Bench Bulleti Issue 39

Issue 39,
October - December 2017

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CONTENTS
1. Editors Note 1
2. CJ’s Message 2
3. What they Said 4
4. Feature Case 6 Supreme Court Rules on Validity
of Repeat Presidential Election
5. Cases 12
| Pg 6
6. Britain ends Courtroom
Tradition of Wigs and Gowns Editor/CEO
in Court 54 | Long’et Terer

7. Caseback 56 Deputy CEO (Ag)
| Monica Achode
8. International Jurisprudence 57
Head of Law Reporting &
9. Law Reform Issues 66 Council Secretary (Ag)
| Cornelius W. Lupao
10. D ifference in Judicial

Senior Law Reporters
Reasoning 72 | Andrew Halonyere
| Linda Awuor |
11. L egislative Updates 76 | Njeri Githang’a Kamau
12. L egal Supplements 79 Contributors

| Nelson Tunoi
| Emma Kinya
| Lisper Njeru
| Teddy Musiga
| Beryl Ikamari
| Christian Ateka
| Ruth Ndiko
| Patricia Nasumba
| Christine Thiong’o
| Robai Nasike
| John Ribia
| Eunice Chelimo
| Faith Wanjiku
| Kevin Kakai
| Musa Okumu
Britain Ends Courtroom Tradition of Wigs and
Gowns in Court | Pg 64 Publishing, Design and Layout
| Catherine Moni
| Josephine Mutie
| Cicilian Mburunga
| Robert Basweti
Disclaimer:
Proofreaders
While the National Council for Law Reporting has made every effort | Phoebe Juma
to ensure both the accuracy and comprehensiveness of the information | Innocent Ngulu
contained in this publication, the Council makes no warranties or | Thomas Muchoki
guarantees in that respect and repudiates any liability for any loss
| Humphrey Khamala
or damage that may arise from an inaccuracy or the omission of any
information.
KENYA LAW REPORTS
2014 Volume 1
KLR 2014
This Law Report contains precedent setting judicial opinions delivered in the Year 2014 by the Supreme Court, Court
of Appeal, High Court, Environment and Land Court and the Employment and Labour Relations Court.
www.kenyalaw.org mykenyalaw @mykenyalaw Mykenyalaw

National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary
Members of the Council
for Kenya Law
The Hon. Justice David K. Maraga, EGH

Chief Justice and President, Supreme Court of Kenya
Chairman
The Hon Lady Justice F Sichale Government Press
Judge of the Court of Appeal of Kenya Represented by Ms Eva N. Githinji, Senior Printer
The Hon Justice Anthony Ndung’u Ms Janet Kimeu,

Judge of the High Court of Kenya
Advocate, Law Society of Kenya
Prof Githu Muigai, SC
Attorney General Mr Michael Muchemi,
Represented by Linda Murila, Sr, Chief State Counsel Advocate, Law Society of Kenya
Prof Kiarie Mwaura Long’et Terer

Dean, School of Law, University of Nairobi
Editor/CEO
Ms Jennifer Gitiri, Advocate & Public Officer,
Office of the Attorney General & DoJ Members co-opted to serve in ad-hoc
Mr Silvester Migwi, Government Printer,
Advisory Capacity
Ms Anne Amadi Michael Sialai, EBS
Chief Registrar, The Judiciary Clerk of the Kenya National Assembly Represented
by Samuel Njoroge, Dep. Director, Legislative and
Procedural Services
BB Issue 39, October - December 2017
Editor’s Note
Long’et Terer
CEO/Editor
I
n August 2017, Kenya held its 5th General election and the Hon. Uhuru Muigai
Kenyatta, was declared the winner of the Presidential election. The election results
were contested by the Hon. Raila Amolo Odinga and the Hon. Stephen Kalonzo
Musyoka, who had contested as Presidential and Deputy-Presidential candidates
respectively, in Raila Amolo Odinga & Another v. The Independent Electoral and
Boundaries Commission & 2 Others, Presidential Election Petition No. 1 of 2017,
(Raila 2017). In a decision rendered on September 1, 2017, the Supreme Court, by a
majority of four-to-two, nullified that election and directed the Independent Electoral
and Boundaries Commission (IEBC) to conduct a fresh Presidential election within 60
days. The IEBC conducted a fresh Presidential election on October 26, 2017 with all
the eight Presidential Candidates on the ballot. On October 30, 2017 upon the tallying
and verification of results being complete the Chairperson of IEBC declared President
Uhuru Kenyatta as the winner.
Two petitions were filed challenging that election: Petition No. 2 of 2017 by Mr. John
Harun Mwau and Petition No. 4 of 2017 by Mr. Njonjo Mue together with Mr. Khelef
Khalifa. In a unanimous decision, the six-judge bench of the Supreme Court upheld
the election of President Kenyatta on November 20. The dismissal of the two petitions
paved way for the swearing in of President Kenyatta for a second term. This brought
to an end the prolonged electioneering period in Kenya. This edition of the Bulletin
features this decison and highlights the salient issues raised and determined by the
Supreme Court.
The Bulletin also looks at the much awaited decision on the constitutionality of the
mandatory nature of the death sentence by the Supreme Court. According to the apex
court, the mandatory nature of the death sentence as provided for under Section
204 of the Penal Code is unconstitutional. This decision is groundbreaking as the
mandatory nature of the death sentence has been contentious with judges differing
over it, even issuing conflicting decisions. The first decision was issued in 2010 when
a death row convict, Geoffrey Ngotho Mutiso, successfully argued before the Court of
Appeal that the provision was illegal because it denied the judges a chance to consider
the mitigation of an accused person. Mutiso further argued that judges should be
allowed the discretion to pass any sentence to a convict and not restrict courts to
only one sentence, that of death. Three years later another bench of five judges of the
Appellate court in Mwaura & 2 others v Republic [2013] eKLR differed and restored
the contentious matter, stating that death sentence must continue to apply as the
people decided that it was fit as it was reflected in the Constitution. The Appellate
Court added that doing so would be going outside the province of Article 159 and 259
of the Constitution of Kenya.
These two Supreme Court decisions, together with other select decisions of the
superior courts of record feature in this edition of the bulletin. As we wrap up the
year and begin a new one, we thank you for your continued support and partnership
and on behalf of the entire team here at Kenya Law wish to reaffirm our continued
commitment to providing you with access to Kenya’s groundbreaking jurisprudence.
We wish you a prosperous 2018. .
1
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
Judiciary Engrains Mediation in Administration

of Justice
1. Court Annexed Mediation was introduced in Kenya by the Judiciary
in April, 2016 on a pilot basis. The purpose was to enhance access
to justice by reducing case backlog through mediation. The
pilot project covered the Family and Commercial Divisions at the
Milimani Courts which had huge backlog of cases. The pilot phase
officially ended in July this year and has been widely regarded as
a huge success with a 55.7 percent settlement rate in Family
Division and 53.8 per cent in the Commercial Division.
2. The end of the pilot phase has brought in a new dawn for the
Judiciary. It means that Court Annexed Mediation is now a permanent
dispute resolution mechanism, just like litigation. Previously,
disputes were exclusively resolved by parties through advocates
fighting it out in courtrooms with a judge or magistrate acting
as the umpire. Over-reliance on litigation as the exclusive
means of conflict resolution has, over time, led to a serious
backlog of cases in our courts, hampering the effective fulfilment of
the Judiciary’s mandate.
3. To expedite the fulfilment of its mandate, the Judiciary developed
the Judiciary Transformation Framework ( JTF) 2012-2016. The
framework identified access to justice as a key issue, with Pillar
1 of the framework explicitly mandating the Judiciary to promote
and facilitate Alternative Dispute Resolution mechanisms. The
Judiciary Strategic Plan (JSP) 2014-2018 builds upon the
foundations of the JTF and provides a comprehensive roadmap
for the institutionalization of ADR. My own blueprint, Sustaining
Judiciary Transformation (SJT), which I launched in January this
year, emphasizes the promotion and deepening of Court Annexed
Mediation as integral to the next phase of the transformation.
4. The Judiciary owes a debt of gratitude to the mediators,
for doing such a wonderful job so far. You are the stars of
the show that is Court Annexed Mediation. I encourage you to
continue with the good work, for yours is a noble duty. In the
Mediation Settlement Week lies a great opportunity to change
the lives of litigants for the better. I urge you to promote Court
Annexed Mediation by carrying out your duties diligently. It
is through your hard work that well over Sh1.4 billion which
had been locked up in litigation has been freed. Out of this, about
2
Sh1 billion stems from matters successfully settlement in the
Commercial Division and the rest through successful settled
of matters in the Family Division.
5. The ADR Task Force was gazetted in July 2017 to oversee the roll
out of Court Annexed Mediation across the country. I commend
the members of the Taskforce for devising such an appropriate
plan to deal with the backlog of cases and at the same
time raise awareness about Court Annexed Mediation. The Task
Force, together with its secretariat under the leadership of Justice
Fred Ochieng’, has worked tirelessly to ensure that the first-ever
Mediation Settlement Week comes to life. I would like to commend
the team for your dedication. I would also like to thank MAC under
the leadership of Justice Alnashir.
6. I appreciate the continued support from our development
partners - the Judiciary Performance Improvement Project (JPIP),
International Law Development Organization (IDLO), FIDA Kenya,
Law Development Partnership (LDP) at different stages and
stakeholders like LSK, among others - which has enabled CAM get to
where it is today.
7. In Conclusion, let me say that the Mediation Settlement Week is one
of many avenues the Judiciary will employ to change the perception
that litigation is the only effective means of resolving disputes. Despite
the great strides CAM has achieved it still has a long way to go.
This is to implore all of you, from the Taskforce, development
partners, media, my colleagues and all judicial officers to continue
promoting Court Annexed Mediation.
Hon. David K. Maraga, EGH

Chief Justice and President of the Supreme Court of Kenya.
What they said
“
The responsibility to verify results is not a creation of this Court
but an imperative of the Constitution and Section 39(1C)(b) of
the Elections Act. The verification required of the 1st and 2nd
respondents is meant to ensure accuracy or prevent fraud and also
to confirmation that the candidate to be declared president elect has
met the threshold set under Article 138(4) of the Constitution. It is
therefore the duty of the 2nd respondent, to bring to the attention of the
public, any inaccuracies discovered by the verification of Forms 34A and
Forms 34B even as he declares the results as generated from Forms 34B to
generate Form 34C. The effect of such inaccuracies on an election depends
on their gravity or otherwise and the 2nd respondent must state whether
the discrepancies affect the overall results or not. The institution vested
with the mandate to make a determination of the effect of the inaccuracies
is an election Court.”
Supreme Court Judges - D Maraga, CJ; P Mwilu, DCJ; J B Ojwang, S C Wanjala, & I Lenaola,
SCJJ - Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission
Chairman (IEBC) & another - Election Petition No. 1 of 2017
“
“In the case of Nairobi Law Monthly Ltd v Kenya Electricity
Generating Company Ltd & 2 Others (supra), the Court stated that
the right to access information was only available to citizens and
in arriving at that conclusion, the Court relied on the decision by
Majanja J, in the case of Famy Care Limited –v- Public Procurement
Administrative Review Board & Another (High Court Petition No.
43 of 2012). It is noteworthy, however, that both decisions by Mumbi
Ngugi J and Majanja J in the above cases came before the enactment of
Access to Information Act, in 2016. Section 2 of the Act defines a citizen
as “any individual who has Kenyan citizenship, and any private entity that
is controlled by one or more Kenyan citizens.” From the above definition,
a juristic person whose director(s) is a citizen, is considered a citizen for
purpose of exercising the right to access to information under Article 35(1)
(a) of the Constitution as read with section 4 of Access to information the
Act.”
High Court Judge at Nairobi – J M Mativo in Law Society of Kenya v Kenya Revenue Authority
& another - Petition No 39 of 2017
4
“
The scope of access to justice as enshrined in article 48 is very
wide. Courts are enjoined to administer justice in accordance with
the principles laid down under article 159 of the Constitution.
Thus, with regards to access to justice and fair hearing, the State
through the courts, ensure that all persons are able to ventilate
their disputes. Access to justice includes the right to a fair trial.
If a trial is unfair, one could not be said to have accessed justice. In that
respect, when a murder convict’s sentence cannot be reviewed by a higher
court he is denied access to justice which cannot be justified in light of
article 48 of the Constitution.”
Supreme Court Judges, Maraga CJ, Mwilu DCJ; Ojwang, Wanjala, Njoki and Lenaola SCJJ in
Francis Karioko Muruatetu & another V Republic, Petition No. 15 of 2015
“
Once a member (Member of County Assembly) has been gazetted
as duly nominated, that becomes an election result and anyone
unhappy with that result can only challenge it as an election
dispute in an election court.”
High Court Judge at Nairobi – E C Mwita, J in Rahma Issak Ibrahim v Independent Electoral &
Boundaries Commission & 2 others - Constitutional Petition No 456 of 2017
“
The Applicant’s application is in breach of Section 23(2) of the
International Crimes Act that mandates any request for assistance
by the International Criminal Court should be in conformity with
the Kenyan Laws. It was apparent to this court that the above
requests made to the court clearly indicates that the Prosecutor
of the International Criminal Court was still gathering evidence
to prosecute the Respondents yet charges have already been laid against
them before the International Criminal Court. This court holds that in so
far as the International Crimes Act provides that an application for the
surrender of the Respondents to the International Criminal Court can be
made without the Respondents being supplied with evidence in support
of the charge against them, such application is not sustainable and is not
within the threshold mandated by the Constitution.”
High Court Judge at Nairobi – L. Kimaru in Republic (through Cabinet Secretary, Ministry if
Interior and Coordination of National Government) v Paul Gicheru & another - Misc. Criminal
Application 193 of 2015
5
Feature Case
By Long’et Terer
CEO/Editor
Supreme Court Rules on Validity of Repeat Presidential Election

John Harun Mwau and 2 others v Independent Electoral and Boundaries Commission & 4
others [2017] eKLR
Petitions Nos. 2 And 4 Of 2017
(As Consolidated November 14, 2017)
Supreme Court of Kenya
D Maraga, CJ; P Mwilu, DCJ; J B Ojwang, S C Wanjala, S N Ndung’u & I Lenaola, ScJJ
December 11, 2017
By Long’et Terer
Brief Facts Alliance Party in the August 8, 2017 general

elections filed a petition in the High Court
On August 8, 2017 Kenya held its second
stating that under articles 27, 38, and 140(3)
general election under the Constitution of
of the Constitution, as a candidate that
Kenya, 2010 and the Hon. Uhuru Muigai
participated in the August 8, 2017 elections,
Kenyatta, the 3rd Respondent, was declared
he had a right to participate in the fresh
the winner of the Presidential election.
presidential elections slated for October
The Hon. Raila Amolo Odinga and the
26, 2017. The High Court in the Judgment
Hon. Stephen Kalonzo Musyoka, who had
in Ekuru Aukot directed the inclusion of
contested as Presidential and Deputy-
Dr. Aukot as an additional Presidential
Presidential candidates respectively,
candidate. Following the decision, the IEBC
challenged the election, in Raila Amolo
through a Gazette Notice included all the
Odinga & Another v. The Independent
presidential candidates who had participated
Electoral and Boundaries Commission & 2
in the August 8, election.
Others, Presidential Election Petition No. 1
of 2017, (Raila 2017). In a decision rendered In the meantime, a day before the Judgment
on September 1, 2017, with reasons reserved in Ekuru Aukot was delivered, The Hon.
and delivered on September 20, 2017, the Raila Amolo Odinga and the Hon. Stephen
Supreme Court, by a majority of four-to- Kalonzo Musyoka, who were contesting
two, nullified that election and, pursuant to as Presidential and Deputy-Presidential
article 140(3) of the Constitution, directed candidates respectively, withdrew from
the Independent Electoral and Boundaries the elections and urged their supporters to
Commission (IEBC) to conduct a fresh boycott the election. The IEBC conducted
Presidential election within 60 days. a fresh Presidential election on October
26, 2017 with all the eight Presidential
Through a Gazette notice dated September
Candidates on the ballot. However, elections
5, 2017, the IEBC and its Chairman
in 25 Constituencies were postponed due
directed that only Jubilee Party and Orange
to serious breaches of the peace in those
Democratic Movement would participate
constituencies. Even on the specially-
in the fresh presidential elections. Ekuru
designated Election Day, elections could
Aukot, a presidential candidate for Thirdway
not be held in the said areas, due to violence;
6
and the 1st Respondent called off the repeat neutral, efficient, accurate and
elections. Consequently, on October 30, accountable manner.
2017 upon the tallying and verification of (iii) The fresh election was further marred
results being complete, the Chairperson of by illegalities and irregularities; and
IEBC declared the 3rd Respondent as the
winner, having garnered 7,483,895 out of (iv) Given the prevailing conditions
the 7,616,217 valid votes cast despite the and circumstances, the 1st and 2nd
electorate in the 25 Constituencies not Respondents could not and should
having voted. not have proceeded with the conduct
of the fresh election on 26th October,
Two petitions were filed challenging that 2017.
election: Petition No. 2 of 2017 by Mr. John
On the basis of the foregoing averments and
Harun Mwau (hereinafter, 1st Petitioner)
allegations, the Petitioners sought various
and Petition No. 4 of 2017 by Mr. Njonjo
reliefs including the declaration that the
Mue together with Mr. Khelef Khalifa
election of the President-elect in the fresh
(hereinafter, 2nd and 3rd Petitioners).
Presidential election held on October 26,
Those two petitions were consolidated,
2017 pursuant to article 140 (3) of the
with petition 2 of 2017 being the lead file.
Constitution was invalid.
Petition No. 2 of 2017 was based mainly
Before the October 26 elections, Parliament
on one legal issue: that the 1st and 2nd
passed the Election Laws (Amendment) Act
Respondents failed to conduct fresh
2017 on October 12, 2017 and submitted
nominations for the election of 26th
to the President for assent on October 13,
October, 2017, thus rendering the election
2017. The President having not assented to
null and void. Petition No. 4 of 2017 on the
the subject Bill by 27th October, 2017 (the
other hand raised the following grounds:
14th day), by operation of law (Article 115(6)
(i) The 2nd respondent did not conduct of the Constitution) it was deemed assented
any nominations of presidential to on that date. It was then published in the
candidates in accordance with the Gazette on 2nd November, 2017.
Constitution and the Law: the 3rd
The Court made a determination of the
Respondent was [thus] not validly,
various issues as follows:
procedurally and/or lawfully
nominated as a presidential candidate. What was the locus standi of the Petitioners?
Were their causes being pursued in the
(ii) The election conducted by the 1st
public interest?
and 2nd Respondents on October
26, 2017 failed to meet the general The general guiding principle in public
principles stipulated under article interest litigation should always be that,
81(d) of the Constitution of Kenya: the suit must be brought in the broad
of universal suffrage based on the “public interest”. It should not be a veil for
aspiration for fair representation private, commercial, partisan or other “non-
and equality of vote. And it failed to public” interests. The detailed contours of
meet the general principles stipulated the applicable law will continue to unfold,
under Article 81(e) of the Constitution through the works of the superior Courts.
of Kenya of a free and fair election, The proliferation of issues raised in the
which were; matter were symbolic of parties aggrieved,
and were presenting a real cause for judicial
(a) The election was not free from
resolution.
violence, intimidation, improper
influence or corruption; Whether the election met the constitutional
(b) The fresh election was not threshold of a free and fair election under
conducted by an independent body; article 81 of the Constitution?
(c) The fresh election was not The terms of article 81(e) (ii) of the
transparent; and Constitution, read in proper context, had
(d) The fresh election was not to be understood to mean that no person,
administered in an impartial, candidate, political party, party agent or
supporter, or State agency was to resort to
7
acts of violence, intimidation, improper provided for under Regulation 52 of the

influence or corruption, to defeat the will of Elections (General) Regulations, 2017. A
the people exercising their democratic rights Presidential candidate who intended to
to vote. The said provision could not be read withdraw could only do so within three days
as sanctioning or lending legitimacy to acts of the nominations by filling Form 24A, and
of violence and intimidation, to achieve the submitting the same to the Returning Officer,
invalidation of an election. If it was to be held the 2nd Respondent. Regulation 52 provided
otherwise, the authority of the Constitution for withdrawal of a candidate within
would be surrendered to cynical acts of three days of the nominations. The said
violence: all that one would need to do, is Regulation was, thus, not applicable to the
to instigate violence in any corner of the situation herein. The nominations had long
Republic during a Presidential election, and been conducted before the scheduled fresh
thereafter petition this Court to nullify the election. That however did not mean that
election. Those who intentionally instigate after the expiry of the three-day period, no
and perpetrate violence must not plead the candidate could withdraw from an election.
same violence as a ground for nullifying an One could not be forced to participate in an
election. election, in which he or she had lost interest.
The NASA candidate not only made a public
In accordance with article 81(e) of the
announcement of his decision to withdraw
Constitution of Kenya, the repeat election
from the elections, but addressed a formal
was conducted by secret ballot; it was free
letter to that effect, to the 1st Respondent.
from violence (more particularly, such
Such actions, constituted a substantive
violence being initiated and prosecuted by
and legally-effective withdrawal from the
the electoral body, or by State agencies); the
elections.
voters were not influenced by intimidation
or corruption; the management process was The withdrawal of the NASA Presidential
in the hand of IEBC; voting was transparently candidate from the October 26, 2017 fresh
done; such voting proceeded transparently, Presidential election could not, in law, have
efficiently, accountably, with precision and occasioned the cancellation of the elections.
clear expression of voter-preference. Such The retention of the name of the withdrawn
election hence had to be judged to have been candidate on the ballot could not vitiate the
credible for the purposes of the Constitution, election given that a candidate had the liberty
the law, and the national expectation. to withdraw from the electoral contest even
one or two days before the elections, when it
Was the Presidential election held on 26th
would be quite impossible to remove his or
October, 2017 “marred with illegalities
her name from the ballot.
and irregularities?” if so, what were their
effects on the validity of the election? In determining the legal effect of
withdrawal by a candidate before an
Not every irregularity or procedural
election, what guidance was to be drawn
infraction is enough to invalidate an election.
from the pronouncements of the Supreme
The irregularities must be of such a profound
Court in Raila 2013?
nature as to affect the actual result, or the
integrity of an election, for a Court of law Paragraph 290 in Raila 2013 read:
to nullify the same. While the petition made
“Suppose, however, that the candidates,
far-reaching allegations of irregularities,
or a candidate who took part in the
the same had been effectively rebutted, or
original election, dies or abandons the
explained away in replying affidavits, and
electoral quest before the scheduled
submissions of counsel.
date: then the provisions of Article 138
What was the legal effect of the withdrawal (8) (b) would become applicable, with
of a Presidential election candidate before fresh nominations ensuing.” Had the
a repeat election? foregoing pronouncement not been
made obiter; had it been a ratio, it would
Neither the Constitution nor the Elections
have been made per incuriam, since
Act made provision for the withdrawal of a
article 138 (8) (b) of the Constitution
candidate from an election. The procedure
only contemplated three scenarios of a
for withdrawal of candidature was instead
8
cancellation of an election, namely: Constitution, section 55B of the Elections

Act, 2011 and Regulation 87 of the Elections
a) where no person has been
(General) Regulations, 2012. On that basis,
nominated as a candidate before
even though voters in 25 constituencies had
the expiry of the period set for the
not voted, the declaration of results by the
delivery of nominations;
Commission was in perfect accord with the
b) where a candidate for election as terms of the Constitution.
President, or Deputy-President,
dies on or before the scheduled What was the effect of the Election Laws
election date; or (Amendment) Act, 2017 on the conduct of
the Presidential election held on October
c) a candidate who would have been
26, 2017?
entitled to be declared elected
as President, dies before being At the time the cause of action arose, to
declared elected as President. wit, the October 26, 2017, the law then
Withdrawal of a candidate from the electoral applying was the Elections Act, 2011. The
contest was clearly not one of the scenarios amended laws did not become effective
contemplated by the Constitution, as a basis until November 2, 2017. In that context,
for the cancellation of an election. In the the common practice was that legislation
circumstances, the Court had to depart from should be effected prospectively and not
the decision in question. retrospectively; that is, laws should be
forward-looking and should not apply
What were the legal consequences of not backwards in time. Prospective application
holding a Presidential election in each of legislation is based on ancient Roman
constituency under article 138(2) of the and English common law. “Prospectivity”
Constitution? is also consistent with elemental notions of
Neither the State nor the IEBC bore fairness.
responsibility for failure of voting in certain The applicable election law, in respect of the
regions of the country. Such failure ought to conduct of the October 26, 2017 election
be attributed to unidentified private citizens was the Elections Act, 2011, the Elections
and political actors, who actively caused the Laws (Amendments) Act, 2017 (Act No. 34
offending situations, directly or indirectly. of 2017) not having come into effect as at
The validity of the fresh election, however, the time of that election, and the same not
could not be successfully challenged on that having had retrospective application.
ground alone.
Was section 83 of the Elections Act (as
The Presidential election could not be amended) unconstitutional?
held in certain constituencies because of
the threat of insecurity caused by violent Having taken into account all the submissions
demonstrations. In that regard, the IEBC on the question whether section 83 of the
invoked section 55B of the Elections Act, amended law was unconstitutional and
postponing the conduct of the repeat invalid, and being aware, that the amended
election to October 28, 2017.The IEBC was law was the subject of various pending
empowered by the Elections Act to postpone causes before the High Court, there was no
an election in a Constituency, County or reason to take away the jurisdiction of other
Ward, in circumstances specified by the Superior Courts, and determining issues
Act. However, there was a non-obstante [a pending thereat. However, the position could
‘none-the-less’ qualification] proviso to that be distinguished, from a matter arising in the
provision; the Commission may, if satisfied course of a Presidential election in regard to
that the result of the elections would not be which the Supreme Court had unqualified
affected by voting in the area in respect of jurisdiction, and where the issue essentially
which substituted dates have been appointed, related to a petition before the Court.
direct that a return of the elections be made. Whether fresh nominations ought to have
The Commission made its declaration despite been conducted following the annulment
the electorate in the 25 Constituencies not of the presidential election held on August
having voted pursuant to article 138 of the 8, 2017 and before holding the repeat
elections.
9
An election held under article 138(5) of the process as constantly recognized by the
Constitution was not a stand-alone election, national population. Only the failure of the
but rather, one anchored on an ‘initial’ conduct of such election would constitute
election that had been conducted and where lack of legitimacy – as it would occasion
no candidate met the constitutional threshold, such uncertainty and appearance of crisis
for being declared elected. Similarly, a fresh as would afflict the whole population in its
election conducted pursuant to article social, economic and political engagement.
140(3) was anchored upon the nullification
From the controlling factor of legitimacy,
of a Presidential election, which could have
the election would be perceived as credible,
been part of a general election; an election
in the absence of clear evidence that;
upon a vacancy occurring in the office of the
President; or an election held under article a. the bulk of it simply failed;
138(5) of the Constitution. It was therefore b. due procedure was not followed in the
not a stand-alone election, devoid of a conduct of election;
historical foundation.
c. someone other than IEBC conducted
The election held on October 26, 2017 the election;
was the outlaw of the nullification of the
Presidential election held on August 8, 2017. d. the procedures of vote counting were
The election of August 8, 2017 was itself a not followed;
General Election, which is held every second e. false results were announced, in place
Tuesday in August of every fifth year. It of the true outcome;
was also the second national election held
f. the voters were turned away from
under the Constitution of 2010. An objective
polling stations by IEBC, or by State
appreciation of the fresh Presidential election
agencies of power;
held on October 26, 2017 could only be
achieved if it was seen in that context, rather g. the motions of verification and
than in isolation from the General Election announcement of vote-outcome were
of August 8, 2017 and the processes leading not complied with.
to that earlier election.
None of these factors were at play or at play
What is the place of the Raila 2013 decision, in any significant manner.
and the Ekuru Aukot Judgment, in the
The October 26, 2017 elections met the
conduct of the fresh election?
threshold of credibility and legitimacy
There was no fault with the 1st and 2nd under the Constitution, certain anomalies
Respondents’ decision not to conduct fresh highlighted in other parts of the Judgment
nominations and the inclusion of all the notwithstanding.
August 8, 2017 candidates on the ballot
paper; it was a decision fully in keeping with
NJOKI NDUNGU, SCJ CONCURRING;
the Raila 2013, and later, the Ekuru Aukot
decision: that position was binding on them Whether Section 83 as amended by Section
at the time 9 of the Election Laws (Amendment) Act,
2017 was the law applicable in the judicial
What was the meaning and applicability
determination of the Presidential Election
of the term ‘legitimacy’ and ‘credibility’,
Petition
in the general context of a Presidential
election? Section 83 as amended by Section 9 of the
Election Laws (Amendment) Act, 2017
From the proper meaning of legitimacy, it
was the law applicable in the judicial
was not tenable to attribute lack of legitimacy
determination of the Presidential Election
to Presidential elections duly conducted
Petition.
by the terms of the Constitution and the
relevant statutes and regulations, and by Section 83 provided the determining
the constitutionally-designated authority, formula to any election Court adjudicating
strictly in compliance with the valid orders an election cause. As such, it also ought to
of the Supreme Court – election essential to be the applicable law in other election causes
the sustenance of the national governance before lower Courts.
10
Was section 83 of the Elections Act (as Petition dismissed:

amended) unconstitutional?
i. Petition No.2 of 2017, Hon. John
The question of consistency of Section Harun Mwau v. Independent Electoral
83 with the Constitution was distinctive and Boundaries Commission & 2
to that of other provisions in the same Others), as consolidated, dismissed.
Amendment Laws. Section 83 did not follow
ii. Petition No.4 of 2017, Njonjo
the electoral event as does the substratum
Mue and Anor v. the Chairperson
of the other provisions. Section 83 followed
of the Independent Electoral and
the declaration by a Judicial Officer, of an
Boundaries Commission & 3 Others,
election cause. It was an electoral cause’s
as consolidated, dismissed.
determining vector.
iii. The Presidential election of October
The impugned provision, its purpose and
26, 2017 upheld, as was the election
effect or the conduct of the Legislature
of the 3rd Respondent.
in enacting the Amendment Law did not
contravene the Constitution. The issue iv. All parties were to bear their costs.
therefore needed not to be retried by the
High Court.
“Freedom is not something that

one people can bestow on another
as a gift. Thy claim it as their
own and none can keep it from
them” - Kwame Nkrumah
11
Supreme Court
Constitutionality of the Mandatory Nature of the Death Sentence
provided under section 204 of the Penal Code
Francis Karioko Muruatetu & another V Republic
Petition No. 15 of 2015
Supreme Court of Kenya
Maraga CJ, Mwilu DCJ; Ojwang, Wanjala, Njoki AND Lenaola SCJJ
December 14, 2017
Reported by Robai Nasike Sivikhe
Constitutional Law- fundamental rights and discrimination- the right to equality and freedom
freedoms- right to a fair hearing- right to a from discrimination of convicts sentenced under
fair hearing viz-a-viz the aspect of mitigation section 204 of the Penal Code- whether convicts
upon meting a death sentence - the necessity sentenced pursuant to section 204 were not
of mitigation where a death sentence has been accorded equal treatment to convicts who were
imposed upon a person- whether a person sentenced under other sections of the Penal Code
facing the death sentence deserves to be heard in that did not mandate a death sentence- whether
mitigation because of the finality of the sentence- refusing or denying a convict facing the death
whether the mandatory nature of the death sentence the right to be heard in mitigation
sentence denies a person the right to a fair trial when those facing lesser sentences were allowed
with regard to mitigation- Constitution of Kenya, to be heard in mitigation was unjustifiable
2010, articles 25 (c), 48 and 50 (1); Penal Code, discrimination and unfair- Constitution of
section 204 Kenya, 2010, article 27
Constitutional Law- fundamental rights and Constitutional Law- interpretation and
freedoms- right to human dignity- right to application of the constitution- validity and
human dignity viz-a-viz the aspect of mitigation consistency of statutes in accordance with
upon meting a death sentence- where convicts the Constitution- the constitutionality of the
were subjected to the same mandatory sentence mandatory nature of the death sentence- whether
without the Courts considering their mitigating the mandatory nature of the death penalty
circumstances, their diverse characters and provided for under section 204 of the Penal Code
circumstances of the crime- whether imposing was unconstitutional- Constitution of Kenya,
a death sentence, which is final and irrevocable, 2010, articles 19 (3) (a), 20 (1) & (2), 25 (c), 27,
without an individual having any chance 28, 48 and 50 (1) & (2) (q)
to mitigate violated their right to dignity- Criminal Procedure- sentencing- death
Constitution of Kenya, 2010, article 28 sentence- the mandatory death sentence under
Constitutional Law- fundamental rights and section 204 of the Penal Code- provisions of
freedoms- right to a fair trial- the right to appeal the sentencing policy guidelines with regard to
to, or apply for review by, a higher court as the mandatory death sentence- where section
prescribed by law, if convicted- review of sentences 204 of the Penal Code that provided for the
of persons convicted under section 204 of the mandatory death sentence for murder was found
Penal Code that provided for the death sentence- to be inconsistent with the Constitution and
where appeals by persons convicted under section invalid to that extent- whether the sentencing
204 of the Penal Code were limited to conviction policy guidelines regarding the mandatory death
only- whether the mandatory nature of the death sentence was still applicable - what guidelines
sentence under section 204 of the Penal Code would apply with regard to mitigating factors
violated article 50 (2) (q) which provided for the in a re-hearing sentence for the conviction of a
right of a person to appeal to, or apply for review, murder charge- Sentencing policy guidelines,
by a higher Court if convicted- Constitution of Paragraphs 6.4, 6.5, 6.6, 6.7 & 6.8
Kenya, 2010, article 50 (2) (q) Criminal Procedure- sentencing- death
Constitutional Law- fundamental rights and sentence- mitigation where a mandatory death
freedoms- the right to equality and freedom from
12
sentence had been imposed- where murder convicts Constitutional Law- separation of powers
were subjected to the same (mandatory) sentence - enactment of laws- institutions that have
thereby treating them as an undifferentiated the power to enact laws- provision of a legal
mass- consideration of the differential culpability framework for the rights and treatment of
of different murder convicts when considering convicted persons- where there were no specific
whether or not to impose a death sentence provisions for the sentence of life imprisonment,
Constitutional Law- validity of laws- which was an indeterminate sentence- whether
constitutionality of the indeterminate life courts could define what constituted a life
sentence- whether the parties had sufficiently sentence or what number of years had to first be
argued and illustrated the particulars of why the served by a prisoner on life sentence before they
indeterminate life sentence should be declared were considered on parole- whether the Supreme
unconstitutional- whether the court could Court could fix a definite number of years of
determine the issue regarding the constitutionality imprisonment, subject to remission rules, which
of the indeterminate life sentence where the would constitute life imprisonment
parties had not canvassed the issue to the Court’s Constitutional Law- fundamental rights and
satisfaction- whether the indeterminate life freedoms- enforcement of fundamental rights and
sentence could be declared unconstitutional. freedom- where a law had been declared invalid
Constitutional Law- validity of laws- or inconsistent with the Constitution- where the
constitutionality of the provision of section 46 of mandatory death sentence had been declared
the Prisons Act which excluded prisoners serving unconstitutional- whether any remedies would
life sentences from being considered for remission- accrue to the Petitioners where the mandatory
whether the Court could consider the issue of death sentence was declared unconstitutional.
constitutionality of section 46 of the Prisons Act
despite the fact that it had been raised by Amici Brief Facts
Curiae and not to the disputes- whether the issue The appeal raised a fundamental legal issue
of the constitutionality of section 46 of the Prisons that had engaged many global jurisdictions
Act had been properly canvassed at the High in seemingly unending controversy: whether
Court and Court of Appeal- whether the Supreme or not the mandatory death penalty was
Court could declare section 46 of the Prisons Act unconstitutional.
unconstitutional because it excluded prisoners The Petitioners and others had been
serving life sentences from being considered for arraigned before the High Court for the
remission- Prisons Act, section 46. offence of murder. Upon their conviction,
Jurisdiction- jurisdiction of the Supreme Court- they were sentenced to death as decreed
jurisdiction of the Supreme Court to apply and by section 204 of the Penal Code. Their
interpret the Constitution- where the issues raised appeal to the Court of Appeal against both
before the Supreme Court had not been canvassed that conviction and sentence was dismissed.
at the High Court and Court of appeal- whether Aggrieved by that decision, they filed two
the issue of the constitutionality of section 46 of separate appeals in the instant Court which
the Prisons Act had been properly canvassed at had since been consolidated.
the High Court and Court of Appeal-whether the The gravamen of the Petitioners’ appeal was
Supreme Court could declare section 46 of the that the mandatory death sentence imposed
Prisons Act unconstitutional because it excluded upon them and the commutation of that
prisoners serving life sentences from being sentence by an administrative fiat to life
considered for remission imprisonment was both unconstitutional and
Jurisdiction- jurisdiction of the Supreme Court- therefore null and void. In the circumstances,
jurisdiction of the Supreme Court to apply and the Petitioners were entitled to damages the
interpret the Constitution- where the issues raised quantum of which the instant Court had to
before the Supreme Court had not been canvassed assess.
at the High Court and Court of appeal- whether The Petitioners’ case was that the mandatory
the court could determine the issue regarding nature of the death penalty under section 204
the constitutionality of the indeterminate life of the Penal Code jettisoned the discretion of
sentence where the parties had not canvassed the trial forcing it to hand down a sentence
the issue to the Court’s satisfaction- whether pre-determined by the Legislature thus
the indeterminate life sentence could be declared fouling the doctrine of separation of powers.
unconstitutional They submitted that the sentencing process
13
was part of the right to a fair trial enshrined still applicable

in article 50(2) of the Constitution. They viii. What guidelines would apply
contended that the mandatory death penalty with regard to mitigating factors
under section 204 of the Penal Code violated in a re-hearing sentence for the
that right in that it denied the trial Judge conviction of a murder charge?
discretion in sentencing. The Petitioners ix. Whether the indeterminate
further contended that article 50 (2) (q) of the life sentence could be declared
Constitution entitled any person who had unconstitutional.
undergone a criminal trial to appeal or seek x. Whether the Supreme Court
a review from a higher Court. That included could declare section 46 of the
a second appeal. However, as section 261 of Prisons Act unconstitutional
the Criminal Procedure Code limited second because it excluded prisoners
appeals to convictions only, if not set aside serving life sentences from being
by the first appellate court, the mandatory considered for remission
nature of the death sentence would violate xi. Whether the Supreme Court
the convicts’ rights to a fair hearing under could fix a definite number of
article 50 (2) (q) of the Constitution. years of imprisonment, subject
to remission rules, which would
Issues constitute life imprisonment
i. Whether the mandatory nature xii. Whether any remedies would
of the death sentence denied a accrue to the Petitioners where
person the right to a fair trial with the mandatory death sentence
regard to mitigation. was declared unconstitutional.
ii. Whether imposing a death
sentence, which is final and Held
irrevocable, without an individual 1. Constitutional provisions such as articles
having any chance to mitigate 19 (3) (a), 20 (1) & (2), 28, 48 and 50 (1)
violated their right to dignity. & (2) and provisions of the International
iii. Whether the mandatory nature of Covenant on Civil and Political Rights
the death sentence under section such as article 14 brought to the fore a
204 of the Penal Code violated number of principles. Those were
article 50 (2) (q) which provided
for the right of a person to appeal a. Rights and fundamental
to, or apply for review, by a higher freedoms belong to each
Court if convicted. individual.
iv. Whether refusing or denying b. The bill of rights applied to all
a convict facing the death law and bound all persons.
sentence the right to be heard
c. All persons have inherent
in mitigation when those facing
dignity which has to be
lesser sentences were allowed
respected and protected.
to be heard in mitigation was
unjustifiable discrimination and d. The State has to ensure access
unfair. to justice to all.
v. Whether the mandatory nature e. Every person is entitled to a
of the death sentence provided fair hearing
for under section 204 of the Penal
Code was unconstitutional. f. The right to a fair trial is non-
vi. Consideration of the differential derogable. For section 204
culpability of different murder of the Penal Code to stand, it
convicts when considering had to be in accord with those
whether or not to impose a death provisions.
sentence. 2. The trial process does not stop at convicting
vii. Whether the sentencing policy the accused. There was no doubt that
guidelines regarding the sentencing is a crucial component of
mandatory death sentence was a trial. It is during sentencing that the
14
court hears submissions that impacted right to fair trial is one of the cornerstones
on sentencing. This necessarily means of a just and democratic society, without
that the principle of fair trial has to be which the rule of law and public faith
accorded to the sentencing stage too. in the justice system would inevitably
collapse.
3. Pursuant to sections 216 and 329 of the
Criminal Procedure Code, mitigation is a 7. Section 204 of the Penal Code deprived
part of the trial process. Therefore, from the Court of the use of judicial discretion
a reading of those sections, the Court in a matter of life and death. Such law
ought to have taken into account the could only be regarded as harsh, unjust
evidence, the nature of the offence and and unfair. The mandatory nature
the circumstances of the case in order to deprived the Courts of their legitimate
arrive at an appropriate sentence. Those jurisdiction to exercise discretion
provisions were couched in permissive not to impose the death sentence in
terms. However, the Court of Appeal had appropriate cases. Where a court listened
consistently reiterated on the need for to mitigating circumstances but had,
noting down mitigating factors. Not only nonetheless, to impose a set sentence,
because they could affect the sentence the sentence imposed failed to conform
but also for futuristic endeavours such to the tenets of fair trial that accrued to
as when the appeal was placed before accused persons under article 25 of the
another body for clemency. Constitution which was an absolute
right. With regard to murder convicts,
4. What section 204 of the Penal Code was
mitigation is an important facet of fair
essentially saying to a convict was that he
trial.
or she could not be heard on why, in all
the circumstances of his or her case, the 8. Article 28 of the Constitution provided
death sentence should not be imposed that every person had inherent dignity and
on him or her, or that even if he or she the right to have that dignity protected.
was heard, it was only for the purposes It is for the Court to ensure that all
of the record as at that time of mitigation persons enjoy the right to dignity. Failing
because the Court had to impose the to allow a Judge discretion to take into
death sentence nonetheless, as illustrated consideration the convicts’ mitigating
by various Court of Appeal decisions. circumstances, the diverse character of
The Supreme Court could not decipher the convicts, and the circumstances of
the possible rationale for that provision. the crime, but instead subjecting them to
A person facing the death sentence the same (mandatory) sentence thereby
most deserved to be heard in mitigation treating them as an undifferentiated
because of the finality of the sentence. mass, violated their right to dignity.
5. Mitigation is an important congruent 9. The dignity of the person is ignored
element of fair trial. The fact that if the death sentence, which is final
mitigation was not expressly mentioned and irrevocable, is imposed without
as a right in the Constitution did not the individual having any chance to
deprive it of its necessity and essence mitigate. The Supreme Court could not
in the fair trial process. In any case, shut its eyes to the distinct possibility
the rights pertaining to fair trial of an of the differing culpability of different
accused pursuant to article 50(2) of the murderers. Such differential culpability
Constitution were not exhaustive. could be addressed by allowing judicial
discretion when considering whether or
6. The right to fair trial is not just a
not to impose a death sentence. A formal
fundamental right. It is one of the
equal penalty for unequally wicked
inalienable rights enshrined in article 10
crimes and criminals is not in keeping
of the Universal Declaration of Human
with the tenets of fair trial.
Rights, and in the same vein article
25(c) of the Constitution elevated it to a 10. Whilst the Constitution recognized
non-derogable right which could not be the death penalty as being lawful, it did
limited or taken away from a litigant. The not provide that when a conviction for
murder was recorded, only the death and fair hearing, the State through the
sentence would be imposed. Mitigation courts, ensured that all persons are able
has a place in the trial process with to ventilate their disputes. Access to
regard to convicted persons pursuant to justice includes the right to a fair trial.
section 204 of the Penal Code. It is during If a trial is unfair, one can not be said
mitigation, after conviction and before to have accessed justice. In this respect,
sentencing, that the offender’s version when a murder convict’s sentence can
of events could be heavy with pathos not be reviewed by a higher court he is
necessitating the Court to consider an denied access to justice which can not
aspect that could have been unclear be justified in light of article 48 of the
during the trial process calling for pity Constitution.
more than censure or on the converse,
14. Any law or procedure which when
impose the death sentence, if mitigation
executed culminates in termination of
revealed an untold degree of brutality
life, ought to be just, fair and reasonable.
and callousness.
As a result, due process is made possible
11. If a Court does not have discretion to take by a procedure which allows the Court
into account mitigating circumstances to assess the appropriateness of the death
it is possible to overlook some personal penalty in relation to the circumstances
history and the circumstances of the of the offender and the offence. The
offender which can make the sentence mandatory nature of that penalty runs
wholly disproportionate to the accused’s counter to constitutional guarantees
criminal culpability. Further, imposing enshrining respect for the rule of law.
the death penalty on all individuals
15. Any court dealing with the offence of
convicted of murder, despite the fact that
murder is allowed to exercise judicial
the crime of murder can be committed
discretion by considering any mitigating
with varying degrees of gravity and
factors, in sentencing an accused person
culpability fails to reflect the exceptional
charged with and found guilty of that
nature of the death penalty as a form
offence. To do otherwise would render
of punishment. Consequently, failure
a trial, with the resulting sentence under
to individualise the circumstances of
section 204 of the Penal Code, unfair
an offence or offender can result in the
thereby conflicting with articles 25
undesirable effect of ‘over-punishing’ the
(c), 28, 48 and 50 (1) and (2) (q) of the
convict.
Constitution.
12. A fair trial has many facets, and includes
16. Article 27 of the Constitution provided
mitigation and the right to appeal or
for equality and freedom from
apply for review by a higher Court as
discrimination since every person is
prescribed by law. Section 204 violated
equal before the law and has the right
article 50 (2) (q) of the Constitution as
to equal protection and equal benefit of
convicts under it were denied the right to
the law. Convicts sentenced pursuant
have their sentence reviewed by a higher
to section 204 were not accorded
Court – their appeal was in essence
equal treatment to convicts who were
limited to conviction only. There was no
sentenced under other sections of the
opportunity for a reviewing higher court
Penal Code that did not mandate a death
to consider whether the death sentence
sentence. Refusing or denying a convict
was an appropriate punishment in the
facing the death sentence, to be heard
circumstances of the particular offense
in mitigation when those facing lesser
or offender. The right to justice was also
sentences were allowed to be heard
fettered.
in mitigation was clearly unjustifiable
13. The scope of access to justice as enshrined discrimination and unfair. That was
in article 48 was very wide. Courts repugnant to the principle of equality
are enjoined to administer justice in before the law. Accordingly, section 204
accordance with the principles laid down of the Penal Code violated article 27 of
under article 159 of the Constitution. the Constitution.
Thus, with regards to access to justice
16
17. Section 204 of the Penal Code was penalty in paragraphs 6.4, 6.5, 6.6, 6.7
out of sync with the progressive Bill of and 6.8. As a consequence of the instant
Rights enshrined in our Constitution decision, paragraphs 6.4-6.7 of the
specifically; articles 25 (c), 27, 28, 48 and guidelines were no longer applicable. To
50 (1) and (2)(q). Therefore, that section avoid a lacuna, the following guidelines
could not stand, particularly, in light of with regard to mitigating factors were
articles 19 (3) (a) and 20 (1) & (2) of the applicable in a re-hearing sentence for
Constitution. In light of those provisions, the conviction of a murder charge:
the timing of the constitutional challenge a. age of the offender;
to section 204 of the Penal Code was b. being a first offender;
propitious and would succeed. c. whether the offender pleaded
18. Article 26 (3) of the Constitution guilty;
permitted the deprivation of life within d. character and record of the
the confines of the law. The Supreme offender;
Court was unconvinced that the wording e. commission of the offence
of that article permitted the mandatory in response to gender-based
death sentence. The pronouncement of violence;
a death sentence upon conviction was f. remorsefulness of the offender;
permissible only if there had been a fair g. the possibility of reform and social
trial, which is a non-derogable right. A re-adaptation of the offender;
fair hearing as enshrined in article 50 h. Any other factor that the Court
(1) of the Constitution had to be read to considers relevant.
mean a hearing of both sides. A murder 22. The guidelines in no way replaced
convict whose mitigation circumstances judicial discretion. They were advisory
could not be taken into account due and not mandatory. They were geared to
to the mandatory nature of the death promoting consistency and transparency
sentence could not be said to have been in sentencing hearings. They were
accorded a fair hearing. also aimed at promoting public
understanding of the sentencing process.
19. The mandatory nature of the death
That notwithstanding, paragraph 25 of
sentence provided for under section
the 2016 Judiciary Sentencing Policy
204 of the Penal Code long predated
Guidelines stated that where there were
any international agreements for the
guideline judgments, that was, decisions
protection of human rights. It is a colonial
from the superior courts on a sentencing
relic that had no place in Kenya today.
principle, the subordinate courts were
Whereas it is the duty of Parliament to
bound by it. It was the duty of the
make laws, it is the duty of the Court
court to keep abreast with the guideline
to evaluate, without fear or favour,
judgments pronounced. Equally, it was
whether the laws passed by Parliament
the duty of the prosecutor and defense
contravened the Constitution.
counsel to inform the court of existing
20. Human society is constantly evolving guideline judgments on an issue before it.
and therefore the law, which all civilized
23. The Petitioners had not sufficiently
societies have to live under, have to evolve
argued and illustrated the particulars
in tandem. A law that is caught up in a
of why the indeterminate life sentence
time warp will soon find itself irrelevant
should be declared unconstitutional.
and would be swept into the dustbins of
A critical issue such as that, where
history. Section 204 of the Penal Code
legislation was to be examined was
was inconsistent with the Constitution
deserving of the reasoned and well-
and invalid to the extent that it provided
thought arguments of the Petitioners, the
for the mandatory death sentence for
Director of Public Prosecution and other
murder.
Interested Parties or Amicus Curiae and
21. In 2016, the Judiciary of Kenya published input of the High Court and the Court of
Sentencing Policy Guidelines which Appeal. That would allow the Supreme
gave an analysis on the mandatory death Court to benefit from the reasoning of
17
those superior Courts and the parties 28. Although the Judiciary released elaborate
would not be disadvantaged by the and comprehensive Sentencing Policy
Supreme Court’s holding which would in Guidelines in 2016, there were no
effect make the instant Court a court of specific provisions for the sentence of
first and last instance. The submissions life imprisonment, because it was an
made had not canvassed the issue to the indeterminate sentence. Nevertheless,
Court’s satisfaction. Consequently, a it was not for the court to define what
determination on it could not be made. constituted a life sentence or what
number of years must first be served
24. Counsel for the Amici Curiae asked
by a prisoner on life sentence before
the Supreme Court to declare section
they were considered on parole. That
46 of the Prisons Act unconstitutional
was a function within the realm of the
because it excluded prisoners serving
legislature.
life sentences from being considered
for remission. The Supreme Court had 29. In Kenya and internationally, sentencing
limited the role and function of amici should not only be used for the
curiae. Any interested party or amicus purpose of retribution, it is also for the
curiae that signaled that he or she rehabilitation of the prisoner as well as
intended to steer the Court towards a for the protection of civilians who could
consideration of ‘new issues’ could not be harmed by some prisoners. A life
be allowed. Further, such issues were sentence should not necessarily mean
matters relating to the interpretation of the natural life of the prisoner; it can also
the Constitution, and they could not be mean a certain minimum or maximum
canvassed in the Supreme Court for the time to be set by the relevant judicial
first time, as though it was a Court of first officer along established parameters
instance. The Supreme Court recognized of criminal responsibility, retribution,
the hierarchy of the Courts in Kenya, rehabilitation and recidivism.
and their competence to resolve those
30. It was recommended that the Attorney
constitutional questions.
General and Parliament commence an
25. The Supreme Court could not delve enquiry and develop legislation on the
into the issue of the unconstitutionality definition of ‘what constituted a life
of section 46 of the Prisons Act because sentence’; that could include a minimum
none of the primary parties to the number of years to be served before a
dispute had raised it. That issue had also prisoner was considered for parole or
not been properly canvassed at the High remission, or provision for prisoners
Court and Court of Appeal. The Supreme under specific circumstances to serve
Court could not assume jurisdiction and whole life sentences. That would be in
address issues that had not gone through tandem with the objectives of sentencing.
the hierarchy of Courts. Such proposed legislation would enable
Kenya to comply with articles 2(6) of the
26. The life imprisonment sentence had not
Constitution which stated that any treaty
been defined under Kenyan law. It was
or convention ratified by Kenya would
assumed that the life sentence meant the
form part of the law of Kenya.
number of years of the prisoner’s natural
life, in that it ceased upon his or her death. 31. Comparative jurisprudence is persuasive
and there was no need to deviate from
27. The provisions on the rights of detained
the already established practice. The facts
persons as enshrined under article 51
in the instant case were similar to what
of the Constitution was considered in
had been decided in other jurisdictions.
order to determine whether the Supreme
Remitting the matter back to the High
Court can fix a definite number of years.
Court for the appropriate sentence
It was clear from those provisions that it
seemed to be the practice adopted
was the legislature, and not the Judiciary,
where the mandatory death penalty had
that was tasked with providing a legal
been declared unconstitutional. The
framework for the rights and treatment
appropriate remedy for the Petitioners in
of convicted persons.
the instant case was to remit the matter
18
to the High Court for sentencing. contemplated under article 26(3) of the
Constitution.
32. It was prudent for the same Court that
ii. The instant matter was remitted to
heard the instant matter to consider
the High Court for re- hearing on
and evaluate mitigating submissions
sentence only, on a priority basis, and in
and evaluated the appropriate sentence
conformity with the instant judgment.
befitting the offence committed by the
iii. The Attorney General, the Director of
Petitioners. The sentencing re-hearing
Public Prosecutions and other relevant
that was allowed, applied only for the two
agencies shall prepare a detailed
Petitioners. In the meantime, existing or
professional review in the context of the
intending petitioners with similar cases
instant judgment and order made with
ought not approach the Supreme Court
a view to setting up a framework to deal
directly but await appropriate guidelines
with sentence re-hearing cases similar
for disposal of the same. The Attorney
to that of the Petitioners. The Attorney
General was directed to urgently set up
General was granted twelve (12) months
a framework to deal with sentence re-
from the date of the Judgment to give a
hearing of cases relating to the mandatory
progress report to the Court on the same.
nature of the death sentence - which was
iv. The judgment was to be placed before
similar to that of the Petitioners in the
the Speakers of the National Assembly
instant case.
and the Senate, the Attorney-General,
and the Kenya Law Reform Commission,
Orders attended with a signal of the utmost
i. The mandatory nature of the death urgency, for any necessary amendments,
sentence as provided for under section formulation and enactment of statute
204 of the Penal Code was declared law, to give effect to the judgment on the
unconstitutional. For the avoidance mandatory nature of the death sentence
of doubt, the order did not disturb and the parameters of what ought to
the validity of the death sentence as constitute life imprisonment.
The Right of Audience of the Attorney General in Matters of Public

Interest.
Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2
others & Attorney General (as intended amicus curiae) [2017] eKLR
Petition 1 of 2017
Supreme Court
Maraga, CJ. & P; Mwilu, DCJ & V-P; Ibrahim, Ojwang, Wanjala, Njoki & Lenaola, SCJJ
September 13, 2017
Reported by John Ribia & Amazon Koech
Constitutional Law- Office of the Attorney of the Attorney General Act, section 7.
General- Powers of the Attorney General-
Civil Practice and Procedure – joinder of
right of audience of the Attorney General in
parties – application by the Attorney General
proceedings that raise matters of public interest -
to be enjoined as amicus curiae – application to
Constitution of Kenya, (2010) article 156; Office
be enjoined as amicus curiae in a presidential
of the Attorney General Act, section 7
election petition – guiding principles applicable
Election Law - Presidential Election Petition – in determining an application by the Attorney
joinder of parties – application by the Attorney General to be enjoined as amicus curiae
General to be enjoined as amicus curiae – – right
Relevant provisions of the law
of audience of the Attorney General in matters of
public interest - authority of the Attorney General Constitution of Kenya, 2010
to be enjoined in suits which a government is not Article 156 (1) There is established the office
a party to - what were the factors the Office of Attorney-General.
of the Attorney General had to satisfy so
as to be enjoined as amicus curiae in a suit - (2) The Attorney-General shall be nominated
Constitution of Kenya, (2010) article 156; Office by the President and, with the approval of
19
the National Assembly, appointed by the proceedings; and

