Bench Bulletin - Issue 15 - Kenya Law Reports

Kenya Law Reports 

Bench Bulletin 

The Council Members 

The Hon. Dr. Justice W.M. Mutunga,S.C. 

Chief Justice, President of the Supreme Court & 

Chairman, National Council for Law Reporting. 

THE NATIONAL COUNCIL FOR LAW REPORTING 

THE BOARD OF THE COUNCIL 

The Hon. Dr. Justice W.M. Mutunga,S.C. 



The Hon Mr Justice P. K. Tunoi 

Judge of the Supreme Court 

The Hon Lady Justice J. W. Lesiit 

Judge of the High Court 

Mrs L. A. Achode 

Registrar, High Court 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 Printers Representative 

Mr. Evans Monari 

Law Society of Kenya 

Ms Florence Muoti Mwangangi 

Law Society of Kenya 

Mr. M.M. Murungi 

Editor/C.E.O 

The Council Members ................................................................ 1 

Citizen Jane ................................................................................... 2 

Editors Note .................................................................................. 3 

What They Said............................................................................. 4 

New Era With Mutunga, Baraza Appointment .................. 55 

Access To Legacy Public Legal Information 

in Kenya.......................................................................... 7 

Strategic Planning Quality Assurance And 

Performance Department......................................................... 19 

Editorial Department.................................................................. 21 

Information Computer Technology 

(ICT) Department....................................................................... 23 

Laws Of Kenya Department.................................................... 28 

Human Resources And 

Administration Department.................................................... 60 

Research And Development 

Department................................................................................... 63 

Finance Department.................................................................. 67 

Sales And Marketing 

Department................................................................................... 69 

Feature Case ................................................................................ 72 

Court of Appeal Cases .............................................................. 76 

High Court Cases ........................................................................ 82 

Supreme Court ............................................................................ 97 

EDITOR 

Michael Murungi 

EDITORIAL ASSISTANT 

Esther Nyaiyaki 

CONTRIBUTORS 

Michael Murungi 

Monica Achode 

Esther Nyaiyaki 

Ann Asugah 

Nicholas Okemwa 

Cornelius Lupao 

Mtindi Musuva 

Andrew Halonyere 

Njeri Githang’a Kamau 

Nelson Tunoi 

Emma Kinya 

Petronella Mukaindo 

Wambui Kamau 

Linda Awuor 

Andrew Kiarie 

Lucy Wamatu 

Christian B. Ateka 

Wanjala Sikuta 

DESIGN AND LAYOUT 

Catherine Moni, John Muriuki, Geoffrey Andare 

PROOFREADERS 

Phoebe Ayaya, Innocent Ngulu 

Contacts 

National Council for Law Reporting, Milimani 

Commercial Courts, Ground Floor, 4 th Upper Hill 

Close, Ngong Road 

Email: info@kenyalaw.org, 

Tel: (+254) (020) 271 27 67, 271 92 31 

Fax: (+254) (020) 2712694, Nairobi, Kenya, 

www.kenyalaw.org 

Facebook: Kenya Law Reports, 

www.youtube.com/kenyalawreports 

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. 

“Transforming Legal Information into Public Knowledge.” Issue15: April-June 2011 

Issue15: April-June 2011 

1



TECHNOLOGY IN GOVERNMENT IN AFRICA (TIGA) AWARD, 2011. 

What They Said 

2 Issue15: April-June 2011 “Transforming Legal Information into Public Knowledge.”



Editors Note 

In the last edition of the Bench Bulletin, I devoted this column to saying farewell 

to our immediate former Chief Justice and Chairman, The Hon. Mr. Justice J.E. 

Gicheru, E.G.H. Now, I take pleasure in welcoming his successor, The Hon. Dr. 

Justice W.M. Mutunga, S.C., who is also the President of the newly established 

Supreme Court of Kenya, and The Hon. Lady Justice N. Baraza, the Deputy Chief 

Justice and the Vice President of the Supreme Court, who were appointed on 

June 16, 2011. On behalf of the staff of the Council, we congratulate them on 

their appointment and even more importantly, we welcome the renewed spirit 

of constitutionalism, public accountability and citizen participation in governance 

that has been the hallmark of both their appointment and their first days in office. 

The National Council for Law Reporting is proud to be the recipient of the 

Technology in Government in Africa (TIGA) Award, 2010. The TIGA Award, which 

is co-sponsored by the United Nations’ Economic Commission for Africa (ECA) 

and the Government of Finland, recognizes African Governments’ effective use of ICTs for public service delivery as part 

of fulfilling ECA’s African Information Society Initiative (AISI) and the Government of Finland’s Development Cooperation 

Strategy on ICTs for development in Africa. The public service category of the award recognizes outstanding achievements by 

organizations or teams in developing and implementing innovative projects to improve online government service delivery 

with a specific focus on citizens or businesses as clients of government. The Award was given at a ceremony held in Addis 

Ababa, Ethiopia on May 2, 2011. 

In the previous month, and in a move that makes the Council an even stronger contender in the 2011 edition of the 

TIGA Awards, we launched the online archive of the Kenya Gazette covering the years 1905-2011 and later the Hansard 

(Parliamentary Debates) for the years 1960-2011. This initiative, which was undertaken in partnership with Google, the 

Government Press, the Kenya National Assembly and the Kenya ICT Board, is unprecedented not only in Africa but also 

in the rest of the world in terms of the breadth of the content and the user-friendliness of the Google Books technology 

platform on which the content is served. 

The online archives of the Kenya Gazette and the Hansard capture the political, social and legal evolution of Kenya and present 

the content in its original format and with an ease of searching and cross-referencing that was previously not available 

to Kenyans. As the Speaker of the Kenya National Assembly, The Hon. Mr. Kenneth Marende, E.G.H, MP, stated, citizens 

should ‘take advantage of the democratization of information and knowledge that is heralded by this initiative to not only 

understand our country’s unique political and legal heritage but also to effectively participate in governance and democracy’. 

You will find ample readings about each one of these developments on the inside pages of this edition. 


3



What They Said 

“The Court is duty bound to give breath to any case which is capable of showing 

a tint of life in it” 

Lady Justice Rawal 

in J.O.O suing through J.O (His father as the next friend & Guardian & 2 others 

vs Dr. Praxades Mandu Okutoyi, Dr. Chimmy Omamo Olende & the Kenya 

Hospital Association [2011] eKLR) (www.kenyalaw.org) 

“the removal of some portions from the Draft Constitution which would have given 

the Courts certain powers over the media could not be construed as taking away 

the Court’s power to do justice. In any case, the Constitution amply granted the 

Courts the power to exercise its primary duty of preserving and safeguarding 

justice, equity and equality...” 

Lady Justice Rawal 

in Kwacha Group of Companies & another v Tom Mshindi 

& 2 OthersCivil Suit 319 of 2005. 

“Land retains a focal point in Kenya’s history. It was the basis upon which the 

struggle for independence was waged. It has traditionally dictated the pulse of 

our nationhood. It continues to command a pivotal position in the country’s 

social, economic, political and legal relations...” 

Justice Omondi quoting from the Ndung’u Report, 2005 

in Prof. Samson Kagero Ongeri v. Greenbays Holdings and 2 Others Civil 

suit 30 of 2006 

“Under the new Constitution, state funded legal representation is a right 

in certain instances. An accused shall have an advocate assigned to him 

by the State and at state expense, if substantial injustice would otherwise 

result. In addition to situations where “substantial injustice would 

otherwise result”, persons accused of capital offences where the penalty is 

loss of life have the right to legal representation at state expense.” 

E. O. O’kubasu, P. N. Waki & A. Visram, JJ A 

in David Njoroge Macharia v Republic [2011] eKLR (www.kenyalaw.org) 

4 Issue15: April-June 2011 “Transforming Legal Information into Public Knowledge.”



New Era With Mutunga, Baraza Appointment 

Judiciary set for changes with new CHIEF JUSTICE AND 

DEPUTY CHIEF JUSTICE (By Michael Murungi) 

Michael Murungi, Editor/C.E.O 

Perhaps nothing is more symbolic 

of the break with tradition 

that has been heralded by the 

appointment of Dr. Willy 

Mutunga as Kenya’s Chief 

Justice than the fact that 

almost three decades ago, 

he was processed through 

the criminal justice 

system on a charge of 

sedition. His nomination 

by the Judicial Service 

Commission and the 

subsequent approval of his 

nomination by Parliament 

classically illustrates one 

of those instances when a 

criminal record is, well, not 

a criminal record. When 

the offence of sedition 

was repealed in 1997 the 

alternative eulogy described it as a 

notorious tool for the political repression 

and persecution that was characteristic 

of the 1980’s and 90’s. Viewed in this 

light, Dr. Mutunga’s ‘criminal record’ 

would be no more a stain on his moral 

and professional standing than was 

Kapenguria for Mzee Jomo Kenyatta or 

even Robben Island for Nelson Mandela. 

The first appointee to the new position 

of Deputy Chief Justice, Ms. Nancy 

Baraza, is the immediate former Vice 

Chairperson of the Kenya Law Reform 

Commission. Kenya’s new Chief Justice 

and Deputy Chief Justice bring together 

years of experience in legal scholarship, 

legal practice, democracy and 

governance advocacy and management. 

They assume office at a time of great 

opportunities and challenges. As the 

President and Vice 

President of the 

newly established 

Supreme Court of 

Kenya, they have a 

clean slate in leading 

in the development 

of new constitutional 

jurisprudence. As the 

leaders of the judicial 

arm of Government, 

they are to collaborate with other 

institutions in the chain of justice 

in formulating, implementing and 

monitoring policies and measures for 

the administration of justice through the 

The Hon. Mr. Justice W.M. Mutunga, S.C. 



National Council on the Administration 

of Justice established under the Judicial 

Service Act, 2011. They are also to 

29 Years After 

Mutunga v Republic, 

its ‘Mutunga, 

Chief Justice of the 

Republic’ 

steer the Judiciary through the ‘vetting’ 

process - an evaluation of the suitability 

of all sitting judicial 

officers to continue to 

serve in their offices 

– by an independent 

body established for 

that purpose. 

All this in an 

atmosphere of a 

citizenry that has 

relished the spectacle 

of an open and 

transparent system for recruiting and 

appointing persons to constitutional 

offices and is increasingly active in its 

enjoyment of the expanded 

The Hon. Lady Justice N.M. Baraza, Deputy 

Chief Justice & Vice President 

of the Supreme Court 

The Principles of Judicial Authority - The Constitution of 

Kenya, 2010 159. 

(1) Judicial authority is derived from the people and vests in, and shall be exercised 

by, the courts and tribunals established by or under this Constitution. 

(2) In exercising judicial authority, the courts and tribunals shall be guided by the 

following principles— 

(a) justice shall be done to all, irrespective of status; 

(b) justice shall not be delayed; 

(c) alternative forms of dispute resolution including reconciliation, mediation, 

arbitration and traditional dispute resolution mechanisms shall be promoted, 

subject to clause (3); 

(d) justice shall be administered without undue regard to procedural technicalities; and 

(e) the purpose and principles of this Constitution shall be protected and promoted. 

democratic space engendered by the 

new Constitution. 


5



New Era With Mutunga, Baraza Appointment 

Even though opinions may be divided on 

the conclusions of research conducted 

on public perceptions of the Judiciary 

in Kenya, 

popular media discourse and political 

commentary has conveyed the 

impression, whether true or false, that 

public confidence in the Judiciary has, 

at best, remained on the south side 

of the gauge. Not surprisingly then, 

the appointments of Dr. Mutunga and 

Ms. Baraza have been described as 

the strong prescription that Kenyans 

ordered for a Judiciary that embodies 

the national values, principles of public 

service and the principles of exercising 

judicial authority set out in the new 

Constitution of Kenya. 

As an employee of a state corporation in 

the Judiciary, I have formed my opinion, 

built upon my professional interactions 

over several years of service, that 

there has been a deeply embedded 

power culture in the Judiciary that has 

engendered rigid unspoken rules of 

social behavior. Not surprisingly, these 

rules have come to define not only the 

Judiciary’s engagement with the demand 

side of Justice but also the interpersonal 

relationships of its own staff. As much 

as I have witnessed Judicial Officers, 

judicial administrators and para-legal 

staff relating to each other as people 

with a genuinely shared understanding 

to create a workflow value chain that 

ultimately contributes to efficiency and 

effectiveness in the administration of 

justice, I have also witnessed others 

relating to their colleagues, particularly 

their juniors, only on the basis of the 

power and authority that they exercise 

over them. 

Related to this has been the overt 

formalism of the judicial system – from 

the robes and silk worn by Judges to 

the complexity of the administrative 

procedures that govern the filing of 

proceedings. While formalities of dress 

and address have their place in all 

judicial traditions, many consumers 

of Justice may find the scarlet robes 

and the other elements of the working 

dress of our Judges rather intimidating 

if not exaggerated. The authority and 

the heritage of our judicial system may 

still be expressed with a ‘modernized’, 

Africanized and significantly simplified 

working dress. Thankfully, the new 

constitutional guidelines on the 

exercise of judicial authority (which 

are complemented by the overriding 

objective clauses in the procedure 

statutes and the new Civil Procedure 

Rules and Court of Appeal Rules) lay 

a good basis for making the Judiciary 

and its systems less formal and more 

approachable. 

During their swearing in, the Chief Justice 

and Deputy Chief Justice put aside the 

rules of convention by dispensing with 

the ceremonial judicial dress that is 

modeled on or descended from the 

ceremonial dress of English Judges. 

About a fortnight after the appointment, 

Dr. Mutunga appeared on a morning 

radio talk show in a lighthearted 

interview that was interspersed with 

pop music and listener call-ins. As far 

as I could recall, this was a first for a 

sitting Chief Justice. These are, perhaps, 

glimpses of what may be the leadership 

style and the emerging organizational 

culture of the new Judiciary. 

6 


“Transforming Legal Information into Public Knowledge.”



Access To Legacy Public Legal Information In Kenya 

Providing Access to Historical legal information in 

Kenya: A PUBLIC - PRIVATE PARTNERSHIP BETWEEN THE 

NATIONAL COUNCIL FOR LAW REPORTING AND GOOGLE INC 

(By Michael Murungi, Editor/C.E.O) 

Editor/CEO, National Council for Law Reporting, 

Kenya (incorporating Kenya Legal 

Information Institute (KenLII)) 

at the paper presented 

(A paper presented at the Law via 

Internet Conference 2011, University of 

Hong Kong, Hong Kong, June 8-10, 2011) 

This paper examines the state of access 

to public legal information in Kenya, 

with a commentary on the underpinning 

constitutional and legal propositions, 

and gives an account of how Kenya’s 

National Council for Law Reporting 

has embarked on what may be Africa’s 

largest initiative for online access to 

historical public legal information and 

the development of an open standard 

for the creation, management and 

deployment of future releases of such 

information. 

ABSTRACT 

While the Constitution of Kenya 

2010 establishes the citizen’s 

right of access to public 

information, actual access to public 

legal information in Kenya is limited by, 

among other factors, the nature of the 

platforms on which this information is 

deployed. The creation, management 

and deployment of Kenya’s public 

legal information is not predicated on 

a common standard that would allow 

easy exchange and aggregation of the 

information and reduced time-lags in 

making the information accessible to the 

public through current and emerging ICT 

technologies. 

Kenya’s National Council for Law 

Reporting (the Council) is the official 

publisher of both the Laws of Kenya 

and the judicial opinions of Kenya’s 

superior courts as well as other 

related information. It is therefore the 

country’s focal point institution in the 

collection and publication of public 

legal information. However, the text 

of the legal information is created by 

other agencies of government and the 

Council is only a downstream user of the 

information, its role being to collect and 

disseminate it. 

Because the various public institutions 

that create the different species of public 

legal information in Kenya use different 

technology platforms, they have hitherto 

worked more like a cluster of distinct 

units rather than a chain and quite 

frequently, documents that are ‘born 

digital’ are available only in paper form 

to the Council, the citizens and other 

downstream users. 

This paper gives an account of how 

the Council has partnered with other 

government agencies, the private sector 

and the United Nations Department for 

Economic and Social Affairs (UNDESA) to 

firstly, provide online access to historical 

public legal information and secondly, to 

work on creating an open, technologyneutral 

and inter-operable standard 

for creating, sharing and disseminating 

current and future information. 

1. Introduction 

On August 27, 2010, Kenya promulgated 

a new constitution that ushered in 

a new set of national values, bill of 

rights and system of government. 

Under the country’s new constitutional 

order, the citizen’s right of access to 

public information leapt out of legal 

obscurity to claim its place among 

elite constitutional rights such as the 

right to life and freedom of expression. 

Under section 35, the new constitution 

provides that: 

“Every citizen has the right of 

access to— 

(a) information held by the State; 

and 

(b) information held by another 

person and required for the 

exercise or protection of any 

right or fundamental freedom. 

… 

(3) The State shall publish and 

publicize any important 

information affecting the 

nation”. 

Public legal information includes: 

i. The Laws of Kenya which 

include: 

a. Statutes; 

b. Bills of Parliament; 

c. Legal Notices; 

d. Gazette Notices and 

e. Treaties & International 

Instruments; 

ii. Judicial Opinions; and 

iii. The Parliamentary Hansard. 

These distinct species of public legal 

information are created and distributed 

by government institutions found in 

all the three arms of the government: 

the Legislature, the Judiciary and the 

Executive. The text of the Laws of 

Kenya originates from or is first created 

and typeset in the Department of 

Legislative Drafting in the office of 

the Attorney General while the Kenya 

Gazette originates from the office of 

the Government Printer, a department 

under the office of the President. Judicial 

opinions originate from the Judiciary 

and the Parliamentary Hansard from the 

office of the Clerk of the Kenya National 

Assembly. 

The National Council for Law Reporting 

is a downstream user of the information 

created by these institutions. Even 

though the other public institutions 

that create this content have their own 

mechanisms for providing citizen access 

to the information, the Council, as the 

official publisher of the country’s laws 

and law reports, is the principal bearer 

of the legal obligation to disseminate the 

information to the public. 

2. Access to Legal Information: The 

metrics of access 

Even though the new Constitution 

establishes the citizen’s right of access 

to public information, actual access 

to public legal information in Kenya is 

limited by a number of factors. These 

include: 

a. The medium used to store and 

access the information; 

b. The effort, time and speed of 

access; 


7




c. The architecture or environment 

in which it is provided; 

d. The contextual relevance of the 

information; and 

e. The ease with which the 

information may be shared and 

exchanged. 

The Kenya Gazette is an official 

publication of the government 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 at least 

once every week, usually on Friday, 

with occasional releases of special or 

supplementary editions within the 

week. It has hitherto been distributed 

exclusively in print format. On the other 

hand, the Laws of Kenya are published 

both in print and online through a 

relational database created and updated 

by the Council. 

I will illustrate the relevance of each 

metric above using the print editions 

of the Kenya Gazette and the online 

database of the Laws of Kenya as 

reference points. 

and this difference is attributed to the 

medium on which either content is 

stored and accessed. 

2.2. Effort, time and speed of access 

The accessibility of public records 

can also be measured by the amount 

of effort that a citizen has to expend 

in order to access them. The Kenya 

Gazette has traditionally been accessed 

in print copies purchased at the office 

of the Government Press in Kenya’s 

capital, Nairobi. Save for a number of 

individuals and institutions who receive 

their editions by postal mail under 

a subscription service provided by 

the Government Press, many citizens 

have to purchase their editions at the 

department’s bookshop in Nairobi 

during the official working hours on 

weekdays. 

2.1. Medium of storage and access 

Hitherto, the historical records of the 

Kenya Gazette as well as a portion of 

more recent records have existed almost 

exclusively in paper form. This is because 

a majority of the records were born 

analogue i.e. created before the advent 

of desktop computer using analogue 

word processors and printing equipment 

such as manual typewriters and stencilbased 

duplicators. Also, a number of the 

more recent records that were ‘born 

digital’ may no longer be available. 

Necessarily, these paper records could 

only be accessed at the physical location 

where they are preserved, namely, the 

archives of the Government Printer or 

the Kenya National Archives. 

The online database of the Laws of Kenya 

is published on and accessed through 

the Internet. This means that multiple 

persons in separate locations can have 

simultaneous access to the content using 

a computer or a wap-enabled mobile 

communication device. So on the scale 

of accessibility, the online database 

of the laws would be more accessible 

than the paper records of the Gazettes 

Fig. 1. Litigants read ‘The Daily Cause List’, a schedule of cases due to be heard in court, 

at a notice board placed outside the Milimani Commercial Courts in Nairobi, Kenya. 

Comparatively, to the extent that access 

to an Internet connection would present 

a lower expenditure of effort than gong 

to a government office, there should be 

a differential in effort, time and speed of 

access between a citizen who accesses 

the online database of the laws and one 

who accesses the print edition of the 

Kenya Gazette. 

2.3. Architecture/Technology Platform 

Related to the medium of storage 

and access is the architecture or the 

technology platform on which the public 

information is served. For the Kenya 

Gazette, this platform has been the 

A4-sized, multi-page, magazine-style 

presentation with a table of contents 

on the first page and the inside pages 

featuring the content of the notices 

arranged chronologically by notice 

number in two columns. 

“Each time a man stands 

up for an ideal, 

or acts to improve the 

lot of others,or strikes 

out against injustice,he 

sends forth a tiny ripple of 

hope.” 

(Robert F. Kennedy 

(1925-1968, American 

Attorney General, Senator) 

8 






Fig. 2: The cover and inside pages of the print edition of the Kenya Gazette 

On the other hand, the online version of the Laws of Kenya is presented in a text-based relational database. Its accessibility 

features include an alphabetical index of the laws, a search-by Act number, name or keyword, a full text search as well as a 

theme-based table of contents. 

Fig. 3: A screen grab of the Laws of Kenya database on the National Council for law Reporting website (www.kenyalaw. 

org) showing various search options. 


9




While the database my present an 

improvement in the level and quality 

of access in comparison to paper 

records, it carries with it the technical 

disadvantages of relational databases: 

i. Statutes have multiple 

hierarchies and it is difficult 

to capture and represent 

hierarchies in a database; 

ii. The database is proprietary and 

is not predicated on an open 

standard; 

iii. It does not lend itself to easy 

crawling by internet search 

engines; and 

iv. It is rigid with poor scalability 

and extensibility. 

2.4.Contextual relevance: drowning in 

information but thirsty for knowledge 

The accessibility of a stockpile of archival 

information may also be measured by 

the ease with which a person searching 

it can retrieve the particular piece 

of information that is directly and 

contextually relevant to his or her 

inquiry. For the Kenya Gazette, an 

attempt is made to contextualize the 

content by including a table of contents 

on the cover page with references to 

particular pages on which notices on 

certain subjects may be found and by its 

editorial style of presenting the notices 

in the order of their unique numbering 

and subject matter. However, a reader 

will need to know the particular number 

of the relevant notice or the edition’s 

number and year of publication in order 

to access a contextually relevant data 

set. 

By comparison, the full-text search 

feature of the online database of the 

laws along with the alphabetical and 

thematic listing of statutes involves less 

presumed knowledge on the part of 

the user. For instance, a user who seeks 

information about the law relating to 

the registration of persons may query 

the database with the search term “birth 

registration”. The database returns 

paginated results to relevant laws listed 

in order of relevance or affinity to the 

search term. 

2.5.Sharing and collaboration: The 

democratization of information and 

knowledge 

Public information cannot be fully 

democratized unless citizens are able 

to freely and easily share it across 

geographical and technological 

boundaries. Thus, the role of government, 

at its minimum, should be to put out 

basic and authoritative information 

to the public without imposing any 

restrictions on the redistribution of 

the information. Perhaps this would 

be the rationale behind the exclusion 

of the text of national legislation and 

judicial opinions from the protection 

of copyright law in many jurisdictions 1 . 

While paper-based representations of 

information have been an improvement 

from the smoke signals of the Native 

Americans and the hieroglyphics of 

ancient Egypt, they are no longer 

the fastest and easiest way to share 

information. Computer-based 

representations of information can be 

duplicated many times over at minimal 

cost and effort, without a diminution 

in the quality of the ‘copy’ and they 

can be shared almost instantaneously 

across many users in different parts of 

the world. By reference to the online 

database of the laws, scholars and 

students of comparative international 

law in different jurisdictions can go into 

a discourse on the Kenyan legal system 

as easily as any two contracting parties 

wishing to submit themselves to the 

law of Kenya can simultaneously crossreference 

pertinent provisions of Kenyan 

legislation. 

3. Bridging the actual access divide 

Perhaps the fullest realization of the 

citizen’s access to public legal information 

in Kenya would be to present that 

information on a technology platform 

on which: 

i. public institutions that create 

the information collaborate on 

standardized representations 

of data and metadata and 

on document life-cycle 

management; 

ii. serves the information to the 

public on an open, technologyneutral 

and interoperable 

architecture; 

iii. is intuitive and interactive so 

that far from providing easy 

search and retrieval, it can also 

‘push’ to the citizen contextually 

relevant data elements on 

demand; and 

iv. is accessible through a variety 

of current and emerging access 

media. 

Mobile phones have become a symbol 

of the use of new information and 

communication technologies in 

the developing world. Due to their 

portability, their relative affordability, 

increasing mobile penetration in rural 

areas and their high functionality, mobile 

devices have the potential to be the 

most effective technology for stimulating 

and satisfying the demand and supply of 

public information services 2 . However, 

the potential for using mobile devices 

for the delivery of government-oriented 

content, particularly contextually 

relevant, on-demand and subscriberunique 

information, has not been fully 

exploited by public agencies in Kenya. 

The Council’s approach towards realizing 

full and actual citizen access to public 

legal information is two-pronged: 

i. Phase I: With regard to the 

legacy/historical information 

which exists in paper form, 

to digitize the content and 

providing online access to it 

through an archival database 

that provides easy search and 

retrieval; and 

ii. Phase II: With regard to future 

information, establish common 

standards or models for creating 

public legal documents and 

build an information system that 

provides open access to them 

through existing and emerging 

access media, including mobile 

devices. 

3.1: Digitizing historical legal information: 

The Kenya Gazette 1900-2011 and The 

Parliamentary Hansard, 1960-2011 

3.1.1: The Kenya Gazette 

1 

See for example Kenya’s Copyright Act, 2001, section 1, available at http://www.kenyalaw.org/kenyalaw/klr_app/frames.php 

2 

Commonwealth Telecommunications Organization: The Economic Impact of Telecommunications on Rural Livelihoods and Poverty Reduction – A study 

of rural communities in India (Gujarat), Mozambique and Tanzania, October 2005 

10 






The Kenya Gazette (formerly known as 

the Official Gazette of the Colony and 

Protectorate of East Africa) has been 

published from the turn of the 20th 

century, when Britain formally assumed 

colonial power over the territory that 

is now Kenya. Today, even though it 

is prepared using word processing 

software and forwarded to a digital 

press in PDF format, it is published and 

distributed by the Government Press 

exclusively in print form. 

Title 

Kenya 

Gazette 


Gazette 


Gazette 

Parliamentary 

Hansard 

Parliamentrary 

Hansard 

Parliamentary 

Hansard 

Range 

of 

years 

1906- 

2008 

2009- 

2011 

How 

record 

created 

Typewritten/ 

Stencil 

Word 

processed – 

MS Word 

Average 

page 

count 

(A4) 

No. of 

editions 

Digital 

format 

50 5,000+ Scanned 

PDF 

image 

70 180 PDF 

generated 

from MS 

Word 

Average 

Memory 

load of 

digital 

edition 

4.7MB 

1.5MB 

2012- XML Open standard to be agreed and adopted 

for future editions. 

1960- Typewritten 570 164 Scanned 50MB 

1994 

PDF 

Image 

1994- Word 30 1,588 PDF 200KB 

2011 processed – 

generated 

MS Word 

from MS 

Word 

2012- XML Open standard to be agreed and adopted 

for future editions. 

Table 1: The range, format and size of the historical editions of the Kenya Gazette and the Parliamentary Hansard. 

Current editions have a page count of 

about seventy pages and a memory 

load of about 1.5 megabytes. The 

entire collection of the Gazettes is 

comprised of over 5,000 editions. 

A typical edition contains statutory, 

government and private notices ranging 

from government appointments and 

nominations; declaration of standards 

for goods and services; notices of 

licensed professionals such as advocates, 

land surveyors, engineers; issue of land 

title certificates (title deeds); intention 

to de-gazette forest land or to acquire 

private land for a public purpose; 

notices of applications for licenses for 

mining, broadcasting, etc; probate and 

succession notices; change of names 

by individuals; bankruptcy and winding 

up orders and notices about new 

Bills and Statutes to be considered by 

Parliament. Evidently, the information 

in the collection is of enormous value 

to Kenya’s social, legal and political 

heritage. 

NATIONAL COUNCIL FOR LAW REPORTING 

HOME CASE SEARCH LAWS OF KENYA KENYA GAZETTE CAUSE LIST PRACTICE NOTES BENCH BULLETIN NEWSLETTER KLR JOURNAL ADVOCATES CLE 

where legal information becomes public knowledge 

P.O. Box 10443 - GPO 00100, Nairobi,Kenya , Tel: (+254 020) 2712767 2719231, 

Fax: (+254 020) 2712694, info@kenyalaw.org 


11




Fig. 4: From left to right: The cover pages of an old (1907) and a recent (2011) edition of the Kenya Gazette. 

3.1.2. The Parliamentary Hansard 

The Hansard is the record of the 

proceedings of Parliament. The 

archival records of the Hansard are 

preserved by the office of the Clerk of 

the Kenya National Assembly and the 

Kenya National Archives. Kenya’s first 

Wesminster-type legislature was the 

Legislative Council (the LEGCO) of the 

East African Protectorate which began 

its deliberations in 1907. The LEGCO was 

the legislative organ of the British Crown 

Colony and it was formed after Britain 

formally assumed colonial rule over most 

of the territory that is now East Africa. 

In 1962, a new Constitution replaced 

the LEGCO with a bi-cameral legislature 

collectively known as the Kenya National 

Assembly. It was comprised of the House 

of Representatives and the Senate. 

In December 1963, Kenya became an 

independent state and the following 

year, it became a republic. The bi-cameral 

system was eventually replaced with 

a single house, the National Assembly. 

Under a new system of government 

introduced by Kenya’s new constitution 

promulgated in August 2010, Kenya 

will re-introduce the bi-cameral system 

with two new houses of Parliament (the 

National Assembly and the Senate) after 

the general elections due to be held in 

2012. 

Fig. 5: From left to right: The cover pages of an old (1960) and a recent (2011) edition of the Hansard 

12 






Up to the mid-90s, the Hansard was 

created and preserved in paper form. 

Subsequent editions were wordprocessed 

and preserved in PDF format. 

The paper records of the Hansard 

dating back to 1960 have subsequently 

been converted into digital records 

through scanning by the Kenya National 

Assembly and the National Council for 

Law Reporting. 

3.1.3. Technology platform 

For a number of years after the historical 

records were digitized through scanning, 

the Council searched for a technology 

platform that would enable easy online 

access to and cross-referencing inside a 

stockpile of scanned paper documents. 

A number of commercial solutions 

deployed in both the Kenyan and 

regional markets were explored but 

they were either overpriced or their 

functionalities were overstated by 

the vendors. In 2010, the Council 

approached the Kenya Information and 

Communications Technology Board 

with a view to obtaining funding for a 

suitable solution through international 

competitive procurement. The Board 

is a state corporation established to 

advise the government on all relevant 

matters pertaining to the development 

and promotion of the ICT industries and 

to promote Kenya as an ICT destination. 

The Board manages the Transparency 

Communication Infrastructure Project 

(TCIP), a government project supported 

by a grant from the World Bank aimed 

at improving ICT connectivity, improving 

the delivery of government services to 

citizens and ‘increasing the type and 

quality of information from and to 

citizens’. Two of the guiding principles 

of the project are to leverage on publicprivate 

partnerships and to capitalize 

on multi-channel delivery of services, 

including via mobile phones. 

of human knowledge and promoting the 

democratization of knowledge 3 . 

Through a public-private partnership, 

Google Inc. offered to gratuitously 

index the scanned historical records 

of the Kenya Gazette and the Hansard 

and to provide online access to them 

through the websites of the Council, the 

Government Press and on the Google 

Books platform. The features of the 

online platform include: 

• Full text search across all 

editions; 

• Paginated search results 

showing the search words in 

context; 

• Keyword search within an 

edition; 

• Highlighting of search words in 

the edition; 

• A hyperlinked table of contents; 

• Look-and-feel similar to the 

original paper records; 

• Quick and easy scrolling through 

editions; 

• Sharing of contextual page 

information through emailed 

links; 

• Low bandwidth demand. 

The major benefit for this initiative 

is that it has provided to the Kenyan 

citizen, and indeed to the world, a 

treasure trove of public information on 

a scale and with a level of functionality 

and utility that is unprecedented. For a 

country where there is a dearth of local 

online content, there is no doubt that 

both the online and the offline political, 

social and historical discourse in Kenya 

will be quickened by the improved ability 

to access, cross-reference and share this 

information. 

If any concerns would be raised about 

the decision of the Council to source out 

the indexing and hosting of the country’s 

informational crown jewels to a private 

enterprise, then perhaps such concerns 

may be settled by several statements 

of fact: 

• The initiative is aligned with 

one of the guiding principles of 

the government of Kenya’s TCIP 

project, namely, to leverage 

on public-private partnerships 

in increasing the type and 

quality of online government 

information; 

• Under the partnership, Google 

Google Inc’s Google Books service 

offers an online platform for indexing 

and browsing of documents, books 

and magazines in the cloud. It searches 

the full text of books that Google has 

scanned and converted to text using 

optical character recognition. The 

initiative has been hailed for its potential 

to offer unprecedented access to what 

may become the largest online corpus 

Table 1: The range, format and size of the historical editions of the 

Kenya Gazette and the Parliamentary Hansard. 

3 

See: http://en.wikipedia.org/wiki/Google_Books; Bergquist, Kevin (2006-02-13). “Google project promotes public good”. The University Record (University 

of Michigan). Retrieved 2007-04-11; Malte Herwig, “Google’s Total Library”, Spiegel Online International, Mar. 28, 2007. 


13




Inc. has undertaken to take 

all commercially reasonable 

efforts not to display or link 

Google’s online advertisements 

or sponsored links with the 

content; 

• The content is public domain 

information to which Google 

Inc. and indeed any other 

corporate or individual citizen 

would be entitled to have 

without restrictions on its use 

and distribution; 

• The National Council for Law 

Reporting is also exploring 

opportunities for partnerships 

with non-commercial online 

open libraries for the further 

distribution of the content. In 

that regard, the Council has 

formally approached JSTOR, 

Project Gutenberg and the 

Internet Archive 4 ; and 

• The Council is working with its 

partner government institutions 

to develop and implement an 

open, technology-neutral online 

platform for publishing future 

editions of both the Kenya 

Gazette and the Hansard. 

3.1.4. Cost 

The majority of the costs expended 

in this initiative were in the nature of 

professional contractual fees charged 

for converting the historical records 

from paper to digital records through 

document scanning. This cost was 1.2 

million Kenya Shillings (aprox. USD 

15,000). Discounting the value of the 

working hours invested by each partner 

in the initiative and the administrative 

costs of convening the reference 

group meetings, there were no further 

direct costs involved in this initiative, 

particularly because Google’s indexing 

service was provided gratuitously. 

3.2. Developing and implementing a new 

platform for current and future public 

legal information. 

In the second and final phase of the 

initiative, the Council, as the convenor 

of a reference group involving the 

Government Press, the Kenya National 

Assembly, the Judiciary, the Directorate 

of e-Government and UNDESA, will lead 

in the development and implementation 

of an open, interoperable and 

technology-neutral platform for current 

and future public legal information. 

Already, attention is being directed at 

Extensible Mark-up Language (XML), a 

standard technology for Open Document 

Formats. XML’s design goals emphasize 

simplicity, generality, and usability over 

the Internet. It is a textual data format 

with strong support for a diversity of 

languages. Although the design of XML 

focuses on documents, it is widely used 

for the representation of arbitrary data 

structures, for example in web services. 

The major advantages of XML are: 

i. Accessibility – It contains 

machine-readable contextually 

relevant information; 

ii. Simplicity - Information coded 

in XML is easy to read and 

understand and it easily lends 

itself to reading by computers 

and computing devices; 

iii. Technologically neutral and 

inter-operability – XML is an 

open standard that is vendorneutral 

and is compatible 

across a variety of technology 

platforms. Because it is 

less prone to technological 

obsolescence, XML is an ideal 

format for both short-term and 

long term archival of public 

information. 

iv. Openness and universality - XML 

is a W3C standard, endorsed 

by the software industry 

market leaders. It can embed a 

multiplicity of data types - from 

multimedia data (image, sound, 

video) to active components 

(Java applets, ActiveX). 

v. Extensibility - XML is highly 

flexible extensible and may 

be easily manipulated for to 

accommodate exceptional data 

structures. 5 

The reference group will be looking 

at the feasibility of adopting XML as 

the common standard for all public 

legal information. If a consensus is 

reached in that regard, resources will 

be applied in the development of XML 

schemas for the various species of 

public legal information and for the 

incorporation of the standard in the 

document management workflows of 

the relevant institution. 

4. Conclusion 

In conclusion, as a government 

institution that is the custodian of 

both historical and current public 

information, the Council has appreciated 

that commensurately with advances in 

access technologies, there is a higher 

threshold of accessibility that public 

information has to meet. With increasing 

Internet and mobile penetration, citizen 

demand for local online content and 

in particular government content that 

is rich in relevance and functionality 

4 

JSTOR (www.jstor.org) (short for Journal Storage) is a not-for-profit organization with offices in New York, USA, founded in 1995. It provides full-text 

searches of digitized back issues of several hundred well-known academic journals. In January 2009, it was announced that JSTOR would merge with ITHAKA, 

a non-profit organization founded in 2003 and “dedicated to helping the academic community take full advantage of rapidly advancing information and 

networking technologies”. 

Project Gutenberg (www.gutenberg.org) is a volunteer effort to digitize and archive cultural works, to “encourage the creation and distribution of eBooks.” 

Founded in 1971 by Michael S. Hart, it is the oldest digital library. Most of the items in its collection are the full texts of public domain books. The project 

tries to make these as free as possible, in long-lasting, open formats that can be used on almost any computer. 

The Internet Archive (www.archive.org) is a non-profit digital library based in San Francisco, USA, with the stated mission of “universal access to all knowledge.” 

