 24th March, 2012.

Gazette Notice No. 5416 Dated 19th April,

2012

NATIONAL ENVIRONMENT MANAGEMENT

AUTHORITY(NEMA)

The President and Commander-in-Chief of

the Defence Forces of the Republic of Kenya,

appointed-

GEOFFREY M. WAHUNGU(PROF.)

to be Director-General of the National Environment

Management Authority(NEMA) for four (4) years.

Gazette Notice No. 5417 Dated 18th April,

2012

57


Kenya Law Reports Bench Bulletin

MULTI-AGENCY TASK FORCE ON THE 2007/2008

POST-ELECTION VIOLENCE CASES

The Director of Public Prosecutions notified for

the general information of the public that he had

established a Multi-Agency Task Force to consider

the cases arising out of the 2007/2008 Post-

Election Violence

The Task Force comprised of the following;

Dorcas Oduor—(Chairperson)

Joseph King’arui—(Vice-chairperson)

Members

Emily Chweya

Mohamed I. Amin

Lilian Kiamba

James Marienga

Sebastian Mutinda

Patrick Ndeto

Thomas Kathuli

Alexander Muteti

Zachary Omwega

Lilian Obuo

George Murithi

Geoffery Obiri

Peter Kiprop

Benjamin B. Limo

Katherine Kithikii

Mary Wang’ele

Armstrong Rotich

Terry Kahoro

The terms of reference of the Task Force was—

(a) undertake a country-wide review, reevaluation

and re-examination of all the

cases arising out of the 2007/2008

Post-Election Violence and make

appropriate recommendations;

(b) review any reports, publications and

judicial decisions that are relevant to the

Post-

(c) The duration of the Task Force was a

period of six months, with effect from the

6th February, 2012.

(d) The Secretariat of the Task Force was

at the Office of the Director of Public

Prosecutions, NSSF Building; Block A,

19th Floor, P. O. Box 30701-00100,

Nairobi.

Gazette Notice No. 5419 Dated 19th April, 2012

ENERGY REGULATORY COMMISSION

The Minister for Energy, appointed-

Stanley Ngaine,

Nassra Abdirahman,

to be Commissioners of the Energy Regulatory

Commission for three (3) years effective 20th

April, 2012.

Gazette Notice No. 5420 Dated 23rd April, 2012

KENYA ORDINANCE FACTORIES CORPORATION

(KOFC)

The Minister of State for Defence appointed-

MAJOR-GENERAL L.K. TUMBO

as a member of the Board of Directors of the

Kenya Ordinance Factories Corporation(KOFC)

for three (3) years effective 11th April, 2012. The

appointment of Major-General S.N. Karanja was

revoked.

Gazette Notice No. 6258 Dated 9th April, 2012

NATIONAL HOSPITAL INSURANCE FUND BOARD

The President and Commander-in-Chief of the

Defence Forces of the Republic of Kenya,

appointed-

Richard Muga (Prof.)—(Chairman);

Members:

Wilson Sossin,

David Konchella,

Judith Bwonya (Dr.),

Andrew J. Suleh (Dr.),

Elijah Adui Onyango,

Jacqueline Mugo (Mrs.),

Julius Mutua,

Francis Kimani (Dr.),

Samwel Karicho,

Richard L. Kerich,

as members of the National Hospital Insurance

Fund Board, effective 9th May, 2012.

Gazette Notice No. 6260 Dated 30th April, 2012

CHEMELIL SUGAR COMPANY LIMITED

IN EXERCISE of the powers conferred by section 6

(1) (b) of the State Corporations Act, the Minister

for Agriculture appointed—

CHARLES APUDO OWELLE

to be the Managing Director, Chemelil Sugar

Company Limited, for a period of three (3) years,

with effect from the 11th May, 2012.

Gazette Notice No. 6259 Dated 9th May, 2012

NATIONAL HOSPITAL INSURANCE FUND

IN EXERCISE of the powers conferred by section

7 (3) of the State Corporations Act, the President

and Commander-in-Chief of the Kenya Defence

58 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

Forces, appointed—

Mutuma Mugambi (Prof.)—(Chairman),

Titus Ndambuki, Permanent Secretary, Ministry of

State for Public Service,

Esther Koimett (Ms.), Permanent Secretary, Ministry

of Finance (Representative),

Beatrice Kituyi, Permanent Secretary, Ministry of

Labour,

Mary W. Ngari, Permanent Secretary, Ministry of

Medical Services,

Peter Ondieki, Inspector-General, State Corporations,

Office of the Prime Minister,

Stephen K. Kirogo, Secretary, State Corporations

Advisory Committee, Presidency and Cabinet Affairs

Office,

Francis Atwoli, Secretary-General, Central

Organization of Trade Unions (COTU),

Jackline Mugo, Federation of Kenya Employers,

Tom Odege, Secretary-General, Union of Kenya

Civil Servants,

David Okuta, Secretary-General, Kenya National

Union of Teachers,

to be members of the Board of the National Hospital

Insurance Fund, for a period of three (3) months.

Gazette Notice No. 6262 Dated 9th May, 2012

KENYA AIRPORTS AUTHORITY

IN EXERCISE of the powers conferred by section 5 (1)

(f) of the Kenya Airports Authoriity Act, the Minister

for Transport appointed—

GABRIEL COMBA KIVUTI

to be a member of the Board of Directors of the

Kenya Airports Authority, for a period of three (3)

years, with effect from the 3rd May, 2012.

Gazette Notice No. 6938 Dated 22nd May, 2012

INDEPENDENT POLICING OVERSIGHT AUTHORITY

IN EXERCISE of the powers conferred by section 11

(8) of the Independent Policing Oversight Authority

Act, 2011, the President and Commander-in-Chief

of the Kenya Defence Forces, appointed—

MACHARIA NJERU

to be the Chairperson of the Independent Policing

Oversight Board for a period of six years.

Gazette Notice No. 6939 Dated 22nd May, 2012

INDEPENDENT POLICING OVERSIGHT AUTHORITY

IN EXERCISE of the powers conferred by section 11

(8) of the Independent Policing Oversight Authority

Act, 2011, the President and Commander-in-Chief

Issue19 | April - June 2012

of the Kenya Defence Forces, appointed—

Mbugua Thomas Kagwe

Fatuma Ali Saman

Jedidah Pilale Ntoyai

Madoka Grace Barbara

Vincent Kibet Kiptoo

Rose Awuor Bala

Jane Njeri Njoki Onyango

to be Members of the Independent Policing

Oversight Board for a period of (6) years.

Gazette Notice No. 6940 Dated10th May, 2012

KENYA FORESTRY RESEARCH INSTITUTE

IN EXERCISE of the powers conferred by section

15 (1) (f) of the Science and Technology Act, the

Minister for Forestry and Wildlife appointed—

ROBERT MASIBHO WANJALA

to be a member of the Board of Management

of the Kenya Forestry Research Institute, for a

period of three (3) years, with effect from the 28th

March, 2012.

Gazette Notice No. 6941 Dated14th May, 2012

NATIONAL COMMUNITY SERVIC ORDERS

COMMITTEE

IN EXERCISE of the powers conferred by section

7 (1) (j) of the Community Service Orders Act,

the Chief Justice/President of the Supreme Court,

appointed—

Timothy Okello,

Roseline Njogu Mugambi,

to be members of the National Community Service

Orders Committee, with effect from the 1st April,

2012.

Gazette Notice No. 7262 Dated 30th April,

2012

COFFEE RESEARCH FOUNDATION

IN EXERCISE of the powers conferred by section

6 (1) (e) of the

State Corporations Act, the Minister for Agriculture

appointed—

Jenesio Kinyamario (Prof.),

Elijah Biamah (Prof.),

Joseph Mailu Malu,

Henry Kipngeno Tonui,

to be members of the Board of Coffee Research

Foundation for a

period of three (3) years, with effect from 11th

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Kenya Law Reports Bench Bulletin

May, 2012.

Gazette Notice No. 7264 Dated 29th May, 2012

NATIONAL CONSTRUCTION AUTHORITY

IN EXERCISE of the powers conferred by section

7 (1) (g) of the

National Construction Authority Act, 2011, the

Minister for Public Works appointed—

KENNEDY ONDITI

to be the Chairperson of the Board of the National

Construction Authority, for a period of three (3)

years, with effect from the 8th June, 2012.

Gazette Notice No. 8281 Dated 18th June, 2012

THE TRANSITION AUTHORITY

IN EXERCISE of the powers conferred by section

5 (1) (a) and First Schedule to the Transition to

Devolved Government Act, 2012, President and

Commander-in-Chief of Kenya Defence Forces, in

consultation with the Prime Minister, appointed—

KINUTHIA MWANGI WAMWANGI

to be the Chairperson of the Transition Authority.

Gazette Notice No.8282 Dated 18th June, 2012

THE TRANSITION AUTHORITY

IN EXERCISE of the powers conferred by section

5 (1) (a) and First Schedule to the Transition to

Devolved Government Act, 2012, President and

Commander-in-Chief of Kenya Defence Forces, in

consultation with the Prime Minister, appointed—

Angeline Awino Hongo,

Safia Abdi,

Mary Mwongeli Ndeto,

Jacqueline Akhalemesi Mogeni,

Erastus B. I. Nyaga Rweria,

Simeon Pkatey Pkiyach,

Bakari Garise Omara,

Dabar Abdi Maalim,

to be members of the Transition Authority.

Gazette Notice No. 8283 Dated 18th June 2012

PUBLIC INQUIRY

IN EXERCISE of the powers conferred by section

9 of the Civil Aviation (Investigation of Accidents)

Regulations, the Minister for Transport, being

of the opinion that it was in the public interest,

appointed—

Lady Justice Kalpana Rawal, Judge of Appeal—

(Chairperson);

to hold a public inquiry into the causes and the

circumstances surrounding and leading to a fatal

accident involving aircraft registration 5Y–CDT type

AS 350B3, which occurred on the 10th June, 2012,

in Kibiko, Ngong Forest.

She will be assisted by the following assessors—

Maj.-Gen. (Rtd.) Harold Tangai,

Maj. (Rtd.) Charles Munyeki Wachira,

Capt. Peter M. Maranga,

Fred Aggrey Opot.

The assisting counsel shall be—

Charles Mutinda,

Faith Irari,

James Mungai Warui.

The Technical Assistant shall be—

Clatus Macowenga.

The terms of reference of the Public Inquiry are—

1. To probe into the procedures surrounding

the procurement and purchase of

Helicopter Eurocopter 5Y–CDT type AS

350 B3.

2. To probe into the servicing, maintenance,

usage and storage of Helicopter

Eurocopter 5Y–CDT type AS 350 B3 prior

to the accident.

3. To look into the circumstances

surrounding the flight control of Helicopter

Eurocopter 5Y–CDT type AS 350 B3 by

Wilson Control Tower on the morning of

the 10th June, 2012.

4. To probe into and to establish the causes

that led to the fatal accident of Helicopter

Eurocopter 5Y–CDT type AS 350 B3.

5. To look into any other matter relating

or consequential to the accident of

Helicopter Eurocopter 5Y–CDT type

AS 350 B3 and make appropriate

recommendations.

The Secretariat of the inquiry shall be at Transcom

House, 8th Floor, Nairobi.

Gazette Notice No. 8288 Dated 19th June, 2012

IN EXERCISE of the powers conferred by section 6

(1) of the Civil Aviation (Investigations of Accidents)

Regulations, 1979, the Minister for Transport

appointed—

60 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

CLATUS MACOWENGA

to be Chief Inspector of Accidents, for a period

of one and half (11/2) years with effect from 5th

January, 2012.

Gazette Notice No. 8289 Dated 23rd May, 2012

TEA BOARD OF KENYA

IN EXERCISE of the powers conferred by section 4A

of the Tea (Amendment) Act, 2011, the Minister for

Agriculture appointed—

SICILY KANINI KARIUKI

to be the Managing Director and Secretary to the

board of the Tea Board of Kenya, for a period of

three (3) years, with effect from 26th May, 2012.

Gazette Notice No. 7572 of 2012 was amended.

Gazette Notice No. 8290 Dated 15th June, 2012

CO-OPERATIVE TRIBUNAL

IN EXERCISE of the powers conferred by section

77 (1) (a) of the Co-operative Societies Act (Cap.

490), the Minister for Co-operative Development

Issue19 | April - June 2012

and Marketing, appointed—

BEATRICE WAMBUI MATHENGE

as Deputy Chairperson of the Co-operative

Tribunal, with effect from the 15th June, 2012.

Gazette Notice No. 8291 Dated 14th June, 2012

RIFT VALLEY WATER SERVICES BOARD

IN EXERCISE of the powers conferred by section

51 of the Water Act, 2002, the Minister for Water

and Irrigation appointed—

SAMUEL KALENG LOUMO

to be a member of the Board of Directors of Rift

Valley Water Services Board, for a period of

three (3) years, with effect from 14th June, 2012.

61


Laws of Kenya Department

Introduction

The current Kenyan Constitution was enacted

on 27th August 2010, replacing the

older one that had been in place since

independence in 1963. Article 2 of the

Constitution provides that the Constitution is the

supreme law of the Republic of Kenya and binds

all persons and all state organs at both levels of

government.

Article 2(4) further states that any law including

customary law that is inconsistent with this

constitution is void to the extent of the inconsistency,

and any act or omission in contravention of this

Constitution is invalid.

Clearly the principle of constitutional supremacy is

well illustrated but the challenge posed is that laws

that were enacted before it are still in existence;

as a result courts have had to disregard certain

provisions of statute law that are inconsistent with

the constitution.

Below are some of these instances;

A. INCONSISTENCY WITH STATUTE LAW

THE EMPLOYMENT ACT

In Samuel G. Momanyi vs The A.G & Anor

High Court, Constitutional and Human Rights

Division

Petition No. 341 of 2011

THE EFFECT OF THE NEW

CONSTITUTION ON THE LAWS

OF KENYA

In this case the court declared Section 45(3) of the

Employment Act inconsistent with the provisions of the

constitution of Kenya particularly Article 28, 41(1),

47, 48 and 50(1). Section 45(3) provides that an

employee who has been continuously employed by

his employer for a period of not less than thirteen

months immediately before the date of termination

shall have the right to complain that he has been

unlawfully terminated.

Justice Lenaola said that section 45(3) purports to

deny the petitioner the right to human dignity, right

to fair labor, consumer rights, right to access justice

and the right to have a dispute resolvable by the

application of the law decided in a fair and public

hearing, which are the rights enshrined in Article 28,

41(1), 47, 48 and 50(1) of the Constitution.

CHILDREN’S ACT.

By: Monicah Mwangi & Brenda Orau,

Legal interns, Laws of Kenya Department

In the case of M.S vs I.A.K suing through Mother and

next friend C.A.O

Constitutional Application No. 526 of 2008

High Court of Kenya at Nairobi

In this case the court stated that Article 53(2) of the

Constitution which states that child best interest is of

paramount importance in every matter concerning

the child, takes precedence over section 24(2) of the

children’s Act which only applies to men who are not

biological fathers and who have acquired parental

responsibility.

Justice Mumbi Ngugi affirmed that any provision

of the Children’s Act that is in conflict with the

Constitution must give way to the Constitution.

62 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

ANTI-COUNTERFEIT ACT

P.A.O & 2 others v A.G

High Court of Kenya

High Court declared that the enforcement of section

2, 32 and 34 of the Anti-Counterfeit Act violated

the right to life as protected by Article 26(1), the

right to human dignity guaranteed under Article 28

and the right to the highest attainable standard of

health provided by Article 43(1) of the Constitution.

Section 2 of the Anti-Counterfeit Act defines actions

that when taken without the authority of the owner

of the intellectual property subsisting in Kenya or

elsewhere in respect of protected goods will amount

to counterfeiting. Section 32 also criminalizes any

dealings with counterfeit goods.

The judge was of the view that enforcement of the

Anti-Counterfeit Act in so far as it affects access

to affordable and essential drugs and medication

particularly generic drugs is a breach of the

petitioner’s right to health guaranteed under the

Constitution.

He also stated that it is incumbent on the state

to reconsider the provisions of section 2 of

the Act alongside its constitutional obligation

to ensure that its citizens have access to the

highest attainable standard of health and make

appropriate amendments to ensure that the rights

of the petitioner and other dependants on generic

medicine are not put in jeopardy.

ADVOCATES (PRACTICE) RULES

Okenyo Omwansa George and anor v the A.G

& 2 others

High Court at Nairobi-Constitutional and Human

Rights Division

The High Court was of the view that if rule 2 of the

Advocates (practice) rules which bars advocates

from advertising constitutes a complete ban then

it is unconstitutional and inconsistent with Articles

46(1) and Article 48 of the constitution.

Article 46(1) provides for consumer rights and

Article 48 provides for access to justice for all

persons.

PENAL CODE

Republic v John Kimita Mwaniki (2011)

High Court at Nakuru

In this case inconsistency between section 204

Issue19 | April - June 2012

of the penal code which states that any person

convicted of murder shall be sentenced to death

and section 26 of the Constitution which says that

every person has the right to life and a person

shall not be deprived of life intentionally, except to

the extent authorized by this constitution or other

written law was pointed out.

CRIMINAL PROCUDURE CODE

Aboud Rogo Mohammed & Another v Republic

(2011)

High Court at Nairobi

Inconsistency between Section 123 of the Criminal

Procedure Code and Section 49(1) of the new

constitution was pointed out in this case.

Section 123 of the Criminal Procedure Code

excludes from bond and bail persons charged

with offences of murder, treason, robbery with

violence, attempted robbery with violence or any

drug related offence. While Section 49(1) of the

constitution states that any arrested person has the

right to be released on bond & bail, on reasonable

conditions pending a charge or trial, unless there

are compelling reasons not to be released.

H.I.V AND AIDS PREVENTION CONTROL ACT

Aids Law Project v A.G & Another (2011)

In the High Court of Kenya

Petition No 97 of 2010

The applicants in this case stated that there is

inconsistency between Section 24(1) of the H.I.V.

and AIDS Prevention Control Act and Article 31

of the Constitution.

Section 24 of the HIV and AIDS Prevention

Control Act provides that a person who is aware

of being infected with the virus shall take all

reasonable measures and precautions to prevent

the transmission of the virus to others by disclosing

their HIV status. On the other hand Article 31 of

the Constitution provides that every person has a

right to privacy, and this includes the right not to

have information relating to their private affairs

unnecessarily required or revealed.

B. INCONSISTENCY WITH CUSTOMARY LAW

Lucy Kemboi v Cleti Kurgat & 5 Others (2012)

In the High Court of Kenya

In this case the Court stated that a widow has a

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Kenya Law Reports Bench Bulletin

right just like that of her in-laws, to bury the remains

of her husband, this right is guaranteed by Article

27(3) and 27(4) of the Constitution which gives both

women and men the right of equal opportunities in

cultural and social spheres and that there should

be no discrimination directly or indirectly on any

ground.

The Court acknowledged that though Keiyo

Customary Law was applicable which allows the

clan and the brothers to bury the deceased, the

applicant had her right derived from the written

law which supersedes customary law.

Samson Kiogora Rukunga vs Zipporah Gaiti

Rukunga High Court at Meru

In this case the judge held that married daughters

were entitled to inherit their parent’s estate. This

matter was settled by Article 27 and 60 of the

Constitution which prohibits discrimination.

Article 60(f) eliminates gender discrimination

in law, customs & practices related to land and

property in land. The Court further laid emphasis

on Sections (3) (4) and (5) of Article 27 of the

new Constitution which forbids marital status as

a ground for discrimination.

CONCLUSION

The new Constitution is a great progress, but it’s

just a starting point, parliament needs to urgently

enact Laws that will help in its implementation

and enforcement.

It’s important that the inconsistencies in existing

legislation and the Constitution be cured to allow

for equality before the law; this will also facilitate

protection of the fundamental rights in the Bill of

Rights and access to justice.

“Africa is a continent surging with impatient nationalist movements

striving to win freedom and independence. Apart from this

struggle, there is the struggle against disease, poverty and

ignorance. Unless these three evils are defeated, political freedom

would become hollow and meaningless…the motive behind

various nationalist movements should always be geared towards

the security of all our people, higher standards of living and social

advancement.”

Tom Mboya on July 1st 1958 at Makerere University

64 Issue19 | April - June 2012


Feature

Introduction

Issue19 | April - June 2012

LAWS OF KENYA AND

EDITORIAL DEPARTMENTS

ATTENDS TRAINING ON

ELECTRONIC PUBLISHING

FOR PRINT

By: Evelyn Anyokorit Emaase,

Copyeditor, Laws of Kenya Department

& Catherine Magiri Moni,

Publishing Assistant, Editorial Department

Changing trends in technology are greatly impacting the growth of the publishing Industry. Publishers

need to be in line with current technology for efficient services. The National Council for Law

Reporting (NCLR) in its effort to better its products and services, organized for a two week training

on Electronic Publishing for Print. The training was tailored to suit the current publishing needs

of the two departments. It was facilitated by the Academy of Graphic Technologies (AGT), between 7th

and 18th May, 2012 both at NCLR’s and AGT’s premises. The course was intended to equip the officers

with vast and emerging technology in the field of publishing.

Participants

pause for a

photograph

after training

from left; AGT

Trainer Daniel

Katambo, Eva

Murage, Naomi

Mutunga,

Cicilian

Mburunga, Laila

Mbevi, Geoffrey

Andare,

Catherine Moni,

Dorcas Kaveke,

Lisper Njeru,

Julie Mbijiwe,

Yvonne Kirina,

Evelyn Emaase,

Wambui Kamau

and Phoebe

Iyaya

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Kenya Law Reports Bench Bulletin

The areas addressed include:

1. Introduction to electronic publishing for print

Electronic publishing for print is using the computer

to combine text and graphics into documents for print

or electronic distribution. To achieve this, designers

need a dedicated graphics software package. For

most print publishing an illustration program, and

an image editor are the types of programs needed.

Some programs may incorporate a few features of

the other type, but designers will require each one.

2. Standard softwares used for publishing

Adobe suite softwares are the most ideal for

publishing, these include: Adobe indesign, photoshop

and Illustrator. Adobe indesign can be used to create

works such as posters, flyers, brochures, magazines,

newspapers, books and so forth. It is suitable for any

print design projects because it is built for pre-press

and color management.

Adobe Photoshop as the name suggests is an

excellent software for editing photos and images.

If a designer is preparing a digital or scanned

photograph for use in a project, whether it be a

website, brochure, book design or packaging, the

first step is often edit it in Photoshop. Using a variety

of tools within the software, a designer is able to

achieve the desired results by cropping, resizing

photos, adjust & correct colors, Touch-up photos,

such as erasing a blemish or removing a tear or a

fold. Saving photos in a variety of formats for use in

print projects is another key element among others.

