Bench Bulletin Issue 29

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CONTENTS
BENCH BULLETIN
01 Ag Editor/CEOs Note
02 C h i e f
Message
Justices
07 What they Said

09 Sustainable Security Sector
Reforms in Kenya: Reflections
from the Judiciary
p.
34
15 Feature Case
18 Revisiting the KoinangeGachoka Case: Reflections
on Contempt of Court
under the Constitution of
Kenya, 2010
26 Parental Responsibility
and Child Maintenance in
Kenya
p.
40
29 Devolution, the Equitable

Solution For Kenya
30 LEGISLATIVE UPDATE: Synopsis
of Bills of Parliament
32 Digest of Recent Legal Supplement
on Matters of General Public
Importance

76
34 Kenya Law Wins Plate at the ICJs

Uwazi
Tournament

Where Legal Information is Public Knowledge
Issue 29, April - June 2015
A QUARTERLY PUBLICATION BY KENYA LAW
36 Kenya Law Attends Supervisory Skills Development Course At The

Kenya School Of Government (KSG) Nairobi
38 Considering a Merger? Please Consult the I.T Department
40 Kenya Law Greens the Nairobi National Park
42 Caseback
43 Cases
76 Appreciate the Present Moment
Ag Editor /CEO
| Longet Terer |
Head of Law Reporting
| Cornelius Lupao |
Senior Law Reporters

| Andrew Halonyere | Njeri Githanga Kamau |
Contributors
| Monica Achode | Linda Awuor | Cornelius Lupao | Wambui Kamau | Janette Watila | Mutindi Musuva |
| Eric Odiwuor | Edna Kuria | Nelson Tunoi | Emma Kinya | Collins Kiplimo | Phoebe Ayaya | Lydia Midecha
| Andrew Halonyere | Martin Andago | Teddy Musiga | Victor Kipyegon | Beryl Ikamari | Dudley Ochiel
| Lisper Njeru | Christian Ateka | Caroline Wairimu | Mary Waruguru | Ruth Ndiko | Naomi Mutunga |
| Julie Mbijiwe | Thomas Muchoki | Humphrey Khamala | Patricia Nasumba | Moses Wanjala | Winnie
Mbori | Phoebe Juma | Musa Okumu | Innocent Ayatollah |
Publishing, Design and Layout

| Catherine Moni | Robert Basweti | Cicilian Mburunga | Josephine Mutie |
Proofreaders
| Phoebe Juma | Innocent Ngulu |
Law
The Reporting
Council
5i
MEMBERS OF THE COUNCIL FOR KENYA LAW
Dr. Willy M. Mutunga, D. Jur., SC, EGH

Chief Justice, President of the Supreme Court of Kenya/Chairman
The Hon Lady Justice R Nambuye
Judge of the Court of Appeal of Kenya
Ms Christine Agimba
Deputy Solicitor General, State Law Office
The Hon Lady Justice Lydia Achode

Judge of the High Court of Kenya
Mr Silvester Migwi, Ag Government Printer,

Government Press
(Represented by Ms Eva N. Githinji, Senior Printer,
Government Press.
Prof Githu Muigai, SC

Attorney General
Prof Annie Patricia G Kameri-Mbote, SC
Dean, School of Law, University of Nairobi
Longet Terer
Ag Editor/CEO
Members co-opted to serve in ad-hoc Advisory Capacity

Ms Anne Amadi
Chief Registrar, The Judiciary
Mr Justin Bundi
Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Mrs Flora Mutua

Senior Management Consultant, Directorate of
Personnel Management Services,
Ministry of Devolution and Planning
Mr Joash Dache
Secretary/CEO Kenya Law Reform Commission
Mr Jeremiah M Nyegenye
Clerk of the Senate Represented by Mrs Consolata
Munga
Disclaimer:
While the National Council for Law Reporting has made every effort to ensure both the accuracy and comprehensiveness of the
information contained in this publication, the Council makes no warranties or guarantees in that respect and repudiates any
liability for any loss or damage that may arise from an inaccuracy or the omission of any information.
ii
6
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Ag Editor/CEOs Note
enyas jurisprudence continues to grow and develop with every

decision that is delivered by judicial officers. So far this year, Kenya
Law has received and processed 6,487 decisions from across all the
Superior courts of record in this country. This is a significant increase from
the number we received within the same period last year.
The increase in the number of courts and more importantly, the increase in
the number of judicial officers, is having an immediate and positive impact
on the dispensation of justice. The justice@last initiative that is being
championed by the Hon. Chief Justice has also resulted in the clearance of
large number of backlog cases. We anticipate that we shall report the highest
number of judicial decisions in the history of Kenya this year.
This edition highlights various legal issues that are worthy of note. We have
an analysis of the law of contempt that lucidly presents this area of law
juxtaposed against the recent changes made to our understanding of our
legal regime and especially the Constitution of Kenya 2010.
The manner in which the various courts (High Court; Employment & Labour
Relations Court; Environment & Land Court) are staffed and constituted
has been the subject of a legal challenge and in this issue we highlight two
cases in which this matter has been considered. The decision of the Court
of Appeal holding that Judges of the ELRC and ELC cannot preside over
criminal and civil cases has a great ripple effect as we note that most of
these judges have presided over a large number of cases in the justice@last
initiative. This is an issue that will need further deliberation.
Kenya Law ended the financial year on a philanthropic note as we undertook
our headline CSR for the year. In recognition of the impact that our print
publications have on the environment, especially the depletion of trees, we
planted over 250 trees along the boundary of Nairobi National Park and
Nairobi City. We plan to follow up on this initiative to ensure that we not
only plant more trees but that also that the trees we plant are well tended
and grow to maturity.
I hope that you will enjoy reading this edition of the Bench Bulletin. In case
you have any comments or suggestions with regards to this publication, or
the work of Kenya Law, please feel free to get in touch with me via email at
Lterer@kenyalaw.org
Longet Terer
Ag Editor
Issue 29,
April - June
2015
Editors
Note
Issue
29, April
- June 2015
2015
Issue 26,
January
- March

