2016 Global Review of Constitutional Law

senate (both of which make up Parliament). 33
The devolved government is also divided
into county executives and county assemblies.
34 Kenya currently has 47 counties, and
thus also 47 county assemblies. 35
There have been legion disputes between national
government and county governments
over the exercise of powers (as well as privileges),
some of which have been a subject
of judicial determination in 2016. 36 One of
the most significant was International Legal
Consultancy Group & another v. Ministry of
Health & 9 others [2016] eKLR. 37 This case
was about division of functions between the
national and county governments in relation
to health. It arose out of a decision by the
national government, through the Ministry
of Health, to procure certain medical equipment
to be used in health facilities throughout
the country. Citing the Inter-Governmental
Relations Act 2012, the court, in that case,
dismissed the petition that had been filed in
the interest of county governments and observed
that:
“the constitutional and legislative intent
was to have all disputes between the two
levels of government resolved through
a clear process established specifically
for the purpose by legislation, a process
that emphasizes consultation and amicable
resolution through processes such
as arbitration rather than an adversarial
court system. As a result, a separate dispute
resolution mechanism for dealing
with any disputes arising between the
national and county governments, or
between county governments, has been
established.” 38
Some other disputes have been on the relationship
between the judiciary and the executive.
Most significant in this regard was that
of Law Society of Kenya v. Attorney General
& Another [2016] eKLR. 39 This case was
about the powers of the President to appoint
the Chief Justice and the Deputy Chief Justice.
Proceedings in that case were provoked
by the enactment of the Statute Law (Miscellaneous
Amendment) Act 2015 that sought to
make minor amendments to various statutory
enactments, including the Judicial Service
Act 2011. Regarding the Judicial Service
Commission Act, the bill sought to amend
it to prescribe timelines for transmission of
names to the President after recommendation
by the Commission and most importantly
sought to amend the provisions of section
30(3) of the Judicial Service Commission
Act by requiring that the Commission submits
names of three persons for appointment
to the position of the Chief Justice and the
Deputy Chief Justice. It had been contended
that by allowing such amendments, the judiciary
was going to be perceived by the public
as an appendage of the executive and more
importantly that the said amendments would
achieve a collateral purpose of limiting the
independence of the Judicial Service Commission
and the judiciary, which collateral
purpose was claimed to have been evidenced
by the “fact that the amendments only affect
the Chief Justice and the Deputy Chief Justice
but not the Judges of the Court of Appeal
and the High Court who are appointed in a
similar manner.” 40 The High Court, which
heard the case, determined that:
“To the extent that the amendments to
section 30(3) of the Judicial Service Act
compelled the Judicial Service Commission
to submit three names to the
President for appointment of the Chief
Justice and the Deputy Chief Justice
respectively, the said amendments violated
the letter and the spirit of Article
166(1) of the Constitution.” 41
Rights and Freedoms
In the year 2016, legion petitions involving
violations of human rights were heard and
determined by the High Court. The most
significant was one that found its way to the
Court of Appeal from the High Court: Kenya
Airports Authority v. Mitu-Bell Welfare Society
& 2 Others [2016] eKLR. 42 The appeal
concerned justiciability and enforceability of
socio-economic rights under the 2010 Constitution.
Most pointedly, the case expressed
the tension between the right to housing as
a socio-economic right and the right to private
property. The Court had to decide on
the extent to which socio-economic rights
can trump private property rights. A key feature
in the appeal was the interpretation of
the scope of the power of the High Court to
grant appropriate relief as per Article 23 of
the Constitution in cases involving the implementation
of rights and fundamental freedoms.
Sometime around 1992, members of Mitu-Bell
Welfare Society were relocated by
the government to occupy and reside in a
property belonging to Kenya Airports Authority.
The residents then put up their slum
dwellings, schools, and churches and established
their businesses on the property and
sought—in vain—the Commissioner of
Lands to issue them title deeds to the portion
of the appellant’s land that they occupied. 43
In 2011, the Airports Authority placed a notice
in the local daily newspapers giving the
occupants and residents seven days to va-
33
Constitution of Kenya, Chapter 8.
34
Ibid, Chapter 11.
35
Constitution of Kenya, First Schedule.
36
Available at http://kenyalaw.org/caselaw/cases/view/120392/ accessed 31 March 2017 .
37
Ibid.
38
Ibid para. 65.
39
http://kenyalaw.org/caselaw/cases/view/122379/ accessed 31 March 2017.
40
Para 19.
41
Ibid, Para 307.
42
http://kenyalaw.org/caselaw/cases/view/123600/ accessed 31 March 2017
43
Ibid.
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