It offers permanent storage and access to collections of digitized materials, including websites, music, moving images, and books. The Internet Archive was 

founded by Brewster Kahle in 1996. It’s a member of the IIPC (International Internet Preservation Consortium). The Archive allows the public to both upload 

and download digital material to its data cluster, and provides unrestricted online access to that material at no cost. The Archive also oversees one of the 

world’s largest book digitization projects. It is a member of the American Library Association and is officially recognized by the State of California as a library. 

Source: http://en.wikipedia.org/ 

5 

http://en.wikipedia.org/wiki/XML 

14 






will need to be satisfied. Recognizing 

that as a single government agency, 

the Council would be challenged in 

conceptualizing the most technologically 

feasible ways of providing citizen access 

to that information, our approach is 

that releasing copies of this information 

to the public and even to private 

enterprise, in whatever form the 

information might be, not only fulfils 

our constitutional obligation to our 

citizens but it also helps to accelerate 

the search for a solution by the creative 

enterprise of the private sector. In the 

face of challenges, it is enough if the 

government merely opens up access to 

raw, basic and authoritative information 

and leaves it to the creative enterprise, 

whether actuated by commercial or 

more altruistic intentions (such as the 

Open Source developer community) to 

develop applications that meet citizen 

demands for improved access. The 

better if beyond providing easy access to 

the information, the government leads 

in the adoption of an open, neutral and 

interoperable technology platform that 

scores highly on all the metrics of access. 

As much as possible, government 

agencies should strategically position 

themselves to fully leverage on publicprivate 

partnerships that contribute 

to improved citizen access to public 

information. 

Mr . M. Murungi, the C.E.O/Editor of the National Council for Law Reporting, presents his paper at the Law 

via Internet Conference at the University of Hong Kong on June 10.2011 

Members of the Free Access to Law movement (FALM) during the Law via Internet Conference at the 

University of HongKong in June 2011. 


15




16 







17




18 





Strategic Planning Quality Assurance And Performance Department 

Taking Stock of NCLR’S PERFORMANCE 

JUNE 2010 – JUNE 2011 

Organisational Performance Index 

Report prepared by the Kenya Institute 

of Management in 2010. NCLR ascribed 

to the OPI process in June 2010 as part 

of its long term strategic objectives 

‘to establish a reference point for 

departmental activities for quality 

assurance, knowledge management and 

continuous.’ 

Esther Nyaiyaki Onchana, Snr Assistant Editor/Deputy C.E.O 

Monitoring and Evaluation forms 

a critical component for the 

successful implementation 

of the NCLR Strategic Plan 2009 -2012. 

The Plan identifies that Monitoring and 

Evaluation will be done at three levels 

that is: 

i. Departmental Monitoring 

and Evaluation – Alongside 

the departmental 

strategic plan, every department 

has established 

and documented its 

workflow processes, the 

standards and guidelines 

to be to be applied in the 

workflow, and a calendar 

of the department’s 

outputs. This forms the 

monitoring and evaluation 

framework at the 

departmental level. 

ii. Organizational Monitoring 

and Evaluation – One 

of the functions of the 

Strategy, Quality Control 

and Performance Evaluation 

Department is to 

continuously monitor and 

evaluate the implementation 

of the Council’s 

strategic plan. Under this 

function, the Department 

will use three monitoring 

and evaluation tools: 

a. The Implementation Matrix of 

this Strategic Plan; 

b. The Schedule of Standards 

and Guidelines filed with 

the Department by other 

departments; 

c. The Calendars of the other 

departments’ outputs 

iii. Governance Monitoring 

and Evaluation – The 

Board is the supreme 

governance organ of the 

Council. It provides policy 

leadership and directions 

on the affairs of the 

Council. The Board will 

enter into a performance 

contract with the Government 

of Kenya. The broad 

strategies and objectives 

of the Council will be 

mapped into the performance 

contract translating 

them into objective, 

measurable results that 

will form the indices for 

a Monitoring and Evaluation 

Framework at the 

Board level. 

Since formally launching the Strategic 

Plan in June 2010 the Council has 

conducted quarterly performance 

reviews to take stock of departmental 

and organisational performance. At 

the beginning of this year the Team 

leaders met at Methodist Guest House 

in Nairobi, to map out the Action 

Plan for 2011. The 2011 NCLR Action 

Plan was informed by the Council’s 

The OPI recommendations were adopted 

and incorporated by the Team leaders 

as part of the organisational targets. 

Some of the recommendations included 

preparing a Board Charter and Code 

of Ethics to promote high standards 

of corporate governance for the NCLR 

Board. The Report also recommended 

that the Council to implement best 

practices for implementing knowledge 

management systems. To do so the 

Council had to review and evaluate 

the existing systems and processes and 

making recommendations. 

Six months after crafting the 2011 

Action Plan and a year since coming 

to life of the NCLR Strategic Plan, I 

can report that the Council has made 

considerable strides implementing the 

NCLR Strategic Plan targets and the 

OPI recommendations. The Council has 

completed the development of various 

policy documents notably the Human 

Resources Manual, revised the NCLR 

Organizational Structure, Employee 

Job Titles and Terms of Reference, 

Draft Board Charter and Code of Ethics, 

the NCLR Finance Manual, Marketing 

Manual and the NCLR Corporate Social 

Responsibility (CSR) and Environmental 

Policy. 

These policies are critical for the 

achievement of the Council’s business 

goals, strategies and objectives. The 

Council prides itself on its use of new 

technologies to avail public legal 

information. In the past the Council 

implemented a web-based enterprise 

document management system 

(NCLR DMS) which introduced a more 

comprehensive and efficient method of 

Document Management; Web Content 

Management; and Collaboration.In 


19



Strategic Planning Quality Assurance And Performance Department 

January 2011 the Council released a 

new version of its website that features 

more interactivity, easier and even more 

relevant searches, a friendlier and easier 

updates management interface, blogs, 

news management modules and forums. 

The key departments that are tasked 

with the mandate of publishing the 

Kenya Law Reports and the revising 

and consolidating Laws of Kenya 

have achieved remarkable results in 

preparing various publications both 

in electronic and print format. The 

Editorial Department has completed 

preparing eleven volumes of the Kenya 

Law Reports volumes including 2008, 

2009 and 2010 editions. The Laws of 

Kenya Department has gone to press 

with the following thematic areas; Land 

Laws, Commercial Laws, Public Finance 

Laws, the Grey Book and Family related 

Laws. The Research and Development 

Department launched the online archive 

of the Kenya Gazette legacy issues dating 

back to 1906. Elsewhere in this Bench 

Bulletin Edition, the reader will have 

the opportunity to review the specific 

department’s reports for the period 

March to June 2011. 

More recently on May 3 2011 the NCLR 

Heads of Department convened at 

Lenana Conference Centre in Nairobi to 

discuss the progress in implementing the 

departmental and organisational plans 

for the period January – March 2011. To 

crystallise the findings arrived at during 

the retreat, the team leaders attended a 

two day training session on ‘Leadership, 

Management and Staff Motivation’, 

a program that was conducted by 

the Kenya Institute of Management 

consulting team. 

The training was tailor made to enhance 

the capacity of the Council’s senior 

and middle Managers’ in the areas of 

governance, management, strategic 

planning, leadership, performance 

management, customer relationship 

management and staff motivation. 

The first day of training was facilitated 

by Mr. Sultan Amri Nassor Sultan, 

a Fellow at the Kenya Institute of 

Management who commenced the 

day by emphasising the significance of 

developing communication and people 

skills. He also focused on the role of 

enhancing managers’ competencies in 

today’s changing business environment. 

The second day of training was facilitated 

by Mr. Nyaloti who brought to bear his 

expertise on motivating employees. The 

session targeted managers with a view 

of impacting them with skills that would 

enable them to inspire their employees 

and reawaken employee zest and gain 

commitment for improved performance. 

(NCLR members of staff at Leadership, Management and Staff Motivation Training at Lenana Conference Centre 

Back Row from left Mr. Nicholas Okemwa, Ms. Rachel Mwaura, Mr. Pascal Othieno, Mr. Michael Mayaka, 

Mr. Cornelius Lupao, Mrs. Siphirah Gatimu, Ms. Petronella Mukaindo, Ms. Esther Nyaiyaki, Ms. Monica Achode, 

Ms. Mutindi Musuva and Mr. Martin Mbui. 

Front Row from left Mr. Michael Murungi Editor/CEO, Mr. Sultan Amri Nassor Sultan Fellow - Kenya Institute of 

Management, Mrs Ann Asugah and Ms. Linda Awuor 

20 





Editorial Department 

Case search TUTORIAL 

By Monica Achode 

By Monica Achode,Snr. Law Reporter, 

Team leader ,Editorial Department. 

change the text on our 

home page. 

With the new website of 

course came your comments 

and compliments. One of 

the most frequently asked 

question is how to look for 

cases on the new website. 

In response to this we have 

decided to redo our case 

search quick guide on the 

case search page. This guide 

now reads as below. We 

hope it will enable you 

navigate our website more 

easily and to access the 

cases you are looking for in 

a less stressful manner. 

I 

f you’ve visited the NCLR website 

a few times over these last few 

Case Search Quick Guide 

months, you’ve probably already 

noticed that we’ve given our website 

a fresh look. We’ve revamped our site 

1) General Search: 

with our customers in mind. This was 

• This general search has been 

done for several reasons none the least 

integrated with the Google 

of which is that it was about time. We 

custom search. The Google 

felt it was in keeping with the Council’s 

search is simple, just type in 

dynamic culture to make sure that 

whatever you are looking for, 

the website reflects who we are. Over 

case name, number, judges 

the last year the Council has evolved 

name, cause list, date etc, 

significantly, in terms of our message 

click the search button to 

(Transforming Legal Information into 

the right of the tab or hit the 

Public Knowledge) and in terms of the 

enter key on your key board 

range of new products offered (the KLR 

and Google will search the 

Monthly, the Laws of Kenya and the new 

website for content that is 

look Bench Bulletin). Since our website is 

relevant to your search. 

the first extended contact that most of 

• To make your search more 

our prospective customers have with us 

useful keep your search 

we felt it necessary that it communicate 

criteria simple. The search 

our core messages. 

engine is not human, it is a 

program that matches the 

Added to this is a new content 

words you give to pages on 

management system (CMS) which is 

the website so use the words 

about to be deployed for use by the 

that are most likely to appear. 

department. This CMS has been designed 

The goal here is to provide 

to simplify the publication of web content 

you with results that are clear 

specifically the judgments to our web 

and easy to read. 

sites and mobile devices. In particular 

• Remember every word 

it allows the members of the Editorial 

matters. Generally, all the 

Department, who are the content 

words you put in the query 

creators to create, submit and manage 

will be used. The search is case 

contents without requiring technical 

insensitive and punctuations 

knowledge of any Web Programming 

are generally ignored but 

Languages or Markup Languages such 

ensure all your search terms 

as HTML or the uploading of files. With 

are spelt correctly. 

just a few clicks the reporters can update 

• Searching in general mode 

judgments to the website, articles, 

is suited for finding any or 

upload and update judicial profiles, or 

all cases that contain a given 

word, set of words or phrase 

used. 

2) Specific Search 

• Searching in the specific 

search mode is suited for 

finding a particular case when 

you have details that describe 

the case at hand e.g. (names 

of parties, case number, and 

date of delivery) 

• To find a case according to its 

details (names of parties, case 

number, and date of delivery) 

one need not fill in all the 

fields. You may use any one 

or more search criteria; search 

using whatever information 

you have. 

• Using only one or two search 

criteria will yield a high number 

of results – using more search 

criteria significantly reduces 

the number of results yielded. 

• When searching for a case 

using the names of parties 

(specific search mode) you 

need not fill in all the names. 

Any or two names of either 

party will suffice. Similarly, if 

you are searching for a case 

by case number, do not type 

in the entire length of the 

case number (e.g. instead 

of entering “Miscellaneous 

criminal Application No. 94 of 

2004”, you may simply enter 

“94 of 2004”) 

• Ensure all your search terms 

are spelt correctly. Try to use 

alternative spellings of names, 

words or acronyms appearing 

in your search terms. 

3) Boolean Search 

• This is an advanced search 

that allows one to search the 

database for the keywords 

that best describe your area 

of querry. The power of 

Boolean searching is based 

on combinations of keywords 

with connecting terms called 

operators. The three basic 

operators are the terms AND, 

OR, and NOT. 

• The operator AND narrows a 


21



search by combining terms 

and retrieves every document 

that contains both of the 

words specified. For example 

to locate cases on advocate 

taxation using this search 

the engine will search the 

database and retrieve every 

record containing both of 

the words advocate and 

taxation and only the records 

containing both words will be 

retrieved. 

• The OR operator broadens 

or widens a search to include 

documents containing either 

keyword. The OR search is 

particularly useful when 

there are several common 

Editorial Department 

synonyms for a case or 

variant spellings of a name. 

For example to locate cases 

involving murder the engine 

will search the database for 

all cases containing murder 

and all cases containing 

manslaughter and retrieve 

them all. The OR searches 

often produce large numbers 

of documents. 

• Combining search terms with 

the NOT operator narrows a 

search by excluding unwanted 

terms. To find cases on 

children but not infants the 

engine will search for cases 

containing the word children 

and exclude all cases with the 

word infant. 

• Boolean search terms may be 

combined in various ways to 

carefully refine searches. 

Examples: 

• Murder OR manslaughter 

AND sentence 

• Advocate AND taxation 

NOT KRA 

• Children NOT infants 

AND adoption 

1) General Search 

2) Specific Search 

3) Boolean Search 

22 





Information Computer Technology (Ict) Department 

New revamped NCLR WEBSITE 

Internal PROJECTS 

By Michael Mayaka, Systems developer, 

Team leader , I.T. Department. 

The NCLR, in collaboration with 

Google, has continously endevoured 

to revamp the new website to 

mainly improve the following aspects: 

Search Engine Ranking 

Apart from enabling users to quickly 

search for content through google, 

Yahoo! and other search engines, the 

new website achitecture enables more 

relevant, accurate and organised search 

results. The new architecture exposes 

more content to web crawlers using 

Search Engine Friendly URLs. 

Case Search 

It is now possible to do full-text search 

and complex Boolean searches to find 

cases online. With this new functionality, 

one can view the snippet of the case and 

download if it is the right one. 

General Search 

The new website (Content Management 

System) allows global search of all 

content at www.kenyalaw.org. This is 

owed to the technical framework that 

has been employed. 

Ease of Use for Content Editors 

Rich Text Editor (RTE): 

Multiple RTEs with Microsoft Word-like 

icons, support for Win/IE, Mac/Safari 

and Mozilla Firefox on all platforms; 

WYSIWYG editors are highly configurable 

-- buttons and CSS styles can be added 

and removed 

Intuitive UI: The site is organized and 

displayed in the back end 

in a page-tree format that 

duplicates the structural layout 

of the site. File management 

functions are displayed in a 

directory-tree format that 

duplicates the directory 

structure of the installation. 

This makes finding pages and 

files easy for content editors. 

Spell checker is built into the 

Rich Text Editor 

Front end or Back end Editing: 

Users can choose to edit in 

either the front end (directly on 

the web page) or the website 

back end. 

Preview Content: Hidden, time- or access 

restricted content can be previewed 

online before publishing. 

Minimal Training Required: Editing 

content in the new CMS is as easy as 

editing in a Word Processor. Menu links 

are automatically generated as an editor 

adds pages and most content elements 

feature wizards for further ease-of-use. 

Wizards: Content wizards exist for forms, 

tables and image manipulation. 

Task Center: Ability to create and manage 

projects, email project members, edit 

recent pages, view/manage inbox, insert 

notes onto webpages and create special 

actions for downloading CSVs of parts 

of the database or setting up backend 

users quickly. 

Internal Search Engine: Editors can 

perform a search for a keyphrase within 

a section of the site. The results will 

return all the content elements with the 

phrase included. These can be edited at 

the same time. An extension performs 

a similar function, but allows the string 

to be replaced. 

Security Features 

Audit Trail: Administrators have access 

to one log in the backend or individual 

logs on each page where they can view 

changes that have been made to the 

database. Those can be rolled back to 

previous changes with by clicking the 

history brush. 

Content Approval: Simple workflow life 

cycle can be set up so that the work of an 

editor must be approved by a reviewer. 

User Privileges: An administrator can 

grant as little or as much control to 

content editors or groups as needed. 

They can remove buttons and extensions 

that are not needed for different editors. 

Standards Compliance and Single 

Source Publishing 

Accessibility/WAI Compliant: Using 

an open source framework, there is a 

project team dedicated to making all 

aspects of the site meet international 

accessibility standards, including the 

core and extensions. 

Content Syndication: It is possible to 

syndicate to external audiences via 

exporting or importing RSS feeds 

Other Compliance Features: FTP 

Support, UTF-8 Support, WML Support, 

WAP Support, Plain Text Support, 

Printer-friendly Support, PDF support, 

XHTML Support, XML Support, Multilanguage 

Support, 

Website Performance 

Advanced Caching: Navigation, content 

object or template caching; Caches can 

be cleared in the backend manually or 

pages can be set on individual schedules. 

Page Caching: The wesbite has page 

content caching 

Static Content Export: It is possible to 

publish pages to physical HTML files 

Integrated Service Desk 

The NCLR has now fully deployed and 

integrated all internal/external service 

desk functions under one ITIL-Compliant 

uniform platform. The Service Desk has 

all departments integrated seamlessly 

to allow ease of ticket handling. This 

platform has three interfaces. 


23




i. Customer Interface. This 

interface allows both internal/external 

registered 

users to raise queries. 

It also has an electronic 

suggestion box for anonymous 

posting. 

ii. Agent Interface: This allows 

internal users to 

login solutions for any 

raised tickets. 

iii. FAQ Interface: This supports 

administration and 

display of categorised and 

searchable FAQs. 

Main System Features: 

Web-Interface: 

• Agent web interface for 

viewing and working on all 

customer requests 

• Admin web interface for 

changing system con 

• Customer web interface for 

viewing and sending infos to 

the agents 

• Webinterface with Single sign 

on (e. g. HTTPBasicAuth or 

LogonTickets) 

• Multi language support 

• Webinterface with multi 

attachment support 

• Easy and logical to use 

Email-Interface: 

• MIME support (attachments) 

• PGP support 

• SMIME support 

• Dispatching of incoming email 

via email addess or x-header 

• Autoresponders for customers 

by incoming emails (per 

queue) 

• Auto convert of incoming html 

only emails to text/plain (to 

get it easier searchable) 

• Email-notification to the agent 

by new tickets, follow ups or 

lock timeouts 

• Follow up check based on 

references and in-reply-to 

header 

Ticket: 

• Custom queue view and 

queue view of all requests 

• Ticket locking, Ticket replies 

(standard responses), Ticket 

autoresponders per queue 

• Ticket history, evolution of 

ticket status and actions taken 

on ticket and ability to add 

notes (with different note 

types) to a ticket 

• Tickets can be bounced or 

forwarded to other email 

addresses or to a different 

queue. 

• Ticket priority, Ticket time 

accounting, Ticket print view 

(PDF) 

• Ticket pending feature, Ticket 

responsible feature, Ticket 

bulk feature 

• Generic agent to do 

automatically actions on 

tickets (based on scheduled 

jobs) 

• Content fulltext search, Ticket 

ACL support, Ticket workflow 

feature 

External PROJECTS 

In line with NCLR’s ICT Department 

Vision of being an exemplar in providing 

advanced, innovative technology 

solutions to support the ongoing mission 

and goals of the National Council for Law 

Reporting, the following projects have 

been rolled out 

Seychelles Judiciary Information System 

(JINFOSYS) 

As reported in our last Bench Bulletin, 

Michael Mayaka of NCLR had carried 

out a Systems Analysis which was later 

conceptualised in a System Design that 

was deployed as a prototype for the 

Seychelles Supreme Court. 

The next phase in the project (17th 

– 27th March, 2011) involved further 

customisation of the system stemming 

from user requirements. Instrumental 

in this process was the Chief Justice 

of Seychelles, His Lordship Fredrick 

Egonda-Ntende. This phase also involved 

further training of the registry clerks. 

It is during this visit that Michael made 

a presentation of the system to all the 

Judges of the Seychelles Supreme Court. 

This presentation covered aspects of: 

• Electronic Legal Content 

Management and challenges 

involved 

• Electronic Case Management 

Systems introduction 

• Case Study – The Eldoret Chief 

Magistrate Case Management 

System 

• Actual system – Seychelles 

JINFOSYS 

A tour of the System was presented and 

clarifications made on queries raised by 

the Judges Present. The Chief Justice of 

Seychelles shared the following message 

of gratitude: 

“I want first of all to express my gratitude 

to you for allowing us to share your 

case management software that is 

now referred to as JINFOSYS, Judiciary 

Information Systems Seychelles, that 

has been successfully installed by Mr. 

Mike Mayaka. We have been working 

with Mr. Mayaka to customise to our 

needs and he has gone to a considerable 

extent in doing so that will allow us now 

to start making use of the system. He has 

trained our staff on it, leaving us with the 

obligation to determine the next steps 

forward with regard to data entry of both 

legacy records and current records which 

we shall do in due course. 

It is clear that the programme is fairly 

modern and has the ability to be 

developed further to incorporate a 

number of other facets of a judiciary 

information system including 

maintaining a record of fees paid on 

each file, maintaining an electronic 

docket for each file with all records of 

pleadings, trial, rulings and decisions in 

one place, and expandable to electronic 

filing. We would like to work with you in 

moving into all these areas. The time Mr 

Mayaka has been with has been short 

but well spent while at the same time 

for your organisation it must be quite 

considerable given his absence…” 

24 





This project will eventually go a long way 

in availing public legal information to all. 

Being a collaborative effort, the project 


is opensource and non-proprietary. The 

vision is to have a common software 

platform for Legal Case Management 

New revamped 

NCLR WEBSITE 

especially in Africa. 

“Seek justice for all . . . Champion the cause of those who 

deserve redress for injury to personal property . . . Promote 

the public good through concerted efforts to secure safe 

products, a safe work place, a clean environment, and 

quality health care . . . Further the rule of law in a civil 

justice system, and protect the rights of the accused . . 

. Advance the common law and the finest traditions of 

jurisprudence . . . and uphold the honor and dignity of the 

legal profession and the highest standards of ethical conduct 

and integrity. 

Mission Statement - Association of Trial 

Lawyers of America” 


25




Making local public sector information 

EASIER TO ACCESS 

By Lameck Oyare, Web developer & Andago Martin, 

Asst Web developer. 

Year in, year out, thousands of 

documents are churned out by 

various government ministries, 

parastatals and other public sectors 

in forms of reports, concept papers, 

studies, judgments, among others. 

Information of this nature is supposed 

to be readily accessible to members of 

the society. 

well. These robots, or spiders, crawl 

the Internet, getting data on web pages 

for a specific keyword. They crawl by 

following links and giving importance to 

pages that are linked to. Hence, a good 

Sitemap is also used for search engine 

optimization. 

where to put them. Your site 

will not become a hodgepodge 

of pages without any relation to 

one another. 

2. No page will be left unvisited. 

The search engine spiders will 

be able to visit all the pages 

in your website if you have a 

Sitemap. Your pages will then be 

included in the search engines’ 

databases, increasing your 

ranking. 

3. Visitors will have an easier time 

to navigate your site. 

One factor why visitors stay on 

a site is the ease to navigate 

through the site. With a 

Sitemap, visitors will have an 

idea on what the contents are 

in your site. They can also easily 

access those pages within your 

site. Without a Sitemap, your 

visitors may even leave 

Many people use search engines like 

Google to find public information that 

is available on the World Wide Web. 

However, public information is not 

always easily accessible by search 

engines. In other words, some webpages 

may not be discoverable by 

Google’s normal process of following 

links; hence we’ll find it hard to make 

them available to Google’s users in 

search results. Herein lies the problem: 

Of what use is it to have information on 

your website if it is not easily accessible 

via search engines 

26 

A Webmaster (the person in charge 

of running a website) can solve this 

problem by adopting a Sitemap protocol. 

So, what is a Sitemap Strictly speaking, 

it is a graphical representation of the 

structure of your website. It shows how 

the pages are linked to one another and 

lists all the documents and files found 

in a website. These links are typically 

organized in a hierarchical manner, thus 

improving readability. 

Sitemaps not only benefit your ‘human’ 

visitors but if done correctly, they will 

help your search engine ranking as 


A screen shot of Google Webmaster Tools used to manage the sitemap. 

Benefits of a Sitemap 

Creating a Sitemap takes time and effort, 

so why have one 

The following lists some of the benefits 

for creating a Sitemap for your website. 

1. You can use a Sitemap as a 

planning tool for web design. 

Even if you have a website with 

few pages, it is good to have a 

structure of your website. This 

way, if you are to add more 

pages later on, you will know 

your site, going back to the 

search engine pages, to look for 

information that may be in your 

website. 

4. A Sitemap may encourage more 

traffic. 

As your website grows, you 

must update your Sitemap. 

This way, visitors will know that 

content is being added to your 

website, encouraging them to 

return. This is also true if you 

are selling products or offering 




services. Potential buyers will 

immediately know your latest 

products or services by visiting 

your Sitemap. 

5. There is potential advertising 

value when using a Sitemap. 

With a Sitemap, potential 

advertisers will find it easy to 

best position themselves in the 

different pages of your website 


where they can advertise. This 

will mean additional income for 

you. 


partnered with Google Inc. to create 

a Sitemap for their website: www. 

kenyalaw.org. Operating on dedicated 

video conference training sessions 

for two months, the team involved 


SITEMAP 

successfully completed the project. The 

result: Over 22,000 pages (and more 

coming up) of Kenyan court cases, both 

High Court and Court of Appeal are 

now fully available to users and search 

engines with the adoption of the open 

Sitemap protocol. 


27



Laws Of Kenya Department 

Legislative drafting training for THE LAWS OF KENYA 

DEPARTMENT HELD ON THE ON 15TH AND 16TH MARCH 

2011 

By Ann Asugah, Team leader, Laws of kenya Department & Lucy Wamatu 

Laws of Kenya Department Copy reader. 

reported by a lawyer revealed use of 

unnecessary legal jargon which ought 

to be avoided when drafting legislation. 

Other notable points when drafting 

legislation are to take into account the 

end user of the law-the end user being 

the public, a legislative sentence should 

be simple and contain only one idea. 

Legislation should use gender-neutral 

language and have internal consistency 

to ensure that similar terms carry the 

same meaning within the particular 

legislation and across any referential 

legislation. 

The Laws of Kenya Department is one 

of the Departments in the National 

Council for Law Reporting with the 

mandate of updating and revising the 

Laws of Kenya. The vision and mission 

of the Department is to establish the 

National Council for Law Reporting as 

a centre of excellence in the revision, 

updating and consolidation of national 

legislation and to ensure the continuous 

revision and updating of all the laws of 

Kenya and to provide their affordable, 

efficient and timely access respectively. 

In preparing its strategic plan, the 

Department recognised the knowledge 

gap in legislative drafting and listed 

training in the same as one of the 

activities. In this regard, the National 

Council for Law Reporting sought the 

expertise of one of the renowned 

legislative drafters, Johnson Okoth 

Okello, Director of Legislative Drafting 

at the Kenya Law Reform Commission 

to facilitate the training on 15th and 

16th March 2011 at the Kenya Comfort 

Hotel Nairobi. Members of staff from 

other departments in Council such as 

Information Technology, Research and 

Development also attended the training. 

To ensure that the training had relevance 

to members of the department, the Head 

of Department listed the expectations 

of the members before the training 

began. Some of the expectations were 

to learn more about legislative drafting, 

inconsistencies in legislative drafting, 

transitional provisions in subsidiary 

legislation and understand the nexus 

between policy development and 

legislation 

The training sessions were in the form of 

interactive discussions and highlighted 

the various facets of Legislative drafting 

and especially the requirement that a 

drafter be aware of the policy guideline 

behind every legislation. Below is a 

highlight of the key issues that emerged 

from the training. 

Definition of Legislative drafting 

The facilitator, Mr. Okello opened the 

training by going through introduction 

to legislative drafting where he began by 

defining legislative drafting as a process 

where policy statements are converted 

into law that stipulate duties, rights, 

powers, privileges and obligations. He 

then proceeded to outline the role of 

legislation where he stated that law is 

supposed to promote good governance 

and stimulate development. 

Drafting rules; Simple clear and 

precise language: Exodus 7: 20-21 

There were a number of key notable 

points outlined that ought to be in a 

legislative drafters mind when it comes 

to drafting legislation. For instance 

legislation should be drafted in simple, 

clear and precise language. To drive this 

point home, Mr. Okello used an excerpt 

from the bible i.e. Exodus 7:20-21; where 

the language used is simple, clear and 

precise but a contrast to the same being 

When does drafting begin 

The second session kicked off on 16th 

March 2011 where the team was taken 

through the structure of a Bill. Key 

facts to note were that drafting begins 

with receiving of instructions from the 

Ministry or Department of Government, 

which would like to formulate legislation, 

ideally from an existing policy. In ideal 

circumstances, every Bill should be 

preceded by a policy but in Kenya this 

has not been the case. The facilitator 

gave examples of the Sexual offences Act 

2006, which was drafted in the absence 

of a policy and has undergone several 

amendments to accommodate emerging 

issues. Also the Alcoholic Drinks Control 

Act 2010, which has raised furor over its 

implementation implications with many 

business persons citing huge business 

losses. 

Structure of a Bill 

The facilitator pointed out four main 

parts contained in a Bill, namely: 

preliminary principal, miscellaneous, 

and Final provisions. These were further 

broken down; preliminary provisions 

contains the arrangement of sections, 

long title, preamble- especially in civil 

jurisdictions that contains aspirations 

of the people, enacting formula- which 

acknowledges the authority that is 

legislating etc. 

Further, under preliminary provisions 

there is also commencement (which gives 

the date when it comes into operation 

and where it is not stated the general 

28 





rule is that it comes into operation 14 

days from the date of assent), short title 

which describes the name of the Act, 

interpretation provisions which define 

terms and phraseology used in the Act 

and application (where certain statutes 

may apply only in certain areas or to 

certain categories of persons). Principal 

provisions are divided into substantive 

provisions and administrative provisions 

whereas miscellaneous provisions 

and supplementary provisions include 

financial matters, offences, power to 

make regulations, search, seizure and 

arrest. Final provisions include savings 

(save what has happened under the old 

law), transitional provisions, repeals and 

consequential amendments. 

Legislative sentences 

This was one of the highlights of the 

training. Some of the attributes of the 

legislative sentence expounded were 

that the sentence should be short, 

preferably between 12-15 words and 

should have one central message, should 

use the narrative style rule which states 

that if a sentence refers to a person and 

thing, the person becomes the subject 

not the thing), use of active rather 

than passive voice, use present tense, 

etc. Participants with the help of the 

facilitator carried out an exercise in 

drafting legislative sentences to actualize 

what they had learnt. 

Choice of words 

The facilitator cautioned on the choice 

of words when it comes to drafting. In 

particular, he noted that drafting ought 

to be in simple and familiar words, and 

use of Latin and French expressions 

ought to be avoided’ Eg ‘ Mutatis 

mutandis’. Further, some terminologies 

only served to confuse the readers more 

and should not be used; aforesaid, above 

mentioned, aforementioned, and or, 

foregoing, forthwith, hereafter hereby, 

hereinbefore, hereinafter, hitherto, 

pursuant to, whatsoever, wheresoever’s, 

whomsoever, jointly and severally, aid 

and abet, etc 

Disjunctive and conjunctive words 

The facilitator took the participants 

through the use of disjunctive and 

conjunctive words in drafting. He 

particularly focused on the word 

‘and’ which should only be used in a 

conjunctive sense while ‘or’ should be 


used in a disjunctive sense i.e. to give 

alternatives. In drafting therefore, the 

two should not be used together. In 

cases where the law imposes a duty, 

words such as must and shall are invoked 

to communicate a mandatory process. 

Where the law is to impose discretion, 

words such as ‘may’ are used. 

AMENDMENTS 

The participants had expressed strong 

expectation of going through the various 

terminologies related to amendments. 

The facilitator elaborated on the subject 

and stated that an amendment either 

repeals or alters/ substitutes existing 

provisions in legislation or it incorporates 

new provisions in the text. In particular, he 

noted that before drafting amendments, 

one had to understand; the purpose of 

that amendment, the substance of the 

proposed changes and the effect of the 

amendment for all other existing laws, 

i.e. consequential amendments. This 

sometimes leads to repeal by implication 

yet as a general rule, the repeal of a 

law ought to be through an express 

provision. As a general rule, the language 

in the amending Act must reflect the 

language in the principal Act. 

Amendments can be textual amendment 

or referential. Textual also known 

as direct amendment, is where the 

amendment expressly alters or changes 

the text of the existing law either by 

repeal, insertion, addition, incorporation 

or replacement. Referential amendments 

also known as indirect amendment gives 

a reference to an existing law and gives 

a narrative description or statement in 

the amending law which simply declares 

the effect of the amendment. 

Some common expressions in 

amendments; 

a) Repeal is the complete removal 

of a stand-alone provision. One 

can repeal an Act, part, subpart, 

schedule, and section. 

This therefore means that if one 

wants to remove a sentence, 

you don’t talk of repeal but 

rather delete or omit e.g. 

paragraph, sub-paragraph. 

b) Substitute refers to bringing in 

something new to replace what 

you have repealed, deleted or 

omitted. 

c) Insert or add refers to bringing 

in new material without 

necessarily having removed any 

material from the existing law 

removing, repealing or omitting. 

d) Revoke is used when referring 

to subsidiary legislation such 

as gazette notice, regulations, 

etc. Regulations are usually 

revoked in their entirety and 

the term delete is used if only 

some of the regulations are 

being removed. 

The participants stated that they training 

had met most of their expectations but 

that it should have been allocated more 

time. It was indeed a fruitful training 

for the participants and has equipped 

the law revision team with necessary 

skills and knowledge to carry out statute 

revision and consolidation. 

“Legislative literature, 

which governs our 

activities in almost all 

spheres, has a considerable 

control over our lives 

and puts every citizen 

on the alert to obey the 

law. Ignorance of law 

is no excuse. The State 

must, therefore, make the 

meaning of legislation 

easily legible especially 

because legal literacy is 

limited in our people. The 

paramount social value 

of juristic lucidity and 

legislative clarity springs 

from the need to avoid the 

litigative potential and 

interpretive ambiguity of 

ill-drafted bills.” 


29




Mr Okello during one of the 

training sessions 

Members keenly follow up the training session 

30 






Mr Okello (left) pause with members of department 

after the training 


31




Statute revision and consolidation: ALLOCATION OF 

CHAPTER NUMBERS TO VARIOUS ACTS OF PARLIAMENT 

By Ms Petronella Mukaindo Asst. 

Law Reporter 

Law is not static and will continuously 

and constantly develop in response 

to changing societal needs. 

The Revision of the Laws Act, Chapter 

1 of the Laws of Kenya is the core 

legislative framework governing law 

revision in Kenya. The Act empowers 

the Attorney General to carry out certain 

actions in relation to the updating and 

revision of the Laws of Kenya. It also 

offers guidelines on how the revision 

of the laws is to be done and stipulates 

what powers the Attorney General has in 

relation to the mandate of law revision. 

Furthering defines the content of laws of 

Kenya, legislation that may be omitted 

from the Laws of Kenya and the method 

of compiling the laws. 

Law Revision Defined 

Black’s Law Dictionary (8th edition) 

defines revision as “A re-examination 

or careful review for correction or 

improvement;” while the Thesaurus 

online dictionary defines it as the 

act of revising or altering (involving 

reconsideration and modification);’ 

and a revision as ‘[a] change, review, 

amendment, modification, alteration, 

or re-examination.’ 

Law Revision Vis-a-Vis Law making 

Power of law revision is not synonymous 

with legislative making authority. 

Whereas power to make (or amend 

substance of the law) is primarily vested 

in the legislature, the power to revise 

laws is vested in the Attorney General: 

As legislation quickly goes through the 

various stages from its drafting to debate 

and subsequent amendments to the 

final print, many times the law is visited 

with several errors ranging from simple 

typographical errors to complex errors 

affecting the substance of the law. 

Breadth of Law Revision 

Under section 8 of the Act, the Attorney 

General has wide powers to ‘clean up’ 

statute law by altering the form and 

applying other methods necessary for 

purposes of perfecting the Laws of 

Kenya. He has powers for instance, to 

alter the form or arrangement of any 

section of law, to renumber the sections 

of law, to divide any law into Parts 

or other divisions, to supply or alter 

marginal notes and tables showing the 

arrangement of sections, to shorten or 

simplify the phraseology of law, to add 

short title or citation to any law which 

requires it, to correct grammatical and 

typographical mistakes and to correct 

the punctuation in law amongst other 

powers. 

Under Section 13 of the Act, the Attorney 

General is empowered to rectify any 

clerical or printing errors appearing in 

the Laws of Kenya. The section provides 

as follows: 

“The Attorney-General may, by order 

in the Gazette, rectify any clerical 

or printing error appearing in the 

Laws of Kenya, or rectify in a manner 

not inconsistent with the powers of 

revision conferred by this Act any other 

error so appearing.” 

However, under section 8 (4) of the Act, 

the Attorney-General cannot make any 

alteration or amendment which affects 

the substance of any law. 

Allocation of Chapter Numbers 

Apart from names of Act, chapter 

numbers or Act numbers in case of new 

legislation have formed an important 

part in the legislative nomenclature. 

Until we devise an alternative mode 

of referencing our Acts, the chapter 

numbers (usually referred to as Cap. 

Numbers) remain an integral part in 

identifying legislation. 

Under section 8(1) (b) of the Revision of 

the Laws Act, the Attorney General has 

power to allocate chapter numbers to 

new Acts of parliament and even arrange 

the chapter numbers in certain groups. 

The relevant paragraph provides thus: 

“8. (1) In the preparation of the annual 

supplement to the Laws of Kenya 

the Attorney-General shall have the 

following powers - 

“(b) to allocate Chapter numbers to 

newly included Acts and subsidiary 

legislation and generally to arrange 

the Acts by Chapters in such sequence 

and groups and generally in such order 

and manner as the Attorney-General 

thinks proper, and to leave unallocated 

between groups or in groups such 

Chapter numbers as he considers may 

be required for Acts to be enacted in 

the future.” 

The Attorney General has in the recent 

past allocated new chapter numbers 

to several Acts of parliament. The 

trend being that newly enacted Acts of 

parliament have assumed the chapter 

numbers belonging to the respective 

repealed Acts. 

Furthermore, Acts addressing same 

or similar subject matter have been 

categorized in the same grouping. For 

instance, a majority of Acts governing 

the various Universities share similar 

chapter number, being put apart only 

by a different letter of alphabet so that 

we have Chapter 210(University of 

Nairobi), Chapter 210A(Moi University) 

up to Chapter 210F (Masinde Muliro 

University of Science and Technology 

Act) . 