CJs Message
Remarks by the Chief Justice on the Tribute Session
for the Late Justice Shaikh Amin at the Supreme
Court, Nairobi on July 01, 2015
onourable Colleagues, The President of the Court of Appeal, The Principal Judge of the
High Court, Judges of the Superior Courts, serving and retired, The Honourable Deputy
Chief Kadhi, Honourable Magistrates, The Honourable Attorney General, The President,
Law Society of Kenya, Distinguished members of the Legal Profession in Kenya, Cabinet
Secretaries, Ambassadors, Members of the Family of the late Mr. Justice Shaikh Amin, JA. Ladies
and gentlemen:
Let me start by reflecting on the practice of paying tributes to departed judges
and advocates. We have not been consistent in performing this important
tradition. The last time tribute was paid to a departed judge was in 1999 in
honor of former Chief Justice, Zaccheus Chesoni. In 2013, I presided over a
hearing in which we paid tribute to five distinguished counsel who practiced
in Mombasa before their deaths. This is a tradition that should remind us that
the bar and the bench are joined at the hip of justice. It is a tradition that does
not require legislation, practice notes or case law. It is a tradition that reflects
the great value of humanity. It is a tradition that reflects the constitutional
value of equity. And this afternoon equity in the judicial hierarchy is glaringly
reflected when all the courts are represented in this hearing. The Deputy
Chief Kadhi who ranks similar to Senior Principal Magistrate is sharing a
court with the CJ, DCJ, President of Court of Appeal, and Judges of the High
Court. We would have got the gender parity right had Chief Magistrate Hon.
Ominde not pulled out at the last minute on account of her mothers death,
and to whom we offer our condolences. We will now be consistent in the
practice of this tradition and pay tributes to departed Magistrates and Kadhis
as well. I would also suggest that we include in the tradition paying tributes
to retiring or retired judicial officers. I have always held the view that it is
better to celebrate and honor colleagues when they are alive. It would reflect
the great hallmark of due process when they can also be heard. That is the
reason why the judiciary honoured retired Justice Onyango Otieno in March
this year, by naming the Court Library in the new Court Complex in Kisumu,
after him.
I will not repeat the content of Judge Shaikh Amins biography. It has been
eloquently done by the Hon the Attorney General, the Chair of Law Society, and Senior Counsel
Fred Ojiambo who is also the Chair of the Senior Counsel Bar.
I want to reflect on Judge Amins legacy within the context of the transformation of the Judiciary
before and after the promulgation of the 2010 Constitution. I will focus on his work as an officer
of the court, but more specifically reflect on the values he exhibited as a Judge. We all agree that
the transformation of the Judiciary did not start with the 2010 Constitution because the judiciary
dealt with the issue through various Task Forces. We used the recommendations of those Task
Forces to design a Judiciary Transformation Framework 2012-2016. The 2010 Constitution
was, indeed, a giant leap forward in restructuring the Judiciary and giving it a pivotal role in the
fulfillment of the promise of democracy in this country.
When it comes to values enshrined in the 2010 Constitution Judge Shaikh Amin lived them before
they were decreed in the Constitution. He was collegial to a fault. He was modest, transparent,
accountable, humble, and fair. He was the face of justice literally given his smiles, gait, and cool
demeanor. He looked at the parties, the litigants, and was sharp to discover the justice of a case
in an adversarial system. Equity, a value in our Constitution, was one of his attributes. He was
Law Reporting
Law Reporting
always humane. Those who appeared before him will testify to his commitment to ADR once he
saw the justice of the dispute before him. This was his approach as missionary or imam of justice.
He understood that the adversarial justice system did not result in justice at all times. He clearly
saw injustice in that system, a vision that the 2010 Constitution reflects under Article 159 of the
Constitution.
After his appointment to the Bench, Justice Amin made a reputation for himself for integrity,
fairness, independence, courage and compassion. He believed in a higher Justice, not the strict,
technical, mandatory application of inflexible rules, regardless of the human cost. Those who
appeared before him or colleagues who sat with him will recognize his personal guiding standards
reflected in what we now know as the overriding objectives principle that is mandatorily applied
in court procedure.
The late Justice Amin was also one of the earlier Judges to actively encourage mediation and outof-Court settlement of disputes in a variety of civil cases that came before him, a principle now
enshrined in the Constitution. He was also one of the first Judges to embrace the filing of written
Submissions as a means of saving on valuable judicial time. He was keen to ensure that all litigants
had their day in Court and questioned the value of interminable proceedings and unnecessarily
lengthy adjournments, submissions, Rulings and Judgments when the litigants seeking Justice
really only needed quick and fair decisions. That was long before the Judiciary even thought of
Performance Management. He was clearly ahead of his time.
It is when I reflect on the approach by Judge Shaikh Amin against the essence of values under Article
10, the whole notion of access to justice, and the broad parameters of justice under the provisions
of Article 159 of the Constitution, particularly what I have called without the law jurisprudence,
that is the promotion of the traditional justice systems as critical pillars to access to justice to
the majority of our people, and reflecting widely on what is justice that I appreciate what Judge
Shaikh Amin pioneered in his own way. Through his approach, I have come to understand that
justice must include a strategy of dialogue with the parties during the proceedings, and including
judgment. Like Judge Shaikh Amin attempted to achieve justice in an adversarial system, justice is
done when through the proceedings and judgment the judge is able to convince the loser that they
had had justice. The winner does not need convincing. This is not easy and that is why a judicial
culture that Shaikh Amin displayed helped him. He was persuasive and as I have said was modest,
humble, equitable, and fair and made litigants and their lawyers feel he was committed to a justice
system that was not always adversarial.
I know a lot of lawyers did not see it that way, because they immortalized in their offices, that
famous cartoon of a lawyer milking a cow, the subject of the dispute, while the parties pulled it
in different directions. The lawyer is depicted as particularly endowed with a big rear while the
litigants and the cow are not in their best shape. But then it does take time for a lot of people to see
injustice in the current comfort zones they work in while others like Judge Shaikh Amin did. His
approach should have convinced many of us the reality of our country and that has been that there
are various forums of justice and people decide where they will go for justice. Only 5% of Kenyans
come to our formal court system (and within that ADR is consistently becoming prominent).
Judge Shaikh Amin in his approach attempted to connect the formal and non-formal systems
of justice. He may have been Muslim, but his approach was consistent with the teachings of the
Bible, particularly Mathew 5:25 which says, Before you are dragged into court, make friends
with the person who has accused you of doing wrong. If you dont, you will be handed over to the
judge and then to the officer who will put you in jail. I promise you that you will not get out until
you have paid out the last penny you owe. Throughout his legal career, both at the bar and on the
Bench, Justice Amin distinguished himself as a true servant of the law and champion of access to
Justice.
We remember and honour the late Justice Amin for being Kenyas own harbinger of two very
important evidentiary and procedural standards - the Fruit of the Poisonous Tree evidentiary
principle and the principle of focusing on overriding objectives of justice in each case. In in
Republic v. Kuruma s/o Kaniu (1954), Justice Amin, then Defence Counsel for a client who had been

charged with being in unlawful possession of ammunition, asserted a nuanced analysis of the
Exclusionary Principle, venturing that evidence obtained as a result of an illegal search was
inadmissible. The subsequent Judgments of both the Court of Appeal of Eastern Africa and
the Judicial Committee of the Privy Council in London disagreed with him. However, thirty
years after he made that submission in that trial, the very same legal principle that young
Barrister advanced came to form the basis of Section 78 of the Police and Criminal Evidence
Act of 1984 applicable in England and Wales. In this case, Attorney Shaikh Amin articulated
the principle and importance of observing the rule of law, even in times of war or conflict - a
principle now substantively elaborated in Article 238 of our Constitution. But we must also
remember and honour Shaikh Amin today as an advocate who lived for a cause bigger than
self and fees.
Few know about his deep commitment to the cause of independence in Kenya. Early in his
career, he defended 11 of the 84 accused persons in the Lari Massacre Trial after the 1952
State of Emergency declared by the Colonial Government in Kenya. His role and service
in defence of those freedom fighters in Kenya is acknowledged by Caroline Elkins in her
book Britains Gulag.Affected by the plight of its ordinary citizens who had suffered greatly
under the colonial regime, he involved himself in elective politics in the elections of 1956
and 1961, as the brutal end of the Empire in Kenya approached. He also became a legal
advisor to some of the political parties of the time. Several of the emerging African leaders
of the time were amongst his closest friends. Being beyond tribal loyalties, he was a friend to
all who were committed to the cause of freedom.
The transformation of our judicial culture is about values that Judge Shaikh Amin reflected
as a human being. Whether it is making sure tea is served to all staff, the equalization of
salaries, transparency and fairness in recruitment, promotions, training, travel, our pledge
to litigants and counselall these values were practiced by Judge Shaikh Amin. His vision of
justice captures all these attributes.
It befits his honor that this afternoon we have a tradition that reflects his values: equity
in the judicial hierarchy; and the values that he reflected that have been enshrined in our
progressive 2010 Constitution.
As I conclude, I remember that the Late Shaikh Amin always invited fellow Muslims and
judges to his home during this blessed season. Many judges visited Shaikh Amin during
almost all those Ramadhan seasons,- always at his invitation. In honour of the hospitality
of this great man, allow me, on behalf of the Judiciary of Kenya and the family of the Late
Shaikh Amin to welcome you to an Iftar reception in his honour hereafter.
May the Almighty Allah Rest the Soul of Judge Shaikh Amin in Eternal Peace! Shukran!
HON. DR. WILLY MUTUNGA, D.Jur, SC, EGH, SEGH