3. Exploring the advantages of using Adobe

indesign as a publishing software:- Capabilities

and compatibilities

The participants were taken through Adobe Indesign

application practically

exploring its capabilities

and compatibilities,

among them:

The ability to support

abundance of paper

layout and the ability

to create custom

page layout without

restrictions;

Ability to place and

align objects accurately

using text and image

frame tools;

Master pages that save

one from creating the same background multiple

times for a multipage documents –masters allow

creation of a document that can be applied to

every page document;

Linked text boxes that allow text to flow freely

within a network of text boxes. This makes editing

text content much easier since the text boxes

automatically adjust the contained text.

Graphic tools that allows one to edit images

beyond image manipulation gives a set of built

in image effects, filters and functions like adding

shadows, feathering, transparency and so forth.

Unlimited export options that works seamlessly

with Adobe Acrobat to Portable Document Formats

(PDF) as PDF is the most accessible format to view

in any operating system solving cross platform

problems;

Adobe InDesign CS5 software that includes new

and enhanced EPUB file export features improve

production and provide greater control for creating

compelling eBooks that can be read on a wide

range of eBook reading devices, including the

Apple iPad, and various mobile phones;

Adobe InDesign allows the designer to embed

fonts and images hence becoming a property of

the file thus retaining the desired quality when

printed. If files are not embedded they loose some

components such as fonts, when this happens

documents default to the alternative font making it

loose its quality. It is important to note that some

computers at times cannot recognize another font

to default and the characters will drift loosing out

their original shape.

Paste board, custom workspace, document presets,

page numbering, eye dropper, swatch pallet

among others are the characteristics of Adobe

Members keenly follow on the capabilities and

compatibilities of Adobe indesign

as a publishing software

66 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

in design that make it stand out as suitable for all

types of publishing for print.

4. File Preflight and packaging

Preflight is quality check performed on the

document before printing to a ascertain problems

that may have arisen during document creation.

Such problems may include: missing links or fonts,

low-resolution images, overset text and a number

of other conditions.

It is possible to configure preflight settings to define

which conditions are detected. These preflight

settings are stored in preflight profiles for easy

reuse. Preflight profiles can be created or imported

from your printer or another source.

To have advantage of live preflight, specific

preflight profile is created in the early stages of

creating a document. If Preflight is turned on, a red

circle icon appears in the status bar when InDesign

detects any problems. One can open the Preflight

panel and view the Information section to get basic

guidance for fixing the problems.

Packaging

This entails gathering the files used, including

Issue19 | April - June 2012

fonts and linked graphics, in preparation for the

document to be sent for printing. When packaging

a file, a folder that contains the In Design document

is created (or documents in a book file, any

necessary fonts, linked graphics, text files, and a

A screen shot of a pop-up window with a

summary of what is being packaged.

NCLR’s Laws of Kenya and Editorial team

with the AGT Trainers after touring

the AGT printing press.

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Kenya Law Reports Bench Bulletin

customized report). This report, which is saved as

a text file, includes the information in the printing

instructions dialog box.

5. Imposition

Imposition is one of the fundamental steps in the

prepress printing process. It consists the arrangement

of the product’s pages as they will appear on the

printed sheet, in order to reduce turn around time,

simplify binding processes and reduce paper waste.

Some of the factors to consider during imposition

includes:

Format of the product: The size of the finished page

determines how many pages can be printed on a

single sheet.

Number of pages of the printed product:

The designer must determine how many sheets are

to be printed to create a finished book.

Binding method: The designer must understand how

the sheets are placed to form the signatures that

compose the finished book.

Imposition proof

Imposition proof is the last check that is performed

before beginning the print run. This check is

performed to verify, through, that the imposition was

successful. Typical checks are that the pages are

on the correct spot and the crossover bleeds work.

EPUB stands for Electronic Publication and it’s

the accepted standard format for digital book

publishing. ebook that can be read on a digital

device, need to be in EPUB format. EPUB format,

is the preferred format for reading on many ebook

readers. To read a file that is stored in electronic

format one needs a reader. A reader is a software

program that permits you to view the words and

images contained in the document.

The Epub format that has overtaken the most

popular readers like PDF is fast gaining popularity

because it has features superior to what other

readers offer and which is why publishers are

moving from PDF to ePUB.

One attractive feature of ePUB is that it is based on

what is referred to as an open format. What this

means is that an ePUB document is compatible with

a wide range of devices such that one can view

NCLR’s Laws of Kenya and Editorial team

with the AGT Trainers in a session learning about

paper size and weight.

documents using various portable device such as

iPhone, ipad.

ePUB documents can be compressed to a greater

extent thus implying that the resulting files will be

much smaller compared to other file formats. The

benefit of this is that one can store more documents

in portable device's memory.

It is important for publishers to embrace technology

and make their products and services universally

accessible.

68 Issue19 | April - June 2012


Feature

According to the United Nations Standard

Rules on the equalization of Opportunities

for Persons with disabilities: 1 the term

“Disability” summarizes a great number

of different functional limitations occurring in any

population, in any country of the world. People

may be disabled by physical, intellectual or sensory

impairment, medical conditions or mental illness.

Such impairments, conditions or illnesses may be

permanent or transitory in nature)

The United Nations adopted a convention on the

rights and privileges of persons with disability. The

convention adopted in 2006 and which came

into force in 2008, 2 states and recognizes that

“disability” is an evolving concept which is subject

to change from time to time. For instance due to

the improvement in medical science and other

new discotveries of how the human body works. It

is possible for doctors to determine that a person

who does not seem to have any physical disability

to be laboring from some of mental or sensory

impairment that can now be ascertained through

he use of science.

The Convention follows the civil law tradition, with

a preamble, in which the principle that "all human

rights are universal, indivisible, interdependent and

interrelated " of Vienna Declaration and Programme

of Action is cited, followed by 50 articles. Unlike

many UN covenants and conventions, it is not

formally divided into parts.

Article 1 defines the purpose of the Convention

thus:

to promote, protect and ensure the full and equal

enjoyment of all human rights and fundamental

Issue19 | April - June 2012

LEGAL DEFINITION OF DISABILITY

By: Stanley Mutuma, Law Student

freedoms by all persons with disabilities, and to

promote respect for their inherent dignity

Articles 2 and 3 provide definitions and general

principles including communication, reasonable

accommodation and universal design.

Articles 4 - 32 define the rights of persons with

disabilities and the obligations of states parties

towards them. Many of these mirror rights affirmed

in other UN conventions such as the International

Covenant on Civil and Political Rights, International

Covenant on Economic, Social and Cultural Rights

or the Convention Against Torture, but with specific

obligations ensuring that they can be fully realized

by persons with disabilities.

Rights specific to this convention include the rights to

accessibility including the information technology, the

rights to live independently and be included in the

community (Article 19), to personal mobility (article

20), habilitation and rehabilitation (Article 26), and

to participation in political and public life, and cultural

life, recreation and sport

The recognition before the law for the countries having

ratified this treaty is found under article 12. In effect

it means that this is a legal document that can be

used to give effect to the rights and privileges found

within it.

The Americans with disability act, 3 provides the

definition as being: Statutory Definition -- With respect

to an individual, the term "disability" means

(A) a physical or mental impairment that

substantially limits one or more of the major

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Kenya Law Reports Bench Bulletin

life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment.

42 U.S.C. § 12102(2); covers persons who

actually have physical or mental impairments that

substantially limit one or more major life activities.

The focus under the first part is on the individual,

to determine if (s)he has a substantially limiting

impairment. To fall under the first part of the

definition, a person must establish three elements:

(1) that (s)he has a physical or mental impairment

(2) that substantially limits

(3) one or more major life activities.

The second and third parts of the definition cover

persons who may not have an impairment that

substantially limits a major life activity but who

have a history of, or have been misclassified as

having, such a substantially limiting impairment, or

who are perceived as having such a substantially

limiting impairment. The focus under the second

and third parts is on the reactions of other

persons to a history of an impairment or to a

perceived impairment. A history or perception of

an impairment that substantially limits a major life

activity is a "disability." (b) Regulatory Definition

-- A physical or mental impairment means

(1) [a] physiological disorder, or condition,

cosmetic disfigurement.

The main aim of the ADA, was to create a civil

law frame work, with the objective of having the

protective framework and aiming to eliminate all

forms of discrimination to the class of persons

listed there in. It also intended to have persons

with disability represented in the main in new

advances in medical , science and affording them

opportunities in all spheres of life including space

frontiers. It was intended to be flexible , with new

laws being strengthened and not weakened by

future case laws. It was signed by president G.W.

Bush’s and it came into operation in2008.

The definition of the term, “disability” under the

Kenyan jurisdiction is found under section 2, of

the persons with disability act, as amended in

2007. It states:

s, ““disability” means a physical, sensory,

mental or other impairment,including any visual,

hearing, learning or physical incapability, whether

arising from natural or artificial causes, which

is irreversible and long term and which impacts

adversely on a person’s capacity to participate

in social, economic, cultural or political activities.

The act is further given priority as enshrined by

the bill of rights in the constitution of Kenya. Under

article 54, which provides specific protection of

fundamental rights to the class of persons with

disability. The article provides inter alia:

The right to be addressed and treated in a dignified

manner.

The right to education and provision of education

services in a manner that caters for the needs of

the individual in question.

The right to reasonable access to all public places

and places of leisure and recreation. This might

include sporting facilities, recreational parks,

restaurants etc

The right to use a language that the persons

understands and uses e.g. Braille and sign

language.

The right to use accessible technology and devices

that will assist the individual overcome his disability.

The right to progressive employment up to 5% by

the government.

These among others are provided for and the legal

backing exists under the stated law and other acts,

that help improve the enforcement of the rights of

PWD’S.

The disclaimer to this is that the above stated

definitions are legal in nature, and may differ to

some degree, to the social or academic definitions

of the term “disability” As noted by the UNPWD

convention. it is also evolving and it may be

altered slightly from time to time with the changes

in the fields of science and medicine. The Kenyan

act also amended the legal meaning of the term

through the “2007 amendment, of the principal

document of 2003”. Therefore it suffices to say

that this concept is a dynamic one and we should

be keen enough to determine its application when

interpreting it.

References

1.United Nations Standard Rules On

Equalisation of Opportunities -1993

2.United Nations Convention on the Persons

with Disability [2008]

3.Americans with Disability Act -1990

4. The Persons With Disability Act Of Kenya

2003

5. The Constitution of Kenya - 2010

70 Issue19 | April - June 2012


Feature

A COMPARISON BETWEEN THE CONSTITUTION OF KENYA

AND THE EAST AFRICAN TREATY

The Constitution of Kenya as promulgated on

August 27, 2010, has envisaged certain

principles that the Kenyan people aspire for

themselves Following a rigorous process for

the clamor of a new constitution by the people.

The need for better governance and improved

standards of life led the citizens to agitate for

the changing of the constitution. The issue of bad

governance was also a great factor that propelled

the citizens to demand for a new supreme law

that would have checks and balances and would

determine how their issues would be determined.

The new constitution therefore has these provisions

set out in its various articles, which are also

envisaged to be in line and in conformity with

other laws that ascribe to similar provisions

relating to governance and leadership of citizens

of other jurisdictions. For instance when doing a

comparison between the constitution of Kenya and

the East African treaty, I will consider the areas of

law dealing in leadership and governance and how

they compare and also contrast the areas where

they differ or their is divergence.

Article 10 of the Constitution 1 deals with matters

of leadership and governance. Any public officer,

or constitution or any body that seeks to enforce

public authority must ensure that they adhere to

the following principles of good leadership as

stipulated by the article, that the officers shall be

patriotic and shall uphold the values of dignity,

equity, social responsibility, inclusiveness, including

the rights of the marginalized etc. Under subsection

[c] good governance, integrity, transparency and

accountability are to be the guiding principles in

carrying out one's duties; and [d] one must take into

account the issues of sustainable development. The

provision compares well with article 3, sub section

[b] of the treaty, 2 which states that for a country to

be a member of the East African community, it need

to adhere to the well established and accepted

1 Constitution of Kenya 2010

2 East African treaty, ratified in November

1999

3 East African community.

Issue19 | April - June 2012

By: Stanley Mutuma, Law Student

principles of good governance, accountability,

democracy, the rule of law, and adherence of human

rights and dignity.

Further on under article 3 [e] of the treaty in regards

to the matter of economic compatibility within the East

African states and matters of sustainable development

as being paramount, a similar position espoused by

our constitution. The bill of rights is well framed and

protected under the constitution. Chapter four, states

and enumerates the fundamental rights and freedoms

to be enjoyed by the citizens. Article 19, states

that the rights and freedoms are not granted by the

government, but rather they are inherent.

The rights and freedoms contained in this chapter

are not conclusive and thus other rights cannot be

excluded, in so far as they are not inconsistent with the

constitution. It means that the state has an obligation

to enforce the fundamental rights and freedoms, a

party who feels that his rights have been aggrieved

can seek redress in the high court. A division has been

created by the high court known as the “constitution

and human rights division” all matters lodged in this

court are pertaining to such matters as to breech of

the constitution and breach of human rights as well

elaborated by the constitution.

There are some rights that are not qualified by any

law and no limitation may apply to this rights. They

are the rights categorized under article 25, of the

constitution. Included the right to prevention from

inhuman treatment, and deprivation of dignity, the

right to prevention of slavery, the right to a fair

hearing and the right to apply for the order of habeas

corpus. Equality and non-discrimination of any kind in

reference to gender, religion, work, disability or any

other form of prejudice is prohibited by article 27.

A similar safeguard to the fundamental human rights

and freedoms are guaranteed under the treaty. Under

article 3 [c] of the treaty it mentions that any foreign

country seeking membership of the community 3 must

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Kenya Law Reports Bench Bulletin

respect and uphold fundamental human rights that

are ascribed to by other democratic countries.

Further on the rights are strengthened by article

6, of the treaty “(d) good governance including

adherence to the principles of democracy, the rule

of law, accountability, transparency, social justice,

equal opportunities, gender equality, as well as

the recognition, promotion and protection of

human and peoples rights in accordance with the

provisions of the African Charter on Human and

Peoples Rights”. In effect it means that if a person's

rights are violated and the party is a member of

the East African community , and the party cannot

or is unable to have his right enforced for instance

in his member country, e.g. in Kenya then he

can appeal such a matter as a breach of human

rights in the East African court in accordance to

this section. Article 27 gives the East African court

the mandate to interpret and enforce the articles

of this treaty, powers which include

1. The Court shall initially have jurisdiction over

the interpretation and application of this Treaty.

2. The Court shall have such other original,

appellate, human rights and other jurisdiction

as will be determined by the Council at a

suitable subsequent date.

To this end, the Partner States shall conclude

a protocol to operationalize the extended

jurisdiction. Under the constitution of Kenya, article

51, it provides for the protection of a persons

human rights if one is under detention, and for the

right to petition for the order of habeas corpus if

one is detained.

To further categorize these rights and provide

for their interpretation, the Constitution provides

for the protection of classes of people deemed

to be vulnerable in the society. Under article 53,

it provides for the protection of children, which

include inter alia right to a name and nationality

right from birth, right to a basic education, right

to good nutrition, right not to be detained unless

its the last resort etc.

Another category of special class of persons

protected by the Constitution of Kenya in particular

is the rights of persons with disability, addressed

under article 54, which include inter alia right

to be treated and addressed in a manner not

demeaning, right to access education in schools

for persons with disability or integrated schools

to the level of their disability, right to access

reasonable transport and access to other public

facilities, right to use the language accessible and

available to them i.e. Braille, sign language etc,

right to use electronic devices and specialized

materials in order to overcome the challenges in

their environment etc.

To crown the above-mentioned rights and

freedoms in the Constitution, “Part V” article 59,

of the constitution provides for the creation of

the human rights and equality commission. The

body is tasked with the mandate of promotion

and protection of fundamental human rights,

listed in the constitution and others which are

not inconsistent with the constitution or any other

written law. It further provides that any person

who deems that his rights have been violated

under the constitution has the right to lodge with

the commission for further investigation and

action. The commission also is mandated with

the authority to investigate and interrogate the

conduct of any public body or organ which seeks

to infringe unfairly on the rights of any citizen or

class of persons. Article 30, of the treaty, gives

the citizens or legal persons of any of the member

states the right to approach it, in order to seek

redress, in the instance the matters arising could

not or are unable to be adequately addressed in

their respective countries.

Under article 34, of the treaty, decisions of the

East African court shall have precedent over

national courts in such matters, this provision

seems to contradict with the one of our constitution

which states that the constitution of Kenya, shall

be the supreme law and any other law that is

inconsistent with this constituent shall be void to

the extent of the inconstancy. In effect it means if

a certain judgment delivered by the East African

court which seems to have a differing opinion

from that given by a Kenya court then it shall

take precedence over the Kenya court. The article

34, may seem to have a watering down effect on

national laws of the member states.

The rules, regulations and proceedings governing

the East African court are contained under article

40 to 44, of the treaty. They provide for the

procedure to be followed in a court proceeding

and article 43, provides for the immunity of

judges, in decisions made in the carrying out

of their duties. Comparable to the constitution,

which outlines the formation of the judicial/court

structure in Kenya and provides for the manner

and nature of the formation and protection of the

institution. Under article 161, the structure of the

judiciary is set out as being comprised of the chief

justice, deputy chief justice, the chief registrar

and other judges, magistrates and other officials

serving in the judicial system. It also provides for

the formation of the hierarchy of the court system

in Kenya. Beginning with the superior courts, i.e.

the Supreme Court, the court of appeal and the

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Kenya Law Reports Bench Bulletin

high court.

The Supreme Court is established under article

163 of the Constitution. It has the powers to hear

presidential election petitions and shall form binding

precedents to all other courts below it. This provision

begs the question as to whether if a decision is

passed in the East African court regarding a matter

whose decision is contrary to one of the Supreme

Court which court’s decision shall take precedent.

Appointment of the Chief Justice is addressed under

article 166, of the Constitution whereby it provides

for the appointment of the mentioned officials by the

president after recommendation from the Judicial

Service Commission.

The matter of taxation is evidently of paramount

to any government. Governments through the

collection of taxes gain revenue from which they use

to run the various operations needed to establish

an effective running state/country. Therefore the

issue of taxation is shed under “part 3” of the

constitution, under article 209 where it states that

[1] only the national government has the right to

impose taxation with regard to the following areas

(a) income tax;

(b) value-added tax;

(c) customs duties and other duties on import

and export goods; and

(d) excise tax.

(2) An Act of Parliament may authorize the national

government to impose any other tax or duty, except

a tax specified in clause (3) (a) or (b).

County governments which came into existence

with the formation of this Constitution are mandated

to impose land rates, and other taxes incidental to

the performance of their duties. In doing so county

governments and county councils shall not levy

taxes in a manner that is prejudicial to the national

development agenda. Article 210, has the effect

that no imposition or waiver of taxation may be

permitted without legislation. Where waiver is to

be given, then this must be under a written reasons

and the record to be given to the auditor general.

The revenue collected shall be distributed as set

out by the commission of revenue allocation as set

out in article 215.

With regard to taxation and the East African

community article 75, of the treaty, envisages the

progressive formation of a single customs union.

The objective being to accomplish the principles

set out under article 5, of the treaty. Issues that will

arise on the implementation of this article, include:

how will the constitution guarantee the raising of

revenue as the treaty envisages the abolishment of

internal barriers to trade, including taxation save for

the common customs tariffs intended to be common

for the member states of the community. The removal

Issue19 | April - June 2012

of the internal barriers to trade and formation of a

common market under article 76, of the treaty, is

expected to have an impact on the internal markets

of the member states, which the member states seek

to mitigate by drawing up a protocol to address the

changes anticipated.

The treaty envisages the scope of corporation under

article 82, to incorporate the use of compatible

common currency as they proceed towards

harmonization of a common market and leading

to the objective of having less reliance on foreign

exchange.

Other areas of comparison include the areas

of environment i.e. article 112 of the treaty

comparable to article 60 of the constitution. The

treaty seeks to establish a joint environmental

management board that will help curb or reverse

the effects of harmful environmental effects, ensure

programs that sustain the bio diversity, institute

programs in institutions that teach the importance

of the environment, conservation of bio diversity,

equitable distribution and use of genetic material

etc. The principles enumerated by the treaty under

this chapter are in harmony with those listed and

outlined in the constitution with the objective

of having meaningful development without

compromising the environment. To this end both

documents have set out mechanisms that deal with

obtaining of environmental impact assessment

studies before embarking on any major physical

developments. The constitution under article42,

guarantees the right to all citizens to have a clean

and healthy environment, for the present generation

and for the future generations, giving special

considerations to the provisions set out in article

69, and 70 in regards the environment and use,

preservation and conservation of natural resources

in an equitable manner. The article provides redress

for a party who deems that his rights to a clean

and healthy environment have been breached. The

article is special in the manner it is couched, i.e. one

need not prove that he has suffered loss from the

breach, but can demonstrate that the infringement

of the environment is likely to be in contradiction

with the rights created under the various articles

with regards to the environment created in the

constitution. Comparable to article 111, of the

treaty which guarantees the following obligations

in respect to the protection of the environment and

management of it:

(a) agree to take concerted measures to foster

co- operation in the joint and efficient

management and sustainable utilization of

natural resources within the Community;

(b) undertake, through environmental

management strategy, to co-operate and

co-ordinate their policies and actions for the

protection and conservation of the natural

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Kenya Law Reports Bench Bulletin

resources and environment against all

forms of degradation and pollution arising

from developmental activities;

(c) undertake to co-operate and adopt common

policies for control of trans-boundary

movement of toxic and hazardous waste

including nuclear materials and any other

undesirable materials;

(d) shall provide prior and timely notification

and relevant information to each other

on natural and human activities that may

or are likely to have significant transboundary

environmental impacts and

shall consult with each other at an early

stage; and

(e) shall develop and promote capacity

building programmes for sustainable

management of natural resources.

Under article 113, of the treaty it seeks to have the

member states harmonize their legal framework in

order to be compatible with the principles, further

it envisages that the member states will accede to

international protocols and treaties that have the

objective of further protecting and preserving the

environment.

Other articles in the treaty provide for the creation

of laws in the member countries that shall enhance

the harmonization of various sectoral fields

touching on the socioeconomic of the member

states, inter alia; education, health, arts, sports

etc. These sectoral areas for corporation are not

limited and under article 131, of the treaty it

provides for the corporation of other areas that

may arise or develop as the community seeks f

to be harmonized I in manner that will eventually

lead to the formation of an east African community

with political obligations.