1 

The power of law revision was in year 2009 delegated to the National Council for Law Reporting through Legal Notice number 29 of 2009. 

32 






• The table below reflects some of the various Acts that have been allocated new chapter numbers in the recent past: 

NAME OF ACT OLD NUMBER NEW CHAPTER NUMBER 

1. 

Accountants Act 

15 of 2008 

531 

2. 

Anti-Corruption and Economic 

Crimes Act 

3 of 2003 

65 

3. 

Arbitration 

4 of 1995 49 

4. 

Auctioneers Act 

5 of 1995 

526 

5. 

Children’s Act 

8 of 2001 

141 

6. 

Coffee Act 

9 of 2001 

333 

7. 

Constitution of Kenya Review Act 

9 of 2008 

3A 

8. 

Copyright Act 

12 of 2001 

130 

9. 

Electric Power Act (now Repealed) 

11 of 1997 

314 

10. 

Employment Act 

11 of 2007 

226 

11. 

Fiscal Management Act 

5 of 2009 

412D 

12. 

Forest Act 

7 of 2005 

385 

13. 

Industrial Property Act 

3 of 2001 

509 

14. 

Investment Promotion Act 

6 of 2004 

485B 


33





15. 

Jomo Kenyatta University of 

Agriculture and Technology Act 

8 of 1994 

210E 

16. 

Kenya Information and 

Communications Act 

2 of 1998 

411A 

17. 

Kenya Roads Board’s Act 7 of 1999 408 

18. 

Labour Relations Act 

14 of 2007 234 

19. 

Land Disputes Tribunals Act 

18 of 1990 

303A 

20. 

Maseno University Act 

7 of 2000 

210D 

21. 

Masinde Muliro University of 

Science and Technology Act 

18 of 2006 

210F 

22. 

Media Act 

3 of 2007 

411B 

23. 

Narcotic Drugs and Psychotropic 

Substances (Control) Act 

4 of 1994 

245 

24. 

National Museums and Heritage 

Act 

6 of 2006 

216 

25. 

Occupational Safety and Health 

Act 

15 of 2007 

514 

26. 

Parliamentary Service 

Commission Act 

10 of 2000 

185A 

27. 

Political Parties Act 

10 of 2007 

7A 

28. 

Postal Corporation Act 

3 of 1998 

411 

34 







29. 

Privatization Act 

5 of 2004 

485C 

30. 

Public Audit Act 

12 of 2003 

412A 

31. 

Public Officer Ethics Act 4 of 2003 183 

32. 

Public Procurement and Disposal 

Act 

3 of 2005 412C 

33. 

Retirement Benefits Act 

3 of 1997 

197 

34. 

Sacco Societies Act 

14 of 2008 

490A 

35. 

Sugar Act 

10 of 2001 

342 

36. 

Water Act 

8 of 2002 

372 

37. 

Witness Protection Act 

16 of 2006 

79 

38. 

Work Injury Benefits Act 

13 of 2007 

236 

*The new chapter numbers have been allocated pending their publication in the Annual Supplement. 

“That old law about ‘an eye for an eye’ 

leaves everybody blind. The time is always 

right to do the right thing.” 

Martin Luther King, Jr. 


35




Synopsis of BILLS AND ACTS OF PARLIAMENT 

(By Ms Petronella Mukaindo Asst. Law Reporter) 

1.Independent Electoral and 

Boundaries Commission Bill, 2011 

Article 88 of the Constitution 

establishes the Independent 

Electoral and Boundaries 

Commission (IEBC) whose mandate is 

to conduct and supervise referenda and 

elections to any elective body or office 

established by the Constitution. 

The Commission has constitutional 

mandate to among other things ensure 

regular revision of the voters’ registers 

and continuous registration of voters, 

the delimitation of constituencies and 

wards, settlement of electoral disputes, 

voter education and registration of 

candidates for election. 

Under Article 89 of the Constitution, the 

IEBC is tasked with reviewing the names 

and boundaries of constituencies at 

intervals of between eight and twelve 

years while the reviewing of the names 

and boundaries of wards is to be done 

periodically. The Article goes further 

to detail the criteria to be used in 

determining the electoral boundaries. 

The object of the Bill is to provide for 

the operations, powers and functions of 

the Commission to supervise elections 

and referenda at County and National 

government levels, to provide a legal 

framework for the identification and 

appointment of the chairperson, 

members and the secretary of the 

Commission, provide for the manner 

of the exercise of the powers and 

functions of the Commission, establish 

mechanisms for the Commission to 

facilitate consultations with interested 

parties and establish mechanisms for 

the Commission to address the issues 

arising out of the first review. 

Clause 5 gives the composition of the 

Commission. The Commission is to 

consist of a chairperson and eight other 

members who are to be appointed in 

accordance with the First Schedule for a 

non-renewable term of six years. 

Part II contains provisions on the 

administration of the Commission. 

These include provisions on the 

Commission’s functions, the 

appointment and terms of service of its 

members and staff and the creation of 

internal structures for the performance 

of its functions. 

Part III of the Bill provides for the 

establishment and administration of the 

Independent Electoral and Boundaries 

Commission Fund and other financial 

procedures of the Commission. 

2. Unclaimed Financial Assets Bill, 

2011 

The large amounts of unclaimed assetsliquid 

or otherwise held by financial and 

other institution has necessitated this 

legislative framework to particularly deal 

with such unclaimed assets. 

The Unclaimed Financial Assets Bill 

provides for the reporting and dealing 

with unclaimed financial assets. 

The only present legislation that 

comes close to addressing issues of 

disposal of assets is the Disposal of 

Uncollected Goods Act (Chapter 38) 

whose application is limited to goods 

in the possession or under the control 

of a custodian under certain types of 

contracts enumerated under section 

3 of the Act. The Act requires that the 

custodian of the goods gives notice 

in writing to the depositor/owner of 

the goods that the goods are ready 

for delivery. Such notice may also be 

accompanied or subsequently followed 

by a notice terminating the obligation 

as custodian. There must however be a 

notice period of at least 30 days after the 

date on which notice to take delivery is 

given before the custodian can then go 

ahead to take further action in respect of 

the goods in his custody which includes 

starting proceedings for selling the goods 

under the Act. The custodian is expected 

to comply with the provisions of sections 

6 and 7 of the Act before selling the 

goods which includes a written notice 

of intention to sell. 

The other legislation that remotely 

relates to the disposal of items is the 

Records Disposal Act (Chapter 14). 

This piece of legislation however only 

governs disposal of court records. Before 

destroying any record, book or paper, 

the court or officer desiring to destroy is 

required to give at least three months’ 

notice in the Gazette of his intention to 

apply to the Chief Justice for leave to 

destroy the material, together with a 

summarized description in the notice of 

the record, book or paper in question. 

Under rule 6 of the Records Disposal 

(Courts) Rules, all records, books and 

papers to be destroyed are to be burnt 

in the presence of a magistrate or a 

deputy registrar of the High Court, or 

any other officer authorized by either a 

magistrate or a deputy registrar who is to 

make appropriate entries in appropriate 

court register. 

The First Schedule to the Rules provides 

a description of records that may be 

destroyed and the period after which 

the same may be destroyed. 

Public Archives and Documentation 

Service Act, (Chapter 19) of the Laws 

of Kenya briefly makes reference to 

destruction of Public Archives or records 

in the custody of the Kenya National 

Archives and Documentation Service. 

Part IV of the Bill establishes and 

incorporates the Unclaimed Financial 

Assets Authority whose mandate is 

to enforce the provisions under the 

Act, make and receive payments to/ 

out of the Fund, manage and invest the 

funds of the Authority and advise the 

Minister responsible for matters related 

to finance) on the national policy to 

be followed with regard to unclaimed 

assets and to implement all government 

policies relating to it. The Authority is 

required to maintain a database of all 

the unclaimed assets vested on it under 

the Bill 

Part III of the Bill provides for the manner 

in which unclaimed financial assets 

are to be dealt with and the duties 

incumbent upon holders of unclaimed 

assets. In particular, a duty is imposed on 

such a holder to make reasonable efforts 

to locate the owner of the unclaimed 

assets and notify such owner accordingly 

of the existence of the assets. Similarly, 

the holder of unclaimed assets which 

36 





are presumed to be abandoned is placed 

under an obligation to compile a report 

setting out various details pertaining to 

the assets and submit the same to the 

Unclaimed Financial Assets Authority. 

The Authority is also empowered under 

this Part to seek information from the 

holder of unclaimed assets which are 

deemed to have been abandoned. 

A person filing a report under this Part 

is obligated to deliver the unclaimed 

assets to the Authority at the time of 

making the report and the Authority is 

thereby required to take custody of the 

unclaimed assets. 

Under this Part, the Authority is 

empowered to sell unclaimed assets 

in its custody, upon expiry of three 

years from the time it took custody of 

the assets, by way of public auction. 

Similarly, a person claiming an interest 

in unclaimed assets in the custody of the 

Authority is allowed to lodge a claim with 

the Authority, and if the claim succeeds, 

the Authority is required to deliver the 

assets the subject of the claim to the 

claimant. 

Clause 39 establishes the Unclaimed 

Financial Assets Trust Fund into which 

all moneys that form part of unclaimed 

assets and the moneys realized from the 

sale of unclaimed assets by the Authority 

are to be paid. Such moneys are to be 

used to pay or defray the various costs 

in the administration of the Fund. 

3. Salaries and Remuneration 

Commission Bill, 2011 

Article 230 of the Constitution 

establishes the Salaries and 

Remuneration Commission and outlines 

the qualifications and appointment of 

members. Under Article 230(4), the 

Commission is empowered to set and 

regularly review the remuneration and 

benefits of all State officers and advise 

the national and county governments 

on the remuneration and benefits of all 

other public officers. 

Clause 11 of the Bill provides for 

additional functions of the Commission 

which include keeping under review 

all matters relating to remuneration of 

public officers, conducting comparative 

surveys on the labour markets and 

trends in remuneration to determine 

the monetary worth of the jobs of 


public offices, determining the cycle 

of salaries and remuneration review 

upon which Parliament may allocate 

adequate funds for implementation, 

making recommendations on matters 

relating to the salary and remuneration 

of a particular public officer and making 

recommendations on the review of 

pensions payable to holders of public 

offices. 

The Commission is to have wide powers 

in the performance of its mandate 

including power to gather, by any 

means appropriate, any information it 

considers relevant, including requisition 

of reports, records, documents or any 

information from any source, including 

governmental authorities, interviewing 

any individual, group or members of 

organizations or institutions, holding 

inquiries and taking any measures it 

considers necessary to ensure equity 

and fairness in the harmonization of 

salaries and remuneration in the public 

sector. 

The Bill provides for additional powers 

and functions of the commission, 

qualifications and procedures for the 

appointment of the members of the 

commission. Clause 7 provides for the 

procedure of appointment and requires 

that all vacancies be advertised in at least 

two local dailies of national circulation 

and individuals given opportunity to 

apply. Applicants can then forward 

their applications to their respective 

nominating institutions, which shall 

interview and nominate accordingly. 

The names will then be forwarded to 

the President who will in turn forward 

them to the National Assembly for 

approval. Upon approval by the National 

Assembly, the President will appoint the 

chairperson and the members. Before 

taking office members are required to 

subscribe to an oath of office. 

4.Vetting of Judges and Magistrates 

(Amendment) Act, 2011 

This Act amends the Vetting of Judges 

and Magistrates Act (No. 2 of 2011) by 

introducing the definition of ‘pending 

complaints’ as criteria for determining 

suitability of judicial officers under 

section 18(e) of the Act, so as to limit 

the complaints to ones filed at least 

fourteen days before the vetting of a 

judicial officer. 

Section 18 of the Act provides for the 

criteria for determining suitability of 

judges and magistrates. Some of the 

considerations include: whether the 

judicial officer meets the 

Constitutional criteria for appointment 

to the respective position, past 

judicial pronouncements, pending 

or concluded criminal cases before a 

court of law against the judicial officer, 

recommendations for prosecution of 

the judge or magistrate by the Attorney- 

General or the Kenya Anti-Corruption 

Commission and pending complaints 

received from any person or body. This 

latter criterion was qualified so that the 

admissible pending complaints are those 

made not less than two weeks before 

vetting of the judicial officer concerned. 

The Amendment Act also amends 

section 9(2) of the Act by requiring that 

vacancies to the Judges and Magistrates 

Vetting Board be advertised not only in 

the Kenya Gazette but also in at least 

two newspapers of national circulation. 

5.Supreme Court Acts 2011 

This legislative framework seeks to 

operationalise Article 163 of the 

Constitution which establishes the 

Supreme Court. 

The Supreme Court is to consist of the 

Chief Justice as the president of the 

court; Deputy Chief Justice was the 

vice-president of the court and five 

other judges. 

The Supreme Court has exclusive original 

jurisdiction to hear and determine 

disputes relating to elections to the 

office of the President. It also has 

appellate jurisdiction to determine 

appeals from the Court of Appeal or 

any other court or tribunal where the 

issue for determination involves the 

interpretation or application of the 

Constitution or if the Supreme Court or 

court of appeal certifies that the matter 

is of general public importance. 

The Bill makes further provisions with 

respect to the operation of the Supreme 

Court as a court of final judicial authority, 

exercise of the Court’s appellate 

jurisdiction and the administrative 

mechanisms for the Court. 

The Supreme Court is to be the court 

of final judicial authority and is tasked 


37



with asserting the supremacy of the 

Constitution and the sovereignty of the 

people of Kenya, providing authoritative 

and impartial interpretation of 

the Constitution, developing rich 

jurisprudence that respects Kenya’s 

history and traditions and facilitates its 

social, economic and political growth, 

determining important constitutional 

and other legal matters requiring to 

be determined having due regard to 

the circumstances, history and cultures 

of the people of Kenya, improving 

access to justice and providing for the 

administration of the Supreme Court. 

Under Clause 14, the court has special 

jurisdiction to within one year after 

the commencement of the Act, either 

on application of any person or on its 

own motion review the judgments 

and decisions of any judge who is 

removed from office on account of a 

recommendation by a tribunal appointed 

by the President, whether before or 

after the commencement of the Act or 

removed from office pursuant to the 

Vetting of Judges and Magistrates Act; 

or who resigns or opts to retire, whether 

before or after the commencement of 

the Act, in consequence of a complaint 

of misconduct or misbehaviour. 

Such decision should have been the 

basis of the removal or complaint 

against the judge for it to qualify for 

review. An application for review is not 

to be entertained after two years of the 

commencement of this Act. 

6. Independent Offices (Appointment) 

Bill, 2011 

Independent Offices are the Auditor- 

General and the Controller of Budget as 

stipulated under Article 248(3) of the 

Constitution. Each is a body corporate 

with perpetual succession and a seal, 

capable of suing and being sued in its 

corporate name (see Article 253 of the 

Constitution). 

Article 228 of the Constitution provides 

for a Controller of Budget who is to be 

appointed by the President on approval 

by the National Assembly. The Controller 

of budget is to hold office for only one 

term of eight years. 

The purpose of the controller of Budget 

is to oversee the implementation 

of the budgets of the national and 


county governments. The Controller 

of Budget will authorize withdrawals 

from Equalization Fund, Consolidated 

Fund and the Revenue Fund as provided 

under Articles 204, 206 and 207 of the 

Constitution respectively. 

Article 229 of the Constitution establishes 

office of the Auditor General who is to 

be appointed by the President after on 

approval by the National Assembly for a 

non-renewable tem of eight years. 

It will be the Auditor-General’s mandate 

to audit and report the accounts of 

the national and county governments, 

courts, commissions, National Assembly, 

political parties and any entity funded 

from public funds within a period of six 

months after the end of each financial 

year. The audit report will then be 

submitted to parliament or the relevant 

county assembly who should then 

debate the report and take appropriate 

action within three months. 

The President, the National Assembly or 

even the senate may require a holder of 

an independent office to submit a report 

on a particular issue. Such report is to be 

published and publicized. 

The Bill seeks to prescribe the 

procedure for the identification and 

recommendation for appointment of 

independent offices holders, pursuant to 

Article 250(2) of the Constitution. 

Clause 5 of this Bill outlines the 

nomination procedure as follows:- 

The President is to within seven days 

of the commencement of the Act, 

or occurrence of a vacancy in an 

independent office, put a notice in the 

Gazette, at least two newspapers of 

national circulation and in at least two 

national radio and television stations, 

declaring vacancies in the independent 

offices and inviting applications. 

Such application is to be forwarded to 

the Public Service Commission within 

fourteen days of the notice. Names of 

all applicants are to be published in the 

Gazette. Within seven days, the Public 

Service Commission is then to convene 

a committee comprising representatives 

from the office of the president, office of 

the Prime Minister, Ministry responsible 

for finance matters, state law office 

and ministry responsible for matters 

relating to public service for purposes 

of considering the applications. Three 

qualified persons are to be selected 

and names forwarded to the President 

within seven days of the selection. 

The President within seven days then 

nominates one person to the relevant 

office(s) and forwards the name(s) to 

National Assembly for approval. The 

Nation Assembly is to debate within 

fourteen days and forward names to 

the President for appointment and 

gazettement. 

7. National Drug Control Authority 

Bill, 2011 

Drugs and substances abuse including 

drug trafficking have been rampant in 

today’s modern Kenya raising concerns 

over the fate of a young society, with 

questions as to who shoulders the 

responsibility and what mechanisms 

were in place to deal with the the vice. 

The purpose of this Bill is to make legal 

provisions for the coordination of efforts 

to manage drug and chemical substances 

and other related abuse addictions in 

society. 

The Bill proposes to set up the National 

Drug Control Authority as the successor 

to the National Campaign Against Drug 

Abuse Authority (NACADAA) so as to give 

it more statutory recognition and power 

to superintend over organizations, 

bodies and departments empowered 

by various statutes to deal with drugs 

and chemical substances and ensure 

the applicable laws and legal sanctions 

re enforced. 

The present NACADAA was established 

through a presidential Order as a state 

corporation under the State Corporations 

Act (Cap. 446) through legal notice 

number 140 of 2007 effectively replacing 

the then National Campaign Against 

Drug Abuse Advisory Board . Its mandate 

involved more of advisory role and 

developmental programmes geared 

against substance abuse but lacked the 

‘teeth to bite’ to ensure compliance 

from relevant agencies. If this Bill is 

passed into law, the Authority will be 

able to facilitate compliance and ensure 

coordination of the implementing 

agencies of government in the control 

and elimination of drug and chemical 

substance abuse. 

Clause 5 of the Bill confers on the 

38 





Authority wide powers which includes 

power of receiving complaint or 

allegation of the production, trafficking, 

consumption or concealment of drugs 

or chemical substances of abuse and 

referring to the relevant institutions 

for investigation and necessary action, 

facilitating and promoting the tracing of 

proceeds and assets acquired through 

drug trafficking and advocating for 

forfeiture, liaising with law enforcement 

agencies in the enforcement of legislation 

against production of narcotic drugs or 

psychotropic substances, trafficking 

and abuse, extradition of suspects, 

training and assets forfeiture, ensuring 

and supporting the relevant bodies of 

government in developing strategies for 

the surveillance of emerging patterns of 

abuse, new precursors, new reagents, 

new solvents, new drugs and their 

variants as well as emerging modes of 

production, importation, trafficking, 

distribution and concealment, 

monitoring trends in the control of 

drugs abuse at national, regional and 

international levels and facilitating and 

ensuring the formulation of national 

policies and plans of action on drugs 

and chemical substances of abuse 

control for the relevant bodies, organs 

or department of Government. 

Part IV of the Act makes room for 

enforcement provisions. Clauses 19, 20, 

21 and 22 of the Bill make provision for 

appointment of authorized officers who 

have power of search and seizure. Such 

officers can make application to court 

to obtain search warrants in ensuring 

compliance to any relevant legislation. 

1. CAPITAL MARKETS (AMENDMENT) 

BILL, 2011 

The Bill, sponsored by the Minister for 

Finance, amends several provisions of 

the Capital Markets Act; Chapter 485A 

of the Laws of Kenya. 

The Bill introduces the concept of 

futures market for trade in commodity 

derivatives. The definition of the word 

‘securities’ is expanded to include 

futures contracts and options contracts 

on securities, indices, interest, 

currency, futures or commodities. 

‘futures contract’ is a contract for the 

acquisition or disposal of securities or 

other instruments under which delivery 

is to be made at a future date and at a 


price agreed upon when the contract 

is made. 

The Bill seeks to introduce Part IIA 

which recognizes self regulatory 

organizations and provides mechanisms 

for their operations. An organization 

seeking to operate as a self regulatory 

authority must apply to the Capital 

Markets Authority in the prescribed 

form. The Authority will then gazette 

such organization as recognized selfregulatory 

organization where it is 

satisfied amongst other things that the 

organization has a Constitution and 

internal rules and policies consistent with 

the Act, that the organization has the 

financial and administrative resources 

necessary to carry out its functions as a 

self regulatory organization and that it 

has competent personnel. 

It is an offence for an organization to 

operate as a self regulatory organization 

without being recognized as such. The 

Capital Markets Authority may in writing 

delegate any of its powers or functions 

to a self regulatory organization. 

The Bill also intends to introduce the 

concept of over-the –counter market for 

bonds. Thus, bonds need not necessarily 

be traded at an approved securities 

exchange as this can be done over the 

counter. 

2.CENTRAL DEPOSITORIES 

(AMENDMENT)) BILL, 2011 

The Central Depositories Act, No. 4 

of 2000 is the legislation that governs 

central depositories in Kenya. The 

Central Depositories (Amendment)) 

Bill introduces vast amendments to the 

Act and details out the mechanisms 

for the establishment, operations and 

regulation of central depositories. 

The Bill seeks to amend the Central 

Depositories Act to provide for the 

licensing and operations of central 

depositories. A central depository is 

defined as a company licensed by the 

Capital Markets Authority to establish 

and operate a system for the central 

handling of securities. 

Furthermore the proposed law provides 

for the regulation and management of 

the central depositories by the Authority. 

The Bill details out the powers of the 

Authority over the central depositories 

including power to license supervise 

and monitor the activities of central 

depositories, setting standards of 

competence for central depository 

agents, approving rules of central 

depositories, and countering any illegal 

or unfair practices amongst other 

powers. 

Clause 6 of the Bill seeks to introduce 

new sections 5A, 5B, 5C and 5D. Section 

5A requires every central depository 

to make CDS Rules providing for the 

deposit, registration, and transfer of 

securities, settlement of transactions 

involving securities, its default process, 

establishment of a settlement guarantee 

und, and qualifications for appointment 

of central depository agents amongst 

other issues. Sections 5B, 5C and 5D 

detail the default process and default 

measures. 

The Bill proposes to introduce a new 

Part VIII A to address Settlement 

Guarantee Arrangements. A central 

depository is required to establish 

adequate arrangements to guarantee 

the settlement of all transactions relating 

to securities through its system. A central 

depository may for instance establish 

a Central Depository Guarantee Fund. 

A central depository will also be required 

to maintain an insurance policy to cover 

loss and damage. 

3. THE WATER (AMENDMENT) BILL, 

2011 

Water is life or so the saying goes. The 

Water Act; No.8 of 2002 (now chapter 

372) is the key legislation that governs 

the management of water in the country. 

This Amendment Bill, sponsored by the 

Hon. John Mbadi (MP) aims to amend 

the Water Act so as to increase public 

participation in the management and 

administration of water as a natural 

resource. The Bill aims at encouraging 

‘localization’ and building concerted 

efforts in the management of the 

resource, right from grass root level. 

The Bill proposes to introduce a new 

Part IVA to deal with constituency water 

services. Section 78A seeks to establish 

a Constituency Water Services Trust 

Fund in place of the present Water 

Services Trust Fund which is established 

under section 83 of the Water Act. The 


39



Constituency Water Services Trust Fund 

is the fund to facilitate the provision of 

water services at the constituency level. 

If the Bill becomes law, there will be a 

Constituency Water Services Committee 

in each constituency with the function 

of advising the Constituencies Water 

Services Trust Fund on the formulation of 

the annual water services programmes 

for the relevant constituency. There will 

also be a Constituency Water Services 

Tender Committee for each constituency 

for purposes of procuring water services 

for the respective constituency. 

It is proposed that each Constituency 

Water Services Committee consist 

of twelve members; four members 

(two men and two women) from the 

Constituency Development Committee 

established under the Constituencies 

Development Fund Act, constituency’s 

member of parliament, two 

members(one man and one woman) 

of the respective county assembly, 

two members representing special 

interests with regard to water services 

and an officer each from the Ministries 

responsible for water and Finance, 

and an officer of the regional office 

of the Water Resources Management 


Authority who is to be the secretary to 

the committee. 

4. SUGAR (AMENDMENT) BILL, 2011 

The Bill, sponsored by Hon. John 

Mututho (MP) seeks to amend the 

Sugar Act, No. 10 of 2001(now chapter 

342) by reviewing the composition of 

the sugar Board. The Bill follows some 

of the recommendations made by the 

Committee on Agriculture, Livestock and 

Co-operatives of the National Assembly 

after a fact finding exercise to assess 

impact of cane farming in Kenya’s sugar 

belts. 

It seeks to amend section 5 of the Sugar 

Act so as to bring about professionalism 

in the composition of the Board by 

including members with expertise 

in agriculture, finance or marketing, 

business management, and law. 

The Bill further seeks to amend section 

19 of the Sugar Act so as to specify the 

purposes for which the monies in the 

Sugar Development Fund are to be 

applied. This includes the development 

of infrastructure in sugar growing 

regions, research in matters relating to 

the sugar industry and advancement of 

credit facilities to millers and growers. 

Furthermore, the Bill seeks to introduce 

section a new section 26A to the Act to 

authorize entry of authorized persons 

and inspection of land, premises 

occupied by a miller, grower or importer 

of sugar for purposes of making such 

inspection and enquiries as may be 

necessary to ascertain whether the 

provisions of the Act are being complied 

with. 

A new section 28A is also proposed to 

the Sugar Act which addresses the issue 

of payment to growers. The formula to 

be used in determining the payment due 

to growers by millers is to be determined 

by the Minister in consultation with the 

Board. Such formula is to be based on 

the weight of the sugar cane, the sucrose 

content and the value of the by-products 

obtained from the sugarcane. 

*The status of the Bills is as at the date of 

publication of the Bench Bulletin. 

“God created the law of free will, and God created the law of 

cause and effect. And he himself will not violate the law. We need to be 

thinking less in terms of what God did and more in terms of whether or not we 

are following those laws.” 

(Marianne Williamson) 

40 






Legislative supplements: A DIGEST OF THE LEGAL 

NOTICES RECENTLY PUBLISHED IN THE KENYA GAZETTE. 

By Christian Ateka and Wanjala Sikuta 

DATE OF 

PUBLICATION 

IN KENYA 

GAZETTE 

KENYA 

GAZETTE 

SUPPLEMENT 

NUMBER 

NAME OF 

LEGISLATION 

REMARKS 

25th March, 2011 

16 

The Industrial Training 

(Trade Testing) 

(Amendment) Rules, 2011 

These Rules amend the Industrial Training (Trade 

Testing) Rules of 1977 by deleting the existing Second 

Schedule and inserting a new Schedule that provides 

for ‘Grade of Trade Test Application Fees’. 

Legal Notice. 24/2011 

1st April, 2011 

21 

The Children (Adoption) 

(Amendment) Regulations, 

2011 


These Regulations amend regulation (27) of the 

Children (Adoption) Regulations of 2005 by inserting 

a new sub-regulation (4) which provides that an 

Adoption Committee shall issue a Certificate of 

Conformity to the adopter in accordance with the 

Hague Convention. 

Further, it introduces a new Schedule (Fourteenth 

Schedule) which outlines the format of the Certificate 

of Conformity. 

8th April, 2011 

23 

The Public Fees 


2011 


These Regulations amend regulation (11) of the 

Public Fees Regulations of 1988, which provide for 

the fee payable for the issuance of Kenyan visas. The 

amendments take effect on 1st July, 2011. 

23 

The Hotels and Restaurants 

Act-Notification of Classes 

of and Standards of 

Hotels and Restaurants 

Classification-Revocation 


The Hotels and Restaurants Authority revoked the 

Notification of Classes and Standards for Hotels and 

Restaurants Classification of year 2001. 

This revocation was made in accordance with 

regulation (2) of the Hotels and Restaurants 

(Classification of Hotels and Restaurants) Regulations, 

1988, which mandates the Hotels and Restaurants 

Authority to classify hotels into classes in accordance 

with set standards and principles. 


41




21st April, 2011 

27 

The Privileges and 

Immunities (Norwegian 

Refugee Council) Order, 

2011 


Under this Order, the Norwegian Refugee Council 

(NRC) was declared to be an Organization to which 

section 11 of the Privileges and Immunities Act 

is to apply and is thus to enjoy the privileges and 

immunities as specified in paragraphs 3 to 5 of Part I 

of the Fourth Schedule to the Act. 

Further, the Regional Director and internationally 

recruited staff members of the Organization, while 

residing in Kenya and performing duties in the service 

of the Organization, are to enjoy the privileges and 

immunities specified in paragraphs 2 to 7 of Part III 

of the Fourth Schedule to the Act. 

27 

The Meat Control Act 

(Local Slaughterhouses) 

(Licensing) Regulations, 

2011 

These Regulations provide for the procedure of 

application of a licence by local slaughter houses; 

renewal of licences; categories of local slaughter 

houses and licence fees. 


27 

The Income Tax Act - 

Guidelines on Allowability 

of Bad Debts 

The Guidelines provide for the definition of a bad debt 

for the purposes of tax collection and conditions that 

render a debt uncollectible. 



28 

The Customs and Excise 

(Amendment of the Fifth 

Schedule) Order, 2011 


This Order amends the Fifth Schedule by deleting 

the existing rate of duty in respect of ‘Illuminating 

Kerosene’ and ‘Gas Oil’ and substituting therefore 

new rates of duty. 

31 

The Africa International 

University Charter 

The Legal Notice provides for the Charter granted to 

Africa International University under the provisions 

of section 14 of the Universities Act (Cap. 210B). 


32 

The Africa International 

University Charter 


The Legal Notice provides for the Charter granted to 

Africa International University under the provisions 

of section 14 of the Universities Act (Cap. 210B). 

13th May, 2011 

33 

The Anti-Corruption 

and Economic Crimes 

(Amnesty and Restitution) 

Regulations, 2011 

These Regulations provide for interest chargeable 

to property or money irregularly obtained. Further, 

it provides for the procedure for application for 

Amnesty by interested persons who obtained 

property or money irregularly. 


Lastly, it provides for procedure for restitution of 

property irregularly acquired to rightful owners. 

42 






27th May, 2011 

36 

The Architects and Quantity 

Surveyors (Amendment) 

By-Laws, 2011 

These By-Laws amend the Sixth Schedule to the 

Architects and Quantity Surveyors By-Laws in the 

following clauses: 


In clause 1 (a) by deleting the expression ‘two 

hundred’ and substituting therefor the expression 

‘ten thousand’; 

In clause 1 (b) by deleting the expression ‘one hundred 

and twenty’ and substituting therefor the expression 

‘seven thousand five hundred’ and lastly by deleting 

the expression ‘September’ and substituting therefor 

the expression ‘July’. 

8th June, 2011. 

45 

The Provisional Collection 

of Taxes and Duties Order, 

2011 

(L.N. 46/2011) 

Through this Order, the Deputy Prime Minister and 

Minister for Finance ordered that all provisions of 

the 2011 Finance Bill relating to tax and duties shall 

have effect as though the Bill were passed into law. 

The Order came into effect from the 9th June, 2011. 

These Orders are made pursuant to section 2 of the 

Provisional Collection of Taxes Act(Cap. 415) which 

provides as follows: 

“If a Bill is published in the Gazette whereby, 

if such Bill were passed into law, any tax or 

duty, or any rate allowance or administrative 

or general provision in respect thereof, would 

be imposed, created, altered or removed, 

the Minister may, subject to this Act and 

notwithstanding the provisions of any other 

written law relating to taxes and duties, make 

an order that all or any specified provisions of 

the Bill relating to taxes or duties shall have 

effect as if the Bill were passed into law.” 

The Traffic (Amendment) 

Rules, 2011. 

L.N. 47/2011. 

Traffic Rules are amended by inserting a new rule 

(6A) immediately after rule (6). The new rule makes 

provision for a Deregistration Certificate. Further, 

these Rules provide for a new Form (XXIX) which 

outlines the format of Deregistration Certificate as 

set out in the Second Schedule. 

The National Social 

Security Fund (Claims and 

Payments) (Benefits) 

(Amendments) 

Regulations, 2011. 

L.N. 50/2011. 

Regulation (13) of the National Social Security Fund 

(Claims and Payments) (Benefits) Regulations is 

amended by deleting the words, “or detention in legal 

custody”. Further, these Regulations insert a proviso 

at the of Regulation (13) which sets out a way on how 

a person undergoing imprisonment may obtain his/ 

her benefits during the term of imprisonment. 


(Petroleum Oils) (Excise) 


2011. 

Regulation (8) of the Customs and Excise (Petroleum 

Oils) (Excise) Regulations, is amended by deleting the 

expression “thirty (30)” appearing in the proviso to 

paragraph 1 and substituting therefor the 


43




27th May, 2011 

36 

The Architects and Quantity 

Surveyors (Amendment) 

By-Laws, 2011 

These By-Laws amend the Sixth Schedule to the 

Architects and Quantity Surveyors By-Laws in the 

following clauses: 


In clause 1 (a) by deleting the expression ‘two 

hundred’ and substituting therefor the expression 

‘ten thousand’; 

In clause 1 (b) by deleting the expression ‘one hundred 

and twenty’ and substituting therefor the expression 

‘seven thousand five hundred’ and lastly by deleting 

the expression ‘September’ and substituting therefor 

the expression ‘July’. 

8th June, 2011. 

45 

The Provisional Collection 

of Taxes and Duties Order, 

2011 

(L.N. 46/2011) 

Through this Order, the Deputy Prime Minister and 

Minister for Finance ordered that all provisions of 

the 2011 Finance Bill relating to tax and duties shall 

have effect as though the Bill were passed into law. 

The Order came into effect from the 9th June, 2011. 

These Orders are made pursuant to section 2 of the 

Provisional Collection of Taxes Act(Cap. 415) which 

provides as follows: 

“If a Bill is published in the Gazette whereby, 

if such Bill were passed into law, any tax or 

duty, or any rate allowance or administrative 

or general provision in respect thereof, would 

be imposed, created, altered or removed, 

the Minister may, subject to this Act and 

notwithstanding the provisions of any other 

written law relating to taxes and duties, make 

an order that all or any specified provisions of 

the Bill relating to taxes or duties shall have 

effect as if the Bill were passed into law.” 

The Traffic (Amendment) 

Rules, 2011. 

L.N. 47/2011. 

Traffic Rules are amended by inserting a new rule 

(6A) immediately after rule (6). The new rule makes 

provision for a Deregistration Certificate. Further, 

these Rules provide for a new Form (XXIX) which 

outlines the format of Deregistration Certificate as 

set out in the Second Schedule. 

The National Social 

Security Fund (Claims and 

Payments) (Benefits) 

(Amendments) 


L.N. 50/2011. 

Regulation (13) of the National Social Security Fund 

(Claims and Payments) (Benefits) Regulations is 

amended by deleting the words, “or detention in legal 

custody”. Further, these Regulations insert a proviso 

at the end of Regulation (13) which sets out a way on 

how a person undergoing imprisonment may obtain 

his/her benefits during the term of imprisonment. 


(Petroleum Oils) (Excise) 


2011. 

Regulation (8) of the Customs and Excise (Petroleum 

Oils) (Excise) Regulations, is amended by deleting the 

expression “thirty (30)” appearing in the proviso to 

paragraph 1 and substituting therefor the expression 

“ten”. 

44 






L.N. 55/2011. 

Further, these Regulations insert a proviso which 

provides for a maximum time limit upon which tax 

shall be paid after Petroleum Oils are transferred to 

the owners by the Kenya Petroleum Oil Refineries 

Limited immediately after paragraph 2. 

17th June, 2011 

46 The Public Procurement 

and disposal (Preference 

and Reservations 


47 

L.N. 58/2011. 

The Preservation of Public 

Security Act-Declaration, 

2011 

L.N. 59/2011 

These Regulations provide for target groups to which 

procurements by public entities apply when soliciting 

tenders. Also provide for eligibility criteria for 

qualification by the target groups; their registrations, 

general principles and compliance. 

Pursuant to the provisions of section 3 (1), the 

President declared the current drought being 

experienced in most parts of the country as a national 

calamity and disaster. 

Pursuant to the provisions of section 3 (1), the 

President declared the current drought being 

experienced in most parts of the country as a national 

calamity and disaster. 

48 The Regulation of Wages 

(General) (Amendment) 

Order, 2011 

L.N. 64/2011 

This Notice expires on 31st December, 2011. 

This Order amends the Regulation of Wages (General) 

Order by deleting a Schedule thereto and inserting a 

new Schedule. The new Schedule provides for Basic 

Minimum Monthly Wages (Exclusive of Housing 

Allowance) and Minimum Daily and Hourly Rates 

(Inclusive of Housing Allowance). 

This Order was made following the announcement by 

the Government on 1st May, 2011 that the minimum 

wage for Kenyan workers will be increased by 12.5 

per cent. 

49 The Embu University 

College Order, 2011 

L.N. 65/2011 

The President made this Order that establishes the 

Embu University College, a constituent College of the 

University of Nairobi. 

The Embu University College, being the successor to 

Embu Agricultural Staff Training College, automatically 

assumes all rights, liabilities and assets held by or on 

behalf of Embu Agricultural Staff Training College at 

the commencement of this Order. 

24th June, 2011 50 The Traffic Rules (Speed 

Governors for Public 

Service and Commercial 

Vehicles with Tare Weight 

of over 3048 kg), 2011 

L.N. 66/2011 

The Minister for Transport approved PHS-01 Top 

Speed Limiter Autograde-dass 86 to be fitted in Public 

Service and Commercial Vehicles with tare weight of 

3048 kg and above. 

This approval was made after the said speed governor 

was tested and passed as a competent speed limiter. 


45




51 The Traffic Rules (Speed The President made this Order that establishes the 

Governors for Public Rongo University College, a constituent College of 

Service and Commercial the Moi University. 

Vehicles with Tare Weight 

of over 3048 kg), 2011 The Rongo University College, being the successor 

to Moi Institute of Technology, Rongo automatically 

L.N. 66/2011 

assumes all rights, liabilities and assets held by or on 

behalf of Moi Institute of Technology, Rongo at the 

commencement of this Order. 