CHIEF JUSTICE & PRESIDENT
SUPREME COURT OF KENYA
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KLR ELECTION PETITIONS DECISIONS

This volume contains decisions emanating from the 2007 General Elections from the Court
of Appeal of Kenya and the High Court of Kenya.
Milimani Commercial Cour ts, Ground Floor

PO Box 10443 - 00100 Nairobi, Kenya
t. +254 20 271 2767 c. +254 718 799 464
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What they Said

Supreme Court judges PK
Tunoi & M Ibrahim in Daniel Kimani Njihia v Francis
Mwangi Kimani & another
of Kenya Civil Application
No 3 of 2014
The only applicable sources of law when moving the Supreme Court were the
Constitution, the Supreme Court Act, and the Supreme Court Rules, 2012. The
Appellate Jurisdiction Act was not applicable when moving the Supreme Court.
Neither was the Civil Procedure Code
The Court of Appeals directions, which required the IEBC to ensure that the registration
of Kenyans living in the diaspora as voters in all elective posts was realized progressively,
expressed the principle of incremental progress toward a full-scale attainment of the right
to vote...the orders were not a departure from the terms of the Constitution and were
orders which were aspirational and expressed the possibility of Kenyans in the diaspora
gaining the capacity to vote in all elective posts apart from the Presidency and referenda.
It was however, impractical to decree a specific mode of the exercise of diaspora voting
with respect to all elective posts as from any named date.
Court of Appeal Judges

Okwengu H M, Makhandia A & Sichale F in
Khatija Ramtula Nur
Mohamed & another v
Minister for Citizenship
and Immigration & 2
others Civil Appeal 51 of
2013
Three Year waiting period for parties who contract marriages with foreign nationals
to gain citizenship was reasonable and not discriminatory.The waiting period was
reasonable, justifiable and not unduly long, bearing in mind the importance of the purpose
of the limitation since if there was no such limitation, undesirable persons could enter the
country, contract a marriage for convenience and automatically become citizens which
would pose a real danger to the countrys security.
A judge appointed to any of the two specialized courts (ELC & ELRC) did not have
jurisdiction to sit in courts other than the one he/she was specifically appointed to.
That was so because section 2 of the Judicature Act had defined judge to mean; the
Chief Justice or a puisne judge appointed under section 61 of the old Constitution (the
equivalent of now article166 (5) of the current Constitution) or a judge of the Court
of Appeal appointed under Section 64 of the old Constitution (the equivalent of now
Article 166(4) of the current Constitution)
What they Said
Supreme Court judges

K H Rawal, DCJ & VP, P
K Tunoi, M K Ibrahim,
J B Ojwang, S C Wanjala
& S N Njoki, SCJJ in Independent Electoral &
Boundaries Commission
(IEBC) V New Vision Kenya (NVK Mageuzi) & 4
others Petition 25 of 2014
Court of Appeal judges H

M Okwengu, A Makhandia
& F Sichale in Karisa Chengo & 2 others v Republic,
Criminal Appeal No. 44, 45
& 76 of 2014
What they Said
What they Said

Section 43(5) of the Elections Act, 2011 which provided that a public officer must resign
six months before a by- election date if he wished to contest such an election was not
reasonable and justifiable in the context of a by-election because as could be discerned from
the provisions of article 101(4) of the Constitution, a by-election was conducted subject to
a vacancy arising in circumstances contemplated under article 103 of the Constitution.
Taking those circumstances into account i.e. death, resignation, disqualification etc., it
would have been difficult to predict and foresee the possibility of a vacancy arising in
Parliament or a County Assembly so that a public officer could prepare to contest in that
by-election. Those circumstances were also uncertain
High Court judges I

Lenaola, M Ngugi, H
Ongudi, H Chemitei, J L
Onguto, JJ in Coalition for
Reform and Democracy
(CORD) & 2 others V Republic of Kenya, Attorney
General & 7 others Petition No.628 of 2014 Consolidated with Petition
No.630 of 2014 and Petition No.12 of 2015
Justice Isaac Lenaola

in The Union of Civil
Servants & 2 Others v
Independent Electoral
and Boundaries Commission & Another, Petition No. 281 of 2014 &
Petition No. 70 of 2015
(Consolidated)
This judgment has raised important questions regarding the role of this Court in determining issues relating to the legislative process and we have determined that whereas
under article 165(3) (d) of the Constitution as read with articles 22(1) and 23(1), the High
Court has wide interpretative powers donated by the Constitution, it must be hesitant to
interfere with the legislative process except in the clearest of cases.The role of the media
and the need for discipline, self regulation and care in the publication of sensitive stories
has also come to the fore. Although we have upheld the objections to certain Sections of
SLAA that infringe on the free press, the media also ought to know that the issues raised
in SLAA are not idle.
The Board denied the petitioners application to form an association by denying the
names proposed for registration because the names represented groups whose interests
the Board took the view should not be accorded the right to associate on the same level as
others. However, in a representative democracy, and by the very act of adopting and accepting the Constitution, the State was restricted from determining which convictions and
moral judgments were tolerableThe right to associate was a right that was guaranteed
and applied to everyone. It did not matter if the views of certain groups were unpopular
or unacceptable to persons outside those groups...
High Court judges Isaac

Lenaola, Mumbi Ngugi,
G.V. Odunga in Eric
Gitari v Non- Governmental Organizations
Co-Ordination Board &
4 others, Petition No 440
of 2013
Issue
29, April
- JuneSaid
2015
What
they
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Sustainable Security Sector Reforms in Kenya:

Reflections from the Judiciary
This commentary is developed from the address by the Deputy Chief Justice and Vice President of the Supreme Court of
Kenya Hon. Lady Justice Kalpana Rawal, EBS, MGH, to the Africa Forum On Security Sector Reform held between the
24th - 26th of November 2014 in Addis Ababa, Ethiopia.
Introduction
SSR refers to the variety of constitutional, legal, and policy
changes required to infuse principles of accountability,
professionalism, and efficiency into all activities
within security sector. SSR involves the management,
provision and oversight of security for all persons and
the development of effective and accountable security
institutions on the basis of non-discrimination, full
respect for human rights and the rule of law. The
Judiciary, by ensuring fidelity to the values and principles
of the Constitution in all administrative and legislative
actions, is at the centre of SSR processes and is a critical
institution in the achievement of sustainable reforms.
In hearing and determining matters concerning the
constitutionality of the actions of security agencies,
statutes and regulations, and protecting the human rights
and fundamental freedoms of all persons, the Judiciary
lays the foundation for a strong democracy.
The issue of the balancing point between the conflicting
values and principles is not constant, but rather differs
from case to case and from issue to issue. There is no
blanket prescription. Any balance that is struck between
security and freedom will impose certain limitations
on boththe balance and compromise are the price of
democracy. Beyond the traditional role of adjudication of
disputes, the Judiciary must seek to constructively engage
with stakeholders and the public. It must also be alive and
responsive to emergent challenges and dynamics of an
increasingly interrelated regional and global context.
The Constitution of Kenya 2010 introduced significant
reforms into the security sector in Kenya altering
the institutional structuring to reflect the countrys
democratic principles of governance.
Primary actors in security sector
Art. 239 of the Constitution designates the Kenya Defence
Forces (KDF), the National Intelligence Service (NIS),
and the National Police Service (NPS) as Kenyas national
security organs under the supervision of the National
Security Council. Art. 238 defines national security and
provides the principles under which these organs shall
operate stating, inter alia, that national security shall be
pursued in compliance with the law and with the utmost
respect for the rule of law, democracy, human rights and
fundamental freedoms.
Despite being vested with the primary responsibility in
regard to national security, these national security organs
are part of a system of administration of justice. Ancillary
to these organs are the Prisons Department, the Probation
Hon. Lady Justice Kalpana Rawal, EBS, MGH, Deputy Chief Justice
and Vice President of the Supreme Court of Kenya
and Aftercare Service, the Office of the Director of Public

