Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT The issue before the High Court was whether the Provincial Land Disputes Committee had jurisdiction over proprietory rights. Held: 1. The Jurisdiction to handle claims under the Land Disputes Tribunal was provided for under Section 3(1) of the Land Disputes Tribunal Act of 1990. This section provided for division of or determination of boundaries to land, including land held in common, claim to occupy or work land and trespass to land. Therefore the Tribunal’s jurisdiction did not extend to determining ownership of land and cancellation or alteration of Title Deeds. 2. The Tribunal/Provincial Land Disputes Committee directive that the appellant’s land be sub-divided and the respondent be issued with a Title Deed, was clearly an interference with the proprietory rights of the appellant, conferred on him under the Registered Land Act (Cap 300). 3. Issues of ownership of Registered Land and alteration or cancellation of Title Deeds were strictly within the domain of the High Court and the subordinate court in few instances depending on the value of the land. The orders made by the Tribunal/Provincial Land Disputes Committee though well intentioned, were therefore ultra vires the law and the same were null and void for all intents and purposes. Had the respondent been given the right to work and occupy the land without the order that she be given the Title Deed, the award would have been sustained. Appeal allowed. Advocate Maina Kagio for the Appellant Challenge of the by-laws under the Certified Pubic Secretaries of Kenya Act Republic v Institute of Certified Public Secretaries Of Kenya Ex Parte, Mundia Njeru Geteria Miscellaneous Civil Case No.322 Of 2008 February 12, 2010 RPV. Wendoh J. High Court at Nairobi (Nairobi Law Courts) Reported by Njeri Githang’a Judicial Review-certiorari-ultra vires by- laws-applicant seeking to challenge by-laws made under the Certified Pubic Secretaries of Kenya Act -claim that the by-laws were a nullity and void having been made by the respondent (Institute of Certified Public Secretaries) in excess of its powers-whether the orders sought could be granted Judicial Review-certiorari-rules of procedure-time within which to institute proceedings-whether Order 53 rule 2 Civil Procedure Rules included anything covered by the principle of ultra vires or nullities or decisions made without jurisdictionduty of the applicant to demonstrate that the decision was a nullity or was made without jurisdiction-whether the court had the jurisdiction to hear the matter- Civil Procedure Rules Order 53 rule 2 Judicial Review-approbation and reprobation–relevance of the conduct of the applicant - applicant to approach the court with utmost good faith- applicant having been a beneficiary of the By-laws he purported to challenge-whether the applicant was entitled to the discretionary orders of Judicial Review Statutes- Certified Pubic Secretaries of Kenya Act -promulgation of regulations under the Act-powers donated only to the Minister in charge-respondent purporting to promulgate regulations-whether the respondent had the power to make Regulations- provisions of the Act vis-à-vis the by-laws- by-laws 27 to 38 inconsistent and in conflict with section 9 and the second schedule of the Act-by-laws purporting to provide for Council meetings and elections –provision already in the second schedule of the Act- whether the Regulations in relation to the elections of the meeting were a nullity ab initio- Certified Pubic Secretaries of Kenya Act (Cap 534) sections 7, 9 and 37, Statutes–subsidiary legislation–procedure in promulgating subsidiary legislation–gazettement- requirement that all subsidiary legislation to be gazetted- where there was no evidence that the impugned Regulations were ever gazetted as required by law-whether the regulations had the force of law-Interpretation and General Provisions Act, (Cap 2) Section 27 The ex parte applicant, a member of the Institute of Certified Public Secretaries of Kenya (ICPSK) sought to challenge the election of Council members of ICPSK during the 17 th ICPSK Annual General Meeting (AGM) for being ulta vires the Act and Regulations under which the elections were conducted. He sought to have them declared null and void on the ground that the respondent had exceeded its powers in making them. The ICPSK had given notice of its 17 th AGM where elections were to be done. By then, the applicant who was a Council Member presented his nomination papers to the secretary seeking to be elected as Chairman of the Institute and 72