Some of the provisions of the treaty are transitory

in nature and article 142, has set it out to create

tripartite commissions tasked with the

(a) Agreement for the Establishment of The

Permanent Tripartite Commission for Cooperation

Between the Republic of Kenya,

the Republic of Uganda and the United

Republic of Tanzania;

(b) Protocol on the Establishment of a

Secretariat of the Permanent Tripartite

Commission for Co-operation Between

the Republic of Kenya, the Republic

of Uganda and the United Republic of

Tanzania;

(c) Headquarters Agreement between the

Secretariat of the Commission for East

African Co-operation and the Government

of the United Republic of Tanzania;

(d) Tripartite Agreement for the Avoidance

of Double Taxation and the Prevention of

Fiscal Evasion with respect to Taxes on

Income;

(e) Memorandum of Understanding on Cooperation

in Defence;

(f) Tripartite Agreement on Road Transport;

(g) Tripartite Agreement on Inland Waterways

Transport;

(h) Memorandum of Understanding on

Foreign Policy Co-ordination; and

(I) Memorandum of Understanding between

the Republic of Kenya and the Republic

of Uganda and the United Republic of

Tanzania for Co-operation on Environment

Management.

The life of the treaty is expected to have perpetual

life subject to article 143, save for the punitive

steps to be taken under the treaty if a member

state does not honour its obligations as set out in

the treaty. If a member state wishes to withdrawal

from the EAC, then it must follow the steps

stipulated under article 145, of the treaty, by

giving a notice to the secretary of the community

within a period of not less than 12 months, within

which time the state must continue to carry out its

obligation to the community.

In conclusion, I note that there are many provisions,

rights and freedoms that are embedded and

espoused in the constitution that are also

comparable to those created and embedded

in the DAC, treaty. Kenya ha having ratified

the treaty became a member of the community.

According to the provisions of article 2[5] and 2

[6] of the constitution which state that any general

rules of international law shall form part of the

Kenya law and that any treaty or convention

ratified by Kenya shall form part of our laws as

under the constitution. Therefore in effect it means

that Kenya has a duty to abide by the provisions

found under the treaty, which form part of its

laws. Some of the provisions are transition in

nature and once they come into force, then they

shall also form part of our laws. In the instance

that there will be a law that upon coming into

force that will fundamentally alter the nature of

our constitution, the constitution maybe in need

of some amendments to that effect, which can

only be done by subjecting those provisions to

a referendum.

References.

A. The constitution of Kenya-August 2010.

B. The East African treaty ratified –November

1999 in Arusha, Tanzania.

74 Issue19 | April - June 2012


Information Communication Technology (ICT) Department

I. Network Security:

Security on the Internet and on Local Area Networks is now at the forefront of computer related issues.

The technical jargon of the day is information warfare and network security, and there are valid

reasons for their rise in importance. Throughout the evolution of networking and the Internet, the

threats to information and networks have risen dramatically. Many of these threats have become

cleverly exercised attacks causing damage or committing theft as explained in the history of computer

malware/viruses in later articles. Consequently, the public has become more conscious of the need for

network security and so too has the government. Protective tools and techniques exist to combat security

threats; nevertheless, only with the proper implementation will they succeed. Consequently, this article is

a discussion of network security,

its history, the threats and

responses to those threats,

and the method of designing

a secure network that follows

the process model for software

engineering.

Issue19 | April - June 2012

LOOKING INTO INSTITUTIONS

NETWORK SECURITY

By: Martin Mbui, System administrator,

Information Communication Technology (ICT)

Department

II. Information Security:

Currently the greatest asset of

corporations and governments

is information and also in

institutions like National Council

for Law Reporting.

Information encompasses a

wide range of diverse pieces

including: computer data,

marketing strategies, tax and

personnel records, military

strategies, financial data,

communications, and business

plans. Organizations that value their internal information realize that information is a strategic and

competitive tool. Our society is so reliant on information that the loss or corruption of the NCLR

information infrastructure would create a situation where accounts, ICT, procurement, management, library,

BRH and most other departments would not survive.

75


Kenya Law Reports Bench Bulletin

In short, information is the backbone of the

operations of these departments, and the security

of this information is critical.

Loss of information can be devastating for a

corporation or government. In general, the

motivational factor for preventing loss of

information is financial. The loss of information

integrity exceeds strictly the financial arena

and extends much further. Businesses have

confidential information stolen and patented

by competitors, individuals end up in jail and

inmates are released because of disruption in law

enforcement computers, IRS computer failures

have caused thousands of small companies to be

put out of business, corporate telephone switches

have regularly had hundreds of thousands of

dollars worth of telephone calls stolen through

them over a weekend, and the list goes on almost

without end.

Information security is the necessary means by

which critical information is controlled and its

loss is prevented. Information security deals with

those administrative policies and procedures

for identifying, controlling, and protecting

information from unauthorized manipulation.

This protection encompasses how information is

processed, distributed, stored, and destroyed.

In order for information security to be achieved,

several attributes must first be attained. Information

that is distributed, whether through a network, on

disk, or on paper, must be done so in a secure

fashion.

Educational training must be given to all individuals

involved with specific information and especially

to those required to secure that information.

Classification and clear demarcation of information

into different sensitivity levels is another necessary

step in securing information. Information must

be monitored and tracked consistently and

continuously throughout its existence.

Finally, securing a network is the most important

piece of information security. Information security

is in essence all of the aforementioned measures

for securing vital information and network security

is the key to doing so.

But when you have bad governance, of course, these resources are

destroyed: The forests are deforested, there is illegal logging, there

is soil erosion. I got pulled deeper and deeper and saw how these

issues become linked to governance, to corruption, to dictatorship.

Wangari Maathai.

76 Issue19 | April - June 2012


Feature

On Saturday May 5, 2012, between

12.30pm and 5.15 pm, the National

Council for Law Reporting was hosted

by the Mathare Roots Youth Group

Part of NCLR staff with the CEO, Mr. Michael Murungi

(right), Billian Music Family and MRYG members pose

for a group picture during NCLR tour of Mathare Slums

(MRYG) at the Group’s offices in Mathare, Nairobi

and thereafter, the Group conducted the Council on

a tour of the Mathare community. The Council was

represented by Cornelius Lupao the (Organizer) Ivy

Njoki, John Paul Mutugi, Laila Mbevi (and her son

Nabil), Michael Murungi, Moses Wanjala, Njeri

Githanga, Pascal Othieno, Wambui Kamau and

Yvonne W. Kirina.Geoffrey Andare, who is also

a member of staff and one of the officials of the

Mathare Roots Youth Group, was the liaison person

for the group during the visit and tour.

Issue19 | April - June 2012

THE NATIONAL COUNCIL FOR

LAW REPORTING PARTNERS

WITH MRYG FOR CSR

ACTIVITIES

By: Cornelius Lupao, Advocate,

Editorial Department

The MRYG was founded by the youths of Mathare

in 2006 to provide an avenue for the youth to

engage with and contribute to the welfare of their

community and also to serve

as a link between the Mathare

community and the opportunities

for partnership in community

welfare that would be available

outside the community.

The MRYG is a membership

organization comprised largely

of young people from the Mathare

Community who wish to partner

together to achieve positive social

outcomes for the community.

MRYG partners with individuals

and institutions in opening up

opportunities for the improvement

of the welfare of the Community.

The visit at the MRYG office:

Members of the Council were

met by the officials and members of the MRYG,

namely: Geoffrey Andare, Rosemary Mueni, Fabian

Kithusi, Elma Atieno,Edith Isaiah, Jackline Atieno,

Billian Okoth and Billian Music Family among others.

The MRYG informed the Council about how it was

founded, its resourcing, partners, membership and

the projects it undertakes

Among the programmes and projects that the MRYG

has been or is currently involved in are:

1 Education:

Financial sponsorship through partnership with

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Kenya Law Reports Bench Bulletin

Canada Mathare Education Trust (CMET),

a school fees sponsorship programme for

students from within the community. The

group also partners with Nairobits Digital

Design School, which trains students on

basic computer skills, advanced Web and

Graphic Design courses, which are also

sponsored.

2 Adolescent Health Programme (AHP):

This is an initiative by MRYG whereby

facilitators from the group train pupils in

schools within the community on social

topics ie Children Rights, Self Esteem,

Career, Education, and social vices

such as Violence and Rape, etc. It aims

to ensure that all youths have essential

communication skills and understanding of

peoples' rights to consent. These help them

get the right knowledge and skills to

help lead healthier and more active

lives.

3 Environmental Conservation:

This is done through Tree Planting

within and without the Community

as well as occasional community

cleanups

4 The MCEDO School – The

Mathare Community Education &

Development Organization founded

and initiated by some of Mathare

Roots Members is a community

school which also has a Feeding

programme for pupils from within the

Community

5 Mentorship Programme: The group

also links school going youth with individual

mentors.

6 Sports, Culture and Art: MRYG also

engages in Sports whereby it has a Football

Team, Real Mathare, an Art department that

deals with making of African ornaments

and accessories as well as performance

Art through Billian Music Family.

7 Exchange Programs: MRYG also

engages in exchange programs with local

and international youth groups, mainly

within Mathare, Kibera, Korogocho, and

internationally with Canada and German

based CBOs.

MRYG is working towards sustainability, particularly

sustainable community-based solutions to the

community’s challenges – where the Group and

the members of its community reduce or eliminate

dependency on external aid.

The National Council for Law Reporting identified

Possible areas of collaboration & partnerships with

MRYG which will include, but not limited to:

1 Invitation and participation in each other’s

events. For the part of the NCLR, MRYG

can attend/witness/participate in our

events such as product launches, games,

road shows and such related events.

2 The MRYG through Billian Music Family

(BMF) can provide entertainment at such

events and other members of MRYG can

provide ushering and logistical support

duties.

3 Exchange of knowledge and mentorship –

both organizations have a lot of knowledge

to exchange amongst their members. The

mentorship would be both ways. For the

part of the NCLR, members of staff could

volunteer to mentor young persons in

the MRYG’s community either directly or

by offering motivational speaking at the

MCEDO school and Valley View

Academy. Also explored was possible

offer of internship programs by the NCLR

to qualified students from within MRYG

projects.

4 Preparation of the NCLR Calendars –

MRYG informed NCLR that they prepare

calendars, which they sell. The calendars

can be branded jointly by NCLR and

MRYG and purchased by NCLR for sale

and/or distribution to its partners.

5 Individual members of staff of the National

Council for Law Reporting to make financial

contributions to support the activities of the

MRYG.

6 Such other activities as may be mutually

agreed between the NCLR and MRYG from

time to time.

78 Issue19 | April - June 2012

NCLR, BMF

and MRYG

teams hike

up Mathare

Valley during

NCLR tour

of Mathare

Slums


Feature

Parenting according to the online dictionary

is the rearing of a child or children with

emphasis on the care, love, and guidance

given by a parent. Parenting is also defined

by other sources as the process of promoting and

supporting the physical, emotional, social, and

intellectual development of a child from infancy

to adulthood.

Parenting looks into the aspects of bringing up a

child as opposed to the biological relationship.

Good parenting is about providing warm, secure

life, helping your child to learn good values and

to develop good self-esteem.

Why is parenting important?

Good parenting makes it

possible for children to grow

up in a positive direction. If

children do not learn how

to behave, they will find it

difficult to get along with

grown-ups and peers. They

will find it hard to learn

at school, misbehave and

probably become unhappy

and frustrated in life. It is

important that parents in

their busy schedules find

variable time to spend with

their children.

Combining parenting and

career

Most parents don’t spend enough time with their

Issue19 | April - June 2012

PARENTING: HOW MUCH

TIME DO YOU SPEND WITH

YOUR CHILDREN?

By: Evelyn Anyokorit Emaase,

Copy editor, Laws of Kenya Department

children as a result of combining parenting and their

careers. Combining parenting and work and making

both effective and meaningful is a challenge to many

parents. Having children is the easy part; the tough

part is to make time to be part of their lives as they

grow up.

In most cases, when two demands are to be met

almost equally in addition to other forces, naturally

people tend to incline to the one with the financial

gain neglecting the other demands, which should not

be the case. Children deserve the best part of their

parents’ time, so being able to combine the two could

not only be difficult but important and if not necessary.

A child’s brain growth requires interaction with

significant other

According to the attachment

theory by John Bowlby, a

child psychiatrist, and Mary

Ainsworth, a Psychologist, the

brain’s capacity to think, feel

and to act is dependent on the

interaction between a child and

the significant other; that is the

all round important figures in a

child’s life such as the mother,

father, siblings and care givers.

Dorcas Kaveke spends quantity and Children need bonding or

quality time with her baby, Cindy, at attachment to another person

the 2010 Justice Cup Tournament at in order for the immature brain

Parklands Sports Club

to develop in the most optimal

way. This attachment begins with

a non-verbal communication in

which the mother or any other

attachment figure aligns him/ herself to the infants

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Kenya Law Reports Bench Bulletin

needs and emotional state.

When a baby cries because it is hungry and the

mother feeds it, the baby comes to learn that its

needs can be met. The baby’s body experiences

satisfaction because someone responded to it's

needs. When the baby is wet and cold and the

mother changes its diaper and it is no longer

uncomfortable, it learns that its physical needs

are met. Through the mother’s regular response to

the needs of the child, the child develops a sense

of integration both internally and interpersonally.

In other words, it is through the child’s intimate

relationship and bonding to someone who is

irrationally in love with the child that the baby’s

brain develops a positive pattern or mental model

for how it sees itself and others.

When the child’s needs are not met

If a baby is unable to get its needs met, the insecure

attachment the child experiences will reverberate

in its internal and interpersonal world, it will be

emotionally distant from others and the quality of

its relationships are likely to be

superficial and detached.

It is true that even without a caring

and understanding parent or any

other figure, a child can still learn

many things and the brain can

accumulate many facts. But, it

is the significant person, early

in a child’s life who has the best

opportunity to demonstrate to the

child what it means to be human

and to influence how the facts the

child learns in school and in life

can be used to make the world a

better place.

Giving your children the Gift

of time

Spending quality time with children is extremely

important for their development and happiness.

Many children will let their parents know in their

own ways if they are not getting the attention they

deserve. Some will get withdrawn and others will

act out. This is evident when kids resort to behavior

that will get the parent’s attention for example

fighting, bedwetting, choosing their nanny over

their own parents. If children cannot get your

attention by doing good, they will definitely turn

to doing bad.

Quality time versus Quantity time.

According to researchers in a wide range of

fields, the time children spend with their parents is

essential for their health development be it quality

or quantity.

Some organizations occasionally organize for

social opportunities like football tournaments,

corporate social responsibility (CSR) activities

among others that allow their employees to spend

both quantity and quality time with their children.

The National Council for Law Reporting for instance

supports these events by planning or affiliating with

organization that organize for such forums to allow

its employees to not only have quality and quantity

time with their children but also experience relaxed

bonding and networking with other families.

Carolyn Ross Tomlin, a former kindergarten teacher

in her article, ‘Quantity Versus Quality Parent Time;

How Can Child Care Providers Help?’ argues that

practical application of quantity time means that

a parent finds teachable moments throughout the

day with their children. Teachable moments happen

without planning when your child shows

National Council for Law Reporting members bond with their

children at the 2010 Justice Cup Tournament at Parklands

Sports Club

interest in learning more about a specific task or

activity.

Quality time is defined by development experts as

memorable and meaningful time parents spend

nurturing and teaching their children. On the other

hand Gregory L. Jantz and Ann McMurray in their

book ‘Healthy Habits, Happy Kids: A Practical

Plan to Help Your Family’ argue that quality time

happens within the context of quantity of time.

Career parents can also have quality time with their

children. It's what one can make of the time they

spend with their children that makes it quality time.

In as much as quality time is important in a child’s

development, quantity time is equally important,

80 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

some parents think that if they have spent an hour

or so of quality time with their children, they have

done enough. It is important to note that this time

normally focuses on an enjoyable time such as

watching movies, going out etc and it would not

substitute good parenting.

Most parents tend to abuse quality time meant to be

enjoyed with their children by making it come out

as compensatory action as a result of having spent

less time with their children. It is also important to

note that quality time does not make up for the time

Issue19 | April - June 2012

ADVERT

not spent with children, using quality time as a make

up creates an ill affect. Parents are supposed to as

much as possible create both quality and quantity

time for their children.

The point is that quantity time matters just as much

as, if not more than quality time. Parents need to be

there to witness their children grow which means,

creating time for your children but more importantly

being there when they need you and being an

active participant in their everyday life.

81


Feature

The Uwazi Football Tournament is an annual

sporting event hosted by International

Commission of Jurists (ICJ Kenya). The event

brings together business and corporate

organizations, media, government, CBOs,

NGOs together

through football aims

at raising awareness

and advance its

campaign on the

need for a Freedom

of Information law

by hosting the event.

The tournament is by

design convened for

business and corporate

organizations and

bring together players

from the banking,

industrial and

corporate sector which

provides a relaxed

platform for networking

and showcasing the

achievements of various

prestigious institutions.

Participation in the

tournament is usually exclusively for the staff of

the sponsoring corporations, each team is always

advised to include both males and females in

their squad, at least a minimum of two females to

enhance gender balance.

This year, the tournament was held on 12th May

2012 at Impala Grounds, Ngong Road. Some of

the teams that participated include; Commission

for the Administration of Justice (CAJ), TI-Kenya,

TALENT BEYOND LAW REPORTING:

WINNERS ‘UWAZI FOOTBALL

TOURNAMENT, 2012’

By: Geoffrey A. Andare,

Data Processor, Football Team Captain,

Laws of Kenya Department

Standard Media, Mathare Roots Youth Group (MRYG)

sponsored by the National Council for Law Reporting

(NCLR), EACC, Mazars Auditors, Sichangi Partner

Advocates, Oilibya, ICJ-Kenya, Sichangi and co.

Members of NCLR staff together with MRYG Team

holding the trophy in celebration of the win

Advocates, Ghetto Radio, Centre for Governance

and Development, Kituo Cha Sheria, UNDP - Amkeni

Kenya, Kenya National Commission for Human Rights

(KNCHR), Royal Media Group, Safaricom and the

Law Society of Kenya amongst others.

The games began at 8.30am and Hon. Peter Kenneth,

MP for Gatanga and a Presidential Aspirant’ was the

Guest of Honor during the kick off while Mr. Otiende

Amollo, Chairman of the Committee on Administration

82 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

of Justice was to preside over the closing ceremony.

We hoped it would be a fun filled day.

This year NCLR

opted to participate

indirectly by

sponsoring Mathare

based reputable

youth group, Mathare

Roots. Mathare

Roots Youth Group

is in partnership

with NCLR as part

of CSR. The group

was very delighted

by the opportunity

and was determined

to go for glory from

the start. The team

was pooled in Green

Group where it

was to face Centre

for Governance

and Development,

Commission for the

Administration of

Justice (CAJ), Mazars Auditors, UNDP - Amkeni

Kenya and Kenya National Commission for Human

Rights (KNCHR).

The first match was against Centre for Governance

and Development of which the game ended in

a barren draw,

a few minutes

later, the boys

stepped back to

the pitch and hit

a one nil win over

Mazars Auditors,

a third match

followed against

Commission for

the Administration

of Justice (CAJ)

and the game

ended with a

goal for each

side. At this point,

most teams had

been extremely

competitive and

had either same

amount of points,

a single point or

goal difference,

only two top teams within the group could make

it to the next level. There came the fourth match

in battle against KNHCHR, both the teams fought

well but Mathare Roots proved to be a bit stronger

and hammered the team 6 – 0 to be the top team

Issue19 | April - June 2012

on the pool with most points and goals, two of the

goals came from awarded penalty kicks.

Members of NCLR staff, kids and MRYG Team line up

for a group picture immediately after the

final match

The fifth and the finally match for the group level

was no shaggy dog story, it was a determinant

for qualifiers to the next level and each team had

geared to the fullest of their ability, especially for

second spot as the first was already taken. Mathare

Roots Team was then to face UNDP; the winning

was sustained as MRYG mortified UNDP

MRYG team player taking a penalty kick against Commission for the

Administration of Justice during one of the first round matches

with another 6 - 0 win to their docket againts UNDP-

Amkeni Kenya to seal their top position in the group

stage and proceed to the next level, quarters. The

team won a total of four matches and only drew

once; by this time, the team had already ended

sprite run for many teams in the tournament and

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Kenya Law Reports Bench Bulletin

was among the last standing eight teams from

the four pools.

After all the

vigorous

morning game

activity, the

clock had hit

past midday

and all the teams

converged for

a meal before

proceeding for

quarter finals, the

elimination level.

After dine and

a few minutes

of rest, all the

qualified teams

embarked on

their aspiration

to carry the day,

MRYG was put

against Sichangi

and co. Advocates. The game was tough and

very fast paced, due to a lot of pressure; a player

from Sichangi’s side hit an own goal. The game

ended up 1 – 0, MRYG once again qualified for

the next level, semi finals. The semis proved to be

even tougher; MRYG was set to play against the

mammoth Mobile Service Provider, Safaricom.

Safaricom team contested strongly but eventually

lost the battle as it was crushed 1 – 0 by MRYG.

The MRYG team

yet again made it

to the top two and

had a chance to be

either crowned the

champions or take

the second position;

Safaricom took

the third position

after another tough

match against the

then Defending

Champions, Kituo

cha Sheria. After the

third position match,

there was a short

break then came

time for the final

match, the only last

two standing teams

were MRYG and

Muhammad Muigai Advocates. The match kicked

off with everyone glued on the field in anticipation

to see which team carries the day. Six minutes to

the game, each team had made countless attempts

in vein, both the defenses attested unbreakable.

The game ended twelve minutes later with no goal

on any side. The referee settled on penalties as

NCLR staff and MRYG members celebrate

victory after qualifying for the finals

the platform to determine the winners of the day

so the teams took positions. There was opportunity

for five kicks for each side and MRYG took the

first one straight into the net, Muigai’s team

player also hit the net with the first kick, it was

a smooth flow until Muigai’s team lost their third

kick. Unfortunately one of MRYG player lost the

fourth kick and so the round ended up a draw. The

second round was three kicks from each side and

Muigai’s team hit the first score, all went well for

NCLR Web/Graphic Designer and football team

captain receives a medal from Mr. Otiende Amollo,

Chairman of the Commission for the Administration of Justice

the teams until Muigai’s team lost their final kick;

MRYG was to seal the win by scoring their third

and final kick but the goal keeper saved Muigai’s

at that point.

84 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

At that time, there was a lot of tension an anxiety;

there was a lot of cheering and the loud supporters

made it even more uncomfortable for the kickers, an

opportunity was granted to teams, a penalty kick

each. The kicks were to be taken by a lady from

each team against male goalkeepers; Muigai’s

team took the first kick and lost when MRYG keeper

grabbed it. Once again MRYG got a chance to

take hold of the cup, fortunately on their side, the

lady did not disappoint, she hit the ball hard to

extreme left of Muigai’s keeper and he just could

not get hold of it. MRYG took the day, in partnership

with NCLR; the team was crowned the winners of

Uwazi Tournament 2012 and also took home the

Issue19 | April - June 2012

top scorer award. Mr. Otiende Amollo, Chairman

of the Committee on Administration of Justice,

presented the award to the team led by NCLR/

MRYG representative and team captain, Geoffrey

Andare. Mr. Otiende Amollo also presided over

the closing ceremony. Safaricom team took the

third position; Muigai’s team who also grabbed

a trophy for best player took the second spot. This

was all happening already late into the evening,

about 7:15 pm and after closing of the ceremony,

all the teams and officials departed.