“Let me not be understood as saying that there are no bad laws, 

nor that grievances may not arise for the redress of which no legal 

provisions have been made. I mean to say no such thing. But I do 

mean to say that although bad laws, if they exist, should be repealed 

as soon as possible, still, while they continue in force, for the sake of 

example they should be religiously observed.” 

(Abraham Lincoln) 

46 






Summary of appointments UNDER THE KENYA GAZETTE 

The functions of the Board will include 

organizing, regulating and developing 

the efficient production, marketing, 

distribution and supply of dairy produce 

as set out in section 17. 

Gazette Notice No. 2919, Dated 25th 

March, 2011 

Industrial Property Act. 

Appointment of Henry Kibet Mutai (Dr.) 

as Director. This is done in pursuant to 

section 11 (1) of the Industrial Property 

Act, 2001, by the Board of Directors of 

the Institute. It is from the 1st April, 

2011. 

By Wambui Kamau, Legal 

Researcher. 

The Kenya Gazette is the official 

way of communication by the 

Government of Kenya. The 

following is a summary of notable 

appointments made under the Kenya 

Gazette from period March 25th, to 

May 2011. 

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, makes various appointments to the 

various state corporations, parastatals 

and even commissions. 

State Advisory Committees 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. 


March, 2011 

Kenya Dairy Board 

Appointment of Abdullahi Idris Maalim 

Yusuf as a member of the Kenya Dairy 

Board. 

The Minister for Livestock Development 

made this appointment pursuant to the 

Dairy Industry Act. The appointment is 

for a period of one year and four months 

as from 14th February, 2011. 

The Board’s main objective is to provide 

for the improvement and control of 

the dairy industry and its products. 

Kenya Veterinary Vaccine Production 

Institute 

Appointment of Bernard Saidumu 

Lenaronkoito to be a member of the 

Board of Directors. 

This appointment was made by the 

Minister for Livestock Development for a 

period of three years pursuant to section 

6(1) (e) of the State Corporations Act. 


March, 2011 and Gazette Notice No. 

2912, Dated 18th April, 2011 

Kenya Industrial Property Institute 

The Industrial Property Act provides 

for the promotion of inventive and 

innovative activities and facilitates the 

acquisition of technology through the 

grant and regulation of patents, utility 

models, technovations and industrial 

designs. The Kenya Industrial Property 

Institute is also established therein and 

its powers and functions provided for. 

The Institute whose headquarters is 

in Nairobi is established in section 

3 of the Industrial Property Act and 

its functions include considering 

applications for and to grant industrial 

property rights, screening technology 

transfer agreements and licenses, 

providing industrial property 

information for technological and 

economic empowerment to the public 

and to promote inventiveness and 

innovativeness in Kenya. 

The Industrial Property Tribunal is also 

established to hear appeals against 

decisions of the Managing Director who 

is to grant, register and publish every 

patent that has met the registration 

requirements as according to the 

Industrial Property Regulations, 2000. 

Therefore the following is a summary 

of the appointments made under the 


April, 2011 

Industrial Property Tribunal 

The following were appointed as 

members of the Board of Directors for 

the Tribunal. 

David N, Kamau (Eng.), 

Timothy Mtana Lewa (Dr.), 

Job Juma Weloba, 

This appointment is for a period of 

three years commencing on the 21st 

March, 2011. This notice also bore the 

revocation of the filling as members of 

the Board of Directors. 

Amos Korir, 

Andrew Mbaya, 

Raymond Kipkoech Chelulei 

Gazette Notice No. 3265, Dated 1st 

April, 2011 and Gazette Notice No. 2911, 

Dated 15th April, 2011 

The National Standards Council and the 

Standards Tribunal 

The Standards Act (Cap. 496) provides 

for the establishment of the National 

Standards Council and the Standards 

Tribunal in section 6 and 16A respectively. 

The National Standards Council is 

charged with the mandate of supervision 

and control of the administration and 

financial management of the Bureau of 

Standards which is set up to promote 

standardization in industry and 

commerce. On the other hand, the 

Tribunal hears appeals from persons 

aggrieved by a decision of the Bureau 

or the Council. These appeals must be 

submitted in writing to the Tribunal 

within fourteen days of the notification 

of the act. 

The Minister for Industrialization 

appointed the following to be members 

of the above Council in exercise of the 

powers conferred by section 6 (c) and (d) 


47



of the Standards Act 2004. 

Brigid Boyani Monda (Dr.), 

Emily Jeptanui Kogos (Dr.), 

Salim Chingabwi, 

Nene Nzyuko, 

Yasin Haji Hussein, 

Joshua Lonyaman Angelei, 

Nyawira O. Njeru (Ms.), 

Ahmed Hashi, 

Jeridah K. Sinange (Ms.), 

Andrew Muriuki, 

Kennedy Odera Obar, 

Nazir Gulam Yusuf, 

The appointments were to take effect 

from 21st March, 2011 for a period 

of three years effectively revoking 

earlier appointments made via Notices 

Numbers G.N. 1265/2010, 11797/2009, 

10618/2010, 4555/2009.Gazette 

Gazette Notice No. 2911, Dated 15th 

April, 2011 

Standards Tribunal 

Appointment of Aggrey Shitsama 

Ambwenga Shikanga as the Chairman 

of the Tribunal. 


April, 2011 

Kenya Information and Communication 

Technology Board 

The following members were appointed 

to the aforementioned Board as from 

21st February, 2011 for a period of three 

years. 

David Mugo, 

Tom K. Kandagor, 

John Lodepe Nakara, 

Esther Njeri Kibera 


April, 2011. 

The Communication Commission of 


The following were appointed to serve 

as Directors of the Board of the Directors 

of the Communication Commission of 

Kenya for a period of three years with 

effect from 21st February, 2011. 

Peter Ldhituachi Simani, 

Alloys Ang’asa, 

Monica J. Kerrets-Makau. 


The responsibilities of the Board 

include the management, control 

and administration of the assets of 

the Communications Commission of 

Kenya, to receive gifts, grants and 

donations made to the Commission and 

to determine provisions to be made for 

capital and recurrent expenditure and 

for reserves of the Commission. 

The Commission is charged with the 

mandate of licencing and regulating 

postal information and communication 

services. 


April, 2011 

Kenya Broadcasting Corporation 

Appointment of Steve Areba as a 

member of the Board for a period 

of three years with effect from 21st 

February, 2011. 

The Corporation is to provide 

independent and impartial broadcasting 

services of information, education and 

entertainment in English and Kiswahili 

and in such other languages as the 

Corporation may decide. 


April, 2011 

Board of The Provident Fund 

The Deputy Prime Minister and Minister 

of Local Government appointed the 

following persons to the above Board 

with effect from 2nd April, 2011 for a 

period of three years. 

Robert Njenga Mwaura— 

(Chairman), 

Mohamed Adan Khalif—(Vice- 

Chairman), 

Adan Halake Wario, 

Frank Sabwa, 

Rita Ngeno, 

Boniface M. Munyao, 

Rehana Ismail, 

Patrick Wangamati, 

Permanent Secretary, 

Ministry of Local Government 

or his representative, 

Chief Executive Officer— 

(Secretary). 

The Provident Fund is established 

by section 4 of the Local Authorities 

Provident Fund Act (Cap. 272) whose 

Board of Directors is charged with the 

mandate to supervise, control and 

manage all the assets of the Fund, to 

operate in the name of the Board such 

bank accounts as it may deem necessary 

and to invest from time to time the 

moneys of the Fund. 

Appointments under The Retirement 

Benefits Act 

The following appointments were made 

in respect to the Retirement Benefits 

Act (No. 3 of 1997) with effect from 1st 

April, 2011. 


April, 2011 

Retirement Benefits Appeals Tribunal 

Re-appointment of Barnabas Kariuki 

to this Tribunal by the Deputy Prime 

Minister and Minister for Finance for a 

period of three years with effect from 

1st April, 2011. 

This Tribunal is established in section 

47 of the Act and it is responsible for 

hearing appeals under the Act. 

Board of the Retirement Benefits 

Authority 


April, 2011 

Jacob N. Onkunya, and Thamuda O. 

Hassan (Mrs.), as members of the Board 

for a period of four years 


April, 2011 

Samuel K. Gichigi for a period of three 

years effective 1st April, 2011. 

The Authority is responsible for the 

regulation and supervision of the 

establishment and management of 

retirement benefits schemes, protecting 

the interest of members and sponsors of 

retirement benefits schemes,promoting 

the development of the retirement 

benefits sector and advising the Minister 

on the national policy to be followed 

with regard to retirement benefits 

schemes also fall within the mandate of 

the Authority. 


April, 2011 

Insurance Regulatory Authority 

Deputy Prime Minister and Minister for 

48 





Finance appointed the following persons 

for a period of three years with effect 

from 21st April, 2011. 

Joseph M. Murage, 

Chemutai Murgor, 

Moses B. Obonyo, 

Abdulaziz Mohamed, 

Grace A. Ngigi, 

The Authority is established in Part 

II of the Act and its functions include 

ensuring the effective administration, 

supervision, regulation and control of 

insurance and reinsurance business in 

Kenya. The formulation and enforcement 

of standards for the conduct of insurance 

and reinsurance business in Kenya is also 

within the mandate of the Authority. 


April, 2011 

Board of The Kenya Post Office Savings 

Bank 

Appointment of Gordon Jallango Onyango 

as Director of the aforementioned 

Board. This is for a period of three years 

with effect from 1st April. 

The Bank is responsible for encouraging 

thrift and providing means and 

opportunities for Kenyans to save, to 

open, maintain or close branches at 

such places as the Board may determine 

amongst other duties set out in section 

4 of the Kenya Posts Office Saving Bank 

Act (Cap. 493). 


April, 2011 

Board of The Capital Markets Authority 

Appointment of the following to the 

aforementioned Board for a period of 

three years from 1st April, 2011. 

Humphrey Muga, 

Mahmood P. Manji 


April, 2011 

State Corporations Appeal Tribunal 

Appointment of Samuel O. Onyango as 

a member of the Tribunal for a period 

of three years with effect from 1st April, 

2011. 

The State Corporations Appeal Tribunal 

is established under section 22 of 


the State Corporations Act (Cap. 446) 

and its function is to consider and 

determine appeals against decisions of 

the Inspector- General(Corporations). 


April, 2011 

Agricultural Information Centre 

Revolving Fund 

The Minister for Agriculture appointed 

Caleb Atemi to be a member of the 

Board of Directors for a period of three 

years. This appointment took effect from 

19th April, 2011. 

This is in exercise of powers under 

regulation 8 (1) (f) (i) of the Exchequer 

and Audit (Agricultural Information 

Centre Revolving Fund) Regulations, 

2000. The Fund consists of monies 

appropriated by Parliament and the 

object of the Fund is to provide monies 

for the development of agricultural 

information centres to meet the demand 

for agricultural training and media 

materials within and outside the Ministry 

of Agriculture. 


April, 2011 

Agricultural Development Corporation 

Edward E. Edung was appointed as a 

member of the member of the Board of 

Agricultural Development Corporation 

for a period of three years. This is with 

effect from 1st April, 2011. 

The functions of the Corporation include 

the promotion of Kenya’s essential 

agricultural inputs and undertaking 

activities for the purpose of developing 

agricultural production. 


April, 2011 

Agricultural Finance Corporation 

The Minister of Agriculture appointed 

Lucas Meno to be a Director for a 

period of three years with effect from 

11th March, 2011. Appointment of 

Sam Kruschev Sholle via Gazette Notice 

Number 15587/2010 is revoked. 

This entity is established by the 

Agricultural Finance Corporation Act 

(Cap. 323) for purposes of assisting 

the development of agriculture and 

agricultural industries by making loans 

to farmers, co-operative societies, 

incorporated group representatives, 

private companies, public bodies, local 

authorities and other persons engaging 

in agriculture. 


May, 2011 

Pyrethrum Board of Kenya 

The Board is established under the 

Pyrethrum Act (Cap. 340) which provides 

for the reorganization and regulation 

of the pyrethrum industry and the 

control of the growing, processing and 

marketing for scientific and agronomic 

research. The board is then charged 

with the mandate of ensuring that it 

promotes the pyrethrum industry. 

This notice bore the appointment of the 

following as members of the Board for a 

period of two (2) years, with effect from 

the 25th May, 2011. 

a) Nyakiba Erneo William 

(Dr), 

b) Joseph Kipkorir Kimetto, 

c) Stephen K. Ngugi. 


May, 2011 

The National Irrigation Board 

The National Irrigation Board is 

responsible for the development, control 

and improvement of national irrigation 

schemes in Kenya. 

Hesbon Mwendwa Aligula and Jack 

Wambiga Mwaura were appointed as 

members of the Board for a period of 

three years commencing 20th May, 

2011. 


April, 2011 

Public Archives Advisory Council 

The Public Archives and Documentation 

Service Act establishes the Council 

in section 14. It is charged with the 

mandate of advising the Minister on all 

matters relating to location, preservation 

and use of public archives, access by 

members of the public to the public 

archives and the export under licence of 

any public archives, public or historical 

records. 


49



The following were appointed to be 

members of the Council under the 

respective regulations for a period of 

two years: 

Under regulation 3 (a)— 

Jacob ole Miaron (Dr.); 

Under regulation 3 (b)— 

Margaret Wangui Gachichi; 

Under regulation 3 (c)— 

Jacob Nturibi, 

Maureen M. Karisa, 

David Kilesi, 

Kimpei Munei (Dr.), 

Robert Kanai Saidimu, 

Benjamin Mutugi, 

Under regulation 3 (d)— 

Francis K. Muthaura; 

Under regulation 3 (e)— 

Joseph Kinyua; 

Under regulation 3 (f)— 

Hudson A. Liyayi; 


April, 2011 

Kenya Industrial Estates 

The following were appointed as 


a period of three years commencing 21st 

March, 2011 

Marstella Bahati Kahindi (Ms.), 

John Mugo Nyagah (Dr.), 

Susan N. Kairima (Ms.), 

The following appointments were 

revoked. 

Abdirahman Abdinur, 

Brig (Rtd.) Chris Kuto, 

Rhoda Rotino (Ms.) 


April, 2011 

Industrial Development Bank (Capital) 

Appointment of the following as 


a period of three years with effect from 

21st March, 2011. 

Stephen Masha Ngowa, 

Peterson Munene Mwai 

The following appointments were 

revoked: 

Henry K. Kiplangat, 

Joel K. Chemiron. 

Gazette Notice No. 4252 Dated 21st 



Dated 27th May, 2011 

Transport Licensing Board 

Appointment of the following as licensing 

officers of this Board for a period of three 

years 

Moses Mjomba, 

Nancy Rono, 

Edward Kisingu, 

Hannington Wandera 

Bwana A. Warrakah, 

Joseph Kamau Thuo, 

Astariko O. Atika, 

Ledishah Jebichii Kipseii, 

The appointment of Joseph Kariuki 

Kamiri via Gazette Notice Number 

1509/2011 is revoked. 

Gazette Notice No. 4574 and 4935, 

Dated 29th April, 2011 

Export Processing Zones 

The Export Processing Zones Act 

(Cap. 517) provides for the promotion 

and facilitation of export oriented 

investments and the development of 

enabling environment for investment. 

It further provides for the establishment 

of export processing zones and the 

Export Processing Zones Authority. The 

Authority which is established in section 

3, is thus charged with the development 

of all aspects of the export processing 

zones. 

The Minister of Trade made the following 

appointments for a period of three years 

with respect to the Export Processing 

Zones Board and Authority. 

1.Board Member 

Appointment of Jane Florence Otieno 

as a member of the Board with effect 

from 12th April, 2011.Kibaaya Laibuta’s 

appointment of Gazette Notice Number 

11428/2009 was revoked. 

2.Chief Executive Officer 

Appointment of Richard Mutule Kilonzo 

as from 21st April, 2011 


May, 2011 

Kenya Maritime Authority 

The Authority is mandated to monitor, 

regulate ad co-ordinate activities in the 

maritime industry as provided for in 

the preamble to the Kenya Maritime 

Authority Act (No. 5 of 2006). The 

following were appointed as Directors 

of the Board for a period of three years 

commencing from the 12th May, 2011. 

a) Beatrice Akinyi Oyomo, 

b) Joseph Kariuki Kamiri. 


May, 2011 

Director General of The National 

Museums of Kenya 

The establishment, control, management 

and development of national museums 

are provided for in the National 

Museums and Heritage Act (No. 6 of 

2006). Section 14 of the Act provides 

for the post of a Director General who 

shall be appointed by the Minister and 

shall hold the minimum of a doctorate 

and have experience in any field or work 

relating to the work of the national 

Museums. 

Thus, Idle Omar Farah (Dr.) was 

appointed for a period of three years 

with effect from 1st June, 2011. 


May, 2011 

Moi Teaching and Referral Hospital 

Board 

The Moi Teaching and Referral Hospital 

Board is established via Legal Notice 

Number 78/1998. It is responsible for 

the administration, management and 

development of the hospital established 

in Eldoret. 

Thus, through this notice, Winston J. O. 

Orege was appointed as a member of 

the Moi Teaching and Referral Hospital 

Board, for a period of five (5) years, with 

effect from the 5th May, 2011. 

The appointment of Philip O. Ombidi 

(deceased)* who was appointed via 

Gazette Notice number 9626/2008 is 

revoked. 

APPOINTMENTS UNDER THE WATER 

ACT 

The Water Act was established to provide 

for the management, conservation, 

use and control of water resources. In 

addition, it provides for the acquisition 

and regulation of rights to use water 

50 





and the regulation of water supple and 

sewerage services. In line with this, Water 

Services Boards are responsible for the 

efficient and economical provision of 

water services 

Section 51 of the Water Act provides 

that the Minister may by notice in 

the Gazette constitute Water Services 

Boards and specify the members to 

be appointed therein. Therefore, the 

following appointments were made 

on the respective dates for a period of 

three years commencing on the 20th 

May, 2011. 


May, 2011 

The Coast Water Services Board 

Appointment of Antony Charo Mrima as 

Chairman of the Board. 


May, 2011 

The Athi Water Services Board 

Appointment of Aden S. Ali and John 

Giathi Charles, to be members of the 

Board of Directors of Athi Water Services 

Board. 


May, 2011 

The Tana Water Services Board 

Appointment of Geofrey Wachira 

Mahinda as a member of Board of 

Directors. 


May, 2011 

The Lake Victoria South Water Services 

Board 

Appointment of Joshua O. Rangi as a 

member of the Board of Directors. 


May, 2011 

The Tanathi Water Services Board 

Appointment of Joseph Lenku as a 

member of the Board of Directors. 


May, 2011 

The Water Services Trust Fund 

Appointment of Kiema Mwandia and 

Sophie Oguna to be Trustees in the Board 


of Trustees of the Fund. 

THE JUDICIARY: MILIMANI LAW COURTS 


April, 2011 

The Registrar of the High Court of 

Kenya notified all Advocates, litigants 

and members of the public on the 

relocation of the operations in the High 

Court divisions at Nairobi including the 

Commercial and Tax Division Milimani 

and the Chief Magistrate Courts at 

Nairobi Law Courts to Milimani Law 

Courts (Former Income Tax building) 

with effect from 2nd May, 2011. 

FINANCIAL MATTERS 


April, 2011 

Non-Executive Directors of The Central 

Bank of Kenya 

The following were appointed by the 

President and Commander in chief of 

the Kenya Defence Forces; 

William Otiende Ogara (Dr.), 

Mbui Wagacha (Dr.), 

Vivienne Yeda Apopo (Ms.), 

The appointment is for a period of four 

years commencing on 14th March, 2011. 

Non-Executive Members form part of 

the Board of the Central Bank of Kenya 

which is responsible for determining the 

policy of the Bank and the formulation 

of monetary policy amongst other 

objectives of the Bank. 


April, 2011 

Specified Institution 

The Housing Finance Company of Kenya 

was licensed as a mortgage finance 

company licensed under the Banking 

Act. This is in pursuance to the provisions 

of sections 34 (3) (c) and 38 (6) (c) of the 

Central Bank of Kenya Act. These sections 

provide for the legal establishment of a 

person or body of persons as prescribed 

by the Minister of an institution as long 

as it is Gazetted. This is to enable the 

Central Bank of Kenya have relations 

with these institutions. 


April, 2011 

The Policyholders Compensation Fund 

The Insurance Act (Cap. 487) provides 

for compensation of policyholders of an 

insurer that has been wound up by the 

High Court. This Fund is administered 

by a Board of Trustees who are to hold 

the office for a term of three years. 

Section 179 o f the Act provide for the 

functions of the Board which include 

providing compensation to policyholders 

of an insolvent insurer, monitoring the 

risk profile of any insurer and to advise 

the Minister on the national policy on 

matters of compensation. 

The following were appointed as Trustees 

of the Fund for a period of three years: 

Frank Muchiri, 

Shehnaz N. Sumar (Mrs.), 

Kanyi Gachoka, 

Tom Mulwa, 

Morrison J. Okumu, 

Revocation of Forex Bureau Licences 

The Central Bank of Kenya( Foreign 

Exchange Business) Regulations that 

came into force in 2007 regulate the 

legal affairs and conduct of the Forex 

Bureaus in Kenya. 

Regulation 6(1) provides for instances 

where the Central Bank may suspend or 

revoke the licenses of a foreign exchange 

bureau which include where the bureau 

fails to: 

a) submit, not later than three 

months after the end of its 

financial year, to the Central 

Bank of Kenya, its annual 

audited accounts and a copy 

of the auditor’s report in the 

prescribed form; 

(b) furnish, at such time and 

manner as the Central Bank of 

Kenya may direct and require, 

any information in an accurate 

and complete manner to 

discharge its functions under 

the Act; and 

(c) comply with such guidelines as 

may be issued by Central Bank 

of Kenya through circulars. 

Through the Kenya Gazette, the Governor 

of the Central Bank revoked the licenses 

of the following: 


51




April, 2011. 

Greenspan Forex Bureau 

Limited 

1st March, 2011 

Mint Bureau De Change Limited 

1st March, 2011 

DEVELOPMENT JOINT BOARDS 

The Local Government Act (Cap. 265) in 

section 104(1) provides that the Minister 

may constitute a joint Board where 

a local authority is desirous of acting 

jointly with the Government in exercise 

of the powers conferred upon it by or 

under this Act or any other written law. 

In pursuance of the delegation of powers 

set out in section 38(1) the Minister 

constituted the following Boards and 

the membership in the recent months. 

The Wajir Trade Development Joint 

Board 

Appointment of the following as 

members of the aforementioned Board. 

a) Mohamed Ali Mohamed— 

(Chairman), 

b) District Commissioner, Wajir— 

(Ex officio), 

c) District Trade Development 

Offficer, Wajir—(Secretary), 

d) Batula Noor Adan (Ms.), 

e) Chairman, Kenya National 

Chamber of Commerce and 

Industry, Wajir Branch 

The appointment is for a period of three 

years. 


March, 2011 

The Taita Taveta Trade Development 

Joint Board. 

Appointment of the following for a 

period of three years: 

Sylvester M. Mwamburi— 

(Chairman), 

District Commissioner, Taita 

Taveta—(Ex officio), 

District Trade Development 

Offficer, Taita Taveta— 

(Secretary), 

Judith W. Mwamburi (Ms.), 

Chairman, Kenya National 


Industry, Taita Taveta Branch, 



April, 2011 

THE SOUTH NYANZA TRADE 

DEVELOPMENT JOINT BOARD 

Appointment of the following by the 

Permanent Secretary in the Ministry 

of Trade: 

Judith Akinyi Oyugi (Mrs.)— 

(Chairperson), 

District Commissioner, Homa 

Bay—(Ex officio), 


Officer, Homa Bay—(Secretary), 

Tobias Warema Range, 



Industry, Homa Bay Branch, 

to be members of the Board for a period 

of three (3) years. 


April, 2011 

THE KISUMU MUNICIPALITY TRADE 

DEVELOPMENT JOINT BOARD 

Appointment of the following by the 

Permanent Secretary in the Ministry 

of Trade: 

Charles Otieno Anguo— 

(Chairman), 

District Commissioner, Kisumu 

East—(Ex officio), 


Officer, Kisumu—(Secretary), 

Jayne Adhiambo Ochieng (Ms.), 



Industry, 

Kisumu Branch, 

to be members of the Board for 

a period of three (3) years as 

from 21st March, 2011. 


March, 2011 

Tharaka North District Tender Board 

Appointment of; 

Evans K. Ogamba—(Chairman); 

Members: 

Alfred N. Murango—(Secretary) 

Benson Wachera, 

Rosemary K. Kirambia, 

Katiria Mbinda, 

Mohammed M. Mukundi, 

Simon Igweta, 

James J. Mwongera, 

This appointment was done by the 

District Commissioner of Tharaka North 

District pursuant to section 26 (4) of the 

Public Procurement and Disposal Act 

and Second Schedule (2) of the Public 

Procurement and Disposal Regulations, 

2006. 


April, 2011 

THE LAKE BASIN DEVELOPMENT 

AUTHORITY ACT (CAP. 442) 

Lake Basin Development Authority 

Appointment of Peter A. Kabok (Eng.) as 

Managing Director and Secretary to the 

Board of the Authority. This was done by 

the Minister for Regional Development 

Authorities for a period of three (3) years 

from 8th April, 2011. 


April, 2011 

The Tana And Athi Rivers Development 

Authority Act (Cap. 443) 

Appointment of Peter Ndegwa Muturi 

(Eng.) as a Board member to the 

Authority. Appointment made pursuant 

to section 4 (1) (f) of the Tana and Athi 

Rivers Development Authority Act by 

the Minister for Regional Development 

Authorities. This is for a period of three 

years as from 8th April, 2011. 


April, 2011 

The Kilifi Trade Development Joint Loan 

Board 

Appointment of the following to be 

members of the Kilifi Trade Development 

Joint Loan Board for a period of three 

(3) years. 

Sarah Dama Chitavi (Mrs.)— 

(Chairperson), 

District Commissioner, Kilifi—(Ex officio), 

District Trade Development Officer, 

Kilifi—(Secretary), 

Nathaniel Masha Luganje, 

Chairman, Kenya National Chamber of 

Commerce and Industry, Kilifi Branch. 

Gazette Notice No. 4249 Dated 21st 

April, 2011 

The Mandera Trade Development Joint 

Loan Board 

52 






members: 

i) Hussein I. Barrow—(Chairman), 

ii) District Commissioner, 

Mandera—(Ex officio), 

iii) District Trade Development 

Offficer, Mandera—(Secretary), 

iv) Bishaara Ali Hirsi (Mrs.), 

v) Chairman, Kenya National 


Industry, Mandera Branch. 


April, 2011 

The Baringo Trade Development Joint 

Board 


members: 

Mathew Kipyator Tuitoek— 

(Chairman), 

District Commissioner, 

Baringo—(Ex officio), 


Offficer, Baringo—(Secretary), 

Dinah J. Tallam (Ms.), 



Industry, Baringo Branch, 


April, 2011 

The Town Council of Nyamira 

The following were appointed to 

conduct an extraordinary inspection 

of the accounts and records and to 

conduct investigations, researchers and 

inquiries into the general administration 

and financial management of the Town 

Council. 

i) Joseph Ondiek Ayim, 

ii) Amos Omari 


April, 2011 

Appointment of Provincial, District 

and Sub-District Hospital Management 

Committee Members 

The Government Financial Management 

Act (No. 5 of 2004) provides for the 

establishment of provincial, District 

and Sub- District Hospital Management 

Committees who are to their functions 

in relation to public hospitals. The 

following were appointed: 

Nyanza Province 

Kisii Central District 


Kisii Level 5 Hospital 

Patrick Monyenye—(Chairman) 

Mellen Kebati 

Teresa Nyanchoka Ontumi 

Benson Memba 

The appointment of Davidson Manyibe 

Mairura, Reuben Omambia, Magdaline 

Nyaboke Mwebi and Jamil Shamji are 

revoked. 

Suba District 

Mbita Sub-District Hospital 

George Bor—(Chairman) 

John Otieno Osodo 

The appointment of John Elisha Ngari 

Macharia as Chairman is revoked. 

Rongo District 

Awendo Sub-District Hospital 

Susan Akinyi 

The appointment Margaret Otieno is 

revoked. 

Coast Province 

Lamu District 

Lamu District Hospital 

Ahamed Said Abdulrahman— 

(Chairman) 

Salim Ali Mohamed 

Fatma Salim Elbusaidy 

The appointment of Ali Fani, Idruis Alwy, 

Christine Chao and Sharifa Abubakar are 

revoked. 

Mwatate District 

Mwambirwa Sub-District Hospital 

Shadrack Mwalukuku— 

(Chairman) 

Peter Mdawida 

Sharllete Givan 

Alfred Odongo Warangi (Rev.) 

Rose Mkamburi 

Beatrice Msae Fundi 

Central Province 

Nyeri Central District 

Mt. Kenya Sub-District Hospital 

Daniel Wamahiu Kiongo—(Chairman) 

The appointment of James Waibochi as 

Chairman is revoked. 

Othaya District 

Othaya District Hospital 

The appointment of Muchiri Ngatia (Dr.) 

as Chairman is revoked. 

Western Province 

Kakamega East District 

Shamakhubu District Hospital 

The appointment of Shisundi Shitichi, 

Gabriel Muganda, Elizabeth Butoy and 

Mauris Milimo is revoked. 

Butere District 

Butere District Hospital 

Grace Namai—(Chairman) 

Byroze Lubanga Otsumbo 

The appointment of Samuel Twalwa is 

revoked. 

Gazette Notice No. 4574 Dated 26th 

April, 2011 

Revocation of Nomination Of Councillors 

The Deputy Prime Minister and 

Minister for Local Government revoked 

the nominations of the following as 

Councillors: 

Name 

Muriithi 

Kang’ara 

John Njiru 

Njue 

Name of Local Authority 

County Council of 

Kirinyaga 

Municipal 

Council of Thika 


April, 2011 

NOMINATION OF COUNCILLORS 

The following were nominated as 

Councillors for the respective Local 

Authorities: 

Name 

County/Town/Municipal 

Council 

Cyrus Murage Gichira 

Andrew Muthee Wasimara 

Janet Wamalwa 

Samuel Mwatha Kamau 

Kirinyaga 

Naivasha 

Sirisia 

Thika 


April, 2011 

Appointment 

The following persons were appointed 

to represent the Government in the 

following local Authorities: 

Fanuel Amolo County 

Council of Busia 

Paul Mugethi County Council 


53



of Maragua 

Kenya Gazette Volume No. 55, Dated 

16th June, 2011. 

Appointment of Chief Justice and 

Deputy Chief Justice 

Chapter ten of the Constitution of Kenya 

makes provision for the establishment of 

the Judiciary as an arm of Government. 

Article 166 of the same provides for the 

appointment of the Chief Justice and 

Deputy Chief Justice by the President and 

in accordance with the recommendation 

of the Judicial Service Commission 

subject to the approval of the National 

Assembly. 

Section 29(2) of the Sixth Schedule 

to the Constitution further dictates 

that appointments to be made by 

the President with the approval of 

the National Assembly under the 

Constitution must be in consultation 

with the Prime Minister until after the 

first elections under the Constitution 

are held. This is subject to the National 

Accord and Reconciliation Act (No. 4 

of 2008) which was enacted to foster 

national accord and reconciliation by 

giving effect to the Agreement on the 

Principles of Partnership of the Coalition 

Government. 

Thus with regard to the above, the 

following were appointed to the offices 

of Chief Justice and Deputy Chief Justice 

respectively; 


a) Willy Munywoki Mutunga (Dr.) 

b) Nancy Makokha Baraza (Ms.) 

Appointment of Director of Public 

Prosecutions 

Through this Gazette Notice, Keriako 

Tobiko was appointed as the Director 

of Public Prosecutions. This office is 

established under Article 157 of the 

Constitution. 

The same article makes provision on 

the functions of the Office of Public 

Prosecution which include: 

a) Power to direct the Inspector- 

General of the National Police 

Service to investigate any 

information or allegation of 

criminal conduct. 

b) Exercise state powers by 

instituting and undertaking 

criminal proceedings against any 

person before any court(other 

than a court martial) 

c) Take over and continue 

any criminal proceedings 

commences in any court with 

the permission of the person or 

authority 

d) Discontinue at any stage 

before judgment is delivered 

any criminal proceedings 

instituted by the Director or 

taken over by him. However, 

if the discontinuance takes 

place aster the close of the 

prosecutions case, then the 

defendant shall be acquitted 

and the discontinuance must 

be with the permission of the 

court. 

Appointment of Judges of The Supreme 

Court 

Article 166(1) (b) of the Constitution of 

Kenya provides that the President will 

appoint Judges with the recommendation 

of the Judicial Service Commission. 

Therefore, through this Gazette Notice, 

the following were appointed to be 

Judges of the Supreme Court of Kenya: 

a) Philip Kiptoo Tunoi 

b) Jackton Boma Ojwang’ (Prof.) 

c) Mohamed Khadhar Ibrahim, 

d) Smokin Wanjala (Dr.) 

e) Njoki Ndung’u Susanna (Ms.) 

The qualifications of a Supreme Court 

Judge are stipulated in the Constitution 

as they have to: 

a) Hold a degree in law from a 

recognized university, or are 

advocates of the High Court of 

Kenya or possess an equivalent 

qualification from a commonlaw 

jurisdiction; 

b) Have fifteen years’ experience 

as a superior court judge, 

distinguished academic, judicial 

officer, or legal practitioner and 

c) Have high moral character, 

integrity and impartiality. 

“Constant development is the 

law of life, and a man who always 

tries to maintain his dogmas in order to 

appear consistent drives himself into 

a false position.” 

(Mohandas Gandhi) 

54 






Establishment of TASK FORCES & COMMITTEES 

(By Wambui Kamau, Legal Researcher) 

Task Forces are established so as to 

work on a defined task or activity. 

In the recent past, the Kenyan 

Government has established Task 

Forces to aid in certain tasks and more 

especially in the formulation of new 

laws. Once formed, they are published 

in the Kenya Gazette for the notification 

to the general public. 

The following is a summation of the 

taskforces established by the relevant 

ministries formed during the period of 

March and May, 2011 

A. OFFICE OF THE VICE-PRESIDENT AND 

MINISTRY OF HOME AFFAIRS 

These Task Forces established under this 

Ministry are accountable to the Vice- 

President and Minister for Home Affairs 

by making monthly progress reports and 

presenting a final report at the end of 

their four month term. The four months 

commence the date after gazettement 

of this notice. 

To achieve their mandate, the Taskforces 

will have to collect and collate information 

necessary for the development of the 

legislations by holding stakeholder 

workshops to validate the Draft Bills 

and also making other appropriate 

recommendations for the fulfillment of 

its objectives. 

They will regulate their own procedures 

by developing a work plan. It will 

also receive relevant information and 

documents that it requires and seek 

assistance from a consultant as it may 

deem appropriate. 

In relation to the membership, quorum 

for any meeting for the purposes of 

conducting business other than to 

appoint a temporary chairman shall be 

seven (7) excluding the Chairman. 

Any member of the Task Force other than 

Public officers may resign in writing to 

the Minister and such resignation shall 

take effect upon such letter of resignation 

being received by the Minister. 

The costs incurred by the Task Forces, 

shall be defrayed from the voted funds 

of the Ministry. 


April, 2011. 

1. Establishment of The Task Force to 

Draft The Victims of Offences Bill and 

The Bail Information and Supervision 

Bill 

On the 31st of March, 2011, the office of 

the Vice-President and Ministry of Home 

Affairs established a Task Force to Draft 

the Victims of Offences Bill and the Bail 

Information and Supervision Bill. 

The mandate of the Task Force will be to 

propose two Bills on Victim of Offences 

and Bail Information and Supervision. In 

addition, the Task Force will propose the 

structures, processes and regulations 

for the protection of the rights of 

victims of offences and the provision of 

psychosocial support services and the 

generation and use of Bail information 

for the Supervision of persons admitted 

to bail. 

This Task Force will be chaired by 

Dorcas Kitaa Shikuku as chairperson 

and Charles Wanyoike assisting as the 

Vice- Chairperson. 

The members are: 

John Makau. 

Elecah M. Mbithi. 

Kennedy Nyagudi. 

Josephine Muthami. 

Amina Abdallah. 

Nicholas Mulila. 

Josephat Ituka. 

Kennedy Odipo. 

Rhoda Amulele-Ogoma. 

Paul K. Gachiri. 

Stephen N. Mbungi. 

Bishop Chabuga. 

Peter Maundu. 

Secretariat: 

John Bii. 

Carole Atieno. 

Moses Mabonga. 



Dated 15th April, 2011. 

2. Establishment of The Task Force to 

Propose A National Lottery Bill, Propose 

Amendments to The Betting Lotteries 

And Gaming Act, Cap 131 of The Laws 

of Kenya; and Prepare a Draft National 

Gaming Policy 

The Betting , Lotteries and Gaming Act 

(Cap. 131) provides for the control and 

licensing of betting and gaming premises 

and the imposition and recovery of tax 

on betting and gaming and authorization 

of public lotteries. In line with the 

objectives of this Act, this Task Force 

is established to amend the Betting 

Lotteries and Gaming Act, propose a 

National Lotteries Bill, prepare a draft 

National Gaming Policy and to determine 

functions and powers of the National 

and County governments in respect 

of Betting, Casinos and other forms of 

gambling. 

In addition to these objectives the Task 

Force is to determine the transfer of 

functions and powers between the 

National and County governments in 

respect of betting, casinos and other 

forms of gambling and determine the 

levels of cooperation between National 

and County governments in respect 

of Betting, Casinos and other forms of 

gambling. 

The Task Force will be chaired by Pamela 

M. Tutui who was appointed via Gazette 

Notice number 3931, dated 15th 

April, 2011 which revoked the earlier 

appointment of Matemu Mumo. She 

will be assisted by Nakhali WaOpembe 

as Vice- Chairperson. 

The members of the task force are: 

Victor Ogeto. 

Wilson Mamboleo (Rev.). 

John Katiku. 

Geoffrey Segero. 

Wilberforce Kisiero. 

Herbert Misigo (Dr.). 

John W. Njogu. 

Charles Wambia. 

Titi Ayiera. 

Christoper Oisebe. 

Mutua Muthusi. 

Afya Rama. 

Elizabeth Ng’ang’a. 

Secretariat: 


55



Fredrick Mbasi. 

Alice Macharia. 

Thuo Githinji. 


April, 2011. 

3. Establishment Of The Task Force 

To Draft The Bill On The Rights Of 

Persons Detained, Held In Custody Or 

Imprisoned 

This Task Force is established so as to 

propose the Bill on the rights of persons 

detained, held in custody or imprisoned. 