President.
(b) satisfy the court, tribunal or any other
(3) The qualifications for appointment administrative body of the public interest
as Attorney-General are the same as for or public property involved, and comply
appointment to the office of Chief Justice. with any direction of the court, tribunal or
any such other administrative body on the
(4) The Attorney-General—
nature of pleadings or measures to be taken
(a) is the principal legal adviser to the for purposes of giving effect to the effective
Government; discharge of the duties of the Office.
(b) shall represent the national government (3) Where a suit, inquiry or any other
in court or in any other legal proceedings to proceedings is pending before a court,
which the national government is a party, tribunal or any other administrative body to
other than criminal proceedings; and which the Attorney-General does not have
(c) shall perform any other functions a right of audience, it shall be sufficient for
conferred on the office by an Act of the Attorney-General to file a certificate of
Parliament or by the President. the intention of the Attorney-General to be
joined in the proceeding.
(5) The Attorney-General shall have
authority, with the leave of the court, to (4) The court, tribunal or any such
appear as a friend of the court in any civil administrative body shall, upon receipt of a
proceedings to which the Government is not certificate under subsection (3), enjoin the
a party. Attorney-General in the proceedings.
(6) The Attorney-General shall promote, Brief Facts

protect and uphold the rule of law and defend The Attorney General of the Republic of Kenya
the public interest. sought to be enjoined to the proceedings as
(7) The powers of the Attorney-General may Amicus Curiae in the Presidential Election
be exercised in person or by subordinate Petition on the basis that he had both a
officers acting in accordance with general or Constitutional and statutory obligation to
special instructions. assist the Court in matters involving complex
and legal questions and to place materials
Office of the Attorney General Act, 2012 and expert research that would aid in fair,
Section 7 just and impartial adjudication of the issues
in dispute.
Audience by Attorney-General in matters
of public interest, The Petitioners opposed the application
on grounds that the Applicant having been
(1) Despite the provisions of any written law
admitted as amicus in the 2013 Presidential
to the contrary or in the absence of any other
Petition took a partisan view supporting the
written law, the Attorney-General shall have
1st and 3rd Respondents Case.
the right of audience in proceedings of any
suit or inquiry of an administrative body Issues
which the Attorney General considers— i. What were the guiding principles
(a) to be of public interest or involves public applicable in determining an application
property; or to be enjoined as amicus curiae?
(b) to involve the legislature, the judiciary or ii. Whether the Attorney general could raise
an independent department or agency of the the issue of how the IEBC conducted
Government. the election in the amicus brief; an issue
which he had previously raised and
(2) In the exercise of the powers of the which had been determined by the Court
Attorney-General under subsection (1), the of Appeal in the case of IEBC v Maina Kiai
Attorney-General shall— & 4 Others [2017] eKLR
(a) notify any court, tribunal or any other Held
administrative body of the intention to be
1. The role played by the Attorney General
enjoined to the suit, inquiry or administrative
as an institution within the Executive
20
Arm of Government in Kenya was an an integral part of the National Executive

important one as enumerated by article and it bore the privilege of Executive
156 of The Constitution of Kenya,2010 Authority but was bound by the necessary
that established the office of the and sacred strictures of exercise of that
Attorney General and gave the office of power. It had to be exercised in a manner
the Attorney General the authority to compatible with the principle of service
appear as a friend of the Court in civil to the people of Kenya, for their well-
proceedings to which the Government being and benefit pursuant to article
was not a party with leave of the Court 129(2).
2. Article 156(4)(c) of the Constitution and 4. The Attorney General satisfied the
the Office of the Attorney General Act, Supreme Court that issues of public
2012, outlined the function and powers interest were involved in the instant
of the Attorney General. Key among suit. The Attorney General elected to be
them being the right of audience of the enjoined in the proceedings as a friend
Attorney General before the Courts in of the Court. The Attorney General’s
matters of public interest. Section 7 of mandate was to be assessed against the
the Office of the Attorney General Act following principles:
granted the Attorney- General the right a. An amicus brief should be limited to
of audience in proceedings of any suit, legal arguments.
that involved the legislature, the judiciary b. The relationship between amicus
or an independent department or agency curiae, the principal parties and the
of the government. The Attorney General principal arguments in an appeal, and
also had the power to notify any court, the direction of amicus intervention,
tribunal or any other administrative body ought to be governed by the principle
of the intention to be enjoined to the suit, of neutrality, and fidelity to the law.
inquiry or administrative proceedings; c. An amicus brief ought to be made
and satisfy the Court, Tribunal or any timeously, and presented within
other administrative body of the public reasonable time. Dilatory filing of
interest or public property involved, and such briefs tends to compromise
comply with any direction of the court, their essence as well as the terms of
tribunal or any such other administrative the Constitution’s call for resolution
body on the nature of pleadings or of disputes without undue delay.
measures to be taken for purposes of The Court may therefore, and on a
giving effect to the effective discharge of case- by- case basis, reject amicus
the duties of the Office. briefs that do not comply with this
3. The instant proceedings involved issues principle.
of great public interest. The complex d. An amicus brief should address
interplay of law and fact presented in the point(s) of law not already addressed
instant case touched on the sovereignty by the parties to the suit or by other
of the people and the inalienable right of amici, so as to introduce only novel
every Kenyan citizen to determine the aspects of the legal issue in question
form of governance for Kenya. Millions that aid the development of the law.
of Kenyan citizens participated in the e. The Court may call upon the
General Elections held on August 8, 2017. Attorney- General to appear as
Despite being one of Kenya’s highest amicus curiae in a case involving
voter outcome statistics, it preceded a issues of great public interest. In such
lengthy period of electoral law reform instances, admission of the Attorney-
culminating in Chapter Seven of the General is not defeated solely by the
Constitution of Kenya, 2010. Elections, subsistence of a State interest, in a
properly conducted, represent the matter of public interest.
people’s will and it enables the exercise f. Where, in adversarial proceedings,
of their sovereign power through parties allege that a proposed amicus
democratically elected representatives. curiae is biased, or hostile towards
The Office of the Attorney General was one or more of the parties, or where
21
the applicant, through previous proposed amicus role, is a factor to be

conduct, appears to be partisan on taken into consideration, it is not the
an issue before the Court, the Court determining factor.
will consider such an objection by 5. The Court, which is the custodian of rules
allowing the respective parties to be of validity, propriety and fair play under
heard on the issue the Constitution and the law, remains in
g. An amicus curiae is not entitled to charge, in regulating the precise role the
costs in litigation. In instances where Attorney-General could play if admitted
the Court requests the appearance of as amicus curiae. While the Attorney
any person or expert as amicus, the General would enrich the material placed
legal expenses may be borne by the before the instant Court, on issues of law,
Judiciary. relevant in determining the Petition, the
h. The Court would regulate the Court had to guard against granting the
extent of amicus participation Attorney General leave to address all
in proceedings, to forestall the issues proposed.
degeneration of amicus role to
partisan role. 6. Permitting the Attorney General to
i. In appropriate cases and at its address the issue of how the IEBC
discretion, the Court could assign conducted the presidential election,
questions for amicus research and which the Attorney General had
presentation. addressed as amicus curiae in the case of
j. An amicus curiae shall not participate IEBC v Maina Kiai & 4 Others [2017] eKLR
in interlocutory applications, unless would, with respect, be allowing the
called upon by the Court to address Attorney General to re-litigate issues in a
specific issues. matter to which he was an active party to
the adversarial proceedings and in which
k. The applicant ought to raise any
he preferred a clear position for or against
perception of bias or partisanship,
a party which was also before the instant
by documents filed, or by his
Court, directly or by association. That
submissions.
bore the risk of prejudicing the Parties
l. The applicant ought to be neutral concerned negating the core principle
in the dispute, where the dispute is that justice must not only be done, but be
adversarial in nature. seen to be done.
m. The applicant ought to show that
7. Where, in adversarial proceedings,
the submissions intended to be
parties allege that a proposed amicus
advanced will give such assistance
curiae is biased, or hostile towards one
to the Court as would otherwise not
or more of the parties, or where the
have been available. The applicant
Applicant, through previous conduct,
ought to draw the attention of the
appears to be partisan on an issue before
Court to relevant matters of law or
the Court, the Court will consider such
fact which would otherwise not have
an objection by allowing the respective
been taken into account. Therefore,
parties to be heard on the issue.
the Applicant ought to show that
there was no intention of repeating 8. Due to the strict bounds of time within
arguments already made by the which the Court is to hear and determine
parties. And such new matter as the the Petition, Parties did not have
applicant sought to advance, had to be adequate time to respond to the Attorney
based on the data already laid before General’s brief before a determination on
the Court, and not fresh evidence. it. To avert the risk, the specific issue of
n. The Applicant ought to show how the IEBC conducted the presidential
expertise in the field relevant to the election, was to be expunged from the
matter in dispute, and in that regard, amicus brief.
general expertise in law does not 9. The other questions addressed in the
suffice. Attorney General’s amicus brief were
o. Whereas consent of the parties, to pertinent to the instant case. Since the
22
2013 General Elections, the electoral of the Court. The amicus brief addressed
jurisprudence set by this and other Courts itself to pure issues of law and in a clear,
inspired electoral law reform in various concise way. The role of interpretation
aspects. The Attorney General was part and application of the law to the facts in
of that process and brought a critical the case however rested with the Court.
originalism’s perspective regarding the
Application allowed.
process to the proceedings, as a friend
“The forces that unite us are intrinsic and greater

than the superimposed influences that keep us apart.”
Kwame Nkrumah
23
Court of Appeal
The Validity and Legality of a Constitutional Provision Cannot be
Challenged by any Court
Attorney General & another v Andrew Kiplimo Sang Muge & 2 others [2017] eKLR
Civil Appeal 147 of 2017
Court of Appeal at Nairobi
P Waki, R Nambuye and W Ouko, JJA
November 10, 2017
Reported by Ribia John
Constitutional Law - interpretation of the the Constitution – where the High Court had
Constitution - interpretation of articles 177 (1) questioned the validity of a constitutional provision
(a) and 177 (4) of the Constitution - whether - whether the High Court had the jurisdiction to
there was a conflict between article 177 (1) (a) question the validity of Constitutional provisions
which provided that election of MCAs be held – Constitution of Kenya, 2010 article 2 and 165.
on the same date as the election of Members of
Labour law – security of tenure – security of
Parliament on the 2nd Tuesday of August of every
tenure of Members of County Assemblies - under
fifth year and article 177 (4) which provided for
what circumstances would security of tenure of
the term of the MCAs as a period of five years
Members of County Assemblies be deemed to be
- Constitution of Kenya, 2010, articles177 (1)(a),
violated - whether security of tenure included the
177(4) and 194(1)(f).
right to continue attaining the perks of public
Constitutional Law – supremacy of the office where the term of office had prematurely
Constitution – constitutionality of constitutional expired.
provisions - whether constitutional provisions
Labour Law – legitimate expectation – legitimate
could be challenged for being inconsistent with
expectation of persons holding elective office
the Constitution - whether one provision of the
- whether a person serving in an elective office
Constitution could be superior or inferior to
had a legitimate expectation to hold office until
another clause of the Constitution – Constitution
the end of the term - whether article 177(4) of
of Kenya, 2010 article 2.
the Constitution vested in MCAs a constitutional
Constitutional Law – elections – general right with a legitimate expectation to hold office
elections –date for general elections -When in for five years - whether a premature end to
the calendar does an election cycle under the the terms of MCAs occasioned by the August 8,
2010 Constitution begin and end - rationale and 2017 general election violated their legitimate
justification for the adoption of the formula “the expectation and entitled MCAs to an award in
second Tuesday in August, in every fifth year” damages – Constitution of Kenya, 2010 article
in articles 101,136(2) (a), 177(1)(a) and 180(1) 177(4).
of the Constitution as the date on which general
Labour Law – employment – employment of
elections would be held – Constitution of Kenya,
elected persons - whether the employment of an
2010 articles 101, 136(2) (a), 177(1)(a) and 180(1).
elected leader differed qualitatively from other
Constitutional Law - fundamental rights and forms of employment.
freedoms - right to property-whether holding the
Labour Law- pension entitlement – pension in
elections for the position and office of the MCAs
respect of an anticipated period in which no service
on August 8, 2017, would constitute deprivation
was rendered - forfeiture of pension - whether in
of their property without compensation - whether
law there is a right to pension in respect of an
the MCAs were entitled to damages for loss
anticipated period in which no service has been
of income for their reduced term of service -
actually rendered.
Constitution of Kenya, 2010, articles 38(3)(c),
177(1)(a), and 177(4). Constitutional Law – interpretation of
the Constitution – principles applicable in
Jurisdiction – jurisdiction of the High Court
interpreting the Constitution - presumption
– jurisdiction of the High Court to interpret
against absurdity - whether an interpretation
24
of the Constitution that results in one provision jurisdiction to question the validity
of the Constitution being held to be superior to of Constitutional provisions.
another clause of the Constitution is an absurd iii. Whether constitutional provisions
result. could be challenged for being
Brief Facts inconsistent with the Constitution.
iv. Whether one provision of the
The instant Appeal was filed by the
Constitution could be superior or
Independent Electoral and Boundaries
inferior to another clause of the
Commission (IEBC) and the Attorney
Constitution.
General against a decision of the High
Court that held that the general election v. Principles that apply when
date appointed by IEBC as August 8, 2017, interpreting Constitutional
with regard to the election of Members provisions.
of the County Assemblies (MCAs) was vi. When on the calendar does an
unconstitutional as it would reduce the term election cycle under the Constitution
of the MCAs by 8 months. The Respondents of Kenya, 2010 begin and end.
herein were the Petitioners at the High vii. Rationale and justification for the
Court and represented the MCAs. In its adoption of the formula “the second
decision the High Court held that the loss Tuesday in August, in every fifth
of tenure was as a result of an apparent year” in articles 101,136(2) (a), 177(1)
conflict between articles 177(1)(a) and article (a) and 180(1) of the Constitution as
177(4) of the Constitution. Consequently, the date on which general elections
the High Court remedied MCAs in an award would be held.
of damages for violation of their right to
viii. Whether a person serving in an
property occasioned by the loss of income
elective or public office had a
for the uncompleted period of the tenure of
legitimate expectation to hold office
office.
until the end of the term.
Aggrieved by the decision, the Appellants ix. Whether article 177(4) of the
filed the instant appeal where they claimed Constitution vested in MCAs a
that the Trial Court failed to harmoniously constitutional right with a legitimate
interpret articles 177(1)(a) and 177(4) expectation to hold office for five
of the Constitution and the rest of the years.
Constitution as a whole. The Appellants also
x. Whether a premature end to the terms
claimed that it was erroneous for the High
of MCAs occasioned by the August 8,
Court to hold that conducting the county
2017 general election violated their
assembly elections on August 8, 2017 would
legitimate expectation and entitled
constitute a deprivation of property without
MCAs to an award in damages.
compensation; and that serving MCAs would
suffer loss and injury from the premature xi. Whether in law there is a right to
end of their term of office for which they pension in respect of an anticipated
were entitled to damages period in which no service has been
actually rendered.
Issues
xii. Whether the employment of an
i. Whether there was a conflict between elected leader differed qualitatively
article 177 (1) (a) of the Constitution from other forms of employment.
which provided that election of xiii. Under what circumstances would
MCAs be held on the same date as the security of tenure of Members of
election of Members of Parliament County Assembly be deemed to be
on the 2nd Tuesday of August of violated.
every fifth year and article 177 (4) of
xiv. Whether security of tenure included
the Constitution which provided for
the right to public office where the
the term of the MCAs as a period of
term of office had expired.
five years.
xv. Whether the premature end of
ii. Whether the High Court had the
the terms of MCAs occasioned by
25
conducting the County Assembly supreme law by articles 2(1) and (4)
elections on August 8, 2017 would of the Constitution. No court could
constitute a deprivation of property question the validity or legality of any
without compensation. of its provisions and any law that was
Relevant Provisions of the Law inconsistent with it was void to the extent
of the inconsistency.
Constitution of Kenya, 2010
Articles 177(1)(a) 4. The Constitution could not subvert
Membership of county assembly itself. No constitutional provision is
superior or inferior to another. They are
(1) A county assembly consists of—
complementary and must be read as an
(a) members elected by integrated and cohesive whole.
the registered voters of 5. The Constitution or a statute ought to
the wards, each ward be construed in accordance with the
constituting a single intention of Parliament or the people. The
member constituency, object of all interpretation of a written
on the same day as instrument is to discover the intention of
a general election of its author as expressed in the instrument.
Members of Parliament, The essence of construction as a whole is
being the second Tuesday that it enables the interpreter to perceive
in August, in every fifth that a proposition in one part of the act
year; is by implication modified by another
Article 177(4) provision elsewhere in the Act.
Membership of county assembly 6. Rules that apply to interpretation of the
(4) A county assembly is elected for a Constitution include the presumption
term of five years. against absurdity that mean that a court
Held can avoid a construction that produced
an absurd result. The presumption
1. Although the trial Court properly directed against unworkable or impracticable
itself on article 259 of the Constitution result that means that a court should find
and applied the correct interpretation against a construction which produces
of the Constitution, appreciating the unworkable or impracticable result.
import of article 2 on the supremacy of The presumption against anomalous
the Constitution, it however went off or illogical result, that means that a
on a tangent by its ultimate conclusion court should find against a construction
that articles 177(1)(a) and 177(4) were that creates an anomaly or otherwise
inconsistent with each other. The effect produces an irrational or illogical result.
of that finding was that, in accordance The presumption against artificial result
with article 177(4) the term of MCAs that means that a court is to find against
would end on the March 5, 2018 and a construction that produces artificial
therefore to hold an election for them result. The principle that the law should
on August 8, 2017, as required by article serve public interest means that the
177(1)(a) would be unconstitutional as it court should strive to avoid adopting a
would amount to a violation of property construction which is in any way adverse
rights of MCAs contrary to article 40 of to public interest, economic, social and
the Constitution. political or otherwise.
2. The two articles in question must truly 7. In considering those principles, and from
mean Ex facie (on the face of it), that a reading of articles 177(1)(a) and 177(4)
MCAs were to be elected on the same day of the Constitution and a reading of the
as Members of Parliament at a general Constitution holistically; there was no
election; that such election had to be contradiction in terms or application.
held on the second Tuesday in August, Any other construction would produce
in every fifth year; and further, that the an absurd result or have the tendency
term of office of MCAs was five years. of one provision destroying the other,
3. The Constitution was ordained as the instead of sustaining each other.
26
8. While article 177(1)(a), just like articles the law.

101(1) and 180(1) of the Constitution 11. The last general election before the
contemplated that elections for all promulgation of the 2010 Constitution
elective posts were to be held on the same was preceded by the dissolution of
day, article 177(4) stipulated a 5 year- Parliament on October 22, 2007. Those
term for MCAs. Both provisions had to elections were held on December 27,
be read and interpreted in harmony and 2007. But following the Post- Election
as an integral whole ensuring that no Violence that ensued, the parliamentary
one particular provision overrides or and civic terms commenced on January
supplants the other. 15, 2008 and ended on January 14, 2013
9. The construction of the two articles (L.N No.1 of 2008), by which time Kenya
employed by the trial Court did not meet had promulgated the 2010 Constitution.
the principles discussed. The consequence The next elections ought to have been
was that it instead produced an absurd held, as the previous ones, in the month
result, that one article of the Constitution of December (of 2012) but for sections
was inconsistent with another; that 9 and 10 of the sixth schedule to the
article 177(4) vested in MCAs a Constitution, they were conducted in
constitutional right with a legitimate accordance with those sections which
expectation to hold office; and that that directed that the date for the first general
right was violated, entitling MCAs to an election under the Constitution was fixed
award in damages. That construction to be held within 60 days from the end of
was adverse to public interest and the term of the National Assembly which
ignored Kenya’s Constitution making was on January 15, 2013.
history. It did not consider that the two 12. Section 10 of the sixth schedule to the
provisions were dealing with different Constitution contemplated that the
occasions; one with the transition from life of the National Assembly existing
one constitutional order to another and immediately before the effective
the other concerned with the future date, being a creature of the repealed
elections after the transition. Constitution, would continue as the
10. Prior to the promulgation of the 2010 National Assembly despite the 2010
Constitution, in terms of section 40 of Constitution until the end of its life. Upon
the repealed Local Government Act, Cap that event the elections were to be held
265, the terms of Councillors, who were within sixty days after the dissolution.
the predecessors of MCAs, depended 13. The term of the Tenth Parliament ended
on whether they were nominated, on January 15, 2013. Sixty days from
appointed or elected. Those nominated January 15, 2013 placed the first general
by the Minister would serve for five election under the new Constitution on
years or such shorter period as may be March 15, 2013. It should have followed
specified by the Minister at the time of that the second general election would
nomination. It was also in the Minister’s have been scheduled for March 4, 2018,
discretion to terminate the nomination but for the provisions of articles 101(1),
of such a councilor by notice in writing. 102(1), 136(2), 177(1) and 180(1) of
On the other hand the term of office of an the Constitution which cumulatively
appointed councilor was also five years or provided that the general election of
such shorter period as would be specified the President, Members of Parliament,
by the Council which appointed him. Governors and MCAs after the first
Thirdly the term of office of the elected elections would all be held on the same
councilors would be five years. Only the day, being the second Tuesday in August,
last category of elected Councillors had in every fifth year.
a fixed term of five years, which term
14. Applying the formula for computing
expired on the eve of the general election
time provided under article 259(5) of
as historically scheduled every five years.
the Constitution that provided that the
The terms of the other two categories
period of time ended at the beginning
would be terminated earlier by the
of the date of the relevant year that
Minister or Council, in accordance with
27
corresponded to the date on which 18. The approach to define precisely the
the period began, it followed that each date of election as adopted in the 2010
election year began in August every Constitution was not unique to Kenya.
second Tuesday and ended on the eve In the context of past practice, where
of the second Tuesday in August of the elections had traditionally been held
subsequent year to make 1 year. after every five years in the month of
15. Counting 365 days for 1 year and taking December, that is, 1992, 1997, 2002
into consideration the exact month from and 2007, though nothing in law fixed
one year to the subsequent year, the 1st December as the election month, that the
year would be counted from August 8, people wanted to maintain the five year
2017 to August 8, 2018; 2nd year from election cycle, but imposing a definite
August 8, 2018 to August 8, 2019; 3rd and predictable election date.
year from August 8, 2019 to August 8, 19. A series of events occasioned the
2020; 4th year would be from August 8, reduction of the term of MCAs by
2020 to August 8, 2021; 5th year would approximately 8 months. Those events
be from August 8, 2021 to August 8, 2022. included the Post - Election Violence
“The second Tuesday in August in every that ensued immediately after the
fifth year”, after the elections of August 8, 2007 elections, which was resolved by
2017 would take the next general election the formation of the Grand Coalition
date to August 11, 2022. Government on February 28, 2008.
16. The trial Court’s view that it would be 20. There was some delay in dissolving
impossible to give effect to article 177(4) Parliament in 2012 to pave way for the
of the Constitution and to maintain the first general election. The sixth schedule
election on the same day as a general to the Constitution anticipated that,
election of Members of Parliament, within sixty days of the dissolution of
being the second Tuesday in August, in Parliament, the first general election
every fifth year ignored the factors that under the new Constitution would be
caused the delay in the holding of the first held at the same time for all political
elections under the 2010 Constitution to elective positions. By complying with the
which no one could be blamed. The trial formula “the second Tuesday, in August
Court made reference to article 295(5) of of every fifth year” and holding the
the Constitution but failed to accurately second elections on August, 8 2017, the
apply it to the facts in the matter. five-year election cycle for all political
17. There was sufficient historical elective positions had once more been
justification for the adoption of the restored.
formula “the second Tuesday in 21. Those peculiar circumstances
August, in every fifth year” in articles notwithstanding, articles 177(1)(a) and
101,136(2) (a), 177(1)(a) and 180(1) of 177(4) could not, as the trial Court
the Constitution. Section 59 of the erroneously held, be construed to be in
Constitution of Kenya (repealed) vested conflict or to contradict each other. The
in the President the sole power to dissolve award of damages for the unexpired term
and prorogue Parliament. Elections of MCAs was based on misapplication of
could not be called unless the President the law.
had dissolved Parliament. During that 22. There were many questions that arose
period the election date was regarded from the trial Court’s determination
as the Executive’s secret weapon, that MCAs who were in office before
unleashed only at a time appropriate to the elections of August 8, 2017 were
the Executive. It was evident from the entitled to be compensated for loss of
archives of Parliament that, because of office for the unserved period. How
that, the clamour for a fixed election date were the MCAs expected to serve for
was already growing as far back as 1995. the period of 8 months if elections were
That clamour was sustained throughout held, as required by the Constitution, on
the early periods of the constitution the August 8, 2017? Would the monthly
making process. remuneration of both the MCA who
28
was voted out and the incumbent for the the government will have to become one
same job not result in a nugatory public great pension establishment on which to
financial expenditure? quarter a host of sinecures.
23. There was no such a thing as legitimate 27. There is no right to pension in respect
expectation to hold, to the end of its of an anticipated period in which no
term, a public or elective office since a service has been actually rendered. In
public office is not the property of the such period there were no contingents or
office-holder. Public offices are created accrued rights.
in the interests of the general public, 28. The electoral reforms introduced by
and not for the benefit of any individual. the Constitution of Kenya, 2010 were
No one in possession of an office has a aimed at ensuring a regular, free and
constitutional right to remain therein for fair exercise of the right to vote. The
the full period of the term for which he definite and predictable election date
was elected. (“the second Tuesday in August of every
24. Specifically the employment of an fifth year”) was intended to champion
elected leader differs qualitatively from article 38 which provided for political
other forms of employment. Under rights of the citizens. Article 101 (1) as
article 194 of the Constitution, an MCA read with articles 136 (2), 177(1), 177(4),
could vacate office, inter alia, at the end and 180(1) of the Constitution ensured
of the term of the county assembly; or such regularity by making certain that
if he died; or removed from office; or if the election date remained the same for
he resigned; or became disqualified for all the six elective seats.
election on grounds specified in article 29. The people considered the importance,
193(2) of the Constitution. If they could convenience and the cost-effectiveness
leave office before the expiration of the of holding general elections together
term of the office, it could not be said to for all positions once every fifth year
be entitled to be compensated should his from the last general election. The
term be interfered with in accordance making and implementation of a new
with the law. Constitution must result in many
25. Security of tenure in public office simply transitional challenges and sacrifices.
means that a public officer will not be The 2010 Constitution was no exception.
suspended or removed or dismissed Section 24 of the sixth schedule to the
except for cause as provided by law and Constitution provided the transitional
after due process. It can not be expanded tenure of the Chief Justice in office
to grant a right to public office. Security immediately before the effective date. He
of tenure is only violated if an individual was required to vacate office within six
is removed from position without months after the effective date, but could
sufficient cause and due process as elect either to retire from the Judiciary;
provided by law. or subject to vetting, could choose to
26. Promised compensation for services continue to serve on the Court of Appeal.
actually performed and accepted during The Chief Justice who was in office on the
the continuance of the particular agency effective date opted to retire on February
can undoubtedly be claimed, both upon 27, 2011.
principles of compact and equity, but to 30. Despite articles 160, 167 and 168 of the
insist beyond that on the perpetuation Constitution, Parliament was to enact
of a public policy either useless or legislation within one year after the
detrimental, and upon a reward for acts effective date to establish mechanisms
neither desired nor performed, will and procedures for vetting the suitability
appear to be reconcilable with neither of all judges and magistrates in office on
common justice nor common sense. the effective date to continue to serve.
The establishment of such a principle 11 out of 55 judges and 14 out of 298
will arrest necessarily everything like magistrates were found unsuitable and
progress or improvement in government, removed from the service of the Judiciary.
or if changes are to be ventured upon, 31. The Attorney-General and the Auditor-
29
General, on the other hand were to 101,136, 177(1) (a) and 180(1) at the altar
continue in office for a period of no more of article 177(4) of the Constitution.
than 12 months after the effective date. 33. The declarations that conducting the
For the other existing state offices the county assembly elections on August 8,
transitional provisions stipulated that 2017 would constitute a deprivation of
a person who immediately before the property without compensation; and
effective date was in an office established that serving MCAs would suffer loss
by the repealed Constitution would on and injury from the premature end of
the effective date continue to hold or act their term of office for which they were
in that office for the unexpired period, if entitled to damages, were made in error.
any, of the term of the person.
Appeal allowed.
32. To the extent that the trial Court declared
that there was a conflict between two Orders:
constitutional provisions (articles 177(4) i. Judgment of the High Court of April 27,
and 177(1)), and raising one provision 2017 set aside and substituted with an
on a high pedestal than the other, such order dismissing High Court Petition No.
a declaration could not stand. The 576 of 2015 as consolidated with Petition
Constitution is the supreme law and its No. 118 of 2016 and No. 148 of 2016.
validity or legality can not be challenged
ii. Cross Appeal dismissed
by or before any court. Only statutes
and other laws can be challenged for iii. No order as to costs
being inconsistent with the Constitution
and not any of its articles. It is an
interpretation that destroyed articles
Magistrates’ Courts have jurisdiction to hear and determine employment