Prosecutions (DPP) and the Judiciary. The Probation
and Aftercare Services falls under the Office of the
President and is tasked with the community safety and
public protection through provision of pre-bail reports,
social inquiry reports, supervision and rehabilitation of
non-custodial offenders, and victim support. The DPP
is established under Art. 157 of the Constitution and is
tasked with the institution and undertaking of criminal
proceedings.
Institutional Reforms
The primary institutions in Kenyas security
infrastructure have undergone extensive reform, most
linked to the promulgation of the Constitution of Kenya
in August 2010. The reform process in the police service
is on-going; reforms began in earnest with the National
Taskforce on Police Reforms (Ransley Taskforce) set up
in 2008. These reform processes were accelerated by
the promulgation of the 2010 Constitution and the restructuring of the national security institutions contained
therein. This resulted in the enactment of the National
Police Service Act No. 11A of 2011; the Independent
Policing Oversight Authority Act No. 35 of 2011 which
increases the transparency and accountability of NPS by
establishing an Independent Policing Oversight Authority
(IPOA); and the National Police Service Commission Act
No. 30 of 2011.
The National Police Service Act 2011 provided for the
vetting of all officers of the NPS under the National
Police Service Commission to assess their suitability and
competence. This process began on 16 December 2013
and the recently concluded phase (April 2014) targeted
senior police officers. Police reform initiatives such as
community policing have also been devised and are being
operationalised. Though significant progress has been
made on police reform, the process is still nascent, impacts
are modest and the translation of reform initiatives into
tangible results amongst Kenyas communities remains a
substantial challenge.
Amongst the functions of the NPS as contained in Art.
244 of the Constitution are the requirements to train
staff to respect human rights and fundamental freedoms;
and to foster and promote relationships with the
broader society. In regard to the former, there is room
for close collaboration with the Judiciary and the JTI
in the training of members of the NPS. The experience
10

and knowledge within the Judiciary in regard to the

content, application and protection of human rights and
fundamental freedoms is a valuable resource that can
be tapped by the NPS during these training activities.
The recognition and respect of human rights within the
security service is the foundation of sustainable security
sector reforms. A second fundamental pillar of reform is
community engagement. Part IV of the National Police
Service Act provides for County Policing Authorities in
each county in Kenya. These Authorities can engage with
the High Court and subordinate courts at County level to
ensure effective and efficient service provision across the
criminal justice sector.
The Kenya Prisons Service has also undergone
considerable institutional reform. Efforts at the
improvement of the conditions of both officers and
inmates in the Kenya Prisons Service began in April 2008,
with the appointment of a High Level Committee on
Prisons Service chaired by Hon. Madoka. The mandate
of the committee was to study the conditions in the
service with regard to both prison officers and inmates.
An inter-ministerial reform team was subsequently
set up and has developed an implementation matrix.
These efforts have led to the improvement in the living
conditions of inmates; the expansion and construction of
prison facilities; the improvement in the healthcare and
hygiene of inmates and remandees; and, importantly, the
prioritisation of rehabilitation and reform of offenders.
The latter includes the establishment of a Directorate
of Rehabilitation and Welfare within the Kenya Prisons
Service which provides counselling and psychosocial
therapy for inmates, formal and informal education and
develops inmates skills through technical training. There
are now special needs offenders programs for inmates
with drug and alcohol addiction, those with mental health
challenges, for young offenders, mothers with children
and girl offenders. A Directorate of Legal and Human
Rights has been established to oversee respect for human
rights in prison operations as well as, where possible,
provide legal services for inmates who lack the means to
engage legal counsel.
Legislative Reforms
Alongside the above institutional reforms, since the
promulgation of the 2010 Constitution, there has been
an enactment of a raft of legislation impacting the
structure and substance of SSR in Kenya. Beyond the
statutes mentioned above providing for the operations
and function of Kenyas national security infrastructure
there are a number of notable legislative reforms.
The Prevention of Terrorism Act, Proceeds of Crime
and Anti-Money Laundering, and the Prevention of
Organized Crime Act, all recently enacted provide a
strong legislative framework through which to prosecute
terrorism cases including cases of financing and
supporting terror networks. Regarding piracy, Kenya in
2009 enacted the Merchant Shipping Act Cap 389 which
not only defined more comprehensively and extensively
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the offence of piracy, but also extended the jurisdiction of

Kenyan courts to try piracy committed by non-nationals.
Pursuant to Art. 51 of the Constitution, the Persons
Deprived of Liberty Bill 2012 has been drafted which will
better provide for the rights of persons detained, held
in custody or imprisoned. In regard to wildlife crimes
such as poaching, Parliament revised the law relating to
protection, conservation and management of wildlife in
Kenya. The Wildlife Conservation and Management Act,
Act No. 47 of 2013 became operational on 10th January,
2014 and provides for stiffer penalties on persons
found guilty of poaching and other related offences. For
example any person found guilty of poaching or dealing
with trophies of endangered species is liable to pay a fine
of 20 million shillings or imprisonment for life or both.
This new Act addresses the inadequacies of the previous
Wildlife Act that provided for very lenient penalties
incommensurate with the gravity and impact of the
offence committed. The above reforms go some way to
ensure observance of s. 42 and 43 of the African Union
Policy Framework on Security Sector Reform.
Judicial Reforms
The Judiciary is an important component of the security
sector architecture. The return to multiparty politics
in the early 90s heralded the beginning of meaningful
judicial reforms in Kenya. Judicial reform initiatives,
from the Kwach Committee in 1998, to the 2002
Advisory Panel of Eminent Commonwealth Judicial
Experts, to the 2003 Ringera Committee, culminated
in the comprehensive vetting of judges and magistrates
under the Constitution of Kenya 2010. Under the
Vetting of Judges and Magistrates Act No. 2 of 2011,
all magistrates and judges in office on or before the 27
August 2010 have been vetted by Judges and Magistrates
Vetting Board. The process has gone a long way towards
restoring public faith and confidence in the Judiciary. The
vetting process is still in progress and the recent decision
of the Supreme Court of Kenya in Judges and Magistrates
Vetting Board & 2 Others v. Centre for Human Rights and
Democracy and Others Petition No. 13A of 2013 affirmed
the finality of the Vetting Boards decision to remove a
Judge or magistrate from office. The decision illustrates
the Judiciarys commitment to the spirit and principles
of the Constitution and the Kenyan peoples desire for
comprehensive reform of the Judiciary.
The Constitution established the framework for a strong
independent Judiciary including a reformed Judicial
Service Commission, the removal of fiscal control over the
Judiciary from the executive branch, creating additional
tiers of courts which includes the Supreme Court and
importantly creating the offices of the Deputy Chief
Justice, President of the Court of Appeal and Principal
Judge of the High Court. The process of appointment
of the Chief Justice and Deputy Chief Justice mirror the
new ethos of accountability and transparency within
the Judiciary. The newly constituted Judicial Service
Commission advertised for the positions and publicly
Law Reporting
interviewed the candidates. The candidates nominated by
the JSC were then further vetted publicly by Parliament
before appointment by the President. Appointment
of judges involves a similar advertisement and public
interview process without the requirement for vetting by
Parliament. These measures are a stark departure from
the arbitrary and opaque appointment processes of the
past and have gone a long way towards rebuilding public
confidence in the institution.
Towards enhancing accessibility and accountability, the
Chief Justice in 2011 established the Office of the Judiciary
Ombudsperson (OJO). The core function of the office is
to receive and process complaints and grievances from
the public in regard to the Judiciary and its employees.
Since the office was established, it has received hundreds
of complaints from across the country. Every year the
Chief Justice produces a State of the Judiciary and the
Administration of Justice Report, an annual report to the
nation on the state of the Judiciary and the administration
of justice. The Report is gazetted and disseminated to
the public; it is also placed before the two Houses of
Parliament for debate and adoption. The annual report
is an important tool and resource towards ensuring that
the Judiciary remains accountable to the people of Kenya
from whom it derives and exercises its authority.
Community Service Orders (CSO) deserve particular
mention as they vividly illustrate the interdependence
between security actors, the need for collaborative
initiatives and robust community engagement strategies.
With many potential benefits including the rehabilitation
of non-serious offenders, decongestion of prisons and
promotion of reconciliation, the effective administration
and implementation of these orders requires close
coordination and corporation between the Probation and
Aftercare services, the National Police Service, the Kenya
Prisons Service, the Judiciary and most importantly local
communities.
Case backlog remains a major challenge for the Judiciary
and, particularly in criminal matters. Addressing the issue
of case backlog is a priority area for judicial sector reform
and an issue alive to all judicial officers in achieving
the fair and expedient disposition of justice. The ongoing reform process is showing some concrete results;
however, though the backlog has decreased and the
rate of completion of cases has increased, the Judiciary
recognizes that more can be done. In 2013, the Hon. Chief
Justice launched the country wide Judiciary Service Week
during which 68 Judges concentrated solely on hearing
criminal appeals. The Judiciary must find strategies and
mechanisms to ensure that justice is dispensed for all
persons fairly and promptly.
An important aspect of sustainability is ensuring that
institutions are dynamic and responsive to current
and emerging security challenges. Institutions ought
to be constantly evaluating and improving both the
intellectual and programmatic aspects of their strategies
and developing their capacity to effectively and efficiently
11
implement and achieve their objectives. Within the