It will also make provision for the proper 

care, protection of the rights of persons 

held in correctional institutions and 

places of detention and make other 

appropriate recommendations on the 

rights of persons detained, held in 

custody or imprisoned. 

This Task Force will be chaired by Paul 

Musili Wambua (Dr.) and Titus Mwenda 

Karani as Vice- Chairperson. 

The membership include: 

Fatuma Dullo. 

Lucas Mwaura (Fr. Dr.). 

Jones Mwanzia Kikuyu. 

Janet Kotut. 

Charles Kisembe. 

Mary Kang’ethe. 

Marlene A. Ayiro. 

Mohamed Munyanya. 

Ole Masi (Rev.). 

Charles Obulutsa. 

Everlyn Arisi. 

Waikwa Wanyoike. 

Grace Murungi. 

Secretariat 

Charles Kigotho. 

Christine Ochieng. 

Rose Komu. 

B. MINISTRY OF ENVIRONMENT AND 

MINERAL RESOURCES 

Through the Minister, the following Task 

Forces were established and the terms 

extended. 


April, 2011. 

1. Extension Of The Term For The Task 

Force To Develop A Master Plan For 

Conservation Of Water Catchment 

Areas 


The Task Force is established so as to 

study existing legislation, policies and 

other relevant documents regarding the 

management of water catchment areas 

and identify any document gaps in the 

existing legislation, policies and other 

relevant documents. It is also charged 

with mandate to identify, map and 

document water catchment areas in the 

country including areas that have ceased 

to be catchment areas, document the 

environmental status of each water 

catchment area. 

In its findings, the Task Force should 

recommend appropriate intervention 

measures for each water catchment 

area and prepare an action 

plan for implementation of the 

recommendations. In addition, it should 

draft a master plan for the sustainable 

management of the water catchment 

areas and identify potential sources of 

resources, both financial and human 

for undertaking the recommended 

interventions. 

The term of the task force shall be a 

period of six (6) month with effect from 

16th March, 2011. 

The membership which will comprise 

of the following should elect its own 

chairperson and identify and co-opt 

other members or any other resources 

provided that the co-opted members do 

not exceed one-third of the Task Force. 

Members: 

Hassan Noor Hassan. 

Esther Kathure Magambo. 

Esther N. Ndirangu. 

Henry Njuguna. 

Zaverio N. Njeru. 

Beatrice Manyonge. 

Erastus W. Wahome. 

Lornah Akoth Odero. 

Anne Nyakihu Mukoma. 

Fransica Wamboi. 

Michael Gachanja. 

Esther Muiruri. 

Moses Imo (Prof.) 

Joy Obando (Dr.). 

Francis N. Gachathi. 

Secretary: 

Alice A. Kaudia (Dr.). 

The Secretariat of the Task Force shall 

be situated at the National Hospital 

Insurance Fund Building, 12th Floor, 

Nairobi. 


April, 2011. 

2. Taskforce To Implement Land Use 

Environment And Natural Resources 

Provisions Of The Constitution 

This Task Force was established through 

Gazette Notice Number 13880 of 2010 

which mandated it to review existing 

legislation and making recommendations 

concerning provisions to be repealed by 

new bill(s), deleted and replaced with 

alternative provisions. It is also tasked 

with the drafting of new bills in areas 

under which the Ministry is taking the 

role of Lead Agency under the Action 

Plan Relating to Enactment of Legislation 

by Parliament. 

It will perform its duties by developing 

checklists for reviewing and consulting 

on other bills under the Action plan that 

are the oversight of other Ministries and 

those under review by other bodies such 

as the Kenya Law Reform Commission 

Thus this notice bore the following 

additional appointments to the Task 

Force as members 

i) Akunga Momanyi 

ii) Nathans Browne 

iii) Mathew Kimanzi 

C. ESTABLISHMENT OF COMMITTEES 


April, 2011. 

M.I.C.E COMMITTEE MEMBERS AND 

SECRETARIAT 

M.I.C.E is an acronym for Meetings, 

Incentives, Conferences and Exhibitions. 

It is a product of the Ministry of Tourism 

and Wildlife for purposes of diversifying 

its tourist product and source markets in 

a bid to further promote Kenya as the 

Preferred Tourist destination. 

Therefore, through this notice, the 

following were appointed by the Minister 

for a period of three years with effect 

from 16th June, 2010. 

Les Baille-Chairman 

Dick Omondi 

S.K Maina 

Wturi Matu 

Jane Chege( Ms) 

Mike Macharia 

Gina Din Kariuki(Ms) 

56 





Johnson Weru 

Fred Kaigua 

Directore of Tourism 

Chief Executive, Public Relations 

Society of Kenya (PRSK), 

The Secretariat are: 

Muriithi Ndegwa 

Beatrice Makawiti (Mrs.) 

Fred Simiyu 

Bernard Asoro 

Gazette Notice No. 3261A and 3260B, 

Dated 29th March, 2011 and Gazette 

Notices 5366 and 5367, Dated 19th 

May, 2011 

Declaration of Vacancy in The Offices of 

The Chairperson and Members of The 

Judges and Magistrates Vetting Board. 

Through the Special Gazette Notice No. 

3261A and 3260B, dated 29th March, 

2011, vacancies were advertised for the 

positions of Chairperson and Members 

of the Judges and Magistrates Vetting 

Board. The advertisement is made 

pursuant the Vetting of Judges and 

Magistrates Act, No. 2 of 2011 section 

9(2) which provides that the President 

in consultation with the Prime Minister 

shall by notice in the Gazette declare the 

vacancies in the Board. 

However, an amendment to section 

9(2) of the Act by the Vetting of Judges 

and Magistrates (Amendment) Act(No. 

6 of 2011) was passed that had the 

effect including advertisements of the 

vacancies in the Board in at least two 

newspapers of national circulation in 

addition to the one advertised in the 

Kenya Gazette. This amendment was 

followed by a re-advertisement of the 

vacancies in the second Gazette Notice 

listed above. 

The Act in section provides that the 

members of the Board will be nine in 

number, of whom, six will be citizens of 

Kenya, three of whom are lawyers and 

the other three will be noncitizens 

of Kenya. The qualification of the noncitizens 

are set out in Section 9(13) which 

states that they should be serving or 

retired judges, each of whom has served 

as a Chief Justice or judge of a superior 

court in the Commonwealth. 

Other qualifications include: 

a) A holder of a degree from a 


university recognized by the 

relevant Kenyan authority 

b) At least fifteen years’ 

distinguished post-qualification 

experience in their field of study 

c) Satisfy the requirements of 

Chapter Six of the Constitution 

which provides for Leadership 

and Integrity provisions. 

The dissimilarity between the 

Chairperson and members is in the 

qualifications where the Chairperson 

has to have at least twenty years’ 

experience as a judge of a superior 

court, a distinguished legal scholar, a 

senior administrative judicial officer or 

twenty years experience’ distinguished 

careers as a legal practitioner whereby 

the members have the same but for 

fifteen years. 

However, there are persons who are not 

eligible to for appointment who include: 

a) Member of Parliament 

b) Member of a local Authority 

c) Member of an executive 

member of a political party and 

d) A person serving as a judge or 

magistrate in Kenya as of 27th 

August, 2010. 

Applications should have been sent by 

the 2nd of June, 2011 addressed to the 

Public Service Commission and names 

of all applicants were to be published in 

the Kenya Gazette. 

A point to note is that persons who had 

applied through the earlier notice need 

not re-apply. 


April, 2011. 

The Steering Committee on Nairobi 

International Financial Centre 

Through Gazette Notice No. 15891/2010, 

dated 19th November, 2010, the 

Minister for Environment and Mineral 

Resources, appointed a taskforce for 

drafting Legislation Implementing Land 

Use, Environment and Natural Resource 

Provisions for the Kenya Constitution. 

The terms of reference of the Taskforce 

include: 

(i) Reviewing existing legislation 

and making recommendations 

concerning: 

(a) Provisions to be repealed by 

new bill(s). 

(b) Provisions to be deleted and 

replaced with alternative 

provisions. 

(ii) Drafting of new bills in areas 

under which the Ministry of 

Environment and Mineral 

Resources is taking the role of 

Lead Agency under the Action 

Plan Relating to Enactment of 

Legislation by Parliament; 

(iii) Developing checklists for 

reviewing and consulting on 

other bills under the: 

(a) Action plan that are the 

oversight of other Ministries 

under the Action Plan. 

(b) Action Plan that are under 

review by other bodies e.g. the 

Kenya Law Reform Commission. 

Therefore, this notice bore the additional 

appointment of the Permanent Secretary 

to the Ministry of Information and 

Communications to be a member of 

the Steering Committee on Nairobi 

International Financial Centre (NIFC) 

Gazette Notice No. 3271 and 3272, 

Dated 1st April, 2011. 

Vacancies for The Offices of Judge of 

Supreme Court and High Court of Kenya 

The Constitution of Kenya, 2010 provides 

for the establishment of the Supreme 

Court in section 163. A total of seven 

Judges will constitute this Court. As for 

the High Court, it is established in section 

165 and it will consist of such number 

of judges as the Judicial Service Act will 

determine. 

Thus, the Judicial Service Commission 

of Kenya through this notices invited 

applications from qualified persons for 

the following positions in Constitutional 

office of the Judge of the Supreme Court 

(5 Posts) and Judge of the High Court 

(26 Posts). 

The retirement age is capped at 70 years 

with an election to retire at the age of 

65 years. 

The functions of a Judge of the 

Supreme Court are set out as having 

exclusive original jurisdiction to hear 

and determine disputes relating to the 

elections of the Office of the President 


57



arising under article 140, and to hear and 

determine in its appellate Jurisdiction 

appeals from the Court of Appeal and 

any other Court or tribunal as prescribed 

by the National Legislature. 

A Supreme Court Judge is also to give 

an Advisory opinion at the request of 

the national government, any state 

organ, or any county government with 

respect of any matter concerning county 

government. 

The duties of a High Court Judge include 

having unlimited original jurisdiction in 

criminal and civil matters, jurisdiction 

to determine the question whether a 

right or fundamental freedom in the 

Bill of Rights has been denied, violated, 

infringed or threatened. I addition, a 

High Court Judge will have jurisdiction 

to hear an appeal from a decision of a 

tribunal appointed under Article 144 of 

the Constitution. 

A high Court Judge will have jurisdiction 

to hear any question respecting the 

interpretation of the Constitution 

including the determination of— 

(i) The question whether any 

law is inconsistent with 

or in contravention of the 

Constitution; 

(ii) The question whether anything 

said to be done under the 

authority of the Constitution 

or of any law is inconsistent 

with, or in contravention of, the 

Constitution. 

(iii) Any matter relating to 

constitutional powers of State 

organs in respect of county 

governments and any matter 

relating to the constitutional 

relationship between the levels 

of government; and 

(iv) A question relating to conflict 

of laws under Article 191 of the 

Constitution. 

As for the Constitutional and statutory 

requirements for appointment, the 

applicants must possess the following 

qualification: 

a) At least fifteen (15) years 

experience as a superior court 

Judge; or ten (10) for a High 

Court Judge. 

b) At least fifteen (15) years 

experience as a distinguished 


academic, judicial officer, legal 

practitioner or such experience 

in other relevant legal field; or 

ten year(10) for a High Court 

Judge. 

c) Held the qualification specified 

in paragraphs (a) and (b) for a 

period amounting, in aggregate, 

to fifteen years (experience 

gained in Kenya or in another 

Commonwealth common law 

jurisdiction will be considered). 

d) Have a high moral character, 

integrity and impartiality. 

(In addition to the above 

qualifications, the applicants 

must demonstrate a high degree 

of professional competence, 

communication skills, fairness, 

good temperament, making 

of good judgments in both 

legal and life experiences and 

commitment to public and 

community service). 

In addition to interested and qualified 

persons forwarding their letter of 

application, and a detailed and 

updated curriculum vitae summarizing 

the applicant’s bio-data including, 

background information. They were 

to submit completed application for 

employment forms in triplicate—JCS 

2A (for public officers) or JSC 2 (for 

other applicants),five (5) samples of 

any writings by the applicant, including 

but not limited to judgements, scholarly 

writings or any legal publications that the 

applicant has authored. 

Applicants were to submit a declaration 

of income and liabilities as at the time 

of making the application using the 

prescribed form (The Declaration of 

Income, Assets and Liabilities Form 

JSC 2b). For those in Government 

employment, attach copies of returns 

of declaration of income and liabilities 

and for those in private practice attach 

income tax returns, for the last three (3) 

years and certified copies of testimonials 

and professional certificates and 

academic transcripts. 


May, 2011. 

Establishment of The Imarisha Lake 

Naivasha Management Board 

The Prime Minister of the Republic 

of Kenya has appointed the Imarisha 

Lake Naivasha Management Board to 

manage the Lake Naivasha Catchment 

Restoration Programme. The objective 

of the Programme is to restore Lake 

Naivasha and its catchment area. 

The mandate of the Board is to develop 

a programme to: 

a) Develop a programme 

(“Imarisha Naivasha 

Programme”) to co-ordinate 

the activities of various players 

engaged in the conservation of 

the lake and its catchment, and 

for that purpose to review and 

approve projects; 

b) Monitor compliance with the 

laws and regulations governing 

the environment of the lake and 

its catchment in collaboration 

with the relevant Ministries; 

c) Develop and enforce codes of 

conduct to be observed by the 

players in order to improve 

the environment and establish 

sustainability of the lake and its 

catchment in partnership with 

the relevant stakeholders; 

d) Develop, adopt and execute 

a Trust or other instrument 

to receive financial resources 

from within or outside Kenya 

to finance the implementation 

of programmes, for which the 

Board shall be fully accountable 

for proper and prudent 

management and for the loss 

of which it shall be liable; 

e) Collaborate with all the 

stakeholders, including research 

institutions and promote their 

active participation in the 

Imarisha Naivasha Programme 

within the lake and its 

catchment. 

The Board is accountable to the Inter 

– Ministerial Technical Committee by 

reporting on a quarterly basis. The Board 

serves for a renewable one year term 

and its membership is as follows: 

a) The Permanent Secretary in 

Ministry responsible for the 

environment; 

b) The District Commissioner, 

Naivasha District; 

c) The Mayor of the Naivasha 

Municipal Council; 

58 





d) Andrew Koisamoi, representing 

pastoralists; 

e) Mary Njoki, representing 

Catchment Water User 

Associations; 

f) Lord Andrew Enniskelin, 

representing Lake Naivasha 

Riparian Association; 

g) Richard Fox, representing Lake 

Naivasha Growers Group; 

h) Mary Njuguna, representing 

Community Forest Association; 

i) Raphael Ikiba, representing 

Beach Management Units; 

j) Mark Kariuki, representing 

Naivasha local business 

community and tourism 

industry; 

k) Anderson Koyo, representing 

civil society organizations. 

The Secretariat of the Board shall be 

based at the Office of the Prime Minister 

and shall comprise a Secretary and such 

number of staff as may be deemed 

appropriate by the Board. 

The Inter-Ministerial Technical 

Committee reports to the Prime Minister 

and it is has the following membership: 


a) Chairperson: Permanent 

Secretary, Ministry of 

Environment and Mineral 

Resources. 

b) Co-chairperson;Economic 

Advisor to the Prime Minister. 

c) Secretary; Assistant Director 

of Programmes in the 

Ministry responsible for the 

environment. 

d) one representative each from 

the Ministries responsible for – 

1.finance; 

2.local government; 

3.water and irrigation; 

4.agriculture; 

5.tourism; 

6.forestry and wildlife; 

7.energy; 

8.fisheries; development; 

9.livestock development; 

10.public health and 

sanitation; and 

11.lands. 

For the performance of its functions, 

the Board shall meet at such places and 

times as it deems fit, cause such studies 

or researches to be undertaken as may 

inform the Board of its mandate, may 

co-opt such individual or institutions 

as it may deem appropriate and shall 

report serious breaches of the law to 

the Minister responsible for matters 

relating to the environment and the 

Prime Minister. In general, the Board 

may regulate its own procedures and 

may issue guidelines with respect to 

the orderly conduct of its proceedings, 

the quorum for the transaction of its 

business and other related matters. 

(2) The Committee shall― 

a) provide policy and technical 

guidance to the Board; 

b) facilitate the implementation 

of the Imarisha Naivasha 

Programme; 

c) co-ordinate actions required 

by the Government to resolve 

matters brought to the 

Committee by the Board; 

d) undertake any other tasks that 

may be assigned by the Prime 

Minister. 

“Let every man remember that to violate the 

law is to trample on the blood of his father, 

and to tear that charter 

of his own and his children’s liberty.” 

(Abraham Lincoln) 


59



Human Resources And Administration Department 

Uwazi cup SOCCER TOURNAMENT, 2011 

By Mutindi Musuva, 

Team Leader, HR and Admin. 

The second annual Uwazi Cup Soccer 

Tournament by the International 

Commission of Jurists – Kenya 

section (ICJ) was held on May 7, 2011 

at the Impala Club Grounds. The theme 

of the tournament was “An informed 

citizen, a transparent Government, a 

prosperous Kenya.” The guest of honor 

was Hon. Martha Karua M.P. for Gichugu 

and former Minister for Justice, National 

Cohesion and Constitutional Affairs. 

The tournament was well attended with 

21 teams participating drawn from law 

firms, corporate, civil society and the 

media. 

The Kenyan Section of the International 

Commission of Jurists (ICJ Kenya) is a nongovernmental, 

and not for profit making 

organization. Its tripartite mandate is to 

promote and protect the Rule of Law, 

Human Rights and Democracy 

Last year ICJ-Kenya launched the annual 

Uwazi Cup Football Tournament which 

seeks to bring the private sector, legal 

fraternity and civil society together in 

a move to raise awareness on the need 

for transparency and accountability 

through access to information. The 

Council earnestly participated in this 

tournament and narrowly missed the 

cup and reached the semi finals. 

The Council presented a formidable 

team for the “six a side” match to secure 

second best position for the Losers plate. 

Kituo Cha Seria won the tournaments cup 

while Kenya Broadcasting Corporation 

won the tournaments Losers plate title. 

Members of staff made the families and 

friends who had joined the Council to 

cheer and play left the Impala grounds 

heads high and in good spirits. It had 

been a great day with good weather and 

an excellent opportunity to network and 

mingle with colleagues and professionals 

from other firms. 

(1-7) The National Council for Law Reports’ 

team at different stages of the tournament. 

1 

2 

60 






3 

4 

5 

6 

7 


61




Gichugu Mp and 

former Justice 

and Constitutional 

Affairs Minister the 

Hon Martha Karua 

(left) during the 

official opening of 

the Justice cup. 

(1-3) The National Council for Law 

Reports’ team in action. 

1 

2 

62 

3 





Research And Development Department 

NCLR launches ONLINE ARCHIVE OF KENYA GAZETTE AT 

THE CONNECTED KENYA SUMMIT 

By Nicholas Okemwa, Snr. Law 

Reporter, (H.O.D) Research and 

Development Department 

The Connected Kenya Summit 

(previously known as the Connected 

Government Summit) is the 

brainchild of the Kenya ICT Board in 

consultation with industry players 

and key government decision makers. 

The Summit aims to establishing a 

platform for collaboration, capacity 

building and priority sharing between 

government and the IT sector with 

a view of linking and hastening 

implementation of government IT 

projects to world class standards. The 

theme for the 2011 Connected Kenya 

Summit was “Innovating for the Citizen”. 

It was held at Leisure Lodge, Mombasa 

between 18th and 21st of April. NCLR’s 

presentation was made by its Editor 

and CEO Mr. Michael Murungi together 

with representatives from Google 

and the Government Press. Other 

representatives of the Council included 

Ms. Linda Awuor, Mr. Michael Mayaka 

and Mr. Nicholas Okemwa. Some of the 

entities that had presentations included 

Safaricom, IBM, Telkom Orange and the 

Judiciary of Kenya. 

NCLR’s mission is to provide access to 

public legal information in order to aid 

the administration of and access to 

justice, the knowledge of the law and the 

development of jurisprudence. Our ethos 

is that public legal information is part of 

the common heritage of humanity. It is 

our belief that maximizing access to such 

information promotes justice and rule of 

law in society. On that note, we believe 

that public legal information should be 

accessible to all free of charge and on 

a non profit basis. To this end, in 2007, 

NCLR joined the Free Access to Law 

Movement which is the umbrella name 

for a number of initiatives and projects 

across several common law countries 

aimed at providing free online access to 

legal information such as case law and 

legislation. 

While section 35 of the Constitution 

of Kenya 2010 establishes the citizen’s 

right of access to public information, 

actual access to public legal information 

is limited by among other factors, the 

nature of the platforms on which this 

information is deployed. The creation, 

management and deployment of 

Kenya’s public legal information (the 

Laws of Kenya; Judicial Opinions; the 

Parliamentary Hansard; Legal Notices; 

Gazette Notices; Bills of Parliament and 

Treaties & International Instruments) is 

not predicated on a common standard 

that would allow easy citizen access 

to the information using current and 

emerging technologies. Considering the 

diversity of the institutions in the public 

legal information domain, there is need 

to adopt a standardized technology 

platform to improve data exchange, 

document life-cycle automation and 

standardized representations of data 

and metadata. 

To that end NCLR has partnered with 

the Kenya National Assembly, the 

Government Press, Kenya ICT Board and 

Google Inc. under an initiative named 

Open Access to Public Legal where NCLR 

is the convener of the reference group 

and implementation leader. Under the 

initiative, NCLR has spearheaded the 

efforts to provide access to the Kenya 

Gazette on a platform that makes it 

easy to search and browse through the 

records while retaining their original 

look and feel. 

Beforehand, the early editions of the 

Kenya Gazette have been previously 

available to the public in paper form as 

part of the public records of the Kenya 

National Archives. However, because 

they were preserved in paper form, 

public access to them was limited. NCLR 

in conjunction with the Government 

Printer converted these paper records 

into digital documents and then 

leveraged on Google’s unique indexing 

and search engine technology to provide 

user friendly online access. Through 

state-of-the art OCR (object character 

recognition) technology, historical issues 

developed with typewriters or in image 

formats now have their text indexed and 

fully searchable. This exposes readers to 

information they might not otherwise 

find, in the same visual format that the 

documents exist. 

So far, the earliest edition of the Kenya 

Gazette collected and indexed is dated 

January 15th 1906 whilst the latest 

edition is dated December 22, 2006. The 

tracing and inclusion of earlier decisions 

than 1906 and later decisions that are 

missing is currently underway. In fact 

the earliest edition in Kenya’s history, 

Volume 1 of 1899 has been traced and 

is in the process of being scanned and 

indexed. 

The importance of these early records 

cannot be gainsaid. The records contain 

information of enormous value to Kenya’s 

social, legal and political heritage-from 

the laws and policies of the British 

settlers in the Colony and Protectorate of 

East Africa, to the notices capturing the 

transition to internal self government 

and the birth of the Republic of Kenya; 

from the declaration in 1952 of the 

Mau Mau as an unlawful society to the 

lifting of the declaration in 2003. The 

records are an invaluable repository of 

knowledge and information on Kenya’s 

governance. Citizens can now easily 

search, access and cross-reference 

contextually relevant information. 

NCLR is currently in the process of 

using the same technology to make 

the records of Parliamentary debates 

(Hansard) accessible and user friendly. 

CALL FOR ARTICLES 

NCLR is calling on judicial officers, 

scholars, advocates, law students and 

other interested parties who wish to 

have their papers published online on 

the NCLR website www.kenyalaw.org 

to kindly email the same to the Editor 

at editor@kenyalawreports.or.ke. The 

article should be accompanied with a 


63




statement of originality. 

NOTICE OF PUBLICATION OF THE 2ND 

VOLUME AND CALL FOR PAPERS FOR 

3RD VOLUME 

NOTICE OF PUBLICATION 


is pleased to announce that the second 

edition of the Kenya Law Review Journal 

is out. The Journal is published annually 

and has established itself as a leader for 

both international and local readers in 

discussions on Kenyan law. As we wait 

for the print edition of the journal to roll 

off the printing press, the online version 

may be accessed for free under the ‘KLR 

Journal’ segment of our website - www. 

kenyalaw.org . 

CALL FOR PAPERS 

The Council is calling for papers for 

the third edition of the Journal. The 

Journal provides a forum for the 

scholarly analysis of Kenyan law and 

interdisciplinary academic research on 

the law. 

The focus of the Journal is on studies 

of the legal system and analyses of 

contemporary legal issues with particular 

emphasis on the article’s substantive 

contribution to understanding some 

aspect of the country’s legal system. 

The Editorial Policy of the Journal is to 

be non-ideological and with a multidisciplinary 

outlook, to include articles 

showing the interplay between the law 

and other disciplines. 

The Editor of the Kenya Law Reports 

therefore welcomes scholarly work 

from legal scholars, judicial officers, 

legal practitioners, students, law and 

society scholars (including criminology, 

psychology, sociology, and other social 

sciences) and finance and economics 

scholars to submit articles for 

consideration. 

Submissions for publication must be 

received on or before the following 

dates: 

For Volume III of the Journal: 30th 

December, 2011. 

The selection committee, composed of 

the editorial board of the Journal, will 

review and consider all submissions for 

publication and the contributors will be 

given notification of the acceptance of 

their works for publication in the Journal. 

Each submission should be peer 

reviewed by an eminent scholar or 

professional in the subject covered, be 

written in English and submitted both 

in signed paper copy and in soft copy as 

an editable word - processed computer 

file. They should conform to academic 

citation standards, be no longer than 

12,000 words, and include an abstract 

of up to 350 words. 

The submissions should include: 

I. The author’s full names and 

contacts; 

II. A declaration of originality; 

III. A statement of whether the work 

has been previously published 

or tendered for publication 

in any other publication and 

where this is the case, the name 

of the publisher and the date of 

publication; 

IV. A statement that the author 

consents to the publication 

of the work by the National 

Council for Law Reporting. 

All submissions and enquiries should be 

addressed to: 

The Editor 


Milimiani Commercial Courts, Ground 

Floor, 

Off Ngong Road 

P.O. Box 10443-001000 

Nairobi 

Email: editor@kenyalawreports.or.ke 

Dennis Gikunda, 

Ory Okolloh 

(Google Inc) 

Michael Murungi, 

C.E.O NCLR at the 

NCLR stand 

64 






Michael Mayaka of NCLR conducting a 

live run of the Kenya Gazette portal 

Linda Awuor (NCLR), Denniss 

Gikunda, Ory Okolloh (Google 

Inc) and Martin Mbui (NCLR) 

Various participant’s stands at the 

auditorium. 


65




K L R 

KENYA LAW 

REPORTS 

www.kenyalaw.org 

NATIONAL COUNCIL FOR LAW REPORTING 

A service state corporation in the Judiciary. 

100 -YEAR ARCHIVEOFTHE KENYA GAZETTE 

THE OFFICIAL LAW REPORTS 

OF 

THE REPUBLIC OF KENYA 

FROM 1906 

To 

THE PRESENT TIME 

Now available on: www.kenyalaw.org 

With the speed and functionality of GOOGLE BOOKS’ unique technology platform 

What is the big news 

Kenyans now have online access to the archival 

records of the Kenya Gazette Notices dating back 

to 1906 in an easily searchable and reliable 

platform. 

What is contained in these records The Kenya 

Gazette is an official government publication 

containing 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. Presently, the Kenya 

Gazette is published by the Government Press 

every week, usually on Friday, with occasional 

releases of special or supplementary editions 

within the week. 

What is the relevance of these records The 

records contain information of enormous value to 

Kenya’s social, legal and political heritage - from 

the laws and policies of the British settlers in the 

Colony and Protectortate of East Africa, to the 

notices capturing the transition to internal self 

governent and the birth of the Republic of Kenya; 

from the declaration in 1952 of the Mau Mau as an 

unlawful society to the lifting of the declaration in 

2003. 

Where have the records beenThese records 

have been previously available to the public in 

paper form as part of the public records of the 

Government Press. However, because they were 

preserved in paper form, public access to them 

was limited. 

How did the records become available 

onlineThe availability of these historical records 

online is one of the initiatives of a project aimed at 

improving citizen access to public legal information 

involving the National Council for Law Reporting, 

the Kenya National Assembly, the Government 

Press, the Kenya ICT Board and Google Inc. 

What about current and future records, will 

they be continuously provided on the portal 

The portal has been established to provide the 

historical content of the Gazette Notices, the bulk of 

which was prepared and preserved exclusively in 

paper form. The portal is a unique platform for 

enabling easy access to and cross-referencing 

inside a stockpile of scanned paper documents. 

Since current and future records are generated and 

distributed as computer documents, they can be 

provided on a different online platform that provides 

even more functionality and better access. This 

new platform for the current content is what the 

National Council for Law Reporting and its partners 

in this initiative are working on. 

What makes the online platform on which 

In partnership with: 

these records provided unique The online 

platform provides a robust hosting, indexing and 

browsing solution for documents, books and 

magazines, in the cloud. Through state-of-the-art 

OCR (object character recognition) technology, 

historical issues developed with typewriters or in 

image formats now have their text indexed and fully 

searchable.This exposes readers to information 

they might not otherwise find, in the same visual 

format that the documents exist. 

How accurate are the records The records are 

actual representations of the original paper records 

from which they were derived. 

Are the records copyrighted or sold The 

archival records of the Kenya Gazette notices are 

public information. They are published by the 

Government Press and provided freely to its 

citizens. There are no restrictions on the use of this 

content. Current editions of the Gazette can be 

purchased at the Government Press. 

Can one download, print and save the records 

Downloading and saving is not enabled but users 

will be able to copy and share a link to any record in 

the archive. However, by using the print+screen 

feature on one’s computer, a user is able to obtain 

a screen grab of any portion of the content 

displayed on the screen, to save it and to print it out. 

Milimani Commercial Courts /4th Upper Hill Close/off 

Ngong Rd, 

P.O. Box 10443 - GPO 00100, 

Nairobi,Kenya / Tel: (+254 020) 2712767 

Email: info@kenyalaw.org www.kenyalaw.org 

KENYA NATIONAL ASSEMBLY 

GOVERNMENT PRESS 

“Transforming Legal Informaon into Public Knowledge”. 

• Technology in Government in Africa 

Award, 2011 

• Company of the Year Award 

(COYA) – Judges Award, 2010 

66 





Finance Department 

NCLR UNDERTAKES MAIDEN MERCHANT APPRAISAL 

Secretary, Evaluation Committee/ Procurement 

By Andrew Kiarie, Asst procurement 

officer 

One of the functions of the 

procurement unit according 

to Regulation 8, Subsection(3), 

Paragraph (a) of the Public Procurement 

and Disposal Regulations, 2006 is to 

maintain a standing list of suppliers 

which shall be used to source for the 

entities supplies for a given financial 

period. 

Since NCLR became operational in 

2001, it has relied on the standing list 

of suppliers from the Judiciary. But over 

time, the NCLR has developed unique 

needs and the list of suppliers from 

the Judiciary has been inadequate in 

meeting the specialized needs of the 

Council. 

In this regard, for the financial year 

2011-2012, management of the council 

resolved to prequalify merchants with 

a view of obtaining adept suppliers 

capable of meeting the requirements 

of the council while keeping in mind the 

need for the supplier to meet specific 

principles of procurement applicable to 

merchants (value for money in terms 

of costs and quality as well as timely 

deliveries). 

In order to ensure compliance with 

the Public Procurement and Disposal 

Act, 2005 and Public Procurement 

and Disposal Regulations, 2006, as 

well as being the first time that NCLR 

was undertaking the exercise, it was 

necessary to obtain assistance from 

experienced procurement specialists 

who would assist the procurement unit 

and evaluation committee of NCLR. With 

the assistance of the Judiciary and the 

Directorate of Public Procurement, we 

secured two procurement specialists, 

Mr. Eliud Koome (Senior Supply Chain 

Management Officer,SSCMO) and Mr 

Patrick Kipngeno (Procurement Officer, 

High Court). 

For purposes of undertaking the 

exercise, the CEO/Editor appointed 

two committees; the Tender Opening 

Committee comprising Pascal Othieno, 

Emmah Kinya, Wambui Kamau, Patrick 

Kipngeno, Catherine Moni , Andrew 

Kiarie and the Evaluation Committee 

comprising; Cornelius Lupao, Lameck 

Oyare, Catherine Moni, Wambui Kamau, 

Eliud Koome, Patrick Kipngeno, Linda 

Awuor, Mutindi Musuva and I. 

The Advertisement for the 

prequalification of suppliers was 

published in the Daily Nation and the 

Standard on 26th April 2011 and the bids 

were received on the 17th May 2011 and 

were opened by the Tender Opening 

Committee in the presence of bidders. 

The evaluation of the bids commenced 

on 18th May and was done at the Lenana 

House Conference hotel and it comprised 

two phases: Phase 1 was the evaluation 

of the prequalification documents based 

on the following criteria; evidence 

of registration documents and tax 

compliance, data on past experience, 

3rd party certification, availability of 

financial and human resources, status 

of litigation history relating to contracts 

entered into by bidders as well as the 

extent to which the prospective bidders 

would apply Information Technology to 

achieve enhanced product and service 

delivery. 

The second phase comprised of site 

visits to selected strategic categories 

of suppliers who were responsive in 

phase 1. 

On the 27th May 2011, the evaluation 

committee wound up its proceedings 

and handed over a report to the 

Procurement Secretariat for presentation 

to the tender committee in regard to 

recommendations made with respect 

to the merchants that were considered 

responsive. 

It is worth noting that the list of 

prequalified suppliers was prepared one 

month prior to the end of the financial 

year 2010-2011 in readiness for the next 

financial year (1st July 2011-30th June 

2012). This elucidates the dedication 

of the procurement secretariat in 

regards to ensuring timeliness of the 

procurement processes, while abiding 

to the rules and regulations governing 

public procurement in Kenya. 

With the approved list of pre-qualified 

suppliers, the Council will be assured 

of quality and timely supplies which 

will enable it realize its mandate and 

objectives as indicated in its strategic 

plan for the years 2009-2012. 

The procurement secretariat and 

evaluation committee would like to 

thank Mr. Eliud Koome and Mr. Patrick 

Kipngeno for their support and expertise 

throughout the entire process. In 

addition, we would like to appreciate 

the contribution of the management of 

NCLR in providing us with the necessary 

financial and human resources to 

undertake the appraisal process. 

“We are like dwarfs 

sitting on the shoulders 

of giants. We see more, 

and things that are more 

distant, than they did, 

not because our sight is 

superior or because we 

are taller than they, but 

because they raise us up, 

and by their great stature 

add to ours.” 

John Salisbury 

Metalogicon, 1159. 


67



Finance Department 

Technical Evaluation Committee members : From left;Cornelius w. Lupao (chairman) 

Wambui Kamau, Patrick Kipngeno, Andrew Kiarie, Cathrine Moni, Lameck Oyare and 

Eliud Koome; below, the committe at work 

68 





Sales And Marketing Department 

National Council for Law Reporting WINS CONTINENTAL 

TECHNOLOGY AWARD 

By Linda Awuor , Sales Marketing 

and Customer Care Department 

The National Council for Law 

Reporting (NCLR) on May 2, 2011 

won the prestigious Technology 

in Government in Africa (TIGA) Award, 

2011. The award was presented to 

Mr. Michael Murungi, the CEO/Editor 

of the NCLR at a Gala Dinner held at 

the Sheraton Hotel in Addis Ababa, 

Ethiopia during the Second Meeting 

of the Committee on Development 

Information, Science and Technology 

(CODIST-II), a committee of the United 

Nation’s Economic Commission for Africa 

(UN-ECA). 

Mr. Michael Murungi (left), the CEO/Editor of the National Council for Law Reporting (left) receives the TIGA Award Trophy 

from Mr. Mohammed R. Tutai, Regional Technology Officer, Microsoft Asia (right). 


is a state corporation under the Judiciary 

charged with the mandate of publishing 

the decisions of the courts of Kenya and 

also the Laws of Kenya. 

The TIGA Awards were launched in 

2007 by UN-ECA and their aim is to 

recognise outstanding achievements 

by organizations or teams that develop 

and implement innovative projects to 

improve online government service 

delivery (such as service application 

forms, tax payments, revenue collection, 

birth & death registration, other forms 

of government eServices, etc.); with a 

specific focus on citizens or businesses 

as clients of government. The prizes 

are awarded in three levels - national, 

provincial and local. The awards are given 

in four categories - public service delivery 

to citizens/communities; improved 

health services through the use of ICTs; 

improved educational services through 

the use of ICTs and Public Private 

Partnership (PPP) in economic and 

financial eServices delivery. 

The Award recognises African 

Governments’ effective use of ICTs for 

public service delivery as part of fulfilling 

ECA’s African Information Society 

Initiative (AISI) and the Government 

of Finland’s Development Cooperation 

Strategy on ICTs for development in 

Africa. The public service category 

of the award recognizes outstanding 


69




achievements by organisations or 

teams in developing and implementing 

innovative projects to improve online 

government service delivery with a 

specific focus on citizens or businesses 

as clients of government. 

The NCLR’s award fell under the 

Public Service Delivery to Citizens/ 

Communities (G2C) category particularly 

for its initiative in providing ‘Free and 

Open Access to Public Legal Information 

in Kenya’. In their citation of the NCLR, 

the TIGA Award Judges stated: 

‘The [NCLR’s initiative] aims at 

recognizing the primary role of local 

initiatives in free publishing of their own 

national information; co-operating in 

order to achieve these goals; recognizing 

reciprocal advantages that obtain from 

access to each other’s laws; helping 

each other and to support, within their 

means, other organizations that share 

these goals with respect to promotion 

of public policy conductive to the 

accessibility of public legal information, 

technical assistance, advice and 

training, development of open technical 

standards, and academic exchange of 

research results.’ 

This year’s edition of the awards had 

attracted over 89 entries from 24 

African countries, 44 of which had 

been shortlisted. The other awardees 

under the public service category were 

Rwanda’s e-Soko project and Mauritius’ 

Government Online Centre for Enhanced 

Public Service Delivery. 

In their congratulatory remarks to the 

awardees, the Executive Secretary of 

the UN-ECA, Mr. Abdoulie Janneh; the 

Ambassador of Finland to Ethiopia 

and the UN-ECA, Mr. Leo Olasvirta 

and the Director of ICTs, Science and 

Technology Division in UN-ECA, Ms. 

Aida Opoku-Mensah, observed that the 

awards had established themselves as 

the barometer of e-government trends 

in Africa and an indication of the move 

by African Governments to support 

citizens’ access to vital information. 

