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Kenya Wildlife Service is Liable for Destruction of Crops Court Declares Amendment of Sections 35A (5)
and Animals caused by Wildlife Migration Pg 13 and 35I (B) of The Pharmacy and Poisons Act
Unconstitutional Pg 65
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Editor’s Note
Long’et Terer
CEO/Editor
K
enya Law once again achieved a “Very Good” score in the performance measurement
and management understanding of the financial year 2016/2017. On achieving its
core mandate, which includes the tracking of jurisprudence from the superior courts
of record and the revision and consolidation of the Laws of Kenya, Kenya Law achieved 99
per cent and scored 100 per cent in all other perspectives, including customer relations and
innovation and learning. This is an affirmation that we are working towards achieving our
set objectives and it can only be an upward trajectory from now on.
As the Chief Justice stated in his speech during the launch of the performance Management
and Measurement Understanding Evaluation Report, the Kenyan Judiciary stands out
globally as one of the few that have put in place a well structure performance system and are
helping others benchmark with us as we lead the way. Indeed, Kenya Law has led the way in
law reporting and law revision in Africa. During this quarter, we received a delegation from
the Law Development Centre in Uganda who came to benchmark with Kenya Law on law
reporting and law revision. This was closely followed by a visit from the Republic of South
Sudan which seeks to establish an official law reporting institution for their country. In the
month of June, Kenya Law was invited by the Judiciary of the Republic of Tanzania and the
Tanzania Legal Information Institute (TanzLii) to provide specialist training on law reporting
and the compilation of legislative databases. Further still, we hosted the Coordinator of the
Ghana Legal Information Institute (GhanaLii) who was on a benchmarking trip to learn
how Kenya Law carries out its law reporting and law revision functions. This in itself is an
attestation to the important role that Kenya Law plays in carrying out its mandate and setting
the pace for other jurisdictions.
As you will see from this edition of the Bulletin, the Judiciary is constantly producing
progressive decisions in response to the unique disputes and circumstances facing
our jurisdiction. This includes a decision on the constitutionality of the Election Laws
(Amendment) Act and one on the rights of children adoptees to know the identity of their
parents. It is our pledge to continue enhancing the quality of our work in in tracking the
robust and indigenous jurisprudence of our courts in order to continue being the benchmark
in law reporting and law revision for various jurisdictions.
1
BB Issue 41, April - June 2018
CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya
I
am delighted to welcome you all here today for the launch of our performance evaluation
results. At about this time last year, we had a similar event and I made a promise to the
people of Kenya that each year, I will be releasing the Judiciary Performance Scorecard
detailing how each of our court stations has been fairing over the assessment period. This
is significant in many ways. For one, by opening ourselves up for evaluation and speaking
openly about our successes and challenges, we earn the trust of Kenyans. Secondly, on the
part of our officers, it is impressive how quickly they have become accustomed to constant
monitoring and evaluation of their individual outputs.
Not too long ago, some of our colleagues were opposed to the introduction of performance
measurement instruments. They feared that the system would erode their independence
and interfere with the way things were done in the courts. Today, I can confirm with great
confidence that these fears have been proven to be unfounded: Our judges, judicial officers and
other staff have fully embraced the system and are successfully implementing it throughout
the country. Indeed, our Judiciary stands out globally as one of the few that have put in place
a well-structured performance management system. We are ready to help others benchmark
with us as we lead the way in the delivery of justice. The Performance Evaluation Report we
are launching today is the culmination of the successful implementation of the second cycle
of Performance Management and Measurement Understandings (PMMUs) that were signed
by more than 257 implementing units comprising Courts, Registries, Directorates and other
administrative units.
The report details the achievements of the courts and other units measured against variables
that are critical to the success of our work, with a particular focus on our blueprint, Sustaining
Judiciary Transformation. These include reduction of case backlog especially those that are
older than 5 years; determination of cases within the set timelines and delivery of judgments
and rulings on the date first scheduled, among others. I am happy to announce that during the
period under review, there was a dramatic improvement in the performance of our courts.
For example, the number of resolved cases increased by 58 per cent, from 192,100 cases
in 2015/2016 to 304,182 in 2016/2017. Resolved criminal cases increased from 156,024 to
218,796 while civil cases increased from 36,076 cases to 85,386 cases over the same period.
In regard to case backlog, the number of cases older than five years came down by 15 per
cent, from 139,256 in 2015/2016 to 118,566 cases in 2016/2017. On delivery of services,
the Judiciary achieved a court user satisfaction index of 64 per cent. Even though the
improvement in the performance has been realized across the entire Judiciary, 20 units have
been singled out for special recognition for coming out tops within their specific categories.
They scored highly in most of the key performance indicators measured. For example, one of
the court stations reduced case backlog by 62 per cent while in another, the court achieved
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BB Issue 41, April - June 2018
Judge’s Productivity of 331 cases. This means that one judge was able to hear and determine
these many cases within the year. These units, besides receiving recognition certificates, will
receive a cash reward of Sh150000 to use on a project of their choice. Let me congratulate
these units for their sterling efforts. Well done and keep it up.
The Judiciary continues to implement various strategies that are aimed at enhancing
efficiency and effectiveness in the delivery of justice. These include initiatives such as Service
Weeks, Justice at Last, Circuit Courts, enhancement of Court User Committees and so on. I
am convinced that these interventions are bearing fruit.
As we continue with other measures such as the introduction of case management systems
and other technological interventions, we can only produce better results in the coming years.
I wish to thank the Performance Management and Measurement Steering Committee and
the Performance Management Directorate for working tirelessly to put this report together.
Well done and keep it up.
3
BB Issue 41, April - June 2018
“
… the Wildlife Conservation and Management (Compensation Scheme) Regulation
2015 which contemplate how to deal with claims for human death or injury and
crop and property damage caused by wildlife, is yet to be implemented. There is
therefore urgent need for parliament to pass into law the said regulations to make the
compensation process provided for in the Act functional.”
“… globally, the insurance sector is so advanced that there are insurance covers
available for virtually any conceivable type of loss that may be suffered. Consequently, one
would reasonably expect an owner of land adjoining a Game Reserve to take an insurance
policy, to cover the crop against possible destruction by wildlife. By so doing, they avoid the
contingency of hefty losses being suffered due to destruction of the crop by wildlife. Indeed,
an owner of land that has close proximity to a National Park or Game Reserve is expected
to insure his crop, failing which a Court of law would have to apportion to him a degree of
negligence. Consequently, based on the apportionment, the claimant only recovers part of
the loss incurred as opposed to the full amount. In view of this, it is our recommendation that
the Legislature ought to consider whether or not affected parties such as farmers, ought to
take up mandatory insurance policies.”
Supreme Court Judges – M K Ibrahim, J B Ojwang, S C Wanjala, S. N Ndung’u & I Lenaola, SCJJ in Kenya Wildlife Service v Rift
Valley Agricultural Contractors Limited - Petition 11 of 2015
“
… upon gazettement of nominated members of County Assemblies, any aggrieved
party would have to initiate the process of challenging the said nominations by
filing an election petition at the Resident Magistrate Court designated as an Election
Court under Section 75 of the Election Act. In this instant matter therefore, upon the
gazettement of the name of the 3rd respondent as a nominated member of County
Assembly for Bungoma County, any aggrieved party ought to have filed an election
petition before an Election Court. It is only upon such filing and determination by an
Election Court, and where such a matter rises through the ordinary appellate process, that
other Courts in the judicial hierarchy can rightly assume jurisdiction with powers to give any
consequent orders.”
Supreme Court Judges – M K Ibrahim, J B Ojwang, S C Wanjala, S. N Ndung’u & I Lenaola, SCJJ in Independent Electoral &
Boundaries Commission v Jane Cheperenger, United Republican Party & Irine Kimutai Chesang - Petition 5 of 2016
“
There is no requirement under the Insolvency Act or the Companies Act which
stipulates that liquidation of a company should be as a last resort. Liquidation is one
of the options under the Insolvency Act which a creditor such as the respondent in the
case, could pursue to secure payment of a debt, especially a debt that remains unpaid
for several years and in respect of which the appellant has been given adequate time,
opportunity and indulgence.”
Court of Appeal Judges – A Visram, & M K Koome, JJ A (Concurring Majority Decision) in Prideinn Hotels & Investments Limited
v Tropicana Hotels Limited - Civil Appeal 98 of 2017
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BB Issue 41, April - June 2018
“
I am convinced that the respondent is just using the winding up avenue to put
pressure on the appellant to settle the debt in question. This in my view is the wrong
route… The petition for winding up order of a company should never be presented as
a means of exerting pressure to pay even an admitted debt where there is no evidence
of insolvency and inability to meet the deb”
Court of Appeal Judge – W Karanja, JJ A (Dissenting Opinion) in Prideinn Hotels & Investments Limited v Tropicana Hotels Limited
- Civil Appeal 98 of 2017
“
‘Identity’ is not defined under the Convention for the Rights of the Child and only
instances of identity such as nationality, name and family relations are listed. Article
8 was particularly meant to address unusual conditions such as natural parents
versus adoptive parents and other such conditions. Article 8, therefore imposes an
obligation on the State to not only preserve the identity of a child i.e. to preserve all
the information relating to the biological parents of the adopted child, but also not
to deprive the child of such information and to assist the child in getting such information.”
“
The amendment now means that for an election to be annulled there must not only
be failure to comply with the Constitutional principles and election laws but also
the failures must substantially affect the result of the election. The essence of this
amendment is to allow violation of constitutional principles and election laws as long
as they do not substantially affect the result. Any amendments must be forward looking
in order to make elections more free, transparent and accountable, than to shield
mistakes that vitiate an electoral process. It is my holding that there was no constitutional
compulsion or rational in amending section 83 of the Act to remove the disjunctive word ‘or’
and introduce the conjunctive word ‘and’ so that only where there are failures in complying
with the constitution and election laws and they substantially affected the results should an
election be annulled. Removing the twin test for annulling faulty election results negates the
principles of electoral system in the Constitution.”
High Court Judge – E C Mwita, J in Katiba Institute & 3 others v Attorney General & 2 others – Constitutional Petition 548 of 2017
“
A persons’ right to privacy entails that such a person should have control over his
or her personal information and should be able to conduct his or her own personal
affairs relatively free from unwanted intrusions. Information protection is an aspect
of safeguarding a person’s right to privacy. It provides for the legal protection of a
person in instances where such a person’s personal particulars are being processed by
another person or institution.”
High Court Judge – J M Mativo, J in Kenya Human Rights Commission v Communications Authority of Kenya, Attorney General,
Safaricom Limited. Airtel Networks Kenya Limited & Orange-Telkom Kenya - Constitutional Petition 86 of 2017
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BB Issue 41, April - June 2018
Feature Case
Court holds that the Installation of a DMS System Device with the
Capacity to Access Information Belonging to Subscribers of Certain
Networks in the Telecommunications Industry is Unconstitutional
Kenya Human Rights Commission v Communications Authority of Kenya & 4 others
Constitutional Petition No 86 of 2017
High Court at Nairobi
Constitutional and Human Rights Division
April 19, 2018
J M Mativo, J
Reported by Long’et Terer
The Kenya Human Rights Commission determining the matter, the court disposed
brought a petition challenging the of the following issues:
introduction of a Device Management
Whether the DMS system threatened the right
System (DMS) by the Communications
to privacy of the subscribers of the third, fourth
Authority of Kenya (CAK) into the networks
and fifth Respondents’ or their Consumer
of Safaricom Limited, Airtel Networks
Rights; if yes, did the limitation meets the
Kenya Limited and Orange-Telkom
Article 24 analysis test?
Kenya, the 3rd, 4th and 5th Respondents,
respectively. These Respondents provide The Court held that article 2(4) of the
various telecommunication services to Constitution provided that any law that was
their customers and those services include inconsistent with the Constitution was void
mobile telephone, data, internet, and mobile to the extent of the inconsistency. Similarly,
money transfers. The proposed system any act or omission in contravention of the
device had the capacity to access customers’ Constitution would be invalid. Further, it
information, which could only be accessed stated that article 259 of the Constitution
in a manner prescribed by law, and was provided that the Constitution would be
therefore said to be a violation of the right interpreted in a manner that promoted its
to privacy. The petition also challenged the purposes, values and principles, advanced
manner in which the device was introduced. the rule of law, and human rights and
The Petitioner stated that the device was fundamental freedoms in the Bill of Rights
introduced without public participation and and permitted the development of the
there was no guarantee that the information law and contributed to good governance.
accessed would remain confidential. The Consequently, the Court would examine
Petitioner said that the intended purpose the object and purport of legislation, an act
of the introduction of the DMS, which was or omission, at issue, in order to read such
the blocking of fake and duplicate IMEI, was legislation, act or omission in conformity
capable of being achieved without intruding with the Constitution.
into the privacy of Kenyans. The Petitioner The court outlined the principles of
also complained about the proposal to constitutional interpretation to include;
block phone gadgets without affording
the affected person a hearing. Therefore, i. The Constitution is not interpreted
the Petitioner stated, the device created like an ordinary statute. The spirit
unjustified limitations to the right to privacy and tenor of the Constitution
and also the rights guaranteed under articles must permeate the process of
40, 46, 47 and 50 of the Constitution. In judicial interpretation and judicial
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BB Issue 41, April - June 2018
discretion. A narrow, mechanistic, the task before the Court was thus to impart
rigid and artificial interpretation is constitutional meaning to individual liberty
to be avoided in favour of a broad in an interconnected world. The constitution
liberal and purposive interpretation. protects privacy as an elemental principle,
On the other hand, it is not always but the Court had to be sensitive to the needs
true that generous and purposive of and the opportunities and dangers posed
interpretation would coincide. It may to liberty in a digital world.
be necessary for generosity to yield to
In the same breath, the court provided that
purposiveness.
data protection was an aspect of safeguarding
ii. In interpreting the Constitution a person’s right to privacy. It provided for
close scrutiny should be given to the legal protection of a person in instances
the language of the Constitution in where such a person’s personal particulars
ascertaining the underlying meaning (information) were being processed by
and purpose of the provision in another person or institution (the data
question. user). Processing of information generally
referred to the collecting, storing, using
The Court held that the right to privacy
and communicating of information. The
was a fundamental human right, enshrined
processing of information by the data user/
in numerous international human rights
responsible party threatens the personality
instruments. It was central to the protection
in two ways: a) First, the compilation and
of human dignity and forms the basis of
distribution of personal information creates a
any democratic society. This right, it was
direct threat to the individual’s privacy; and
held, supported and reinforced other rights,
(b) second, the acquisition and disclosure of
such as freedom of expression, information,
false or misleading information may lead to an
and association. Further, the court
infringement of his identity.
expounded, the right to privacy embodied
the presumption that individuals should The Court Stated that Article 19 of the
have an area of autonomous development, Constitution stipulated that the Bill of
interaction, and liberty, a “private sphere” Rights was the cornerstone of democracy in
with or without interaction with others, Kenya. It enshrined the rights of all people
free from arbitrary state intervention and in the country and affirmed the democratic
from excessive unsolicited intervention values of human dignity, equality and
by other uninvited individuals. Activities freedom. Article 31 provides the right to
that restrict the right to privacy, such as privacy of the person, home or property
surveillance and censorship, could only be searched. It recognized the right of every
justified when they are prescribed by law, person to privacy, which includes the right
necessary to achieve a legitimate aim, and not to have their person searched; their
proportionate to the aim pursued. A person’s possessions seized; information relating to
right to privacy entailed that such a person their family or private affairs unnecessarily
should have control over his or her personal required or revealed; or the privacy of their
information and should be able to conduct communications infringed. The recognition
his or her personal affairs relatively free and protection of the right to privacy as a
from unwanted intrusions. Privacy, in its fundamental human right in the Constitution
simplest sense, allowed each human being to provided an indication of its importance.
be left alone in a core which was inviolable.