MRYG’s Dominic scooped the top scorer position for which he also received an award

85


Feature Case

SENTENCE FOR ATTEMPT TO COMMIT ROBBERY IS DEATH NOT SEVEN YEARS

James Maina Magare & another v Republic [2012] eKLR

Court of Appeal at Mombasa

Criminal Appeal 224 of 2010

Githinji, Visram & Okwengu JJ.A

March 16, 2012

By Esther Nyaiyaki Onchana

The Court of Appeal has held that sentence for an attempt to commit robbery is death as

provided by section 297 (2) of the Penal Code and not a term of imprisonment not exceeding seven

years. The Court held that section 389 of the Penal Code, which provides for a prison term not

exceeding seven years for attempted offences, was only applicable where the legislature had not

provided any other sentence.

The decision arose out of a case involving James Maina Magare and John Kibanya Maina, the

first and second appellants respectively. The Senior Resident Magistrate in Taveta convicted each of

them with three offences. The first count, in respect of which the two appellants were charged jointly,

was attempted robbery with violence contrary to section 297(2) of the Penal Code. Each of the

appellants was sentenced to the mandatory death penalty. Each of the appellants were also convicted

of two separate counts of being in possession of firearm without a firearm certificate contrary to section

4(1) as read with section 4(3) of the Firearms Act and being in possession of ammunition without a

firearm certificate.

They were both sentenced to serve 10 years imprisonment on each of the two separate counts. In view

of the death sentence imposed on the first count, the sentences in regard to the other two separate

counts were ordered to run concurrently, but to remain in abeyance.

Being dissatisfied with the judgment of the subordinate court, the appellants appealed to the High

Court against their conviction and sentence. In their judgment the High Court (Azangalala &

Odero, JJ), upheld the appellants’ conviction and sentence in regard to the first count, but quashed

their convictions and set aside their sentences in regard to the other two separate counts.

The appellants were still dissatisfied with the judgment of the High Court and therefore lodged a second

appeal. The 1st appellant’s memorandum of appeal prepared by Azania Legal Consultants Advocates

raised three grounds. One of the substantive grounds alleged the judges erred in law by passing

the death sentence. According to the first appellant the mandatory death sentence as provided by

section 297(2) of the Penal Code was unlawful since it contradicted section 389 of the Penal Code.

Mr. S. Kimani, counsel for the 2nd Appellant associated himself with the submissions made by Mr.

T. Bryant who appeared for the 1st Appellant. Mr. T Bryant pointed out that the High Court erred in

convicting the appellant for the offence of robbery with violence contrary to section 296(2) of the

Penal Code, when the appellant was charged with the offence of attempted robbery contrary to

section 297(2) of the Penal Code. Mr. Bryant submitted that the appellant could not be convicted of

a charge, which he was not aware of during his trial.

86 Issue19 | April - June 2012


Kenya Law Reports Bench Bulletin

He further submitted that there was a contradiction between section 297(2) of the Penal Code, which

provides for death sentence for attempted robbery, and section 389 of the Penal Code which provides

for a sentence not exceeding seven years where one is convicted of attempting to commit an offence

punishable by death or life imprisonment. He argued that the appellant ought to have been sentenced

to a term not exceeding seven years. In support of his submissions he relied on several authorities.

The gravamen of Mr. Bryant’s argument was that the sentence imposed upon the appellant was

unlawful in view of section 389 of the Penal Code, which provided a general penalty for an attempt to

commit a felony or misdemeanour. The section provides as follows: “389. Any person who attempts

to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is

provided, to one half of such punishment as may be provided for the offence attempted, but so that

if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment

for a term exceeding seven years.”

He relied on the cases of David Mwangi Mugo v Republic and Boniface Juma Kisa vs. Republic

eKLR where the Court of Appeal was of the view that there was an apparent conflict between section

389 of the Penal Code which provides for a sentence of seven years where the attempted offence

is punishable by death, and section 297(2) which provides for a death sentence for the offence of

attempted robbery with violence.

In the court’s view, three things stood out from the reading of section 389. Firstly, the section sets

out a general offence of an attempt to commit a felony or a misdemeanour. This was an implied

recognition that there are instances where specific offences were provided for in the Penal Code,

but no specific provision made for an attempt to commit such an offence.

Secondly, the section recognized that there were situations where no punishment has been provided

for an attempt to commit specific offences, and the section therefore provided a formula for sentencing

where no other punishment provided for such attempt. Thirdly, a specific sentence of a term of

imprisonment not exceeding seven years had been provided, where the offence attempted was one

punishable by death or life imprisonment. The latter part of section 389 of the Penal Code which

provided for the specific sentence, had to be read in conjunction with the words “if no other punishment

is provided” and “but so that” in the preceding part of that section. In other words, the specific

punishment in cases where the offence attempted was one punishable by death or life imprisonment,

was only applicable where the legislature had not provided any other sentence for such an attempt.

Thus, for the offence of an attempt to commit robbery with violence under section 297(2) of the Penal

Code, in respect of which a sentence of death has been provided under that section, section 389

of the Penal Code could not apply. The fact that section 297(1) of the Penal Code, which provides

for the offence of attempted simple robbery, provided for a sentence of seven years, confirmed the

legislature’s intention to provide a more severe punishment for the more serious offence of attempted

robbery with violence under section 297(2) of the Penal Code.

In the court’s view, the legislature’s intention to exclude the offence under section 297(2) of the

Penal Code from the application of section 389 of the Penal Code was clear. The court referred to

its earlier decision Evans Kiratu Mwangi V Republic [2011] eKLR where it was stated that section

297(2) of the Penal Code provides for a sentence of death, and that sentence was therefore lawful.

The court distinguished this case from the decision in Godfrey Ngotho Mutiso V Republic [2010]

eKLR where the legality of the mandatory death sentence was dealt with. It was of the view that

issues raised in this case were different.

The court noted that both appellants had been given an opportunity in the subordinate court to

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Kenya Law Reports Bench Bulletin

mitigate before the sentence was imposed. The court concluded that notwithstanding the fact

that the Senior Principal Prosecuting counsel conceded the appeal, the appeal had no merit,

as the sentence imposed on the appellants under section 297(2) of the Penal Code was lawful.

The appeal was therefore dismissed in its entirety. This judgment was delivered pursuant to Rule

32(2) of the Court of Appeal Rules, Visram JA having declined to sign the judgment.

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Kenya Law Reports Bench Bulletin

“The constitutional petitions filed in

the High Court raised justiciable

questions, entailing issues of

constitutional interpretation under

a jurisdiction properly vested in the

High Court. The issues ought to be

litigated and resolved in the High

Court, and the High Court’s decision

in that respect would be subject to the

appellate procedure running through

the Court of Appeal, to the Supreme

Court.”

The applicant, the Interim

Independent Electoral

Commission, had moved

the Supreme Court by a

Constitutional Application dated April

28, 2011. It cited Articles 101(1),

136(2) (a), 177(1)(a) and 180(1)

of the Constitution as providing

that elections for Members of the

National Assembly and the Senate,

the President, Members of County

Assemblies and Governors “shall be

held on the second Tuesday in August

in every fifth year”. It was also noted

that clause 9(1) of the Sixth Schedule

to the Constitution stated that: “The

first elections for the President, the

National Assembly, the Senate, county

Issue19 | April - June 2012

SUPREME COURT’S ADVISORY OPINION ON

ELECTION DATE

In Re the Matter of the Interim

Independent Electoral

Commission [2011] eKLR

Constitutional Application 2 of 2011

The Supreme Court of Kenya

W.M. Mutunga, CJ; Nancy Baraza,

DCJ & Tunoi, Ibrahim, Ojwang,

Wanjala & Ndung’u, SCJJ.

December 20, 2011.

By: Njeri Githang’a Kamau

assemblies and county governors

under new Constitution shall be held

at the same time, within sixty days

after the dissolution of the National

Assembly at the end of its term.”

The applicant hence sought the

advisory opinion of the Court on

the question what, in the light of

the above provisions and the other

provisions of the Constitution of Kenya

and the other continuing applicable

provisions of the former Constitution,

was the date for the next election for

the aforesaid offices of President,

Members of the National Assembly

and the Senate, Members of County

Assemblies and Governors.

A preliminary objection was raised

on the ground, among others, that

the original grievance in the High

Court Petition of April 19, 2011

was a justiciable question, entailing

constitutional interpretation belonging

first and foremost, to the jurisdiction of

the High Court; and that such a matter

ought to be litigated and resolved

in the High Court which decision in

that respect would be subject to the

appellate procedure running through

the Court of Appeal, to the Supreme

Court. The contention, in its essence,

was that the Supreme Court lacked

jurisdiction at that stage.

The court noted that while the Advisory-

Opinion jurisdiction was exclusively

entrusted to the Supreme Court, the

Constitution did not provide that the

Court while rendering an opinion

may not interpret the Constitution.

It followed that the Supreme Court

could, while rendering an Advisory

Opinion under Article 163(6) of the

Constitution, undertake any necessary

interpretation of the Constitution. It was

opined that the application amounted

to a request for an interpretation of

Articles 101(1), 136(2) (a), 177 (1)(a)

and 180(1) of the Constitution, and

clause 9 of the Sixth Schedule to the

Constitution hence the question placed

before the court was not a normal

one within the Advisory-Opinion

jurisdiction as envisaged under Article

163(6) of the Constitution.

In the light of the several petitions

pending before the High Court, the

court found that the application was

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Kenya Law Reports Bench Bulletin

inappropriate. The cases sought the

interpretation of the Constitution, with

the object of determining the date

of the next general election. Those

petitions raised substantive issues that

required a full hearing of the parties;

and those matters were properly

lodged and the parties involved had

(Appeal from a judgment and orders

of the High Court of Kenya at Nairobi

(Constitutional and Human Rights

Division, Lenaola, Mumbi Ngugi and

Majanja, JJ.) dated the 13th January,

2012in Constitutional Petition No.

65 of 2011) July 31, 2012 Judgment

Constitutional law – interpretation

of the Constitution – determination of

the date of the first general election

under a new constitution - rules

of interpretation - schedule to a

constitution – status of a schedule

vis a’ vis the other provisions of a

constitution – whether the election

was to be held on the 2nd Tuesday

of August in 2012 or within 60 days

after the end of the term of the serving

Parliament in 2013 - Constitution of

Kenya 2010 Articles 101, 262; Sixth

Schedule sections 2, 3, 9, 10, 12

Civil Procedure – appeal – parties

filed their pleadings and made claims

to be resolved by the High Court. To

allow the application, in the opinion of

the court would constitute interference

with due process, and with the rights

of parties to be heard before a Court

duly vested with jurisdiction and

also constitute an impediment to the

Court of APPEAL Case

NEXT GENERAL ELECTION TO BE HELD

60 DAYS AFTER JANUARY 14 2013

Centre for Rights Education

and

Awareness & another v John Harun

Mwau & 6 others

[2012]eKLR

Court of Appeal at Nairobi

EM Githinji, MK Koome,

HM Okwengu,

KH Rawal & DK Maraga JJ A

By: Michael M. Murungi, Advocate

to an appeal in the Court of Appeal -

whether a person who is not a party

to the proceedings in the High Court

has locus standi to lodge an appeal –

whether such a person may be heard

de bene esse – matters the court will

consider – Constitution of Kenya 2010

section 164 – Court of Appeal Rules

2010 rule 75, 77

Civil Procedure – jurisdiction – Court

of Appeal - whether the Court of

Appeal has jurisdiction to decide upon

a matter which was not canvassed in

the High Court and adjudicated upon -

Words and phrases

“appeal”

“de bene esse”

“party directly affected” [by a

decision of the High Court so as to

entitle the party to file an appeal].

On August 27, 2010, Kenya

prospect of any appeal from the High

Court up to the Supreme Court. The

Court had to protect the jurisdiction

entrusted to the High Court hence it

consequently upheld the preliminary

objections and directed the High Court

to proceed to hear and determine the

several petitions pending before it.

promulgated a new constitution – the

Constitution of Kenya 2010. The

new constitution provided for a new

structure of government and contained

transitional provisions governing the

conclusion of the term of the serving

government and the establishment

and commencement of the term of the

new government through a general

election.

Previously, in 2008, Kenya’s

legislature had passed the National

Accord and Reconciliation Act, 2008

to establish a coalition government

through a National Accord, which

was a reconciliation framework

brokered after the violent aftermath

of the disputed results of the general

election held in December 2007.

A dispute arose on the interpretation

of some provisions of the new

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Kenya Law Reports Bench Bulletin

constitution and the National Accord

and Reconciliation Act, 2008 on the

question of what would trigger the

first general election under the new

constitution and how the date of the

election would be reckoned. These

provisions were:

The National Accord and

Reconciliation Act, 2008:

• Section 6: The coalition shall

stand dissolved if - (a) the Tenth

Parliament is dissolved;…”

The Constitution of Kenya 2010:

• Article 101(1): “A general

election of members of

Parliament shall be held on

the second Tuesday in August

in every fifth year”.

• Article 102(1): “The term of

each house of Parliament

expires on the date of the next

general election”.

• Article 262 provided that the

transitional and consequential

provisions set out in the

schedule were to take effect on

the date that the Constitution

came into force on August 27

2010.

• The Sixth Schedule, section

3(2) provided that certain

provisions of the former

Constitution would continue

to apply until the first general

elections. That section

excluded section 59 which

gave the President the power

to prorogue and to dissolve

Parliament at any time. The

section further provided that

the provisions of the former

Constitution concerning the

executive and the National

Accord would continue to

operate until the first general

elections.

• The Sixth Schedule, section

9(2): “The first elections for

the President, the National

Assembly, the Senate,

county assemblies and

county governors under this

Issue19 | April - June 2012

Constitution shall be held at

the same time, within sixty

days after the dissolution of

the National Assembly at the

end of its term”.

• The Sixth Schedule, section

9(2): “Despite subsection (1),

if the coalition established

under the National Accord

is dissolved and general

elections are held before

2012, elections for the

first county assemblies and

governors shall be held during

2012.”

• The Sixth Schedule, Section

10 provided that the

National Assembly existing

immediately before the date

of the promulgation of the new

constitution would continue as

the National Assembly for the

purposes of the Constitution

for “its unexpired term”.

• The Sixth Schedule, section

12 provided that the President

and the Prime Minister

would continue to serve in

accordance with the former

Constitution and the National

Accord until the first general

elections unless they vacate

office under the former

Constitution and the Accord.

• The Sixth Schedule, section

12(2) allowed the Cabinet

and the Assistant Ministers

under the repealed constitution

to continue holding office until

the first general elections

under the new constitution

unless they vacated or were

removed from office in

accordance with the former

Constitution and the National

Accord.

In interpreting these provisions, the

High Court had found, among other

things, that, firstly, following the

repeal of the former Constitution, the

President had no power under the

Constitution to dissolve Parliament.

Secondly, it had found that the date

of the first elections under the new

Constitution would be determined by

reference to Sections 9 and 10 of the

Sixth Schedule as follows: -

a. In the year 2012, within

sixty days from the date

on which the National

Coalition is dissolved by

written agreement between

the President and the Prime

Minister in accordance with

Sections 6(b) of the National

Accord and Reconciliation

Act, 2008 or,

b. Upon the expiry of the term of

the 10th Parliament on the 5th

of the Anniversary of the day

it first sat which is designated

by Legal Notice No.1 of

2008 on 15th January 2008

and the term therefore expired

on 14th January, 2013 and

the elections shall be held

within sixty days of 15th

January, 2013.

Two appeals were lodged in the Court

of Appeal against these findings. One

of the appeals was lodged by an

entity which had not been a party to

the proceedings in the High Court on

the ground that the entity was directly

affected by the decision of the High

Court and that the Constitution entitled

it to file the appeal. The two appeals

were consolidated.

Held:

On the locus standi of one of the

appellants:

1. Even though in the first

instance appeals to the

Court of Appeal will

invariably be brought

by persons who were

parties in the suit from

which the appeal emanates,

this is not to say

that a person who was

not party to the suit cannot

go to the Court on

appeal. Each case must

be considered on its

own merit.

2. A person who was not a

party in the original suit

has the obligation to establish

that it is affected

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Kenya Law Reports Bench Bulletin

by the judgment or order,

subject of the appeal

- and the required

interest is not to be restricted

to proprietary

or financial interest only

- and to establish that

there are good reasons

for not having pursued

its interest in the High

Court. Where a matter

is of public interest and

relates to the protection

and promotion of the

Constitution, it may be

in the interest of justice

to admit such a party.

3. However, it would not

be proper for such a

party to canvass matters

in the Court of Appeal

which were not the subject

of the litigation in

the High Court.

On the principles of interpreting a

constitution:

4. Some of the important

principles which apply

to the interpretation of

a constitution are:

a. A court should avoid a

construction that produces

an absurd, unworkable

or impracticable

result;

b. A court should find

against a construction

that creates an anomaly

or otherwise produces

an irrational or illogical

result;

c. The court should strive

to avoid adopting a

construction which is adverse

to public interest,

economic, social and

political or otherwise.

5. The sixth schedule to the

Constitution of Kenya

2010 was an integral

part of the Constitution

and had the same status

as the provisions of the

other Articles although it

is of a limited duration.

On the merits of the appeals:

6. By finding that the general

election could be held

in the year 2012 within

sixty days from the date

on which the National

Coalition is dissolved

by the President and the

Prime Minister, the High

Court was in effect giving

the President and the

Prime Minister power to

dissolve the National

Assembly, which power

was not conferred by

the Constitution.

7. It was not within the

province of the High

Court to amend, as it in

effect did by that decision,

sections 9(2) and

10 of the Sixth Schedule

to the Constitution of Kenya

2010 and section

6(b) of the National Accord

and Reconciliation

Act, 2008. The decision

was inconsistent with the

new constitution particularly

sections 10 and 12

of the Schedule.

8. It was the intention of the

Constitution of Kenya

2010, as evident in

sections 9(1) and 10 of

the Sixth Schedule, that

the National Assembly

would complete its unexpired

term and that

the first elections would

be held within sixty days

after the dissolution of

the National Assembly

at the end of its terms.

9. The High Court was

right in its second finding

that the first elections

under the new Constitution

could only be lawfully

held within sixty

days upon the expiry

of the term of the 10th

Parliament and in computing

the date of expiry

as January 14 2013.

Per Martha Koome JA, dissenting:

Held:

1. A party before the High

Court has to demonstrate

how they are

affected by the decision

being appealed

against. The appellant

should have first sought

leave before the High

Court so as to demonstrate

the general public

interest it was pursuing

and given reasons why

it did not appear before

the High Court to agitate

its case.

2. Having also considered

that the life of Parliament

is five years as per the

Section 59 (5) of the

repealed Constitution,

which was saved by

section 10 of the Sixth

Schedule to the new

Constitution, then section

9(1) of the Sixth

Schedule should not

have been read as a

stand-alone leaving out

the provisions of Section

10 of the Sixth Schedule

to the new constitution

and section 59(5) of the

repealed Constitution.

3. If Sections 9 and 10

of the Sixth Schedule

to the new constitution

and section 59(5) of

the repealed constitution

were read conjunctively

and given their purposeful

meaning within the

prevailing context that

traditionally general

elections are held within

five years, the National

Assembly should dissolve

sixty days before

the expiration of term.

The dissolution of Parliament

sixty days after the

expiry of its term would

contradict section 10 of

the Sixth Schedule as it

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Kenya Law Reports Bench Bulletin

extended the period of

the National Assembly

beyond the term of five

years.

4. The National Assembly

should have been dissolved

sixty days before

the expiration of its

term - that should have

been on or about 14th

November, 2012. This

way, the current National

Assembly would not

go beyond its lifespan

Issue19 | April - June 2012

of five years and the

Members of Parliament

would have served their

entire term of five years.

The date for the next

general elections would

then be on or about the

January 15 2013.

By majority decision: The order of

the High Court providing that the

general elections could be held in the

year 2012 within 60 days from the

date on which the National Coalition

is dissolved by written agreement

between the President and the Prime

Minister in accordance with section 6

(b) of the Accord was set aside.

The order of the High Court providing

that the general elections shall be held

upon the expiry of the term of the 10th

Parliament on the 5th Anniversary of

the day it first sat - which is designated

by Legal Notice No. 1 of 2008 as

15th January, 2008 and the term

therefore expires on 14th January,

2013 - so that the election shall be

held within sixty days of 15th January,

2013, was confirmed.

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Kenya Law Reports Bench Bulletin

High Court Cases

Constitutional law – electoral and

boundaries law – delimitation

of electoral and administrative

boundaries – decision of the

Independent Electoral and Boundaries

Commission declaring the names,

population and boundaries of wards

and constituencies – duty of the

Commission to comply with the Bill of

Rights, Article 89 of the Constitution

and the Independent Electoral and

Boundaries Commission Act in the

delimiting exercise – political rights -

right to vote - right to representation

– rights of minorities - principles of

electoral systems - public participation

and consultation - whether the

decision of the Commission violated

the Constitution and the law –

whether the Commission had failed

in its obligation to ensure public

participation and consultation in the

delimiting exercise - Constitution of

Kenya Articles 10, 19, 20, 38, 40,

56, 81, 88, 89, 174, Sixth Schedule -

Independent Electoral and Boundaries

Commission Act sections 36, Fifth

Schedule – Survey Act (Cap. 229)

sections 29, 39, 41

Constitutional law – interpretation

of the Constitution – Constitution of

Kenya Article 259(1)

PUBLIC PARTICIPATION CRUCIAL IN

DETERMINING ELECTORAL BOUNDARIES.

Republic v Interim Independent

Electoral and Boundaries

Commission & another ex

parte Eliot Lidubwi Kihusa &

5 others [2012] eKLR

High Court at Nairobi –

Judicial Review Division

M. Warsame, RN Sitati,

HA Omondi, P Nyamweya &

D Majanja JJ

July 9, 2012

Judgment

By: Michael M. Murungi, Advocate

Statute – interpretation of statute

– constitutionality of a statutory

provision – Constitution prescribing

three months as the time within

which an application for the review

of a decision on the delimitation of

electoral units is to be heard – statute

prescribing thirty days for a court to

determine such a matter – whether

the statute was inconsistent with the

Constitution - Constitution of Kenya

Article 89 - Independent Electoral

and Boundaries Commission Act Fifth

Schedule section 4

Jurisdiction – High Court – jurisdiction

of the High Court – whether the Court

had jurisdiction to review to the

decision of the Independent Electoral

and Boundaries Commission on

the creation, naming, population,

distribution and boundaries of

constituencies and county wards –

incidence of scope of the court’s power

– Constitution of Kenya Article 22,

89(11), 165, 259(9) - Independent

Electoral and Boundaries Commission

Act sections 36, Fifth Schedule

The Constitution of Kenya

(Amendment) Act, 2008

amended Kenya’s former

constitution to dissolve the then

Electoral Commission of Kenya and to

create two interim bodies; the Interim

Independent Electoral Commission

(the IIEC) and the Interim Independent

Boundaries Review Commission (the

IIBRC).