Judiciary, the Judiciary Training Institute (JTI) is a key
organ in this regard responsible for meeting the training,
research and capacity development needs of Judiciary
staff.
In May 2014, JTI held a workshop for judicial officers
on counter-terrorism law and procedures in the context
of the constitution and international human rights law.
This high level multi-stakeholder forum was a response
to the increased incidences of terror attacks in various
parts of the country and the capacity of the criminal
justice system to handle terror suspects. These forms of
interaction, dialogue and cooperation form the bedrock
of sustainable security sector reforms and initiatives.
There are also ad hoc multi-stakeholder initiatives
amongst those within the criminal justice system. In May
2014 the Chief Justice gazetted a Taskforce to Develop
Bail And Bond Policy Guidelines aimed at streamlining
and addressing disparities in the application of bail and
bond for arrested and accused persons. In June 2014,
another Taskforce was constituted by the Chief Justice
on sentencing. These taskforces bring together a variety
of institutions governmental and non-governmental to,
through research, consultation and public engagement,
address contentious issues within the criminal justice
system; issues that have a significant impact on security
sector reforms. This approach enables multiple
stakeholders to understand various perspectives and
allows problems to be addressed comprehensively by an
assortment of experts in a variety of fields. The consensus
built during the exercise enhances cross-institutional buy
in and streamlines the adoption and operationalisation of
resultant recommendations, guidelines or policies. Most
importantly, partners are able to exchange views creating
synergies between institutions that better addresses the
immediate challenge and, in the long term, enhances
cooperation for more effective service delivery across the
relevant sector.
Security Challenges and the Judiciary
The Judiciary is at the centre of the apparent tension
between human rights and fundamental freedoms on the
one hand and national security imperatives on the other.
The growing scourge of terrorism in particular highlights
the task the courts face in regard to ever-evolving security
challenges. Where then is the place of the Judiciary in
the apparent tension between security concerns and
fidelity to principles of rule of law and human rights? The
sustainability of security sector reforms lies at the heart
of this conundrum.
The bellwether for judicial action is the Constitution
and the values and principles enshrined therein. Where a
democracy is confronted by grave security threats, Hon.
Aharaon Barak, the former President of the Supreme Court
of Israel, describes the adequate response as defensive
democracy; where judges in modern democracies take
the responsibility of protecting democracy both from
12
security threats and from the means the state wants to

use to fight such threats. The task of the Judiciary is to
uphold the constitution and the democratic principles
contained therein, those of freedom and security both
of the individual and the collective, almost in spite of
themselves.
Within the historical context of our nascent constitutional
dispensation, the values and principles in the Constitution
must be protected. Fidelity to the principles and values
contained in the Constitution is particularly important
as the impact of an unconstitutional administrative
action in a situation of emergency rarely leaves a lasting
legacy on the democratic fabric of a society once that
crisis has passed. However, the impact of a judicial
decision that rationalises such an action to conform
with the Constitution or interprets the Constitution in
such manner for it to sanction such action will cause
the judicial graph to deviate after the crisis passes. The
precedent is set, opening fresh possibility for derogation.
Towards Sustainable Security Sector Reform
Only a democracy built on the foundations of human
rights can have security.
Under Art. 22 of the Constitution, every person has
the right to institute court proceedings claiming that a
right or fundamental freedom in the Bill of Rights has
been denied, violated or infringed, or is threatened. To
give effect to this article, the Judiciary has promoted
awareness in public interest litigation; recently, through
the JTI, the Judiciary held a Symposium on Public Interest
Litigation & The Enforcement of Article 43 Rights and
a Strategic Dialogue on Using Public Interest Litigation
to Deliver Democracy & Social Transformation in East
Africa. In order to improve peoples access to the courts
and the promotion and protection of their right, the
Chief Justice in July 2013 published the Constitution
Of Kenya (Protection Of Rights And Fundamental
Freedoms) Practice And Procedure Rules, 2013. The
rules particularly emphasise access to justice for the poor;
illiterate; uninformed; unrepresented; the marginalised
and persons with disabilities. A noble provision within
the Rules is that any needy person can apply to the
Registrar for exemption from paying court fees even
before the Supreme Court. Enhancing access to the court
particularly in regard to human rights and fundamental
freedoms lays the foundation for sustainable SSR by
promoting accountability amongst security actors and
providing the public with a forum in which to have
their grievances resolved peacefully. In addition to this
enhanced vertical accessibility, the Supreme Court,
through its jurisdiction to provide advisory opinions
upon request from within the other arms of government,
provides horizontal access to justice.
The Judiciary is an important avenue through which to
address the structural factors that cause, trigger and/
or exacerbate conflicts and breed insecurity. Kenya
has a history of violent conflict over land and natural
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resources. Recognising the urgent need for adequate and