A persons’ right to privacy, the court
Yet the autonomy of the individual was
provided, entailed that such a person
conditioned by her relationships with the
should have control over his or her personal
rest of society. The court went on to explain
information and should be able to conduct
that equally, new challenges had to be dealt
his or her own personal affairs relatively
with. The emergence of new challenges
free from unwanted intrusions. Information
was exemplified by this case, where the
protection is an aspect of safeguarding a
debate on privacy was being analyzed in the
person’s right to privacy. This right provided
context of global information based society.
for the legal protection of a person in instances
In an age where information technology
where such a person’s personal particulars
governs virtually every aspect of our lives,
are being processed by another person
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BB Issue 41, April - June 2018
those means had the effect of minimally freedoms if it was adopted legally. It was
impairing the enjoyment of the right in therefore necessary to assess whether it was
light of alternative means of achieving that legally adopted.
objective. An assessment of the balance
It was the Court’s view that the mandate of
between the beneficial and negative effects of
combating illegal devices was not within
the limitation, including the balance between
the scope of the mandate of CAK. There
public interest and private rights would be
were statutory bodies mandated to combat
done. The Court thus found that a limitation
counterfeits, ensure standards and curb the
on the enjoyment of constitutional rights
importation of illegal devices. Therefore, the
would be permissible if-
DMS system did not satisfy the article 24
i. It was designated for a proper analysis test. Where the CAK purported to
purpose, perform functions vested on other statutory
ii. The measures undertaken to bodies it was acting ultra vires its functions.
effectuate such limitation were Combating illegal and counterfeit devices
rationally connected to the fulfillment was not within the CAK’s mandate.
of that purpose,
iii. The measures undertaken were Whether the process leading to the decision to
necessary in that there were no the acquisition and installation of the DMS
alternative measures that could system in the first, second and third Interested
achieve that same purpose with a Parties Mobile Networks was subjected to
lesser degree of limitation, adequate public participation
iv. A proper relation (“proportionality The Court was of the view that there was a
strictu sensu” or “balancing”) catena of foreign and local court decisions
between the importance of achieving holding that an analysis of the Constitutional
the proper purpose and the special provisions yields a clear finding that public
importance of preventing the participation plays a central role in legislative,
limitation on the constitutional right policy as well as executive functions of the
was necessary. Government. All these decisions are in
Whether the installation of the DMS system agreement that public participation ought to
fell within the statutory mandate of the CAK be real and not illusory and ought not to be
treated as a mere formality for the purposes
The court held that there were lawful
of fulfilment of the Constitutional dictates. It
and less restrictive means to achieve
is also an established jurisprudence that any
the stated objective. Illegal devices were
decision to exclude or limit fundamental
not manufactured in Kenya. There were
participatory rights must be proportionate
importation laws, laws governing counterfeit
in order to be lawful.
goods, the Kenya Bureau of Standards to
monitor standards, the Kenya Revenue In determining this particular issue, the
Authority and the National Police Service. court held that the key consideration
Those laws and institutions were not shown was whether the CAK acted reasonably in
to be insufficient. In the past it was shown that the manner it facilitated and engaged the
1.89 million illegal devices were switched third, fourth and fifth Respondents in the
off. Mobile Network Owners were able to particular circumstances of this case and
identify and block black listed devices. the failure to engage the subscribers and the
general public. It was held that the nature
Subscriber information could only be released
and the degree of public participation that
under terms prescribed in section 27A of the
was reasonable in a given case would depend
Kenya Information and Communications
on a number of factors. These included the
Act. There was no evidence tendered to show
nature and the importance of the policy or
that the DMS system in question fit into the
decision, and the intensity of its impact on
circumstances contemplated under the said
the public. The public whose data is held
section 27A.
by the third, fourth and fifth Respondents
The DMS system could only pass the test and whose constitutional right to privacy
provided for in article 24 of the Constitution, is at risk in the event of breach must as of
for the limitation of fundamental rights and necessity be involved in the engagements.
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BB Issue 41, April - June 2018
Thus, the process must be subjected to it could be read in a manner that conformed
adequate public participation wide enough to the relevant statute. Every act of the state
to cover a reasonably high percentage of or public bodies must pass the constitutional
affected population in the country. The test. Put differently, it must conform to the
more discrete and identifiable the potentially principal of legality.
affected section of the population, and the
A contextual or purposive interpretation
more intense the possible effect on their
of the challenged decision must of course
interests, the more reasonable it would
remain faithful to the actual wording of the
be to expect CAK to be astute to ensure
statutes, namely the Fair Administrative
that the potentially affected section of the
Action Act, the Constitution, KICA and
population is given a reasonable opportunity
the Regulations made there under and the
to have a say. In the circumstances of this
Consumer Protection Act. The challenged
case and applying the above considerations,
decision must be capable of sustaining an
the conclusion becomes irresistible that
interpretation that would render it compliant
there was absolutely in adequate public
with the Constitution and the statutes;
participation prior to the attempt implement
otherwise the courts were required to declare
the DMS system.
it unconstitutional and invalid. The Court
Whether CAK violated the Petitioners´ Rights noted that that a contextual interpretation
to Fair Administrative Action of the impugned decision, therefore, must
be sufficiently clear to accord with the rule
The court provided that it must always be
of law. Mindful of the imperative to read the
remembered that the courts were concerned
challenged decision in conformity with the
with the process a statutory body employs to
Constitution and the relevant statute, I find
reach its decision and not the merits of the
and hold that the DMS was introduced in a
decision itself. Once it had been established
manner not inconformity with the law and is
that a statutory body had made its decision
tainted by illegality.
within its jurisdiction following all the
statutory procedures, unless the decision From the facts of this case, the court was of
was shown to be so unreasonable that it the view that it was clear that the impugned
defies logic, the court could not intervene decision fell within the definition of an
to quash such a decision or to issue an order administrative action as contemplated under
prohibiting its implementation since a the act. The decision affected the subscribers
judicial review court does not function as an and the public generally, that the subscribers
appellate court. and the general public were never involved
at all nor where they supplied with reasons
From the evidence tendered in this Petition,
for the decision, hence was the conclusion of
the court held that it was clear that the
the Court that CAK violated the provisions
subscribers or the general public were
of Article 47 and the Fair Administrative
not engaged at all, yet the law demands
Action Act.
otherwise. In light of the principle of
legality which required the CAK’s actions Whether the impugned decision violated
must conform to the law, the Court found consumer rights of the subscribers of the third,
that failure to engage the public and the fourth and fifth Respondents;
subscribers offends the provisions of the Fair
From the definition in section 2 of the Act
Administrative Action Act. Put differently,
and the Preamble and purpose of the Act,
the question was whether, properly
it was clear that the whole tenor of the Act
construed, the manner in which the DMS
was to protect consumers. The Act must
system was implemented conforms to the
therefore be interpreted keeping in mind
above sections and the constitution. When
that its focus is the protection of consumers.
the constitutionality or legality of a decision
The court thus held that consumer rights
made by a public body in the exercise of its
litigation was not a game of win-or-lose in
statutory mandate was questioned, the duty
which winners must be identified for reward,
of the court was to determine whether the
and losers for punishment and rebuke. It is
impugned decision was capable of being
a process in which litigants and the courts
read in a manner that was constitutionally
assert the growing power of the expanded
compliant or as in the present case whether
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BB Issue 41, April - June 2018
Bill of Rights in our transformative and incurring the other sides. For all potential
progressive Constitution by establishing its litigants, the risk of exposure to an adverse
meaning through contested cases. costs order is a critical consideration in
deciding whether to proceed with litigation.
The Court stated that the proper approach to
Should the fear of costs prevent an issue of
constitutional construction was embodying
public importance and interest from being
fundamental rights and protections. What
heard? The Judge borrowed from Lord
was to be avoided was the imparting of
Diplock’s dictum stating:-“... it would, in my
a narrow, artificial, rigid and pedantic
view, be a grave lacuna in our system of public
interpretation; to be preferred was one
law if a pressure group... or even a single public-
which served the interest of the Constitution
spirited taxpayer, were prevented by outdated
and best carried out its objects and promoted
technical rules of locus standi from bringing the
its purpose. All relevant provisions were to
matter to the attention of the court to vindicate the
be considered as a whole and, where rights
rule of law and get the lawful conduct stopped...”.
and freedoms were conferred on persons,
derogations there from, as far as the language The court held that the petition sought to
permits, should be narrowly or strictly enforce constitutional rights and obligations
construed. in public interest. Courts were reluctant to
award costs in such public interest litigation.
In line with the dictates of the Constitution,
In public interest litigation costs were a
the court held that it would reject the narrow,
potential barrier to access to justice as the
literal reading of the above provisions and
fear of incurring legal fees could prevent an
opt for a construction that promotes wider
issue of public importance and interest from
access to protection of consumer rights.
being heard. In constitutional litigation,
Article 46 (3) provided that the Article
the primary consideration with respect to
applied to goods and services offered by
costs was the way in which a costs order
the public entities or private persons. First,
would hinder or promote the advancement
the consumers were never involved in the
of constitutional justice. The nature of the
discussions, hence, they were never provided
issues raised in the petition would be more
with information on the device. This was a
important that the parties’ financial ability.
breach of their constitutional and statutory
Accordingly, a frivolous or vexatious petition
rights. Secondly, the court reiterated that
could attract costs.
their constitutionally guaranteed right to
privacy. The court therefore found and What were the appropriate reliefs in this case?
held that the DMS was introduced in a
The Court held that this was a proper case for
manner that was inconsistent with the
it to fashion appropriate reliefs as the justice
constitutionally and statutory guaranteed
and circumstances of the case demanded.
rights of the consumers and or subscribers
The Court was empowered by article 23
of the third, fourth and fifth Respondents.
(3) of the Constitution to grant appropriate
What was the appropriate order regarding reliefs in any proceedings seeking to enforce
costs? fundamental rights and freedoms such as
the instant case. Appropriate relief would in
The Court held that this was a constitutional
essence be relief that was required to protect
Petition seeking to enforce constitutional
and enforce the Constitution. Depending on
Rights and obligations and brought in public
the circumstances of each particular case,
interest. It was common knowledge that
the relief could be a declaration of rights,
courts have been reluctant to award costs in
an interdict, a mandamus or such other
constitutional Petitions seeking to enforce
relief as could be required to ensure that the
constitutional rights brought in public
rights enshrined in the Constitution were
interest. Relying on the the phrase “Justice is
protected and enforced. If it was necessary to
open to all, like the Ritz hotel” attributed to a
do so, the Court could even have to fashion
19th Century jurist, the court stated that costs
new remedies to secure the protection and
have been identified as the single biggest
enforcement of those all-important rights.
barrier to public interest litigation in many
The Courts had a particular responsibility
countries. Not only does the applicant incur
in that regard and were obliged to forge
their own legal fees; they run the risk of
new tools and shape innovative remedies,
11
BB Issue 41, April - June 2018
if need be to achieve that goal. The court issued declaring that the first Respondents
therefore allowed the petition and granted request and or purported intention and or
the following orders: decision and or plan contained in its letter
a. A declaration be and is hereby issued dated 31st January 2017 addressed to the first,
that policy decisions or Regulations second and third interested parties seeking to
affecting the Public must conform to the integrate the DMS to the first, second and
Constitution and the relevant statute in third interested parties networks to inter
terms of both its content and the manner alia create connectivity between the DMS
in which it is adopted and failure to comply and the first, second and third Interested
renders the policy decision, Regulation or Parties system to access information on the
guideline invalid. IMEI, IMSI, MSISDN and CDRs of their
b. A declaration be and is hereby issued subscribers on their network is a threat to
decreeing that the decision, policy or the subscribers privacy, hence a breach of
regulation seeking to implement the DMS the subscribers constitutionally guaranteed
System was adopted in a manner inconsistent rights to privacy, therefore unconstitutional
with the provisions of the Constitution, null and void.