After a national exercise of consultations

and review of the boundaries of

various administrative units, the

IIBRC presented its report (the IIBRC

Report), in November 2010, which

determined the names and details of

the boundaries of 290 constituencies.

The IIBRC also published the names

of the constituencies in the National

Assembly Constituencies Order No.

2 of 2010.

Whereas it was mandated to determine

the optimal numbers, names and

boundary details of County Assembly

Wards, the IIBRC was unable to

deliver on this mandate because the

county wards came into force through

a new Constitution promulgated in

August 2010, long after the IIBRC had

held public consultations. The IIBRC

recommended that the existing local

authority wards established under the

Local Government Act (Cap. 265)

should serve as wards until County

Assembly Wards were determined in

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Kenya Law Reports Bench Bulletin

accordance with the new Constitution.

It also noted that its work was to run

up to June 2011 hence it was unable

to conduct field surveys to confirm the

maps for the 290 constituencies in line

with the names and boundary details

it had determined.

The IIBRC Report was adopted by

the National Assembly in December

2010.

In its transitional provisions, the new

constitution preserved the IIBRC but

created the Independent Electoral

and Boundaries Commission (IEBC)

in Article 88(4)(c). The IEBC was to

be responsible for the delimitation of

constituencies and wards.

The Bill of Rights of this new Constitution

guaranteed political rights, including

the freedom to make political choices

and the right to free, fair and regular

elections based on universal suffrage.

Chapter Six on representation of the

people set out how the right to vote is

realized. Article 81 set out the general

principles for the electoral system,

including the freedom of citizens to

exercise their political rights; gender

representation quota in elective public

bodies; fair representation of persons

with disabilities; universal suffrage

based on the aspiration for fair

representation and equality of vote;

and free and fair elections.

In order to operationalize the activities

of the IEBC, the Independent Electoral

and Boundaries Commission Act

(the IEBC Act) was passed. Section

36 empowered the IEBC to resolve

all issues relating the delimitation

of boundaries of constituencies and

wards arising from the report of

the IIBRC. In addressing the issues

arising out of the first review, IEBC

was restricted by the IEBC Act and

section 2(1) of the Fifth Schedule to

use the IIBRC Report as its primary

reference material and the report of

a parliamentary committee on the

IIBRC Report as secondary reference

material.

Ultimately, in March 2012, after

a national exercise of public

consultations, the IEBC published the

National Assembly Constituencies

and County Assembly Wards Order,

2012 through Legal Notice No. 14

Issue19 | April - June 2012

of 2012. This Order contained the

decision of the IEBC concerning the

delimitation of constituencies and

wards.

The formula used by the IIBRC

and the IEBC to distribute

the constituencies was based

on a national constituency

population quota of 133,138,

being the product of dividing the

total country population (over

38 million) by the number of

legally mandated constituencies

(290). To this quota was added

or subtracted a number

representing the percentage

variation prescribed by Article

89(6) of the Constitution for a

city, sparsely populated areas,

and other areas as the case

may be to arrive at population

quotas of 186,394 for cities;

79,883 for sparsely populated

areas; and for other areas, not

more than 173,079 and not

less than 93,197. The IEBC then

mathematically redistributed

the 290 constituencies within

the existing provinces to arrive

at 17 constituencies for Nairobi

and 284 for other provinces

but taking care to protect

constituencies with populations

below the quota. In effect, some

constituencies were split and

others were renamed.

The methodology applied by the

IEBC in the delimitation of County

Assembly Wards took into account

the county population quota. This

quota was arrived at by dividing the

total population of the county by the

number of constituencies in the county.

The total number of constituencies

in the county was multiplied by

five, being the ideal number of

county wards per constituency as

recommended by the Report of the

Task Force on Devolved Government.

Each constituency population within a

county was then divided by the county

population and the result multiplied

by the number of County Assembly

Wards awarded to the county to arrive

at the number of the County Assembly

Wards awarded to a constituency.

Complaints were raised

regarding the manner in which

80 new constituencies and 1450

County Assembly Wards had

been created, their distribution,

their names, boundaries

and areas of allocation. The

movement of sub-locations

hitherto falling in one

constituency to one or more

of the proposed constituencies

was also contested. Further

grievances and controversies

arose regarding the number

of wards given to a particular

constituency mainly on

the basis of population,

geographical, ethnic, clan,

community, marginalized

groups, minorities and other

interests and the adequacy

of the wards allocated. These

complaints were contained in

constitutional petitions and

applications for judicial review

filed in various High Court

registries across the country,

which were consolidated and

heard by a bench of five judges

of the Constitutional and

Judicial Review Division of the

Court.

The two main issues for determination

were, firstly, the jurisdiction and the

powers of the High Court to ‘review’

a decision on the delimitation of

electoral unites under Article 89(11)

of the Constitution and secondly, the

constitutionality and legality of the

criteria for delimitation applied by

the IEBC. The question of which party

should bear the costs of the litigation

was also contested.

The fulcrum of the litigation was

therefore the interpretation of

and application of the criteria for

delimitation set out in Article 89 as

read with section 27 of the Sixth

Schedule to the Constitution and

section 36 of the IEBC Act as read

with the Fifth Schedule to the Act.

Held:

Under Article 259(1) of the

Constitution, the Constitution is to

be interpreted in a manner that

promotes its purpose, values and

principles; advances the rule of

law, human rights and fundamental

freedoms in the Bill of Rights and

permits development of the law and

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Kenya Law Reports Bench Bulletin

contributes to good governance. In

interpreting the Constitution, the letter

and the spirit of the supreme law must

be respected. Various provisions of

the Constitution must be read together

to get a proper interpretation. Article

89 could not be read or interpreted

in isolation. The mandate of the IEBC

was to be read, and the right to fair

representation and equality of the vote

determined, against the background

of the entire Constitution.

Since section 4 of the Fifth

Schedule to the IEBC Act

granted the right to apply for

review either under the IEBC

Act or the Constitution, the

purported limitation on the

Court to determine the matter

within thirty days of filing the

application was inconsistent

with Article 89(11) of the

Constitution which provided

that the application for review

shall be heard and determined

within three months of the date

on which it is filed.

No person or body could claim

not to be subject to or beyond the

powers of the High Court when

it is alleged that he or she has

committed a transgression in exercise

of a legitimate power conferred by

the Constitution and the law. The

jurisdiction of High Court can only

be ousted by very clear and express

language in the Constitution.

The jurisdiction of the High Court

to review the boundary delimitation

process was not granted by statute

but was founded in the Constitution

Article 165; it is the jurisdiction of

the High Court to satisfy itself of the

propriety of any act or decision done

by any person or body pursuant to the

Constitution and the law.

In discharging the function

of review contemplated by

Article 89(11), the court was

not constrained by the statutory

provisions or common law

remedies. The duty was a

constitutional duty and the

relief must accord with the task

at hand. The High Court had

the powers to grant appropriate

relief if contravention of the

Constitution is established, even

if the State and the IEBC were to

be inconvenienced. The review

contemplated in Article 89(11)

was a review of the procedures

and merits of the delimitation

exercise. Where an application

is made, the court assumes all

the plenary powers necessary to

ensure that the IEBC complied

with the Constitution.

Therefore in exercising its

jurisdiction in relation to

the delimitation process,

the High Court is meant to

correct, modify, verify,

eradicate, amend, override

or suppress any illegality or

unconstitutionality committed

by the IEBC in exercise of its

mandate of delimitation under

Article 89.

The requirement of Article 89(2) of

the Constitution that the review of

constituency and ward boundaries

was to be completed at least twelve

months before a general election did

not apply to the review of boundaries

preceding the first general elections

under the Constitution. This left no

doubt that it was intended that the

first general elections under the

Constitution be carried out based on

the work done by the IIBRC. Therefore,

the provisions of Legal Notice No. 14

of 2012 took effect and applied to the

next general elections.

The internationally recognized and

accepted principles of boundary

delimitations were representativeness,

equality of voting strength, independent

and impartial authority, transparency

and non-discrimination. The decision

as to whether to delimit an electoral

area and the means adopted depends

on a country’s specific administrative,

political, social conditions and the

financial resources available.

The purpose of the right to vote

enshrined in the Constitution was not

equality of voting power per se, but

the right to "effective representation”.

Effective representation and good

governance compelled that factors

other than absolute voter parity

such as geography and community

of interest be taken into account in

setting electoral boundaries. The

creation of electoral units must meet

the necessary conditions and there

must be a pressing and substantial

need that is rationally connected to

the concept that the creation will result

in fair and effective representation

while the differing representational

concerns of urban and rural areas

may be properly considered in

drawing constituency and ward

boundaries. The one-person onevote

principle was tempered by the

unique circumstances of Kenya and

the specific provisions of the entire

Constitution. The delimitation of the

boundaries as required by Article 89

required the IEBC to take into account

the criteria contained in Article 89(5)

and (6).

The effect of treating the

marginalized and minority

communities in the exact

same manner as the larger

communities in the delimitation

process would have been far

more discriminatory, and would

never eliminate the mischief

intended to be reduced by

Article 27 of the Constitution

[on the right to equality and

freedom from discrimination].

Instead, it would undermine the

achievement of social justice.

The IEBC was not restricted by the

Constitution in the number of wards

it could create and neither could it

restrict itself to creating five wards per

constituency. However, it adopted an

objective, rational and valid process

of determining the number of County

Assembly Wards in line with the

mandate imposed by the IEBC Act

on it to resolve outstanding issues

from the first review. The methodology

used by the IEBC in conducting the

first review did not breach of the

Constitution or the Fifth Schedule to

the IEBC Act.

However, the IEBC was duty bound

to ensure public participation in the

process of delimitation. The nature

and extent of that participation was

for the IEBC to determine provided it

was meaningful and gave effect to the

purposes of the Constitution, that is, to

promote accountability, transparency

and good governance.

Giving effect to the principles of

consultation and public participation

meant that the IEBC was to give great

weight to public consensus where

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Kenya Law Reports Bench Bulletin

this was possible. In order to give

effect to this value, the IEBC was

obliged to consider the submissions

made to it and give reasons for its

ultimate decision. It is the giving of

reasons that distinguishes an arbitrary

decision from one that is founded

in law. The IEBC had not properly

discharged its obligation for public

participation and consultation.

It was not fatal for the IEBC to fail to

consult the Attorney General on the

delimitation plan. However, consulting

the Attorney General expresses fidelity

Issue19 | April - June 2012

to the law and could, in the future,

lead to a result that reduces the scope

of litigation.

Costs remained in the court’s

discretion and like all forms of

discretion, it must be exercised

judicially, in light of the particular

facts of the case and giving due

regard to the national values

and principles of governance

set out in the preamble to the

Constitution and Article 10 in

order to achieve the objects of

Article 259(1) on construing the

Constitution. Each of the parties

was to bear their own costs.

In applying its findings in disposing

of the consolidated petitions and

applications, the Court issued

orders for the renaming of certain

wards; the moving of some wards,

locations and sub-locations into other

constituencies; the moving of some

locations into certain wards and for

the amendment of the maps of the

affected constituencies in the IEBC

Final Report and Legal Notice No.14

of 2012 accordingly.

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The High Court has stated that it

would be unlawful for a bank

to increase a commission, late

payment charge or other bank

charge on money owed to it by its

customer on a credit card account

where such an increment does not

have the prior approval of the Minister

for Finance. Citing section 44 of the

Banking Act (Cap. 488) which states

that: “No Institution shall increase

its rate of Banking or other charges

except with the prior approval of

the minister”, the Court observed

that a charge would be illegal or

unlawful if it is not contractual or if

it is against statute. However, as for

the rate of interest, the Court ruled that

because this is a matter to be agreed

contractually between the parties, a

client who knowingly and willingly

enters into a credit agreement which

provides for a repayment at a very

high rate of interest cannot thereafter

complain to the courts that the rate

is irrational or illegal just because

it is exorbitant. This is because, as

the court further observed, the work

of the courts is to give effect to the

agreement between the client and the

bank and not to rewrite it.

The Court made the findings in a case

involving a claim by the Commercial

Bank of Africa against its client and

his guarantor for money owed by the

BANK CHARGES NOT APPROVED BY

THE MINISTER ARE ILLEGAL

Commercial Bank of Africa v Paul

Imison & another [2012] eKLR

High Court at Milimani

Commercial Courts

Justice A. Mabeya

June 5, 2012

By: Michael M. Murungi, Advocate

client on two credit card accounts.

The client had opposed the claim,

arguing that the amount claimed

by the Bank was interest, which

was illegal, unlawful, irrational and

unenforceable. The defendants had

executed a contract based on the

Bank’s standard terms and conditions.

One of these terms was an interest

rate of 3.5% per month on any money

outstanding on the credit cards and an

interest chargeable for late payment.

Following what appeared to a

notification of increment fees

contained in a bank statement, the

total rate of interest had risen to 10%

per month being 5% interest and 6%

interest on late payment. The annual

interest was approximately 132%.

On the complaint that these rates

were exorbitant and illegal, the High

Court stated that the courts are not

there to redraft contracts entered into

by parties howsoever unfavorable

such contracts may look to any of

the parties. Once parties enter into

a contract, the role of the courts is to

give effect to such contracts except

for certain limited instances in which

a court may be justified in making an

intervention. While observing that the

rate of 132% per annum may look not

only exorbitant but out of the ordinary,

the court was satisfied that it was the

rate that the parties had mutually and

freely agreed upon in their contract

and that there was no basis for the

court to interfere with it.

However, this would not apply to

commissions, penalties fees and other

bank charges levied on customers’

accounts. Before a bank can vary

such charges upwards, the court

noted, the Banking Act required the

prior approval of such variation by

the Minister. The provision for a late

payment charge of 3% per month

of the outstanding sum chargeable

daily was a charge and not interest.

According to the evidence presented

to the Court, this rate had been

increased to 7% per month so that in

a space of three months, the amount

claimed by the Bank had increased

by approximately 40.8%. As it turned

out, the monthly late payment fee was

far much higher than the interest.

The court was not satisfied that

there was any ministerial approval

to this increment. On the manner of

establishing the lack of ministerial

approval in evidence, the court stated

that it was not for the client to show

that the charges had been increased

without authority. Rather, once the

client alleged that the charges were

illegal and irregular, the evidentiary

burden shifted to the Bank to justify

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Kenya Law Reports Bench Bulletin

High Court Cases

those charges and to show that it

had obtained the minister’s approval

to increase the late payment charge

from a low of 3% to a high of 6%

per month.

A matter that caused further concern

to the Court was that while in such

claims banks would produce bank

statements to show the amounts that

may have been debited and credited

The adoption of sole use of load

capacity in the assessment of

the load limits of cargo vehicles

is not unlawful, the court has

held. This was held by the High

Court in Nairobi in a judicial review

matter where Kyevaluki Services

Ltd (Exparte Applicant) moved the

court to quash the entire decisions

by the Minister of Roads and Public

Works (1st Respondent) and Kenya

National Highway Authorities (2nd

Respondent).

The application was brought on the

grounds that section 56 of the Traffic

Act Cap 403 Laws of Kenya specified

that any vehicle load on the road was

the one specified by the manufacturer

of the chassis of the vehicle or the load

capacity determined by an inspector

Issue19 | April - June 2012

and therefore enable the court to

determine what charges may have

been levied on the customer’s account,

the Bank in this case was satisfied

with basing its claim merely on some

opening balances as at August, 2006.

It did not produce any bank statements

to show how such balances were

arrived at. The court found that there

was an element of an illegal charge

and that the application of the interest

COURT OKAYS USE OF LOAD CAPACITY IN THE

ASSESSMENT OF THE LOAD LIMITS FOR CARGO

VEHICLES

Republic v Minister of Roads and

Public Works & another Exparte

Kyevaluki Services LTD.

( www.kenyalaw.org)

High Court at Nairobi

Githua CW, J.

May 29 2012

By: Phoebe Ida Ayaya, Advocate

under the Act. The applicant stated

that the 1st and 2nd Respondents

had solely adopted section 56 yet

the system was inconsistent and gave

different vehicle loads at different

weigh bridges and had proceeded

to penalize the applicant for claimed

excess load before any conviction by

a Court of Law.

The applicant also claimed that the

1st and 2nd Respondents’ sole use

of the load capacity determined

by an inspector under the Act was

erroneous, was arrived without the

applicant being heard and was

tantamount to breach of the rules of

natural justice and was oppressive

to the applicant and other members

of the public affected by the said

decision. He also contended that he

of 3.5% per month on the amount

outstanding as from August 2006

was wrong.

However, the court found that parts

of the Bank’s claim against the client

and the guarantor were legal and had

been established by evidence and it

gave judgment in favour of the Bank

on those aspects of its claim.

had suffered substantial irreparable

loss that he would continue to suffer if

the 1st and 2nd Respondents’ decision

was not quashed and a prohibitory

order issued from enforcing the sole

use of the load capacity determined

by an inspector under the Act.

Preliminary objections were raised by

the 2nd respondent to the effect that

the Notice of Motion was defective,

as it had not been made in the Name

of the Republic as per the established

practice in commencing judicial

review proceedings. The issue of

whether the court had jurisdiction to

issue orders of certiorari where no

decision had been annexed to the

application as required by Order 53

Rule 7 of the Civil Procedure Rules

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was also raised.

While opposing the application, the

2nd respondent submitted that it had

acted within the law as empowered

by the Traffic Act when using the

inspectors appointed under section

3 in determining the vehicles load

capacities and executing its statutory

mandate of designing, building

and maintaining national highways

within the Republic of Kenya. It was

also stated that it was erroneous to

determine load capacity of vehicles

by their gross weight as damage

to the road was caused by weight

on axles not gross weight. It was

further submitted that there was

direct connection between damage

and maintenance of roads and axle

loads and emphasis should have been

placed on axle loads, which were

determined by inspectors in order

to serve the wider public interest of

maintaining good roads.

Lastly, the 2nd Respondent averred

that the inspector was an expert who

relied on the caliberation machines

in determining the weight of vehicles

when performing his duties.

In deciding the matter, the court first

dealt with the preliminary objections

raised by the 2nd respondent. It

found on the first objection that it was

misplaced as the applicant’s Notice of

Motion; on the face of it that it was

made in the Name of the Republic as

the applicant thus was not defective

and is properly before the court. The

Judge went on to say that even if the

application was not made in the Name

of the Republic, such omission would

be a matter of form which would not

have gone to the substance of the

application and bore in mind that

the new constitutional dispensation

emphasized on substantive justice as

opposed to procedural technicalities.

It was concluded that such want of

form would not have rendered the

application incompetent or defective.

On the 2nd objection, the applicant

had sought orders of certiorari to

quash decisions allegedly made by

the 1st and 2nd respondent which

adopted the use of a system that

determined load limits of cargo

vehicles by inspectors. Order 53

Rule 7 of the Civil Procedure Rules

provided that any proceedings,

decisions or order or other record

whose validity was challenged must

be in writing. The law required that

a copy thereof verified by affidavit

be lodged with the court’s registrar

before the hearing of the Notice of

Motion perhaps to prove its existence.

A party who failed to avail a copy

of the impugned decision, order,

warrant, commitment, inquisition

or other record to the court before

hearing of the Notice of Motion was

to explain his failure to do so to the

satisfaction of the court. It was held in

this case that the applicant failed to

prove that the respondent had made

any decision detrimental to its interest

that was capable of being investigated

by way of Judicial Review or which

was capable of being quashed by

orders of certiorari and that the

applicant failed to demonstrate that

it was entitled to orders of certiorari

as sought in the Notice of Motion. It

was also clear, the Judge observed,

that in adopting the 2nd method

which was the load capacity to be

determined by an inspector under

the Act by the 2nd respondent as

opposed to the 1st one where a load

greater than the load specified by the

manufacturer on the chassis of the

vehicle was authorized , it did not

make the respondents actions illegal or

unlawful. Equally, the court observed

that there was no evidence to counter

the 2nd respondents position that

the determination of excess vehicle

load was done using machines and

had nothing to do with an individual

inspector's subjective decision. It

found that this destroyed the credibility

of claims by the applicant that the

inspector’s determination of excess

loads in its vehicles had been done

unreasonably or arbitrarily.

The applicant had also sought

orders of mandamus to compel the

respondents to apply the method

of using gross weight shown by

manufacturers on chassis of vehicles

to determine maximum permitted

weight of cargo vehicles. The Judge

noted that the order of mandamus

was not available to the applicant as

prayed because the applicant failed to

show that the respondents had failed

or refused to perform their statutory

duties under the Act to the detriment of

the . On the contrary, Section 56(1) of

the Act had given the 2nd respondent

discretion in deciding which of the two

methods specified therein to use when

executing its mandate of determining

the load capacity of cargo vehicles.

Lastly, the court was urged to issue

orders of prohibition forbidding the

2nd respondent from adopting the

sole use of load capacity determined

by an inspector. On this prayer, the

court held that prohibition orders

looked to future and sought to stop

contemplated decisions which if

made would be contrary to the law.

It noted that if the applicants were of

the view that the respondents were

wrong in adopting the said method

of determining load limits of vehicles,

the court could not issue orders of

prohibition to stop a statutory body

from executing its statutory functions

unless it was established that the said

body planned to violate the rules of

natural justice or act contrary to the

law when performing its statutory

obligations and functions.

In conclusion, the court dismissed with

costs to the 2nd respondent Notice of

Motion dated 16th December 2010

for lack of merit.

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Kenya Law Reports Bench Bulletin

High Court Cases

The Hon. Mr.Justice Issac Lenaola, J.

Samuel Momanyi was employed

by the SDV Transami Kenya Ltd

as a Project Manager where

he had served with dedication

and diligence until his services were

terminated without being heard and

without any lawful reasons being

given for that action. He admitted that

his employment contract provided that

any dispute between the parties would

have been referred to arbitration but

that he had filed a claim before the

Industrial Court which claim was

struck off under Section 45(3) of the

employment Act 2007 as he had only

worked for 11 months and 27 days

with Transami. The Industrial Court

had ruled that Samuel had no lawful

basis for claiming that he had been

unfairly terminated but he argued that

inspite of that ruling, he was entitled

to remedies under the constitution

because his rights and freedoms had

been violated by his employer.

He therefore appealed to the High

Court and prayed for a declaration

that his right to fair labour practices

under Article 41(1) of the Constitution

had been violated by his employer

because he was not accorded a

fair opportunity to be heard on the

allegations resulting in the termination

of his employment and that section

45(3) of the Employment Act was

inconsistent with the provisions of

the Constitution of Kenya particularly

Articles 28, 41 (1), 47,48 and 50

Issue19 | April - June 2012

COURT DECLARES SECTION 45(3) OF THE

EMPLOYMENT ACT UNCONSTITUTIONAL

Samuel G. Momanyi v The Hon.