specialised capacity to deal with these disputes, Art. 162 of
the Constitution established the Environment and Land
Court to facilitate the just, expeditious, proportionate and
accessible resolution of these disputes hence contributing
towards averting violent conflict. The Environment
and Land Court Act Cap 12A further provides for the
jurisdiction, functions and powers of the court. When the
court was established in 2011, there was only one sitting
judge; currently there are 20 judges of the environment
and land court with plans for further expansion into each
county and court station.
The Judiciary continues to undertake reforms under
the Judiciary Transformation Framework 2012-2016
(JTF). Central to the transformation of the Judiciary is
sustainable security sector reform which is set on three
basic objectives: the reset of the relationship between the
Judiciary and other arms of government premised on
the principle of robust independence and constructive
interdependence. Second, the reorientation of the
institutions organisational culture, institutional design
and leadership style. And third, and most important, the
people focused delivery of justice framed around access
to and expeditious delivery of justice, public engagement
and outreach, and stakeholder engagement. The Hon.
Chief Justice stated that
[t]he success of Judiciary transformation and
the justice sector depends on a constructive
collaboration among the branches of government.
It is important that a harmonious inter-branch
relationship is nurtured and cultivated if all the
agencies work towards the betterment of the
society and service of the Kenyan people.
Stakeholder engagement is a crucial aspect in the
sustainability of security sector reform in Kenya.
Beyond the traditional judicial function, a multi-sector
engagement approach to security is essential to ensure
the sustainability of reform. The National Council for
the Administration of Justice is mandated to ensure a
coordinated, efficient, effective and consultative approach
in the administration of justice and reform of the justice
system.
In response to the threat of piracy in the Horn of Africa,
Kenya is committed to the prosecution of suspected
pirates. The amendment of the Penal Code and the
enactment of the Merchant Shipping Act, 2009 have
significantly developed the capacity to deal with piracy
and other threats to maritime security. The response
to the threat of piracy is an example of the multistakeholder, multi-institutional initiatives required to
secure effective and sustainable security responses. The
Kenyan government, including the Judiciary has worked
closely with intergovernmental institutions such as
UNODC, regional state partners, multilateral institutions
and foreign state partners towards ensuring an effective
response to piracy in the region. In regard to the Judiciary,
UNODC, under its counter piracy programme, has
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contributed to the rehabilitation of the court in Shanzu
to enable the High Court in Mombasa to more efficiently
try piracy suspects. Further, UNODC has assisted in the
training of judicial officers; facilitated the attendance of
witnesses from overseas to give evidence at piracy trials;
where requested, provided defence counsel for piracy
suspects; interpretation and transcription facilities;
improved IT and video link equipment; and the general
enhancement of court infrastructure. Further, to address
this security challenge, the Kenyan state has extended the
jurisdiction of the courts to prosecute crimes committed outside
the countrys territorial waters.
An even more collaborative response is necessary in
order to deal with cross-border crimes. Various regional
bodies have been established, such as the Eastern African
Police Chiefs Organisation, however more needs to be
done especially in regard to criminal and penal laws and
the cooperation between municipal and regional juridical
structures to enhance harmonisation and cooperation
across the region. In the spirit of regional integration,
benchmarking, knowledge and experience exchange,
the Judiciary is ready and willing to share our reform
experience with our neighbours. Sustainable reforms
require an appreciation of increasingly important
regional and global dynamics and institutions equipped
to respond to the challenges these raise as well as harness
potential opportunities.
Finally, the violence against women degrades and defaces
the country and those who inhabit that country; Kenya is
not an exception to this. Amongst other vulnerable groups,
the security of women in Kenya deserves immediate and
urgent attention. A number of recent incidents highlight
the psyche amongst security actors in regard to crimes
against women. In 2013, protests erupted after the police
that an appropriate punishment for six young men who
had gang-raped and left for dead a 16-year-old girl was
to cut the grass in front of the police station and provide
the victim with some money for cheap painkillers. This
month, after the assault on women in public areas for
alleged immoral dressing, the Deputy President was
forced to intervene and order investigations into the
incidents and arrest of the perpetrators. The response of
security actors to these incidents illustrates an express and
tacit deference amongst those within these institutions to
an enduring general attitude that attaches subordinate
status to offences against women, particularly sexual
offences. There are however encouraging developments
in the justice system towards redressing and changing the
status quo.
These are positive developments in legislation and
jurisprudence towards enhancing the security of women
in Kenya. Civic education and a fundamental shift in
attitude within security institutions are also important.
The Judiciary, in line with pillar two of its Transformation
Framework
on
transformative
leadership
and
organisational culture, has taken steps to ensure that all
judiciary staff are sensitised, trained and informed in this
13
regard. A Judicial Taskforce on Sexual Harassment was

established under the auspices of the ODCJ in 2014 and
is currently validating the Judiciarys sexual harassment
policy after a comprehensive consultation process. Other
institutional actors must take similar steps to transform
organisational culture in regard to sexual offences,
harassment and sensitisation to the rights of vulnerable
groups including women. With the correct institutional
attitude, allied with a robust legal and policy framework,
the security of women can be effectively promoted and
protected.
Conclusion
Kenya has made significant strides in security sector reform
however sustainability requires constitutional fidelity,
multi-stakeholder cooperation, effective decentralisation
of government functions, robust public and community
engagement, and regional and international cooperation.
Kenya continues to face acute and complex security
challenges from domestic insecurity to transnational
crimes such as poaching, narcotic smuggling, piracy,
terrorism, money laundering and cybercrime.
Reforms are both most visible and urgent when there are
such challenges. Indeed, Kenyas Constitution was born
of a serious crisis and breakdown in the rule of law. It
is the responsibility of the Judiciary to decide matters
according to the law, the facts and the Constitution. The
balance involves considering the condition of the victims
without compromising the rights of the accused. As
the pendulum swings between the extremes within the
national security and human rights interface, the role of
the Judiciary is to ensure that balance, reasonableness
and fairness prevail. As such, the institution will always
be at the centre of strong criticism; this I concede is an
occupational hazard.
In the current circumstances of insecurity, I call on all
the participants at this forum to foment concrete action
on reform. Forums such as these are important, as the
challenge is not for a country, a region, or a continent;
it is one of global security. We are grateful to the African
Union and its partners for initiating and creating space
for this discussion. However, any sustainable and hence
effective security sector reform can only be achieved with
attention to grassroot dynamics and the local context.
Emphasise ought not to be the generation of norms and
principles by, for example, supranational institutions
and apex courts. Rather, the solutions for sustainable
security sector reform lie with those who most acutely
experience the ravages of insecurity. Those without voice
and without access who make up the vast majority of
our continents peoples must be given a voice through
processes such as this African Forum.
The world seems to be in the malevolent grip of increasing
insecurity and fading concepts of morality and fairness.
More so in this context, the law can never be static; it must
be malleable and responsive to evolving circumstances.
Fidelity to the rule of law means judicial authority will,
14
cognisant of evolving circumstances, impart justice to

all, reasonably, with fairness and without discrimination.
There must be recognition that incidents of insecurity
and crime are assaults on the democratic fibre of the
nation; they are assaults on the principles and values
enshrined in the Constitution. To tackle insecurity is to
promote justice and the rule of law, not to compromise
it. Sustainable security sector reforms are directly and
ineluctably linked to fidelity to the letter and spirit of the
Feature Case
Constitution by all security agencies and actors. Tasked