Section 5 (2) of KICA and the Consumer f. A declaration be and is hereby issued
Protection Act, hence the said decision, policy declaring that the first Respondents decision
and or regulation is null and void for all to set up connectivity links between the
purposes. DMS and the first, second and third
c. Further and or in the alternative Interested Parties networks communicated
a declaration be and is hereby issued in its letter dated 6th February 2017 is
decreeing that the decision, policy and or unconstitutional, null and void to the extent
regulation seeking to implement the DMS that it was arrived at unilaterally, without
System was adopted in a manner inconsistent adequate public participation and that it a
with the Constitution, Section 5 (2) of KICA threat to the right to privacy of the first, second
and the Consumer Protection Act in that and third interested parties subscribers and a
there was no adequate public participation gross violation of their constitutionally and
prior to its adoption and implementation with statutory protected consumer rights..
the first, second and third interested parties g. An order of prohibition be and is hereby
and further the subscribers of the first, second issued prohibiting the first Respondent, its
and third Interested Parties were not engaged servant or agents from implementing its
at all in the public consultations, hence the decision to implement the DMS system to
same is null and void for all purposes. establish connectivity between the DMS
d. A declaration be and is hereby issued and the first, second and third Interested
decreeing that the first Respondent was Parties system to access information on the
obligated to craft and implement a meaningful IMEI, IMSI, MSISDN and CDRs of their
programme of public participation and subscribers on their network.
stakeholder engagement in the processleading h. That this being a public interest litigation
to the decision, policy and or regulation or there will be no orders as to costs.
implementation of the DMS System.
e. A declaration be and is hereby
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BB Issue 41, April - June 2018
Supreme Court
Kenya Wildlife Service is Liable for Destruction of Crops and Animals
Caused by Wildlife Migration
Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited
Petition No 11 of 2015
Supreme Court of Kenya
April 27, 2018
M K Ibrahim, J B Ojwang, S C Wanjala, S N Ndungu, I Lenaola, SCJJ
Reported by Ian Kiptoo
Tort Law-negligence-negligence of a statutory producing crops, and raising livestock and in
duty-where a provision imposed an obligation varying degrees the preparation and marketing of
but not a remedy of compensation for negligence- the resulting products-Merriam-Webster Online
whether a claimant could enforce a common law dictionary
action of negligence for destruction of crops by
Words and Phrases-act of God-definition of-
wildlife against the Kenya Wildlife Service even
an overwhelming, unpreventable event caused
though it was not given provision for under the
exclusively by forces of nature, such as an
Wildlife (Conservation and Management) Act-
earthquake, flood, or tornado. The definition has
Wildlife (Conservation and Management) Act,
been statutorily broadened to include all natural
section 3A (l)
phenomena that are exceptional, inevitable,
Stare decisis-Rylands v Fletcher-strict liability- and irresistible, the effects of which could not be
applicability of the principle-factors a court takes prevented or avoided by the exercise of due care or
into consideration in applying the principle- foresight- Black’s Law Dictionary
whether the principle of strict liability in Rylands
Brief facts
v Fletcher relied upon by the Respondent was
applicable in determination of the suit The matter before the Court was a petition
of appeal anchored on the grounds that the
Stare decisis-Donoghue v Stevenson-neighbour
Court of Appeal erred:
principle-applicability of the principle-factors
a court takes into consideration in applying the a) In wrongly finding that the Judge
principle-whether the neighbor principle relied of the High Court was right in his
upon by the Respondent in Donoghue v Stevenson analysis of the statutory duties of the
was applicable in determination of the suit Appellant as set out in section 3A (c)
and (l) of the Wildlife Act.
Statutes-interpretation of statute-interpretation b) In finding that the Appellant was liable
of section 3A of the Wildlife (Conservation and to compensate the Respondents.
Management) Act in regards to liability of Kenya c) In finding that the rules in Ryland v.
Wildlife Service vis-à-vis the liability of County Fletcher applied to the case before the
Governments in regards to destruction of crops Court.
by wildlife-whether it was the Appellant who was d) In failing to find that migration of
liable for compensation for destruction of crops by wildlife was a natural phenomenon
wildlife in the Maasai Mara or the Narok County hence an act of God.
Government-Constitution of Kenya, 2010 article
Issues
62; Wildlife (Conservation and Management)
Act, section 3A (l) and section 18 i. Whether a claimant could enforce a
common law action of negligence
Tort Law-Negligence-defences-act of God-what for destruction of crops by wildlife
amounted to an act of God- whether the Appellant against the Kenya Wildlife Service
could rely on the defence of act of God for the even though it was not given provision
destruction of crops caused by the migration of for under the Wildlife (Conservation
wildlife and Management) Act.
Words and Phrases-agriculture-definition-the ii. Whether the principle of strict liability
science, art, or practice of cultivating the soil, in Rylands v Fletcher relied upon by
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BB Issue 41, April - June 2018
were not among the land that vested and managed by the Narok County
in county governments. In the same government. There had been recent
vein, management of national parks developments in the principle in Rylands
and game reserves was not a function v Fletcher such as the inclusion of the
that had been devolved to the County element of foreseeability. However, the
Government under the Fourth Schedule Court would not delve into that as the
to the Constitution. The Court was principle was not applicable.
not privy to the arrangement between 8. The principle in Donoghue v Stevenson was
the Appellant and the Narok County applicable in respect of where a person
Government, which was not a party in owes a duty of care to persons who are
the appeal, concerning the management closely and directly affected by his act, so
of the game reserve in question. that he ought to reasonably foresee they
6. Where a statutory obligation was will be affected. However, the principle,
imposed on a person, such obligation to the effect that a manufacturer owes
could not be abdicated by that person a duty of care to the consumer of his
even if it was expressly permissible goods was inapplicable in the instant
under the Constitution or statute to do case since it had nothing to do with the
so. The express provisions imposing the manufacture of goods.
obligation would trump any agreement, 9. For an act of God; there had to be an
whether contractual or not, purporting aspect of natural causation; the event or
to relinquish such obligation. The act ought to have been one that could
Appellant’s obligations under section not have been foreseen; that nature had
3A (l) could not and were not abdicated to be the exclusive or sole cause; and, the
in favour of, or transferred to Narok effects could not have been avoided by
County Government. Therefore, breach reasonable due care or foresight on the
of section 3A (l) imposed a liability on the part of the Defendant. The element of
Appellant to compensate for destruction foreseeability was commonly taken into
of crops by wildlife. consideration in determining whether
7. The elements of the principle in Rylands an impugned act was an act of God.
v. Fletcher were: 10. The Courts ought to have limited the
i. the Defendant must make a non- applications of act of God to events that
natural use of his land; could truly be classified as extraordinary
ii. the Defendant must bring and unforeseen in view of the readily
something onto his land which is available knowledge of weather patterns
likely to do mischief if it escaped; and climate change. In like manner, the
iii. the thing in question must actually migration patterns of wild animals were
escape; and, predictable and adequate preparation
iv. Damage must be caused to the had to be made by relevant authorities to
Plaintiff’s person or property as a ensure that loss arising from migration
result of the escape. was avoided. In the instant case, the
The principle in Rylands v. Fletcher was defence of an act of God was inapplicable
not applicable in the instant case; because, for the reason that migration of wildlife,
first, the presence of the wildlife on the especially within the land in question
land was not a non-natural use of the was an annual occurrence hence
land in question–even without delving foreseeable to any reasonable person.
into the question whether the Appellant Similarly, the occurrence of drought was
was the owner of the land. Secondly, the reasonably foreseeable within the region
Appellant did not bring the wild animals in question. Therefore, the Appellant’s
onto the land. Thirdly, the escape had claim of act of God inevitably failed.
to be from land in occupation of and/or 11. The provisions of section 3A of the
under the control of the Appellant. The Wildlife Act were very clear as to who
Appellant was not in occupation of the bore the obligation to protect agriculture
land in question, neither was the land and animal husbandry – it was KWS.
under its control. It was not in doubt Though the Government would ideally
that the land in question was owned be expected to have control of the
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BB Issue 41, April - June 2018
when service would have been effected, the 3rd Respondent sought to vacate
the Respondents still had 10 days within the Consent Orders and stated that the
which to respond. Petitioner needed to first make a formal
3. The Court affirmed the general application in Court seeking extension
principle of law which was recognized of time to file the documents out of time.
in the Constitution of Kenya, 2010 6. Although the Petitioner’s conduct of
(Constitution)that where a particular filing submissions 30 days after the
time is not prescribed for performing initial agreed period was inexcusable,
a required act, the act should be done the Court was at pains to understand
without unreasonable delay. In the why the 1st Respondent’s counsel would
instant case, the 3rd Respondent did not fail to respond at all to the Petitioner’s
indicate when service was effected and case which had been lying in the Court
hence the Court could only speculate for more than a year.
whether service was done within a 7. The 3rd Respondent’s objection was at
reasonable time or not. Consequently, the very least an epitome of infringement
the 1st Respondent’s objection was of article 159 of the Constitution which
unmerited and without any basis. not only dissuaded the Court from
Furthermore, the 3rd Respondent was being tied to the ropes of procedural
not in any way prejudiced as to handicap technicalities but also reminded it that
him from responding to the Petitioner’s justice delayed was justice denied. Most
case within 10 days after service of the unfortunate was the fact that Kenya was
record. at another election cycle and matters
4. The Petitioner’s submissions were filed such as were in the instant case which
out of time. Whereas that would have emanated from 2013 general elections
given the 3rd Respondent a basis, if at were still pending in the Court. Whereas
all, for objecting, it was not upon the 3rd breach of timelines was not condoned
Respondent to decide on the punitive by the Court, the 1st Respondent was
measure to befall upon a party who not prejudiced by the late filing of
failed to comply with the directions submissions since she still had 10 days
of the Court, as every other party had within which to respond. Accordingly,
a respective individual obligation to the 1st Respondent’s objection was
honour Court’s directions. Underscoring dismissed.
the importance of complying with Court 8. Counsel ultimate duty was to the Court
orders and directions given especially first. They were officers of the Court
with regard to filing and service of and were meant to help the Court in its
documents within the requisite time. role of dispensation of justice. Hence, it
Cognizance was taken of rule 53 of the was absurd when an advocate appeared
Supreme Court Rules, 2012 which gave before Court, especially the Supreme
the Court power to extend the time Court, not prepared to advance his
limited by the Rules, or by any decision client’s case. That unpreparedness flew
of the Court. Therefore, to that extent on the face of an advocate’s role as an
the late filing of submissions was not officer of the Court, and also bordered
patently incurable. on breach of his duty to the client and
5. It had been more than a year since the the obligation to diligently represent
Petitioner filed its submissions and his/her client. Consequently, before
effected service on the 1st Respondent appearing in Court to represent a client,
on the same day. Since then, as could be it was of paramount importance that
deduced from the various mentions that advocates got all the necessary facts
had been before the Deputy Registrar, clear and appeared in Court prepared
counsel for the 1st Respondent had in order to properly advance their
repeatedly affirmed his position that he clients’ case. Counsel’s conduct in the
would not respond to the Petitioner’s instant case notwithstanding, the Court
case since the Petitioner had failed to was not absolved from undertaking its
comply with the Court Orders. One duty which was to dispense justice and
such mention was where counsel for neither would the said conduct prejudice
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BB Issue 41, April - June 2018
the Court in execution of its mandate as and issue any consequent orders, as a
before the Court, were legal issues which result of the Court’s pronouncement,
had been clearly fleshed out. other constitutional processes were
9. Upon gazettement of nominated initiated which culminated in the
members of County Assemblies, any nomination of the 1st Respondent as
aggrieved party would have to initiate the URP member of Bungoma County
the process of challenging the said Assembly. Therefore, the Court was
nominations by filing an election constrained to make any order which
petition at the Resident Magistrate Court would defeat the resultant electoral
designated as an Election Court under process.
section 75 of the Election Act. Therefore Appeal allowed
in the instant case, it was only upon such
filing and determination by an election Orders
court, and where such a matter rose i. The Court affirmed that the Court of
through the ordinary appellate process, Appeal had no jurisdiction to revoke the
that other courts in the judicial hierarchy nomination of the 3rd Respondent or to
could rightly assume jurisdiction with give any consequent orders.
powers to give any consequent orders. ii. The resultant electoral process that
Therefore to that extent, the Court of culminated in the removal of the 3rd
Appeal had no jurisdiction to revoke Respondent was sustained.
the nomination and election of the iii. For the avoidance of doubt, the status quo
3rd Respondent or to issue any other remained.
consequent orders. iv. Parties would bear their own respective
10. Though the Court of Appeal had no costs.
jurisdiction to revoke the Gazette Notice
History teaches us that unity is strength, and cautions us to submerge and overcome our differences in the quest for common goals, to strive, with all
our combined strength, for the path to true African brotherhood and unity - Haile Selassie
19
BB Issue 41, April - June 2018
Court of Appeal
It is not Compulsory for Liquidation of a Company to be an Option of
Last Resort Where a Company Failed to Pay its Debts
Prideinn Hotels & Investments Limited v Tropicana Hotels Limited [2018] eKLR
Civil Appeal No. 98 of 2017
Court of Appeal at Mombasa
March 22, 2018.
A. Visram, M.Koome & W. Karanja, JJA
Reported by Kakai Toili
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Court of Appeal Affirms High Court Decision to Nullify the Results of the
Wajir County Gubernatorial Elections.
Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
Election Petition Appeal No 2 of 2018
Court of Appeal at Nairobi
April 20, 2018
P N Waki, Asike-Makhandia & P O Kiage, JJ A
Reported by Beryl A Ikamari
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BB Issue 41, April - June 2018
qualify for the Master’s degree and the required the Appellant to avail himself
Appellant’s name did not appear in the for cross-examination on his replying
university’s graduation booklet. affidavit. No explanation was given for
9. The Appellant did not deny any of the the Appellant’s failure to testify. The
allegations concerning his educational consequences of non-attendance were
qualifications. His response was that that where there was evidence tending
the issue concerning those allegations to prove a particular fact, albeit slender,
had been litigated at the Ugandan High silence in circumstances where a party
Court and that High Court dismissed was expected to controvert that evidence
the case. The Appellant did not attend would potentially convert that evidence
the High Court proceedings and was not into proof.
cross-examined on his replying affidavit. 12. The High Court’s conclusion that the
Therefore, his replying affidavit was Appellant was not legally cleared to vie
robbed of probative value. for the position of Governor as he did
10. The High Court’s finding that prima facie not satisfy the qualification criteria set
evidence had been tendered to prove out in section 22(2) of the Elections Act,
the invalidity of the bachelor’s degree was justified. The consequence of the
certificate dated March 1, 2012 and finding was that the Appellant’s election
that the evidential burden of proof had had to be invalidated.
shifted to the Appellant to discharge that 13. A person who was not qualified to vie for
evidence, could not be faulted. The legal a particular seat could not hold onto his
burden of proof remained with the 1st false victory by pointing to the margin
and 2nd Respondent but the evidentiary of his vote vis-a-vis his competitors. He
burden shifted to the Appellant. ought not to have been in the race in the
11. Unless the parties agreed by consent first place and the alleged victory would
to have affidavit evidence admitted be a distortion of reality and a subversion
without cross-examination of the of the electoral process.
deponent, the Election Petition Rules Appeal dismissed.