Attorney General & Another

High Court, Constitutional and

Human Rights Division

Petition No. 341 of 2011

I. Lenaola, J.

May 18, 2012.

By: Emma K. Mwobobia, Advocate

(1). He therefore asked that an order

be issued declaring section 45(3)

of the Employment Act invalid by

reason of its violation of the rights

and fundamental freedoms and the

said ruling be reviewed and set aside.

However, Transami denied that

Samuel was diligent in his duties and

that the termination of his employment

was lawful and warranted. Counsel

submitted that Samuel was given an

opportunity to explain his lackluster

performance prior to the termination

and after a meeting which he

attended, it was decided that he

lacked the capability to perform the

functions entrusted to him and he

was given reasons why his continued

employment was no longer tenable

Various issues emerged during the

hearing among them being whether

the termination of the petitioner’s

employment was in breach of Article

41(1) of the Constitution on the

right to fair labour practices. The

court considered whether it was

properly seized of the matter in the

circumstances given that Article 162

(2) (a) of the Constitution had created

a court (Industrial Court) with the

status of the High Court to determine

disputes relating to employment and

labour relations. However, the High

Court observed that only itself could

have determined whether any statute

or parts of it were in conflict with the

Constitution and that being the case,

it was properly seized of the matter.

Samuel had also argued that section

45(3) was in conflict with Articles 48

and 50 (1) of the Constitution which

guaranteed the rights to access justice

and the right to a fair hearing. It was

his argument that it was discriminatory

of certain kinds of employees and that

only those who had served for over 13

months could have claimed for unfair

termination of their services.

Justice Lenaola observed that the

Employment Act was enacted in

2007 before the enactment of the

2010 Constitution of Kenya and

therefore there was need to align

the provisions of all statutes enacted

prior to it with the said Constitution.

The Judge held that in lieu of Articles

27 and 48 of the Constitution which

guaranteed equality and freedom

from discrimination and the right to

access to justice, there was obvious

discrimination and that Samuel had

been denied equal protection and

equal benefit of the law.

The Judge observed that no

explanation had been given by

either Transami or the Attorney

General as to why a person who

had worked for one year and one

month was the only one who could

have claimed that his employment

had been unfairly terminated and

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that one who had worked for a lesser

period could not have had the benefit

of that claim. Judge Lenaola relied on

Cradle V Attorney General [2006]

eKLR where it was stated that when

considering whether a section of the

law was discriminatory, the court

must have taken into account the

history and Social Economic context

of the legislation, in other words, the

environment in which the legislature

had enacted the statute. The Judge

therefore found that the repealed

Constitution did not have as much a

robust bill of rights as the Constitution

2010 and there was need for all

laws to conform to it. The Judge

further observed that the objects of

the preamble of the Employment Act

2007 could not have been met when

section 45(3) of the same Act was left

to stand in our statute books.

In considering what circumstances

a court could have declared a law

to have been unconstitutional, Judge

Lenaola held that section 45(3) was

unreasonable and had the opposite

of what the object of the Employment

Act was intended to be. The Industrial

Court had labored to show that the

applicant would have otherwise

been heard on his claim but for the

barrier created by section 45(3).

Judge Lenaola thus observed that the

law was oppressive and the Industrial

Court’s hands were tied and therefore

upheld the Constitution and declared

section 45(3) invalid to the extent of

its consistency.

Samuel had also prayed for the

court to declare the ruling by the

industrial Court to have been in

breach of the petitioner’s rights under

the constitution. The judge held that

the matter was moot because once he

had declared that section 45(3) was

unconstitutional, certain consequential

orders had to have followed with

regard to the proceedings before the

industrial court.

However, Justice Lenaola considered

the issue whether the High Court

could have directed the industrial

Court given that a court established

under Article 162 of the Constitution

had the same status as the High

Court. He found that only the High

Court could have interpreted the

constitutionality or otherwise of any

statute or its provisions. He relied

on Brookside Dairy Ltd v Attorney

General, Petition no. 33 of 2011

and agreed with Justice Majanja that

the Industrial Court as a creature of

statute was a court subordinate to the

High Court and that parliament had

no constitutional authority under the

former Constitution to create a court of

equivalent status with the High Court.

Regarding compensation for the

alleged violation of his constitutional

rights, the Judge did not make any

award for reasons that neither

Transami, nor the Attorney General

could have been found to have

deliberately acted to create the

impugned section 45(3) and therefore

to penalize either of them would have

been unfair.

The Judge further found that he had

jurisdiction to issue orders directed at

the Industrial Court without breaching

Article 165(6) of the Constitution

because the industrial Court was not

a superior court as defined by Article

162 (1) of the Constitution.

The court' therefore declared and

issued an order stating that section

45(3) of the Employment Act 2007

was inconsistent with the provisions of

the Constitution of Kenya particularly

Articles 28,41 (1), 47, 48 and 50(1)

as the said section purported to deny

the petitioner the rights and freedoms

enshrined in the said Articles of the

Constitution.

We will not usurp jurisdiction. We will interpret liberty the etent of

our jurisdiction

The Hon. Mr. Justice C.B. Madan

Munene v R (No2) [1978] KLR

page 535, paragraph 15

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Kenya Law Reports Bench Bulletin

High Court Cases

The Hon. Mr. Justice David Amilcar

Shikomera Majanja J.

“Jurisdiction is everything. Without it,

a Court has no power to make one

more step.”

T

he High Court has held that it

has no jurisdiction in matters

arising from the ongoing

vetting process of Judges and

Magistrates. The decision was made

in an application by Peter O. Ngoge,

an advocate of the High Court of

Kenya brought under Order 53 rules

1, 2, 3 of the Civil Procedure Rules,

Section 8 and 9 of the Law Reform

Act and Articles 10, 20, 22, 23,

27, 34, 35, 47, 50 and 159 of the

Constitution.

FACTS

In summary, Mr. Ngoge was

aggrieved by the decision of the

Vetting of Judges and Magistrate’s

Board (“the Board”) given on April

25, 2012 titled “Determinations

Concerning the Judges of the Court

of Appeal” hereinafter referred to as

“the decision.” In the decision, the

Board made certain findings as to the

suitability of the Judges of the Court

of Appeal in terms of section 23 of

the Sixth Schedule to the Constitution.

Mr Ngoge complained that he had

been condemned unheard contrary

to the rules of natural justice as he

was not notified of the hearings

Issue19 | April - June 2012

HIGH COURT’S JURISDICTION UNDER

THE VETTING OF JUDGES AND

MAGISTRATES ACT

Peter O. Ngoge V the Vetting

of Judges and Magistrates

Board and Another

High Court of Kenya at Nairobi

D.S. Majanja J.

May 7, 2012.

By: Njeri Githang’a Kamau.

which were conducted in camera

and he was not given an opportunity

to present or prove his complaints

in violation of Article 10, 22, 34,

35, 47 and 50 of the Constitution.

He also contended that he was

discriminated against contrary to

Article 27 of the Constitution as he

was not mentioned in the decision

as one of the complainants, Mr S. K

Macharia.

Mr Ngoge’s complaint in respect of

violation of his rights was that he filed

various complaints against each judge

of appeal being vetted hence he ought

to have been heard in respect of each

and every complaint and given an

opportunity to review each judge’s

response to his complaint.

He further complained that he was

the subject of an adverse comment

at Part VIII titled “FINDINGS AND

DECISION,” Paragraph 3, page 11

of the Board’s decision where it was

observed that;

“(3) A series of complains in this

regard were made by an Advocate

– whom I shall not name for reasons

of confidentiality…the Board noted

that that particular Advocate had laid

complaints against every judge of the

Court of Appeal, all basically to the

effect that they are unfairly hostile

to him and discriminate against …

clearly, there has been a complete

breakdown of trust and professional

respect between the Advocate

concerned and the judiciary…the

situation calls for intervention by

the Law Society of Kenya (LSK) …

the Board will contact the LSK in this

respect. It is not in a position to make

a finding against the judge in respect

of these complaints.”

Mr Ngoge argued that these remarks

were in reference to him since he

filed complaints against all the Judges

of Appeal. By stating that it would

refer the situation to the Law Society

of Kenya (LSK) for an appropriate

remedy, he asserted that the Board

violated his rights. He urged the

court to intervene and vindicate his

fundamental rights and freedoms as

this reference to him by the Board

affected him negatively in the eyes

of his clients and the public. He

hence urged the Court to grant

leave to commence judicial review

proceedings and for such leave to

operate as a stay of the proceedings

of the Board as he had established

an arguable case to proceed to the

substantive stage. He stated that the

Board had to be guided by the values

of the Constitution and the court could

not allow the Board to violate his

fundamental rights.

The application was opposed on

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the ground that the Court lacked

jurisdiction to intervene in matters

of Board under the Constitution. As

regards whether the proceedings

should be heard in public, counsel

submitted that the section 19(5) of the

VJMA was clear that the proceedings

were private except at the instance

of the judicial officer concerned. On

the whole, it was submitted that there

were no grounds shown to warrant

the Court’s intervention. Counsel for

the Attorney General, concurred with

the brief submissions and added

that the Court could not intervene in

the Boards’ proceedings as this was

barred by section 23 of the Sixth

Schedule to the Constitution.

The decision

The court noted that it had a wide

discretion to allow or reject the

application for leave. The test

was whether the applicant had an

arguable case which could be heard

when the substantive motion was filed.

The matter concerned the vetting of

judges and magistrates which was

carried out pursuant to section 23 of

the Sixth Schedule to the Constitution.

Section 23 (1) provided for the

establishment of the Vetting of Judges

and Magistrates Act, 2011 (VMJA)

and section 23(2) provided; ''(2) A

removal, or a process leading to the

removal of a judge from office by

virtue of the operation of legislation

contemplated under subsection (1)

shall not be subject to question, in, or

review by, any court.''

Pursuant to these provisions, the

court noted that Parliament enacted

the VMJA which came into force

on March 22, 2011. Section 6 of

the VJMA establishes the Board and

section 13 provides for the functions of

the Board as being, ‘to vet judges and

magistrates in accordance with the

provisions of the Constitution and this

Act.’ The court opined that the Board

as constituted therefore exercised a

mandate and function vested in it by

the Constitution and the VJMA.

The court affirmed that the Board had

already completed its work in respect

of the vetting of Court of Appeal

Judges subject to the right of review

under the VJMA. In light of section

23(2) of the Sixth Schedule to the

Constitution, the Board’s decision was

part of a process leading to removal of

a judge and could not be the subject

to question in, or review by, any court.

In substance Mr Ngoge sought to

review the decision of the Board in

so far as it applied to complaints

lodged by him. That, according to

the court, would be a collateral attack

on the Board’s decision and was not

permitted by the Constitution. The

court referred to the case of Dennis

Mogambi Mong’are v Attorney

General and Others Nairobi Petition

No. 146 of 2011, where the court

held that the Sixth Schedule was part

of the Constitution and could not

be challenged on the basis of any

inconsistency with the Constitution.

The court affirmed that the order of

certiorari, if granted, would lead to

quashing the decision of the Board. It

was therefore in conflict with the direct

provisions of the Constitution and in

the circumstances, the proceedings

in so far as they would lead to a reopening

or reconsideration or review

of the Board’s decision or process

leading to the removal of a judge

could not lie in law and were not

permitted by the Constitution.

Though the court concurred with Mr

Ngoge that where there is a breach

of natural justice, the Court must

intervene to correct such a violation,

it noted that the proceedings under the

VJMA were sui generis, the Board was

empowered to regulate its procedure

and in so doing receive complaints.

A challenge to the Board’s procedure

agitated by the applicant would

inevitably lead to questioning the

decision of the Board and would

inevitably breach the wall established

by the Constitution to protect the

decisions and process of the Board.

As regards the comments made by

the Board in reference to an unnamed

advocate, the court pointed out that

it took into account the values of

the Constitution and the rights of

the unnamed person in declining to

name the person referred to. There

was hence no infringement of the

applicant’s rights in the case, it stated.

If the applicant was aggrieved by the

fact that he was the unnamed person

condemned, he had to await action

by the LSK on the issue referred to it.

It was at that stage that Mr Ngoge, if

he was the subject of the consideration

by the LSK, would have all the rights

to a fair hearing accorded to him, the

court held.

Finally on the issue of orders of

prohibition and mandamus against the

provisions of the VJMA that excluded

the public from hearings of the Board,

the court opined that the provisions

for confidentiality were intended to

protect the inherent dignity of judges

and magistrates accorded to them by

the Constitution. The court was not

permitted, directly or indirectly, from

proceeding with the inquiry.

In conclusion the court found that

to allow the application in the

circumstances of the case would

be to circumvent the constitutional

prohibition inherent in section 23(2) of

the Sixth Schedule to the Constitution.

Hence, the court had no jurisdiction to

embark on the inquiry suggested by

the applicant.

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Kenya Law Reports Bench Bulletin

High Court Cases

T

he High Court (M. Warsame,

C. Githua & W. Korir, JJ.)

has ruled that applications

for judicial review ought to

be made promptly, and whoever

wished to challenge the action of a

public body is therefore expected

to move to court promptly once the

decision being challenged is made.

Although undue and inordinate delay

in applying for judicial review is a

major factor for consideration by

the court in deciding whether or not

to grant judicial review remedies,

the three-judge bench observed that

even where an application disclosed

meritorious grounds for the grant of

judicial review orders, the application

could be rejected if there is evidence

that the person seeking the orders sat

on his rights and failed to seek relief

in good time and with due diligence.

Facts

The facts of the case were that the Kenya

National Commission on Human

Rights (hereinafter the Respondent)

in its report entitled “On the Brink of

Precipice: A Human Rights Account

of Kenya’s Post Election Violence”

(hereinafter the Report) named the

Hon. William Ruto (hereinafter the

Applicant) as an alleged planner,

financier and perpetrator of the postelection

violence. From the evidence

adduced in court, it was clear that

the applicant was called during the

investigations to present his views

on the post-election violence and he

Issue19 | April - June 2012

COURT DISMISSES CHALLENGE AGAINST

THE P.E.V. REPORT BY HUMAN

RIGHTS BODY

Republic v Kenya National Commission

on Human Rights ex parte

Hon. William Ruto [2012] eKLR

JR Misc. Application No. 647 of 2009

High Court at Nairobi

M. Warsame, C. Githua &

W. Korir, JJ.

May 4, 2012

By: Nelson K. Tunoi, Advocate

actually presented his views to the

Commission. The evidence further

showed that the report was distributed

far and wide and had received

extensive media coverage.

The applicant sought judicial review

orders of certiorari against the

respondent to quash the decision

of the respondent made in its report

that the applicant participated and

was involved by way of planning,

inciting, meeting and financing the

post-election violence. It was the

applicant’s case that the respondent

had breached the rules of natural

justice by naming him as a planner,

financier and perpetrator of the postelection

violence without giving him

an opportunity to be heard, and

further that the respondent violated his

legitimate expectation that he would

be heard before being condemned

hence denied the right to be presumed

innocent unless adjudged otherwise

by a competent court and thereby

injuring his image and reputation.

The applicant further challenged

the jurisdiction of the respondent

in making such adverse findings

against him without affording him an

opportunity to be heard and that the

respondent’s report was unreasonable

as it applied double standards in its

investigations by giving other people

an opportunity to be heard while

denying him such a right.

Conversely, it was the respondent’s

case that it did not make any decision

known to the law but only made

recommendations and there was

therefore no decision to be quashed

by way of judicial review. Further, the

respondent contended that the report

was made in conformity with the

Commission’s mandate and statutory

obligations, that it acted fairly and

without discrimination against the

applicant, and that the applicant’s

application was statute barred.

The respondent further submitted

that public interest demanded that

the Commission’s documents, the

character and scope of the human

rights violations that occurred

during the post-election violence,

the anonymity of the witnesses and

non-disclosure of information was

paramount in the circumstances. The

respondent argued that the applicant

would have an opportunity to confront

the evidence gathered if he were to

face criminal charges.

Principal issues for determination

The key issues for determination by the

court were, among others, whether the

report amounts to a decision which

can be challenged by way of judicial

review; whether the delay in filing the

instant proceedings violated the six (6)

months rule prescribed under section

9 of the Law Reform Act and Order

53 of the Civil Procedure Rules; and

whether the respondent in preparing

the report violated the applicant’s

rights.

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With regards to jurisdiction of the

court vis-à-vis section 33 of the Kenya

National Commission on Human

Rights Act [No. 9 of 2002 (now

repealed)], the court observed that

the respondent being a statutory body

fell under the supervisory jurisdiction

of the court, and as such, public

bodies need the monitoring of the

courts through supervisory jurisdiction

exercise and granting appropriate

judicial review remedies where

appropriate, lest they injure citizens

and abuse their rights in the guise of

performing statutory obligations and/

or administrative functions.

On the issue whether the respondent

made any deliberate act with some

specificity against the applicant, the

court ruled that there was a clear and

specific finding in the report by the

respondent and there was no doubt

that it was adverse to the applicant,

it affected his rights and therefore the

report amounted to a decision which

was acquiescent to judicial review.

The court in weighing the rules

of natural justice vis-à-vis public

interest observed that the prevailing

"..so the trust if there be any, must

either be implied by the law, or

presumed by the court. There is one

good, general and infallible rule

that goes to both these kinds of trust;

it is such a general rule as never

deceives; a general rule to which

there is no exception, and that is this;

circumstances did not permit the

respondent to comply strictly with

the rules of natural justice. The court

thus ruled that the respondent was

not obligated to hear all the persons

mentioned in the report since this

would have endangered their source

of information and would have been

prejudicial to the recommended

further investigation by the relevant

Government Agencies.

Regarding the issue whether the

applicant’s application for judicial

review orders was statute barred,

counsel for the respondent submitted

that the applicant’s application was

barred by the operation of the law

since the application was filed over

fifteen (15) months after the report was

unveiled in August, 2008. Conversely,

counsel for the applicant argued that

time should start running from 17th July,

2009 being the date of the re-launch

of the report and not August 2008.

In the alternative, counsel submitted

that the application was not statute

barred since the report was not a

judgment, order, decree, conviction or

other proceedings and was therefore

not subject to the six months rule. The

HIGH COURT DECLINES TO IMPLY THE EXISTENCE

OF A TRUST IN A SALE AGREEMENT

Samuel Njuguna Kimemia v

Rose Mgeni Mtwana (2012)eKLR.

High Court of Kenya, at Mombasa

R.M. Mwongo J.

April 30, 2012.

November 28, 2011.

By: Emma Kinya Mwobobia, Advocate

the law never implies, the court never

presumes a trust but in the case of

absolute necessity."

T

he High Court sitting in

Mombasa has ruled that a mere

allegation of a trust cannot

create one and therefore, courts

court noted that whatever had been

said about the applicant in the report

had not changed with the re-launch,

and therefore it was not possible to

quash the re-launched report and

leave the original report unveiled in

August, 2008 intact. The application

by the applicant was therefore filed

late in time and no reasonable

explanation was offered for the

inordinate delay. The court stated

thus, “The applicant was supposed

to file his application within six (6)

months from the date the report was

unveiled… the report was covered by

the six (6) months rule in that though it

is not a judgment, decree, conviction

or order it is covered in the category

of other proceedings.” Therefore the

applicant failed to move to court with

sufficient speed to protect his rights

and the orders sought could not issue

since they would be of no useful

purpose to the applicant.

Mr Katwa Kigen appeared for the

applicant while the respondent

was represented by Mr. Pheroze

Nowrojee.

will not imply a trust save in order

to give effect to the intentions of the

parties and such intention must be

clearly determined beforehand.

This dispute related to a suit property

under the "house without land"

system which was a land system or

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phenomenon mostly in the Coast.

According to justice Mwongo, Judicial

notice has long been taken of this

strange system in the coast, and there

has been substantial case law on it.

However, scholarship and legislation

has lagged behind on this issue.

In summary, Samuel Kimemia had a

relationship with Rose Mtwana who

alleged that they were married under

Kikuyu customary law and that there

was a child born of the union, a

statement Kimemia denied. However,

there neither was evidence of dowry

paid to prove the existence of the

marriage nor were there documents

produced at the trial evidencing the

birth or existence of the child. The

parties had a disagreement when

Kimemia’s wife came to visit him at the

coast and a dispute ensued between

Kimemia, the wife and Rose and

which was the genesis of this dispute.

During the course of their relationship,

Kimemia and Rose had entered into a

sale agreement to purchase a house

which they jointly owned according

to the sale agreement. In her defence,

Rose alleged that she had contributed

to the purchase and renovation of

the property. However, the evidence

adduced in court indisputably showed

that the entire purchase price had

been raised by Kimemia. Although

it was alleged that both parties

participated in the renovations, it

was clear from the evidence adduced

before court that Kimemia bore the

lion’s share of the financial burden of

the renovations.

The main issues before court therefore

were whether Kimemia and Rose

were Husband and wife at the time

of purchase and whether Rose held

half a share in the suit property in trust

for Kimemia.

After reviewing submissions from

the rival parties, the court observed

that although it was apparent that

the parties were in a relationship, it

was on record that they had never

cohabited. Justice Mwongo therefore

found that Rose, by any definition

was not a wife to Kimemia although

there seemed to have been a close

Issue19 | April - June 2012

relationship deep enough to draw

out the jealousness of a spurned lover

when Kimemia’s wife came to visit

him. The judge held that if there was

cohabitation at all, it had not been

shown to have been continuous as

there was little evidence of the things

they had done jointly other than the

purchase of the suit property.

The allegation by Kimemia which was

consequently denied in the defence

was that during earlier discussions

concerning the suit property , it had

been agreed between the two that

the suit property would have been

conveyed into their joint names

although Kimemia would solely have

contributed to the purchase price.

Kimemia had further indicated that

Rose’s name would only have been

included as a purchaser since she

had misrepresented information and

told him that he could not have been

allowed to own property in that area

because he was not a local person but

from upcountry and further that she

would hold the half share of the suit

property on trust for the sole benefit

of Kimemia.

After perusal of the sale agreement,

the judge found that the agreement

identified Kimemia and Rose as joint

purchasers of one part and further,

that there was no indication in the

agreement or in any other writing or

communication between the parties

to have suggested that Rose’s name

was to have featured in the agreement

on any condition or subject to any

trust or other understanding. Justice

Mwongo also observed that even

subsequent actions of the parties had

not evinced any intention on the part

of Kimemia that Rose’s inclusion in the

purchase was done on trust for him. It

was not until the parties had fallen out

and criminal proceedings had been

instituted that the issue arose.