with ensuring that no rights and fundamental freedoms
are denied, violated, infringed or threatened, the Judiciary
is a central institution in the achievement of sustainable
reform.
15
Judges appointed to the specialized courts lack jurisdiction to determine matters reserved for the High Court
Article 165(3) (a) left no doubt that only the High Court had unlimited original jurisdiction in criminal and civil matters save those reserved for the two
special courts. Nowhere was it provided under the Industrial Court Act or the Environment and Land Court Act that those two courts could have jurisdiction
to deal with criminal matters other than those matters reserved for the specialized courts. If there had been such an intention, nothing would have been easier
than specifically stating so. They too therefore did not have jurisdiction to deal with matters reserved specifically for the High Court and the reasons for that were
obvious.
Karisa Chengo & 2 others v Republic
Court of Appeal at Malindi
Criminal Appeal No. 44, 45 & 76 of 2014
H M Okwengu, A Makhandia & F Sichale, JJA
May 8, 2015
The Court of Appeal has held that a judge appointed to any of the two specialised courts (Environment & Land Court-ELC and the
Employment & Labour Relations Court-ELRC) do not have jurisdiction to sit in courts other than the one he/she was specifically
appointed to. The Court of Appeal made the ruling clearing controversy on the issue. There have been two schools of thought that had
been the source of the great controversy which the Court of Appeal sought to clear. The first school of thought argues that the judges
of the three courts (High Court, Environment & Land Court and the Employment & Labour Relations Court) are of equal status, but
that the judge of one court cannot be a judge in any other court. In other words, if one were a judge of the High Court, he/she could
not sit over a matter in the ELRC or the ELC, and similarly if one were a judge of the ELRC or ELC, he/she could not sit as a judge of
the High Court, unless the judge was specifically appointed by the appointing authority, which is the President, to sit in another court.
The opposing school of thought is that, so long as a person has been appointed judge, he/she can sit in any of the three courts at the
discretion of the Chief Justice or Judicial Service Commission.
The appellants before the court had been charged in various magistrates courts with the capital offences of robbery with violence
contrary to section 296(2) of the Penal Code. They all pleaded not guilty and soon thereafter, their trials ensued. Subsequent thereto they
were all convicted and sentenced to death. They thereafter lodged appeals to the High Court. Meoli, J., a Judge of the High Court and
Angote, J. a Judge appointed to the ELC, a court with the equal status as the High Court jointly presided over the appeals. The appeals
were all dismissed, hence the instant appeals to the Court of Appeal.
In their appeals to the Court of Appeal, the appellants raised various grounds of appeal. However the two common grounds raised
were that the proceedings before the High Court as presided over by Meoli and Angote, JJ., were a nullity for want of jurisdiction and
that the State having failed to provide each of the appellants with legal counsel as per article 50(2)(h) of the Constitution, violated their
constitutional rights thus rendering the proceedings a nullity again.
While arriving at its decision, the Court of Appeal noted that the jurisdiction of the High Court as established under article 165 of the
Constitution was limited in two fronts. First, it could not exercise jurisdiction on matters reserved for the Supreme Court and matters
falling within the jurisdiction of the two courts contemplated in article 162(2). According to the court, it was clear that the High Court
no longer had original and unlimited jurisdiction in all matters as it used to have under the repealed Constitution. It could not deal
with matters set out under section 12 of the ELRC Act and section 13 of the ELC Act. Conversely, the court opined that the courts
contemplated in article 162(2) of the Constitution could not deal with matters reserved for the High Court.
The court observed that article 162(2) of the Constitution of Kenya, 2010 provided that; Parliament shall establish Courts with the status of the
High Court to hear and determine disputes relating to By using the words with the status of the High Court it was clear that the High Court was
not higher in hierarchy than the ELRC and ELC; they were courts of equal rank. By being of equal status, the High Court therefore did
not have the jurisdiction to superintend, supervise, direct, guide, shepherd and/or review the mistakes, real or perceived, of the ELRC
and ELC administratively or judiciously as was the case in the past. The converse equally applied, the court affirmed. At the end of the
day ELRC and ELC were not the High Court and vice versa.
16
It was however noted that emphasis was required that status was not the same thing as jurisdiction though the Constitution did not define
the word status. The intentions of the framers of the Constitution in that regard were obvious given the choice of the words they used;
that the three courts (High Court, ELRC and ELC) were of the same juridical hierarchy and therefore were of equal footing and standing.
That simply meant that the ELRC and ELC exercised the same powers as the High Court in performance of its judicial function, in its
specialised jurisdiction but they were not the High Court.
The court observed that it was the intention of the drafters of the Constitution to give the ELRC and ELC independence from the High
Court. That independence was essential to the role of the Courts as specialized courts charged with the responsibility of developing
coherent and evolving labour relations, environment and land jurisprudence. Looking at the provisions of section 359(1) of the Criminal
Procedure Code, the High Court was the only court with jurisdiction to hear and determine criminal appeals. Further, article 165(3)(a)
left no doubt that only the High Court had unlimited original jurisdiction in criminal and civil matters save those reserved for the two
special courts. Nowhere was it provided under the Industrial Court Act or the Environment and Land Court Act that those two courts
could have jurisdiction to deal with criminal matters other than those matters reserved for the specialized courts. If there had been such
an intention, nothing would have been easier than specifically stating so. They too therefore did not have jurisdiction to deal with matters
reserved specifically for the High Court and the reasons for that were obvious.
The court further noted that the Constitution provided for the mode of appointment of judges and their qualifications. It was within the
mandate of the Judicial Service Commission as provided for under Article 172(1) (a) of the Constitution to recommend to the President
the appointment of judges to preside over the said courts. According to the court, it was the court that a judge was appointed to, that
determined the kind of jurisdiction that judge was seized of.
The court opined that a judge appointed to any of the two specialized courts did not have jurisdiction to sit in courts other than the one
he/she was specifically appointed to. That was so because section 2 of the Judicature Act had defined judge to mean; the Chief Justice
or a puisne judge appointed under section 61 of the old Constitution (the equivalent of now article 166(5) of the current Constitution) or
a judge of the Court of Appeal appointed under section 64 of the old Constitution (the equivalent of now Article 166(4) of the current
Constitution). Notably, both the Constitution and the Act were silent with regard to a judge appointed in the two specialized Superior
Courts. Article 166(2) of the Constitution provided for the qualifications that one had to be appointed a judge of a Superior Court by
the President.
According to the Court, the law envisaged that the judges of the two specialized courts had to be different from judges of the High
Court in terms of experience and specialization, with different jurisdictions but the same status. When the vacancies for appointment of
judges for the courts were advertised it was left to an applicant to elect and apply to be a judge for the specific court he aspired to join.
Having elected that his future lay in ELRC or ELC, it would not have been desirable for such a judge to be forced into the High Court
to preside over criminal appeals.
The court further noted that once a judge was appointed, he took the oath of office to the specific court he had been appointed to. He is
also given an appointment letter specifying that he has been appointed as a judge of; the Supreme Court, the Court of Appeal, the High
Court, ELRC or ELC. Having been so appointed, it required no gainsaying that a judge could only exercise the jurisdiction conferred
to the court he was so appointed. In that regard, Angote, J. was specifically appointed a judge of the ELC and it was in that court and
that court alone that his jurisdiction lay. Having been so appointed by the President, the Chief Justice or indeed any other entity could
not lawfully move him to hear matters reserved for the High Court. The converse was again true, judges appointed to the High Court
and ELRC had no constitutional and statutory mandate to deal with ELC matters. Indeed, the Constitution expressly prohibited the
High Court, (which could only be constituted by a judge appointed to that court), from hearing matters to do with environment, land
and employment. The purported appointment of judges to do that which the Constitution prohibits was therefore inconsistent with
the Constitution. it then followed that Angote, J. having been appointed as a judge of the ELC could only perform the functions and
duties of the ELC and could not purport to discharge the functions and duties of the High Court because that was not the office or the
court to which he was appointed. One could not be appointed a judge nor could a Judge be appointed without portfolio. A judge was
appointed to a particular court and given that appointment and subsequent swearing in to that court, that judge could only perform the
duties of that court.
The court affirmed that the Chief Justice had powers to transfer judges within the courts they were appointed, create divisions for
administrative purposes, issue practice directions to control the running of courts. However, the court noted that he did not have the
powers to deploy and empanel judges to sit and preside over matters reserved for the courts they were not appointed to. The act of the
Chief Justice in appointing judges from the two specialized courts to hear matters specifically reserved for the High Court was conferring
jurisdiction on those judges through Judicial craft and innovation; the very vice that the Supreme Court warned against.
On the issue of the right to legal representation the court observed that the respective records showed that the appellants were never
inhibited at all in the prosecution of their cases during the trial. They actively participated in their trials and subjected to intense crossexamination of the witnesses availed by the prosecution. Therefore, no substantial injustice occasioned to the appellants by the States
failure to accord them legal representation. The court in conclusion allowed the appeal and ordered for a retrial.
17
The High Court has concurrent and or coordinate jurisdiction with the specialized courts (ELC & ELRC) on matters
touching on the Constitution
Patrick Musimba V National Land Commission & 4 Others
Petition No. 613 Of 2014
High Court of Kenya at Nairobi
I. Lenaola M. Ngugi G. V. Odunga L. Achode J. L. Onguto
June 5, 2015
Following the decision of the Court of Appeal, the High Court determined almost a similar issue. The main petition in the High Court
in Patrick Musimba V National Land Commission & 4 Others, Petition No. 613 Of 2014 was seeking to challenge the manner
in which compulsory acquisition of land had been conducted in Kibwezi Constituency and then secondly to challenge the process of
the Environmental Impact Assessment (EIA) for the construction of the Standard Gauge Railway (SGR). A preliminary objection was
raised by the respondents challenging the jurisdiction of the court on the ground that the court empowered to hear such matters was the
Environment and Land Court (ELC) established under the Environment and Land Court Act (Cap 12A) (the ELC Act) as read together
with article 162 of the Constitution. It was submitted that both Articles 162 and 165 of the Constitution limited the jurisdiction of the
High Court. It was argued that the presiding judicial officers empanelled by the Chief Justice were not qualified to handle the Petition as
they had not been appointed as ELC Judges. It was further argued that the jurisdiction of the court could only flow from the appointment
of the judge. According to the counsel, the bench as constituted was not constitutionally compliant.
The court held that both the High Court and the ELC Court had a concurrent and or coordinate jurisdiction and could determine
constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limited the
High Courts jurisdiction in that respects. The ELC when dealing with disputes concerning the environment and land could also deal with
claims of breaches of fundamental rights touching on the subject at hand. In matters Constitution the ELC had jurisdiction not just when
it involved clean and healthy environment but also land.
Though the High Court affirmed that it was bound by the Court of Appeals decision in Karisa Chengo & 2 others v Republic
pursuant to the well-known curial hierarchical principle of precedent, even if it were to hold the view that the Court of Appeals decision
was erroneous, it however sought to distinguish facts of Karisa Chengo & 2 others v Republic from those of the case before the High
Court. First, in Karisa Chengo & 2 others v Republic, the jurisdiction in question involved the exercise of Criminal jurisdiction which
was exclusive to the High Court and not the exercise of constitutional jurisdiction which was coordinate and or concurrent amongst the
three courts namely the ELC, the ELRC and the High Court. Secondly, Karisa Chengo & 2 others v Republic involved constitution
of a bench under section 359 of the Criminal Procedure Code; while at the present case it was an empanelment of a bench under article
165(4) of the Constitution.
The court observed that for purposes of article 165(4) judges appointed under the Constitution were those appointed to the High Court
and courts of even status. That article of the Constitution did not distinguish between judges. Indeed, article 161(1) of the Constitution
made a case for the collectivity of judges of the superior court. Flowing from the reasoning in Karisa Chengo & 2 others v Republic
case that judges as recruited were specialized in various fields, the Chief Justice could be constrained to consider a judges special field
before assigning him or her to the special bench so certified to consider a substantial question of law.
The court noted that article 165(4) of the Constitution created two circumstances. First is the certification by the Court that the matter
raises a substantial question of law under clause 3(b) or (d) of the Constitution. Thereafter the matter moves to the next level where the
Chief Justice assigned the hearing of the matter to an uneven number of Judges. The clause did not state that the judges were restricted
to High Court Judges. The Constitution clearly empowered the Chief Justice to assign Judges to hear the matter not to assign the Court
to hear the matter and he was at liberty to assign any Judge, as he found appropriate, that duty.
The High Court concluded that the ELC and the High Court had a concurrent and or coordinate jurisdiction on the matters raised in
the petition. The Chief Justice could thus have appointed either ELC Judges or High Court Judges or a mixture of both. He could have
appointed three or seven. He settled for five all from the High Court. Nothing indeed stopped the Chief Justice from creating a triangular
jurisdictional relationship in constitutional matters when he acted under article 165 (4), the court held.
18
Revisiting the Koinange-Gachoka Case: Reflections