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BB Issue 41, April - June 2018
High Court
Children Adoptees Have a Right to Know the Identity of their Parents, the
Parent’s Origin and the Existence, if any, of their Siblings.
D W T v B N T & 3 others [2018] eKLR
Petition No. 46 Of 2016
High Court at Nairobi
Milimani Law Courts
Constitutional & Human Rights Division
April 18, 2018
J.M. Mativo, J
Reported By Felix Okiri
Constitutional Law- fundamental rights and years when he was compelled by adverse
freedoms –rights of a child - rights of an adoptee treatment to leave their home. He stated that
– application to know biological parents and sometimes in 2011, he was charged, tried and
circumstances of adoption - whether an adopted convicted of the offence of violently robbing
child had a right to know his or her biological the 2nd Respondent. His appeal against the
parents- what were the limitation of that right said conviction was pending in the Court of
- Constitution of Kenya, 2010 articles 24,27, 28, Appeal.
29, 35 and 45
The Petitioner sought a declaration that
Constitutional Law- fundamental rights and despite not being their biological son
freedoms- rights of a child- enforcement of the and regardless of criminal proceedings
Bill of Rights- whether a right to the information against him, he was part of the 1st and 2nd
of the child’s background and the identifying Respondents’ family, and was consequently
information about his/her biological parents eligible to parental care, love and support
could be articulated as a fundamental right and was entitled to enjoy the right to dignity,
guaranteed in the Bill of Rights. security of person, family and equality like
other members of the family to the greatest
Civil Practice & Procedure- parties to a suit
extent possible.
-joinder of parties-where a party was improperly
enjoined in the suit- whether joinder, misjoinder The Petitioner had also enjoined the fourth
or non-joinder of a party was sufficient to defeat Respondent, the British High Commission
a constitutional Petition - whether the Petition in the instant Petition.
was bad for misjoinder of parties and for raising
several causes of action- Constitution of Kenya Issues
(Protection of Rights and Fundamental Freedoms) i. Whether an adopted child had a right
Practice and Procedure Rules, 2013. to know his or her biological parents.
Brief facts ii. Whether a right to the information
of the child’s background and the
The Petitioner, a male adult, was an adopted
identifying information about his/
son of the 1st and 2nd Respondents. He
her biological parents could be
sought to know his biological parents and
articulated as a fundamental ‘right’
circumstances of his adoption from the 3rd
guaranteed in the Bill of Rights.
Respondent. The Petitioner claimed that
iii. Whether the Petition was bad for
his rights under articles 27, 28 and 35 of
misjoinder of parties and for raising
the Constitution had been violated in that
several causes of action.
the adopting parents adopted him under
circumstances unknown to him, yet they had Relevant Provisions of the Law
denied him parental compassion, love, care Convention on the Rights of Child 1989
and support. Article 8
The Petitioner claimed that he lived with 1. States Parties undertake to respect the
the 1st and 2nd Respondents until he was 17 right of the child to preserve his or her
identity, including nationality, name
26
BB Issue 41, April - June 2018
relationship that was being severed or the biological parents were known. There
created out of the adoption exercise. The could be no objection in furnishing to the
Children’s Act was silent on the question adoptive parents particulars in regard to
of whether or not adopted children had the biological parents of the child taken
a right to know their origin. Further, the in adoption, but it was to be made clear
Act was also silent on what information that it was to be entirely at the discretion
the children could or could not access of the adoptive parents whether and if
and at what age. The information on the so when , to inform the child about its
origin of the child was in the custody of biological parents. But if after attaining
the government and adoption agencies the age of maturity, the child wanted to
and the court handling the adoption. know about its biological parents, there
That lacuna in Kenya’s law led the Court could not be any serious objection to
to resort to international law as a source the giving of such information to the
of law in Kenya. child because after the child had attained
5. Article 8 of the Convention on the Rights maturity, it was not likely to be easily
of the Child provided that States Parties affected by such information and in such
were to undertake to respect the right of a case, the adoptive parents could, in
the child to preserve his or her identity, exercise of their discretion, furnish such
including nationality, name and family information to the child if they thought
relations as recognized by law without fit.
unlawful interference. It further provided 8. In Kenya, when issues of the need for
that where the child was illegally deprived the child to know the biological parents
of some or all of the elements of his or arose, the Court could refer to the
her identity, States Parties had to provide Constitution for reference and guidance.
appropriate assistance and protection, Article 35 of the Constitution provided
with a view to re-establishing speedily that every citizen had the right of
the child’s identity. Article 30 of the same access to information held by the State,
convention provided that the competent information held by another person and
authorities of a Contracting State were required for the exercise or protection
to ensure that information held by of any right or fundamental freedom.
them concerning the child’s origin, in Information regarding adoption of
particular information concerning the children in Kenya was held by the
identity of the child’s parents, as well State and adoption agencies. Article 35
as the medical history, was preserved. enabled the child either during the age
It required State parties to ensure that of minority through her legal guardian
the child or his or her representative or after attaining the age of majority to
had access to such information, under apply to be furnished with information
appropriate guidance, in so far as was about their biological parents.
permitted by the law of that State. 9. Article 31 of the Constitution provided
6. The law in the United Kingdom provided that every person had the right to privacy,
that children could apply for a copy of which included the right not to have
their original birth certificate and for information relating to their family or
information about their birth family from private affairs unnecessarily required or
the adoption agency, which arranged revealed. That provision brought about
the adoption. Adult adoptees and birth a competition of rights and interests.
family members could also apply to The biological parents of the child had
the Registrar General for entry of their the right to have their matters kept in
names on the Adoption Contact Register secrecy but the child on the other hand
which included the names of adopted had the right to the information and to
persons and the relatives of adopted know their true identities. Article 53 of
persons. In other Jurisdictions, the right the constitution provided that the best
was guaranteed once one reached the age interest of the child was of paramount
of majority. importance in all matters affecting the
7. From the child study report, one would child. Children adoptees had a right to
be able to gather information as to who know the identity of their parents, the
were the biological parents of the child, if parent’s origin and the existence if any
28
BB Issue 41, April - June 2018
of their siblings. In pursuing the right one’s roots or identity was found
to know one’s origins as a fundamental to be the most important reason
right, the three interests that emerged as to why adoptees wanted to
were - medical, legal and genetic. Also, know about their biological
when enjoying the right, one had to parents since it underlay the need
strike a balance between the need for to know and could shape the
one to know the biological parents, and identity of an adopted person.
protection of confidentiality/privacy of 13. It could now be claimed with some
the biological and adopting parents. confidence from the available evidence
10. The need to know one’s parentage and that there was a psychological need in
background was crucial to children and all people, manifest principally among
adults who did not have that information. those who grew up away from their
That right to know one’s origins meant original families, to know about their
having the information and identity of background, geneology, and personal
one’s biological parents and conditions history, if they were to grow up feeling
of birth. The right to know stemmed complete and whole. The idea of the
from the desire to know the identity of importance of blood ties and genes
self. Social scientists had considered the was common to most people and they
meaning of identity to be determined felt profoundly deracinated if brought
by three main aspects: - self-definition, up with no knowledge of their blood
coherence of personality and a sense of origins. That psychological need to know
continuity over time. one’s origins had now been recognized as
11. Identity was thus seen as essentially ‘self- sufficiently fundamental or vital to give
in-context.’ That meant that identity rise to a human right. It was an important
was often determined by social changes element in one’s psychological balance
and one’s definition of self was affected to know where one came from and that
by how a relationship was seen in the everyone had a right to know the truth
social context. Adoption transgressed about their origins.
the notions of identity and the journey 14. Adopted persons who did not have
of identity development in Kenya was information about their roots often had
complex and problematic for adopted difficulty establishing a personal identity.
persons. Adoption was governed by Problems with identity formation were
different kinds of social arrangements; particularly acute during adolescence
those arrangements had implications on and at crisis points in adulthood.
the development of the identity of the A diminished sense of self was also
child. related to genealogical bewilderment.
12. Many adopted persons felt the need Genealogical bewilderment could occur
to know information about their birth when children either did not have any
parents. That need translated to an knowledge of their biological parents
assertion of the right to know one’s or possessed only uncertain knowledge
origins. There were three main needs to and the resulting State of confusion and
have that information – uncertainty fundamentally undermined
a. There was often the desire to children’s sense of security, thus
know one’s medical and health affecting their mental health. In addition
history and for that purpose, to the psychological need, medical crises
knowing the medical history also often precipitated the need for
of one’s parents and ancestors information about biological relatives.
became important. Ranging from allergies to searches for
b. One’s legal interest in property, transplant donors, medical needs could
which blood relationship could have left adoptees without sufficient
confer on children. Those information to get proper treatment.
two interests were subsidiary Short of a crisis, impending marriage
interests. and childbearing led to concerns about
c. The primary interest was a genetic disease and hereditary traits.
psychological need for identity. Other reasons for open records advanced
The psychological need to know by adoptees included inheritance rights,
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BB Issue 41, April - June 2018
religion, and simply a longing to meet and private life and guaranteed against
their birth parents. arbitrary interference with the same.
15. It was beyond doubt that there was an The right to privacy and family life was
international recognition of the Child’s also guaranteed under article 8 of the
Right to identity as a fundamental right. European Convention of Human Rights.
That psychological need to know one’s 19. That need of the child to know about
identity had been articulated as a right her background was also recognized
in the Convention for the Rights of the in the Declaration on Social and Legal
Child 1989 (CRC) in articles 7 and 8. The Principles relating to the Protection
CRC had gone on to protect several rights and Welfare of Children, with Special
of the child, such as the right to identity Reference to Foster Placement and
that were not recognized as fundamental Adoption Nationally and Internationally
human rights before, a recognition that in article 9 which stated that the need
it was a right worthy of international of a foster or an adopted child to know
recognition. “Identity” was not defined about his or her background was to be
under the CRC and only instances of recognized by persons responsible for
identity such as nationality, name and the child’s care, unless that was contrary
family relations were listed. to the child’s best interests.
16. Article 8 was particularly meant to 20. The competing rights such as the right to
address unusual conditions such as privacy for the biological parents and the
natural parents versus adoptive parents adopting parents all had to be balanced.
and other such conditions. Article 8, With those competing interests, courts
therefore imposed an obligation on the were obligated to ensure that the best
State to not only preserve the identity of interests of the child where the child
a child i.e. to preserve all the information was still a minor, had to prevail over
relating to the biological parents of the all interests of all other parties. On the
adopted child, but also not to deprive the other hand, where the child had attained
child of such information and to assist the age of majority as in the instant case,
the child in getting such information. the reasons for refusal to supply the
17. The CRC thus affirmed that an adoptee information had to satisfy the limitations
could seek a right against the State test under article 24 of the Constitution.
or any person for providing him/her 21. The law in Kenya was in favour of the
information about her identity and disclosure. First, the adopted person
about her biological parents. In addition had a constitutional right to dignity and
to the CRC, the child’s right to know privacy which included right to know
her identity was also protected in the their biological parents. By insisting
Hague Convention on Protection of on the information, the person was
Children and Cooperation in Respect of seeking to exercise a fundamental right
Inter- Country Adoption. In article 30, it recognized in Kenya’s Constitution and
required State authorities to ensure that international Instruments discussed
information held by them concerning the above. Article 35 of the constitution
child’s origin, in particular information provided that every citizen had the right
concerning the identity of his or her of access to information held by the state,
parents, as well as the medical history, information held by another person and
was preserved and that the child or required for the exercise or protection of
his or her representative had access to any right or fundamental freedom.
such information, under appropriate 22. Information regarding adoption of
guidance, in so far as it was permitted by children in Kenya was held by the State and
law in that State. adoption agencies. The only limitation
18. The child’s right to know his or her in the case of a minor would be the best
origin was derived from the general right interests of the child contemplated under
to privacy guaranteed under article 17 article 53 (2) of the Constitution. For an
of the International Covenant on Civil adult as in the present case, the reasons
and Political Rights 1966. The right to for refusal could only pass constitutional
privacy would include the right to know muster if they satisfied limitation of
and receive information of one’s family rights under article 24. For example, the
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the solution with greatest clarity. In The instant pleading was not so prolix
dance or the martial arts, elegance was that the opposite party was unable to
minimum motion with maximum effect. ascertain with precision the causes of
In filmmaking, elegance was a simple action and the material facts that were
message with complex meaning. The alleged against them. The issues raised
most challenging games had the fewest in the Petition were not confusing. The
rules, as do the most dynamic societies objection based on the said ground thus
and organizations. An elegant solution failed.
was quite often a single tiny idea that 35. The Petitioner was an adult in his late
changed everything. Elegance was thirties or thereabouts. He could not be
the simplicity found on the far side of heard to say he had a fundamental right
complexity. to receive financial support from his
31. While elegance in a pleading was not parents or even to be facilitated to travel
a precondition to its legitimacy, it was abroad as of right as he alleged. Failure
an aspiration which, if achieved, could to visit him in prison could have been
only but advance the interests of justice. distressing but the victims of the crime
A poorly drawn pleading, on the other were his parents. They could have been
hand, which did not tell a coherent story distressed too.
in a well ordered structure, would fail 36. The apprehension that the adoptee could
to achieve the central purpose of the have been disinherited remained a mere
exercise, namely communication of the apprehension. Courts did not deal with
essence of case which was sought to be hypothetical situations. Differently put,
advanced. whether or not the Petitioner’s fear of
32. Pleading was not to be dismissed as his right to inherit his parents could be
a lost art. It had an important part to canvassed in the instant Petition raised
play in civil litigation conducted within common law principles in relation to
the adversarial system. Crafting a good what were called abstract, academic or
pleading called for precision in drafting, hypothetical questions. The principle
diligence in the identification of the is called ripeness; it prevents a party
material facts marshaled in support of from approaching a court prematurely
each allegation, an understanding of the at a time when he/she has not yet been
legal principles which were necessary to subjected to prejudice, or the real threat
formulate complete causes of action and of prejudice, as a result of the conduct
the judgment and courage to shed what alleged to be unconstitutional.