The ceremony was attended by heads 

and members of country delegations to 

CODIST-II, civil society and private sector 

representatives and members of the 

diplomatic corps. 

Mr. Murungi (second from right) is joined by some members of the Kenyan delegation to CODIST-II, Eng. James Rege, MP 

& Chairman of the Parliamentary Committee on Energy, Communications and Information (second left); Eng. John Kariuki, 

a Communications Technology Expert at the National Communications Secretariat (extreme left) and Mr. Leonard Oloo of 

the East African Law Society (extreme right). 

70 







71



Feature Case 

Feature Case 

AMENDMENT OF CHARGES AT THE TIME 

OF WRITING JUDGMENT FAULTED 

Jon Cardon Wagner v Republic and 2 others 

High Court at Nairobi (Nairobi Law Courts) 

Criminal Appeal 405 & 406 of 2009 

M Warsame J, March 22, 2011 

By Esther Nyaiyaki Onchana 

st 

nd 

case against Jon Cardner Wagner The (1st highly Appellant), publicised Fedha conviction Nyamweru case (2nd against Appellant) Jon Cardner Wagner (1 Appellant), Fedha Nyamweru (2 Appellant) 

lant) was overturned by the High & Court Judy on Nyaguthe March 22, 3rd 2011. Appellant) The court was set overturned aside the by the High Court on March 22, 2011. The court set aside the 

st the three on the grounds that the conviction trial court and made sentence fundamental against errors the three among the them, grounds that the trial court made fundamental errors among them, 

ed against the respondents at the time amending of writing the charged its judgment. preferred ‘The against rationale the respondents and the at the time of writing its judgment. ‘The rationale and the 

st 

at the time of writing the judgement 

logic 

when 

of amending 

the 1st appellant 

the charges 

had 

at 

no 

the 

opportunity 

time of writing 

to 

the judgement when the 1 appellant had no opportunity to 

st 

reply or contest is not clear to me. I therefore think the 1 appellant was justified in attacking the amendment 

o me. I therefore think the 1st appellant was justified in attacking the amendment 

undertaken by the trial court at the stage of writing the judgement’ presiding Justice Warsame held. 

t the stage of writing the judgement’ presiding Justice Warsame held. 

The court also faulted the interference by third parties who were directing police as to the circumstances and mode 

rference by third parties who were directing police as to the circumstances and mode 

of investigations. ‘There was a departure from the central principle which is that there must be independent and 

a departure from the central principle 

impartial 

which 

investigations. 

is that there 

Such 

must 

a 

be 

departure 

independent 

is a ground 

and 

for concern and would damage a significant aspect of public 

a departure is a ground for concern 

interest 

and would 

in the 

damage 

administration 

a significant 

of justice’ 

aspect 

the 

of 

court 

public 

warned. 

of justice’ the court warned. 

st 

The 1 appellant was charged with three principal counts of defilement under section 8(1) as read with section 8(4) 

with three principal counts of defilement of the Sexual under Offences section Act 8(1) as No.3 read of 2006. with section He was 8(4) also charged with three alternative counts under section 11(1) of the 

.3 of 2006. He was also charged with Sexual three alternative Offences Act. counts On the under other section hand, 11(1) the of nd 

2 the rd 

and 3 appellants were charged and convicted on two counts of 

other hand, the 2nd and 3rd appellants child were prostitution charged contrary and convicted to section two 15(a) counts of the Sexual of 

st 

O fences Act No.3 of 2006. The 1 appellant was sentenced 

section 15(a) of the Sexual Offences Act to 15 No.3 years of imprisonment 2006. The 1st on appellant each count was and sentenced 

rd 

ordered to run concurrently. The 2nd and 3 appellants were 

each count and sentenced ordered sentenced to run concurrently. to 10 years in The jail 2nd for each and 3rd count. appellants The sentence was ordered to run concurrent. All the appellants were 

jail for each count. The sentence was aggrieved ordered by to the run conviction concurrent. and sentence All the appellants made on 11th September 2009 by the trial court thereby filing an appeal. 

tion and sentence made on 11th September The 1 

stappellant 2009 by set the out trial 51 grounds court thereby of appeal filing while an the 2 

nd 

and 3 

rdappellants each put up 11 similar grounds of appeal 

t out 51 grounds of appeal while the against 2nd and conviction 3rd appellants and sentence. each For put purposes up 11 similar of clarity and simplicity, the appeals were consolidated and argued 

nviction and sentence. For purposes in a concise of clarity manner and by simplicity, the advocates the appeals for the appellants. were 

oncise manner by the advocates for the appellants. 

On January 28 2011, the High Court granted Mr. Wagner and the two appellants bail pending the 

11, the High Court granted Mr. Wagner and hearing the two of appellants the instant bail appeal. pending Mr. the Wagner was required to deposit Kshs.1 million in court and in 

tant appeal. Mr. Wagner was required to deposit addition Kshs.1 deposit million his passport in court to and the in Deputy Registrar of the Court. At the time the court emphasized 

his passport to the Deputy Registrar of the Court. that At in the defilement time the case court it emphasized was essential to prove the age of the complainant either by way of medical 

nt case it was essential to prove the age of complainant 

evidence or 

either 

through 

by 

other 

way of 

evidence 

medical 

since the Sexual Offences Act had different categories of offences 

ugh other evidence since the Sexual Offences Act 

and 

had 

sentences 

different categories 

for different 

of 

ages. 

offences 

In order to determine the conflict between the allegations by the 

defence and the evidence by the prosecution, the appeal had to be heard conclusively. 

or different ages. In order to determine the conflict between the 

the defence and the evidence by the prosecution, the appeal had to be heard conclu- 

72 





Feature 

Feature 

Case 

Case 

Prosecution Evidence before the trial court 

During the hearing in the trial court the prosecution called 25 witnesses. Chief among the prosecution witnesses 

was, Dr. Ketra Muhombe, who told the court that on diferent dates between June and July 2008 she examined and 

prepared medical reports for N. K. and G.W. Both complainants had been brought to her by the officials from Women 

Rights Awareness Programme. She told the court that on July 24 2008, she prepared N.K. medical report, whose 

date of birth was given as 1995. The complainant informed her that she had been sexually assaulted in April 2008 

on a date she could not remember. The alleged assault occurred in Loresho and the perpetrator was described as a 

white man. On examination, she formed the opinion that the victim had been defiled on several occasions. 

On June 17 2008 the doctor attended to G.W. The victim gave her age as 14 years and stated that she had been 

sexually assaulted by a mzungu in his house. The said victim also informed the doctor that she had been there with 

her younger sister and that they were both drugged at the time of the sexual assault. On examination of the second 

victim the doctor formed an impression of defilement against the complainant. The said victim also informed the 

doctor that she was defiled on 5th June 2008 in a mzungu house. 

G.W. testified that on July 5 2008 two ladies, described as Mark’s mother and Wavinya, falsely led her to believe 

that they were taking her to a place to work. On alighting from a matatu the ladies informed her that she would 

sleep with a man. Her attempts to escape were allegedly stopped by a watchman and the two ladies. She was then 

handed over to a white man who sprayed something on her face and she immediately became unconscious. On 

gaining her consciousness, she found the man on top of her. Upon her return to her home in Mwiki she shared her 

ordeal with her friend L. She recounted that her report to the police was not taken seriously until a lady at her 

church reported the matter to the area chief whereupon the first appellant was taken into custody by the police. She 

confirmed that it was L. and her who led the police to the white man’s house. 

L .W, was the complainant in count 2 preferred against the 1st appellant. She contended that G.W. informed her 

that she was taken to a white man by Mark’s mother and Wavinya on the day they went together. She also 

contended that she was taken by Wavinya, Mark’s mother and another lady to a white man’s house. Similarly on 

reaching the place, she was told she would sleep with a white man. The mzungu then came and sprayed something 

on her face. Later she found herself bleeding from her private parts. She contended that after 

leaving the house, they all went to Gikomba for shopping as they were given money by the mzungu. She 

identified the 2nd appellant through an identification parade. 

The fourth prosecution witness, N. K. was the complainant in count 3. She narrated that in November 

2007, a lady by the name Faith picked her and asked her whether she wanted a white man to be her 

sponsor. Together with another lady by the name Jacqueline, they went with her to the white man’s 

house. She was allegedly blindfolded and sexually assaulted by the white man. He then gave her 

Kshs.8,000/= which they all shared. The same night her grandmother found her bleeding from her 

private parts but no immediate report was made to the relevant authorities. She took time to 

inform her immediate relatives, teachers and even her grandmother. When her grandmother 


73



Feature Case 

Feature Case 

She took time to inform her immediate relatives, teachers and even her grandmother. 

discovered, she did not immediately report the matter to the police. 

When her grandmother 

Other witnesses called by the prosecution included the N. K. grandmother, L.W. headteacher, two assistant chiefs 

and the District Children’s Officer Kasarani District. Peter Gicharu Gichangi a representative from Men for Gender 

Equity - an NGO that is concerned with human rights abuses and Rebecca Musisi, a social worker with Women’s 

Rights Awareness Programme, testified in support of the prosecution’s case. 

A number of police officers were also called to testify. The running thread of the evidence by Police Constable 

Caroline Kanimukur, Julius Ikamati’s evidence - Chief Inspector of Police in charge of Mwiki Police Post and Julius 

Ikamati’s evidence - Chief Inspector of Police in charge of Mwiki Police Post – was that there was no formal 

complaint of defilement in the police records, the procedure for reporting and investigating complaints was not 

followed, the arrest of the 1st appellant was un-procedural, pressure was inserted on investigators, thorough 

independent and conclusive investigations were not carried out. They also contended that the complainants were 

unreliable. The P3 forms were not authentic but forgeries without any police stamps. The defence, at a later stage 

of the case stated that the cumulative effect of the evidence tendered by the investigators at the very best cast doubt 

as to the guilt of the appellants. 

Appellants’ Grounds of Appeal 

The following were the appellants’ grounds of appeal; 

st 

1.That the trial court unilaterally and without affording the 1 appellant or the prosecution the right to be heard 

amended the charge sheet at the time of writing the judgement. According to section 214 of the Criminal Procedure 

Code a charge sheet can only be amended before the close of the prosecution case. 

2.That the essential element of the crime of defilement under section 8 was not established by the prosecution. It 

was essential to establish that the victims were under the age of 18 and secondly there was penetration which is 

legally defined as partial or complete. 

3.That there was massive intermeddling with the investigations and the prosecution of the case. The power to 

prevent and detect crime including investigations is vested in the Kenya Police 

Court’s finding 

st 

In the High Court’s view it was clear that the court decided to amend the charges against the 1 appellant 

at the time of writing itsjudgement. The trial amended the charges after confirming that there 

was material defect in the charges subject of its determination. The court acknowledged the grave 

st 

defect and proceeded to amend the charges. The court confirmed that the 1 appellant was charged 

under section 8(1) as read with section 8(4). 

Section 8(1) defines what amounts to defilement. On the other hand, section 8(4) creates an offence 

of defilement committed with a child between the age of 16 and 18. And any person found guilty 

under section 8(4) is liable upon conviction to imprisonment for a term not less than 15 years. The 

74 





Feature 

Feature 

Case 

Case 

essential ingredients in a charge under section 8, is that the age of the child is of paramount and fundamental importance. 

The importance essential is created ingredients because in the a charge section under gives section a specific 8, is and that mandatory the age of sentence the child for is of each paramount category and of fundamental importance. 

against The importance a child. The is created trial court because acknowledged the section that gives there a was specific no age and assessment mandatory report sentence but for each category of 

defilement committed 

went further and defilement stated that committed there was against no dispute a child. as to The the age trial of court the complainants. 

acknowledged That that there was central was no to age the assessment report but 

amendment undertaken went further at time and of stated writing that the there judgement. was no dispute as to the age of the complainants. That was central to the 

amendment undertaken at the time of writing the judgement. 

st 

Did the trial court have jurisdiction to amend the charges against the 1 appellant at the time of writing the judgement 

Did the amendment Did the trial occasion court have a miscarriage jurisdiction of justice to amend in respect the charges of the rights against of the 1st appellant 

at the time of writing the judgement 

while Did it the is perfectly amendment proper occasion and indeed a miscarriage desirable to of amend justice charges in respect especially of the rights when there of the is appellant a 

The court held that 

minor defect, it was The important court held to that establish while whether it is perfectly the court proper has jurisdiction and indeed to do desirable so. In this to amend case, the charges issue of especially the when there is a 

ages of the complainants minor defect, were it material was important elements to in establish all the evidence whether given the by court the prosecution has jurisdiction witnesses to do so. and it In was this case, the issue of the 

one which must have age of been the within complainant the knowledge were material of the persons elements giving in evidence. all the evidence If it was given demonstrably by the prosecution untrue that witnesses and it was 

the age of the children one which was must contrary have to been what within was stated the knowledge in the charge of the sheet, persons the value giving of evidence. the evidence If as it was a whole demonstrably untrue that 

was destroyed and the could age of not the be children relied upon. was contrary to what was stated in the charge sheet, the value of the evidence as a whole 

was destroyed and could be relied upon. 

It was clear to the It court was clear that the to the 1st appellant court that was the charged 1st appellant under section was charged 8(1) as under read with section section 8(1) 8(4), as read he defended with section 8(4), he defended 

himself and gave himself his defence and with gave a his legitimate defence expectation with a legitimate that everything expectation had that and could everything be taken had into and consideration 

in arriving ation a decision. in arriving In at the a court’s decision. opinion In the could court’s only opinion be convicted he could and only sentenced be convicted under that and section. sentenced under that section. 

could be taken into consider- 

The court also agreed The court with the also appellants’ agreed with second the appellants’ ground of appeal. second The ground non-production of appeal. The by the non-production prosecution of age by the prosecution of age 

assessment evidence assessment of the complainant evidence of was the complainant a material defect was in a the material court’s defect assessment. in the court’s Justice assessment. Warsame Justice Warsame 

categorically stated categorically that age assessment stated that must age be assessment substantiated must by be birth substantiated certificate or by direct birth evidence certificate and or that direct the and that the age of the 

age of the victim victim was a fundamental was fundamental requirement requirement under in the under Sexual the Offences Sexual Act. Offences Act. 

The court noted that the three police officers who were directly concerned with the matter expressed grave difficulties 

the in the three management police officers and who the were control directly of the concerned case. They with blamed the matter their expressed superiors grave for not difficul- 

giving directions and they 

The court noted that 

ties in the management also blamed and the third control parties of the who case. were They directing blamed police their superiors as to the for circumstances not giving directions and mode and of they investigations. The court 

also blamed third was parties impelled who were to say directing there was police no as proper to the circumstances and impartial and investigation mode of investigations. that resulted The in court the charging and the trial 

was impelled to say conducted there was against no proper the appellants. and an impartial It was investigation perfectly a that case resulted of third in parties the charging deciding and what the trial the police ought to do. 

conducted against 

Having 

the appellants. 

critically 

It 

examined 

was perfectly 

and 

a 

re-valued 

case of third 

all 

parties 

the evidence 

deciding 

on 

what 

record, 

the police 

the court 

ought 

held 

to do. 

that the appellants were 

Having 

wrongly 

critically 

and 

examined 

improperly 

and re-valued 

convicted. 

all the 

It made 

evidence 

a determination 

on record, the 

that 

court 

the 

held 

prosecution 

that the appellants 

did not prove its case beyond 

were wrongly and 

reasonable 

improperly 

doubt. 

convicted. 

Consequently, 

It made a 

appeals 

determination 

allowed, 

that 

convictions 

the prosecution 

quashed 

did not 

and 

prove 

the respective sentences 

its case beyond 

against 

reasonable 

the 

doubt. 

appellants 

Consequently, 

were set aside. 

appeals allowed, convictions quashed and the 

respective sentences against the appellants were set aside. 

Appellants’ Grounds of Appeal 


75



Court Of Appeal Cases 

STRONG SUSPICION NOT SUFFICIENT BASIS FOR 

A CONVICTION 

The Hon. Mr. Justice 

E.O. O’Kubasu, J.A 

The Court of Appeal recently 

allowed an appeal challenging a 

sentence of death pronounced by 

the High Court upon Elizabeth Gachanja, 

the wife of former Commissioner of 

Lands, Wilson Gachanja, after the 

Court found that even though the 

circumstantial evidence against her 

may have raised some suspicion, it was 

not sufficient to establish the charge of 

murder beyond all reasonable doubt. 

The Gachanjas, along with ten other 

alleged co-conspirators, had been 

charged on May 10, 2000 with the 

murder of Lawrence Githinji Magondu, 

a land agent, which was said to have 

occurred on February 4, 2000 in 

Kitengela, Kajiado District. Wilson 

Gachanja and three other persons 

had been acquitted by the High Court 

while his wife and seven other persons 

had been convicted and sentenced 

to death. These seven were Francis 

Muruatetu, Rose Muratetu – Elizabeth’s 

half brother and half sister respectively 

- Wilson Mwangi, Annah Ngonyo, David 

Njuguna, Stephen Kamau and Stephen 

Njoki alias ‘Blackie’. The appellants had 

argued that the High Court had wrongly 

based its conviction on insufficient and 

uncorroborated circumstantial evidence. 

Indeed, by the admission of both the 

High Court and the Court of Appeal, 

there had been no eye witnesses to the 

death of Magondu. In such a case, the 

Court of Appeal observed, the test to 

be applied was clear: In order to draw 

an inference of guilt from circumstantial 

evidence, the facts of the case must be 

incompatible with the innocence of the 

accused, and incapable of explanation 

upon any other reasonable hypothesis 

than that of his guilt, and the burden of 

proving facts which justify the drawing 

of this inference is always on the 

Republic v Elizabeth Gitiri Gachanja & 8 others 

Criminal Appeal No. 51 of 2004 

Court of Appeal at Nairobi 

E.O. O’Kubasu, P.N. Waki & J.W. Onyango Otieno JJ. A 

May 20, 2011 

Reported by Michael Murungi 

prosecution and never on the accused. 

Further, it is necessary for the court to be 

sure that there are no other co-existing 

circumstances which could weaken or 

destroy the inference of guilt. 

In its analysis of the evidence, the Court 

of Appeal placed the appellants in five 

categories relative to their alleged role 

in the alleged conspiracy to murder 

Magondu. First, Elizabeth Gachanja 

was said to have been the source of 

funds which was allegedly passed to 

Francis and Rose Muruatetu for onward 

transmission to Mwangi, who would 

pay it to Njuguna, Kamau and Njoki 

allegedly for killing Magondu. The 

second category is composed of Francis 

and Rose Muruatetu. They had not gone 

to Kitengela on the day when the offence 

was said to have been committed but 

they were allegedly the conduit through 

which finances flowed to Mwangi who 

in turn gave it to the “foot soldiers” 

to eliminate Magondu. In the third 

category, Mwangi and Ngonyo were said 

to have lured Magondu to his death and 

also received the dirty money for the 

assignment. Then there was Kamau, 

who remained in the car that Harrison 

King’ori was driving and never left it 

except after King’ori had been seriously 

assaulted and left for dead. King’ori 

would later be a valuable witness for the 

prosecution. Finally, Mwangi, Ngonyo, 

Njuguna and Njoki were said to be the 

last people seen with Magondu before 

he was found dead in an area not far 

away from where they had been sighted. 

Perhaps the strongest circumstantial 

evidence was that of Harrison Kingori, 

who had been ‘brutally assaulted’ 

immediately after the disappearance 

of Magondu and before the discovery 

of his body. Harrison’s evidence was 

that on the material day in Kitengela, 

he had seen Magondu inside a car that 

was driven by Mwangi and in which 

Ngonyo and Njuguna were riding. The 

fundamental question of evidence 

that arose was whether King’ori’s 

identification of these appellants was 

reliable such that his evidence on that 

issue could oust their alibi defenses - 

that they had been somewhere else at 

the time. Secondly, how was the court 

to treat the identification evidence of a 

single witness 

The Court of Appeal recalled that in law, 

there is no set number of witnesses 

required to prove a fact, and that even 

the evidence of one witness can form the 

basis for a conviction as long as the court 

finds that evidence credible. Where 

such evidence is on the identification 

of a person who says that he was not 

properly identified, then the court must 

examine such evidence with the greatest 

care. The Court found no reason to 

doubt King’ori’s evidence that he had 

observed and talked to these appellants 

in Kajiado in broad daylight and thus he 

had good recollection of their features. 

He also identified them at identification 

parades which had subsequently been 

organized by the police. 

The chain of evidence from the time 

they were seen with Magondu to the 

time that he was found dead was not 

broken and in the absence of any other 

reasonable explanation as to how he had 

met his death, ‘fingers pointed to them 

and to no others as the perpetrators of 

the murder’. The Court was satisfied 

that even without any other evidence, 

the circumstantial evidence that they 

were the people last seen with Magondu 

in their vehicle was enough to point a 

finger at them to the exclusion of any 

other persons. Moreover, Njuguna had 

made a detailed inquiry statement to the 

76 





police in which he admitted taking part 

in the killing and adversely mentioned 

Mwangi, Ngonyo, Njuguna, Kamau 

and Njoki. As for Kamau, his role was 

to distract King’ori particularly from 

pursuing the vehicle that was used to 

kidnap Magondu. As the judges noted, 

‘such assignments are not out of the 

ordinary in the criminal world and we 

take judicial notice of it was one of the 

murderers and only played a different 

role with a common purpose in the 

whole episode’. All these appellants 

were found to have been properly 

convicted by the High Court and their 

appeals were dismissed. 

However, the Court was not persuaded 

that the same could be said of Elizabeth 

Gachanja. The main evidence against her 

was that the money allegedly used to pay 

the killers appeared to have come from 

the accounts of a company where she 

was a director and from her children’s 

bank accounts. The other evidence was 

of statements from her co-accused that 

she had given money to her two relatives 

and co-accused persons, Francis and 

Rose Muruatetu, some of which found 

its way in Mwangi’s bank account and 

was eventually partly paid to Ngonyo, 

Njuguna, Kamau and Njoki. In convicting 


her, the High Court had relied on the 

evidence that she had withdrawn Kshs. 

1 million from her children’s account 

without the knowledge of her husband; 

that she had contradicted herself in her 

explanation as to why she had given 

some of that money to one of the coaccused 

persons, and that she had been 

implicated as a co-conspirator by her two 

relatives, Francis and Rose Muruatetu. 

On this, the Court of Appeal faulted the 

manner in which the High Court had 

relied on the statements of Elizabeth’s 

co-accused persons. The Court referred 

to the established principle of law of 

evidence: a statement which does 

not amount to a confession is only 

evidence against the person who makes 

the statement. If it is a confession 

and implicates a co-accused person, 

it may, in a joint trial, be taken into 

consideration against that co-accused 

person. However, it is the evidence 

of an accomplice and evidence of the 

‘weakest kind’ which might not stand 

on its own but can only best be used 

to support other evidence. The Court 

felt that in the absence of any other 

evidence, the extra-judicial statements 

of Elizabeth’s co-accused persons should 

not have been relied on as the sole 

evidence of how the money allegedly 

withdrawn from her account and her 

children’s accounts was spent. Further 

that evidence was circumstantial and the 

chain needed to be complete and point 

to no other person, and there had to be 

no other co-existing circumstances that 

would weaken or destroy any adverse 

inference against her. 

Ultimately, the Court observed that as 

much as there may have been a strong 

suspicion that Elizabeth may have 

financed the conspiracy, that remained 

only a suspicion and there was no 

tangible evidence to show that she knew 

that whatever money she gave out, if she 

gave out any, was to facilitate the murder 

of Magondu. The benefit of this doubt 

had to operate in her favour. While 

the appeals of her co-accused were 

dismissed, her appeal was allowed and 

an order issued that she be set at liberty. 

Elizabeth was represented by Professor 

Githu Muigai while the other appellants 

were separately represented by Mr. 

Ondieki, Mr. Nyachoti, Mr. Wamwayi and 

Mrs. Rashid. The state was represented 

by Mr. J Kaigai, principal state counsel. 

KACC OBTAINS ORDERS BARRING STATE OFFICIAL 

FROM DEALING WITH HIS PROPERTY 


Waki , J.A 

The Court of Appeal has allowed 

an application by the Kenya Anti 

Corruption Commission (KACC) 

and ordered that the assets acquired 

by Mr. Stanley Mombo Amuti , a state 

official,be preserved until an appeal 

challenging a High Court’s decision 

which was granted to the respondant 

barring KACC from freezing his assets 

is determined. The ruling suspended 

a High Court decision which declared 

that section 55 (5) and (6) of an Anti- 

A Kenya Anti-Corruption Commission vs Stanley Mombo Amuti 

Civil Application No. Nai. 39 of 2011 (Ur.25/2011) 

Tunoi,O’Kubasu & Waki JJ.A 

Court of Appeal, at Nairobi 

May 13, 2011. 

Reported by Andrew Halonyere 

Corruption and Economic Crimes Act 

(ACECA) which deal with declaration 

of wealth by public officials was 

inconsistent with the new Constitution. 

In their ruling, Court of Appeal Judges 

Philip Tunoi, Emmanuel O’kubasu and 

Philip Waki said the appeal would be 

rendered nugatory if the interim orders 

were not issued. 

The injunction orders touched on 

houses and plots in Ngong, Umoja 

innercore,Nairobi and four motor 

vehicles. Mr Amuti was also stopped 

from withdrawing funds from his 

accounts held in Barclays Bank and 

Standard Chartered Bank. According 

to KACC, the properties were allegedly 

acquired corruptly by Mr Amuti while 

working as the financial controller of 

the National Water Conservation and 

Pipeline Corporation. 

The Kenya Anti-Corruption Commission 


77



had filed a case before the High Court 

seeking determination of whether Mr 

Amuti had in possession unexplained 

assets and whether he should have been 

condemned to pay the government the 

cash and value of properties acquired 

corruptly or in the alternative whether 

the cash, landed properties and motor 

vehicles should have been forfeited to 

the government. KACC also sought an 

interlocutory injunction to preserve the 

subject matter of the suit. Both parties 

recorded a consent to the effect that the 

subject matter of the suit should have 

been preserved until its determination 

of the suit. 

Lady Justice Kalpana Rawal however 

declared the case null and void saying 

the trial against Amuti was not fair 

.The High Court also declared section 

55 (5) and (6) of the Anti-Corruption 

and Economic Crimes Act (ACECA) 

upon which the case was predicated, 

inconsistent with the provisions of 

Articles 20,25,40(3) of the Constitution. 

The High Court stated that the absence 

of a fair trial in the process stipulated 

under the ACECA Act rendered the trial 

inconsistent with the supreme law of 

the land. 

The Articles related to the application 

of the Bill of Rights, fundamental rights 

and freedoms that may not have been 

limited, such as fair trial, and protection 

of the right to property. Section 55(5) 

of the ACECA gave KACC the powers to 

forfeiture of unexplained assets. KACC 

through its Advocate Mr. Oscar Angote 

then moved to the Court of Appeal 

seeking injunctive orders pending 

the hearing and determination of an 

intended appeal. 

In its application KACC submitted that 

the consent order made in the High 

Court that the money held in the 

respondent’s bank accounts and by 

KACC be placed in a joint interest earning 

account in the names of both parties, 

and that the immovable properties to 

remain as they were, should have been 

maintained, otherwise the success of 

the intended appeal would have been 

rendered nugatory. 

KACC further submitted that there 

was only one bank account holding the 

sum of Kshs.13 million and a bankers 


cheque of Kshs.4.3 million, totaling to 

17.3 million, which was seized by KACC 

and which was sought to be preserved, 

arguing that the money in the other bank 

accounts had already been moved by Mr 

Amuti. As for the immovable properties, 

KACC submitted that if the properties 

were disposed off before the intended 

appeal was finalized, the appeal would 

have no basis and the success of it would 

have been pyrrhic arguing that It would 

have irreversibly affected the substance 

of the case which sought forfeiture of 

the properties and monies the subject 

matter of the anti-graft body’s case. 

Although Mr. Kilukumi who appeared for 

Mr Amuti conceded that the intended 

appeal was arguable, he however argued 

that the success of the appeal, if such be 

the eventuality, would not be rendered 

nugatory since the parameters for grant 

of the orders sought had not been fully 

met. He further submitted that there 

was no evidence of corrupt acquisition 

of property or other assets by the 

respondent, arguing that in any event 

the respondent had fully explained the 

source of his property and was entitled 

to Constitutional protection. 

Furthermore, he submitted, the 

investigations in issue were limited to 

a period of 10 months and it would 

have been unjust and inequitable to 

issue an injunction on two plots of land 

and two motor vehicles which were 

acquired before that period. Mr Kilukumi 

submitted that an injunction would have 

been issued in vain since Mr Amuti had 

already sold some of the plots and the 

vehicles, some other plots were not part 

of the original investigations, while other 

plots listed in the application were only 

equitably owned by the respondent as 

they had not been legally transferred 

to him. As for the money which had 

been deposited in a joint account by 

consent of the parties, Mr. Kilukumi 

submitted that there had been no 

appeal against that consent order and 

an injunction should not have therefore 

been issued, arguing that at any rate the 

respondent was suffering more hardship 

and prejudice and ought not to have 

been punished further. 

The issue before the Court of Appeal 

was whether the intended appeal was 

arguable. The court reiterated the 

principle that in order for one to succeed 

in an applications brought under rule 5 

(2) (b) of the Court of Appeal Rules, one 

had to show that the intended appeal 

was not frivolous, that was to say, it 

was arguable even on a solitary ground. 

One also had to show that if the orders 

sought were not granted, the success of 

the intended appeal would have been 

rendered nugatory. The Court further 

reminded itself that it had to be guided 

by the overriding objective of facilitating 

the just, expeditious, proportionate and 

affordable resolution of the dispute as 

stipulated in sections 3 A and 3 B of the 

Appellate Jurisdiction Act. 

The Court of Appeal while considering 

the application noted that the presiding 

Judge, Lady Justice Rawal had not 

dealt with the factual issues raised 

in the case or in the submissions of 

both Advocates, but dwelt on the 

constitutional issue raised on section 

55 of the Anti-Corruption and Economic 

Crimes Act. The Court of Appeal further 

noted that since the facts and merits of 

the case were not considered, the court 

that would have been seized with the 

intended appeal would have grappled 

with the legal issues which both parties 

had conceded were arguable. 

The Court was of the view that an order 

for forfeiture could only have been made 

if the property was still available for 

such forfeiture and that if there was no 

conservatory order, the property might 

have ceased to exist thus rendering the 

success of the appeal pyrrhic. The Court 

of Appeal in considering Mr. Kilukumi’s 

argument, which included that some 

of the properties were not the subject 

matter of investigations, were acquired 

before investigations commenced, had 

since been sold or were only equitably 

held by the respondent, was of the 

opinion that the said properties were 

those which formed part of the subject 

matter of the case against Mr Amuti. 

In conclusion Court of Appeal Judges 

Philip Tunoi,Emmanuel O’kubasu 

and Philip Waki were satisfied that 

the success of the intended appeal 

would have been rendered nugatory 

if the orders sought were not granted. 

Accordingly orders of injunction were 

granted. 

78 






COURT DECLARES THAT LIFE IMPRISONMENT CANNOT BE 

SUBSTITUTED WITH A DEFINITE TERM 


R.S.C Omolo, J.A 

The Court of Appeal at Eldoret has 

held that the law as it stands is 

that life imprisonment is the only 

sentence provided for the offence of 

defilement of a girl aged 5 years,contrary 

to section 8(1) as read with section 8(2) 

of the Sexual Offences Act. 

Court of Appeal Judges Omolo, Bosire 

and Onyango Otieno further held that 

the sentence of 50 years imposed to 

the appellant by the Magistrate’s Court 

was unlawful and should have been 

interfered with by the High Court as it 

should have done. 

Joseph Kiplimo the appellant had been 

charged with the offence of defilement 

of a girl contrary to section 8(1) as read 

with section 8(2) of the Sexual Offences 

Act No. 3 of 2006. He pleaded guilty 

to the charge and confirmed that the 

facts that had been read out by the 

prosecutor were true. The Magistrate 

convicted him and in sentencing the 

appellant stated that she had noted the 

appellant’s mitigation. The Magistrate 

however observed that the appellant had 

committed a beastly act that required a 

deterrent sentence and thus sentenced 

him to serve 50 years imprisonment. 

However, Kiplimo was not satisfied 

with that sentence and he preferred an 

appeal to the High Court against both 

conviction and sentence. His grounds 

of appeal were that he had innocently 

pleaded guilty without knowing the 

consequences and that the sentence 

given by the Magistrate’s Court was 

harsh and would have ruined his life. The 

appeal was heard by Justice Mwilu who 

after a full hearing dismissed it holding 

AJoseph Kiplimo v R eKLR 


Court of Appeal at Eldoret 

Omolo, Bosire & Onyango Otieno, JJ.A 

March, 25, 2011 

Reported by Emma Kinya. 

that the appeal had no iota of merit and 

that it was to fail in its totality. 

Kiplimo sought a further appeal to the 

Court of Appeal on the grounds that 

the sentence of 50 years was harsh and 

uncalled for in the circumstances since 

he was a first offender and therefore 

prayed for the court to consider reducing 

the sentence to a minimum level. 

The Court of Appeal noted that the 

case before them was a second appeal 

and according to section 361(1) (a) of 

the Criminal Procedure Code, the Court 

had no jurisdiction to entertain a second 

appeal based on severity of sentence. 

However, the court observed that 

Kiplimo had been sentenced to 50 years 

imprisonment for an offence where 

the only sentence provided for was life 

imprisonment which was a mandatory 

sentence. 

The Court also took interest with the 

legal interpretation of “life sentence” 

and how the courts in this country 

should approach the issue when the 

only sentence spelt out in respect of an 

offence is life sentence. Judges Omolo, 

Bosire and Onyango Otieno noted that 

a sentence of imprisonment for life is 

not defined in Kenya but is defined in 

several other jurisdictions e.g. Uganda, 

Australia, Argentina and Belgium and 

particularly with regard to substitution 

of a number of years for imprisonment 

for life. 

The issue before the Court of Appeal 

was whether the Magistrate’s Court 

was right in sentencing the appellant 

to 50 years imprisonment instead of 

life imprisonment and whether the 

Court of appeal would have interfered 

with the sentence if the High Court 

had sentenced the appellant to life 

imprisonment. 

While the Court of Appeal appreciated 

that the issue as to whether a mandatory 

life sentence as provided for in section 

8 (2) of the Sexual Offences Act was a 

matter that required further research 

and possibly a different approach, it 

stated that that may have to await a 

different forum. The judges observed 

that as the law stands, section 8(2) of 

the Sexual Offences Act had not allowed 

for substitution of a definite period of 

imprisonment. It had only provided 

for life imprisonment. In addition, 

they observed that if the legislature 

had intended to have allowed for 

any discretionary term, it would have 

proceeded the way it had in section 8(3) 

and 8(4) of the same Act. 

In answer to the issue as to whether the 

action of the Magistrate in substituting 

a definite term of imprisonment namely 

50 years imprisonment in place of life 

imprisonment provided for in section 

8(2) of the SOA was a matter of law 

or of fact, the court held that it was 

a matter of law as the sentence that 

had been impossed was not the lawful 

sentence provided. It was not a question 

of severity of sentence but whether a 

lawful sentence had been impossed. The 

court further held that it had jurisdiction 

to interfere with such a sentence. 

The court thus dismissed the appeal 

and set aside the sentence of 50 years 

imprisonment and in its place sentenced 

the appellant to life imprisonment. 


79




COURT AFFIRMS RIGHT TO A FREE LAWYER UNDER NEW 

CONSTITUTION 

The Hon. Mr 

Justice 

A. Visram, J.A 

The Court of Appeal has affirmed 

that under the new Constitution, 

an accused person has the right 

to have a lawyer provided at the 

expense of the government in cases 

where “substantial injustice would 

otherwise result”. Such cases would 

be those involving complex issues 

of fact or law; where the accused is 

unable to effectively conduct his own 

defence owing to disabilities or language 

difficulties; where the public interest 

requires that some form of legal aid 

be given to the accused because of the 

nature of the offence and also in cases 

involving an offence punishable by death 

(such as murder, robbery with violence 

or treason). 

While section 77 of the repealed 

Constitution recognized the right of 

an accused person to be represented 

by a lawyer of his choice, it clearly 

stated that this provision was not to 

be interpreted as entitling a person to 

legal representation at public expense. 

However, under the new Constitution 

which was promulgated in August last 

year, Article 50(1)(h) provides that 

“Every accused person has the right 

to a fair trial, which includes the right 

… to have an advocate assigned to the 

accused person by the State at State 

expense, if substantial injustice would 

otherwise result, and to be informed of 

this right promptly”. 

In the first case of its kind under the new 

Constitution, the Court of Appeal has 

affirmed that under the new Constitution, 

any accused person, regardless of the 

seriousness of the crime with which he 

his charged, may receive the services of 

a lawyer appointed by the court where 


R.S.C Omolo, David JA Njoroge Macharia v Republic 


Court of Appeal at Nairobi 

E. O. O’kubasu, P. N. Waki & A. Visram (JJ. A) 

March 18, 2011 

Reported by Monica Achode 

the court is satisfied that “substantial 

injustice would otherwise result”. 

The Court was deciding a case in which 

David Macharia had filed a second 

appeal against his conviction for robbery 

with violence and a sentence of death 

which was imposed by the Kibera Chief 

Magistrate’s Court and later affirmed by 

the High Court in May 2007. He had not 

been represented during his trial and in 

the second appeal, his lawyers, T. Bryant 

and G. Kitonga, argued that his rights 

had been violated and that he should 

be retried. The State was represented by 

Mr. V.S. Monda, a Senior State Counsel. 

On the issue of the Right to Legal 

Representation per se before going into 

the question of whether an accused 

person is entitled to governmentfunded 

legal representation, the 

Court acknowledged that the right 

to be represented by a lawyer per se 

was universally acknowledged as a 

fundamental right and that trials in many 

jurisdictions were considered unfair and 

fatally irregular if the court failed to 

inform the accused person of the right 

or if it restricted or denied it. Further, 

a lawyer’s knowledge of the rules of 

procedure and his ability to relate 

them to the facts and to determine the 

admissible evidence to give and the 

manner of giving it made his role very 

important in the trial process. That role 

is not merely to disprove the allegations 

against his client, but as an officer of 

that court, he is to assist the court in 

the effective and fair administration of 

justice. The Court also observed that the 

right to representation was fundamental 

particularly in an adversarial trial system 

used in many Commonwealth Law 

countries such as Kenya, where court 

proceedings are left between the two 

parties to fight it out with the Judiciary 

serving as the referee (as opposed to 

an inquisitorial system followed in most 

Civil Law countries where the court is 

actively involved in investigating the 

facts of the case). However, the Court 

observed that legal representation 

may not always be required in criminal 

proceedings because in less complicated 

and less serious proceedings an accused 

person may receive sufficient protection 

from the operation of the institutional 

processes of the courts. 