According to the court, the burden of

proof was on Kimemia to have proven

the existence of a trust and therefore

a mere allegation of its existence

could not have created one. The

court further observed that it was trite

law that a trust, by definition, arose

when a donor reposed confidence in

a person who was termed a trustee,

for the benefit of another who was

called a cestui que trust, respecting

property which was held by the

trustee for the benefit of thecestui que

trust. It further held that nothing in the

purchase transaction had manifested

any intention on the part of Kimemia

that Rose should have held a share

of the property for him or anyone

else. While relying on the case of

Mbothi & 8 Others v Waitimu and 11

Others [1986]KLR 171, the court held

that courts would not have implied

a trust save in order to have given

effect to the intentions of the parties

and such intention must have been

clearly determined beforehand. The

judge therefore found that Rose was

not holding any part of the property

as a trustee for Kimemia and further

that no shares had been distinguished

in the agreement and none were

distinguishable in interpretation.

Having found that no trust had been

proved, the judge concluded that

the inclusion of Rose’s name as a

purchaser was purely gratuitous

on the part of Kimemia and having

done so, he could not have reversed

the proffered gift and obtained an

injunction to have prevented Rose

from enjoying the same. Similarly,

having proffered the gift, Kimemia

could not have obtained a court

cancellation of Rose’s name from the

landlord’s records in the absence of

a contractual pre-condition, except

with her consent. She was a proprietor

of that which had been proffered to

her. However, the judge dismissed the

issue of misrepresentation by Rose to

Kimemia that she had to have been

included in the purchase as a local

person because Kimemia was not

from that area and added that there

was no evidence which had been led

by Kimemia to have proven this point.

The court in deciding whether

Kimemia was entitled to an account

of rent collected from the suit property,

ordered that Kimemia be given an

account of all income that had been

received and the true expenses that

had been reasonably paid out from

2009 to present by Rose. It further

held that rent was a right to each

joint owner of the suit property and

Kimemia was entitled to a share

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thereof.

In conclusion, the court ordered for

the parties to agree on the extent of

each party’s share in the rent earned

T

he High Court has stated that

the Registrar of Titles has no

power to revoke a land title,

reiterating that the validity

of a title document can only be

pronounced by a court of law. The

Judicial Review Division of the Court

observed that it was immaterial that

the title to land was acquired through

illegal means as the due process of

the well established mechanisms had

to be followed as well enumerated

in section 60 of the Registration of

Titles Act (now repealed by the Land

Registration Act, No. 3 of 2012).

The holding arose from the

administrative decision of the Registrar

of Titles (1st respondent) to revoke

the applicant’s title to the suit land

based on the recommendations

of the Commission of Inquiry into

Illegal/Irregular Allocation of Public

Land (commonly referred to as the

Ndungu Commission/Report), the

4th respondent in this case. Other

respondents in this case were the

Kenya Anti-Corruption Commission

(2 nd respondent) and the Kenya

Agricultural Research Institute (3 rd

respondent). The applicant, Major

(Rtd) Dedan Njuguna Gichuru sought

judicial review orders of certiorari to

quash the decision by the Registrar

by the property and that failing

agreement, the court would allow the

parties to make submissions before

it on the extent of their respective

REVOCATION OF LAND TITLE BY REGISTRAR

OF TITLES ILLEGAL

Republic v Registrar of Titles – Nairobi

Registry & 3 others [2012] eKLR

Judicial Review Case

No. Elc. 19 of 2011

High Court of Kenya at Nairobi

Weldon, K. Korir, J.

April 24, 2012

By: Nelson K. Tunoi, Advocate

of Titles (1st Respondent) to revoke

the applicant’s title to land through

gazettement. The applicant further

sought orders of certiorari to quash

the recommendations of the Ndungu

Commission and the further orders

prohibiting the respondents from

registering any documents adverse

to the interests of the applicant or

interfering with the applicant’s title

and possession of the suit property.

The genesis of the case arose earlier

in 2004 when the 4th respondent

released a report concluding that

the applicant had been irregularly

allocated the subject land and

recommended that the same be

revoked. On this basis the 1st

respondent published a Gazette

Notice declaring the said allocation

illegal and irregular and revoked the

applicant’s title to the subject land

among others. However, the Gazette

Notice only disclosed that the land in

question had been reserved for the 3rd

respondent and had failed to show

under which law the 1st respondent

had exercised the power to revoke

the applicant’s title. Therefore, it

was the applicant’s case that the 1st

respondent had no power to revoke

his title. Conversely, the respondents

contended that the applicant’s title

percentage interest in the suit property

including detailed submissions on the

rental income and expenses.

was not valid title since it had been

irregularly allocated to him and thus

did not have good title which could be

protected by way of judicial review.

Therefore they contended that the

action of the 1st respondent was

justified in the name of public interest.

The issues raised in the matter for

determination by the court included

whether the 1 st respondent acted

ultra vires by revoking the applicant’s

title; whether the issue of “public

interest” could be raised outside the

provisions of the law; and whether the

applicant was entitled to the reliefs

sought. Justice Weldon Korir first

observed that public interest cannot

be addressed outside the provisions of

the law simply because however much

a view is popular but not entrenched

in the laws by Parliament, then the

same cannot be elevated to the same

status with the law. The judge then

proceeded to hold that although

the action of the 1 st respondent as

argued was deemed to be in the

public interest, the courts could not

be allowed to be used as a cleansing

mechanism by those who unlawfully or

irregularly acquire public land.

Regarding the issue whether the 1 st

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High Court Cases

respondent acted within the confines

of the law, the judge cited section 60

of the Registration of Titles Act (now

repealed) observed that the Registrar

did not have absolute power to revoke

the applicant’s title and had failed to

apply the available legal mechanisms

in revoking the applicant’s title. Even

if he had powers, the judge assumed,

the 1st respondent’s decision would

still not have met the rules of natural

justice threshold. The applicant was

not accorded an opportunity to

explain how he acquired the subject

land hence the decision would still

have been invalidated. The court ruled

that only a court of law had the power

The High Court has held that

one cannot claim for alleged

violation of right under the

current Constitution in respect

of violations that allegedly occurred

prior to its promulgation. This was

in a petition which arose out of

a photograph taken at what the

petitioners referred to as a “fun day”

that was held in Nairobi where the

petitioners, a mother and daughter,

claimed that they were aggrieved

by the publication of the photograph

and asserted that it had violated their

rights by revealing their HIV status

without their consent. They further

stated that their right to privacy,

equality, before the law and nondiscrimination

guaranteed by the

Constitution of Kenya, 2010 had

Issue19 | April - June 2012

to pronounce the validity of a title.

The issue of inordinate delay in filing

the application was raised by the

respondents and it was argued that the

application was filed almost six years

after the report by the 4th respondent

was published hence contravening

6 months rule under section 9 (3) of

the Law Reform Act and Order 53

Rule 2 of the Civil Procedure Rules.

Although the applicant contended that

the rule was only applicable to court

proceedings, the court observed that

“where an applicant comes to court

too late in the day the court should

not exercise its discretion in favour of

such an applicant. It is imperative for

HIGH COURT REJECTS PLEA FOR RETROSPECTIVE

APPLICATION OF THE CONSTITUTION

B.A ( Suing through the mother

as next friend) v D.A.O

High Court at Nairobi

Constitutional Petition No. 48 of 2011

Mumbi Ngugi J.

April 20, 2012

By: Monica Achode, Advocate

been violated by such publication.

They therefore sought orders declaring

that the respondent’s publication had

violated the petitioner’s right to human

dignity and the right to privacy and

that the publication had threatened

the petitioner’s right to equality before

the law.

The 2 nd and 3 rd respondents had

organized a “fun day” for children

from various children’s homes and

the 2 nd petitioner had been asked to

permit her daughter the 1st petitioner

to attend the fun day which she

did. However, the 2 nd petitioner

averred that later on, the respondents

published an article with a photograph

of the 1st petitioner together with other

children carrying foodstuff’s including

any applicant to know the decision

being challenged does not only affect

the applicant but other parties too

and those other parties may have

acted on the decision.” Therefore the

court cannot come to the aid of such

indolent party.

Regarding the other prayer sought

by the applicant on prohibiting the

respondents from interfering with

the suit property in any way, the

court declined to issue the order on

grounds that the same would imply

that the applicant acquired the land

legally, which issue the court had not

inquired about.

the names of her daughter.

The petitioner alleged that the

publication had caused her anxiety,

depression and psychological trauma

and that she had lost friends as a

result. Counsel for the petitioner

submitted that since the 2 nd respondent

was known locally and internationally

as a home that took care of HIV

positive children, the publication of the

photograph had therefore identified

and disclosed unlawfully the health

status of the petitioners. He further

argued that the constitutional rights

which included the right to privacy and

equal protection of the law which was

also provided under the HIV and AIDS

Act had been violated. In addition,

the petitioners argued that the 3 rd

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respondents could have been sued in

its own name since it was a charitable

institution under the Children’s Act

which provided care for children

with HIV. The counsel also submitted

that Article 2 of the Constitution had

imposed an obligation on all person’s

to observe its provision’s on protection

of fundamental rights and these

provisions were enforceable against

both individuals and corporations.

Additionally, he submitted that the

term “persons” under the Constitution

referred to both corporate and

unincorporated entities and therefore

even though the 3rd respondent was

an unincorporated entity, it was a

person with a duty to observe the

human rights of others.

However, the 1 st respondent, denied

that the photograph had revealed the

HIV status of the petitioners or any

health status whatsoever and that at

no time had it interviewed the 2 nd or

3 rd respondent with regard to the HIV

status of the petitioners. Counsel for

the 1st respondent submitted that there

was no evidence from the petitioners

to show that the programme by the

2 nd respondents catered only for HIV

positive children and even if that

was the case, the journalist who had

covered the event had no idea of the

medical status of the petitioners. It

could therefore not have been said

that the effect of the publication was

to have disclosed a status not known

about. With regard to the petitioner’s

reliance on the provisions of the HIV

Act, he submitted that no test had been

disclosed and the sole aspect relied on

was the association of the child with

the Children’s home.

Counsel for the 2 nd and 3 rd respondent

added that the 3 rd respondent was

an outreach programme of the 2nd

respondent and therefore did not

exist as a legal entity capable of

being sued.

The issues for determination in this

case were whether the 3rd respondent

was capable of being sued in its own

name; whether the respondents were

bound by the bill of rights; whether

the petitioners could have claimed

for the violation of constitutional rights

under the new constitution in respect

of violations that occurred prior to

its promulgation and whether the

respondents violated the petitioners’

rights and fundamental freedoms as

alleged.

Justice Mumbi Ngugi held that from

the pleadings before the High Court,

the 3rd respondent did not appear to

be a ‘person’ even within the wide

definition provided by Article 260 of

the Constitution. She observed that

the 3rd respondent was a part of the

2nd respondent and the enforcement

of any orders of the court in the matter

would have clearly been against

the 2nd respondent who was the

incorporated entity. The judge further

observed that even in allowing for a

wide definition of the term ‘person’

in the Constitution, the joinder of

the 3rd respondent was superfluous

as the 3rd respondent who was an

outreach programme did not exist

independently of the 2nd respondent.

The judge found that the Constitution

had contemplated both vertical and

horizontal application of the bill of

rights and that it was not just the state

which was under the obligation to

observe and respect human rights.

She stated that the Constitution

required that all persons as well as

the state to respect its provisions

generally and the provisions of the bill

of rights in particular. Justice Ngugi

thus held that these provisions of the

Constitution read together with the

definition of ‘person’ in Article 260

had made it clear that the provisions

of the bill of rights had intended to

have been binding on all persons

whether neutral or legal, incorporated

or unincorporated.

On the issue of retrospective

application of the Constitution, the

judge held that the petitioners could

not have claimed for the alleged

violation of rights under the current

Constitution in respect of violations

that had allegedly occurred prior to

its promulgation. The judge relied on

the case of Joseph Ihuo Mwaura &

82 others v Attorney General Petition

No. 498 of 2009 where Majanja

J. observed that “the Constitution

promulgated in August 2010 was

not retrospective hence its provisions

would not have applied to matters

that had occurred before the effective

date of the Constitution and unless

otherwise provided, the provisions

of the Constitution 2010 could not

have governed maters that were done

under a different legal regime.” Judge

Ngugi further stated that had the act

complained of in this petition resulted

in violation of a continuing nature,

then it would have been possible

to have considered the petition

against the provisions of the current

Constitution which was not the case

and therefore the petitioner’s claim in

respect of the rights protected under

Article 28 and 31 of the Constitution

had to fail.

With regard to non-discrimination and

equality before the law, judge Ngugi

observed that there was nothing in

the photographs or the captions that

would have even remotely suggested

the health status of the children.

Indeed, there was nothing in the

photograph that indicated what the

2 nd and 3 rd respondent were about

and the submission by counsel for

the petitioner that the 2 nd and 3rd

respondents were known nationally

and internationally as institutions

that care for children with HIV was

not borne out by the pleadings,

submissions or evidence before the

court.

The Court therefore found no merit in

the petition and dismissed it with no

order as to costs.

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The High Court has stated that it

was legal for a foreign company

to sign a lease agreement even

though at the time the company

had not filed its registration documents

with the Registrar of Companies. The

issue of non-compliance with the Act

was one to which the company’s

officers and agents were liable to

a fine, which was a matter for the

Registrar of Companies to pursue

though the criminal justice system,

and it was a separate matter from

the legal capacity of the company to

sign the lease agreement or to file a

claim in court.

The Court was giving a ruling in a

case in which a company registered in

Mauritius was running its business in

Kenya through a local subsidiary, and

before it had obtained a certificate

of compliance from the Registrar of

Companies, it entered into a lease

agreement in its own name under a

contract executed with the facilitation

of the local company.

Under sections 365 and 366 of the

Companies Act (Cap. 486), a foreign

company is not to be deemed to

have a place of business in Kenya

Issue19 | April - June 2012

POWER OF A NON-REGISTERED FOREIGN

COMPANY TO ENTER INTO A CONTRACT

PNTC Worldwide PVT Ltd v Sun Palm

Management Ltd & another

[2012] eKLR

High Court at Mombasa

Justice J.W. Mwera

March 23, 2012

By: Michael M. Murungi, Advocate

merely because it is doing business

through an agent in Kenya at the

place of business of the agent. The

Act requires that foreign companies

that establish a place of business in

Kenya should deliver to the Registrar

of Companies certain documents

relating to the establishment of the

company within thirty days. These

documents include the company’s

charter or memorandum, its directors

and secretary, the name and

address of a Kenyan contact and

the company’s principal office. Once

these documents have been presented

to the satisfaction of the Registrar, the

company is issued with a certificate

of compliance. Where a foreign

company fails to comply with these

provisions, the law provides for the

payment of a fine by every officer or

agent of the company who willfully or

knowingly allows that default.

In a dispute relating to the lease

agreement, it was argued that because

the company had not complied with

section 366 of the Companies Act,

it had no legal personality and

therefore it had no capacity to enter

into any legally enforceable contracts

in Kenya, much less to sue in court

to enforce such a contract. The High

Court found no merit in this argument,

stating that what the parties did

between them remained valid or

invalid according to the legal regime

they were operating under, and this

was aside from the issue of noncompliance

with the Act which was a

matter for the Registrar of Companies

of take action against.

As Judge J. Mwera observed, there was

no doubt that by the time the company

filed its certificate of compliance it had

not established a place of business

in Kenya. It was a foreign company

but it ran its operations/business

through Stephanies Beach Ltd, a

local company. This fell within the

provisions of section 365 (2) of the

Companies Act. What the company

did or executed at the offices of its

local agent was lawful and valid.

Apart from the lease agreement, the

court had not been shown any other

activity by the company that ought to

have been invalidated on the ground

that it was foreign company that had

not complied with section 366 of the

Companies Act.

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“…although past judicial thinking

alluded to the conventional wisdom

that many heads are better than one,

or to the fact that the subject matter

was such as could not escape arousing

public interest, recent court decisions

have taken a different approach in

interpreting the requirements of Article

165 (4) of the Constitution with regard

to what a ‘substantial question of law’

that merits reference to a three-judgebench

means.”

T

he High Court has ruled

that not all issues that raise

substantial question of law with

regard to constitutional rights

automatically merit hearing by an

uneven number of judges.

In dismissing the application, Lady

Justice Mumbi Ngugi held that the

issues arising in the instant application

could be adequately dealt with by

a single judge and observed that in

the event that any party to the matter

was not satisfied with the decision of

the single judge, the appeal process

was open in which a bench of three

appellate judges would consider

the matter and further appeal to the

Supreme Court if needed be.

The petitioner, Gilbert Mwangi

Njuguna, had filed a petition alleging

violation of his fundamental rights

under sections 71, 73, 74, 75, 77,

REFERENCE FOR CONSTITUTION OF A

THREE-JUDGE BENCH DISCRETIONARY,

COURT RULES

Gilbert Mwangi Njuguna v Attorney

General [2012] eKLR

Petition No. 267 of 2009

High Court of Kenya at Nairobi

Mumbi Ngugi, J.

March 16, 2012

By: Nelson K. Tunoi, Advocate

82 and 84 of the former Constitution

that arose with regard to his removal

from his position as a magistrate.

Amongst the orders that the petitioner

sought included an order that the file

be referred to the Chief Justice for

purposes of constituting a three-judgebench

to hear the petition.

Ms. Mwangi representing the

petitioner made reference to an article

by former Chief Justice F. K. Apaloo

carried in the Nairobi Law Monthly

(January, 1995) on the circumstances

in which the Chief Justice should

appoint a three-judge-bench to hear

a matter under section 84 of the

former Constitution as being where

complex issues of determinations

of constitutional issues are raised.

She further relied on the case of

Samuel Kamau Macharia & another

v. Attorney General & another [2000]

eKLR in which the former Chief Justice

Bernard Chunga while appointing a

three-judge-bench set out the matters

to be considered in appointing a

three-judge-bench, among them that

the motion seeking the referral should

not be frivolous and must raise matters

of considerable complexity and

gravity in relation to the interpretation

of the Constitution.

Ms. Mwangi submitted that the issues

raised by the petitioner needed to

be considered by more than one

judge as they included a challenge

of the manner in which the former

Judicial Service Commission (JSC)

had terminated the petitioner’s

employment. Further, the petitioner

argued that the matter touched on

a critical issue of the nature and

scope of judicial independence both

under the former and the current

Constitutions.

The petitioner contended that the

petition therefore raised serious

constitutional issues which were not

just complex but of public interest too,

and which warranted the reference

of the file to the Chief Justice for

the constitution of a three-judgebench

to hear the petition. Counsel

submitted that the considerations for

appointment of a three-judge-bench

were now set out under Article 165

(4) of the Constitution which provided

that;

“Any matter certified by the court as

raising a substantial question of law

under clause (3) (b) or (d) of shall be

heard by an uneven number of judges,

being not less than three, assigned by

the Chief Justice.”

There was no representation for

the State at the hearing and no

submissions were filed on its behalf.

In dismissing the application, Lady

Justice Mumbi Ngugi observed that

although past judicial thinking alluded

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High Court Cases

to the conventional wisdom that many

heads are better than one - as opined

by the then Chief Justice Apaloo - or

to the fact that the subject matter was

such as could not escape arousing

public interest, recent court decisions

have taken a different approach in

interpreting the requirements of Article

165 (4) of the Constitution with regard

to what a ‘substantial question of law’

that merits reference to such a bench

means. The court made reference to

the case of Community Advocacy

Awareness Trust & others v Attorney

General & others [2012] eKLR where

the High Court (Majanja, J.) observed:

“The Constitution of Kenya does

not define, ‘substantial question of

law.’ It is left to the individual judge

A

widow has a right, just

like that of her in-laws, to

bury the remains of her

husband, the High Court

has ruled. Justice Mshila held that a

widow's right to bury the remains of

her husband were provided for and

protected by Article 27 (3) and (4)

of the Constitution, in that a widow

should not be discriminated upon by

cultural practices.

Article 27(3) and (4) of the

Constitution gives both women and

men the right to equal opportunities

in cultural and social spheres and

also provides that there should be no

discrimination directly or indirectly

Issue19 | April - June 2012

to satisfy himself or herself that the

matter is substantial to the extent that

it warrants reference to the Chief

Justice to appoint an uneven number

of judges not being less than three to

determine a matter.”

The Court in the Community Advocacy

Awareness Trust case further observed

that in view of the fact that the new

Constitution had an expanded Bill of

Rights,

“every question concerning the

interpretation of the Constitution

would be a substantial question of

law as it is a matter of public interest,

affects the rights of the parties, is fairly

novel and has not been the subject of

pronouncement by the highest court.”

WIDOWS HAVE A RIGHT TO BURY THEIR

HUSBANDS IN THEIR ESTABLISHED

HOMES "BOMA"

Lucy Kemboi v Cleti Kurgat &

5 Others (2012)

eKLR www.Kenyalaw.org

A Mshila. J

High Court, Eldoret

March 13,2012.

By: Andrew Halonyere, Advocate

against any person on any ground.

Lucy Kemboi brought a suit against

her in-laws ,the defendants herein,

seeking inter-alia authority to arrange

for the collection, burial and interment

of the body of her husband the late

Ambrose Kipkoech Kurgat at their

matrimonial home at Kamariny, Keiyo

Marakwet County, on such reasonable

time as she may determine, with

liberty to the defendants to participate

at their discretion.

According to Lucy, the deceased

was her husband and after he had

passed on her In-laws held meetings

and made funeral arrangements

without involving her nor her children.

The court noted that the circumstances

would defeat the objective of the

expeditious justice as outlined under

Article 159 (2) (b) of the Constitution,

providing that justice shall not be

delayed, and therefore the court

should consider each case on its merits

and determine whether a particular

matter ought to be referred to the

Chief Justice for constitution of a three

judge bench to hear it.

In finding that the issues raised by

the petitioner could be adequately

dealt with by a single judge, the High

Court declined to refer the matter to

the Chief Justice for constitution of a

bench of an uneven number of judges.

The meetings were held at her late

husband's step- mother's house and

she was not afforded any hearing

and was only given information as

to what had been decided. Lucy

submitted that she only got to know

that her in-laws intended to bury the

deceased next to the grave of his

late father through a defence filed by

her in-laws after she had filed a suit

in the Chief Magistrates Court. She

also submitted that her late husband

had a homestead and that she had

constructed a house thereat together

with her late husband. She stated that

the homestead and house were located

on a parcel of land, which piece of

land was demarcated and given to

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her late husband by the deceased's

late father and that it was upon that

portion of land that she wanted to

inter her late husband's remains. Lucy

further submitted that whereas her inlaws

wanted to inter the remains at a

grave site set apart by her late father

in-law as a family graveyard, the said

site was approximately two hundred

(200) metres from her homestead

and therefore she should have been

allowed to bury her late husband at

the right place where she had built a

house and established a homestead.

In support of her case, Lucy called a

Keiyo elder to testify on her behalf

on Keiyo customs. It was the elder's

evidence that according to Keiyo

customs, meetings for such funeral

arrangements had to be held at the

house of the deceased in consultation

with the deceased's widow and

children and that it was the practice

that a married man had to be buried

in his "Boma" and that it was the

clan elders who decided where a

deceased person was supposed to

be buried.