and labour relations claims and environment and land matters.
Law Society of Kenya Nairobi Branch & another v Malindi Law Society & 6 others
Civil Appeal No 287 of 2016
Court of Appeal at Nairobi
P N Waki, R N Nambuye, D K Musinga, S Gatembu Kairu & A K Murgor, JJ A
October 19, 2017
Reported by Beryl A Ikamari
Civil Practice and Procedure-institution of claims and environment and land matters could
suits-locus standi-locus standi at an appeal stage- be conferred by Parliament through legislation
whether a person that was not a party at the High upon Magistrates’ Courts-Constitution of Kenya
Court could have locus standi to file at an appeal 2010, articles 162(2), 169, 48 & 165(5).
against a High Court decision-Constitution of
Brief facts
Kenya 2010, articles 22, 258 & 260; Court of
Appeal Rules 2010, rule 75. The Statute Law (Miscellaneous
Amendments) Act, 2015 introduced several
Constitutional Law-judiciary-transfer of judges
amendments which were challenged on
to different Court stations-transfers relating to
grounds of unconstitutionality. It amended
specialized Courts (the Environment and Land
the Environment and Land Court Act by
Court and the Employment and Labour Relations
allowing the Chief Justice to transfer judges
Court)-whether the Chief Justice had the
from the Environment and Land Court to the
mandate to transfer a judge from the High Court
High Court and vice versa. Additionally, the
to specialized Courts and vice versa-Constitution
Statute Law (Miscellaneous Amendments)
of Kenya 2010, article 162(2).
Act, 2015, introduced amendments to section
Jurisdiction-jurisdiction of Magistrates’ Courts- 101 of the Land Registration Act and section
jurisdiction to hear and determine employment 150 of the Land Act, allowing subordinate
and labour relations claims and environment Courts to have jurisdiction in environment
and land matters-whether jurisdiction to hear and land matters.
and determine employment and labour relations
The Magistrates’ Court Act was also the
30
subject of a challenge on the constitutionality to the High Court proceedings but its
of some of its provisions. Section 9 gave branches were not. Section 24 of the
Magistrates’ Courts jurisdiction to deal Law Society of Kenya Act introduced
with environment and land matters and also branches as organs of the Law Society
employment and labour relations claims. of Kenya. The branches were semi-
autonomous, if not autonomous.
Generally, it was argued that environment
Sections 15 and 24(2) of the Law
and land matters and also employment and
Society of Kenya Act did not suggest
labour relations claims were within the
that they did not have autonomy. The
exclusive jurisdiction of specialized Courts
issues that the branches sought to
which were of the same status as the High
raise in the appeal were in line with
Court and were provided for under article
section 24(2)(a) of the Law Society of
162(2) of the Constitution. The specialized
Kenya Act.
Courts included the Environment and Land
Court and the Employment and Labour 2. Under article 3(1) of the Constitution,
Relations Court. The High Court’s judgment every person had the obligation
was to the effect that the provisions to respect, uphold and defend the
that allowed for transfer of judges from Constitution. Article 260 of the
specialized Courts to the High Court and Constitution defined a person as
those that granted subordinate Courts including a company, association
jurisdiction to handle environment and or other body of persons whether
land matters and employment and labour incorporated or unincorporated.
relations claims were unconstitutional. The right to institute proceedings
Against the judgment, an appeal at the Court to enforce fundamental rights and
of Appeal was filed. freedoms was guaranteed under
article 22(1) of the Constitution and
During the hearing of the appeal a preliminary the right to institute proceedings in
issue arose. The Malindi Law Society wanted order to defend the Constitution was
the notices of appeal filed by branches of the guaranteed under article 258(1) of the
Law Society of Kenya struck out on grounds Constitution. Article 258(2) allowed
that those branches had no right of appeal for the institution of proceedings by
as they were not parties to the High Court a person acting on his own behalf, or
proceedings. as a member of or in the interests of a
Issues group or class of persons, or in public
interest or as an association acting
i. Whether the Respondents who were
in the interests of one or more of its
not party to High Court proceedings
members.
had the locus standi to challenge the
High Court’s decision at the Court of 3. Locus standi before a Court of law
Appeal. would be possessed by any aggrieved
party. Under rule 75 of the Court of
ii. Whether the provisions in the Statute
Appeal Rules, any person who desired
Law (Miscellaneous Amendments)
to appeal to the Court had to give
Act, 2015 which allowed the Chief
notice in writing, lodged in duplicate
Justice to transfer judges from the
with the registrar of the Court. The
Environment and Land Court to
rule specifically dealt with a person
the High Court and vice versa, were
who wished to appeal and not a party
constitutional.
to the impugned decision.
iii. Whether Parliament, through
4. The provisions of rule 75 of the Court
legislation, could confer jurisdiction
of Appeal Rules and articles 22, 258
upon Magistrates’ Courts to hear
and 260 of the Constitution were to
and determine environment and land
the effect that a person, association,
matters and also employment and
body corporate or an unincorporated
labour relations claims.
body, had the locus standi, not only
Held to institute original proceedings but
1. The Law Society of Kenya was a party also appellate proceedings provided
31
that such a party was aggrieved by the undoubtedly imprint specialized

decision they intended to challenge. jurisdiction on Magistrates’ Courts.
The Respondents fell within the 8. As a cannon of interpretation the
provisions as they asserted that Constitution would have to be
the impugned decision negatively considered as a whole. It ought to
affected legal practice and the welfare be interpreted to ensure that the
of their members. That was sufficient outcome of the interpretation would
justification for them to intervene in not give rise to an absurdity or
the proceedings. illogical result.
5. Article 259 of the Constitution 9. Devolution, access to services
provided that the Constitution ought and access to justice were critical
to be interpreted in a manner that pillars of Kenya’s constitutional
promoted its purposes, values and architecture. Article 48 of the
principles, advanced the rule of law Constitution demanded that the
and human rights and fundamental State had to ensure access to justice
freedoms in the Bill of rights, for all persons. One facet of that was
permitted the development of the law the geographical location of Courts
and contributed to good governance. and their proximity to the people that
The Constitution ought to also be would be served by the Courts.
interpreted in accordance with
10. Kenya had more Magistrates’ Courts
the doctrine that the law is always
than specialized Courts or High
speaking.
Court stations. The close proximity
6. The Court was unable to interpret of Magistrates’ Courts to the people
article 162(2) of the Constitution as ensured efficiency and access to
a provision which limited the power justice at a reasonable cost. It would
of Parliament to confer jurisdiction be illogical and unreasonable to
on subordinate Courts which were prohibit Magistrates’ Courts from
established under article 169(1)(a), (b) determining land and employment
and (c). Article 169(2) provided that disputes, when it was undeniable that
Parliament had to enact legislation their reach to the citizenry was wider
conferring jurisdiction, functions than that of specialized Courts.
and powers on the subordinate
11. Had the framers of the Constitution
Courts. A distinction ought to be
intended to restrict Parliament’s
drawn between the power granted to
power to enact legislation conferring
Parliament under the Constitution
jurisdiction on Magistrates’ Courts
to establish Courts, which was
with respect to disputes relating to
restricted, and the power to confer
employment and labour relations and
jurisdiction on Courts. In enacting
the environment and land matters,
the Magistrates’ Court Act, as stated
the restriction would have been
in its preamble to give effect to
provided for expressly.
article 169(1)(a) of the Constitution,
to confer jurisdiction, functions and 12. Under article 165(5) of the
powers on the Magistrates’ Courts, Constitution, the High Court would
Parliament did not exceed its powers not have jurisdiction in respect of
or act ultra vires. matters reserved for the exclusive
jurisdiction of the Supreme Court
7. Considering that appeals over the
under the Constitution or those
certain matters would lie with the
falling within the jurisdiction of the
specialized Courts, conferring
specialized Courts contemplated in
jurisdiction on Magistrates’ Courts
article 162(2) of the Constitution. The
to hear and determine those matters
provision did not say that the matters,
would not diminish the specialization
in the case of specialized Courts were
of specialized Courts. The doctrine
reserved to the exclusive jurisdiction
of judicial precedent would bind
of those Courts, it stated that the
the Magistrates’ Courts and would
matters fell within the jurisdiction of
32
the specialized Courts. had no mandate to transfer judges of

13. Although article 162(2) of the the High Court to specialized Courts
Constitution mandated Parliament and vice versa.
to establish Courts with the status of Appeal partly allowed.
the High Court to hear and determine
Orders: -
disputes relating to employment and
labour relations and environment i. The judgment and order of the High
and the use and occupation of, and Court declaring section 2 of the Statute
title to land, that in itself did not Law (Miscellaneous Amendments) Act
confer exclusive jurisdiction to 2015; sections 7(3), 8(d) and 26(3) and
those specialized Courts to hear and (4) of the ELC Act; sections 9(a) and (b)
determine the specified types of cases. of the Magistrates’ Court Act, 2015 as
14. The Supreme Court in Republic v unconstitutional, null and void was set
Karisa Chengo & 2 others conclusively aside.
settled the question as to whether the ii. The order of certiorari issued by the High
Chief Justice could transfer a judge Court quashing Gazette Notice Numbers
from the High Court to specialized 1472 dated March 1, 2016 published on
Courts and vice versa. A judge March 11, 2016 and 1745 dated March
appointed to serve in specialized 14, 2016 published on March 18, 2016
Courts could not administratively be was set aside.
transferred to serve in the High Court iii. Each party had to bear its own costs of
and vice versa. The High Court was the appeal.
right in holding that the Chief Justice
“I am not African because I was born in Africa but because Africa was
born in me” Kwame Nkrumah
33
High Court
Circumstances under which a Body Corporate may be considered as a
Citizen for the Purpose of Actualizing the Right to Access Information
Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR
Constitutional Petition 468 of 2017
High Court of Kenya at Nairobi
E C Mwita, J
November 8, 2017
Reported by Ribia John and Njeri Mweha
Constitutional law - fundamental rights the Public Officers Ethics Act – Constituion of
and freedoms - right of access to information – Kenya, 2010 articles 73(1) and 75(1);Leadership
limitation of the applicability of the right of access and Integrity Act section 3; Public Officers Ethics
to information to citizens - whether a corporate Act sections 8, 9 and 10.
body would be construed as a “citizen” for purposes
Brief facts
of enforcement of the right to access to information
under article 35 of the Constitution of Kenya, On diverse dates in 2017, the 1st Respondent
2010 and under the Access to Information Act. – published advertisements in the media,
Constitution of Kenya 2010 article 35; Access to through billboards and in business
Information Act section 2. messaging or tags named ’GoK Delivers’ and
‘#Jubilee Delivers’. The Petitioner in pursuit
Constitutional Law – fundamental rights and
of its right to access information, wrote
freedoms - duty of public entities to provide
to the 1st Respondent seeking information
information to citizens - whether a public entity,
on how many advertisements had been
in failing or refusing to avail the information
published through what media schedules
demanded by a corporate body violated the
and dates when it was done, copies of the
corporate body’s right to access information -
documents advertised, total cost incurred
whether a public entity had a constitutional
and information on the relevant government
obligation under article 35(1)(a) and (b) of
accounting office(r) and the individual or
the Constitution of Kenya, 2010 to provide
government agency that met the cost. The
information to citizens - Constitution of Kenya,
information sought was to cover the period
2010, article 35; Access to Information Act
between May 25, 2017 to August 16, 2017.
sections 2, 4, 5 and 8.
The letter was delivered but no response was
Constitutional Law – national values and
received from the Respondents. That forced
principles of governance – rule of law –
the Petitioner to file the instant petition to
participation of the people – human rights – good
compel the Respondents to furnish it with
governance – transparency – accountability -
the information.
whether a public entity, in failing or refusing to
avail the information demanded by a corporate Issues
body violated the values of the rule of law, i. Whether a public entity, in failing
participation of the people, human rights, good or refusing to avail the information
governance, transparency and accountability – demanded by a corporate body violated
Constitution of Kenya, 2010 article 10. the corporate body’s right to access
Constitutional Law – leadership and integrity information.
– obligations imposed on public entities and State ii. Whether a corporate body is a “citizen”
officers – responsibilities of leadership – conduct for purposes of enforcement of the right
of state officers - whether a public entity, in failing to access to information under article 35
or refusing to avail the information demanded by of the Constitution of Kenya, 2010 and
a corporate body violated the obligations imposed under the Access to Information Act.
on public entities by articles 73(1) and 75(1) of the iii. Whether a public entity had a
Constitution of Kenya, section 3 of the Leadership constitutional obligation under article
and Integrity Act and sections 8, 9 and 10 of 35(1) (a) and (b) of the Constitution of
34
BB Issue 38, July - September 2017
Kenya, 2010 to provide information to a (b) jurisdiction to determine the question

citizen. whether a right or fundamental freedom
iv. Whether article 35 of the Constitution in the Bill of Rights has been denied,
and section 5 of the Access to Information violated, infringed or threatened;
Act set out conditions for accessing Access to Information Act
information. Section 2
v. Whether a public entity, in failing Interpretation
or refusing to avail the information
“citizen” means any individual who has
demanded by a corporate body
Kenyan citizenship, and any private
violated the values of the rule of law,
entity that is controlled by one or more
participation of the people, human rights,
Kenyan citizens.
good governance, transparency and
accountability provided under article 10 “exempt information” means
of the Constitution. information that may be withheld
by a public entity or private body in
vi. Whether a public entity, in failing
accordance with section 6;
or refusing to avail the information
demanded by a corporate body violated “public entity” means—
the obligations imposed on public (a) any public office, as defined in
entities by articles 73(1) and 75(1) of Article 260 of the Constitution; or
the Constitution of Kenya, section 3 of (b) any entity performing a
the Leadership and Integrity Act and function within a commission,
sections 8, 9 and 10 of the Public Officers office, agency or other
Ethics Act. body established under the
vii. Whether the jurisdiction of the High Constitution
Court to determine petitions that Section 4
sought to challenge the violations of the Right to information
right to access information was pegged
(1) Subject to this Act and any other
on the condition that a report had to
written law, every citizen has the right of
be made before the Commission on
access to information held by—
Administrative Justice.
(a) the State; and
Relevant Provisions of the Law
(b) another person and where
The Constitution of Kenya 2010
that information is required for
Article 35 the exercise or protection of any
Access to Information right or fundamental freedom.
(1) Every citizen has the right of access (2) Subject to this Act, every citizen’s right
to— to access information is not affected by—
(a) information held by the State; (a) any reason the person gives
and for seeking access; or
(b) information held by another (b) the public entity’s belief as to
person and required for the what are the person’s reasons for
exercise or protection of any right seeking access.
or fundamental freedom. (3) Access to information held by a public
(2) Every person has the right to the entity or a private body shall be provided
correction or deletion of untrue or expeditiously at a reasonable cost.
misleading information that affects the (4) This Act shall be interpreted and
person. applied on the basis of a duty to disclose
Article 165(3)(a) & (b) and non-disclosure shall be permitted
High Court only in circumstances exempted under
(3) Subject to clause (5), the High Court section 6.
shall have— (5) Nothing in this Act shall limit the
(a) unlimited original jurisdiction in requirement imposed under this Act or
criminal and civil matters; any other written law on a public entity
35
or a private body to disclose information. to which it has reasonable access which

Section 5 in its opinion should be known to them
in the best interests of natural justice and
Disclosure of information by public
promotion of democratic principles;
entities
(d) provide to any person the reasons for
(1) Subject to section 6, a public entity
any decision taken by it in relation to that
shall—
person;
(a) facilitate access to information held by
(e) upon signing any contract, publish on
such entity and which information may
its website or through other suitable media
include—
the following particulars in respect of the
(i) the particulars of its organization, contract entered into—
functions and duties;
(i) the public works, goods acquired
(ii) the powers and duties of its officers or rented, and the contracted service,
and employees; including any sketches, scopes of
(iii) the procedure followed in the service and terms of reference;
decision making process, including (ii) the contract sum;
channels of supervision and
(iii) the name of the service provider,
accountability;
contractor or individual to whom the
(iv) salary scales of its officers by contract has been granted; and
grade;
(iv) the periods within which the
(v) the norms set by it for the discharge contract shall be completed.
of its functions;
(2) Information shall be disseminated
(vi) guidelines used by the entity in taking into consideration the need to
its dealings with the public or with reach persons with disabilities, the cost,
corporate bodies, including the rules, local language, the most effective method
regulations, instructions, manuals of communication in that local area, and
and records, held by it or under its the information shall be easily accessible
control or used by its employees for and available free or at cost taking into
discharging its functions; and account the medium used.
(vii) a guide sufficient to enable (3) At a minimum, the material referred
any person wishing to apply for to in subsection (1) shall be made
information under this Act to identify
available—
the classes of information held by it,
the subjects to which they relate, the (a) for inspection by any person
location of any indexes to be inspected without charge;
by any person; (b) by supplying a copy to any person
(b) during the year commencing on first on request for which a reasonable
January next following the first publication charge to cover the costs of copying
of information under paragraph (a), and supplying them may be made;
and during each succeeding year, cause and
to be published statements updating the (c) on the internet, provided that the
information contained in the previous materials are held by the authority in
statement or statements published under electronic form.
that paragraph; (4) Subsection (1) (a) shall come into
(c) publish all relevant facts while operation twelve months after the
formulating important policies or commencement of this Act.
announcing the decisions which affect
Section 8
the public, and before initiating any
project, or formulating any policy, Application for access
scheme, programme or law, publish or (1) An application to access information
communicate to the public in general or shall be made in writing in English
to the persons likely to be affected thereby Kiswahili and the applicant shall provide
in particular, the facts available to it or details and sufficient or particulars for
36
the so as to comply with the request

public officer or any other official to and the consultations cannot be
understand what information is being reasonably completed within the
requested. stipulated time.
(2) Where an applicant is unable to make (4) As soon as the information access
a written request for access to information officer has made a decision as to whether
in accordance with subsection (1) because to provide access to information, he or
of illiteracy or disability, she shall immediately communicate the
decision to the requester, indicating—
the information officer shall take the
necessary steps to ensure that the (a) whether or not the public
applicant makes a request in manner that entity or private body holds the
meets their needs. information sought;
(3) The information officer shall reduce (b) whether the request for
to writing, in a prescribed form the information is approved:
request made under subsection (2) and (c) if the request is declined the
the information officer shall then furnish reasons for making that decision,
the applicant with a copy of the written including the basis for deciding
request. that the information sought
(4) A public entity may prescribe a form is exempt, unless the reasons
for making an application to access themselves would be exempt
information; and
information, but any such form shall not
be such as to unreasonably delay requests (d) if the request is declined, a
or place an undue burden upon applicants statement about how the requester
and no application may be rejected on the may appeal to the Commission”;
ground only that the applicant has not (5) A public officer referred to in subsection
used the prescribed form. (1) may seek the assistance of any other
Section 9 public officer as the first mentioned
public officer considers necessary for the
Processing of application
proper discharge of his or her duties and
(1) Subject to section 10, a public officer such other public officer shall render the
shall make a decision on an application required assistance.
as soon as possible, but in any event,
(6) Where the applicant does not receive
within twenty one days of receipt of the
a response to an application within
application
the period stated in subsection (1), the
(2) Where the information sought application shall be deemed to have been
concerns the life or liberty of a person, rejected.
the information officer shall provide the
Held
information within forty-eight hours of
the receipt of the application. 1. The right to access information is a
right that the individual has to access
(3) The information officer to whom a
information held by public authorities
request is made under subsection (2) may
acting on behalf of the state. It is an
extend the period for response on a single
important right for the proper and
occasion for a period of not more than
democratic conduct of government
fourteen days if—
affairs, as the right enabled citizens to
(a) the request is for a large participate in that governance.
amount of information or
2. Successful and effective public
requires a search through a large
participation in governance largely
amount of information and
depends on the citizen’s ability to access
meeting the stipulated time would
information held by public authorities.
unreasonably interfere with
Where they do not know what is
the activities of the information
happening in their government and
holder; or
or if actions of those in government
(b) consultations are necessary are hidden from them, they can not
37
be able to take meaningful part in nor grantable by the State. It is a right

their country’s governance. In that granted by the Constitution and was
context, the right to access information protected by the same Constitution.
becomes a foundational human right 7. State organs or public entities had a
upon which other rights have to flow. constitutional obligation to provide
For citizens to protect their other information to citizens as of right under
rights, the right to access information the provisions of article 35(1)(a) of the
becomes critical for any meaningful and Constitution. They could not escape the
effective participation in the democratic constitutional requirement.
governance of their country.
8. The right to access information was a
3. The importance of the right to access basis for accountability, responsiveness
information was fully appreciated by the and openness. To give effect to the values
drafters of the Constitution of Kenya, of accountability, responsiveness and
2010 and they dutifully included article openness, the public had to have access
35 to make the right attainable as the to information held by the state.
foundation for an open, responsive,
9. The right to access information was also
accountable and democratic government
founded on International instruments.
and its institutions. The Constitution
Article 19 of the Universal Declaration
granted citizens’ access to information as
of Human Rights, article 19(2) of
a constitutional right and only the same
International Convention on Civil and
Constitution could limit that access.
Political Rights and article 9(1) of the
4. The Constitution was clear that Africa Charter on Human and Peoples
information held by the State was Rights also made the right to information
accessible by citizens and that imperative. These international
information was available on request. instruments were ratified by Kenya and by
What that meant was that once a citizen virtue of article 2(5) of the Constitution,
placed a request to access information, general rules of international law and any
the information was to be availed to the treaties or conventions ratified by Kenya
citizen without delay. formed part of the law of Kenya.
5. Article 35 of the Constitution did not in 10. The State had a constitutional obligation,
any way place conditions for accessing without qualification, to allow citizens
information. On the other hand, access information and they could not be
section 5 of the Access to Information denied that right by the state.
Act (the Act) further provided that a
11. In the case of the Nairobi Law Monthly
public entity should facilitate access to
Company Limited V Kenya Electricity
information held by it. Under section 8
Generating Company & 2 Others [2013]
of the Act, a citizen who wanted to access
eKLR the Court stated that the right to
information had to do so in writing
access information was only available
with sufficient details and particulars to
to citizens and in arriving at that
enable the public officer to understand
conclusion, the Court relied on the
what information was being requested.
decision of Famy Care Limited v Public
The Act was also sufficiently clear that
Procurement Administrative Review Board
the information should be given without
& another & 4 others [2012] eKLR. Both of
delay and at no fee, notwithstanding why
the above decisions were made before the
the citizen wanted to access information.
enactment of the Access to Information
Section 9 of the Act stated that a decision
Act, in 2016. Section 2 of the Act
on the request to access information
defined a citizen as any individual who
should be made and communicated
had Kenyan citizenship, and any private
within 21 days. The communication
entity that was controlled by one or more
should include whether the public entity
Kenyan citizens. From the definition,
had the information and whether it
a juristic person whose director(s) was
would provide it.
a citizen was considered a citizen for
6. The right to access information is purpose of exercising the right to access
inviolable because it is neither granted to information under article 35(1)(a) of
38
the Constitution as read with section 4 of of the Access to Information Act could

Access to information the Act. not be accepted. The Respondents did
12. The Petitioner, by virtue of having Kenyan not demonstrate the rationale for that
directors, though a juristic person, was contention given the fact that article 35
a citizen for purposes of article 35(1) had no limitation to the right to access
(a) as read with section 4 of Access to information. They were also under duty
information Act and was entitled to seek to show that the purported limitation
and have information as a citizen. fell within the ambit of article 24(1) of
the Constitution and that the limitation
13. It was up to the Respondents to show how
was reasonable and justifiable in an open
the information sought affected state
and democratic society based on human
security and therefore, fell within section
dignity, equality and freedom, taking into
6 of the Act. From the letter dated August
account the importance of the right in the
17, 2017, the information sought was
citizens’ quest for public participation in
about dates, nature of advertisements and
the democratic governance of Kenya.
copies thereof, the cost of advertisements
and who met that cost. 17. There was no provision in the Access
to Information Act that made a report
14. Dates when advertisements were done,
to the Commission on Administrative
nature and copies of advertisements,
Justice (CAJ) a condition precedent to
cost of advertisements and who met
triggering the jurisdiction of the High
the cost of those advertisements could
Court to deal with petitions filed that
not be information that affected state
sought to challenge violations of the
security. Where a party alleged, like the
right to access information under article
Respondents had done, that information
35 of the Constitution. The High Court
sought affected state security, it was
had unlimited jurisdiction under article
the duty of that person to show to the
165(3)(b) to determine the question
satisfaction of the Court that indeed that
whether a right or fundamental freedom
was the case. It was not enough for a
in the Bill of Rights had been denied,
party to merely allege without showing
violated, infringed or threatened. The
how, that disclosure of information
Respondents’ contention that the petition
would affect state security.
was premature was unsustainable.
15. There was greater responsibility
18. The Petitioner sought information in
given the nature of the Constitutional
exercise of its constitutional right under
obligation the State, State officers or
article 35 of the Constitution. Even
public bodies had for disclosure. The
though the law required the public entity
exercise of the right to information
to respond to the request within 21 days
should not require individuals to
on whether or not it was in possession of
demonstrate a specific interest in the
the information and would or would not
information. Where a public authority
disclose, the Respondents ignored the
sought to deny access to information,
law. The Respondents were under both
it was to bear the onus of justifying the
a constitutional and legal obligation to
refusal at each stage of the proceedings.
allow the Petitioner to access information
The Access to Information Act was also
in their possession and held on behalf
absolutely clear that information should
of the public. That was an inviolable
be disclosed free of charge, the reason for
constitutional right and that was clear
seeking information notwithstanding.
from the language of article 35 of the
16. In the instant case no clear legal Constitution. Any limitation had to meet
provision notwithstanding, no access the constitutional test and only then
to information was given or reason could one raise limitation as a ground for
given; either that the respondents did non-disclosure.
not have the information or that they
19. Rights have inherent value and utility
would not disclose the information and
and their recognition, protection and
give justification for it. The Respondents’
preservation is not an emanation of state
contention that the information sought
largesse because they are not granted,
was limited by section 6(1) (a) and 6(2)(j)
39
nor are they grantable, by the State. They information in accordance with article 35(3)
attach to persons, all persons, by virtue thereof on the basis of the Petitioner’s request
of their being human and respecting dated August 17, 2017 was a violation of the
rights is not a favour done by the state or right to access information.
those in authority. They merely follow a ii. Declaration issued that the failure by the 1st
constitutional command to obey. Respondent to provide information sought
20. The Respondents were under obligation under article 35(1)(a) of the Constituion and
to obey the law and allow the Petitioner also publicise the information in accordance
access information or where not possible with article 35(3) thereof on the basis of the
give reasons for that. They failed in both Petitioner’s request dated August 17, 2017 was
instances thus violated the Petitioner’s a violation of article 10 of the Constitution
rights under the Constitution and the specifically the values of the rule of law,
law. participation of the people, human rights good
21. The right to access information was not governance transparency and accountability.
a fringe right to other rights in the Bill of iii. Declaration issued that failure by the 2nd, 3rd
Rights. It was integral to the democracy and 4th Respondents to provide information
conceptualised by the Constitution sought under article 35(1) (a) and also to
of Kenya, 2010 in that it encouraged publish the information in accordance with
public participation, abhorred secrecy article 35(3) thereof was a violation of the
in governance and above all sought to obligations imposed on the Respondents by
ensure that public power delegated to chapter 6 of the Constitution, specifically
leaders was not abused. articles 73(1) and 75(1) of the Constitution,
22. The Respondents violated the Petitioner’s section 3 of the leadership and integrity Act
right of access to information .No effort and sections 8, 9 and 10 of the Public Officers
was made to justify the violation. Ethics Act.
Petition Allowed. iv. Order of mandamus issued that compelled
the 1st and 2nd Respondents to provide at the
Orders:
Respondents cost, information sought by the
i. Declaration issued that the failure by the Petitioner in their letter to the Respondents
1st and 2nd Respondents who were to provide dated August 17, 2017.
information sought under article 35(1) of
v. Costs awarded to the Petitioner.
the Constitution and also to publicise the
Requests for assistance by the International Criminal Court (ICC) should