Was there a right to governmentsponsored 

legal representation 

The Court of Appeal found that while 

many international treaties may not 

specifically provide for the duty of the 

State to provide legal aid, a range of 

international norms and standards are 

to be found in international covenants, 

treaties, guidelines, declarations and 

recommendations which are relevant 

to the question. While treaties bind the 

countries that ratify them, the other 

instruments have been accepted by 

a large number of countries and are 

considered to have moral force. These 

treaties and other instruments include 

the International Covenant on Civil and 

Political Rights, European Convention 

for the Protection of Human Rights and 

Fundamental Freedoms, The African 

Charter on Human and Peoples Rights, 

The United Nations Body of Principles for 

the Protection of All Persons under Any 

Form of Detention or Imprisonment and 

The United Nations Standard Minimum 

Rules for the Treatment of Prisoners. 

While the court noted that Kenya 

has had a dualist system in which 

international law does not become part 

80 





of the national law until it is formally 

incorporated by national legislation, 

it stated that this position may have 

changed after the coming into force of 

the new Constitution which provides 

in Article 2(6) that “Any treaty or 

convention ratified by Kenya shall form 

part of the law of Kenya...” 

In making its conclusion, the Court 

turned to the wording of Article 50 

(1) of the new Constitution – that 

an accused shall have an advocate 

assigned to him by the State and at 

state expense, “if substantial injustice 

would otherwise result”. Finding that 

‘substantial injustice’ was not defined in 

the Constitution, the Court ruled that the 

provisions of international conventions 

to which Kenya was a signatory were 

applicable. The Court pointed out that 

the International Covenant on Civil and 

Political Rights and the commentaries 


of the United Nations Human Rights 

Committee may provide instances where 

legal aid is mandatory. 

However, the Court was quick to 

caution that it was not suggesting that 

every accused person convicted of a 

capital offence since the coming into 

effect of the new Constitution would 

automatically be entitled to a re-trial 

where no such legal representation 

was provided. The reasons for this are 

that, firstly, the provisions of the new 

Constitution were not to be applied 

retroactively, and secondly, before every 

case must be decided on its own merit to 

determine if there was serious prejudice 

occasioned by reason of such omission. 

As far as David’s case was concerned, the 

Court was satisfied, upon evaluating the 

findings of the trial court and the High 

Court which had decided his first appeal, 

that he had been properly convicted 

and the question of the legality of the 

mandatory sentence of death imposed 

on him was no longer an issue since the 

President had reduced the sentences 

of all death row convicts to sentences 

of life imprisonment. Moreover, his 

trial had taken place under the old 

Constitution and as such, he would 

not have been entitled to free legal 

representation during his trial. The 

appeal was accordingly dismissed. 

Considering that the Court’s decision 

carried major policy and financial 

implications for the Executive branch 

of the Government, it was directed 

that the decision should be served on 

the Attorney General, the Minister for 

Justice and Constitutional Affairs, the 

Commission for the Implementation of 

the Constitution and the Law Reform 

Commission for their records and 

necessary action. 


81



High Court Cases 

COURT DECLARES PUBLIC-PRIVATE PARTNERSHIP ILLEGAL FOR 

FLOUTING PROCUREMENT LAWS 

The Hon. Mr Justice 

J. B. Ojwang, J 

On May 20 2011 the High Court 

in Mombasa declared a publicprivate 

partnership between 

the Municipal Council of Mombasa (the 

1 st Respondent) and a private limited 

company, Summit Cove Lines Ltd (2 nd 

respondent) unlawful. The private 

partnership concerned regulating motor 

vehicle parking, collection of parking 

fees and clamping of motor vehicles 

at Kibarani, Magongo, Changamwe 

and Miritini within Mombasa County. 

The petitioner, the Kenya Transport 

Association told the court that the said 

parking yards were allocated by the 

local authority without inviting bidders 

contrary to the law. Honourable Justice 

Ojwang’ issued orders restraining the 

respondents and their agents from 

collecting parking fees on the basis of 

the public-private partnership recorded 

in Gazette Notices. 

Members of a registered society, Kenya 

Transport Association, had moved the 

High Court seeking the various remedies 

under the new Constitution among them 

a declaration that the existing publicprivate 

partnership between 1 st and 2 nd 

respondents to regulate motor vehicle 

parking, collection of parking fees, 

and clamping of motor vehicles within 

Mombasa County as being unlawful and 

an order prohibiting the respondents 

from collecting parking fees on account 

of the existing public-private partnership 

recorded in various gazette notices. 

The basis of the petitioner’s suit was that 

the parking charges plan was reached in 

secrecy and without transparency. The 

petitioner alleged that it unsuccessfully 

sought information relating to 

partnership from the local authority. 

Kenya Transport Association v Municipal Council of Mombasa & 

another 

Constitutional Petition No. 6 of 2011 

High Court at Mombasa 

J. B. Ojwang, J 

May 20th, 2011 


According to the petitioner, failure to 

provide such information amounted to 

breach of Article 35 of the Constitution 

which provides that citizens have a 

right to access information held by the 

state. The petitioner also viewed the 

alleged failure to provide information 

as want of fair administrative action, 

of good governance, transparency 

and accountability contrary to the 

terms of Articles 10, 21 and 47 of 

the Constitution of Kenya. It was the 

petitioner’s contention that the publicprivate 

partnership entered into by the 

respondents did not comply with the 

terms of the Public Procurement and 

Disposal Act, 2005 and was contrary to 

the Constitution. 

The petitioner stated that the local 

authority’s action of designating parking 

yards at Kibarani, Magongo, Changamwe 

and Miritini to be operated by 2 nd 

respondent without inviting bidders, or 

expression of interest by competitors, 

among them the petitioner’s members, 

was inconsistent with the Constitution 

and infringed on the petitioner’s rights 

to equal protection and equal benefit of 

the law as contemplated by Article 27 

and was therefore void. 

It was submitted on behalf of the 

petitioner that a public-private 

arrangement between the respondents 

had been entered into in breach of the 

petitioner’s rights as enshrined in the 

former and the current Constitution. The 

petitioner’s counsel submitted that both 

Constitutions outlawed discrimination 

and they provided that all parties 

were to be treated equally, by a public 

authority while exercising its powers. 

Further, that the petitioner had been 

denied equality before the law. 

Counsel submitted that the 1 st respondent 

had provided no evidence of fulfillment 

of the condition for resorting to an 

alternative method of procurement, in 

place of open tendering. Indeed, counsel 

urged that such evidence did not exist, as 

1 st respondent’s Town Clerk had already 

been arraigned in Court on a criminal 

charge, for failure to comply with the 

Public Procurement and Disposal Act. 

Section 74 of the Act provides that a 

procurement entity could use direct 

procurement as allowed under the 

Act as long as the purpose was not to 

avoid competition. Counsel submitted 

that, this was sheer preference or 

discrimination. 

The petitioner’s advocate submitted that 

the action taken by the respondents 

could not claim protection under 

the Local Government Act, for the 

reason that that Act came into force 

on April 30 1963, while the Public 

Procurement and Disposal Act entered 

into force on January 1 2007. Thus 

Parliament was aware of the terms 

of the Local Government Act when it 

enacted the Public Procurement and 

Disposal Act, which gave a definition 

of “procuring entity” incorporating 

a local authority such as Mombasa 

Municipal Council. Consequently, the 1 st 

respondent was required to undertake 

procurement within the terms of the 


The Public Procurement and Disposal 

Act superseded the Local Government 

Act as expressly provided for in section 

5 (1) of the Public Procurement and 

Disposal Act. 

The 1 st respondent on its part filed its 

pleadings in the form of an answer-to- 

82 





petition and stated for the significant 

part that the basis of the impugned 

public-private partnership between the 

respondents was a meeting at which “all 

issues as to levies and designated parking 

bays were discussed” and thereafter 

the services in question were gazetted 

by the 1 st respondent. Therefore the 

petitioner had an obligation to pay for 

such services. 

It further stated that it had not failed to 

provide information to the petitioner, 

and had not impeded the petitioner 

in accessing public information held 

by the 1 st respondent and that due to 

congestion and traffic jams within the 

Central Business District and in the 

residential areas, the 1 st respondent 

approached 2 nd respondent to use their 

parking facilities since the said facilities 

fell within the stakeholders’ operation 

areas including truck and fuel-tanker 

owners. This was instead of asking the 

Central Government to acquire the said 

facilities which were already developed 

and which would have taken time to 

construct. 

It was the 1 st respondent’s opinion 

that the petition had been brought 

in bad faith by the petitioner merely 

for the purpose of frustrating the 1 st 

respondent‘s operations and that the 

petitioner, being an agent of several 

persons, had not brought the petition 

as a representative, and had failed to 

publish the names of the members or to 

show the authority to represent them. 

The 2 nd respondent stated that an 

association, such as Kenya Transport 

Association, could not institute a 

constitutional petition, it could only 

do so in the interests of one or more 

of its members. Counsel urged that the 

litigant had not disclosed the members 

in whose interest the action had been 

lodged – and, therefore, there was no 

valid constitutional petition, in the terms 

of Article 22 (2) (d) of the Constitution. 

Counsel for the 2 nd respondent submitted 

that the right created by Article 22 for 

laying a claim was a personal right, 

not a group right; he gave as examples 

Article 19(2) and 19(3), and urged that 

‘fundamental rights belong to each 

individual’. 

The 2 nd respondent further told the court 


that the petition had no legal basis, and 

so the Court lacked the jurisdiction to 

entertain it. He urged that the court’s 

jurisdiction, in relation to fundamental 

freedoms was conferred by Article 23(1) 

of the Constitution. Counsel submitted 

that the evidence on record did not 

show the 1 st respondent to have been 

in breach of the Public Procurement and 

Disposal Act. Whereas open tendering 

was provided for in Part 5 of the Act, 

alternative procedure for procurement 

were provided for under the Act. For 

instance section 72 (a) of the Act 

provided for alternative tendering. The 

lawyer urged that the use of any of 

these procedures did not entail breach 

of fundamental freedoms under the 

Constitution. 

The court in reaching its decision found 

that although the petitioner, as an 

unincorporated body, lacked locus 

standi, their counsel had shown that, by 

virtue of Article 22(2) of the Constitution 

it was open to an association to institute 

proceedings based on the Bill-of-Rights, 

in the interest of one or more of its 

members. Although the petitioner’s 

members were not individually named, 

the rubric of the petition stated that it 

was acting in the interest of its members. 

In view of the importance of any Bill 

of Rights claim, and as no convincing 

reason had been shown such as would 

bar the petitioner from instituting action 

on behalf of its members, there was no 

impropriety in the joinder of parties, 

in this matter, and, consequently, the 

petitioner has locus standi. 

A further issue on jurisdiction was raised 

by the respondents, who contended 

that no proper constitutional question 

had been laid and therefore the Court 

acting as a Constitutional Court, lacked 

jurisdiction. This objection could not be 

sustained, firstly, because the petition’s 

rubric also referred to the individual 

rights and fundamental freedoms of 

the Constitution and secondly, because 

the petitioner had named specific rights 

forming the gravamen – equality and 

freedom from discrimination and the 

right to “fair administrative action”. It 

followed that the court had jurisdiction 

as a Constitutional Court to hear and 

determine the petition. 

The court also found that although 

counsel for the respondents contended 

that the impugned public-private 

partnership between them had been 

conceived in accordance with the Local 

Government Act, this would not spare 

their act from the mandatory obligations 

created by the Constitution, which were 

well reflected in the procedures of the 


This statute, in relation to the Local 

Government Act, was superior in its 

operation, for it faithfully reflected 

the terms of the highly progressive 

Constitution of 2010, and on this 

account, was in every sense an organic 

law to the Constitution. Compliance with 

the safeguards of the Constitution was, 

simultaneously, compliance with the 

procedures of that Act. The High Court 

found that the respondents in the instant 

suit were in breach of both documents. 

On the issue of insufficient defenses, the 

respondents had contended that the 

petitioner had been represented during 

the preliminary discussions leading to 

the making of the impugned publicprivate 

partnership; they urged that the 

said partnership had served the public 

interest, by eliminating the widespread 

parking problem in Mombasa, and by 

enhancing 1 st respondent’s revenue 

base. The respondent termed the 

partnership idea as “very noble” and 

beneficial to the members of the public. 

The court noted that all these claims, 

which were not even supported by 

evidence, had no significance in legal 

terms and, especially, in view of the 

violation of the fundamental-rights 

guaranteed by the Constitution. 

Based on this the court declared as 

unlawful, null and void the existing 

public-private partnership between 

the 1 st and 2 nd respondents, regulating 

motor vehicle parking, collection of 

parking fees/charges, and clamping 

of motor vehicles within Mombasa 

County for having been secured in 

breach of the Constitution and the law. 

It further proceeded to issue an order 

the respondents and their agents from 

collecting parking fees on the basis of 

the existing public-private partnership 

recorded in the Kenya Gazette. 


83




WHY THE HIGH COURT BARRED THE KAMUKUNJI 

BY-ELECTIONS 


D. Musinga J. 

The High Court granted an order 

of injunction restraining the 

Interim Independent Electoral 

Commission (IIEC) from holding, 

directing, conducting or otherwise 

supervising the parliamentary byelection 

for Kamukunji Constituency 

which had been scheduled for 23 rd May 

2011 until the petition by petitioner was 

heard and determined. 

Following the nullification of the election 

of Mr. Mbugua, the former Member of 

Parliament for Kamukunji Constituency 

in an election petition, the speaker of the 

National Assembly had declared the said 

Parliamentary seat vacant. As a result, 

IIEC issued a Gazette Notice stating that 

a by-election was to be held and each 

political party wishing to participate 

in the by-election must finalize the 

nomination of its candidate before a 

given period. Mr. Waweru averred that 

he was a life member of the National 

Vision Party (NVP) and that he had been 

issued with a certificate of nomination 

by the said party. It was on the basis 

of having been nominated by the NVP 

as its candidate for the Kamukunji 

Parliamentary by-election that the 

Returning Officer issued Mr. Waweru 

with nomination papers which he had 

subsequently filled. However, when Mr. 

Waweru sought for an allocation of time 

to deliver his nomination papers, no slot 

was allocated to him and the Returning 

Officer did not give any reason for 

refusing to allocate him a specific time 

to present his nomination papers. 

Subsequently Mr. Waweru filed a 

petition challenging the nominations 

that were held for the parliamentary 

by-election for Kamukunji Constituency. 

Paul Waweru Mwangi v The Interim Independent Electoral 

Commission & Another [2011] 

High Court at Nairobi 

Petition No. 71 of 2011 

Date: 20th May, 2011. 

D. Musinga, J. 

Reported by Emma K. Kinya 

He alleged that the nominations had 

been conducted in a manner that had 

violated his constitutional rights and 

freedoms as secured by Articles 27, 38, 

47 and 50 of the Constitution of Kenya, 

2010 and sought a declaration to that 

effect. The petitioner further sought 

a declaration that the nominations 

exercise was null and void in view of 

the fact that the Gazette Notices vide 

which the nominations were allegedly 

held contravened Article 88(4)(e) of the 

Constitution of Kenya, 2010. 

In addition, the petitioner also filed an 

application seeking the court to restrain 

IIEC from holding the Parliamentary 

by-election for Kamukunji Constituency 

pending hearing and determination of 

the petition. Mr. Waweru alleged that 

when he asked the Returning Officer why 

he had refused to accept the nomination 

papers, the Returning Officer verbally 

informed him that the papers could 

not be accepted because he had been 

informed by persons whose identity 

he did not disclose, that Waweru was 

either not eligible to contest the byelection 

as he was a member of the 

Party of National Unity (PNU) or could 

not be validly nominated by the NVP. 

The petitioner further alleged that 

Article 88(4) (e) of the Constitution 

enjoined the IIEC to settle all electoral 

disputes arising from nominations but 

IIEC failed to do so. He added that the 

respondent should have made provision 

for a reasonable time after the dates of 

nominations for settling of any disputes 

arising from the nomination process. 

He therefore contended that failure 

of IIEC to do so rendered the Gazette 

Notice announcing the election to be 

conducted in Kamukunji Constituency 

null and void ab initio. In addition, he 

submitted that Article 88(4) (e) of the 

Constitution required the Independent 

Electoral and Boundaries Commission 

(IEBC) to settle all electoral disputes 

including disputes relating to or arising 

from nominations but excluding election 

petitions and disputes subsequent to 

the declaration of election results. He 

further stated that in view of the breach 

of his constitutional rights and freedoms, 

the conservatory orders sought ought 

to have been granted failing which his 

petition would have been rendered 

nugatory. 

However, the Returning Officer 

denied having wrongfully rejected 

the nomination of Mr. Waweru as a 

candidate for the NVP. He also denied 

that he was influenced by any person or 

party to reject Waweru’s nomination. He 

added that the collection of nomination 

forms was not a clearance as a candidate 

for an election and if that were the case 

there would have been no need to fix 

a date for the delivery and scrutiny 

of the accompanying documents by a 

Returning Officer on the nomination day. 

He therefore urged the court to dismiss 

the petition. 

The High Court considered whether 

the Returning Officer had complied 

with the mandatory provisions of 

Regulation 18 (4) of the Presidential 

and Parliamentary Elections Regulations 

which had required him, upon deciding 

that Waweru’s nomination papers 

were invalid, to immediately record 

that decision and the reasons on the 

nomination papers, append his signature 

and return the papers to the petitioner. 

Justice Musinga found that failure 

84 





to do so was a very serious omission 

which hindered transparency in the 

nomination process. The judge observed 

that parliament had a noble intention in 

approving the election regulations and 

that the regulations were important in 

promoting a free, fair and transparent 

electoral process. The court stated that 

in conducting the nomination process, 

the Returning Officer was not exercising 

his discretion as to whether to accept 

or reject nomination papers of the 

various candidates but performing a 

statutory duty and therefore was under 

an obligation to follow the requirements 

of regulation 18 of the Presidential and 

Parliamentary Elections Regulations to 

the letter. 

The judge observed that the sixth 

schedule of section 2 (1) of the 

Constitution had listed various provisions 

of the new Constitution which had been 

suspended until the final announcement 

of all the results of the first elections for 

parliament under the Constitution. He 

further observed that such provisions 

included Chapter seven, except that the 

provisions of the chapter only applied 

to the first general elections under 

the new Constitution. In his opinion, 


that meant that the provisions of the 

Article could not apply to the conduct of 

Kamukunji by- election since it was not a 

by-election arising after the first general 

election after promulgation of the new 

Constitution. The judge therefore held 

that Article 88(4) (e) could only have 

been exercised by the IEBC and not the 

IIEC and to that extent, reliance on the 

provisions of the same could not have 

been of any assistance to Mr. Waweru. 

He further found that although IIEC 

was required to settle minor electoral 

disputes during an election, it was not 

clear whether such disputes included 

those which may have arisen during the 

nomination process. 

Justice Musinga observed that Article 22 

of the Constitution gave every person 

a right to institute court proceedings 

to enforce his constitutional rights and 

further that the High Court was granted 

jurisdiction to determine such matters 

by the provisions of Article 23. The 

court therefore found that Mr. Waweru 

rightly came to court when the Returning 

Officer failed to address his complaint. 

Therefore held that in view of the 

aforegoing, the IIEC violated Mr. 

Waweru’s right to be a candidate in the 

scheduled Kamukunji by-election. Justice 

Musinga added that the court could 

not trivialize breach of a mandatory 

requirement relating to the nomination 

process of candidates and further that 

without transparent nomination of 

candidates there could not have been 

transparent elections. The judge found 

that the Returning Officers must have 

been held to account for their actions 

in discharge of their lawful duties. He 

observed that if the court found that 

the nomination exercise was flawed and 

failed to grant an order of injunction to 

restrain the respondents from holding 

the by-election, it would have been 

frustrating all the gains that had been 

so far made in our electoral process 

towards a free, fair and transparent 

elections based on universal suffrage 

and the free expression of the will of 

the electors to choose a candidate of 

their choice. 

In conclusion, the judge granted an 

order of injunction restraining the 

respondents from holding, directing, 

conducting or otherwise supervising the 

parliamentary by-election for Kamukunji 

Constituency until the petition is heard 

and determined. 

COURT REVOKES PRIVATE TITLE TO PUBLIC LAND 

Prof. Samson Kagengo Ongeri vs. Greenbays Holdings & 

2 Others 

High Court at Malindi 

H.A. Omondi, J. 

May 10, 2011. 

Reported by Petronilla Mukaindo 

The issue of irregular public land 

allocations in Kenya reared its 

head yet again as the High Court 

at Malindi declared a 0.8257 hectares 

plot in the Town Council of Kilifi to 

public land rather than private property, 

and issued orders revoking the title to 

the land issued to the plaintiff, Prof. 

Samson Ongeri, presently the Minister 

for Education and Member of Parliament 

for Nyaribai Masaba in Kisii, Nyanza 

Province. 

Prof. Ongeri had filed the suit against 

Greenbays Holdings (1 st defendant), 

Edward Karezi trading as Kazrad Agencies 

(2 nd defendant) and the Registrar of Titles 

(3 rd defendant). 

The question of possible double 

registration of titles and/or fraud 

emerged as the Court heard that in 

2003, the Commissioner of Lands had 

issued Kazrad Agencies a Grant for 99 

years dating back to 1996 over the plot 

in dispute and the Grant registered at 

Mombasa Lands Registry. The court 

further heard that Kazrad Agencies 

subsequently effected a transfer over 

the plot to Greenbays Holdings in June 

2004 and the same was registered at 

the Land Registry in Mombasa, making 

Greenbays the owner of the property. 

Greenbays Holdings then proceeded to 

develop the land. 

Thereafter the Town Council of Kilifi 


85



gave notice to Greenbays to demolish 

the walls and structures erected on the 

plot as it was public land. This led the 

latter suing the Council alleging that 

its decision was in bad faith as other 

residential premises had been built next 

to the plot and sought an injunction 

in High Court to stop the Council from 

carrying out the demolition. On their 

part, the Town Council had through 

its Counsel Miss Mango contended 

that the plot was a public utility and 

produced Part Development Plan dating 

back to 1980 and showing that the land 

had already been set apart as public 

utility land. It further stated the plot in 

question had neither been advertised 

as being available for allocation nor had 

the Council received any applications for 

allocation. The Council urged the court 

to cancel the Titles issued to the plaintiff 

and the 1 st defendant. 

The plaintiff’s testimony in the present 

case was that he had been allocated 

the land by the former President way 

back in 1990 and thereafter issued with 

a Title Deed. He stated that when he 

received information that the property 

was being interfered with, he initiated 

correspondence with the Ministry of 

Lands officials who confirmed that the 

title issued to Kazrad Agencies was 

fraudulent. 

He further stated that he never received 

a notice from the Director of Physical 

Planning to surrender the land, and that 

the plot was not part of a public beach 

as alleged by the Town Council because 

it was registered to him as a residential 

plot and in any case no proceedings had 

been instituted against him to take away 

the land. He called upon the court to 

nullify the 2 nd title issued to Greenbays 

Holdings Ltd and that he be declared the 

legal owner of the plot. 

Mr. Kilonzo representing Greenbays 

denied the plaintiff’s claims and 

asked the court to hold the 2 nd and 3 rd 

defendants liable for all the costs and 

expenses it had incurred in developing 

the property in the event the plaintiff’s 

claims succeeded. 

How then did the second title come 

to being The plaintiff, represented by 

Mr. Shah and Miss Onyinkwa denied 

knowledge of how the second title in 


favour of Kazrad Agenies came to being 

and asserted that he had never sold his 

land and that the property had been 

used as collateral in favour of a bank with 

consent from Lands office. 

An officer at the Lands Office testified 

that the allocation to Kazrad Agencies 

did not originate from their office as it 

did not even have an allotment letter or a 

file in Nairobi. He further stated that the 

second title to the Agency was dubious 

and fraudulent as the title was issued to 

a trade name, which was not a limited 

company (In law, unlike a company, an 

Agency is not a legal person capable of 

owning and transferring property in its 

own name). 

In what the Court referred to as 

seemingly ‘sibling rivalry’ between the 

Land Commissioner’s office and the 

Town Council of Kilifi (both government 

entities) contradictory evidence was 

given as to the status of the said plot, 

with the Council asserting that it was 

public property and indeed produced 

Development Plan dating back to 1981 

and the Land’s Office stating that it 

duly allotted the said plot as it was 

Government land and did not require 

consent of the Town Council before 

allocating the land. 

The court had the several issues to 

consider including whether the plot 

was public land, who was the legitimate 

owner of the suit property How the 

second title to Kazrad Agencies come to 

being and the issue of costs. 

In considering the first question, the 

court took note of the Part Development 

Plan for the whole of Kilifi which the 

Council had relied on and which dated 

back several years before allocation of 

the plot to the plaintiff. Further evidence 

of an earlier letter sent from the Lands 

office confirming the plot as public land 

even before the first title was issued 

was taken into account. The court 

further took notice of Article 40(3) of 

the Constitution which recognized the 

doctrine of public interest in relation 

to illegal alienation of public land. The 

court evaluated all evidence before it 

and concluded that indeed, the plot was 

public land. 

On the issue of ownership, the court 

noted that a first in time title in this 

case the plaintiff’s was superior to any 

subsequent title and that there could be 

no two titles over the same piece of land. 

Furthermore, the court ruled, Greenbays 

title was invalid as Kazrad Agencies who 

purported to sell the property to the 

company had no title in the first place. 

The Agency could not thus pass a title it 

did not have. 

The court referred to the Registration 

of Titles Act on the issue of absolute 

ownership. The relevant section 

provided: “The certificate of title issued 

by the Registration to a purchaser of 

land, upon a transfer or transmission 

by the proprietor thereof, shall be taken 

by all courts as conclusive evidence 

that the person named therein as 

proprietor of the land, is the absolute 

and indefeasible owner thereof…and 

the title of that proprietor shall not 

be subject to challenge, except on the 

ground of fraud or misrepresentation to 

which he is proved to be a party” 

The element of lack of good faith and 

collusion on the part of the officers at the 

Registrar of Titles and the Commissioner 

of Lands in dealing with the allocations 

came to question given the contradictory 

information and the evidence of 

certificate of search revealing the 2 nd 

defendant as the registered owner of 

property. 

In conclusion, the court declined 

Greenbays’ prayer to issue orders 

restraining Town Council of Kilifi 

from demolishing the perimeter wall 

constructed by Greenbays on the plot 

and ordered immediate revocation of 

the plaintiff’s title. 

On the issue of compensation, the court 

ordered that the purchase price by 

Greenbays be recovered from the 2 nd 

defendant. However, the costs incurred 

in developing the plot would be met by 

the Registar of Titles. 

The court further ordered that the office 

of the Registrar and Commissioner of 

Lands bear the plaintiff’s costs of the 

suit as well as a third of the costs each 

to Greenbays, having been the genesis 

of the wrangle at hand. 

86 






CONSTITUTIONALITY OF SECTION 100 (4) OF THE PUBLIC 

PROCUREMENT AND DISPOSAL ACT 

Republic v The Public Procurement Administrative Review Board & 2 

others ex parte Hyosung Ebara Company Limited [2011] eKLR 

Misc. Civil Application No. 362 of 2010 


D Musinga, J. 

May 10, 2011 

Reported by Nelson K. Tunoi 

“The speed at which matters are resolved 

is dependent on many factors and 

there are instances where the parties 

cannot file all the necessary pleadings, 

submissions and authorities and argue 

the case within the given period of time. 

Therefore, it will amount to abdication 

of its constitutional mandate for a court 

to fail to give its determination simply 

because the hearing has lasted more 

than thirty days from the date the matter 

was filed.” 

The High Court has ruled that 

the provisions of section 100 (4) 

of the Public Procurement and 

Disposal Act, 2005 are unconstitutional. 

This was after Hyosung Ebara Company 

Limited, the ex parte applicant made an 

application seeking for judicial review 

orders of certiorari and mandamus, the 

former order quashing the decision of 

the Public Procurement Administrative 

Review Board, the 1 st respondent, 

dismissing the applicant’s application for 

review, and the latter order compelling 

the Kenya Pipeline Company Limited, 

the 2 nd respondent, to tender afresh the 

project in issue. 

The applicant had responded to the 2 nd 

respondent’s open tender advertisement 

and its bid, upon completion of the 

technical evaluation process, was found 

to be responsive by the 2 nd respondent’s 

Technical Evaluation Committee. The bid 

was subsequently forwarded together 

with four others that had passed through 

that evaluation process to the Tender 

Committee with recommendations 

that those bids proceed to the financial 

evaluation stage. However, the 

applicant’s bid was disqualified on 

grounds that it was non-responsive and 

ought not to have proceeded for the 

detailed technical evaluation stage for 

want of manufacturer’s authorization. 

The grounds of disqualification related 

to a letter allegedly written to the 

2 nd respondent which disclosed the 

termination by mutual consent of a 

joint venture agreement between the 

applicant and an international entity 

in Japan known as Ebara Corporation. 

The applicant was aggrieved by the 

action of the 2 nd respondent and filed 

an application for review before the 

1 st respondent, which application was 

dismissed hence the instant application 

for judicial review orders. 

The applicant’s major complaint was that 

its bid, having gone through the technical 

evaluation process and subsequently 

submitted to the 2 nd respondent’s 

tender committee, the latter unlawfully 

disqualified the same on the strength 

of a letter from Ebara Corporation. An 

issue arose as to whether the tender 

committee had capacity to disqualify the 

bid, the same having been evaluated and 

approved by the technical evaluation 

committee. Prof. Mumma, counsel for 

the applicant submitted that the action 

by the 2 nd respondent was contrary to 

the evaluation criteria as set out in the 

tender document and offended section 

66 (2) of the Act for the reason that a 

procuring entity had no power to solicit 

for information from third parties and 

apply the same to disqualify competitive 

bids. In response, Mr Lilan, counsel for the 

2 nd respondent submitted that his client 

acted beyond reproach and promoted 

the objects of the Public Procurement 

and Disposal Act by acting fairly and with 

extreme caution to ensure that public 

interest was enhanced in awarding the 

tender to parties whose capacity to 

perform the intended contract was not 

in dispute thereby promoting integrity 

and public confidence in the entire 

process. The court held that the spirit 

of confidentiality stated under Section 

44 of the Act and the strict adherence 

to the evaluation criteria of tenders 

in the tendering process as required 

in Section 66 of the Act had to be 

guarded jealously if the objectives of 


Act were to be realized. The judge 

noted that if that was not the position, 

nothing would prevent a competitor 

from causing damaging information 

to be sent to a procuring entity or its 

committees during the various stages 

of the procurement process with a 

view to causing disqualification of 

other competitors. Therefore, the 

procuring entity had breached important 

provisions of the Act and the Regulations 

since no other criteria apart from the 

ones set out in the tender documents 

should have been relied upon in carrying 

out the evaluation. 

The 2 nd respondent’s tender committee, 

having disqualified the applicant’s bid 

initially gave the reason as failure of 

the applicant to attain the required 

qualifying mark. It was only after the 

applicant sought clarification that the 

2 nd respondent changed the story 

and stated that its tender had been 

disqualified because of failure to 

comply with a mandatory requirement 

of a manufacturer’s authorization 

and alluded to the letter from Ebara 

Corporation. Thus, on the aspect of 


87



confidentiality, Prof. Mumma submitted 

that the consideration of the said letter 

by the tender committee was in violation 

of section 44 (1) of the Act, which 

guaranteed total confidentiality in the 

tendering process. The court held that 

the act of the 2 nd respondent engaging in 

communication with a third party during 

the tender processing exercise was 

prejudicial to the applicant’s interests 

and thus a violation of section 44 (1) of 

the Act. The judge observed that the 

aspect of giving two conflicting reasons 

for disqualifying the applicant’s bid by 

the tender committee did not inspire 

confidence in the tendering process and 

created doubt as to whether the process 

was transparent. Rules of natural justice 

required the 2 nd respondent to grant the 

applicant an opportunity to comment on 

the said letter before taking any adverse 

action against it. Besides, the rules of 

natural justice were applicable by virtue 

of the provisions and regulations under 


Act, which were intended to promote 

integrity, fairness and transparency in 

tendering processes. 

On the issue as to whether the applicant 

had met the mandatory requirements to 

qualify for the tender process, Mr Menge, 

counsel for the 1 st respondent submitted 

that the applicant had failed to provide 

sufficient and accurate information to 

support its bid. The court ruled that the 

1 st respondent could not competently 


determine whether the applicant had 

met the mandatory requirements 

because this was an issue that fell 

within the mandate of the technical 

evaluation committee, which committee 

had already approved of the applicant’s 

bid. Further, the 1 st respondent had 

failed to take into consideration the 

issue whether the 2 nd respondent’s 

tender committee complied with the 

mandatory requirements of Regulation 

11 (2) and particularly the one that 

required it not to modify any submission 

or reject without justifiable or objective 

reasons. The Court further observed 

that the applicant was not subjected to 

fair and transparent evaluation process 

as required under the Act and that the 

decision of the 1 st respondent took into 

consideration some irrelevant factors 

and disregarded some relevant ones. 

The court considered the provisions of 

section 100 (4) of the Act requiring the 

decision of the Review Board to have 

effect if judicial review was not declared 

within thirty (30) days from the date of 

filing for review. This issue was pointed 

out by Flowserve B.V. Netherlands, the 

interested party in this case as it sought 

to have the applicant’s application for 

judicial review orders dismissed. The 

court ruled that although the intention 

of the Legislature was to ensure that 

judicial review proceedings relating to 

public procurement were disposed of 

expeditiously, the provisions of Section 

100 (4) of the Act was unconstitutional. 

The court reiterated that the Constitution 

required the court to render substantial 

justice in all matters that came before 

it and that the determination of some 

of the disputes could take a very long 

time, even where the court was ready 

and able to determine them much 

faster. Further, the speed at which 

matters were resolved was dependent 

on many factors and there are instances 

where the parties could not file all the 

necessary pleadings, submissions and 

authorities and argue the case within 

the given period of time. Therefore, 

it would amount to abdication of its 

constitutional mandate for a court to fail 

to give its determination simply because 

the hearing had lasted more than thirty 

days from the date the matter was filed. 

Although granting orders sought by 

the applicant would cause delay and 

expense in implementing the intended 

project, the court held that this was an 

unavoidable consequence which could 

not bar it from granting any deserved 

orders. The provision of Section 27 of 

the Act required a public entity to ensure 

that the Act, the Regulations and any 

direction of the Authority were complied 

with respect to each of its procurements. 

Where that was not done the court 

would act accordingly in an effort to 

ensure that the objects of the Act were 

realized. 

HIGH COURT BREATHS LIFE IN AN ALLEGED MEDICAL 

NEGLIGENCE CASE 

J.O.O suing through J.O (His father as the next friend & Guardian & 2 others 

vs Dr. Praxades Mandu Okutoyi, Dr. Chimmy Omamo Olende & the Kenya 

Hospital Association [2011] eKLR) (www.kenyalaw.org) 

High Court of Kenya at Nairobi, 

K.H. Rawal J. 

13th April 2011. 

Reported by Ann Asugah Advocate 

88 





“The Court is duty bound to give breath 

to any case which is capable of showing 

a tint of life in it” 

The High Court sitting in Nairobi 

has reiterated the duty of the 

Court to sustain proceedings, 

which would otherwise be considered 

“dead” by dismissing two applications 

filed by the defendants to strike out 

a suit by the plaintiff arising out of 

alleged negligence by the defendants 

in a surgery gone wrong. The facts of 

the case, which are not disputed, are 

that J.O.O, at the relevant time a young 

male of 17 years of age, sustained a nasal 

fracture in the course of a basketball 

match. He underwent an elective nasal 

surgery on 11 th February 2005 at the 

Nairobi Hospital Day-Surgery Unit. Dr. 

Olende, the 2 nd Defendant, undertook 

the surgical procedure being a licensed 

medical practitioner specialized as an 

Ear, Nose and Throat (ENT) Surgeon. Dr. 

Okutoyi, the 1 st Defendant, a licensed 

medical practitioner, administered 

anesthesia. During the procedure, J.O.O 

sustained a cardiac arrest resulting in 

brain damage by reason of a hypoxic 

incident. 

The Kenya Hospital Association, the 3 rd 

defendant in this case launched its own 

investigation into the matter through its 

Standard Audit and Ethics Committee 

(SAEC) which concluded that the cardiac 

arrest resulted from an anesthetic 

accident resulting from inadequacy of 

intra-operative physiological monitoring. 

J.O and M. M .O, the plaintiffs herein 

filed a complaint to the Medical 

Practitioner and Dentists Board, a 

statutory body established under the 

Medical Practitioners and Dentists Act 

Chapter 253 of the Laws of Kenya. The 

Board is set up pursuant to section 4 of 

the Act and its disciplinary powers are 

spelt out under section 20 of the Act. 

The Board set up a preliminary inquiry, 

which recommended a full inquiry in 

respect of the three defendants. The 

Board after its inquiry concluded that 

Dr. Okutoyi was guilty of misconduct as 

alleged. The Board absolved Dr. Olende 

from any misconduct and also found that 

the facts produced were insufficient to 

prove charges against Kenya Hospital 

Association. Following these findings, 

the plaintiffs filed the present suit while 

the 2 nd and 3 rd defendants filed the 


notices of motion to strike out the suit. 

Mr. Inamdar, Counsel for Mr. Olende 

commenced his submissions with the 

provisions of Medical Practitioner and 

Dentists Act, particularly section 20, 

which makes provision for disciplinary 

proceedings. The section provides 

that if a medical practitioner or dentist 

registered or a person licensed under 

the Act is convicted of an offence under 

this Act or the Penal Code, whether 

the offence was committed, or is, after 

inquiry by the Board, found to have 

been guilty of an infamous or disgraceful 

conduct in an professional respect the 

Board may, remove his name from the 

register or cancel any license granted 

to him. 

He further submitted that the board 

having heard the complainants’ evidence 

it called on his client to answer to one 

charge - that of failing as the chair of 

the surgery team to ensure that the 

surgical operation was carried out in 

accordance with known standards. It 

was his contention that drawing from 

Professor Asad Raja’s evidence before 

the Board, the surgeon does not take 

part in prior preparation of surgery and 

that hypoxia (the cause of the condition 

of J.O.O) could only have happened at 

the beginning or immediately prior to 

the surgery and that there was nothing 

to alert the surgeon that something 

was amiss. 