The defendants (in-laws) on their part

submitted that their late father had

set apart, aportion of the land as a

graveyard, arguing that the burial

site was outside the "Boma" of their

late father and that their late father's

remains, their mother's, their sister's

and grandmother had been interred

on that piece of land. The defendants

also submitted that the alleged house

built by Lucy and their late brother,

was built for purposes of hosting

their daughter's wedding, otherwise

the deceased had a rented room in a

place called Chembulet and carried

on a business of a bar.

The defendants further submitted that

Lucy lived in a rented house in Iten

and that she never slept in their home

built in Kamariny. They stated that Lucy

would attend the funeral meetings and

would retire to her house in Iten after

the meetings. It was their contention

that the deceased had not been shown

any portion of land by their late father

but he had gone ahead and built the

house on the portion. The defendants

further submitted that their father's

estate had not been distributed and

that the site of the deceased's house

might not have been the deceased's

allotment upon distribution. They also

testified that one of their late brother

was buried on a piece of land that

he had been given by their late

father and that he had established

his home on that piece of land,

hence his being interred there. The

defendants therefore asked the court

that they should be allowed to inter

the deceased at the family graveyard.

The High Court after hearing rivalry

submissions considered inter-alia, who

should actually bury the deceased and

where had the deceased established

a home.

It was the Court's view that though

Keiyo customary law was applicable

and that under the said customary law

the clan together with the deceased

brothers were responsible for the

burial of the deceased, Lucy having

been married to the deceased had a

right derived from written law to bury

the deceased.

The Court further was of the view that

the rights of Lucy were provided for

and protected by the Constitution, in

that Lucy should not be discriminated

upon by cultural practices, that she

had an equal right as her in-laws

and the clan to bury her husband's

remains.

In answering the question as to where

the deceased had established a home,

the Court drew reference from the

case of Apeli v Buluku C.A No. 12

of 1979 where it was held that "…a

person wishing to be buried outside

his father's homestead takes steps to

have an acceptable and established

home elsewhere…". In view of that,

the court observed that by conduct

and by reference from the facts,

neither the deceased nor Lucy had

established a permanent home at

Kamariny and that the fact that a

temporary house had been built on

the said portion of land did not confer

ownership of the property upon the

deceased. From the foregoing, Justice

Mshila held that the deceased did not

have a title to the portion of land at her

alleged homestead as the estate was

yet to be distributed nor had a Grant

of Letters of Administration been taken

out over their late father's estate. Thus

by giving Lucy the body to inter at the

alleged homestead would interfere

with the other family members' rights

to the property.

Ultimately, the Court ordered that the

deceased's body be handed over to

Lucy and her in-laws jointly or to any

one of them for burial at the site set

apart by the late father in-law and

father respectively for burial.

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A COMPILATION OF SUMMARIES OF SELECTED CASES ON EMERGING JURISPRUDENCE

Issue19 | April - June 2012

(January 2012 – June 2012)

An unqualified advocate cannot recover costs

Equity Bank Ltd v Capital Construction Limited & 3 others [2012] e KLR

Civil Suit No. 645 of 2009

High Court at Nairobi (Milimani Commercial Courts)

Justice D. Musinga

June 29, 2012

Advocate – advocates’ costs – cost with respect to acts done by an unqualified advocate – whether such costs are

recoverable in law

Held:

1. Under Section 32 (1) of the Advocates Act, an advocate is required not to engage in practice on his

own unless he has practiced in Kenya continuously on a full-time basis for a period of not less than two

years after obtaining the first practicing certificate in full-time employment either in the office of the Attorney

General or an organization approved by the Council of Legal Education or by an advocate who has been

in continuous full time practice on his own in Kenya for a period of not less than five years.

2. No costs in respect to anything done by an unqualified person can be recoverable in any suit by any person.

The law is silent as regards costs payable to a third party on account of work done by a duly qualified

advocate who chooses to open up a law firm contrary to Section 32 of the Advocates Act.

3. Article 159 (2) (d) of the Constitution of Kenya, 2010 requires the court to administer justice without

undue regard to procedural technicalities. While the submission that a party who seeks to apply for review

of an order must extract the order sought to be reviewed and annexe it to the affidavit in support of the

application may be right in law, in the new constitutional dispensation, it cannot be a ground for dismissing

an application for review that is otherwise merited.

Constitutionality of a statutory provision prescribing academic qualifications for nominees for elective

offices

Hon. Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs & another

Petition No 198 of 2011 Consolidated With Petition No. 166 of 2011 And 172 of 2011

High Court at Nairobi (Milimani Law Courts)

Justice M. Ngugi

June 29 2012

Constitutional Law – supremacy of the Constitution – constitutionality of the Elections Act – Act providing for certain

academic qualifications for persons seeking nomination for President, Deputy President, County Governor and Deputy

County Governor – Elections Act section 24(2)(c) – Constitution of Kenya 2010 Article 22, 25, 27

Held:

1. In enacting the new Constitution and with special reference to Articles 1, 10, 27 & 38 among others, the

people of Kenya sought to create a future with equal opportunity and equal voice regardless of social status.

The legislation in deciding the educational requirements should consider the specific social context in which

it will be applicable. Article 24 (1) (b) allows for the limitation of certain rights through legislation so long

as certain criteria are met.

2. By providing that a person may not be nominated as a candidate for an election unless the person ‘holds a

post-secondary school qualification recognized in Kenya’, section 22 of the Elections Act was discriminatory

and offended Article 27 of the Constitution which provides for the right to equality and freedom from

discrimination.

3. The Act, by excluding everyone who does not have a ‘post secondary qualification,’ a term which is not

defined in the Act, from running for any elective office established under the Constitution, discriminates

directly on the basis of status and social origin.

4. Considering also the statistics on girl-child and women education in Kenya and the cultural gender biases

on that subject, the provision also indirectly discriminated on the basis of gender.

5. The provision also violated the Constitution in Article 38 and international law by limiting the right of the

citizen to be a candidate for public office and the right to participate in public affairs as recognized under

Article 25 of the International Covenant on Civil and Political Affairs.

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Kenya Law Reports Bench Bulletin

6. The provision in the Elections Act section 22(2) that persons may be nominated for candidate for election as

President, Deputy President, County Governor or Deputy County Governor only if the person is a holder of

a degree from a university recognized in Kenya was not in violation of the petitioner’s rights or inconsistent

with the Constitution.

7. Section 24(2) (c) of the Elections Act which made certain limitations with regard to exercise of political rights

by those who acquire citizenship was reasonable and in accord with the Constitution. Limiting eligibility for

election as Members of Parliament to those who have been citizens for at least ten years can properly be

said to bear a rational connection to a legitimate purpose.

8. The disqualification from contesting in elections of persons who have participated in a public fundraising

or harambee during or within eight months preceding a general election did not violate the Constitution.

This prohibition has been in statute and its intentions are in line with the attempt to bring in ethics in the

conduct of elections.

9. The provision in section 78 of the Elections Act for the payment of a deposit of money by a party coming

before the court did not violate the right of access to justice under the Constitution.

Constitutionality of Presidential appointment of County Commissioners

Centre for Rights Education & Awareness (Crew) & others v The Attorney General consolidated with Patrick Njuguna

& another v the Attorney General & another High Court at Nairobi (Milimani Law Courts)

Justice Mumbi Ngugi

June 29, 2012.

Constitutional Law – constitutional office holders – appointment of constitutional office holders – procedure for

making such appointments under the Constitution – the Office of the President having appointed county commissioners-

Constitutionality of the Presidential appointment of County Commissioners- progressive realization- whether the

appointments were in violation of rights within the constitution –Constitution of Kenya 2010, Article 2, 3, 10 ,20

,129, 131, 132 (2)

Held:

1. In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed by the

President in which only 10 out of 47 were women did not meet the constitutional requirements at Article 27

(8) and violated the non-discrimination provisions of Article 27.

2. In referring to the principle of progressive realization the interpretation in the case of Milka Adhiambo Otieno

& Another -v- The Attorney General & Others Kisumu High Court Petition No. 44 of 2011 was upheld. It

went further with the view that the phrase ‘progressive realisation’ is applied to those circumstances where

an allocation of limited resources is required.

3. The appointments failed the test of constitutionality by disregarding the national values and principles set

out at Article 10(b) and the principle contained in Article 27(8) of the Constitution.

4. With regard to public appointments, it is critical to have public participation and consultation. The publication

of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and

principles of the Constitution.

5. Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions contained in

Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the

former constitution.

Can a suit be commenced or continued in the name of a company that is under liquidation without

leave of the court? And what is the position of a counterclaim in such a suit?

Trade Bank Ltd (in liquidation & another v Elysium Ltd & 2 others [2012] eKLR

High Court at Nairobi (Milimani Commercial & Admiralty Division)

Justice EKO Ogola

June 18 2012

Company law – liquidation – commencement of a suit in the name of a company that is under liquidation - leave to

be sought in the cause in which the liquidator was appointed-where there is a counterclaim-whether the counterclaim

is to be regarded as a suit

Held:

1. A liquidator who had not secured the leave of the court in commencing or continuing proceedings in the

name of the company under liquidation lacked the capacity to bring the suit. The suit was bad in law and

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the acts of the liquidator were in vain, null and void – Companies Act sections 228, 241

2. The counterclaim was a suit on its own. Sections 228 and 241 of the Companies Act would apply to the

counterclaim. The defendant had to seek the leave of the court to sue or continue any proceedings involving

a company under liquidation.

3. The leave which the party bringing the suit ought to seek is to be sought in the cause of the company

proceedings which appointed the liquidator.

Does the Registrar of Titles have the power to revoke titles issued under the Registration of Titles Act by

way of a Kenya Gazette notice

Power Technics Ltd v Attorney General & 2 others [2012]eKLR

High Court at Nairobi - Constitutional & Human Rights Division

DS Majanja J.

June 15, 2012

Land law – title to land – cancellation of title – whether the Registrar of Titles has the power to revoke titles issued

under the Registration of Titles Act by way of a Kenya Gazette notice and whether such action constitutes a breach

of fundamental rights and freedoms.

Held:

1. The Registration of Titles Act section 60 showed that the powers of the Registrar are limited to correcting errors

and misdescription of land or boundaries or where entries or endorsements to any grant or certificate of title

are made in error or are fraudulent. This is a limited jurisdiction that does not include cancellation of titles.

2. Even where property is acquired unlawfully, the finding of “unlawful acquisition” contemplated in Article

40(6) of the Constitution must be through a legally established process and not by whim or revocation by

Gazette Notice.

3. "Obiter, Per DS Majanja J" The action of the Registrar to continue to revoke titles by Gazette Notices even

after the High Court had declared that it was illegal to do was clearly contemptuous of the decisions of the

court. The court, particularly the High Court, is given responsibility by the Constitution under Article 165

to interpret the Constitution and declare what the law is and in addition to enforce fundamental rights and

freedoms. It is expected that in this dispensation that values the rule of law, public officers and their legal

advisers, that is the Office of the Attorney General, will ensure that all State and public officers not only

acquaint themselves with the directions and decisions of this court but also follow then to the letter. I must

warn State officers and public officers that this is the kind of conduct that may invite the court to invoke

the provisions Chapter 6 [on leadership and integrity in the public service] of the Constitution and making

appropriate declarations."

Award of damages for unlawful arrest and detention

Otieno Mak’onyango v Attorney General and Another

Civil Case No 845of 2003

High Court of Kenya at Milimani Law Courts

K. H. Rawal

June 15, 2012

Constitutional Law – fundamental rights and freedoms – violation of constitutional right - unlawful arrest and detention

– allegation by the petitioner that his constitutional rights were violated and contravened – claim for damages for

unlawful arrest and detention-whether the petitioner had proved that his rights had been violated

Held:

1. A sum of Kshs. 20,000,000/- (Kshs. Twenty Million) awarded as fair and reasonable award to the plaintiff

for violation of his fundamental rights.

Accused persons entitlement to evidence

Morris Kinyalili Liema V Republic

Criminal Appeal No. 58 Of 2010

High Court of Kenya at Machakos

J.M. Ngugi & Asike-Makhandia

June 15, 2012

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Kenya Law Reports Bench Bulletin

Constitutional law – right to a fair hearing – evidence – exonerating evidence – right of an accused person to all

evidence including evidence that would tend to exculpate the accused person – where the prosecution in the lower

court had withheld evidence that would have exonerated the accused – whether the appeal could be allowed

Held:

1. Every accused person is entitled to all evidence including evidence that would tend to exculpate the accused

person. That is not a discretionary rule that the prosecution might choose to obey or not; it is a peremptory

rule straight from the Constitution and the Police and Prosecutors should take heed.

Can a would be beneficiary from the estate of a deceased intestate sue for benefit from the deceased’s

estate without proper legal status?

Christine Achieng Ogesa & another v British American Asset

Managers limited

High Court, at Nairobi (Milimani).

Succession Cause No.2511 of 2011

G.B.M. Kariuki, SC J.

June 14, 2012.

Succession – Succession – intestate succession – whether a would be beneficiary from the estate of a deceased

intestate can sue for a benefit from the deceased’s estate without proper legal status.

Held:

1. Without a grant of representation or a special limited grant ad colligenda bona, the Applicants had no legal

capacity to sue the Respondent as yet for payment to them of the money the deceased’s estate was entitled to.

Does the High Court have jurisdiction to transfer a suit not filed in a court of competent jurisdiction?

Joseph Mururi v Godfrey Gikundi Anjuri

Misc. Application No. 39 of 2012

High Court at Meru

J.A.Makau, J.

June 14, 2012

Transfer of suits – supervisory jurisdiction of the High Court – application for transfer of suit from subordinate court

to the High Court – subject matter of the suit being use, occupation of and title to land – where the suit had been

filed in a subordinate court – the Chief Justice having given Practice Directions that High Court had jurisdiction in

land matters pending the establishment of the Environment and Land Court – whether the High Court has jurisdiction

to transfer a suit not filed in a court of competent jurisdiction.

Held:

1. The suit filed at the subordinate court related to the use, occupation of and title to land which ought to have

been filed at the High Court to facilitate case movement of the proceedings to the Environment and Land

Court once established as per the Practice Note issued by the Chief Justice.

Can extreme provocation justify an assault? Can the State appeal a finding of fact by a lower court?

Republic v Simon Muli Ngumu

Criminal Appeal no. 208’b’of 2008

High Court, at Machakos

Dulu J.

June 13, 2012

Criminal Law – provocation – whether extreme provocation can justify an assault

Criminal Practice and Procedure – appeal – whether the State can appeal a finding of fact by a lower court

Held:

1. Provocation can vitiate and mitigate a criminal offence.

2. The finding that there was provocation was a finding of fact, not subject to appeal by the State.

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What is the standard of proof required when relying on affidavit evidence in an application for committal

to civil jail for contempt of court?

Godfrey Kamau Kimani v Thomas Wambura.

High Court Mombasa

Mwongo J.

June 13, 2012

Civil practice and procedure – contempt of court – application for committal to civil jail - level of proof of contempt

of court – duty of applicant relying on affidavit evidence to ascertain and confirm the particulars of contempt –

whether proof of contempt was above balance of probabilities – Supreme Court Rules, order 52 rules 2, 3 - High

Court Practice and Procedure Rules, rules 2,3 – Judicature Act section 5 – Civil Procedure Act 3A.

Held:

1. Ambiguity in affidavit evidence that does not amplify, clarify or ascertain and confirm the particulars of

contempt so that the court has to go through a lengthy, or circumlocutous reasoning process to satisfy itself

as to the alleged breach, amounts to negation of the standard of proof required for committal.

Can age of a person in a criminal trial be a subject of estimation?

Simeon Wanjala v Republic

Criminal Appeal No. 59 of 2011

High Court, at Machakos

June 12, 2012.

Criminal Law – age-determination of age of a complainant – whether the age of a person can be a subject of

estimation

Held:

1. Where the age is an essential ingredient of the offence, the prosecution has a burden to prove the age of

the complainant to the standard required in criminal law that is beyond reasonable doubt. There is need

therefore to have either documentary evidence on the age from the family witnesses, or the doctor has to

testify regarding what tests he did, and the basis of arriving at the age that he assessed. A mere statement

that “molar not erupted”, to imply that one is below the age of 18 is not adequate. Courts will not determine

technical issues like age on conjecture and suspicion.

2. The prosecution, by failing to establish from the doctor the scientific basis of the age assessment of the

complainant, failed to prove an essential element of the offence.

Sentencing-where a sentence inconsistent with a probation officer’s recommendation is given

David Kimani Wanjiku v Republic [2012]eKLR

High Court at Nairobi

Justice FA Ochieng.

June 11, 2012

Criminal Practice and Procedure – sentencing – probation officer’s report – sentence inconsistent with the probation

officer’s recommendation – duty of a sentencing court to explain its decision in giving a sentence inconsistent with

the recommendation of a probation officer

Held:

1. Whereas the report of a probation officer is not binding on the court, it is necessary for the court that

decides to hand down a sentence that was inconsistent with the recommendation of the probation officer,

to explain the decision made.

Jurisdiction of the Land Disputes Appeals Committee in relation to issues of succession

R v Nyeri Provincial Appeals Committee & Others

High Court at Nakuru

JR Appl. No. 111 of 2011

Anyara Emukule J.

June 8, 2012

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Judicial Review – certiorari – application for an order of certiorari to issue and remove to the court the proceedings

and award of the provincial Appeals Committee for purposes of being quashed – claim by the applicant that the

respondent had no jurisdiction of the matter since it dealt with ownership of the property – whether the application

could have been allowed in the circumstances.

Jurisdiction – jurisdiction – jurisdiction of a tribunal to hear a matter on ownership of land – claim that the land

Disputes Tribunal and the Appeals Committee had no jurisdiction over the matter – here tribunal should have directed

parties to the High Court as prescribed under section 159 of the Registered Land Act – whether the Land Disputes

Tribunal and the Appeals Committee had jurisdiction to determine issues concerning ownership of land.

Held:

1. The Land Dispute Appeal Committee had no jurisdiction to deal with a succession matter. If the interested

party had a claim to the land, he should have sued the first applicant through the normal civil court process.

Adverse Possession-What amounts to interruption of possession and occupation?

Kipketer Togom v Isaac Cipriano Shingore

High Court at Eldoret

Mshila J

June 8, 2012

Land Law – adverse possession – application for a declaration of adverse possession – what amounts to interruption

of possession and occupation in a claim for adverse possession – whether claim had been proved – Limitations of

Actions Act (Cap 22) section 38 – Civil Procedure Rules, order 37, rules 3D,7.

Held:

1. The respondent must assert his right to title by physically entering onto the property and evicting and ejecting

the trespasser from the suit property. Alternatively the respondent should have proceeded to institute legal

proceedings in a court of law against the trespasser asserting his rights against the trespasser with prayers

for his eviction and ejection from the property. Then only is there interruption to occupation and possession

and then only does time stop running.

Does an imperfect gift in land gives rise to a trust in the land?

Jerad Alvan v James N. Mbugua & another [2012] eKLR

High Court at Mombasa

F.Tuiyott J

June 4, 2012

Trust - presumption of trust- whether an imperfect gift can give rise to a trust in land

1. In the circumstances of this case, an inference could not be drawn that that an imperfect gift gave rise to

a Trust. The gift in question was not perfected. The gift had failed and the intended beneficiary became a

tenant and not the owner of the premises.

Interpretation of section 123 of the Income Tax Act

Republic v. Kenya Revenue Authority ex parte Sanjay Shah & 3 others

Misc. Application No. 845 & 873 of 1999

High Court of Kenya at Nairobi

D. S. Majanja, J.

May 30, 2012

Tax law - amnesty - where the Minister of Finance through a Gazette Notice directed the Commissioner of Income

Tax to refrain from assessing or recovering tax during a stated period-whether the directions implied suspension of

all the provisions of the Income Tax Act (cap 470) during the stated period and as far as it related to undisclosed tax

liability prior to that period-interpretation of section 123 of the Income Tax Act-whether the actions by the Commissioner

of Income Tax in assessing, demanding and collecting taxes from the applicants were ultra vires, illegal, irrational

and procedurally untenable

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Issues:

i) Interpretation of section 123 of the Income Tax Act (cap 470) and the direction through Gazette Notice issued

by the Minister of Finance.

ii) Whether the actions by the Commissioner of Income Tax of assessing, demanding and collecting taxes from the

applicants were ultra vires, illegal, irrational and procedurally untenable?

Held:

1. Section 123 of the Income Tax Act contains two separate provisions and is fortified by section 123 (3)

which requires that when the Commissioner exercises his power under section 123 (1), he must report to

the Minister at the end of the financial year. The Commissioner’s power under section 123 (1) is not subject

to the Minister’s direction.

2. The Minister is entitled under section 123 (2) (a) of the Act to direct the Commissioner to take action as the

Minister deems fit, which terms and conditions were in the direction published in Gazette Notice No. 2985.

3. The decision of Music Mines Limited v Matimu Kinywa was inconsistent with the plain and obvious reading

of the provisions of the Statute. The findings in that case would only apply to the exercise by the Commissioner

of his power under section 123 (1) of the Act.

Computation of time in filing applications under Article 89 (11) of the Constitution

Clr Elliot Lidubwi Kihusa v Independent Electoral & Boundaries Commission

JR. NO. 94 of 2012

High Court of Kenya at Nairobi

Warsame, Sitati, Omondi, Nyamweya & Majanja J.

May 30, 2012

Constitutional Law – computation of time – delimitations of electoral units under the Constitution - period within

which the judicial review matters should have been filed under – claim that no party should have been allowed to

file an application for review outside the period specified under the Constitution – claim by the respondent that no

party was allowed to file an application for review outside the period specified under the Constitution - whether the

court could have allowed the applications for extension of time in the circumstances.

Constitutional Law – jurisdiction – jurisdiction of the High Court to extend time for filing an application for review

– claim by the respondent that authority to extend time must have been provided under the Constitution and not

statute – where the Constitution was clear that the applications for review must have been filed within 30 days and

any other applications beyond this was time barred – whether the High Court had jurisdiction to hear the applications

for extension of time in the circumstances.

Held:

1. The time for filing an application for an order of Judicial Review under Article 89 (11) of the Constitution was

to have been calculated from the date the chamber summons had sought leave to commence the proceedings

was filed. The date the order was made was irrelevant because it was only upon publication that the citizen

had become aware of the decision subject of review under the Constitution.

2. Article 89 (11) was intended to have been time limited. Such an exercise could not have been open ended

as it had an effect on other activities that had led to the conduct of a free and fair election.

3. The context of Article 89 had not envisaged jurisdiction to extend time for filing an application for review.

The intention behind the limitation could not have been questioned and if it was the intention of Kenyans to

have made such provisions nothing would have st