be in conformity with the Kenyan Laws
Republic of Kenya (through Cabinet Secretary, Ministry of Interior and Coordination of
National Government) v Paul Gicheru & Another
Misc. Criminal Application 193 of 2015
High Court at Nairobi
L. Kimaru, J
November 16, 2017
Reported by Chelimo Eunice surrendering the Respondents to the ICC would
Constitutional law – rights and fundamental be an infringement to their right to fair hearing,
freedoms – right to fair hearing-right to equal right to equal protection of the law and the right to
protection and equal benefit of the law - right liberty - Constitution of Kenya, 2010, articles 21,
to liberty - request for arrest and surrender of 22, 23, 24, 25, 49 and 50; International Crimes
a suspect by the International Criminal Court Act (ICA), sections 4, 9 to 17, 18,23,29,30,172 and
(ICC) – where the ICC had issued a joint request 173; Rome Statute, articles 1,17,19,70,87,88,89
for the arrest and surrender of the Respondents and 91.
– where the Applicant had not formulated International law – jurisdiction - complimentary
regulations prescribing procedures for dealing jurisdiction of the ICC -jurisdiction of the ICC
with requests by the ICC - whether in the to request for arrest and surrender of Kenyan
absence of the said regulations, arresting and citizens - conditions precedent to admission of
40
jurisdiction by the ICC - whether ICC satisfied Applicant contended that he was satisfied
the preconditions set out in article 17 of the Rome that the request was valid and should be
Statute in admitting jurisdiction and seeking the presented to the Court for appropriate
arrest and surrender of the Respondents - where consideration.
it had not been demonstrated that State party was
On May 28, 2015, the Court, issued some
unwilling or unable genuinely to carry out the
orders, including orders of arrest, search
investigation or prosecution -whether the High
and seizure. On July 30, 2015, the Court
Court had jurisdiction to inquire into the validity
inter alia directed that the warrant of arrest
or otherwise of the order issued by the Pre-trial
issued be stayed pending the hearing and
Chamber of the ICC where the order was issued
determination of the application.
without consulting the concerned State party
- International Crimes Act sections 4, 9 to 17, The Respondents objected to the application
18,23,29,30,172 and 173; Rome Statute, articles on the grounds that it was unconstitutional,
1,17,19,70,87,88,89 and 91. that the Applicant had no jurisdiction to
apply to the Court for the surrender of
International law -treaties and conventions
the Respondents without first satisfying
– nature and extent of application of treaties –
the conditions precedent stipulated in
supremacy of the Constitution and sovereignty
articles 10, 24, 27, 28, 29, 47 and 50 of the
of the people vis-à-vis the Rome Statute and
Constitution and sections 18, 29, 172 and
conventions ratified by Kenya- Constitution of
173 of the International Crimes Act (ICA) ,
Kenya, 2010 articles 1 and 2.
that their rights to fair trial and due process
Jurisdiction - jurisdiction of the High Court as protected by the Constitution had first
- jurisdiction of the High Court vis-à-vis to be adhered to before the Applicant
jurisdiction of the ICC - jurisdiction of the High could purport to present an application for
Court to try offences against the administration their surrender to the ICC. Further, the 1st
of justice as set out under sections 9 to 17 of the Respondent filed an application seeking for
ICA - whether the High Court had jurisdiction orders, inter alia, quashing of the warrant
to try offences that the ICC had indicted of the of arrest issued against him, staying of
Respondents - whether the Respondents were the request by the ICC for his arrest and
eligible for arrest, surrender and eventual trial surrender unless and until the Applicant
before the ICC, International Crimes Act, sections made the necessary regulations.
9,10,11,12,13,14,15,16 and 17.
Issues:
Brief facts:
i. Whether the request for assistance by
On April 1, 2015, the Applicant received a the ICC was in conformity with the
joint request from the International Criminal Kenyan laws.
Court (ICC) for the arrest and surrender ii. Whether the ICC satisfied the
of the Respondents. The Respondents preconditions on the admissibility
had been indicted by the ICC for offences of a case before the ICC (prove that
against the administration of justice and the state itself is not investigating or
warrants of arrest issued against them. In prosecuting, or has prosecuted, but
furtherance of the request by the ICC, the also where the state decided not to
Applicant applied for the Court to; issue a proceed with a prosecution, unless
warrant of arrest against the Respondents the decision was due to the inability
and thereafter determine the eligibility of the or unwillingness of the state) set out
Respondents to be surrendered to the ICC in article 17 of the Rome Statute in
to face the charges for offences against the seeking the arrest and surrender of
administration of justice; to issue an order the Respondents.
for the seizure of any relevant evidence
iii. Whether absence of regulations
from the Respondents; to grant permission
which were to be made by the
to the investigators from the Office of the
Applicant pursuant to sections
Prosecutor of the ICC to be present during
172 & 173 of the ICA prescribing
the execution of such searches and seizures;
procedures for dealing with requests
and to direct that such evidence that shall
by ICC invalidated the proceedings
be seized be transmitted to the ICC. The
by the Applicant.
41
iv. Whether the Respondents were favour of the exercise of the jurisdiction
eligible for arrest, surrender and of the Court. The Chamber did not
eventual trial before the ICC. consider that there was a need to consult
v. Whether the Court had jurisdiction with any State Party that may have
to try offences against the jurisdiction over the offences allegedly
administration of justice that the ICC committed.
had indicted the Respondents. 4. The Pre-trial Chamber of the ICC
vi. Whether the Court had jurisdiction to assumed jurisdiction in the case
inquire into the validity or otherwise involving the Respondents after it had
of the order issued by the Pre-trial been moved in an application filed by the
Chamber of the ICC. Prosecutor of the ICC. The application
was made ex-parte without reference to
vii. Whether the Court had jurisdiction
any other concerned party, including
to quash the warrant of arrest, issued
Kenya which was a State Party, and
by a court of equal jurisdiction.
which it was expected it would comply
Held: with the request for assistance to secure
1. Kenya was a signatory to the Rome the surrender of the Respondents.
Statute of the ICC. The preamble and 5. The Pre-trial Chamber was aware under
article 1 of the Rome Statute of the ICC paragraph 10 of the preamble, articles 1,
provided that the ICC as established 17, 70 of the Rome Statute of the ICC
and in exercise of its jurisdiction would and rule 162 of the Rules of Procedure
be complementary to national criminal and Evidence of the ICC, the court
jurisdictions. Article 17 of the Rome with the primary jurisdiction to hear
Statute set out the circumstance under and determine any charges relating to
which the ICC could admit a case in its offences against the administration of
jurisdiction. justice was a national court of a State
2. The ICC, in seeking the surrender Party hence the requirement for the
of the Respondents, was exercising a ICC to consult with the State Party that
complementary jurisdiction to that of may have jurisdiction over the offence.
the Court as provided in the preamble 6. For the Pre-trial Chamber to base its
and article 1 of the Rome Statute. That decision on available information before
was more so in respect of an alleged the Chamber that an effective national
offence against the administration of prosecution was unlikely to take place
justice. Before the ICC exercises that in the particular circumstance of the
jurisdiction, it had to satisfy itself of the case without first consulting Kenya as a
precondition set out in article 17 of the State Party on whether it was willing to
Rome Statute particularly article 17(2). prosecute the Respondents on the basis
3. The Pre-trial Chamber of the ICC was of the evidence that the Prosecutor of
aware of complementary jurisdiction the ICC had, was contrary to article 17
when it considered the application of the Rome Statute of the ICC where
made by the Prosecutor of the ICC the court was required to defer to a State
seeking the issuance of the warrant of Party unless the State was unwilling
arrest of the Respondents. However, or unable genuinely to carry out the
the Pre – trial Chamber held that based investigation or prosecution.
on the information availed before 7. In making the decision, the Pre – Trial
the Chamber, an effective national Chamber denied Kenya, a State Party, the
prosecution was unlikely to take place primary opportunity to investigate and
in the particular circumstances of the prosecute the Respondents as provided
case. That the size and extent of the under section 18 of the ICA. The Court
organization of the alleged criminal shuddered to imagine that the Pre – Trial
effort to corruptly influence witnesses Chamber chose not to consult Kenya
of the Court, as well as the related because it had determined, without
concerns for witness protection, were input from Kenya, that the State felt in
reasons overwhelmingly militated in the category of States defined in article
42
17(3) of the Rome Statute, that is that of the ICC felt in error when it
Kenya’s criminal justice system suffered assumed jurisdiction on the basis of
from total or substantial collapse or undisclosed available information
unavailability of its national judicial before the court that an effective
system. national prosecution was unlikely in
8. The Respondents justifiably complained the particular circumstances of the
that the Applicant, the Director of case. No evidence was presented to
Public Prosecutions (DPP) and the the Court by the Applicant to support
Attorney General (AG) shirked and the contention by the Single Judge
abdicated their responsibilities as that Kenya, as a State Party, was
State Officers to uphold the national unwilling or unable to investigate
value and principles of governance as and prosecute the Respondents. If
provided under articles 10 and 259(1) of such evidence of the commission
the Constitution. Those officers, when of offences against administration
confronted with the request made by the of justice was presented to the
ICC, firstly, for the arrest, and secondly, constitutionally mandated organs of
for the surrender of the Respondents, the Republic of Kenya, it would not
instead of making inquiry whether do for the Pre-trial Chamber to reach
the Pre-trial Chamber of the ICC had a finding to the effect that national
jurisdiction to issue such orders without prosecution was unlikely in the
consulting Kenya as a State Party to the particular circumstances of the instant
Rome Statute or considering whether to case without the Pre-trial Chamber
assume jurisdiction as provided under first consulting with the State Party
section 18 of the ICA and in accordance (Republic of Kenya) as required under
with the Constitution of Kenya and rule 162(1) of the Rules of Procedure
the Rome Statute of the ICC, filed the and Evidence of the ICC. The least the
instant application. ICC Prosecutor could do was to avail
such evidence before the Court to
9. The Respondent’s fundamental rights
persuade it that such finding was made
and freedoms to fair trial as enshrined
on the basis of credible evidence. The
under article 25(c) of the Constitution,
Pre-trial Chamber overlooked the law
which could not be limited or abridged
which granted Kenya, a State Party,
under any circumstances would be
the primary mandate to investigate,
breached if the Court allowed the
prosecute and try offences against
application made by the Applicants.
the administration of justice allegedly
10. The position taken by the Applicant that committed within its jurisdiction
the Court had no jurisdiction to inquire unless inability or procrastination was
into the validity or otherwise of the order established. The Pre-trial Chamber’s
issued by the Pre-trial Chamber of the finding was speculative in so far as no
ICC was not only unconstitutional but attempt was made by the Chamber or
in breach of the self-same Rome Statute the Office of the Prosecutor of the ICC
that provided procedure to be adopted to consult the necessary State Party
under articles 17 and 70 of the Rome (the Republic of Kenya).
Statue of the ICC in regard to offences
against the administration of justice. b. The Applicant, DPP and AG neglected
That was because of the following or abandoned and or failed in their
reasons: duty to uphold the sovereignty of the
people of Kenya as provided under
a. The Pre-trial Chamber of the ICC
article 1(1) of the Constitution and
was a court of complementary status
in particular, by failing to exercise
with the Court. Under section 18 of
their delegated functions as provided
the ICA, the Court had the primary
under article 3(b) of the Constitution
jurisdiction to try persons accused of
by refusing to assert and exercise the
offences against the administration of
authority delegated to them by the
justice allegedly committed within its
Constitution to uphold the national
jurisdiction. The Pre-trial Chamber
values and principles of governance
43
as provided under articles 10 and 259 attempts to coerce and intimidate him
of the Constitution. They dismally into withdrawing from representing
neglected to perform their functions as his client (one of the witnesses in the
mandated to them in the ICA. In filling case), and if he did not do so, charges
the instant application before making similar to the instant ones would be
inquiry on the validity or legality brought against him. The allegations
or otherwise of the request for the raised by the Respondents were serious
surrender of Respondents made by the and could not be wished away. The
ICC, the said State Officers abdicated least that the Applicant, the Inspector
their responsibilities to assert their General of Police and the DPP should
Constitutional authority on behalf have done in the circumstances was to
of the Republic of Kenya as a State investigate the allegation to establish
Party of the Rome Statute to exercise its veracity. It was clear that the Office
jurisdiction in the first instance in of the Prosecutor of the ICC would,
respect of the offences against the in the circumstances, be unlikely to
administration of justice before the investigate officers based at its office.
ICC exercised its complementary The assertion by the Respondents
jurisdiction as provided under that their fundamental rights and
Paragraph 10 of the preamble and freedoms to fair trial as enshrined
article 1 of the Rome Statute of the in the Constitution would likely be
ICC. infringed if the allegations they had
deponed in their affidavits were not
c. The acts that constituted the alleged
investigated was not without merit.
offence against the administration
of justice occurred within the 11. The Respondents, as Kenyan citizens,
jurisdiction of the Court. The Court were entitled to exercise the right to
had the primary jurisdiction to try such citizenship as provided under article
offences under the Constitution and 12(1)(a) of the Constitution. That right
the laws made thereunder including included the benefit of the rights and
the ICA unless, under circumstances fundamental freedoms in the Bill of
specified in the Rome Statute of the Rights and the right to be tried before a
ICC, the ICC assumed jurisdiction court established under the Constitution
in exercise of its complementary if it was alleged he had committed
jurisdiction. an offence within the jurisdiction of
the Court. State officers, such as the
d. The basis upon which the Pre- Applicant, the AG, the DPP and the
trial Chamber of the ICC reached Inspector General of Police could not
its decision for the request for abdicate the mandate delegated to
cooperation for the arrest, search them by the Constitution particularly,
and surrender of the Respondents article 21(1). Unless the contrary was
was challengeable. The Respondents established, the Respondents were
deponed that officers attached to the entitled, as a matter of their rights and
Office of the Prosecutor of the ICC fundamental freedoms, to be tried in
coerced, intimidated and improperly Kenya.
influenced the witnesses that were
12. The ICA, which domesticated the Rome
the subject of the charges against the
Statute of the ICC was assented to
administration of justice as provided
on December 24, 2008. That Act was
under article 70 of the Rome Statute
subject to the Constitution which was
and sections 9 to 17 of the ICA, 2008
promulgated on August 27, 2010 by
into contriving and manipulating
virtue of section 7(1) of the Transitional
evidence so as to fit with the charges
and Consequential Provisions (Sixth
that were brought against the accused
Schedule) of the Constitution. Section
persons in the then pending case before
7(2) decreed, inter alia, that the provisions
the ICC. The 1st Respondent deponed
of the Constitution would prevail to
that the Office of the Prosecutor of
the extent of the conflict between the
the ICC applied pressure and made
44
Constitution and that law. gathering evidence to prosecute the

13. The request for inter alia, the search of Respondents yet charges had already
the properties of the Respondents, in been laid against them before the ICC.
the presence of investigators from the In so far as the ICA provided that an
ICC, with a view to obtaining evidence application for the surrender of the
in form of cell phones, computers, Respondents to the ICC could be made
diaries, notes or recordings of meetings without the Respondents being supplied
or conversations, financial or banking with evidence in support of the charge
records from the Respondents was against them, such application was not
in breach of article 50(2)(b) of the sustainable and was not within the
Constitution that required every accused threshold mandated by the Constitution.
person to be informed of the charge that 15. The Applicant’s application in
he would face with sufficient details to purported exercise of its mandate to
answer to it. It was also in breach of cooperate with the ICC could not be
article 50(2)(j) of the Constitution that allowed unless and until the ICC and the
required every accused person to be Applicant complied with the conditions
informed in advance of the evidence precedent, in compliance with the
that the prosecution intended to rely Constitution of Kenya 2010, and the
on, and have reasonable access to that ICA, the Rome Statute of the ICC and
evidence. the Rules of Procedure and Evidence of
14. The application was devoid of the the Court.
evidence that the ICC intended to rely on 16. The warrant of arrest issued by the
in the prosecution of the Respondents. Court against the Respondents was
The Applicant’s application was in lifted. For the avoidance of doubt, the
breach of section 23(2) of the ICA that Applicant was not to take any action in
mandated any request for assistance furtherance to the request made for the
by the ICC be in conformity with the surrender of the Respondents, unless
Kenyan laws. It was apparent that the and until there was compliance with the
requests made to the Court indicated orders of the Court.
that the Prosecutor of the ICC was still Application dismissed.
All presidential candidates who participated in the August 8, 2017
elections, concerning which the presidential election results were
nullified, qualified to participate in the fresh presidential elections.
Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others
Petition No 471 of 2017
Constitutional & Human Rights Division
J M Mativo, J
October 11, 2017
Constitutional Law-interpretation of the of Kenya 2010, articles 140(3) & 163(3).
provisions of the Constitution-principles
Legal Precedent-stare decisis -binding (ratio
applicable to the interpretation of the Constitution-
decidendi) and persuasive precedents (obiter
the meaning of the term fresh elections as used in
dicta)-nature of observations in a judgment which
article 140(3) of the Constitution, in relation to
were not an issue raised or pleaded by the parties
elections held after the nullification of the results
to the dispute in question-whether the Court was
of a presidential election-Constitution of Kenya
bound by such observations-extent to which such
2010, articles 140(3) & 163(3).
observations would be of persuasive value.
Jurisdiction-jurisdiction of the Supreme Court-
Constitutional Law-enforcement of fundamental
original jurisdiction of the Supreme Court-
rights and freedoms-political rights and rights
whether the Supreme Court had the jurisdiction to
to equality and freedom from discrimination-
determine the meaning of the term fresh elections
failure to allow the Petitioner, a candidate in a
in article 140(3) of the Constitution-Constitution
45
presidential election whose results were nullified, presidential elections and the outcome was
to participate in the fresh presidential elections- that they only put Jubilee Party and Orange
whether under the circumstances the Petitioner’s Democratic Movement as the participants in
political rights and rights to equality and freedom the presidential elections, in good faith. The
from discrimination were violated-Constitution advice included the findings of the Supreme
of Kenya 2010, article 140(3), 38 & 27. Court in the 2013 Raila Case, in which it was
said that presidential candidates who did not
Brief facts
challenge the outcome of the presidential
The Petitioner was a presidential candidate election were deemed to have conceded
for Thirdway Alliance Party in the August defeat or acquiesced in the declared results
8, 2017 general elections. The results of that and would not be participants in repeat
election were successfully challenged by the presidential elections.
NASA presidential candidate Hon. Raila
The 4th Respondents’ grounds in support
Amolo Odinga and his running mate Hon.
of the petition included the assertion that
Stephen Kalonzo Musyoka, in Supreme
the exclusion of the Petitioner from the
Court Petition No 1 of 2017. In the Supreme
elections was discriminatory and that the
Court petition, the presidential election
determinations on fresh elections in the
and its results were declared a nullity and
2013 Raila case were distinguishable from the
orders were issued for a fresh election to be
instant case. On the other hand, the Attorney
conducted within 60 days from the date of
General opposed the petition and stated that
the Supreme Court judgment.
it was bad and incompetent in law, that the
Through a Gazette notice dated September High Court lacked jurisdiction to hear it and
5, 2017, the IEBC and its Chairman that the issue as to what constituted fresh
directed that only Jubilee Party and Orange elections was already determined in the 2013
Democratic Movement would participate Raila Case.
in the fresh presidential elections. The
Issues
Petitioner wrote to the IEBC on September 6,
2017 requesting to be included as a candidate i. Whether the question, touching on
in the fresh elections but he obtained no which presidential candidates would
positive response to his letter. participate in fresh presidential
elections, was determined by the
The Petitioner then sought the Supreme
Supreme Court in the 2013 Raila
Court’s intervention but he was asked to
case and the High Court had no
file the matter before the High Court as the
jurisdiction to determine it as it was
Supreme Court did not have the jurisdiction
a Court which was bound by the
to hear and determine it. The Petitioner, at
Supreme Court’s decision, under
the High Court, stated that under articles
article 163(7) of the Constitution.
27, 38, and 140(3) of the Constitution, as a
candidate that participated in the August 8, ii. Whether the Supreme Court
2017 elections, he had a right to participate interpreted article 140(3) of the
in the fresh presidential elections slated for Constitution, which provided for
October 26, 2017. He said that his rights fresh elections after the invalidation
to participate in that election were being of the results of a presidential
violated. election, in the 2013 Raila Case.
The IEBC and its Chairman’s response to iii. Whether the failure to allow
the petition was that the Supreme Court the Petitioner, a candidate in a
ordered for fresh presidential elections presidential election whose results
without providing guidance on how they were nullified, to participate in the
would be conducted. They also said that fresh presidential election was a
there was no settled practice on repeat violation of the Petitioner’s right
presidential elections and there was a gap in to equality and freedom from
the law with respect to how such elections discrimination and political rights.
were to be conducted. The IEBC and its
iv. Whether the observations of the
Chairman said that they sought legal advice
Supreme Court in the 2013 Raila Case,
on the question of the conduct of fresh
which related to the import of article
46
140(3) of the Constitution, were obiter (3) Women and men have the right to equal
dicta. treatment, including the right to equal
opportunities in political, economic, cultural
Relevant provisions of the law
and social spheres.
Constitution of Kenya 2010, articles 163(3),
(4) The State shall not discriminate directly or
140(3), 38 & 27;
indirectly against any person on any ground,
Article 163(3); including race, sex, pregnancy, marital status,
(3) The Supreme Court shall have— health status, ethnic or social origin, colour,
age, disability, religion, conscience, belief,
(a) exclusive original jurisdiction to hear and culture, dress, language or birth...
determine disputes relating to the elections
to the office of President arising under Held
Article 140; and 1. Article 163(3) of the Constitution
(b) subject to clause (4) and (5), appellate provided for the jurisdiction of the
jurisdiction to hear and determine appeals Supreme Court. It provided for the
from— Supreme Court’s original jurisdiction
to entertain disputes related to elections
(i) the Court of Appeal; and to the office of the President under
(ii) any other court or tribunal as prescribed article 140 of the Constitution and
by national legislation. the exercise of the Supreme Court’s
appellate jurisdiction. Article 140 of
Article 140;
the Constitution concerned questions
140. (1) A person may file a petition in the on the validity of presidential elections.
Supreme Court to challenge the election of The issue raised in the instant petition
the President-elect within seven days after was not a question as to the validity of
the date of the declaration of the results of presidential elections but a question
the presidential election. as to the interpretation of what would
constitute a fresh election. The Supreme
(2) Within fourteen days after the filing of a
Court rightfully held that it had no
petition under clause (1), the Supreme Court
jurisdiction to interpret the provision
shall hear and determine the petition and its
and that the necessary jurisdiction
decision shall be final.
was possessed by the High Court. The
(3) If the Supreme Court determines the Petitioner also raised questions relating
election of the President elect to be invalid, a to violations of his rights under article
fresh election shall be held within sixty days 38 and 27 of the Constitution and such
after the determination. questions fell within the High Court’s
Article 38; constitutional mandate.
2. The observations by the Supreme
38. (1) Every citizen is free to make political
Court in the 2013 Raila Case were not
choices, which includes the right—
an interpretation of article 140(3) of
(a) to form, or participate in forming, a the Constitution. It was not possible
political party; for the Supreme Court to interpret
(b) to participate in the activities of, or recruit that provision because it did not have
members for, a political party; or jurisdiction to do so.
3. It was important to address the question
(c) to campaign for a political party or cause... as to whether the observations by the
Article 27; Supreme Court were obiter dictum or
ratio decidendi. The doctrine of precedent
27. (1) Every person is equal before the law
decrees that only the ratio decidendi of
and has the right to equal protection and
a judgment, and not obiter dicta, have
equal benefit of the law.
binding effect. If a determination was
(2) Equality includes the full and equal truly obiter dicta, it would not be followed.
enjoyment of all rights and fundamental However, obiter dicta would be of potent
freedoms. persuasive force and would only be
47
departed from after due and careful Honourable Attorney General.