Further, Mr. Inamdar contended that 

the charges before the Board and those 

in the plaint covered the same scope 

and there was no new evidence upon 

which the plaintiffs could rely on. In any 

case, the defendants had already gone 

through a process of inquiry before the 

Board and the plaintiffs had not faulted 

the Board’s findings either in facts or 

law. He urged the court to strike out 

the suit for being scandalous, frivolous 

or vexatious and thus an abuse of the 

court process. 

It was further argued that irrespective 

of the standard of proof applicable 

in disciplinary proceedings before 

the Board and the plaintiffs failure to 

challenge the findings of the Board, 

a collateral attack through the suit 

would bring in the same parties, same 

evidence. He argued that the plaintiffs’ 

suit was oppressive to the defendants 

because the Board only blamed Dr. 

Okutoyi. Since the Board had arrived 

at conclusive findings, the plaintiffs 

were debarred from bringing any new 

evidence. Counsel further argued that 

the contention by the plaintiffs that the 

Board was not a court could not stand 

since the concept of abuse of court 

process was not confined to litigation 

arising out of a previous court litigation. 

Counsel for the plaintiffs, Mr. Wekesa 

in opposing the two applications, 

submitted that the Board inquiry and 

the civil proceedings were different. He 

observed that during the hearings before 

the Board, the defendants had highly 

emphasized that the proceedings were 

not a trial but merely an inquiry. He 

argued that the Board was mandated 

to inquire into disciplinary proceedings 

of its membership while the suit before 

the High Court was brought under its 

civil jurisdiction to hear and determine 

tortuous liability on negligence and 

damages under breach of contract. 

Mr. Wekesa observed that the Civil 

Procedure Act was specific in its definition 

of a court, which was restricted to the 

High Court and subordinate courts. 

With regard to the contention by the 

defendants that the plaintiffs had 

not challenged the Board’s findings, 

Mr. Wekesa submitted that lack of 

appeal on the Board’s findings could 

not constitute a bar to the present suit. 

The Court agreed with this submission. 

Mr. Wekesa argued that the purpose 

of the proceedings was to determine 

negligence, which could lead to tortuous 

liability against the defendants. Indeed, 

in an earlier case Jagdish Sonigra v 

Medical Practioners & Dentists Board & 

2 others [2008] eKLR, the court seized of 

a similar matter observed that the case 

‘in the civil courts is in a totally different 

jurisdiction from the matter before the 

Board’. 

In analyzing the evidence before it, 

the court came to the conclusion that 

although the Board exercised powers as 

a quasi-judicial tribunal, its jurisdiction 

cannot be assimilated with the industrial 

tribunal or other similar tribunals, which 

hear and determine civil claims of the 

party. The court was of the view that the 

penalty attached to the inquiry before 

the Board and the circumstances of the 


89



inquiry removed the Board from the 

ambit of a civil tribunal. 

With regard to the defendants’ 

submission that the issue of negligence 

was inextricably tied up with the issue 

of professional misconduct, the court 

observed that the charges of infamous 

or disgraceful conduct were serious 

misconduct as connoted by the words 


“found to have been guilty” stated 

in section 20. This meant that the 

Board while hearing the matter did 

not have to look at the complainants’ 

statutory or common law rights. The 

Medical Practitioners and Dentists 

Board Act used the terms ‘infamous 

and disgraceful conduct’ disjunctively 

but these were serious charges that 

needed to be considered serious and 

contextually. 

The Court in conclusion found that the 

plaint was not scandalous, vexatious 

or without reasonable cause of action 

and not an abuse of the court process 

and that the Court was duty bound to 

give breath to any case which has a tint 

of life in it. 

CONSTITUTIONAL FREEDOM OF THE MEDIA 

NOT A BAR TO A DEFAMATION SUIT 

The Hon. Lady 

Justice 

K. Rawal, J. 

The High Court has ruled that even 

though the new Constitution 

provides for press freedom and 

forbids the State from exercising control 

over or penalizing the media, this 

freedom is not to be interpreted to 

mean that a court of law may not hear 

and determine cases of defamation 

brought against the media. The Court 

was deciding a constitutional issue 

raised in a case in which Kwacha Group 

of Companies and Mr. Jimi Wanjigi 

(the plaintiffs) have sued Messrs. 

Tom Mshindi, David Makali and The 

Standard Ltd (the defendants) claiming 

damages for allegedly defamatory words 

published in a newspaper. Lady Justice 

K. Rawal, who presided over the case, 

held that the enjoyment of the freedom 

of the media is subject to the limitations 

imposed by the new Constitution, which 

include the need to be considerate of the 

rights and freedoms of other individuals. 

Under Articles 33 and 34 of the new 

Constitution of Kenya, freedom and 

independence of electronic, print and 

all other types of media is guaranteed. 

However, the Constitution states that 

this freedom does not extend to any 

expression relating to ‘propaganda for 

war; incitement to violence; hate speech; 

or advocacy of hatred that constitutes 

ethnic incitement, vilification of others 

or incitement to cause harm; or is based 

Kwacha Group of Companies & another v Tom Mshindi 

& 2 Others 

Civil Suit No. 319 of 2005 


K. Rawal, J. 

April 13, 2011. 

Reported by Linda Awuor 

on any ground of discrimination’. It is 

also provided that in the exercise of the 

right to freedom of expression, every 

person shall respect the rights and 

reputations of others. Article 34 also 

bars the State from exercising control 

over or interfering with any person 

engaged in broadcasting, the production 

or circulation of any publication or 

the dissemination of information or 

penalizing any person for any opinion 

or view or the content of any broadcast, 

publication or dissemination. 

After the close of the evidence in the case 

and in the course of final submissions, 

the defendants had challenged the 

jurisdiction of the Court to hear the 

case and raised an issue touching on the 

interpretation of the provisions of the 

Constitution relating to media freedom. 

Through their lawyer, Mr. Wambugu 

Gitonga, the defendants argued that 

under the new constitutional order, 

any publication in the media cannot 

be challenged in a court of law on the 

grounds of defamation because the State 

and the Courts were constitutionally 

deprived of any control over broadcasts 

and all other media. He submitted that 

the Court had no jurisdiction to hear 

the matter because the Judiciary being 

an organ of the State, to hear the case 

would be to contravene the provisions 

of the Constitution barring the State 

from interfering with the media and 

from penalizing, whether by way of an 

award of damages or otherwise, any 

person engaged in the dissemination of 

information. It had been further argued 

that in the circumstances of this case, 

no question of the limitation of the 

freedom of the media arose because 

the allegedly defamatory words did 

not amount to propaganda for war; 

incitement to violence; hate speech; 

or advocacy of hatred that constitutes 

ethnic incitement, vilification of others 

or incitement to cause harm. 

The defendant’s advocate related to the 

Court the history of the Constitutionmaking 

process particularly on the 

inclusion of the freedom of the media 

in the Bill of Rights and submitted that 

throughout that process, the people of 

Kenya had demonstrated that they did 

not want any forms of state control over 

the media. 

The application was opposed by Mr. 

Mansur Issa, the lawyer for the plaintiffs, 

on several grounds. Most substantively, 

he argued that the freedom of the media 

was not an absolute constitutional 

right but a right which, along with 

several other rights, was subject to 

certain limitations. These limitations 

were those which, in the words of 

90 





Article 24 of the Constitution, were 

‘reasonable and justifiable in an open 

and democratic society based on human 

dignity, equality and freedom’ and ‘the 

need to ensure that the enjoyment of 

rights and fundamental freedoms by 

any individual does not prejudice the 

rights and fundamental freedoms of 

others’. Mr. Issa also submitted that 

because Article 165(3)(a) gave the High 

Court unlimited original jurisdiction in 

all criminal and civil matters, the High 

Court had the jurisdiction to hear the 

case as it was a civil claim for damages 

for defamation. 

In deciding the application, Lady 

Justice Rawal first noted that Kenya’s 

Constitution was unique among the 

constitutions of many other states in that 

rather than including the freedom of the 

media under the general framework of 

the freedom of speech and expression, 

it specifically provided for it as a distinct 

and separate right among the Bill 

of Rights. However, she noted that 

the same Constitution also made 

provisions guiding the courts in the 

interpretation and application of the Bill 

of Rights. Article 20(4) provides that: “In 

interpreting the Bill of Rights, a court… 

shall promote the values that underlie 

an open and democratic society based 

on human dignity, equality, equity and 

freedom; and the spirit, purport and 

objects of the Bill of Rights.” Referring 


further to Article25 of the Constitution, 

the Judge observed that freedom of the 

media was not one of the rights that 

cannot be limited. The article provides 

that “Despite any other provision in 

this Constitution, the following rights 

and fundamental freedoms shall not 

be limited- freedom from torture and 

cruel, inhuman or degrading treatment 

or punishment; freedom from slavery 

or servitude; the right to a fair trial; and 

the right to an order of habeas corpus.” 

While recognizing the freedom of the 

media under Article 34, Lady Justice 

Rawal affirmed that the freedom was 

not absolute and that limitations could 

be imposed on its enjoyment as long as 

those limitations met the requirements 

of the Constitution. She turned to the 

wording of Article 24 of the Constitution 

which cited several factors that should 

be taken into consideration in limiting 

the enjoyment of a constitutional 

right and emphasized on the need to 

ensure that the enjoyment of rights 

and fundamental freedoms by any 

individual does not prejudice the rights 

and fundamental freedoms of others. 

Considering the value and spirit of the 

Constitution and the foregoing Articles, 

and also taking into account the spirit 

of human dignity, equality and equity, 

Justice Rawal found that it came out 

clearly that the rights granted by the 

Constitution should be enjoyed as well 

as governed equally amongst all persons. 

In her opinion, to accept the argument 

that a suit challenging the publication 

of defamatory matter is barred by 

Article 34 of the Constitution would be 

a travesty of justice and the rule of law 

and a disregard of the need to safeguard 

human dignity and reputation. 

The Court adopted a passage from the 

South African case of Del Plessis and 

Others –vs- De Clerk and another (1997) 

LRC 1, 637 at 672which stated: “Any law 

of defamation is a restriction on freedom 

of speech in the interest of other rights 

worthy of protection. More particularly, 

in cases of defamation, Courts have 

tried to strike a balance between the 

protection of reputation and the right 

of freedom of expression.” 

In conclusion, the Court held that the 

removal of some portions from the 

Draft Constitution which would have 

given the Courts certain powers over 

the media could not be construed as 

taking away the Court’s power to do 

justice. In any case, the Constitution 

amply granted the Courts the power to 

exercise its primary duty of preserving 

and safeguarding justice, equity and 

equality. The Court therefore rejected 

the argument that it had no jurisdiction 

to hear and determine defamation cases 

filed against the media. 

APPLICATION TO DECLARE PART OF THE HIV AND AIDS 

PREVENTION AND CONTROL ACT UNCONSTITUTIONAL 

Aids Law Project v The Hon. The Attorney General & Another 





Early this month the High 

Court declined to suspend the 

implementation of section 24 

of the HIV and AIDS Prevention and 

Control Act (the Act) citing that public 

interest outweighed the applicant’s 

interests at the interim stage of 


the hearing. The court proceeded to 

direct that an early hearing date for the 

petition be set so that the issues raised 

could be comprehensively dealt with by 

a three judge bench. Section 24 spells 

out penal consequences to anyone 

who knowingly and recklessly places 

another person at risk of becoming 

infected with HIV. The section provides 

that if found guilty, the convicted person 

shall be liable to a fine not exceeding 

five hundred thousand shillings or to 

imprisonment for a term not exceeding 

seven years. The contested section came 


91



into operation on December 1,2010 

through Legal Notice 180 of 2010 issued 

by the Minister for Special Programs. 

Following an interim application by the 

applicant, Aids Law Project, seeking to 

suspend the enforcement of section 24 

pending hearing and of the substantive 

petition the court balanced two possible 

outcomes. On one hand the court 

considered the risk of issuing orders 

to suspend a section of a statute, in 

the event that upon hearing of the 

petition the interlocutory orders were 

not confirmed, the effects of the earlier 

order would be irreversible. On the 

other hand, if the conservatory orders 

were not granted and at the conclusion 

of the hearing the orders sought in the 

petition were granted, the applicant 

would suffer irreparable loss in the 

interim period. 

Mr. Justice Daniel Musinga presiding 

over an interim application stated that 

the court had to proceed with great 

caution before granting conservatory 

orders which would have the effect 

of halting enforcement of an existing 

law. “This was because there was 

presumption that in debating a bill 

and eventually enacting the same into 

law, the legislature considered all the 

relevant factors. “ Justice Musinga ruled. 

In the substantive petition Aids Law 

Project, was seeking the court for 

the aforesaid section to be declared 

unconstitutional. Further the petition 

sought for a declaration that section 

24 was very wide and vague and was 

therefore discriminatory as against 

people with HIV/AIDS. 

Pending determination of the substantive 

petition, the applicant sought an 

injunction against the Attorney General 

and the Director of Public Prosecutions 

(the respondents) from enforcing 

section 24 of the Act as related to penal 

provisions therein. The application 

was based on several grounds among 

them; that the provisions of section 24 

of the Act were worded in a vague and 

overbroad manner incapable of giving 

the ordinary citizen sufficient notice of 

the criminalized act or omission and 

the intended objective it was meant to 

achieve and that the section failed to 

adhere to the principles of legality. 


The applicant submitted that the law had 

to be precise, clear and capable of giving 

sufficient notice to the ordinary citizen of 

what was the forbidden act or omission. 

Thus section 14 was unconstitutional 

because it failed to conform to the fact 

that every person had the right to have 

any dispute that could be resolved by the 

application of law decided in a fair and 

public hearing before a court, and that 

its wording put the liberty of persons 

infected or carrying the HIV and AIDS 

virus in jeopardy - in the sense that the 

said liberty could be deprived arbitrarily 

without just cause and on the basis of a 

vague and imprecise law lacking in due 

notice. 

In its affidavit the applicant swore that 

an offence could arise, under section 

24(1) as read with section 24(3) of 

the Act, from a failure to disclose 

information to a “sexual contact”. 

According to the applicant this meant 

that there was a risk to the realization of 

the rights to a fair hearing under section 

50 of the Constitution of the Republic 

of Kenya. The affidavit further deponed 

that the law did not define what “any 

sexual contact” was, nor did it place any 

corresponding duty of confidentiality 

on the “sexual contact” or say what “in 

advance” meant. 

The applicant through its advocate, 

Mr. Omwanza, further deponed 

that no transmission or intent was 

required; making it extremely difficult 

for the average person to determine 

precisely what behaviour was subject 

to prosecution. The concept of sexual 

contact was of a very broad scope that 

was extremely difficult to define, and its 

definition would be dependent upon the 

subjective views of the particular judicial 

officer trying the case. The applicant 

further stated that criminalization of 

HIV transmission was ineffective at 

preventing transmission and was also 

unconstitutional. 

On the unconstitutionality of sections 

24(1) and 24(3) of the Act, the 

applicant told the court that section 24 

discriminated against people living with 

HIV, women and members of vulnerable 

groups. He pointed out that Article 

31 of the Constitution provided that 

every person had the right to privacy 

which included the right not to have 

information relating to one’s family or 

private affairs unnecessarily required 

or revealed or the privacy of their 

communications infringed. 

Regarding criminalization of HIV 

transmission, the applicant submitted 

that there were other applicable laws 

such as the the Sexual Offences Act that 

prohibited willful infection of HIV. He 

cited Section 26 of the Sexual Offences 

Act which provided that any person, 

having actual knowledge that he/she 

was infected with HIV or any other life 

threatening disease and who sexually 

transmitted the disease intentionally 

knowingly and willfully was guilty of an 

offence and was liable to imprisonment 

for a term of not less than 15 years but 

which sentence could be imprisonment 

for life. 

It was argued therefore that in view of 

the unconstitutionality of Section 24 

of the HIV and AIDS Prevention and 

Control Act and in view of the fact that 

there was already in existence other 

provisions of the law dealing with 

deliberate and willful transmission of 

HIV, the orders sought in the application 

ought to be granted pending hearing and 

determination of the petition. 

In opposing the application Mr. Onyiso 

for the respondent stated that the 

applicant had not set out a prima facie 

case with a probability of success. In 

his view sections 22 and 24 of the HIV 

and AIDS Prevention and Control Act 

were not vague or ambiguous and that 

the rules of statutory interpretation 

militated against the grant of orders 

sought. He urged the court not to lose 

sight of the good intentions of the Act 

in particular section 24. He reminded 

the court that the applicant had not 

demonstrated the irreparable damage 

that HIV/AIDS infected persons would 

suffer if conservatory orders were not 

granted as sought. 

The court weighed the competing 

interests of the applicant and the 

persons they represented against those 

of the wider public, and held that 

the latter had to prevail. The court 

declined to grant the orders sought 

by the applicant instead proceeding 

to direct that an early hearing date for 

the petition be set so that the issues 

92 





raised could be comprehensively dealt 

with. In reaching its decision the court 

stated that under Article 165 (4) of the 

Constitution of Kenya, 2010, any matter 

certified by court as raising a substantial 


question of law had to be heard by at 

least three judges assigned by the Chief 

Justice. The Court further added that in 

an application of this nature it had to 

endeavour to uphold and protect the 

rights of the applicant as guaranteed by 

the Constitution keeping in mind that on 

the other hand, the enjoyment of those 

rights had to be within the confines of 

the law. 

FORMER PRESIDENT HELD PERSONALLY RESPONSIBLE FOR 

ILLEGALLY DETAINING EX SPY CHIEF 

Mwangi Stephen Mureithi v Daniel Toroitich arap Moi 


High Court, at Nairobi 

J. Gacheche, J. 

April 6, 2011. 

The Hon. Lady Justice 

J. Gacheche, J. 

The High Court has ordered 

former President, H.E. Daniel 

arap Moi (the respondent) to 

pay Mr. Stephen Mwangi Muriithi 

Sh50 million as punitive damages 

and Sh80 million, as compensation 

for violating his constitutional rights. 

The Sh80 million compensation was 

to earn compound interest at 12 per 

cent from July 1982. In the precedent 

setting case, the court held the former 

president personally responsible 

for the unlawful detention of the 

ex spy chief and refused to accept 

the respondent’s argument that 

fundamental Rights and Freedoms 

are owed by the State and are only 

enforceable as against the State. The 

court stated that ‘the rigid position 

that the human rights applies vertically 

is being overtaken by the emerging 

trends in the development of human 

rights law and litigation.’ The court 

stated that private individuals and 

bodies such as clubs and companies 

wield great power over the individual 

citizenry, who should be protected 

from such non-State bodies who may 

for instance discriminate unfairly. 

The ruling was delivered by Lady 

Justice Jeanne Gacheche following 

a petition by Mr. Stephen Mwangi 

Muriithi(the petitioner) which alleged 

that the former president, who was at 

all material times the President of the 

Republic of Kenya, was his business 

Reported by Cornelius Wekesa Lupao 

partner and that they owned shares in 

three companies and several properties 

namely Fourways Investments Limited, 

Sheraton Holdings Limited and Mokamu 

Limited. Mr. Muriithi, a former Deputy 

Director of Intelligence and Deputy 

Commissioner of Police in Kenya alleged 

that sometime in 1982, the former 

president, while using his powers as 

the President of the Republic of Kenya, 

without any lawful cause and excuse, 

ordered and caused his detention 

without trial for the purpose of illegally 

and unconstitutionally depriving him 

of his rights to the said companies. He 

further averred that the reasons for 

his detention were meant to achieve 

ulterior commercial advantages for the 

respondent and that in detaining him 

without trial, the respondent acted 

in abuse of office as President of the 

Republic of Kenya. 

Mr. Muriithi alleged that the former 

president caused to be sold and ravaged 

his interests in the aforementioned 

companies without accounting for the 

same to him. Mr. Muriithi asserted 

that the aforementioned acts negated 

his constitutional rights and values as 

enshrined by the Bill of Rights in Chapter 

v of the repealed Constitution. 

On the other hand, the former President, 

represented by Mr. Ochieng’ Oduol 

opposed the petition by way of a 

preliminary objection, contending 

among other things, that it was bad in 

law and an abuse of the court process 

for the petitioner to seek constitutional 

redress against an individual who was 

not the custodian of the Fundamental 

Freedoms under the Constitution. The 

former president contended that he 

was not a guarantor of the fundamental 

rights under Chapter V of the repealed 

Constitution and that the fundamental 

rights and freedoms were owed, 

guaranteed and secured by the State 

and that they were enforceable as 

against the Government as a respondent. 

He further argued that since the 

properties in issue were owned by 

companies which were distinct entities 

from the petitioner, therefore the court 

would have no jurisdiction under S. 

84(1) of that Constitution or under 

Fundamental Rights and Freedoms of 

the Individuals (High Court Practices and 

Procedure Rules) 2006, to adjudicate 

on fundamental rights or grant relief 

to persons or entities who were not 

before the court. He maintained that 

the petitioner had raised several issues 

of company law which could best be 

addressed through the avenues of 

commercial courts as provided by under 

the Companies Act, Cap 486 Laws of 

Kenya, and that the filing of this petition 

had a collateral purpose. 

The petitioner’s counsel, however, made 


93



a strong response thereto, arguing that 

the court had jurisdiction to determine 

the matter under section 84 of the 

repealed Constitution which provided 

that constitutional petitions could 

be made and entertained “without 

prejudice to any other action in respect 

of the same matter which is lawfully 

available.” 

Finally, the respondent contended 

that the petitioner’s detention was 

underpinned in the Statute and in 

particular section 4(2)(a) of the repealed 

Preservation of Public Security Act, 

Cap 57 of the Laws of Kenya as read 

together with the repealed Public 

Security (Detained and Restricted 

Persons) Regulations. The relevant 

Regulations provided, that if the Minister 

was satisfied that it was necessary for 

the preservation of public security to 

exercise control beyond that afforded 

by a restriction order, over any person, 

he could order that that person be 

detained. He argued that under the 

relevant law the Minister in charge of 

Internal Security at the material time 

was responsible for the petitioner’s 

detention and the President of the 

Republic was not mentioned anywhere 

in the Regulations save all that was 

required of him was to sign the relevant 

Gazette Notice so as to operationalise 

section 85 of the then Constitution of 

Kenya. Therefore the petitioner ought 

to have sued the said Minister, not in 

his personal capacity, but as an agent 

of the State. 

Mr. Mwangi, counsel for the petitioner, 

however argued that the right to personal 

liberty was one of the internationally 

recognised fundamental civil liberties 

and was protected by section 72 of the 


repealed Constitution which stated inter 

alia that “anyone who was unlawfully 

arrested or detained by another person 

would be entitled to compensation 

therefore from that other person.” He 

maintained that Article 9 Rule 5 of the 

International Covenant on Civil and 

Political Rights reiterates the position 

and that it provides inter alia that 

“anyone who has been a victim of 

unlawful arrest or detention shall have 

an enforceable right to compensation.” 

It was his submission that his client 

was detained for closely over 3 years 

and that the only question would be 

whether his detention was caused by 

the respondent and also whether it 

was unlawful. The petitioner’s case 

turned on these questions - who actually 

detained the petitioner Could the 

former president he held personally 

liable for violating the petitioner’s 

constitutional rights. The petitioner 

had averred in his affidavit that the 

respondent had in the past apologised 

for the alleged wrongdoings and that the 

Minister of State could not detain any 

person under the preservation of Public 

Security Act without the knowledge and 

consent of the President of the Republic. 

His affidavit contained a presumption 

to the effect that since the petitioner 

was a Deputy Director of Intelligence 

and Deputy Commissioner of Police in 

Kenya and a business partner he could 

not be detained without the knowledge 

and consent of the President of the 

Republic. Since the respondent did not 

file a response to these allegations it was 

taken that the respondent had accepted 

all the matters raised in the petitioner’s 

affidavit. 

The court noted that while in Kenya 

the courts have on several occasions 

held that human rights are applicable 

vertically this was at variance with the 

practice in other jurisdictions, where 

the fundamental rights are applicable 

both vertically and horizontally. The 

court referred to a South African case 

where the Constitutional Court held 

that the applicant had been unfairly 

discriminated by a non state actor in 

being denied employment on the basis 

of his HIV status which action was held 

unconstitutional. 

While finding in favour of the petitioner, 

the court stated, among other things, 

that the facts revealed tended to show 

that the petitioner’s detention was 

intended by the respondent to secure 

a personal and ulterior commercial 

advantage and that there was no reason 

at all to believe that the said detention 

was carried out for the purposes which 

were laid down in the Preservation of 

Public Security Act. 

Quoting the decision in the Second 

Circuit of the United States Court of 

Appeals in Filartiga –vs- Pena Irala which 

upheld a suit for damages against a 

former official of Paraguay for acts of 

torture leading to death, the Court 

concluded that although the case dealt 

with the issue of torture leading to death, 

the decision would most appropriately 

apply in the circumstances where denial 

of fundamental human rights leads to 

a loss, be it physical or economic, thus 

the court would in worthy cases award 

punitive and exemplary damages, in 

order to punish a respondent, for his 

irrational, arbitrary, oppressive and 

unlawful acts. 

94 






WHY COURT ORDERED INQUIRY INTO KRA’S PROCUREMENT 

OF INSURANCE BROKERAGE SERVICES 

Republic v Public Procurement Oversight Authority & 2 others 

Miscellaneous Civil Application No. 261 of 2010 

ex parte Getrio Insurance Brokers Ltd [2011] eKLR 



April 1, 2011 


D. Musinga J. 

The High Court has ruled that 

even where the performance 

of a statutory duty by a public 

entity was discretionary, the court 

could intervene where the discretion 

was not exercised judicially or fairly. 

This was held in a judicial review 

matter where Getrio Insurance 

Brokers Limited had sought for orders 

of mandamus compelling the Public 

Procurement Oversight Authority 

(PPOA) to carry out investigations 

as to the circumstances surrounding 

and leading to the award of a tender 

for provision of Insurance Brokerage 

Services by the Kenya Revenue 

Authority(KRA) and in particular 

whether KRA violated the Public 

procurement Disposal Act, 2005, the 

Public Procurement and Disposal 

Regulations,2006 and the directions 

issued by the respondent to procuring 

entities. Justice D Musinga, who 

presided over the case, held that it 

was the intention of Parliament that 

the Public Procurement of goods 

and services was done in a manner 

that was efficient, fair, competitive, 

accountable, and transparent and in 

a way that inspired public confidence 

in the procurement procedure. He 

added that the process required to 

be conducted with integrity and that 

PPOA had to display outstanding 

honesty and integrity in all its 

undertakings. 

PPOA was established under section 

8 of the Public Procurement and 

Disposal Act, 2005 and its functions 

set out in section 9. The functions 

include ensuring that the procurement 

procedures established under the 

Act are complied with and also to 

monitor the Public Procurement System 

and make appropriate reports to the 

Minister with recommendations for 

improvement as may be deemed 

necessary. Section 102 to 105 of the 

PPDA gave PPOA unfettered powers to 

order investigations of procurement 

procedures for purposes of determining 

whether there has been a breach of the 

Act, the regulations or directions relating 

to procuring entities. 

The background of the case is that Getrio 

insurance Brokers Ltd (applicant) had 

participated in two tenders issued by 

KRA which tenders the applicant had 

reason to believe were not undertaken 

in a fair, accountable and transparent 

manner as had been envisaged under 

the provisions of section 2 of the Public 

Procurement and disposal Act. The 

applicant further stated that it had 

on several occasions brought to the 

attention of PPOA, cases of breach of the 

Act and the regulations by KRA, with a 

request that the respondent carries out 

investigations as mandated by the Act 

but the respondent had failed to carry 

out the investigations. 

Getrio Insurance Brokers Ltd submitted 

that they had cited a tender notice 

where KRA had invited bids for provision 

of Insurance Brokerage Services. The 

applicant averred that pursuant to 

section 46(2) of the Act, PPOA published 

in the Daily Nation newspaper that 

KRA had awarded another tender 

for provision of Insurance Brokerage 

Services to Canopy Insurance Brokers. 

Subsequently, the applicant wrote a 

letter to PPOA seeking to enquire the 

circumstances under which the tender 

had been advertised, evaluated and 

awarded. The applicant submitted that 

the letter was responded to by the 

Interim Director General of PPOA, Mr. 

Juma who acknowledged receipt and 

stated that they were still reviewing the 

issues raised and would revert back to 

them. However, the applicant averred 

that PPOA had not given any substantive 

response to them despite a reminder. 

In a separate instance, Getrio Insurance 

stated that it had submitted its bid for a 

tender issued for the award of Insurance 

Brokerage Services for KRA’s staff Pension 

Scheme. However, it did not receive 

any communication and thus wrote 

to PPOA requesting for Investigations 

into the matter as it believed that KRA 

had again awarded the tender without 

informing the unsuccessful bidders. 

However, PPOA did not respond to 

the said letter but later on, Getrio 

Insurance received a letter from KRA 

informing it that its tender for provision 

of Insurance Brokerage services to KRA 

was unsuccessful. Getrio Insurance 

wondered when the award was made 

since the period of Insurance was to run 

from 1 st July, 2010 yet the award was 

made on 14 th July, 2010 as portrayed by 

the letter from KRA. 

The applicant therefore submitted that 

the PPOA had neglected to execute its 

express mandate as stipulated under 


Act and further, that PPOA had failed 

to discharge its mandate to Kenyans as 

envisaged by parliament in enacting the 

Act and regulations there under. 

On the other hand, PPOA opposed the 


95



application on the grounds that section 

102 of the Public Procurement and 

Disposal Act gave the Director General of 

PPOA discretion to order investigations to 

procurement proceedings to determine 

whether there had been a breach of 

the said Act. PPOA also submitted that 

a judicial review order could not have 

issued to compel the performance 

of discretionary functions and duties 

and further that if the applicant was 

dissatisfied with the way the impugned 

procurement process was conducted, its 

remedy lay in the Appeal Board as was 

provided for by the Act. 

The court noted that section 103 of the 

Act granted wide powers to PPOA to 

investigate procurement proceedings. 

Justice Musinga thus agreed with the 

applicant by finding that PPOA ought to 

have exercised the mandate bestowed 

on it by section 102 of the Act and carried 

out investigations to ascertain whether 

KRA had breached the provisions of the 

Act in its award of the various tenders 

referred to by the applicant. He further 


found that the applicant’s complaint that 

it was severally not informed in time of 

their unsuccessful bids was a breach of 

the provisions of section 67(2) of the Act 

which required the procuring entity to 

return the tender security as soon as the 

contract which was the subject matter of 

the tender was executed. 

The court further found that PPOA was 

under a legal obligation to investigate 

the claims by the applicant and make an 

appropriate response to the applicant 

and to the Minister. The court noted 

that Canopy Insurance may have been 

winning the tenders fairly, but once a 

complaint had been raised about the 

award, PPOA ought to have carried out 

thorough investigations in the spirit 

of the Act as stated in section 2, and 

responded to the applicant’s letters. The 

court emphasized that that was the only 

way of inspiring public confidence in the 

procurement exercise. 

In dealing with the opposed grounds, 

the court found that inasmuch as the 

performance of a statutory duty of a 

public entity was discretionary, the court 

could intervene where the discretion 

was not exercised judicially. Justice 

Musinga relied on Article 47 of the 

Constitution which provided that every 

person had the right to administrative 

action that was expeditious, efficient, 

lawful, reasonable and procedurally fair. 

As regards the argument by PPOA that 

the applicant’s remedies lay in an appeal 

to the Appeals Board, it was clear that 

no decision was made by PPOA and 

consequently no appeal could have been 

filed by the applicant. 

In conclusion, the court was satisfied that 

PPOA had not exercised its discretion in a 

judicial manner considering the fact that 

the applicant had raised weighty and 

very relevant complaints which required 

thorough investigations. The court found 

that whether or not such complaints had 

any validity was not for the High Court 

to determine. The orders of mandamus 

were therefore granted as prayed. 

96 




The 

Law Reports 

Supreme Court of the United Kingdom 



Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC) (Appellant) v Secretary of 

State for the Home Department (Respondent) [2011] UKSC 23 

On appeal from the Court of Appeal [2008] EWCA Civ 1204 

JUSTICES: Lord Hope (Deputy President), Lord Rodger, Lady Hale, Lord Brown, Lord Kerr 

BACKGROUND TO THE APPEAL 

The issue in this appeal is whether a 

failure by the Respondent to comply 

with a procedural requirement in its 

policy relating to the detention of 

foreign national prisoners results in their 

detention being unlawful, so as to allow 

the detainee to advance a claim in tort 

for false imprisonment. 

Shepherd Masimba Kambadzi is a 

Zimbabwean national. He entered the 

UK lawfully, but remained here after his 

leave to remain expired. In 2005, he was 

convicted of assault and sexual assault, 

sentenced to one year’s imprisonment 

and ordered to be registered as a sex 

offender for five years. Prior to his being 

released from prison, the Respondent 

decided to make a deportation order 

against the Appellant. Paragraph 2(2) 

of Schedule 3 to the Immigration Act 

1971 (the 1971 Act) gives the Secretary 

of State the power to detain foreign 

nationals pending the making of a 

deportation order and the Appellant was 

detained under that power on 7 March 

2006. On 24 August 2007, a deportation 

order was made against the Appellant, 

after which he was detained under 

paragraph 2(3) of Schedule 3 to the 1971 

Act. In all, he was detained for 27 months 

until 13 June 2008, when he was granted 

bail. He has not yet been returned to 

Zimbabwe because of conditions in that 

country. 

The common law has recognised 

limits on the extent of the power to 

detain under paragraphs 2(2) and (3) 

of Schedule 3 to the 1971 Act (the 

Hardial Singh principles, set down in 

R v Governor of Durham Prison Ex p 

Hardial Singh [1984] 1 WLR 904). The 

Respondent had a policy which detailed 

how the power to detain was to be 

exercised. It provided, for example, that 

all reasonable alternatives to detention 

must be considered before detention 

was authorised. The policy also provided 

for detention to be subject to “review 

at regular intervals”. It specified the 

frequency of review and the grade of 

official who was to carry them out. The 

policy required the Appellant’s detention 

to be reviewed on five occasions during 

the first month and then monthly 

thereafter. The Appellant’s detention 

was not reviewed in accordance with 

that policy. By the date of the first 

instance hearing of this claim, he had 

been entitled to 22 monthly reviews 

of the lawfulness of his detention, in 

addition to the five reviews which should 

have taken place in the first month. His 

detention had been reviewed only ten 

times. Only six of those reviews had been 

conducted by officials of the required 

seniority and, of those six, two were 

flawed by material errors of fact. The 

substantive requirements for detaining 

the Appellant were, however, met 

throughout the period of his detention: 

had the Respondent carried out the 

reviews, it could justifiably have decided 

to continue to detain him. 

While still detained, the Appellant raised 

a judicial review, seeking a declaration 

that he was unlawfully detained and 

damages. At first instance, Munby J 

granted a declaration that the Appellant 

had been unlawfully detained for 

various periods amounting to about 

19 months and gave directions for the 

assessment of damages, but he declined 

to order his release. (The Appellant 

was subsequently granted bail in other 

proceedings.) The Court of Appeal 

allowed the Secretary of State’s appeal 

and held that the Appellant’s detention 

had been lawful throughout. 

Although the Supreme Court heard the 

appeal in February 2010, it delayed 

handing down its judgment so as to 

enable a court of nine Justices to consider 

the case of R (Lumba) v Secrteary of 

State for the Home Department [2011] 

UKSC 12. That case also considered 

the legality of the detention of foreign 

national prisoners where the Secretary 

of State has not complied with the 

terms of the published policy relating 

to detention. 

JUDGMENT 

The Supreme Court, by a majority, allows 

the appeal. Lord Hope gives the leading 

judgment; Lady Hale and Lord Kerr 

issue separate concurring judgments. 

The majority holds that the Appellant’s 

detention was unlawful for the periods 

in respect of which no review was 

carried out and that he does have a 

claim in tort for false imprisonment in 

respect of those periods. The amount 

of damages is yet to be ascertained, 

but will be nominal if it is found that the 

Appellant would have been detained 

even if his detention had been reviewed 

as the policy required. Lord Brown gives 

a dissenting judgment, with which Lord 

Rodger agrees. 

REASONS FOR THE JUDGMENT 

The Secretary of State was under a public 

law duty to adhere to the terms of the 

policy relating to reviews unless there 

were good reasons not to: [36], [39], 

[66]. The majority of the Court holds 

that the Respondent’s unlawful failure 

to review the Appellant’s detention, as 

required by the policy, resulted in his 

detention being unlawful. The court 

rejects the argument that because 


97



the breach of public law related to a 

procedural requirement, it did not affect 

the legality of the detention: [69] – [73], 

[85]. Some procedural requirements go 

to the legality of the detention and some 

do not: [71]. The policy was sufficiently 

closely related to the authority to 

detain to qualify the Secretary of State’s 

discretion under the 1971 Act: [51]. The 

very point of the review was to ensure 

that the detention was lawful: [73], [86]. 

The public law error bore directly on the 

decision to detain the Appellant and 

therefore satisfied the test adopted by 

the majority in Lumba for determining 

when a public law error will result in 

detention being unlawful: [42], [88]. The 

Appellant’s detention was not unlawful, 

however, where the only defect in the 

decision to continue detention was that 

the review had been carried out by an 


official of the wrong grade: [60]. 

As the Court also held in Lumba, it 

was no defence to the claim that there 

were grounds which justified the 

Appellant’s detention: [54], [73], [88]. 

False imprisonment is a trespass to the 

person and actionable in itself, without 

proof of loss or damage: [74]. The result 

of the reviews which should have taken 

place is, however, relevant to assessing 

damages. A defendant is liable only 

for the loss which his wrongful act has 

caused. The full facts of this case are 

yet to be established, but if it is found 

that the claimant would not have been 

released had proper reviews been 

carried out, he will only be entitled to 

nominal damages: [55] – [56], [74], [89]. 

Lord Brown (with whom Lord Rodger 

agrees) would have held that the failure 

to review the Appellant’s detention did 

not result in the Appellant’s detention 

being unlawful. They hold that the policy 

did not confer upon the Appellant an 

entitlement to be released, but only 

an entitlement to be reviewed for 

release: [107]. Once properly detained, 

a detainee remains lawfully imprisoned 

unless and until released on bail or by 

the Secretary of State’s direction, or he 

establishes a substantive entitlement 

to release: [111]. Lumba does not 

compel the majority’s result, because 

it was concerned with a substantive 

entitlement under the policy and not 

a procedural one, and because it also 

held that not every breach of public law 

resulted in detention being unlawful: 

[116] – [118]. 

NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for 

that decision. The full opinion of the Court is the only authoritative document. Judgments are public documents and 

are available at: 

www.supremecourt.gov.uk/decided-cases/index.html 

98 





Notes 


99



Notes 

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