was unnecessary. 37. The essential flaw in the applicants’ cases
33. Although a primary function of a was one of timing referred to as ‘ripeness’.
pleading was to tell the defending party The doctrine of ripeness serves the useful
what claim it had to meet, an equally purpose of highlighting that the business
important function was to inform the of a court is generally retrospective; it
court or tribunal of fact precisely what deals with situations or problems that
issues were before it for determination. have already ripened or crystallised, and
34. The function of a pleading in civil not with prospective or hypothetical
proceedings was to alert the other ones. Although, the criteria for hearing a
party to the case they needed to meet constitutional case were more generous
and hence satisfy basic requirements of than for ordinary suits, even cases for
procedural fairness and further, to define relief on constitutional grounds were not
the precise issues for determination so decided in the air. The time of the instant
that the court could conduct a fair trial. Court was too valuable to be frittered
The cardinal rule was that a pleading away on hypothetical fears of corporate
had to state all the material facts to skeletons being discovered.
establish a reasonable cause of action (or 38. It had always been a fundamental feature
defence). The expression material fact of Kenya’s judicial system that the Courts
was not synonymous with providing all decided disputes between the parties
the circumstances. Material facts were before them; they did not pronounce
only those relied on to establish the on abstract questions of law when there
essential elements of the cause of action. was no dispute to be resolved. It was
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perfectly true that usually the court and regardless of criminal proceedings
did not solve hypothetical problems against him. The Petitioner had however
and abstract questions and declaratory not demonstrated that a dispute existed.
actions could not be brought unless the There was nothing on record to show
rights in question in such action had that the parents had denied, disowned
actually been infringed. The requirement the Petitioner as their son.
of a dispute between the parties was a 41. Courts decided disputes between
general limitation to the jurisdiction of the parties before them; they did not
the Court. The existence of a dispute was pronounce on abstract questions of law
the primary condition for the Court to when there was no dispute to be resolved.
exercise its judicial function. Ripeness The court did not solve hypothetical
asked whether a dispute existed, that was, problems and abstract questions and
whether the dispute had come into being. declaratory actions could not be brought
39. In the instant case, a dispute on the alleged unless the rights in question in such
inheritance rights did not exist. Before action had actually been infringed. The
the Court was a constitutional Petition declaration sought if granted in the
seeking declarations premised on alleged instant Petition, owing to the peculiar
violation of constitutional rights but not circumstances of the case, would have
a succession dispute. A dispute premised been tantamount to determining
on alleged inheritance right was a matter succession rights or property rights or
primarily to be determined in succession declaring the Petitioner a beneficiary
proceedings where beneficiaries were which would have had far reaching
identified and their rights over the consequences because it would have
property, if any, determined. amounted to encroaching in to the
40. On the question of ripeness, the court mandate of the succession court in the
was being asked to make a declaration on event of a succession dispute.
an issue whether the Petitioner was part Orders
of the 1st and 2nd Respondents family, Petition dismissed with no orders as to costs.
despite not being their biological son
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Jurisdiction- jurisdiction of the High Court- vi. Whether live streaming of election
co-shared jurisdiction of the High Court and results was crucial to the electoral
Supreme Court with regard to interpretation of process and section 39(1G) that seemed
the Constitution- whether the Supreme Court to curtail live streaming of election
had determined the issue regarding amendments results was unconstitutional
made to section 83 of the Elections Act- whether vii. Whether the Chairperson could declare
court had jurisdiction to determine the issue of the a person as President Elect even though
constitutionality of the amendment to section 83 results from some constituencies were
of the election act although the issued had been yet to be transmitted.
raised before the Supreme Court. viii. Whether court had jurisdiction
to determine the issue of the
Brief Facts
constitutionality of the amendment to
The Petitioners challenged the Election Laws section 83 of the election act although
Amendment Act, 2017 which was enacted the issued had been raised before the
by the 3rd Respondent to amend various Supreme Court.
provisions of the Elections Act, 2011, the Relevant provisions of the Law
Independent Electoral and Boundaries Constitution of Kenya, 2010
Commission Act, and the Election Offences Article 88 (5)
Act contending that the amendments The Commission shall exercise its powers
were unconstitutional. The Petitioners and perform its functions in accordance with
contended that the amendments introduced this Constitution and national legislation.
after the annulled 2017 Presidential election Article 137 (1)(C)
violated national values and principles in A person qualifies for nomination as a
articles 10, 81 and 86 of the Constitution presidential candidate if the person -(c)…
in that they tended to inhibit rather than is nominated by a political party, or is an
enhance transparency and accountability independent candidate..
of the electoral process. They argued that Article 250(2)
those amendments were unconstitutional The chairperson and each member
and violated not only articles 10, 81 and 86 of a commission, and the holder of an
of the Constitution, but also were intended independent office, shall be—
to circumvent the majority Judgment of (a) identified and recommended for
the Supreme Court in Raila Odinga and appointment in a manner prescribed by
another v Independent Electoral and Boundaries national legislation;
Commission & 2 others. (b) approved by the National Assembly; and
Issues (c) appointed by the President.
i. What was the definition of a person Article 250(3)
qualified as chairperson of the … to be appointed, a person shall have
Independent Electoral and Boundaries the specific qualifications required by this
Commission? Constitution or national legislation.
ii. Whether any other person in the Article 259(1)
commission, including the vice This Constitution shall be interpreted in a
chairperson, could take over the position manner that –
and function of the chairperson of the (a) promotes its purposes, values and
IEBC principles;
iii. Whether IEBC Commissioners had the (b) advances the rule of law, and the human
power to select a chairperson of the rights and fundamental freedoms in the Bill
IEBC from amongst themselves. of Rights; (c) permits the development of the
iv. Whether the amendment that made law; and (d) contributes to good governance
no requirement regarding a prescribed Article 259 (3)
form in which results could be Every Article of the Constitution should be
transmitted was unconstitutional construed according to the doctrine that the
v. Whether section 39(1D) as read with law is always speaking and that
section 39(1C) of the IEBC Act created (a) a function or power conferred by
a potential tension between physically the Constitution on an office may be
transmitted results and electronically performed or exercised as occasion
transmitted results. requires, by the person holding the office
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4. The import of the amendment 7A(4) and 7A(5) IEBC Act was to allow
introduced by section 7A(4) of the IEBC a person who was not the chairperson,
Act was that the vice chairperson could had no qualifications required by section
act as chairperson and discharge the 6(1) and not appointed in accordance
full constitutional responsibilities of with the Constitution to take over
the chairperson should a vacancy occur leadership of the Commission and
in that office. Although that could, on perform constitutional functions of the
the face appear a simple issue, one had chairperson. That was a clear violation
to bear in mind that the chairperson of the Constitution and in particular
appointed in accordance with the articles 138(10) and 250(2) and (3).
Constitution, performed some critical 8. It was more intriguing that section
constitutional functions only reserved 7A(6) of the IEBC Act suspended section
for the chairperson. The role and 6(1) of the IEBC Act with regard to
authority of the chairperson emanated qualifications of the chairperson. At that
from the Constitution. In a nutshell, time section 7A(4) and 7A(5) IEBC Act
he was the head and spokesperson, became applicable notwithstanding that
provided leadership and direction to the the person could perform and exercise
Commission. On being appointed, he/ full responsibilities of the chairperson.
she took the oath of office to execute his In essence, section 7A(6) IEBC Act read
mandate as such. purposively, had the singular effect
5. It was not possible for a person who of suspending article 250(3) of the
had not met the qualifications required Constitution regarding the qualifications
to assume and perform constitutional of the Chairperson. When the framers
functions of the Chairperson. Ordinarily, of the Constitution included sub article
the vice chairperson would perform 3 in article 250, they had no illusion that
certain minimal administrative functions it would be followed.
in the absence of the chairperson. That 9. Where the Constitution provided
would not however entitle him/her to the manner of appointment and
assume the full duties and perform critical went further to state in a plain and
functions including constitutional unambiguous language that the
mandate of the Chairperson when he qualification contained in the national
does not meet the qualifications to be legislation that one had to meet to be
chairperson, and has not been appointed appointed to a particular position had
in accordance with the Constitution. to be strictly followed. Parliament, as
When the Constitution provides that the legislative organ of state, had only
chairperson be appointed in a particular one option; to obey and observe that
manner, there can be no shortcut but to constitutional decree. It could not, in the
stick to the constitutional dictates. An exercise of its legislative authority, enact
appointment done in any other manner a law whose effect was to circumvent
would be unconstitutional. that constitutional command. Short of
6. The qualifications for the chairperson that, such a law would fall to be declared
set out in section 6(1) IEBC Act was unconstitutional as demanded by article
anchored in the Constitution and were 2(4) of the Constitution.
mandatory. A person without those 10. Article 259(3) had to be read purposively
qualifications could not by any means be and in harmony with article 250 of
chairperson whether in acting capacity the Constitution. In the case of IEBC
or not, since the Constitution left no the person holding the office had to be
option. Some of the chairperson’s placed in that position as required by
mandate were clearly spelt out in the Constitution and the law. Article
article 138(10) of the Constitution to 259(3) could not be the motivation for
declare presidential results. That was a enacting a legislation that overrode
responsibility that only the chairperson the Constitution. Moreover, the
identified, recommended and appointed chairperson’s appointment had to
as required by the Constitution could be differentiated from that of the
perform. vice chairperson who was elected by
7. The purpose and effect of the sections Commissioners under article 250(10)
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BB Issue 41, April - June 2018
and a vacancy in that office filled in Therefore, Parliament was alive to that
accordance with article 250(11). If the when it enacted section 6(1) of the IEBC
Constitution provided how a vacancy Act providing the qualifications one
in the vice chairperson’s position should would have to meet to be appointed
be filled, that of the Chairperson had to, to the position of chairperson. It was
in the same vain, be filled in accordance inconceivable that the same Parliament
with the Constitution as read with the would suspend operations of the same
section 6(1) of the IEBC Act to give the provision at some convenient time.
Constitution a harmonious reading. 13. Weighing section 7B as read with section
Therefore, section 7A(6) of the IEBC Act 6 of the IEBC Act against the articles of
was unconstitutional. the Constitution, it emerged clearly that
11. A reading of section 7B of the IEBC Act it was not only unconstitutional but it
had a similar effect as section 7A(4), (5), would also have unintended negative
and (6). Even though a dully appointed consequences. It would engineer
chairperson could be in office, the section divisions, fights, disharmony and cause
empowered the vice chairperson to disorientation within the Commission
exercise the chairperson’s functions for in the discharge of its constitutional
reasons other than inability to discharge mandate. The provision would also
his functions under the Constitution and weaken the position of the Chairperson
the law. The same applied to a situation and cause unnecessary tension.
where both the chairperson and vice Members of the Commission could take
chairperson were absent which would advantage of the chairperson’s absence
allow members of the Commission to make fundamental decisions with
to elect an unqualified member of the serious ramifications to the Commission
Commissioner to act as chairperson and the country, taking into account
and exercise responsibilities of the the divisive nature of politics in the
chairperson. The Act had not defined country viz a viz the important role the
the word absent. However, taken in Commission played in the management
its ordinary meaning and context; that of elections. It could not be in the best
absent meant not being present in a place, interest of the Commission to allow
at an occasion or as part of the meeting, commissioners to choose one of their
the section created mischief. Section own, albeit unconstitutionally, to
7B(3) of the IEBC Act also suspended exercise constitutional mandate of the
section 6(1) of the IEBC Act in such an chairperson who was lawfully in office.
eventuality. 14. The law had to be certain and support
12. Section 7B of the IEBC Act not only the functioning of an Independent
flew in the face of article 250(2) and Constitutional Commission given that
(3) of the Constitution just like section the tenure of the chairperson once
7A(4), (5) and (6) but also generally appointed, was guaranteed by the
made nonsense of the Constitution and Constitution. Allowing Commissioners
the IEBC Act on the importance of the to choose one of them to act as
office of chairperson of the Commission. Chairperson, was to allow them to oust
IEBC was an independent Commission the Chairperson and or his Vice from
that discharged critical mandate under office should an opportunity present itself
article 88(4) of the Constitution. The despite the fact that Chairperson’s tenure
framers of the Constitution were clear and independence was constitutionally
when they stated in article 88(5) that the protected. A provision such as section
Commission would exercise its powers 7B weakened the Commission. It would
and perform its functions in accordance most certainly affect its institutional
with the Constitution and national independence guaranteed by the
legislation. They also tasked Parliament Constitution and emphasized under
with the responsibility of enacting section 26 of the IEBC Act. It also
legislation to operationalize article 88. exposed the Commission to external
They said in plain language in article pressure or direction in violation of the
250(3) that the qualifications for the Constitution.
chairperson had to be strictly followed. 15. The Commission was composed of 7
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BB Issue 41, April - June 2018
of the Constitution, it was obvious that results were a product of the same
section 39(1F) struck at the heart of the process. One process could not have two
principles of the electoral system in the different results. Live streamed results
Constitution, for saving results that had played a significant role in determining
not been transmitted as required by law. the final results. Those results had to be
That violated constitutional principles as much correct as those finally declared.
and was invalid. Section 39(1G) was a mockery of the
26. Live transmission of election results requirements for free, fair and credible
announced at the polling stations elections. It violated the principles of
to the Constituency and national electoral systems in the Constitution.
tallying centres was critical when it That amendment could not hold in the
came to openness, transparency and Kenya transformative constitutional
accountability of the electoral process. dispensation.