consideration. 10. In interpreting article 140(3) of the
4. Obiter dicta are things said by the way Constitution, it would have to be borne
or in passing by a Court. They are not in mind, that the starting point was
pivotal to the determination of the issue the language of the provision. In the
or issues at hand and are not binding absence of an expressed intention to the
precedent. contrary, the language would be taken as
5. The issue on who would participate conclusive especially where the words
in fresh presidential elections, in the used were unambiguous.
2013 Raila Case was not raised by the 11. Article 140 (3) stated that if the Supreme
Petitioners or the Respondent nor did Court determined the election of the
it arise from the pleadings. It was not president-elect to be invalid, a fresh
a pleaded issue. Paragraph 286 of the election would be held within sixty
judgment in that case states, “The Hon. days after the determination. The
Attorney General, as amicus curiae, Constitution and the Elections Act
invited the court to give directions on a did not define the term fresh elections.
line of relief declared by the Constitution, The dictionary definition of a runoff is
depending on the finding on merits.” The a further competition, election, race,
directions requested for were not part etc., after a tie or inconclusive result. In
of the issues for determination or final Kenya, the runoff would be between two
orders of the Court. It could not be said leading candidates in the presidential
that they constituted the ratio decidendi. election. From the definitions, it was
6. The ratio decidendi of a judgment has clear that the election contemplated
been defined as the reason of or for the under article 140(3) was not the runoff
decision, the decision being the order contemplated in article 138(3) of the
of Court. It has been suggested that the Constitution.
more accurate description is that it is 12. Due regard was to be had to the fact
the principle of the decision. Whatever that article 140(3) would come into
the reasons for a decision were, it is the play after the nullification of the results
principle to be extracted from the case, of a presidential election. Nullification
the ratio decidendi which is binding and is the act of making something void.
not necessarily the reasons given for it. Article 140(3) used the words fresh
7. The observations of the Supreme Court election and the word fresh is defined
in the 2013 Raila Case were obiter dicta as recent, not stale, characterized by
and not the ratio decidendi of the decision. newness without any material interval
In those observations, the Supreme not previously known or used; new or
Court used the word suppose not less different. The question that would arise
than three times and it gave hypothetical from that terminology was on whether
situations to explain several scenarios a fresh election would also mean fresh
and to support its opinion. nominations. In determining that, it was
necessary to consider the fact that the
8. The Petitioner was an Interested Party
fresh elections were to be held within
in Supreme Court petition No 1 of
60 days of the judgment nullifying the
2017 which led to the nullification of
presidential election results.
presidential election results. It would
be jurisprudentially wrong to say that 13. In light of the applicable principles of
an Interested Party who supported a interpretation and the need to avoid an
petition ought not to benefit from the interpretation that would lead to absurd
decision of the Court. results, the 60 days period would not
be adequate for fresh nominations. The
9. The Supreme Court had no jurisdiction
interpretation which would serve public
to interpret article 140(3) of the
interest was that those who participated
Constitution. The statements it offered
in the invalidated election were qualified
on the candidates to a fresh presidential
to contest in the fresh election.
election were obiter dicta and they were
an opinion rendered at the request of the 14. The Petitioner participated in and
48
supported the petition which nullified in a democratic process, would be

the presidential election results. Even an unconstitutional unless it was justified
application of the Supreme Court’s obiter under the limitation clause. The right/
dicta would not bar the Petitioner from freedom to vote, and the right/freedom
contesting in the fresh elections. to stand for office were conceptually
15. Article 38 of the Constitution guaranteed inseparable, as they formed equally
political rights including the right to be integral parts of the democratic process.
a candidate for public office. The right 18. Article 27 of the Constitution guaranteed
to participate in an electoral process the right to equality and freedom from
both by voting and standing for elective discrimination. Article 27(4) listed the
office are part of the basic structure of grounds on which discrimination could
a democratic state. Restrictions placed occur and such discrimination would
on such participation could only be be presumed to be unfair. In assessing
justified by very strong reasons and in a whether there was discrimination, it was
manner in which the core basic feature, necessary to determine;
democracy, is not damaged. a) Whether the Gazette Notice complained
16. Political rights and the right to equality of differentiated between different
and freedom from discrimination are presidential candidates,
not absolute. They can be limited as b) Whether the differentiation amounted
provided by law and only to the extent to discrimination, and
that the limitation is reasonable and c) Whether the discrimination was unfair.
justifiable in an open democratic society. 19. The exclusion of the Petitioner from
Any such limitation will be subjected to the ballot in the elections scheduled for
three tests which are to the effect that a October 26, 2017 was a violation of his
limitation will only be acceptable; rights to political participation. It was
a) When prescribed by law, also unfair and therefore discriminatory.
b) When it is necessary and 20. Having contested in the presidential
proportionate, and, election as a candidate and also
participated in the presidential election
c) When it pursues a legitimate aim
petition whose outcome was the
which includes the interests of
nullification of the election results, as an
national security or public safety,
Interested Party, the Petitioner would
the prevention of disorder or
not be deemed to have conceded defeat.
crime, the protection of health or
There was no legal basis for excluding
morals or the protection of the
the Petitioner from contesting in the
rights and freedoms of others.
fresh presidential elections.
17. Any action that specifically barred
Petition allowed.
the Petitioner, from participating
Extent of a bank’s liability for loss of a business opportunity arising from

the misplacement of a title document kept in its custody
Eric Omuodo Ounga v Kenya Commercial Bank Limited
Civil Suit No 42 “A” of 2015
High Court at Kisumu
D S Majanja, J
October 19, 2017
Tort Law-duty of care-the duty of care owed by Tort Law-foreseeability of damages and
a Bank to its Customers-duty of care to keep title remoteness-damages claimed for a loss of business
documents relating to secured loan agreements opportunity as a result of a breach of a duty of
in safe custody-effect of misplacement of a title care-legal considerations related to an assessment
document relating to property offered as security of such damages-need to prove the actual loss
to a loan facility offered by a Bank. suffered-whether damages could be claimed for a
refund of deposit paid for a failed sale agreement.
49
Banking Law-the relationship between banks and which was written on behalf of the
their customers- duty to exercise reasonable care Plaintiff, recognized that there had
and skill-duty to keep title documents relating to been no response to the prior letter by
secured loan agreements in safe custody-breach of Kalya & Company Advocates and that
the duty by misplacing title documents-remedies the Plaintiff was aware that the title
available for such a breach. document was lost.
Brief facts 2. Whether the Plaintiff was entitled to the
title document depended on when he
The Plaintiff sought damages for a loss cleared the loan. The Bank speculated
of a business opportunity due to the on the exact time when the loan was
misplacement of the title to charged property cleared. The evidence of DW1 was
which was in the bank’s possession. In 2008, that the loan was cleared on April 17,
the Plaintiff took a loan of Kshs. 15, 000, 2015 and that fact was confirmed by a
000/= and secured it with a charge over the certificate issued by Metropol Credit
suit property. The title deed, which was the Reference Bureau on April 22, 2015.
Certificate of Lease, was kept in the Bank’s
3. Since the loaned amount was still due
custody.
when the letter from Shivaji & Company
Acting together with a company, the Plaintiff Advocates was received on April 15,
took another loan in 2009 amounting to 2015, the Bank could have informed
Kshs. 108, 000, 000/= in order to purchase the Plaintiff that the request could
20 housing units in Kisumu. When the Bank not be honoured as the loan was still
pressured him to repay the loan, the Plaintiff outstanding. Clause 10 of the charge
decided the sell the suit property. A Mr instrument provided that a transaction
Waiyera agreed to purchase the property for or transfer of the suit property could
Kshs. 31, 000, 000/=. However, the sale of only be effected with the Bank’s
the suit property could not be completed as consent. However, clause 10 did not
the bank was unable to release the Certificate mean that the Plaintiff could not enter
of Lease, the title document. into prospective agreements which the
The Plaintiff claimed damages for losses Bank could reject or accept.
allegedly arising from the misplacement of 4. The facts did not support reliance on
the title. He claimed that he suffered loss clause 10 of the charge instrument in
amounting to Kshs. 237, 356, 000/=. order to avoid liability. The Plaintiff had
cleared the loan on April 17, 2015 and
Issues
was entitled to the title document but
i. Whether a bank was in breach of its the bank was quiet and it knew that it
duty of care to its customers when it had misplaced the title document.
misplaced a title document, relating
5. The Bank-customer relationship is
to property over which there was
contractual in nature and imposes a
a charge to secure a loan given to a
duty on the Bank to exercise reasonable
customer by the bank.
care and skill in its dealings with the
ii. Whether damages relating to a loss
customer. The Bank’s duty of care to its
of opportunity to sell property
customers would also arise concurrently
resulting from the misplacement of
in tort. The Bank had a duty of care to
a title document were reasonably
ensure that it kept its customer’s title
foreseeable.
documents in safe custody.
iii. Foreseeability of damages in tort vis-
à-vis foreseeability of damages in 6. The cause of action could arise both in
contract. tort and in contract. A Claimant would
choose to pursue the claim in either tort
Held
or contract while bearing in mind issues
1. There was a failure by the Defendant to such as differences in limitation periods
respond to a letter from the Plaintiff’s and the rules on remoteness of damages.
counsel, which sought the release of 7. The bank had a duty of care to keep
the title document, Certificate of Lease. the title document in safe custody
Another letter from the Plaintiff’s and it knew that it had misplaced the
counsel, Shivaji & Company Advocates, document. It did not formally inform
50
the Plaintiff of the misplacement until it 11. The letters from Kalya & Company
forwarded to him statutory declarations Advocates and Shivaji & Company
to enable him process a replacement Advocates were crystal clear that the
document. Plaintiff wanted to dispose of the suit
8. The Plaintiff claimed compensation for property and had entered into a sale
loss of several business opportunities agreement. That fact was known by
related to buying and selling land. the Bank and breach of that agreement
Those opportunities related to Third of sale was a foreseeable consequence
Parties including persons other than of the Bank’s breach of duty of care.
Mr Waiyera. Additionally, the Plaintiff However, the evidence tendered in
elected to make his claim in tort where Court did not indicate that the property
the primary rule which determined was being used for a business or that it
what damages were recoverable was was a development property.
that of reasonable foreseeability. 12. Losses flowing from loss of business
9. Foreseeability of damages in tort and opportunities and deals with Third
in contract is different. In tort the test Parties including loss of anticipated
is reasonable foreseeability of the loss profits are too speculative and failure
or damage which is likely to result from of the said deals can not be attributed to
an act or omission complained of. That the Bank’s action or inaction. The Bank
tort test could result in having to pay knew nothing of those transactions
for something, although reasonably and none of them were brought to its
foreseeable, very unusual, not likely to attention between April and August
occur and much greater in amount that 2015.
could have been anticipated. In contract, 13. The measure of damages was to be based
the test is whether the loss is a type of on the effect of breach of the Bank’s duty
loss for which a party an reasonably be of care on the sale agreement between
assumed to have assumed responsibility. the Plaintiff and Mr Waiyera. The
10. The nature of the relationship between failure of that agreement meant that the
the Plaintiff and the Bank was a Plaintiff had to refund the deposit of
factor in determining the question Kshs. 5, 000, 000/= paid by Mr Waiyera.
of foreseeability of damages. It was However, as the Plaintiff retained the
necessary to assess whether the Bank suit property after refunding the deposit,
knew of the Plaintiff’s intention to sell he did not lose anything. The Plaintiff
the property after settling the loan and did not prove that he paid interest on
of the kind of property that was being the deposit refunded to Mr Waiyera.
sold. Suit dismissed with no order as to costs.
The IEBC has no jurisdiction to deal with a dispute concerning the

nomination of members to a County Assembly after the gazettement of
their names.
Rahma Issak Ibrahim v Independent Electoral & Boundaries Commission & 2 others
Constitutional Petition No 456 of 2017
E C Mwita, J
October 19, 2017
Jurisdiction-jurisdiction of the High Court- Elections Act, No 24 of 2011, sections 34 & 36(4).
jurisdiction to assess whether an action was
Constitutional Law-mandate of the Independent
undertaken in accordance with the law and
Electoral and Boundaries Commission (IEBC)-
the Constitution-whether the High Court had
the extent of the IEBC’s mandate to settle election
jurisdiction over a dispute concerning the IEBC’s
disputes-disputes relating to nomination of a
decision to remove or degazette the Petitioner as
member to a County Assembly- whether the IEBC
a nominated member of a County Assembly-
could handle the dispute after such a nominated
Constitution of Kenya 2010, articles 165, & 177;
51
member of a County Assembly had been duly jurisdiction over the issue.
gazetted-Constitution of Kenya 2010, article 3. Article 177 of the Constitution provided
88(4); Elections Act, No 24 of 2011, section 74. for the composition of a County
Brief facts Assembly and how its members would be
elected. There were those elected directly
The Petitioner, a nominated member of the from wards, those nominated based on
County Assembly of Mandera (MCA), was special seats for gender top up, those
nominated by Jubilee party and gazetted nominated from marginalised groups
as such by the Independent Electoral and and the Speaker. Nominated members
Boundaries Commission (IEBC) on August would be nominated by political parties
28, 2017, vide Gazette Notice No 8380. She in proportion to the number of seats
was then sworn in on September 7, 2017 as a garnered by the parties in relation to the
member of the County Assembly. members directly elected from the wards.
The Petitioner’s contention was that the 4. Section 34 of the Elections Act, 2011
IEBC on September 6, 2017 published required political parties which
Gazette Notice No 8752 in which her name nominated persons to participate in
as an MCA was deleted and replaced with the the election to County Assemblies to
name of the 1st Interested Party. The effect submit party lists which ought to be
was to replace her with the 1st Interested on a priority basis. Under section 36
Party for purposes of one of the posts of (4) of the Elections Act, 2011, within
nominated member of the County Assembly thirty days after the declaration of
of Mandera. She complained that the speaker election results, the Commission would
of the County Assembly intended to swear in designate from each qualifying list, the
the 1st Interested Party to take her place. party representatives on the basis of
Issues proportional representation.
5. The IEBC was responsible for the
i. Whether the High Court had
conduct and supervision of elections
jurisdiction to deal with a dispute
in the party lists relating to nominated
relating to the nomination of a
members of the National Assembly, the
nominated member of a County
Senate and County Assemblies. There
Assembly.
was no doubt that the law was followed
ii. After gazettement of the names of since the Jubilee party list was submitted
nominated members of a County to IEBC and it formed the basis of the
Assembly, does the IEBC have the nomination which led to the dispute
mandate to degazette or revoke and before Court.
replace a nominated member of a
6. The IEBC conducted elections for the
County Assembly?
party gender top up lists and gazetted
Held them as required by the Elections Act.
1. Jurisdiction is the authority granted to a In the Petitioner’s case, her name was in
Court to determine issues placed before the list published on July 23, 2017 and
it for resolution. Article 165 (3) of the she was gazetted as duly nominated on
Constitution provided for the jurisdiction August 28, 2017. She was subsequently
of the High Court. Article 165(3) (d) (ii) sworn in as a member of the County
provided for the High Court’s jurisdiction Assembly on September 7, 2017.
to determine whether anything said to 7. After the IEBC concluded elections for
have been done under the authority of the party top up lists and gazetted names
the law was done in accordance with the of those who had been nominated to the
Constitution or the law. National Assembly, Senate and County
2. The issue before the Court was on Assembly, the nomination became an
whether the IEBC’s decision to remove election which could only be challenged
or degazette the Petitioner’s name via an election petition. Under article
as a nominated member of a County 88(4) of the Constitution and section
Assembly, on September 6, 2017, was 74 of the Elections Act, the IEBC had
in accordance with the Constitution or the mandate to settle election disputes
the law. Therefore, the High Court had including disputes related to or arising
52
from nominations excluding election Petition allowed.

petitions and disputes subsequent to
Orders:-
declaration of election results. Therefore,
the IEBC was barred from handling i. A declaration that the 1st Respondent
disputes relating to elections or disputes lacked lawful authority to remove a
subsequent to an election. duly nominated member of the County
Assembly without following due process of
8. The question as to who between the
the law as set out under the Constitution
Petitioner and the 1st Interested Party
and the County Government Act.
ought to have been nominated by
ii. A declaration that Gazette Notice No
Jubilee party could only be legitimately
8752 published in vol. LX1X No 131 on
determined by the IEBC before August
September 6, 2017 in so far as it purported
28, 2017. After that date, the action of
to delete the name of the Petitioner and in
gazetting those nominated was deemed
place thereof insert the name of the 1st
to be an election and the Petitioner was,
Interested Party was irregular null and
for that matter, duly elected to the County
void.
Assembly of Mandera. Thereafter, the
iii. An order of mandatory injunction
IEBC did not have the mandate to deal
compelling the Independent Electoral and
with her election.
Boundaries Commission to withdraw
9. The legal position is that once a member the amendment or corrigenda to Gazette
is gazetted as duly nominated, that is an Notice No. 8380 in so far as it purported
election result and anyone who is unhappy to delete the name of the Petitioner and
with the result can only challenge it in place thereof insert the name of the 1st
in an election Court. In purporting to Interested Party, was issued.
delete the Petitioner’s name as a duly iv. An order of injunction prohibiting the
nominated member of Mandera County 2nd Respondent from swearing in the
Assembly and substitute it with that of 1st Interested Party as a member of the
the 1st Interested Party, the IEBC acted County Assembly of Mandera in place of
outside its mandate. The Speaker of the the Petitioner was issued.
County Assembly of Mandera, could not v. The 1st Respondent, the Independent
lawfully swear in the 1st Interested Party Electoral and Boundaries Commission,
consequent to the illegal Gazette Notice was to pay the costs of the petition.
No 8752 of September 6, 2017.
“No people without a government of their own can expect to be treated on the same level as
people of independent sovereign states. It is far better to be free to govern or misgovern your-
self than to be governed by anybody else” - Kwame Nkrumah
53
Britain Ends Courtroom Tradition of Wigs and Gowns

in Court
By Linda Awuor
L
a w y e r s
appearing
at the UK’s
highest court will
no longer have to
wear the traditional
wig and gown.
Supreme Court
President Lord
Phillips announced
the move, saying it criminal courts.
was in line with the court’s goal to make its The UK’s Supreme Court (UKSC) was set
work as accessible as possible. If all advocates up in 2009 to replace the Law Lords. It is the
in a case agree, they may ask to dispense with last court of appeal in all matters other than
part or all of court dress. Supreme Court criminal cases in Scotland.
justices wear no legal dress themselves
already. The relaxed dress code would also History of the Court dress
apply to advocates appearing before the The history of the robe and wig goes back
Judicial Committee of the Privy Council to medieval times, when lawyers retained the
(JCPC), said the statement from the Supreme tunic worn by men as a sign of learning until
Court. Judges and lawyers appearing in the middle 14th century. Originally court
criminal courts still wear traditional wigs dress was designed to distinguish members of
and gowns but they can be dispensed in cases the legal profession from other members of
involving children. society. In England, following publication of
The Supreme Court move followed a request the scholarly work The Discourse on Robes
by the United Kingdom Supreme Court and Apparel in 1625, the Commission of
Judicial Committee of the Privy Council Westminster passed a Royal Decree on court
UKSC/JCPC User Group, which represents dress. This document, known as the Judges’
professional users of the court, for an Rules of 1635, aimed to regulate the attire
extension of the practice already adopted worn by judges. Under the Judges’ Rules,
in family cases under which advocates judges were to wear black or dark violet
customarily appear unrobed. In 2008, judges robes on normal occasions, and red robes for
in civil and family cases in England and Wales special ceremonial events and criminal cases.
stopped wearing wigs. A simplified design of Although barristers were not subject to these
working robes in court was also introduced. formal regulations, they also began to wear
only black robes during this period.
“The Justices agree that this development
would further underline the Court’s Court dress was worn at hearings in open
commitment to providing an appropriate court in all Senior Courts of England and
environment for considered discussion of Wales and in county courts. However, court
legal issues, and is in line with the Court’s goal dress may be dispensed with at the option
to make this process as accessible as possible,” of the judge, e.g. in very hot weather, and
the statement from the Supreme Court invariably where it may intimidate children,
president said. The Supreme Court president e.g. in the Family Division and at the trials of
went on to state that it was anticipated that minors. In the Supreme Court of the United
while some advocates would not wish to take Kingdom and in the Judicial Committee of
advantage of the dispensation, others might the Privy Council, counsel need not wear
prefer to reduce their legal dress to a simple court dress if all advocates in a case agree
gown, or to appear without legal dress at not to. The judge’s dress was conventional
all. The wigs will however still be worn in business attire. Court dress was not worn at
54
hearings in chambers and in the magistrates’ court coat, was cut like 18th-century court
courts. dress and the sleeve of the QC’s court coat or
bar jacket had a turned back cuff with three
Advocates
buttons across.
English advocates (whether barristers or
Judges
solicitors) who appeared before a judge who
was robed, or before the Supreme Court of Until 2008, judges in the Family and
the United Kingdom or Judicial Committee Chancery divisions of the courts wore the
of the Privy Council, were required to be same black silk gown and court coat or bar
robed. jacket as QCs, as did judges in the Court of
Appeal. All judges wore a short bench wig
All male advocates were required to wear
when working in criminal court, reserving
a white stiff wing collar with bands. They
the long wig for ceremonial occasions, and a
also wore either a dark double-breasted suit
wing collar and bands.
(or with waistcoat if single-breasted) or a
black coat and waistcoat and black or grey From autumn 2008, judges in all civil and
morning dress striped trousers. The black family cases began to wear a newly designed
coat and waistcoat could be combined into a robe with no wig, collar or bands, over an
single garment, which was simply a waistcoat ordinary business suit and tie, with the
with sleeves, known as a bar jacket or court exception of circuit judges in the county
waistcoat. Female advocates also wore a court, who opted to retain their former style
dark suit, but often wore bands attached to or robe, but without wig, wing collar and
a collarette - a small ornamental collar of bands.
fur, lace, or other material, worn by women-
Members of the Judicial Committee of the
rather than a wing collar.
House of Lords (or “Law Lords”) and the
Junior barristers Judicial Committee of the Privy Council
did not wear the court dress at all (although
Junior barristers wore an open-fronted
advocates appearing before them did). Instead
black gown with open sleeves, gathered and
they were dressed in ordinary business
decorated with buttons and ribbons, and
clothing. Since the creation of the Supreme
a gathered yoke, over a black or dark suit,
Court of the United Kingdom, the Justices
hence the term stuffgownsman for juniors.
of that Court, being former Law Lords, have
In addition barristers wore a short horsehair
retained the Law Lords’ tradition of sitting
wig with curls at the side and ties down the
unrobed.
back.
Legal Dress in Kenya
Solicitors
Judicial attire has been a colonial and neo-
Solicitors wore the same wing collar with
colonial imposition from England. English
bands, or collarette, as barristers. Their
ideas of judicial attire and mode of addressing
gowns were of a slightly different style, with
the court were adopted in the country. Dress
a square collar and without gathered sleeves.
code is regarded as a part of dignity and
By virtue of the Consolidated Criminal
seriousness of the profession.
Practice Direction (as amended by Practice
Direction (Court Dress) (No4) [2008] 1 When he was appointed the Chief Justice in
WLR 257), “Solicitors and other advocates 2011, one of Dr Mutunga’s first initiatives
authorised under the Courts and Legal was to do away with the long-established
Services Act 1990...may wear short wigs in tradition where judges and lawyers donned
circumstances where they would be worn by robes and wigs in court. This, he argued, was
Queen’s Counsel or junior counsel.” a way of decolonizing the Judiciary because
maintaining a tradition that has little to do
Queen’s Counsel
with contemporary Kenyan society was
Barristers or solicitors who had been antiquated and ridiculous.
appointed Queen’s Counsel (QC), wore a
Since his appointment in September
silk gown with a flap collar and long closed
2016, Chief Justice David Maraga, a self-
sleeves (the arm opening is half-way up the
proclaimed conservative, has reintroduced
sleeve). The QC’s black coat, known as a
the robes and the wigs in court.
55
Feedback For Caseback Service
By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Thank you for providing the caseback facility.

Justice Fred A. It is a vital tool in keeping a Judge informed
Ochieng. about the correctness or otherwise
High Court – Nairobi of his decision.
Hon. Abdulgadir Dear KenyaLaw,

Ramadhani Thank you for the continued update. I have
S.P.M -Thika Law found great use in all of them. Indeed
Courts we are the pride of our region.
Hon. Charles Obulutsa. Thanks for the update. Look forward to getting
C.M Eldoret Law more.
courts
Hon. James Macharia

Muriuki Good work. Keep up. Keep sending more.
S.R.M - Keroka Law
Courts
International
Jurisprudence
Supreme Court of India Declares that Sexual Intercourse with a Minor
Wife Amounts to Rape Provided the Woman Files a Complaint within a
Year
Independent Thought v. Union of India and Another
Supreme Court of India
Writ Petition (Civil) No. 382 of 2013
Madan B. Lokur, J.
October 11, 2017
Reported by Linda Awuor & Enock Amolo
Constitutional Law-fundamental rights and age was a child and it was for that reason that
freedom-right to equality-whether enactment the law penalized sexual intercourse with a
of Exception 2 to The Indian Penal Code (IPC) girl who was below 18 years of age.
providing that sexual intercourse or sexual acts by
Unfortunately, by virtue of Exception 2
a man with his own wife, the wife not being under
to section 375 of the IPC, if a girl child
fifteen years of age, was not rape were arbitrary,
between 15 and 18 years of age was married,
discriminating and violated the girl child’s right
her husband could have non-consensual
to equal protection of law - Constitution of India,
sexual intercourse with her, without being
article 14.
penalized under the IPC, only because she
Constitutional Law-fundamental rights and was married to him and for no other reason.
freedom-protection from discrimination-whether
The right of such a girl child to bodily integrity
enactment of Exception 2 to IPC providing that
and to decline to have sexual intercourse
sexual intercourse or sexual acts by a man with
with her husband had been statutorily taken
his own wife, the wife not being under fifteen
away and non-consensual sexual intercourse
years of age, was not rape contravened provisions
with her husband was not an offence under
of article 15(3) of the Constitution which enabled
the IPC.
Parliament to make special provisions for women
and children- Constitution of India, article 15(3). Exception 2 to section 375 of the IPC was not
only arbitrary but was also discriminatory
Brief facts
and contrary to the beneficial intent of article
The petitioner was a registered society 15(3) of the Constitution which enabled
working in the area of child rights. They Parliament to make special provision for
filed a petition under article 32 of the women and children. In fact, by enacting
Constitution in public interest with a view to Exception 2 to section 375 of the IPC in the
draw attention to the violation of the rights statute book, the girl child was placed at a
of girls who are married between the ages of great disadvantage, contrary to the visionary
15 and 18 years. and beneficent philosophy propounded by
Article 15(3) of the Constitution.
According to the petitioner, section 375
of the IPC prescribed the age of consent Issues
for sexual intercourse as 18 years thereby
I. Whether there was any incongruity
meaning that any person having sexual
between Exception 2 to section 375
intercourse with a girl child below 18 years
of the IPC and section 5(n) of the
of age would be statutorily guilty of rape even
Protection of Children from Sexual
if the sexual activity was with her consent.
Offences Act, 2012 (POCSO) and
According to them, almost every statute in
which provision overrides the other.
India recognized that a girl below 18 years of
57
II. Whether the provisions of Exception Prohibition of Child Marriage Act.

2 to the IPC providing that sexual
Section 3-Child marriages to be voidable
intercourse or sexual acts by a man
at the option of contracting party being a
with his own wife, the wife not being
child:
under fifteen years of age, was not rape
were arbitrary, discriminating and Every child marriage, whether solemnised
violated the right to equal protection before or after the commencement of this
of law as provided for under article 14. Act, shall be voidable at the option of the
III. Whether Exception 2 of the IPC contracting party who was a child at the time
providing that sexual intercourse of the marriage
or sexual acts by a man with his Held
own wife, the wife not being under
1. The Protection of Human Rights
fifteen years of age, was not rape
Act, 1993 defined human rights in
contravened provisions of article 15(3)
section 2(d) as meaning the rights
of the Constitution which provided
relating to life, liberty, equality and
for affirmative action for women and
dignity of the individual guaranteed
children.
by the Constitution or embodied
Relevant provisions of the law in international covenants and
Constitution. enforceable by courts in India.
Article 15-Fundamental Rights: 2. If a girl child was forced by her husband
into sexual intercourse against her will
(3) Nothing in this article shall prevent the or without her consent, it amounted
State from making any special provision for to a violation of her human right to
women and children. liberty or her dignity guaranteed by
Indian Penal Code. the Constitution and international
conventions accepted by India such as
Section 375-sexual offences: the Convention on the Rights of the
A man is said to commit “rape” if he Child (the CRC) and the Convention
penetrates his penis, to any extent, into the on the Elimination of All Forms of
vagina, mouth, urethra or anus of a woman Discrimination Against Women (the
or makes her to do so with him or any other CEDAW).
person. 3. There was no real or material difference
Exception 2 between the definition of rape in the
terms of Section 375 of the IPC and
Sexual intercourse or sexual acts by a man penetrative sexual assault in the terms
with his own wife, the wife not being under of Section 3 of the POCSO Act. The
fifteen years of age, is not rape. only difference was that the definition
Protection of Children from Sexual of rape was somewhat more elaborate
Offences Act, 2012 and had two exceptions but the sum
and substance of the two definitions
Section 5- Aggravated Penetrative Sexual
were more or less the same and the
Assault
punishment (under section 376(1)
(n) whoever being a relative of the child of the IPC) for being found guilty of
through blood or adoption or marriage or committing the offence of rape was the
guardianship or in foster care or having same as for penetrative sexual assault
a domestic relationship with a parent of (under section 4 of the POCSO Act).
the child or who is living in the same or 4. The punishment for aggravated rape
shared household with the child, commits under section 376(2) of the IPC was
penetrative sexual assault on such child. the same as for aggravated penetrative
sexual assault under section 6 of the
POCSO Act. It was immaterial if a
person was guilty of the same sexual
activity under the provisions of the
POCSO Act or the provisions of the
58
IPC, the end result was the same and that sought to restrict the benefit made
only the forum of trial changed. available to a girl child. That only
5. Various statues defined a child as a emphasized the spirit of article 15(3) of
person below 18 years of age who the Constitution.
was entitled to the protection of her 9. Integrity of a girl child and the
human rights including the right to live reproductive choices available to her
with dignity; if she was unfortunately were important only to highlight
married while a child, she was that she could not be treated as a
protected from domestic violence, commodity having no say over her
both physical and mental, as well as body or someone who had no right to
from physical and sexual abuse; if she deny sexual intercourse to her husband.
was unfortunately married while a The human rights of a girl child were
child, her marriage was in violation of very much alive and kicking whether
the law and therefore an offence and she was married or not and deserved
such a marriage was voidable at her recognition and acceptance.
instance and the person marrying her 10. Whether sexual intercourse that a
was committing a punishable offence; husband had with his wife who was
the husband of the girl child was between 15 and 18 years of age was
committing aggravated penetrative described as rape (not an offence
sexual assault when he had sexual under Exception 2 to section 375 of the
intercourse with her and was thereby IPC) or aggravated penetrative sexual
committing a punishable offence under assault (an offence under section 5(n) of
the POCSO Act. the POCSO Act and punishable under
6. The only jarring note in the scheme section 6 of the POCSO Act) the fact
of the pro-child legislations was to be was that it was rape as conventionally
found in Exception 2 to section 375 understood, though Parliament in its
of the IPC which provided that sexual wisdom had chosen to not recognize
intercourse with a girl child between 15 it as rape for the purposes of the IPC.
and 18 years of age was not rape if the That it was a heinous crime which also
sexual intercourse was between the girl violated the bodily integrity of a girl
child and her husband. The question child, caused trauma and sometimes
of punishing the husband simply did destroyed her freedom of reproductive
not arise. A girl child placed in such choice was a composite issue that
circumstances was a child in need of needed serious consideration and
care and protection and needed to be deliberation.
cared for, protected and appropriately 11. Pro-child statutes were intended to
rehabilitated or restored to society. and do consider the best interest of the
7. All child-friendly statutes were child. The statutes had been enacted in
essential for the well-being of the girl the recent past though not effectively
child whether married or not and implemented. Given the situation, a
were protected by article 15(3) of the few facts needed to be acknowledged
Constitution. Those child-friendly and accepted.
statutes also linked child marriages 12. A child was and remained a child
and sexual intercourse with a girl child regardless of the description or
and drew attention to the adverse nomenclature given to the child. It
consequences of both. was universally accepted in almost all
8. Article 15(3) of the Constitution could relevant statutes in the country that a
not be interpreted restrictively but was child was a person below 18 years of
to be given its full play. Viewed from the age. A child remained a child whether
perspective, it seemed that legislation she was described as a street child or
intended for affirmative action in a surrendered child or an abandoned
respect of a girl child, must not only child or an adopted child. A child
be liberally construed and interpreted remained a child whether she was a
but must override any other legislation married child or an unmarried child or
59
a divorced child or a separated child or arbitrary and discriminatory.