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT tendered a conditional resignation under By-Law 28 but questioned the legality of the said by-Law by letter and also in the meeting. The issue of the legality of by-Law 28 was ignored on the ground that his resignation from the Council had been accepted though it was factually incorrect that he had offered to record his conditional resignation but it was rejected. The applicant raised an objection that if he was not elected, he should retain his Council position until 2009. He argued that the by-laws were illegal and inconsistent with the Act. After deliberations, it was decided that the applicant had validly resigned from the Council and was a candidate for chairmanship. In opposing the Notice of Motion, the Chief Executive and Secretary of the ICPSK deponed that the application had been brought out of time. It was contended that under Section 37 of the Act, the Minister was empowered to make regulations prescribing anything required to be done under the Act. It was further argued that Section 7 of the Act empowered the Institute to perform certain functions and pursuant to that, the institute tabled and adopted its first by-laws on June 13, 1995 at an AGM which included provisions on election of Chairman and Council members. It was also contended that the applicant was not entitled to judicial review orders as he was approbating and reprobating. It was alleged that he been a beneficiary of the said regulations since he had served as a Council Member since their promulgation and only sought to challenge them after his loss. Held; 1. Order 53 rule 2 of the Civil Procedure Rules did not include anything covered by the principle of ultra vires or nullities or decisions made without jurisdiction. A decision which was a nullity ‘ab initio’ was no decision at all and an order of certiorari could lie at any time. In the circumstances, the by-laws/regulations could not be said to be challenged outside the time allowed. It was however upon the applicant to demonstrate that they were nullities or made without jurisdiction. The court had jurisdiction to hear and determine the matter. 2. Section 37 of the Certified Pubic Secretaries of Kenya Act mandated the Minister to make regulations prescribing anything or for purposes of giving effect to the Act. The Minister in charge had not promulgated any regulations under that section. Though the respondent purported to promulgate the impugned by-laws under Section 7 of the Act, nothing in that section stipulated provisions to suggest that the ICPSK had power to make the regulations. The power to promulgate the regulations was specifically donated to the Minister and if the intention of the legislature was to donate those powers to the respondent, that would have been specified. 3. Under Section 27 of the Interpretation and General Provisions Act (Cap 2), subsidiary legislation had to be gazetted. There was no evidence that the impugned regulations were ever gazetted as required by law and it was not known when they came into force. ICPSK had no power to promulgate any regulations and whatever was held out as regulations had not been gazetted and had no force of law 4. By-laws 27 to 38 were inconsistent and in conflict with section 9 and the second schedule of the Act. As they were a duplication of what was contained in the second schedule. The by-laws purported to provide for Council meetings and elections. There already were provisions relating to the Council in the Act and ICPSK’s promulgation of other regulations to apply in place of the Act and second schedule was ultra vires. The regulations in relation to the elections of the meeting were hence a nullity ab initio. 5. The conduct of a party seeking judicial review orders was an important fact to consider. A party who approached the court for judicial review orders had to do so with clean hands and in utmost good faith. The applicant was approbating and reprobating and could not be entitled to judicial review orders. The doctrine of approbation and reprobation required for its foundation inconsistency of conduct, as where a man, having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit. Application allowed in part; an order of certiorari issued to quash the impugned by-laws Advocates Mr. Kibe for Applicant Mr. Chacha for Respondent Common intention in a ‘mob justice’ case. Republic v Peterson Karani Njogu Criminal Case 40 of 2008 M.S.A. Makhandia February 5 th 2010 Court Station: Nyeri Reported by Monica Achode Criminal Law - common intent-several persons acting in concert to execute a common action - mob beating of a suspected criminal-“mob justice”-necessary ingredients in proving common intent and motive-court position where evidence Issue 12: April-June 2010 73
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Bench Bulletin - Issue 12 - Kenya Law Reports

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