Live transmission of election results was 29. Amendments introduced by section
adopted after reforms were introduced 39(1C)(a), 39(1D), 39(1E), 39(1F) and
in election laws as a means of avoiding 39(1G) of the Election Act, had the effect
situations where election results of weakening rather than strengthening
announced at the polling station would the electoral process. Any amendments
later significantly differ from those that would have the effect of
declared at the constituency and national circumventing constitutional principles
tallying centres. The results announced were unconstitutional.
at the polling stations formed the basis 30. The Constitution required that the
of any other results declared either at the Commission held elections in all the 290
constituency or national tallying centres. Constituencies in the case of Presidential
27. The import of section 39(1G) was to Elections. Therefore, it had to discharge
make live streaming of results from its mandate by holding elections in each
polling stations of no value when it came constituency and ensuring that voters in
to the finality of the declared results. If the constituency have had an opportunity
the intention of the legislature was that to vote. In that regard, the reading of
results streamed live from the primary section 39(2) of the Elections Act was
source should not matter when it came not that elections had not been held, but
to the final tally, why should the country that the Commission had held elections,
invest heavily in technology as provided received election results and was satisfied
for in section 44 of the Act, have results that results from the Constituencies that
streamed live from polling stations were yet to transmit, would not change
for public information only? Live the election results. The Chairperson
streaming of election results was one could in such circumstances declare a
way of conforming to the constitutional person elected president. The mandate
principles of transparency and of the IEBC was to declare the winner
accountability. Citizens should be able of the presidential contest after tallying
to compare the live transmitted results the results received and determining
with the final declared results to confirm that those remaining were such that they
the accuracy of the election results. would change the position regarding the
28. When Parliament enacted a law that winner.
significantly eroded the element of 31. A plain reading of section 39(2) and (3)
transparency and accountability in the of the Elections Act had not disclosed
electoral process, such a law overrode the any unconstitutionality. Section
constitutional principles of the electoral 39(2) and (3) of the Elections Act had
systems contemplated in articles 10, 81 removed provisional results so that
and 86 of the Constitution. You could the Commission was only to announce
not have results that were streamed live final results and made it clear that the
from polling stations but which were of chairperson could declare a person
no value when it came to declaration of elected president if results from the yet
final results. The results streamed live to transmit constituencies would not
from polling stations were the primary affect the final tally. There was really
source of those finally declared. Final nothing unconstitutional if final results
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BB Issue 41, April - June 2018
were announced when it was clear that Constitution when they included those
those from the remaining constituencies principles of electoral system in the
would not change the election result Constitution. Those principles were part
as to who the winner was. There was and parcel of the Constitution and were
no constitutional invalidity in those important in holding free, fair, open,
provisions. However, it was desirable transparent, impartial and accountable
that all results be received and tallied elections. Those were constitutional and
before a declaration of the winner was not statutory requirements. Parliament
made. could not enact a legislation that had the
32. Section 44 of the Elections Act dealt effect of whittling down constitutional
with use of technology and established principles that had been harmonized
an integrated electronic electoral system and embodied in section 83 prior to its
that enabled biometric voter registration, amendment by demanding that failures
electronic voter identification and in complying with the Constitution or
electronic transmission of results. the law had to be “substantial” as to affect
Section 44(5) only required the the result for an election to be annulled.
Commission, in consultation with 35. The existing amendment meant that
stakeholders, to come up with regulations for an election to be annulled there
on the implementation of the Integrated had not only to be failure to comply
Biometric Voter Registration, Electric with the Constitutional principles and
Voter Identification and Electronic election laws but also the failures had
Transmission of results (KIEMS). The to substantially affect the result of the
Petitioners had not demonstrated election. The essence of that amendment
how, if at all, that provision violated was to allow violation of constitutional
the Constitution to require that it be principles and election laws as long as
declared unconstitutional. There was they do not substantially affect the result.
neither unconstitutional purpose nor Any amendments had to be forward
effect in the implementation of that looking in order to make elections
provision. more free, transparent and accountable,
33. The complimentary mechanism than to shield mistakes that vitiated an
contemplated in the new section 44A was electoral process.
only complimentary. It had not replaced 36. There was no constitutional compulsion
the electronic voter identification or rationale in amending section 83 of
system. The word “complimentary”, in the IEBC Act to remove the disjunctive
the context in which it was used in that word ‘or’ and introduce the conjunctive
section, could only mean to assist or word ‘and’ so that only where there
aid. It could only be resorted to in the were failures in complying with the
event the principle voter identification constitution and election laws and they
system had failed. It was to be used only substantially affected the results should
when there was technology failure. It an election be annulled. Removing the
could not be seen how that provision twin test for annulling faulty election
violated articles 10, 38, 81 and 86 on the results negated the principles of
values and principles of transparency electoral system in the Constitution.
and accountability of the electoral And allowing such an amendment would
system. Rather, it was intended to aid be to ignore constitutional principles in
and or complement the main voter the transformative Constitution that
identification system in the event there there should be free, fair, transparent
was failure and ensure that the electoral and accountable elections.
process continued. 37. Parliament had a duty to defend and
34. Even though the Constitution values the protect the Constitution and enact
quality of elections, the amendment to laws that were in conformity with its
section 83 had the effect of disregarding values and principles. Section 83(2)
those principles when it came to could not invite the aid of the Statutory
considering whether or not to annul Interpretations Act to shield violations
an election. That could not have been of the Elections Act and Regulations
the intention of the framers of the enacted to enforce the Constitutional
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BB Issue 41, April - June 2018
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BB Issue 41, April - June 2018
a total ban under the international order for Mandamus to compel the
treaty law. police to investigate the matter and
3. The burden of proof in habeas corpus take appropriate action consistent
petitions lay with the Petitioner until he with the finding of the investigations.
proved detention by the Respondent, The practical reality where impunity
upon which the Respondent had to abounded could, however, not
prove the lawfulness of detention. inspire too much confidence and
The arrest and detention of the 2 since the Court had to give Orders,
Petitioners subject of the proceedings not suggestion or advice, needless
was tenuously denied with the to state, should the office of the
Respondent’s implicated officers Inspector General and the Director
indicating arrest only on the material of Criminal Investigation or other
day of wholly unrelated persons. The relevant officer, abscond their
burden of proving the arrest by the statutory duty or refuse to carry out
police of the 2nd and 3rd Petitioner the investigation as directed by the
rested wholly with the Petitioners court, the judicial review order of
which they had to discharge to the Mandamus as a suitable sanction
applicable standard of proof before of the Court could be invoked,
the Respondents could be put on not the least of them being article
their defense, as it were, calling for 245 (7) petition for removal of the
evidence in rebuttal or lawful reasons Inspector General and prosecution
for the arrest and detention. for contempt of court under the
4. Much of the statements made by Contempt of Court Act, 2016.
witnesses PW3 and PW4 involving 8. The police officers implicated had
the police officers in the arrest and clearly an opportunity to be heard in
subsequent disappearance of the the matter and together took benefit
persons subject of the habeas corpus of that opportunity by granting one
application was hearsay, and therefore of them authority to plead and act
inadmissible for purposes of proving for them whereupon he filed the
the truth of those statements. Replying Affidavit on their behalf.
5. On the evidence presented before the They, however, did not make oral
Court, the Petitioner’s case was more testimony before the Court at the
probable than the defense version of oral hearing as directed by the Court
events that they had not arrested the and they could not be heard to say
2nd and 3rd Petitioners. It had been that they were not heard or given an
proven on a balance of probabilities opportunity to be heard in the matter.
that the three police officers arrested 9. The High Court as the Constitutional
and detained the two Petitioners who Court had a duty under article 23 of
were subjects of the habeas corpus the Constitution to address denial or
proceedings. violation or infringement of, or threat
6. In accordance with article 49(1) (f) of to rights and fundamental freedoms
the Constitution, the arresting officers in the Bill of Rights. The Judiciary was
were obliged to produce the two the custodian of the Judicial authority
petitioners before a court within 24 of the people of Kenya under article
hours. That constitutional obligation 1 (3) (c) of the Constitution. It had
was breached by the three police to take the lead role when applying
officers when they failed to produce and interpreting the Constitution,
the arrested persons before a court on to uphold and promote the national
June 2, 2016, and consequently, the value and principles of the Law
2nd and 3rd Petitioners were detained entrenched under article 10 of the
without trial within the meaning Constitution and, through it, help
of article 29 of the Constitution. combat the specter as well as reality
The Petitioners were consequently of impunity in the state and society of
entitled to damages for unlawful Kenya.
arrest and detention without trial 10. It was the height of impunity if Police
under article 29 of the Constitution. Officers, who were constitutionally
7. As a rule of law country it sufficed to charged with the duty to maintain
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BB Issue 41, April - June 2018
law and order and to enforce the report and deference to him.
law for the protection of life, liberty 14. Judicial review was available where
and property and observation of a public body failed to exercise a
the human rights and freedoms, constitutional or statutory duty. The
were to arrest persons for whatever Court in exercise of the delegated
transgressions of the law only for judicial authority of the people
such arrested persons to subsequently of Kenya under Article 1 (3) (c) of
disappear and the Police to deny ever the Constitution directed the 2nd
arresting such persons, cover up their and 3rd Respondents to conduct
actions and get away with it. It was investigations as appropriate and to
cheating Justice. Not only should such bring to justice the persons found to
Police Officers be held personally have participated in the disappearance
liable in a criminal process for their of the 2nd and 3rd Petitioners.
offences against the person but the Petition partly allowed
State had to be held vicariously i. The Petitioner’s Petition for an
liable for the unlawful actions of its order of habeas corpus was declined
employees. as there was no evidence that the
11. While the adjudication of the criminal Respondents had custody of the 2nd
aspect of the matter for conviction and 3rd Petitioners.
and punishment as appropriate of the ii. The 2nd and 3rd Petitioners were arrest
officer ultimately found responsible by Administration Police Officers
had to take place consistently with Benson Simiyu Makhoha, Simon
the right to fair trial through the Mbau Muriithi and Kennedy Mburu
Criminal Courts established for the Njoroge and thereafter disappearance
purposes, the liability of the State in unclear circumstances, had to be
for the wrongful violation of rights investigated and appropriate action
arising out of the actions of its taken in the circumstances.
officers had to be determined under iii. The 3rd Respondent to pay on behalf
proceeding in that behalf before a of the National Police Service of
Civil Court. the Government of Kenya Ksh.5,
12. The arrest of the 2nd and 3rd Petitioners 000,000/= each for the 2 petitioners
by the Administration Police Officers - the 2nd and 3rd Petitioners - to be
named was proved on a balance of paid to the Petitioners’ respective
probabilities to the required high mothers, Beatrice Kajairo and Sarah
standard of proof applicable to the Khadi Muyera – as compensation for
Petition. The arrests were not shown breach of the Petitioners’ rights under
to have been justified on account of article 29 of the Constitution against
investigation of any crime, and were deprivation of freedom arbitrarily
denied. The arrests were arbitrary, and without just cause, and detention
unlawful and an unconstitutional without trial upon arrest by the
violation of the victims’ rights to Administration Police Officers.
liberty and to protection from iv. A Judicial Review Order of
detention without trial, under article Mandamus to issue to the 3rd
29 of the Constitution. Respondent directing him to carry
13. In accordance with section out their constitutional and statutory
193A of the Criminal Procedure function of investigation of crime
Code, criminal prosecution and under article 245 of the Constitution,
investigation were unaffected by and section 24 (e) of the National
the instant petition. The 2nd and 3rd Police Service Act, and to the 2nd
Respondents were at liberty and Respondent thereafter to consider
obligation under the Constitution the results of the investigation and to
to investigate and prosecute such prosecute persons found culpable for
crimes as were established by such any offence.
investigations. The officer charged v. The costs of the Petition shall be
with investigation in the matter, paid by the 3rd Respondent to the
demonstrated reluctance or inability Petitioners.
to investigate the matter despite
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Legislative Updates
By Christine Thiong’o, Laws of Kenya Department
T
his is an outline of legislation that have been gazetted between March, 2018 and May,
2018.
A. ACTS OF PARLIAMENT
Objective This Act authorizes the issue of certain sums of money out of the Consolidated Fund
and their application towards the service of the year ending on the 30th June, 2018. It
appropriates those sums for certain public services and purposes.
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Objective The Statute Law (Amendment) Bill, 2018 seeks to make various, wide ranging amend-
ments to the following statutes-
i. Judicature Act (Cap. 8)
ii. Oaths and Statutory Declarations Act (Cap. 15)
iii. Advocates Act (Cap. 16)
iv. Public Archives and Documentation Service Act (Cap. 19)
v. Civil Procedure Act (Cap. 21)
vi. Foreign Judgment (Reciprocal Enforcement) Act (Cap. 43)
vii. Probation of Offenders Act (Cap. 64)
viii. Criminal Procedure Code (Cap. 75)
ix. Extradition (Contiguous and Foreign Countries) Act (Cap. 76)
x. Registration of Persons Act (Cap. 107)
xi. Public Holidays Act (Cap. 110)
xii. Law of Succession Act (Cap. 160)
xiii. National Youth Service Act (Cap. 208)
xiv. Kenya Ports Authority Act (Cap. 391)
xv. Kenya Airports Authority Act (No.3 of 1991)
xvi. Traffic Act (Cap. 403)
xvii. Kenya Post Office Savings Bank Act (Cap. 493)
xviii. Export Processing Zones Act (Cap 517)
xix. Kenya Revenue Authority Act, 1995 (No. 2 of 1995)
xx. Higher Education Loans Board Act, 1995 (No. 3 of 1995)
xxi. Kenya Information and Communications Act, 1998 (No. 2 of 1998)
xxii. National Hospital Insurance Fund Act 1998 (No. 4 of 1998)
xxiii. Community Service Orders Act, 1998 (No. 10 of 1998)
xxiv. Environmental Management and Co-ordination Act, 1999 (No. 8 of 1999)
xxv. Industrial Property Act, 2001 (No. 3 of 2001)
xxvi. Children Act, 2001 (No. 8 of 2001)
xxvii. Copyright Act, 2001 (No. 12 of 2001)
xxviii. Privatization Act, 2005 (No. 2 of 2005)
xxix. Witness Protection Act, 2006 (No. 16 of 2006)
xxx. Labour Institutions Act, 2007 (No.12 of 2007)
xxxi. Labour Relations Act, 2007 (No. 14 of 2007)
xxxii. Anti-Counterfeit Act, 2008 (No. 13 of 2008)
xxxiii. Biosafety Act, 2009 (No. 2 of 2009)
xxxiv. Proceeds of Crime and Anti Money Laundering Act, 2009 (No. 9 of 2009)
xxxv. National Youth Council Act, 2009 (No. 10 of 2009)
xxxvi. Competition Act, 2010 (No. 12 of 2010)
xxxvii. Judicial Service Act, 2011 (No. 1 of 2011)
xxxviii. Tourism Act, 2011 (No. 28 of 2011)
xxxix. National Construction Authority Act, 2011 (No. 41 of 2011)
xl. Engineers Act, 2011 (No.43 of 2011)
xli. Land Registration Act, 2012 (No. 3 of 2012)
xlii. Land Act, 2012 (No. 6 of 2012)
xliii. National Authority for the Campaign Against Alcohol and Drug Abuse Act, 2012 (No. 14 of
2012)
xliv. Kenya Defence Forces Act, 2012 (No. 25 of 2012)
xlv. Kenya School of Law Act, 2012 (No. 26 of 2012)
xlvi. Legal Education Act, 2012 (No. 27 of 2012)
xlvii. National Transport and Safety Authority Act, 2012 (No. 33 of 2012)
xlviii. Universities Act, 2012 (No. 42 of 2012)
xlix. Treaty Making and Ratification Act, 2012 (No.45 of 2012)
l. Public Private Partnership Act, 2013 (No. 15 of 2013)
li. Kenya Agricultural and Livestock Research Act, 2013 (No. 17 of 2013)
lii. Kenya Law Reform Act, 2013 (No. 19 of 2013)
liii. Nairobi Centre for International Arbitration Act, 2013 (No. 26 of 2013)
liv. Science, Technology and Innovation Act, 2013 (No. 28 of 2013)
lv. National Social Security Fund Act, 2013 (No. 45 of 2013)
lvi. Wildlife Conservation and Management Act, 2013 (No. 47 of 2013)
lvii. National Drought Management Authority Act, 2016 (No. 4 of 2016)
lviii. Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 (No. 33
of 2016)
lix. Forest Conservation and Management Act, 2016 (No. 34 of 2016)
lx. Bribery Act, 2016 (No. 47 of 2016).