a widowed child. It was Shakespeare’s 17. There was no question of a girl child
eternal view that a rose by any other giving express or implied consent for
name would smell as sweet - so also sexual intercourse. The age of consent
with the status of a child, despite any was statutorily and definitively fixed
prefix. at 18 years and there was no law that
13. The age of consent for sexual intercourse provided for any specific deviation
was definitively 18 years and there from that.
was no dispute about that. Under no 18. Unless Parliament gave any specific
circumstance could a child below 18 indication which it had not and it had
years of age give consent, express or not given any such indication that the
implied, for sexual intercourse? The age of consent could be deviated from
age of consent had not been specifically for any rational reason, it could not
reduced by any statute and unless there be assumed that a girl child who was
was such a specific reduction, then otherwise incapable of giving consent
the age of consent and willingness for sexual intercourse had nevertheless
to sexual intercourse remained at 18 given such consent by implication,
years of age. necessary or otherwise only by virtue
14. Exception 2 to section 375 of the IPC of being married.
created an artificial distinction between 19. It was reading too much into the mind
a married girl child and an unmarried of the girl child and assuming a state of
girl child with no real rationale and affairs for which there was neither any
thereby did away with consent for specific indication nor any warrant.
sexual intercourse by a husband with The days were long gone when a
his wife who was a girl child between married woman or a married girl child
15 and 18 years of age. Such an could be treated as subordinate to her
unnecessary and artificial distinction if husband or at his beck and call or as his
accepted could again be introduced for property. Constitutionally a female has
other occasions for divorced children equal rights as a male and no statute
or separated children or widowed could be interpreted or understood
children. to derogate from the position. If there
15. What was sought to be achieved by the was some theory that propounded
artificial distinction was not at all clear such an unconstitutional myth, then
except perhaps to acknowledge that that theory deserved to be completely
child marriages were taking place in the demolished.
country. Such child marriages certainly 20. Merely because child marriages had
could not be in the best interest of the been performed in different parts of
girl child. That the solemnization of a the country as a part of a tradition or
child marriage violated the provisions custom did not necessarily mean that
of the Protection of Child Marriage Act the tradition was an acceptable one nor
(PCMA) and were well-known. It was could it be sanctified as such. Times
for the State to effectively implement changed and what was acceptable the
and enforce the law rather than dilute few decades ago were not necessarily
it by creating artificial distinctions. acceptable currently.
16. The Union of India could not be 21. The impact and effect of Exception
oblivious to the existence of the trauma 2 had to be considered not with the
faced by a girl child who was married blinkered vision of the days gone by
between 15 and 18 years of age or to but with the social realities of today.
the three pro-child statutes and other Traditions that might have been
human rights obligations. That the acceptable at some historical point of
facts and statutes had been overlooked time were not cast in stone. If times
confirmed that the distinction was and situations changed, so must views,
artificial and made Exception 2 to traditions and conventions.
section 375 of the IPC all the more
60
22. An early marriage and sexual would have to deliver a baby even
intercourse at an early age had though her body was not quite ready
detrimental effects on the girl child for procreation.
not only in terms of her physical 26. Apart from constitutional and
and mental health but also in terms statutory provisions, constitutional
of her nutrition, her education, her morality forbade the interpretation
employability and her general well- to Exception 2 that sanctified a
being. To make matters worse, the tradition or custom that was no longer
detrimental impact could pass on to sustainable. The view that marital
the children of the girl child who may rape of a girl child had the potential of
be malnourished and may be required destroying the institution of marriage
to live in an impoverished state due to could not be accepted. Marriage
a variety of factors. An early marriage was not institutional but personal,
had an inter-generational adverse nothing could destroy the institution
impact. of marriage except a statute that made
23. In effect, the practice of early marriage marriage illegal and punishable.
or child marriage even if sanctified 27. Looked at from another perspective,
by tradition and custom was an the PCMA made child marriages
undesirable practice with increasing voidable and made the parties to a child
awareness and knowledge of its marriage (other than the girl child)
detrimental effects and the detrimental punishable for an offence under the
effects of an early pregnancy. The said Act. For someone who supported
traditional practice ought not to the institution of marriage, nothing
continue and the sooner it was given could be more destructive of the
up, it was in the best interest of the girl institution of marriage than the PCMA
child and for society as a whole. which made a child marriage voidable
24. Article 21 of the Constitution gave a and punishable on the one hand and
fundamental right to a girl child to live on the other, it otherwise collaterally
a life of dignity. Early marriage took legitimized the pernicious practice of
away the self-esteem and confidence child marriages.
of a girl child and subjected her, in 28. Sexual intercourse with a married
a sense, to sexual abuse. Under no girl child was a criminal offence of
circumstances could it be said that aggravated penetrative sexual assault
such a girl child lived a life of dignity. under the POCSO Act while the
The right of a girl child to maintain husband of a married girl child could
her bodily integrity was effectively not have committed rape for the
destroyed by a traditional practice purposes of the IPC but he nevertheless
sanctified by the IPC. Her husband, had committed aggravated penetrative
for the purposes of section 375 of the sexual assault for the purposes of the
IPC, effectively had full control over POCSO Act. The punishment for rape
her body and subjected her to sexual and the punishment for penetrative
intercourse without her consent or sexual assault was the same, namely
without her willingness since such an imprisonment for a minimum
activity was not rape. period of 7 years which extended to
25. It appeared that different and irrational imprisonment for life.
standards had been laid down for 29. Primacy was to be given to pro-child
the treatment of the girl child by statutes over the IPC as provided for
her husband and it was necessary to in sections 5 and 41 of the IPC. There
harmonize the provisions of various were several reasons for that including
statutes and also harmonize different the absence of any rationale in creating
provisions of the IPC inter-se. There an artificial distinction, in relation to
was every possibility that being sexual offences, between a married
subjected to sexual intercourse, the girl child and an unmarried girl child.
girl child could become pregnant and Statutes concerning the rights of
61
children were special laws concerning offences under the Act. Section 29 of
a special subject of legislation and the POCSO Act provided that where a
therefore the provisions of such person was prosecuted for committing
subject-specific legislations had to or abetting or attempting to commit
prevail and take precedence over the an offence under section 3 (penetrative
provisions of a general law such as the sexual assault) or under section 5
IPC. (aggravated penetrative sexual assault)
30. Provisions of the Juveniles Justice then the Special Court presumed
(Care and Protection of Children) Act, that such a person had committed or
2015 (JJ Act) as well as the provisions abetted or attempted to commit the
of the POCSO Act were traceable to offence unless the contrary was proved.
article 15(3) of the Constitution which 35. Of much greater importance and
enabled Parliament to make special significance was section 42-A of the
provisions for the benefit of children. POCSO Act. The section provided that
There were no other opinion regarding the provisions of the POCSO Act were
the pro-child slant of the JJ Act as well in addition to and not in derogation of
as the POCSO Act. the provisions of any other law in force
31. A cursory reading of the JJ Act gave a which included the IPC. Moreover, the
clear indication that a girl child who section provided that in the event of any
was in imminent risk of marriage inconsistency between the provisions
before attaining the age of 18 years of the POCSO Act and any other law,
of age was a child in need of care and the provisions of the POCSO Act had
protection as envisaged in section 2 overriding effect.
(14) (xii) of the JJ Act. It could not be 36. Even though the IPC decriminalized
said with any degree of rationality the marital rape of a girl child, the
that such a girl child lost her status as husband of the girl child would
a child in need of care and protection nevertheless be liable for punishment
soon after she got married. under the provisions of the POCSO
32. The JJ Act provided that efforts Act for aggravated penetrative sexual
needed to be made to ensure the care, assault. The fact was that there was no
protection, appropriate rehabilitation real distinction between the definition
or restoration of a girl child who was of rape under the IPC and the definition
at imminent risk of marriage and of penetrative sexual assault under the
therefore a child in need of care and POCSO Act.
protection. If the provision was ignored 37. There was real distinction between
or given a go by, it would put the girl the rape of a married girl child and
child in a worse off situation because aggravated penetrative sexual assault
after marriage she could be subjected to punishable under section 6 of the
aggravated penetrative sexual assault POCSO Act. The punishment for
for which she might not be physically, the respective offences was the same,
mentally or psychologically ready. except that the marital rape of a girl
33. The intention of the JJ Act was to child between 15 and 18 years of age
benefit a child rather than placing her was not rape in view of Exception 2.
in difficult circumstances. A contrary 38. Marital rape of a girl child was effectively
view could not only destroy the nothing but aggravated penetrative
purpose and spirit of the JJ Act but also sexual assault and there was no reason
took away the importance of article why it was not punishable under the
15(3) of the Constitution. provisions of the IPC. It did appear that
34. The provisions of the POCSO Act only a notional or linguistic distinction
made it quite explicit that the dignity was sought to be made between rape
and rights of a child below 18 years and penetrative sexual assault and rape
of age had to be recognized and of a married girl child and aggravated
respected. Section 28 provided for the penetrative sexual assault. There was
establishment of a Special Court to try no rationale for the distinction and it
was nothing but a completely arbitrary
62
and discriminatory distinction. to the extent of inconsistency.

39. Viewed from any perspective, there 44. Any marriage of a child, i.e. a female
seemed to be no reason to arbitrarily aged below 18 years and a male below
discriminate against a girl child who 21 years was void ab initio in the State
was married between 15 and 18 years of Karnataka. That was how the law
of age. On the contrary, there was ought to have been throughout the
every reason to give a harmonious and country. Where the marriage was
purposive construction to the pro- void, there could not be a husband or
child statutes to preserve and protect a wife and protection of Exception 2 to
the human rights of the married girl section 375 IPC could not be availed
child. of by the persons, who claim to be
40. There was absolutely no other option husband of child brides pursuant to a
but to harmonize the system of laws marriage which was illegal and void.
relating to children and required 45. The constitutional validity of the law
Exception 2 to section 375 of the enacted by the legislature was under
IPC to meaningfully read as: Sexual challenge and there was no challenge to
intercourse or sexual acts by a man with the legislative competence, the Court
his own wife, the wife not being under would always raise a presumption of
eighteen years of age, was not rape. It the constitutionality of the legislation.
was only through that reading that the The courts were reluctant to strike
intent of social justice to the married down laws as unconstitutional unless it
girl child and the constitutional vision was shown that the law clearly violated
of the framers of Constitution could be the constitutional provisions or the
preserved and protected and perhaps fundamental rights of the citizens. The
given impetus. courts must show due deference to the
Per Deepak Gupta, J. concurring legislative process.
41. Section 3 of the Majority Act, 1875 46. If the law was discriminatory, arbitrary
provided that a person shall attain or violative of the fundamental rights or
the age of majority on completing the was beyond the legislative competence
age of 18 years and not before. It was of the legislature then the Court was
pertinent to mention that section 2 of duty bound to invalidate such a law.
the Indian Majority Act contained a The principle is that normally the
non-obstante clause excluding laws courts should raise a presumption in
relating to marriage, divorce, dower favour of the impugned law; however,
and adoption from the provisions of if the law under challenge violates the
that Act. fundamental rights of the citizens, the
law is arbitrary, or is discriminatory,
42. POCSO was a landmark legislation
the courts can either hold the law to
for protection of child rights and
be totally unconstitutional and strike
to prevent the sexual abuse and
down the law or the Court might read
exploitation of children. The Act dealt
down the law in such a manner that the
with sexual offences committed against
law when read down does not violate
a child and a child was defined to be a
the Constitution.
person below the age of 18 years under
Section 2(d). 47. While courts show restraint while
dealing with invalidation of law, the
43. Section 42A provided that the
Court can not shut its eyes to the
provisions of POCSO were be in
violations of the fundamental rights
addition to and not in derogation of
of the citizens. If the legislature
the provisions of any other Act. The
enacts a law which is violative of the
legislature, in its wisdom, thought
fundamental rights of the citizens, is
that POCSO superseded and would
arbitrary and discriminatory, then
be in addition to the other criminal
the Court will be failing in its duty if
provisions and where there was
it does not either strike down the law
any inconsistency, the provisions of
or read down the law in such a manner
POCSO would override any other law
63
that it fails within the four corners of child good health would mean her right
the Constitution. to develop as a healthy woman. That
48. It is not the job of the Court to decide not only requires good physical health
whether a law is good or bad. Policy but also good mental health. The girl
matters fall within the realm of child is to be encouraged to bloom into
legislature and not of the courts. The a healthy woman. The girl child is not
Court, however, is empowered and has to be deprived of her right of choice.
the jurisdiction to decide whether a She is not to be deprived of her right
law is unconstitutional or not. to study further. When the girl child is
deprived of her right to study further,
49. The law, however, could not be
she is actually deprived of her right to
arbitrary or discriminatory merely
develop into a mature woman, who can
because the law is asinine, it can not
earn independently and live as a self-
be set aside. However, if the law is
sufficient independent woman.
arbitrary, discriminatory and violates
the fundamental rights guaranteed to 54. In relation to gender equality, the girl
the citizens of the country, then the child must be given equal opportunity
law can either be struck down or can to develop like a male child. Because of
be read down to make it in consonance the patriarchal nature of the society,
with the Constitution of India. some extra benefit needed to be
showered upon the girl child to ensure
50. There is no dispute that a law can
that she was not deprived of her right
be struck down if the Court finds it
to life, which included her right to
arbitrary and fall foul of article 14
grow and develop physically, mentally
and other fundamental rights. Merely
and economically as an independent
because something is going on for a
self-sufficient female adult.
long time is no ground to legitimise
and legalise an activity which was per 55. Girls who were married before the
se illegal and a criminal offence. It is age of 19 years were likely to suffer
totally within the realm of Parliament medical and psychological problems.
to decide what should be the age of A 15 or 16-year-old girl, when forcibly
consent under clause of section 375 subjected to sexual intercourse by her
IPC. husband, undergoes trauma, which her
body and mind is not ready to face.
51. It was also within the domain of the
The girl child is also twice as more
Parliament to decide what should be
likely to die in child birth than a grown
the minimum age of marriage. The
up woman. Exception 2 to section 375
Parliament had decided in both the
IPC was arbitrary since it was violative
enactments that a girl below 18 years
of the principles enshrined in article
was not capable of giving consent
14, 15 and 21 of the Constitution of
to have sex and legally she could not
India.
marry.
56. The age of consent was changed to 18
52. Parliament had, in no uncertain terms,
years, the minimum age of marriage
prohibited child marriage and come
was also 18 years and, fixing a lower
to the conclusion that child marriage
age under Exception 2 was totally
was an activity which was to come to
irrational. It struck against the concept
an end. It was well settled that the right
of equality. It violated the right of fair
to life envisaged in article 21 of the
treatment of the girl child, who was
Constitution of India was not merely a
unable to look after herself.
right to live an animal existence. Right
to life meant a right to live with human 57. The magic figure of 15 years was not
dignity. based on any scientific evaluation, but
was based on the mere fact that it had
53. Life should be meaningful and worth
been existing for a long time. The age
living. Life has many shades. Good
of 15 years in Exception 2 was fixed
health is the raison d’etre of a good life.
in the year 1940 when the minimum
Without good health there can not be
age for marriage was also 15 and the
a good life. In the case of a minor girl
64
age of consent under clause Sixthly evil but since it was going on for a
was 16. When the age for marriage long time, such criminal acts should be
had been fixed at 18 years and when decriminalised.
the age of consent was also fixed at 18 62. The State was entitled and empowered
years, keeping the age under Exception to fix the age of consent. The State
2 at 15 years, could not be said to be could make reasonable classification
right, just and fair. It was arbitrary and but while making any classification it
oppressive to the girl child. ought to show that the classification had
58. Law can not be hidebound and static. It been made with the object of achieving
has to evolve and change with the needs a certain end. The classification ought
of the society. Recognising the factors, to have a reasonable nexus with the
the Parliament increased the minimum object sought to be achieved.
age for marriage. The Parliament also 63. A girl could legally consent to have
increased the minimum age of consent sex only after she attained the age of
but the inaction in raising the age in 18 years. She could legally enter into
Exception 2 was by itself an arbitrary marriage only after attaining the age of
non-exercise of power. When the age 18 years. When a girl got married below
was being raised in all other laws, the the age of 18 years, the persons who
age under Exception 2 should also have contracted such a marriage or abetted
been raised to bring it in line with the in contracting such child marriage,
evolving laws especially the laws to committed a criminal offence and
protect women and the girl child aged were liable for punishment under the
below 18 years. PCMA.
59. Exception 2, in so far as it related to 64. There was no rationale for fixing
the girl child below eighteen years, the age at 15 years. That age had no
was unreasonable, unjust, unfair and nexus with the object sought to be
violative of the rights of the girl child. achieved and maintaining the sanctity
To that extent the same was arbitrary of marriage because by law such a
and liable to be set aside. marriage was not legal. It might be true
60. There were certain other aspects that the marriage was voidable and
which made Exception 2 to section not void ab initio (except in the State
375 IPC in so far as it dealt with the of Karnataka) but the fact remained
girl child totally discriminatory. The that if the girl was married before the
law discriminated between a girl child age of 18 years, she had the right to get
aged less than 18 years, who might her marriage annulled. Irrespective of
have been educated and had sexual the fact that the right of the girl child
intercourse with her consent and a to get her marriage annulled, it was
girl child who might be married even indisputable that a criminal offence
before the age of 15 years, but her had been committed and other than
marriage had been consummated after the girl child, all other persons.
15 years even against her consent. That 65. POCSO was a special Act, dealing
was invidious discrimination which with the children whereas IPC was
was writ large. The discrimination the general criminal law. Therefore,
was between a consenting girl child, POCSO prevailed over IPC and
who was almost an adult and non- Exception 2 in so far as it related
consenting child bride. to children, was inconsistent with
61. While interpreting laws, the POCSO.
interpretation to be preferred was 66. On whether by striking down, partially
the one which protected the human or fully, Exception 2 to section 375 IPC
rights of the child, which protected the Court was creating a new offence.
the fundamental rights of the child, the There was no cavil of doubt that the
one which ensured the good health of courts could not create an offence.
the child and not the one which tried There could be no manner of doubt
to say that though the practice was that by partly striking down section
65
375 IPC, no new offence was being article 14, 15 and 21 of the Constitution
created. The offence already existed of India, discriminatory and violative
in the main part of section 375 IPC as of article 14 of the Constitution and
well as in section 3 and 5 of POCSO. inconsistent with the provisions of
What had been done was only to read POCSO, which must prevail.
down Exception 2 to section 375 IPC Petition Allowed
to bring it in consonance with the
Constitution and POCSO. Orders
67. The Court was not creating any new i. Section 198(6) of the Code applied to
offence but only removing what cases of rape of wives below 18 years,
was unconstitutional and offensive. and cognizance to be taken only in
Exception 2 to section 375 IPC in so accordance with the provisions of
far as it related to a girl child below section 198(6) of the Code.
18 years was liable to be struck down At the cost of repetition, nothing said in the
because it was arbitrary, capricious, judgement would be taken to be an observation
whimsical and violative of the rights one way or the other with regard to the issue
of the girl child and not fair, just and of marital rape.
reasonable and, therefore, violative of
Law Reform Issues

Section 44(8) of the Elections Act Which Provides For the Establishment
Of The Technical Committee To Oversee Elections Is Unconstitutional
Kenneth Otieno v Attorney General & Independent Electoral & Boundaries Commission
High Court at Nairobi, Petition No 127 of 2017
Pauline Nyamweya, Mumbi Ngugi, Enock C Mwita, JJ
June 16, 2017
Brief facts Elections Act was unconstitutional and

The Petitioner sought to challenge sections contravened articles 38(3), 82(2) and 83(3)
6, 6A, 8A and 44 of the Elections Act. of the Constitution as the requirement to
He said that the provisions which were verify biometric data could limit the rights
amended or introduced by the Elections of members of the public as well as persons
Laws (Amendment Act), contained radical, with disability who could not travel to their
irrational and impractical changes to the respective polling stations for verification.
electoral process. He alleged that those The Petitioner also said that the provision
provisions introduced timelines which were failed to recognize those who did not have
contrary to the constitutional timelines fingerprints or had fingerprints which were
provided under articles 101(1), 136(2), distorted by the nature of the work that they
177(1)(a) and 180(1) of the Constitution. did.
At the hearing of the Petition, the The Petitioner further stated that section
Petitioner abandoned the challenge to the 6A(3)(b) which required online publication
constitutionality of section 6 of the Elections of the register of voters was unconstitutional
Act and only questioned sections 6A, 8A and and it contravened article 83(3) and 38(3)
44 of the Elections Act. of the Constitution given that the rural
Section 6A of the Elections Act, gave voters population could not access the internet
30 days to verify biometric data and that and computers. He further stated that the
verification was to be done at polling stations register published online could fail to be
at least 60 days before the general elections. out in a timely manner and it could lock out
The Petitioner contended that the provision persons who were not aware of other modes
was a stringent timeline which could of verifying their details.
obstruct a simple and transparent voting According to the Petitioner, section 8A of
process envisaged by the Constitution. He the Elections Act, which required the IEBC
also contended that section 6A(1) of the to procure a reputable firm to conduct an
66
audit of the register of voters within 30 days Constitution which provided for free
of the coming into force of that section, was and fair elections.
impractical. The Petitioner stated that the iv. Whether section 44(8) of the
stringent timeline could cause the IEBC to Elections Act, which provided for
appoint the audit firm in a manner that was the establishment of a technical
not transparent or competitive. committee to oversee the adoption
Under section 44 of the Elections Act, of technology in the electoral process
the IEBC was required to test, verify and and implement the use of such
deploy the electronic electoral system at technology, was unconstitutional
least sixty days before the general election. on grounds that it undermined the
Under section 44(7) that technology was independence of the IEBC.
to be procured at least 120 days before the
general election. The Petitioner contended
that the use of technology to the exclusion Holdings pertinent to Law Reform
of any other processes was without regard 1) Article 259 of the Constitution
to the imperatives of article 81(e) of the required the Court to interpret
Constitution, which provided for free and the Constitution in a manner that
fair elections. promoted its purpose and principles,
The Petitioner also challenged the advanced the rule of law and human
establishment of a technical committee to rights and fundamental freedoms
oversee the adoption of technology by IEBC in the Bill of Rights, permitted
under section 44(8) of the Elections Act. He the development of the law and
also said that it was not clear what agencies, contributed to good governance.
institutions or stakeholders would constitute
2) In interpreting the constitutionality of
the technical committee. The Petitioner
a statute, the rebuttable presumption
said that the technical committee would
of the constitutionality of a statute
undermine the independence of the IEBC.
was relevant. The presumption is to
Issues
the effect that an Act of Parliament
i. Whether section 6A of the Elections is constitutional and the burden of
Act, which required the IEBC, not proving the contrary lay with the
later than 60 days before the general person alleging otherwise.
election to open the register of
3) In determining whether a statute was
voters for verification by the public
constitutional, the Court would have
for 30 days, was unconstitutional,
to determine the object and purpose
on grounds that it was a stringent
of the impugned statute, in order to
timeline which could obstruct a
discern the intention expressed in the
simple and transparent voting
statute itself. In examining whether a
process.
particular statutory provision was
ii. Whether section 8A(3) of the unconstitutional, the Court would
Elections Act, which required the have regard to its purpose and effect.
IEBC to procure a professional Either an unconstitutional purpose
reputable firm within 30 days of the or an unconstitutional effect would
coming into operation of the section, invalidate legislation.
was unconstitutional, on the grounds
4) Section 6A of the Elections Act
that the timeline did not give room
required the IEBC not later than
for a transparent or competitive
60 days before the general elections
procurement process.
to open the Register of Voters for
iii. Whether section 44(4) and 44(7) of verification of biometric data by
the Elections Act, which provided members of the public at their
for minimum timelines for the respective polling stations for a
testing, verification and deployment period of thirty days. The time frame
of the electronic electoral system, of doing so, no later than 60 days
was unconstitutional, and whether before the general election meant
it was contrary to article 81(e) of the that at a minimum or at least it
67
would have to be done within that that it had been implemented by

period. However, the provision gave the IEBC which procured the firm
the IEBC the option to start early of KPMG to audit the register, the
enough and allow sufficient time for arguments on constitutionality have
logistical arrangements to be made been overtaken by events.
for verification of biometric data, as 9) Section 8A(1) which was applicable to
long as it was done not less than sixty all future elections required the IEBC
days before the general election. to engage a professional firm to audit
5) Section 6A of the Elections Act did not the register of voters at least 6 months
give the IEBC any specific timeline before the general elections. Nothing
within which logistical arrangements would stop the IEBC from engaging
would begin or end. Therefore it was such a firm earlier than six months
not a contravention of articles 82(2) in order to meet the requirements
and 83(3) of the Constitution. The of article 227 of the Constitution on
IEBC, however, had no discretion on procurement.
the requirements that voters would 10) Section 44(4) and 44(7) of the
have 30 days to verify biometric data. Elections Act provided for minimum
6) The Petitioner alleged that section timelines for the testing, verification
6A of the Elections Act violated the and deployment of the electronic
rights of persons with disabilities electoral system. Nothing prevented
as it could leave them out of the the IEBC from undertaking the
verification process but he had not required actions before the set
demonstrated whether and how such deadlines.
persons were left out. There was no 11) 1Section 44(8) of the Elections Act
factual basis placed before the Court provided for the establishment of
to demonstrate that verification a technical committee to oversee
was not possible. Under section 104 the adoption of technology in the
of the Elections Act, the IEBC was electoral process and implement the
obliged to put in place mechanisms to use of such technology. The technical
facilitate persons with disabilities to committee was to comprise of such
exercise their rights as provided for members and officers of the IEBC
in article 38(3), 82(2) and 83(3) of the and such other relevant agencies,
Constitution. institutions or stakeholders as the
7) Section 8A(3) of the Elections Act IEBC considered necessary. Under
required the IEBC to procure a article 88(2) of the Constitution,
professional reputable firm within certain persons were prohibited from
30 days of the coming into operation being members of the IEBC. The use
of the section to audit the register of general words such as “relevant
of voters, with the aim of verifying agencies, institutions or stakeholders”
the accuracy of the register, left room for inclusion of persons
recommending mechanisms for expressly excluded under article 88(2)
enhancing the accuracy of the register of the Constitution in the technical
and updating the register. The firm committee. The composition of
was required to carry out the audit the technical committee and the
and report to the IEBC within 30 functions given to it threatened the
days and the IEBC was to implement structural independence of the IEBC.
the recommendations within 30 days. 12) Section 44(8) of the Elections Act could
8) The period allowed for the be used to involve governmental,
implementation of section 8A was political or other partisan influences in
90 days. Section 8A(3) was only the implementation of the electronic
applicable to the 2017 general electoral processes contrary to article
elections. Considering that the 249(2) of the Constitution. The effect
section came into operation on of section 44(8) of the Elections Act
October 4, 2016 and it was apparent contravened articles 88 and 249(2)
68
of the Constitution with respect to Holdings pertinent to law reform