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Objective This Bill is in keeping with the practice of making various amendments which do not merit
the publication of separate Bills and consolidating them into one Bill. The Bill contains
proposed amendments to the following statutes-
i.) Betting, Lotteries and Gaming Act (Cap. 131);
ii.) Dairy Industry Act (Cap.336);
iii.) Co-operative Societies Act, (Cap. 490);
iv.) National Hospital Insurance Fund Act, 1998 (No. 9 of 1998);
v.) Statistics Act, 2016 (No.4 of 2006);
vi.) Energy Act, 2006 (No. 12 of 2006);
vii.) Sacco Societies Act (No. 14 of 2008);
viii.) Urban Areas and Cities Act, 2011 (No.13 of 2011);
ix.) Micro and Small Enterprises Act, 2012 (No. 55 of 2012);
x.) Public Private Partnership Act, 2013 (No. 15 of 2013);
xi.) Crops Act, 2013 (No. 16 of 2013);
xii.) Kenya Medical Supplies Authority Act, 2013 (No. 20 of 2013);
xiii.) Technical and Vocational Education and Training Act, 2013 (No. 29 of 2013);
xiv.) Public Procurement and Asset Disposal Act, 2015 (No.33 of 2015);
xv.) Fisheries Management and Development Act, 2016 (No. 35 of 2016).
Objective This Bill seeks to make various, wide- ranging amendments to various health-related
statutes on matters relating to health policy. The Bill contains proposed amendments to
the following statutes-
i.) Radiation Protection Act (Cap. 243);
ii.) Medical Practitioners and Dentists Act (Cap. 253);
iii.) Nurses Act (Cap. 257);
iv.) Kenya Medical Training College Act (Cap. 261);
v.) Nutritionists and Dieticians Act (No. 18 of 2007);
vi.) Kenya Medical Supplies Authority Act, 2013 (No. 20 of 2013);
vii.) Counselors and Psychologists Act, 2014 (No. 14 of 2014);
viii.) Physiotherapists Act, 2014 (No. 20 of 2014);
ix.) Health Records and Information Managers Act, 2016 (No. 15 of 2016);
x.) Clinical Officers (Training, Registration and Licensing) Act, 2017 (No.20 of
2017).
Objective This Bill seeks to authorize the issuance of a sum of money out of the Equalization
Fund and its application towards the service of the year ending 30th June, 2018 and to
appropriate that sum for certain public basic services.
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C. SENATE BILLS
Objective This Bill, gives effect to the constitutional principles of public participation & participatory
democracy as well enunciated in Articles 1(2), 10(2), 35, 69(1)(d), 118, 174(c) (d), 184 (1)(c), 196,
201(a) and 232(1) (d) of the Constitution; and for related purposes. It designates the responsible
authorities for purposes of developing the specific guidelines & offering oversight for public
participation.
Objective The objective of this bill is to establish a County Governments’ Retirement scheme for persons
in the County Government Service as a mandatory scheme and for other related purposes.
It applies to all 47 county governments, and is open to public officers and any other person
approved by the Board. This Bill proposes to have the scheme offer lump sum payments as
provident; periodic payments as pensions and income draw-downs. The Bill however, does not
delegate any legislative powers nor does it limit fundamental rights and freedoms.
Sponsor Johnson Sakaja, Chairperson, Committee of Labour & Social Services.
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Objective The objective of this bill is to provide for the establishment of a kitty for promoting development
in the wards and to set up institutional framework for coordinating development initiatives and
projects in the Wards, and for related purposes. This Bill seeks to promote the decentralization of
development for coordinating development initiatives and projects in the Wards, for connected
purposes. It seeks to promote the decentralization of development within the counties by
identifying projects that are beneficial to the residents of the respective wards and the county
generally & providing a framework for the implementation of such projects.
Sponsor Irungu Kang’ata, Senator.
Objective This Bill seeks to provide for a framework to facilitate the local ownership, control and financing
of activities connected with the exploitation of gas, oil and other petroleum resources; to provide
a framework to increase the local value capture along the value chain in the exploration of gas,
oil and other petroleum resources.
Sponsor Gideon Moi, Senator.
Sponsor Mohamed M. Mahamud, Chairperson, Senate Standing Committee on Finance and Budget.
Objective The principal object of this Bill is to amend section 58 of the County Governments Act, No.
17 of 2012, to provide for the appointment of human resource management professionals as
chairpersons of the County Public Service Boards. The Bill is intended to inject professionalism
in the human resource functions of the County Public Service Boards to ensure quality service
delivery in the counties.
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Sponsor Mohamed M. Mahamud, Chairperson, Senate Standing Committee on Finance and Budget.
Objective This Bill seeks to clearly set out impeachment procedures that would ensure procedural justice
for every person who is sought to be impeached. It also proposes a period within which court
matters relating to impeachment proceedings shall be concluded so as to minimize anxiety over
prolonged undecided fate of the chief executive of the Nation or a County or other members of
their cabinets.
This legislative proposal is partly informed by challenges identified from the several proceedings
for the removal of a governor and for the removal of a deputy governor that the Senate has
conducted and the court proceedings to which some of the impeachment proceedings have
been subjected on the basis of the procedures followed.
The Bill therefore seeks to provide for a harmonized procedure to be applied in considering a
motion for the removal of a President, Governor, a Deputy Governor, a Cabinet Secretary or
a County Executive Committee Member. It also proposes appropriate solutions to procedural
gaps identified with respect to the provisions in the Constitution for the removal of a President,
Deputy President or Cabinet Secretary.
Sponsor Samson Cherarget, Chairperson Standing Committee on Justice, Legal Affairs and Human Rights.
The preservation of peace and the guaranteeing of man’s basic freedoms and rights require courage and eternal vigilance: courage to speak and
act - and if necessary, to suffer and die - for truth and justice; eternal vigilance, that the least transgression of international morality shall not go
undetected and unremedied - Haile Selassie
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Legal Supplements
By Christine Thiong’o, Laws of Kenya Department
T
his article presents a summary of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers the period between
21st March, 2018 and 31st May, 2018.
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BB Issue 41, April - June 2018
31st May, 29 Judiciary Fund Regu- The Chief Justice makes the following
2018 lations, 2018 Regulations in exercise of the powers
conferred by section 14 of the Judiciary
L. N. 117/ 2018 Fund Act (No. 16 of 2016).
These Regulations shall apply to all matters
relating to the financial management of the
Fund. The administration of the Fund is
vested in the Chief Registrar.
The Regulations shall apply to a Judicial
Officer or Judiciary Staff in exercise of
any powers and functions relating to the
administration of the Fund whether in
exercise of delegated authority or otherwise.
The object and purpose of the Regulations
is to-
a) provide for the proper management
of the Fund;
b) set out a standardized financial
management system of the Fund
capable of producing accurate and
reliable accounts, which will be
useful in management decisions and
statutory reporting;
c) ensure accountability, transparency
and the effective, efficient and
economic use of the Fund; and
d) ensure adherence to the principles of
public finance set out in Article 201 of
the Constitution in the management
of the Fund.
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International
Jurisprudence
Government’s Access to Cell-Site Records to Track Physical Movements of
Individuals Contravenes their Reasonable Expectation of Right to Privacy
Protected under the Fourth Amendment of The Constitution of the United
States.
Carpenter V United States
Supreme Court of the United States
Certiorari to The United States Court of Appeals for The Sixth Court
No.16-402
June 22,2018
Robert C.J, Ginsburg, Breyer, Sotomayor, Kagan, Kennedy Thomas, Alito, Thomas,
Gorsuch, JJ
Reported by Linda Awuor, Faith Wanjiku &Wanjiru Njihia
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the respectful dissent. The new rule the information held by third parties, yet the
Supreme Court seemed to formulate did Court failed to provide clear guidance
put needed reasonable, accepted, lawful, to law enforcement and courts on key
and congressionally authorized criminal issues raised by its reinterpretation of
investigations at serious risk in serious Miller and Smith.
cases, often when law enforcement 5. First, the Court’s holding was premised
sought to prevent the threat of violent on cell-site records being a distinct
crimes. And it placed undue restrictions category of information from other
on the lawful and necessary enforcement business records. The Court did not
powers exercised not only by the explain what made something a distinct
Federal Government, but also by law category of information. Whether credit
enforcement in every State and locality card records were distinct from bank
throughout the Nation. Adherence to records; whether payment records from
the Court’s longstanding precedents and digital wallet applications were distinct
analytic framework would have been the from either; whether the electronic bank
proper and prudent way to resolve the records available were distinct from the
case. paper and microfilm records at issue
2. Cell-site records were no different in Miller; or whether cell-phone call
from the many other kinds of business records were distinct from the home-
records the Government had a lawful phone call records at issue in Smith,
right to obtain by compulsory process. were just a few of the difficult questions
Customers like the Petitioner did not that required answers under the Court’s
own, possess, control, or use the records, novel conception of Miller and Smith.
and for that reason had no reasonable 6. Second, the majority opinion gave
expectation that they could not be courts and law enforcement officers no
disclosed pursuant to lawful compulsory indication how to determine whether
process. any particular category of information
3. A person’s movements were not fell on the financial-records side or
particularly private. When one traveled the cell-site-records side of its newly
over the public streets he voluntarily conceived constitutional line. The
conveyed to anyone who wanted to Court’s multifactor analysis considering
look the fact that he was traveling over intimacy, comprehensiveness, expense,
particular roads in a particular direction, retrospectivity, and voluntariness put the
the fact of whatever stops he made, law on a new and unstable foundation.
and the fact of his final destination. 7. Third, even if a distinct category of
The expectations of privacy in one’s information was deemed to be more
location today, if anything, are even like cell-site records than financial
less reasonable than when the Court records, courts and law enforcement
decided Knotts over 30 years ago. officers would have to guess how much
Millions of Americans chose to share of that information could be requested
their location on a daily basis, whether before a warrant was required. The
by using a variety of location-based Court suggested that less than seven
services on their phones, or by sharing days of location information would not
their location with friends and the public require a warrant. But the Court did not
at large via social media. The records at explain why that was so, and nothing
issue revealed the Petitioner’s location in its opinion even alluded to the
within an area covering between around considerations that ought to determine
a dozen and several hundred city blocks. whether greater or lesser thresholds
The troves of intimate information the could apply to information like IP
Government could and did obtain using addresses or website browsing history.
financial records and telephone records 8. Fourth, by invalidating the Government’s
dwarfed what could be gathered from use of court-approved compulsory
cell-site records. process, the Court called into question
4. The Court’s decision also would have the subpoena practices of federal and
ramifications that extended beyond state grand juries, legislatures, and
cell-site records to other kinds of other investigative bodies, yet the Court
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failed even to mention the serious enter private premises and root through
consequences that would have for the private papers and effects and an order
proper administration of justice. The merely requiring a party to look through
Court’s new and uncharted course its own records and produce specified
would inhibit law enforcement and keep documents. The former, which intruded
defendants and judges guessing for years on personal privacy far more deeply,
to come. required probable cause; the latter did
9. The case could be resolved by interpreting not. Treating an order to produce like
accepted property principles as the an actual search, as the decision made
baseline for reasonable expectations of did, was revolutionary. It violated
privacy. The Government did not search both the original understanding of the
anything over which the Petitioner could Fourth Amendment and more than a
assert ownership or control. Instead, it century of Supreme Court precedent.
issued a court-authorized subpoena to a Unless it was somehow restricted to
third party to disclose information it alone the particular situation in the present
owned and controlled. That could suffice case, the Court’s move would cause
to resolve the case. Having concluded, upheaval. Must every grand jury
however, that the Government searched subpoena duces tecum be supported by
the Petitioner when it obtained cell- probable cause? If so, investigations of
site records from his cell phone service terrorism, political would be stymied.
providers, the proper resolution of the And what about subpoenas and other
case could have been to remand for document-production orders issued by
the Court of Appeals to determine in administrative agencies?
the first instance whether the search 3. Second, the Court allowed a defendant
was reasonable. The Court’s reflexive to object to the search of a third party’s
imposition of the warrant requirement property. That also was revolutionary.
obscured important and difficult The Fourth Amendment protected the
issues, such as the scope of Congress’ right of the people to be secure in their
power to authorize the Government to persons, houses, papers, and effects, not
collect new forms of information using the persons, houses, papers, and effects
processes that deviated from traditional of others. The majority had been careful
warrant procedures, and how the to heed that fundamental feature of
Fourth Amendment’s reasonableness the Amendment’s text. That was true
requirement could apply when the when the Fourth Amendment was tied
Government used compulsory process to property law, and it remained true
instead of engaging in an actual, physical after Katz v. United States. By departing
search. Those reasons all lead to the dramatically from those fundamental
respectful dissent. principles, the Court destabilized long
Alito J, Dissenting ( Justice Thomas established Fourth Amendment doctrine.
concurring) It would be making repairs or picking up
the pieces for a long time to come.
1. The majority’s concern about the effect
4. The majority inexplicably ignored the
of new technology on personal privacy
settled rule of Oklahoma Press Publishing
was shared, but it was feared that the
Co. v. Walling in favor of a resurrected
decision would do far more harm
version of Boyd v. United States. That was
than good. The majority’s reasoning
mystifying. That ought to have been an
fractured two fundamental pillars of
easy case regardless of whether the Court
Fourth Amendment law, and in doing
looked to the original understanding
so, it guaranteed a blizzard of litigation
of the Fourth Amendment or to the
while threatening many legitimate and
modern doctrine. As a matter of original
valuable investigative practices upon
understanding, the Fourth Amendment
which law enforcement had rightfully
did not regulate the compelled
come to rely.
production of documents at all. The
2. First, the majority ignored the basic
Government received the relevant cell-
distinction between an actual search
site records pursuant to a court order
dispatching law enforcement officers to
compelling the Petitioner’s cell service
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BB Issue 41, April - June 2018
provider to turn them over. That process could not be defended under either a
was thus immune from challenge under property-based interpretation of that
the original understanding of the Fourth Amendment or the Court’s decisions
Amendment. applying the reasonable expectations of
5. The type of order obtained by the privacy test adopted in Katz. By allowing
Government almost necessarily the Petitioner to object to the search of
satisfied that standard. The Stored a third party’s property, the majority
Communications Act allowed a court to threatened to revolutionize a second and
issue the relevant type of order only if independent line of Fourth Amendment
the governmental entity offered specific doctrine.
and articulable facts showing that there 8. The Fourth Amendment guaranteed the
were reasonable grounds to believe right of the people to be secure in their
that the records sought were relevant persons, houses, papers, and effects The
and material to an ongoing criminal Fourth Amendment did not confer rights
investigation. And the court could quash with respect to the persons, houses,
or modify such order if the provider papers, and effects of others. Its language
objected that the records requested made clear that Fourth Amendment
were unusually voluminous in nature or rights were personal, and as a result, the
compliance with such order otherwise Court had long insisted that they would
would cause an undue burden on such not be asserted vicariously. It followed
provider. No such objection was made that a person who was aggrieved only
in the instant case, and the Petitioner did through the introduction of damaging
not suggest that the orders contravened evidence secured by a search of a third
the Oklahoma Press standard in any other person’s premises or property had not
way. That was what made the majority’s had any of his Fourth Amendment rights
opinion so puzzling. infringed.
6. It decided that a search of the Petitioner Gorsuch J, Dissenting
occurred within the meaning of the
1. The instant Court said that judges
Fourth Amendment, but then it leapt
could use Katz’s reasonable expectation
straight to imposing requirements that
of privacy test to decide what Fourth
until that point had governed only actual
Amendment rights people had in cell-site
searches and seizures. Lost in its race
location information, explaining that no
to the finish was any real recognition
single rubric definitively resolved which
of the century’s worth of precedent it
expectations of privacy were entitled to
jeopardized. For the majority, the instant
protection. But then it offered a twist.
case was apparently no different from
Lower courts could be sure to add two
one in which Government agents raided
special principles to their Katz calculus:
the Petitioner’s home and removed
the need to avoid arbitrary power and
records associated with his cell phone.
the importance of placing obstacles
7. To ensure that justice was done, it was
in the way of too permeating police
imperative to the function of courts
surveillance. While surely laudable, those
that compulsory process be available
principles didn’t offer lower courts much
for the production of evidence. For
guidance. The Court did not say how far
over a hundred years, the Courts
to carry either principle or how to weigh
understood that holding subpoenas to
them against the legitimate needs of law
the same standard as actual searches and
enforcement.
seizures would stop much if not all of
2. The Court’s application of those
investigation in the public interest at the
principles supplied little more direction.
threshold of inquiry. A skeptical majority
The Court declined to say whether
decided to put that understanding to the
there was any sufficiently limited period
test. Compounding its initial error, the
of time for which the Government
Majority also held that a defendant had
could obtain an individual’s historical
the right under the Fourth Amendment
location information free from Fourth
to object to the search of a third party’s
Amendment scrutiny. But then it
property. That holding flouted the clear
said that access to seven days’ worth
text of the Fourth Amendment, and it
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letter and the spirit of the Constitution. sion were determined by construction
Its action amounted to a violation of ar- of the statute conferring the discretion.
ticles 10 and 118 of the Constitution. Statutes might expressly state the con-
17. What was before the House was Clini- siderations that need to be taken into ac-
cal Officers (Training, Registration and count or ignored. Otherwise, they had to
Licensing) Bill, 2016 which repealed be determined by implication from the
the existing Clinical Officers (Training, subject matter, scope and purpose of the
Registration and Licensing) Act, Cap. statute. Had the 1st Respondent consid-
260 of the Laws of Kenya which made ered the effect of the late amendments
provision for training, registration and no doubt it would not have passed the
licensing of Clinical Officers; to regulate same in the manner it did.
their practice and to provide for the es- 21. It was expressly provided that control
tablishment, powers and functions of the of drugs and pornography was the func-
Clinical Officers Council. The Pharmacy tion of county governments. The Phar-
and Poisons Act on the other hand was macy and Poisons Act dealt with con-
an Act of Parliament to make better pro- trol of drugs. Therefore a bill proposing
vision for the control of the profession amendments to that Act ought to have
of pharmacy and the trade in drugs and necessarily been deemed as a Bill con-
poisons. cerning county governments pursuant
18. Section 34, instead of 35 because sec- to article 110 of the Constitution and
tion 22 was deleted, of the Clinical Offi- therefore ought to have been referred to
cers (Training, Registration and Licens- the Senate.
ing) Act, which came in by virtue of the 22. There was no evidence of concurrence
said amendment however read that the of the Speaker of the Senate having ex-
Board (Pharmacy and Poisons Board) pressed that the Bill did not concern
or any person authorized in writing county governments. However, the final
by the Board would have power to en- decision as to whether a bill concerned
ter and sample any medicinal substance county governments had to rest on the
under production in any manufacturing Court. While the opinions of the Speak-
premises and certify that the method of ers of the two houses were entitled to
manufacture approved by the Board was their respect, the ultimate decision was
being followed. vested in the Court. There was no evi-
19. There was absolutely no nexus between dence that the Bill in question was re-
section 34 and the rest of the sections ferred to and passed by the Senate as
of the Clinical Officers (Training, Reg- ought to have been done. Parliament as a
istration and Licensing) Act. Clearly by law making body ought to have set stan-
amending the provisions of the Pharma- dards for compliance with the Constitu-
cy and Poisons Act, which had nothing tional provisions and with its own Rules.
to do with the objectives of the Clinical 23. As regards the advice of the Attorney
Officers (Training, Registration and Li- General, that opinion ought to have it-
censing) Bill, 2016, the 1st Respondent self been lawful. In the case, with due
purported to deal with a different sub- respect to the office of the Attorney
ject and proposed to unreasonably or General, in a rather convoluted opinion,
unduly expand the subject of the Bill and misdirected the President on the legal-
in a manner not appropriate or in logi- ity of the impugned amendments. The
cal sequence to the subject matter of the Attorney General, rightly in the Court’s
Bill. In other words, the 1st Respondent view opined that section 34, which was
exceeded its powers conferred on it by unrelated to the substance of the Bill and
the Constitution as read with the Stand- which was inserted during the Commit-
ing Orders. tee Stage, intended to amend sections
20. The 1st Respondent deleted a provision 35A(5) and 35I(b) of the Pharmacy and
of the Act which there was no express Poisons Act. He further opined that the
intention to be deleted. In so doing, the National Assembly might not have acted
1st Respondent failed to consider a rel- strictly in accordance with its Standing
evant matter. The considerations that a Orders.
decision-maker was bound to consider 24. Despite those clear grave misgivings, the
or bound to ignore in making the deci- Attorney General proceeded to give the
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BB Issue 41, April - June 2018
whole Bill a clean bill of health by con- the Parliamentary Powers and Privileges
firming that the Bill was consistent with Act that it was meant to operate retro-
the provisions of the Constitution and spectively. Before its commencement,
other existing laws and that the President the ex parte Applicant had the right to
could assent to the Bill, if he approved. challenge the amendments to the Phar-
The opinion was unsupported by the macy and Poisons Act. Therefore, sec-
law and the authorities. The Bill ought tion 11 of the Parliamentary Powers and
not to have been signed in the manner Privileges Act, No. 29 of 2017, assuming
in which it was passed and the Attorney without deciding that the provision was
General ought to have advised the Presi- in the first place constitutional, did not
dent along those lines as was rightly pro- apply to those proceedings.
posed by the Chief of Staff and Head of 28. Section 12 only dealt with civil proceed-
the Public Service on April 18, 2017. ings. Those were judicial review pro-
25. Consequently, the manner in which sec- ceedings. High Court in the exercise of
tions, 35A(5) and 35I(b) of the Pharmacy its judicial review jurisdiction exercised
and Poisons Act, were amended by the neither a criminal jurisdiction nor a civil
impugned Clinical Officers (Training, one since the powers of the High Court
Registration and Licensing) Act, was to grant judicial review remedies was
clearly unprocedural, unlawful and ultra sui generis. However, in conducting its
vires and was consequently unconstitu- proceedings, Parliament was bound to
tional. adhere to the provisions of the Constitu-
26. The Court was aware that on July 21, tion and where its actions contravened
2017, the Parliamentary Powers and the Constitution; the same was null and
Privileges Act, No. 29 of 2017 was as- void.
sented to by the President. Under sec- Application allowed.
tion 38(1) of the said Act the National i. An Order of Certiorari removing into the
Assembly (Powers and Privileges) Act Court for the purposes of being quashed all
was repealed. However the commence- attendant proceedings and the decision of
ment date of the Act was indicated as the 1st Respondent dated April 5, 2017 that
August 17, 2017. Those proceedings passed the motion to amend sections 35A(5)
were commenced before the commence- & 35I(b) of the Pharmacy and Poisons Act
ment date of the said Act. Section 11 of under Clinical Officers (Training, Registra-
the Parliamentary Powers and Privileges tion & Licensing) Bill 2016;
Act provided that no proceedings or de- ii. A declaration that the amendment to sec-
cision of Parliament or the Committee tions 35A(5) & 35I(b) of the Pharmacy and
of Powers and Privileges acting in accor- Poisons Act under section 34 of the Clinical
dance with the Act would be questioned Officers (Training, Registration & Licens-
in any court. ing) Bill 2016 was passed in a manner that
27. The general rule was that all statutes oth- breached the express provisions of the Con-
er than those which were merely declar- stitution and was thus unconstitutional, null
atory or which relate only to matters of and void.
procedure or evidence were prima facie iii. Costs awarded to the Applicant.
prospective and retrospective effect was
not to be given to them unless by express
words or necessary implication, it ap-
peared that that was the intention of the
legislature. There was no stipulation in
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BB Issue 41, April - June 2018
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BB Issue 41, April - June 2018
remedy under civil law. justified in a free and democratic society and
that the crime of defamation had no place in
The Constitutional Court of Lesotho was
Lesotho’s constitutional dispensation
also faced with this issue in Basildon Peta v
Minister of Law, Constitutional Affairs and Conclusion:
Human Rights and 2 Others, Constitutional
From the foregoing, it is evident that courts
Case No. 11 of 2016. Section 104 of Lesotho’s
Penal Code provided that a person who in the region are moving towards doing away
publishes defamatory matter concerning with criminal defamation. The courts dealt
another person commits the offence of with criminal defamation in the context of
criminal defamation. The Court in this a free and democratic society and viewed
case held that criminalizing defamation criminal defamation as encroaching on
had a chilling effect on the journalistic the freedom of expression which was not
freedom of expression, resulting in self- reasonable. The courts gave instances in
censorship by journalists and a less informed which the freedom could be restricted and
public. The Court cited with approval calls they included circumstances which were
by the African Commission and United intrinsically dangerous to public interest.
Nations Special Rapporteur on Freedom The courts were of the view that defamation
of Expression which encouraged states to was a civil wrong between a private person
repeal criminal defamation laws. The Court by another person and could therefore not
held that the extent of the section 104 of the be regarded as a crime.
Act encroached on the freedom of expression
was not reasonable and demonstrably
An awareness of our past is essential to the establishment of our personality and our identity as Africans - Haile Selassie
70
BB Issue 41, April - June 2018
Kenya Law Visits Kwetu Home Of Peace as part of it’s Annual CSR initiative.
Nelson Tunoi, Chairman Kenya Law Welfare association receives a certificate of appreciation from the
Director Kwetu Home of Peace Sr. Carol. Kenya Law welfare association visited the children’s home
in Madaraka on Friday the 20th of April 2018 and donated food stuff, stationery, books, school bags,
shoes, socks and other.
Kenya Law’s Senior Law Reporter Mr. Christian Ateka (Left ) interacts with members of the
public during the 5th Annual Devolution Conference held at Kakamega High School from 23rd
to 27th April 2017.
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BB Issue 41, April - June 2018
Kenya Law Showcases at the Employment and Labour Relations Court Open Day
(ELRC)
A Judicial Officer is all smiles after receiving a free copy of the Constitution from the
Kenya Law stand during the Employment And Labour Relations Court Open Day (ELRC) held
at the Milimani Commercial Court on 4th May, 2018.
Kenya Law’s CEO Mr. Longet Terer presents the new Kenya Law
Report to Ms.Kawesa Rose and Ms. Namukasa Mariam (in stripes) of
the Uganda Law development Center during a knowledge exchange
program at Kenya Law.
Kenya Law’s team Wambui Kamau (Team Leader LoK), Linda Awuor (Team Leader R&D) and
Andrew Halonyere (Senior Law Reporter) presents the new Kenya Law Report volume to Hon.
Justice James Alala, Judge of the Supreme Court of the Republic of South Sudan, during a
Benchmarking trip on Law Reporting and Law Revision at Kenya Law.
Mr Long’et Terer , Editor/CEO Kenya Law presents Kenya
Law Reports volume to Prof. Moni Wekesa, Dean, School
of Law, Daystar University
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BB Issue 41, April - June 2018
73
The Devolution Case Digest gives a synopsis of selected cases on devolution emanating from
the Kenyan Courts and draws comparative lessons from other commonwealth jurisdictions.
The Digest is arranged thematically along the following seven key areas: Public Service;
Public Finance Management; Equity and Inclusivity; Removal from Office and Suspension
of County Governments; Transition to Devolved Government and Transfer of Powers and
Functions; Intergovernmental Relations as well as Public Participation and Citizen
Engagement.
Each @
Ksh.3000
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