the independence of IEBC and it was 1. The High Court annulled Section
therefore unconstitutional. 39(2) and (3) of the Elections Act
Sections 39(2) and (3) of the Elections and regulations 83(2) and 87(2)(c) of
Act and regulations 83(2) and 87(2) (c) of the Elections (General) Regulations
the Election (General) Regulations are on April 7, 2017. One would have
unconstitutional, null and void expected the concerned institutions,
including the IENC, to either comply
Independent Electoral & Boundaries
with the determination of the court
Commission v Maina Kiai & 5 Others [2017]
or if aggrieved, to challenge it in this
eKLR Court of Appeal at Nairobi, Appeal
Court as the Appellant did within
105 of 2017
two weeks on April 24, 2017. Instead,
Makhandia A, Ouko W, Kiage P, M’inoti K,
14 days following the delivery of the
and Murgor A, JJ. A
judgment impugned in this appeal,
June 23, 2017
the Appellant issued a gazette
Brief Facts
supplement, being Legal Notice No.
The appeal arose from the judgment and
72 of April 21, 2017, which made
decree of a three-judge bench of the High
drastic amendments to the Elections
Court delivered on April 7, 2017. In the
(General) Regulations 2012, whose
High Court, the petition was filed pursuant
effect was clearly to render impotent
to Article 165(3) (d) of the Constitution
and circumvent the declaration by
of Kenya, 2010 (Constitution) and sought
the High Court of the inconsistency
declarations regarding the constitutionality
with the Constitution of section
of provisions of sections 39(2) and (3) of the
39(2) and (3) of the Elections Act and
Elections Act and regulations 83(2) and 87(2)
regulations 83(2) and 87(2)(c) of the
(c) of the Election (General) Regulations,
Elections (General) Regulations.
2012. Upon hearing the parties, the High
Court declared that sections 39(2) and (3) of 2. Form 34C was the one to be used
the Elections Act and Regulations 83(2) and in place of Form 37 for the final
87(2)(c) of the Election (General) Regulations, declaration of the result of election of
2012 were unconstitutional and therefore the President at the national tallying
null and void. centre. The new regulation 87 of
Aggrieved by the decision of the High Court, the Elections (General) Regulations
the IEBC filed an appeal on grounds that specified that upon receipt of Form
the High Court misapprehended the law 34A from the constituency returning
regarding the constitutional and statutory officers the Chairperson of the
requirements for declaration of the result Appellant was to verify the results
of the presidential elections. The appellant against Forms 34A and 34B received
also claimed that the High Court erred in from the constituency returning
declaring section 39(2) and (3) of the Act and officer at the national tallying centre.
regulations 83(2) and 87 (2) unconstitutional, The controversial regulations 83(2)
null and void; erred in holding that it had and 87(2) of the Elections (General)
jurisdiction to hear and determine the Regulations were not affected by
petition; and that the High Court erred in the amendments, and the object was
holding that the dispute was not res judicata. not difficult to see. The High Court
Issues had found those regulations to be
i. Whether sections 39(2) and (3) of the inconsistent with the Constitution:
Elections Act and regulations 83(2) it was in bad faith for the Appellant
and 87(2) (c) of the Election (General) to re-enact them while pursuing the
Regulations; that provided that instant appeal.
the chairperson of the IEBC could 3. The purpose for which section 39(2)
alone, at the national tallying centre, and (3) of the Elections Act and
confirm or vary or verify results the regulations 83(2) and 87(2)(c) of the
of the presidential elections; were Elections (General) Regulations were
unconstitutional. promulgated or made have the effect
69
of infringing constitutional principles 6. The people of Kenya did not

of transparency, impartiality, intend to vest or concentrate such
neutrality, efficiency, accuracy and sweeping and boundless powers in
accountability. one individual, the chairperson of
4. There was no law that empowered the IEBC. The responsibility of the
the chairperson of the IEBC, as an Appellant to deliver a credible and
individual to alone correct, vary, acceptable election in accordance
confirm, alter, modify or adjust the with the Constitution was so
results electronically transmitted to grave and so awesome that it had
the national tallying centre from the to approach and execute it with
constituency tallying centres, was to absolute fealty, probity and integrity.
donate an illegitimate power. Such a The IEBC had to in all its dealings be
law would introduce opaqueness and truly above suspicion and command
arbitrariness to the electoral process, respect of the people of Kenya for
the very mischief the Constitution whom it acted. Much depended on
sought to remedy. it, the present and future peace of the
country.
5. Accuracy of the count is fundamental
in any election. Voter turnout 7. The High Court was not at fault in
determined the outcome of any holding that to the extent that section
electoral contest. Numbers are 39(2) and (3) of the Elections Act and
therefore not only unimpeachable, regulation 87(2)(c)of the Elections
but they are everything in an election. (General) Regulations provided that
The lowest voting unit and the first the results declared by the returning
level of declaration of presidential officer were provisional, and to the
election results is the polling station. extent that regulation 83(2) provided
The declaration form containing that the results of the retuning officer
those results is a primary document were subject to confirmation by
and all other forms subsequent to it the IEBC. Those provisions were
are only tallies of the original and inconsistent with the Constitution
final results recorded at the polling and therefore null and void.
station.
Appeal dismissed.
Sections 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)
(c) of the Election (General) Regulations are unconstitutional, null and
void
Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR
Court of Appeal at Nairobi, Appeal 105 of 2017
Makhandia A, Ouko W, Kiage P, M’inoti K, and Murgor A, JJ. A
June 23, 2017
Brief Facts the Elections Act and Regulations 83(2) and

87(2)(c) of the Election (General) Regulations,
The appeal arose from the judgment and
2012 were unconstitutional and therefore
decree of a three-judge bench of the High
null and void.
Court delivered on April 7, 2017. In the
High Court, the petition was filed pursuant Aggrieved by the decision of the High Court,
to Article 165(3) (d) of the Constitution the IEBC filed an appeal on grounds that
of Kenya, 2010 (Constitution) and sought the High Court misapprehended the law
declarations regarding the constitutionality regarding the constitutional and statutory
of provisions of sections 39(2) and (3) of the requirements for declaration of the result
Elections Act and regulations 83(2) and 87(2) of the presidential elections. The appellant
(c) of the Election (General) Regulations, also claimed that the High Court erred in
2012. Upon hearing the parties, the High declaring section 39(2) and (3) of the Act and
Court declared that sections 39(2) and (3) of regulations 83(2) and 87 (2) unconstitutional,
70
null and void; erred in holding that it had The controversial regulations 83(2)
jurisdiction to hear and determine the and 87(2) of the Elections (General)
petition; and that the High Court erred in Regulations were not affected by
holding that the dispute was not res judicata. the amendments, and the object was
not difficult to see. The High Court
Issues
had found those regulations to be
i. Whether sections 39(2) and (3) of the inconsistent with the Constitution:
Elections Act and regulations 83(2) it was in bad faith for the Appellant
and 87(2) (c) of the Election (General) to re-enact them while pursuing the
Regulations; that provided that instant appeal.
the chairperson of the IEBC could 3. The purpose for which section 39(2)
alone, at the national tallying centre, and (3) of the Elections Act and
confirm or vary or verify results regulations 83(2) and 87(2)(c) of the
of the presidential elections; were Elections (General) Regulations were
unconstitutional. promulgated or made had the effect of
Holdings pertinent to law reform infringing constitutional principles
of transparency, impartiality,
1. The High Court annulled Section
neutrality, efficiency, accuracy and
39(2) and (3) of the Elections Act
accountability.
and regulations 83(2) and 87(2)(c) of
the Elections (General) Regulations 4. There was no law that empowered
on April 7, 2017. One would have the chairperson of the IEBC, as an
expected the concerned institutions, individual to alone correct, vary,
including the IENC, to either comply confirm, alter, modify or adjust the
with the determination of the court results electronically transmitted to
or if aggrieved, to challenge it in this the national tallying centre from the
Court as the Appellant did within constituency tallying centres, was to
two weeks on April 24, 2017. Instead, donate an illegitimate power. Such a
14 days following the delivery of the law would introduce opaqueness and
judgment impugned in this appeal, arbitrariness to the electoral process,
the Appellant issued a gazette the very mischief the Constitution
supplement, being Legal Notice No. sought to remedy.
72 of April 21, 2017, which made 5. Accuracy of the count is fundamental
drastic amendments to the Elections in any election. Voter turnout
(General) Regulations 2012, whose determined the outcome of any
effect was clearly to render impotent electoral contest. Numbers are
and circumvent the declaration by therefore not only unimpeachable,
the High Court of the inconsistency but they are everything in an
with the Constitution of section election. The lowest voting unit
39(2) and (3) of the Elections Act and and the first level of declaration of
regulations 83(2) and 87(2)(c) of the presidential election results was
Elections (General) Regulations. the polling station. The declaration
2. Form 34C was the one to be used form containing those results was
in place of Form 37 for the final a primary document and all other
declaration of the result of the election forms subsequent to it were only
of the President at the national tallying tallies of the original and final results
centre. The new regulation 87 of recorded at the polling station.
the Elections (General) Regulations 6. The people of Kenya did not
specified that upon receipt of Form intend to vest or concentrate such
34A from the constituency returning sweeping and boundless powers in
officers the Chairperson of the one individual, the chairperson of
Appellant was to verify the results the IEBC. The responsibility of the
against Forms 34A and 34B received Appellant to deliver a credible and
from the constituency returning acceptable election in accordance
officer at the national tallying centre. with the Constitution was so
71
grave and so awesome that it had (General) Regulations provided that

to approach and execute it with the results declared by the returning
absolute fealty, probity and integrity. officer were provisional, and to the
The IEBC had to in all its dealings be extent that regulation 83(2) provided
truly above suspicion and command that the results of the retuning officer
respect of the people of Kenya for were subject to confirmation by
whom it acted. Much depended on the IEBC. Those provisions were
it, the present and future peace of the inconsistent with the Constitution
country. and therefore null and void.
7. The High Court was not at fault in Appeal dismissed.
holding that to the extent that section
39(2) and (3) of the Elections Act and
regulation 87(2)(c)of the Elections
Difference in Judicial
Reasoning
Jurisdiction of Magistrate’s Courts to Hear and Determine Disputes
Relating to Specialized Courts
By Linda Awuor & Kakai Toili
T
he Constitution of Kenya, 2010 courts contemplated in clause (2).
introduced into Kenya’s legal regime
(4) The subordinate courts are
specialized courts by providing that
the courts established under
Parliament enact legislation for establishment
Article 169, or by Parliament in
of courts to handle environment and land
accordance with that Article.
matters and employment and labour relations
matters. This resulted in Parliament enacting Article 169 of the Constitution establishes
the Environment and Land Court Act, 2011 the subordinate courts and states that:
and the Employment and Labour Relations (1) The subordinate courts are—
Act 2011. With the establishment of the said
(a) the Magistrates courts;
courts, uncertainty has crept in with regards
to whether they are the only courts which (b) the Kadhis’ courts;
have exclusive jurisdiction to handle their (c) the Courts Martial; and
respective matters or whether the Magistrates (d) any other court or local
Courts could handle such matters. tribunal as may be
The Constitution of Kenya, 2010 under established by an Act of
article 162 states that: Parliament, other than
the courts established as
(1) …. required by Article 162 (2).
(2) Parliament shall establish courts (2) Parliament shall enact
with the status of the High Court legislation conferring
to hear and determine disputes jurisdiction, functions and
relating to— powers on the courts established
(a) employment and labour under clause (1).
relations; and Section 12 of the Employment and Labour
(b) the environment and the use Relations Court Act, 2011 under section 12
and occupation of, and title to, provides for the jurisdiction of the Court. It
land. states that:
(3) Parliament shall determine the (1) The Court shall have exclusive original and
jurisdiction and functions of the appellate jurisdiction to hear and determine
72
all disputes referred to it in accordance with environment and land.

Article 162(2) of the Constitution and the (3) ….
provisions of this Act or any other written
(4) In addition to the matters referred to
law which extends jurisdiction to the Court
in subsections (1) and (2), the Court
relating to employment and labour relations...
shall exercise appellate jurisdiction
(2) An application, claim or complaint may over the decisions of subordinate
be lodged with the Court by or against an courts or local tribunals in respect of
employee, an employer, a trade union, an matters falling within the jurisdiction
employer’s organisation, a federation, the of the Court.
Registrar of Trade Unions, the Cabinet
Section 9 of the Magistrate’s Court Act, 2015
Secretary or any office established under any
provides for the jurisdiction of Magistrate’s
written law for such purpose.
Courts in relation to claims in employment,
(3) … labour relations claims; land and environment
(4) … cases and states that:
(5) The Court shall have jurisdiction to hear and A magistrate’s court shall —
determine appeals arising from— (c) in the exercise of the
(a) decisions of the Registrar of Trade jurisdiction conferred
Unions; and upon it by section 26 of the
(b) decisions of any other local tribunal Environment and Land
or commission as may be prescribed Court Act (Cap. 12A) and
under any written law. subject to the pecuniary
limits under section 7(1),
Section 13 of the Environment and Land
hear and determine claims
Act, 2011 provides for the jurisdiction of the
relating to —
court, it states that
(i) environmental planning
(1) The Court shall have original and and protection, climate
appellate jurisdiction to hear and issues, land use planning,
determine all disputes in accordance title, tenure, boundaries,
with Article 162(2)(b) of the rates, rents, valuations,
Constitution and with the provisions mining,minerals and
of this Act or any other law applicable other natural resources;
in Kenya relating to environment and
(ii) compulsory acquisition of
land.
land;
(2) In exercise of its jurisdiction under
(iii) land administration and
Article 162(2)(b) of the Constitution,
management;
the Court shall have power to hear
and determine disputes— (iv) public, private and
community land and
(a) relating to environmental planning
contracts, choses in action
and protection, climate issues,
or other instruments
land use planning, title, tenure,
granting any enforceable
boundaries, rates, rents, valuations,
interests in land; and
mining, minerals and other natural
resources; (v) environment and land
generally.
(b) relating to compulsory acquisition
of land; (b) in the exercise of the
jurisdiction conferred upon
(c) relating to land administration and
it under section 29 of the
management;
Industrial Court Act, 2011
(d) relating to public, private and (No. 20 of 2011) and subject
community land and contracts, to the pecuniary limits
choses in action or other instruments under section 7(1), hear and
granting any enforceable interests determine claims relating
in land; and to employment and labour
(e) any other dispute relating to relations.
73
The issue of whether Magistrate’s Courts within those court’s pecuniary jurisdiction
have the jurisdiction to hear and determine and that Parliament could not have intended
disputes relating to specialized courts has to take away the jurisdiction that magistrates
been dealt with by various courts, However had all along exercised in land cases where
, courts faced with this issue have not all applicable.
resolved the issue in the same way.
In Malindi Law Society v Attorney General & 4
In Edward Mwaniki Gaturu & another vs. others [2016] eKLR the court while declaring
Hon. Attorney-General & 3 others [2013] eKLR that section 2 of the Statute Law (Miscellaneous
in handling the issue whether the jurisdiction Amendments) Act, 2015 in respect to the
to hear and determine new cases relating to jurisdiction of the subordinate courts relating
the environment and use and occupation of, to environment and use, occupation of and title
and title to land vested exclusively on the to land was inconsistent with article 162 (2) of
Environment and Land Court, the Court the Constitution, and therefore null and void,
held that the Environment and Lands Court stated that article 169(2) of the Constitution
did not have exclusive jurisdiction to hear of Kenya, 2010 which granted Parliament
and determine land matters and went on to power to enact legislation to generally
reject the argument that Magistrate’s Courts conferred jurisdiction on subordinate courts
did not have jurisdiction over those matters. had to be read together with article 162 (2)
which restricted and limited jurisdiction on
In arriving at the decision the Court stated
matters environment, use, occupation of and
that article 162(3) was clear and required
title to land to courts of equal status to the
no more than a literal interpretation
High Court.
and that it empowered Parliament to
determine the jurisdiction and functions The Court of Appeal has however settled
of the Environmental and Land Court. The this issue with its decision in Law Society of
Court went on further to state that for one Kenya Nairobi Branch v Malindi Law Society
to determine whether the Environmental & 6 others [2017] eKLR, an appeal against the
and Land Court has exclusive jurisdiction decision in Malindi Law Society v Attorney
to hear and determine matters related to General & 4 others [2016] eKLR . The Court
environment, and the use and occupation of Appeal held that article 169 (1) (d) does
of, and title to land, one had to turn to the not bar Parliament from enacting legislation
provisions of the Environmental and Land conferring jurisdiction on magistrates courts
Court Act to determine what jurisdiction with respect to disputes within the jurisdiction
Parliament granted it as stipulated by article of the specialized courts. It was further
162(3). The Court further held that from held that in conferring the said jurisdiction
section 13(1) of the Environmental and Land Parliament did not exceed its mandate or
Court Act, it was clear that Parliament did acted ultra vires. The Court also held that
not intend that the Environmental and Land conferring jurisdiction on magistrates courts
Court should have exclusive jurisdiction to hear and determine specialized matters
to hear and determine matters related to did not diminish the specialization of the
environment, and the use and occupation of, specialized courts considering that appeals
and title to land. from the magistrates courts over those
matters lay with the specialized courts.
The Court in Peter Mburu v Andrew Kimani
Adam & 2 others [2016] eKLR while holding Conclusion:
that subordinate courts still had jurisdiction
The uncertainty of the jurisdiction of
to resolve land disputes stated that section
magistrate’s courts to hear and determine
13 of the Environment and Land Court Act
disputes relating to specialized courts
gave the Environment and Land Court both
has now been settled and this will enable
original and appellate jurisdiction to hear
Magistrate courts to hear and determine
and determine disputes in accordance with
specialized matters and serve the members of
article 162 (2) (b) of the Constitution. The
the public effectively.
Court went on to state that the said court was
not enacted to take away the jurisdiction of
subordinate courts to handle land disputes
where the value of the subject matter fell
74
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The Kenya Law Android app contains:

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Selected Statutes of high public interest.
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Cause List (integrated with Kenya Law’s website).
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75
National Council for Law Reporting (Kenya Law) - A service state corporation in the Judiciary
Legislative Updates:
By Christine Thiong’o
This is an outline of legislation in the form of Bills and Acts of Parliament that have been
enacted in the period between September to November, 2017.
A. ACTS OF PARLIAMENT
ACT ELECTION LAWS (AMENDMENT) ACT
Act No. No. 34 of 2017
Commencement 10th November, 2017
Objective This amendment Act amends the following election-related Acts: Independent Elec-
toral and Boundaries Commission Act, 2011 (No. 9 of 2011), the Elections Act, 2011
(No. 24 of 2011) and the Election Offences Act, 2016 (No. 37 of 2016). The purpose is to
provide for the proper conduct of the affairs and business of the Independent Electoral
and Boundaries Commission, and for effective management of elections.
i. The Independent Electoral and Boundaries Commission (IEBC) Act, 2011 is

amended by deleting and substituting the definition of the term “chairperson”;
the qualifications for appointment as the chairperson of the Commission; and
the quorum of the Commission from five members to not less than three mem-
bers.
ii. The Elections Act, 2011 is amended by deleting section 29; addressing the
electronic and manual transmission of the tabulated results of an election for
the President; and clarifying that where there is a discrepancy between the
electronically transmitted and manually transmitted results, the manually
transmitted results shall prevail, among others. Further, the Elections Act is
amended by inserting a new section detailing the procedure at a fresh election.
iii. The Election Offences Act, 2016 in the closing statement of section 6 by delet-
ing the words “one million shillings or to imprisonment for a term not exceed-
ing three years” and substituting therefor the words “two million shillings or
to imprisonment for a term not exceeding five years.”
B. NATIONAL ASSEMBLY BILLS

NATIONAL AS- PETROLEUM (EXPLORATION, DEVELOPMENT AND PRODUCTION) BILL,
SEMBLY BILL 2017
Dated 25th September, 2017
Objective The principal object of the Bill is to provide a framework for the contracting, explora-
tion and development of petroleum together with production of petroleum discovered
within licensed petroleum exploration blocks. The Bill also provides a framework for
the safe cessation of upstream petroleum operations. The Bill proposes to repeal the
Petroleum (Exploration and Production) Chapter 308 of the Laws of Kenya.
Sponsor Aden Duale, Leader of Majority Party
76
NATIONAL AS- ENERGY BILL, 2017

SEMBLY BILL
Dated 4th October, 2017
Objective The Bill seeks to consolidate the laws relating to energy, align the legal and regulatory
framework of the energy sector with the Constitution of Kenya, 2010. It does this by
setting out with clarity the specific roles of the National and County Government in
relation to energy.
The Bill proposes to repeal the Energy Act No. 12 of 2006 and the Geothermal Re-
sources Act No. 12 of 1982 of the Laws of Kenya.
NATIONAL AS- NAIROBI METROPOLITAN AREA TRANSPORT AUTHORITY BILL, 2017

SEMBLY BILL
Objective The principal object of this Bill is to provide a framework for the establishment of
the Nairobi Metropolitan Area Transport Authority. The Nairobi Metropolitan Area
consists of the County Governments of Nairobi, Kiambu, Machakos, Kajiado and Mu-
ranga. The Authority shall oversee the establishment of an integrated, efficient, effective
and sustainable transport system within the Metropolitan area.
C. SENATE BILLS
SENATE URBAN AREAS AND CITIES (AMENDMENT) BILL, 2017

BILL
Objective The Bill proposes to amend the Urban Areas and Cities Act 2011, in order
to review the criteria provided for classifying an area as a city, municipality,
town or market centre. It also provides for the manner in which boundaries
of urban areas and cities are to be determined. The existence of an integrated
urban area development plan is also a requirement for classifying an area as
a market centre. The Bill has also clarified on the qualification for the Board
members of cities and municipalities and those of the town committees, city
and municipal managers as well as those of the town administrators.
Sponsor Kipchumba Murkomen, Senator
77
SENATE COUNTY BOUNDARIES BILL, 2017

BILL
Dated 2nd November, 2017
Objective The Bill mainly seeks to define the boundaries of the counties of Kenya; to
provide for the resolution of county boundary disputes through the estab-
lishment of a county boundaries mediation committee; and to give effect to
Article 188 of the Constitution on the alteration of county boundaries by pro-
viding for the procedure for alteration of county boundaries to provide for
the establishment of an independent county boundaries commission.
Sponsor Mutula Kilonzo Junior, Senator
SENATE COUNTY GOVERNMENTS (AMENDMENT) (NO.2) BILL, 2017

BILL
Objective The principal object of this Bill is to amend the County Governments Act
(No. l7 of 2012) so as to provide for the procedure for the disposal of a report
of a Commission of Inquiry established under section 123(4) of the County
Governments Act, 2012, and in particular, to govern scenarios where a Com-
mission of Inquiry does not recommend the suspension of a county govern-
ment or situations where the President is not satisfied that justifiable reasons
exist for the suspension of a county government.
The Bill further provides for the procedure for the termination of a suspen-
sion of a county government under Article 192(4) of the Constitution as the
procedure is currently not provided for in the County Governments Act.
SENATE NATIONAL FLAG, EMBLEMS AND NAMES (AMENDMENT)BLLL, 2017

BILL

Objective This Bill seeks to amend the National Flag, Emblems and Names Act to allow
members of the public to express their patriotism by flying the National Flag
in their place of residence, work and business provided this does not under-
mine the authority or reputation of the State.
78
Legal Supplements
By Christine Thiong’o
This article presents a summary of Legislative Supplements published in the Kenya Gazette
on matters of general public importance. The outline covers the period between August,
2017 and October, 2017.
DATE OF PUBLI- LEGISLATIVE CITATION PREFACE

CATION SUPPLEMENT
NUMBER
11th August, 2017 60 Public Service The purpose of these Regulations is

Commission (Removal to give effect to Article 158(2) of the
of the Director of Constitution by providing a procedure
Public Prosecutions) for receiving, processing, hearing and
Regulations, 2017. determining a petition for the removal
of the Director of Public Prosecutions.
L. N. 168/2017
25th August. 2017 67 Capital Markets (Online These regulations deal with the
Foreign Exchange licensing of online foreign exchange
Trading) Regulations, brokers and money managers; the
2017 conduct of online foreign exchange
business; and related offences and
L. N. 226/2017 penalty.
The First Schedule has Form 1 on the
Application for a licence to conduct the
business of an online foreign exchange
broker/ money manager.
The Second Schedule contains the
online foreign exchange broker/money
manager licence fees.
6th October, 2017 77 National Land This legislation handles the procedure
Commission for the investigation and resolution
(Investigation of of claims arising out of historical land
Historical Land injustices pursuant to Article 67 (2)
Injustices) Regulations, (e) of the Constitution. It provides
2017 for the conduct of hearings where
the Commission may establish a
L. N. 258/2017 Committee consisting of at least three
members of the Commission to hear
and recommend appropriate remedies
for claims arising out of historical land
injustices.
6th October, 2017 78 Civil Aviation (Remote These Regulations provide for
Piloted Aircraft the classification, registration and
Systems) Regulations, operation of Remote Piloted Aircraft
2017 Systems (RPAS). The regulations also
deal with the recreational and sports;
L.N. 257/2017 private and commercial operation of
remote piloted aircraft system.
In addition, they provide for the
security requirements for remote
piloted aircraft system and the relevant
offences and penalties.
79
KENYA LAW REVIEW JOURNAL
VOLUME 5
2,000/=
The Kenya Law Review 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
Kenya's legal system and seeks to include articles showing the interplay
between the law and other disciplines.
Address of Principal office and Contacts:
ACK Garden Annex, 5th Flr., 1st Ngong Avenue, Off Ngong Road
P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
Mobile: +254 718 799 464, 736 863 309

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Issue 39,

October - December 2017

Laws of Kenya Volumes

10. D ifference in Judicial

12. L egal Supplements 79 Contributors

www.kenyalaw.org mykenyalaw @mykenyalaw Mykenyalaw

The Hon. Justice David K. Maraga, EGH

The Hon Justice Anthony Ndung’u Ms Janet Kimeu,

Prof Kiarie Mwaura Long’et Terer

Judiciary Engrains Mediation in Administration

Hon. David K. Maraga, EGH

What they said

Supreme Court Rules on Validity of Repeat Presidential Election

Brief Facts Alliance Party in the August 8, 2017 general

acts of violence, intimidation, improper provided for under Regulation 52 of the

cancellation of an election, namely: Constitution, section 55B of the Elections

Was section 83 of the Elections Act (as Petition dismissed:

“Freedom is not something that

was part of the right to a fair trial enshrined still applicable

The Right of Audience of the Attorney General in Matters of Public

the National Assembly, appointed by the proceedings; and

(6) The Attorney-General shall promote, Brief Facts

Arm of Government in Kenya was an an integral part of the National Executive

the applicant, through previous proposed amicus role, is a factor to be

“The forces that unite us are intrinsic and greater

8. While article 177(1)(a), just like articles the law.

Magistrates’ Courts have jurisdiction to hear and determine employment

that such a party was aggrieved by the undoubtedly imprint specialized

the specialized Courts. had no mandate to transfer judges of

Kenya, 2010 to provide information to a (b) jurisdiction to determine the question

or a private body to disclose information. to which it has reasonable access which

the so as to comply with the request

be able to take meaningful part in nor grantable by the State. It is a right

the Constitution as read with section 4 of of the Access to Information Act could

Requests for assistance by the International Criminal Court (ICC) should

Constitution and that law. gathering evidence to prosecute the

departed from after due and careful Honourable Attorney General.

supported the petition which nullified in a democratic process, would be

Extent of a bank’s liability for loss of a business opportunity arising from

The IEBC has no jurisdiction to deal with a dispute concerning the

from nominations excluding election Petition allowed.

Britain Ends Courtroom Tradition of Wigs and Gowns

Thank you for providing the caseback facility.

Hon. Abdulgadir Dear KenyaLaw,

Hon. James Macharia

II. Whether the provisions of Exception Prohibition of Child Marriage Act.

a divorced child or a separated child or arbitrary and discriminatory.

and discriminatory distinction. to the extent of inconsistency.

Law Reform Issues

Brief facts Elections Act was unconstitutional and

would have to be done within that that it had been implemented by

of the Constitution with respect to Holdings pertinent to law reform

of infringing constitutional principles 6. The people of Kenya did not

Brief Facts the Elections Act and Regulations 83(2) and

grave and so awesome that it had (General) Regulations provided that

all disputes referred to it in accordance with environment and land.

The Kenya Law Android app

The Kenya Law Android app contains:

Selected Statutes of high public interest.

The Kenya Gazette.

Cause List (integrated with Kenya Law’s website).

Case Search (which is integrated with Kenya

www.kenyalaw.org mykenyalaw @mykenyalaw Mykenyalaw

Act No. No. 34 of 2017