on Contempt of Court under the Constitution of
Kenya, 2010
By Dudley Ochiel (Laws of Kenya Department)
Ochiel J Dudley*
1. Introduction
The purpose of this article is to examine the current status
of the law of contempt in Kenya. The essay explores the
concept and origin of contempt and examines the doctrine
under the Constitution of Kenya, 2010. It concludes by
suggesting areas for legislative intervention to bring
about the desired certainty, uniformity and predictability
in any law.
2. Background to the Koinange-Gachoka Case
In the month of June 2015, the Chief Magistrates Court at
Nairobi convicted Jeff Koinange (media personality) and
Tony Gachoka (political activist) for contempt of court.
The duo allegedly defied an interim injunction and carried
discussions on an ongoing case on the Jeff Koinange Live
JKLive talk show hosted by Mr Koinange. For their
trouble, the two were respectively convicted of the offence
of contempt of court and sentenced to imprisonment or
in the alternative to a fine of Shs 2 million.
The case arose out of a discussion on March 12, 2015,
when Mr Koinange hosted Mr Gachoka in his television
show, JKLive, during which the two discussed the Anglo
Leasing scandal in detail. As a result, on March 20, the
plaintiffs in the case filed a civil suit in the subordinate
court, alleging that defamatory words had been uttered
against them by linking them to the Anglo Leasing
scandal. The defendants in the suit included Mr Koinange
and Mr Gachoka. Apparently, in spite of the order Mr
Koinange invited Mr Gachoka on his talk show on April
1, 2015 where they repeated the defamatory allegations.
Mr Koinange and Mr Gachoka were summoned and
eventually arrested for failing to honour court summons.
The current conviction, which has been temporarily
stayed by the High Court, is a deja vu of sorts for Mr
Gachoka. In 1999 Mr Gachoka as editor and publisher
of The Post on Sunday was convicted of contempt
and sentenced by a seven-judge Court of Appeal bench
in Republic v Gachoka1. Mr Gachoka had published an
article Chesoni implicated in Goldenberg cover up:
An expose of judicial corruption in Kenya in which he
made allegations of high level corruption in the Kenyan
judiciary alleging that the then Chief Justice Zaccheus
Chesoni had received Shs 30 Million bribe to ensure that
the courts ruled in favour of one of the litigants in a case
concerning the ownership of the Kenya Duty Free shops.
The Attorney General instituted contempt of court
proceedings against him and his publication on the
Criminal Application No. Nai 2 of 1999
Laws of Kenya
grounds that the publications were sub judice and that

they were a scurrilous and unjustified attack upon the
court which were calculated to bring into disrepute and
contempt the administration of justice in Kenya. While
Mr Gachoka was sentenced to the maximum to six
months imprisonment without the option of a fine, the
Post on Sunday was fined Shs 1 Million, the payment of
which allegedly pushed the magazine out of business. Mr
Gachoka would later be awarded Shs 1 Million for the
violation of his fundamental rights and freedoms while
he was in prison serving the six month sentence.2
3. The Concept of Contempt of Court
The contempt of Court in general has been defined as any
conduct that defies the authority or dignity of a court ,
which interferes with administration of justice and is
therefore punishable by fine or imprisonment.3 Contempt
is also defined as an act of deliberate disobedience or
disregard for the laws, regulations, or decorum of a
public authority, including courts or legislative bodies.
It has been said elsewhere that contempt as a legal
terminology refers to any wilful disobedience to, or
disregard of, a court order or any misconduct in the
presence of a court. The term also refers to action that
interferes with a judges ability to administer justice or
conduct that insults the dignity of the court.4
Lord Diplock thought of the term Contempt of court5
as a generic term descriptive of conduct in relation to
particular proceedings in a court of law which tends to
undermine that system or to inhibit citizens from availing
themselves of it for the settlement of their disputes.
Elsewhere, the expression contempt of court refers
to a body of rules, principles, procedures and practices
enabling the courts to protect the administration of
justice through the use of summary processes.6 In the
United States of America, contempt of court has been
defined as a wilful act, omission, or statement that tends
to impair the authority or impede the functioning of a
court.7
Despite the absence of a commonly accepted definition
of the term, there is consensus on the origins of the
2
Tony Gachoka v Attorney General [2013]eKLR
3
Bryan A Garner, Blacks Law Dictionary (9th edn, West Publishing
Company: St Paul 2009) 31
4
Miller C.J., Contempt of Court, 2nd edition, Clarendon Press,
Oxford, 1989, p. 3
5 Dicta of Lord Diplock A-G v Times Newspapers Ltd [1974] A.C. 273 at 307
6
A T H Smith, Reforming the New Zealand Law of Contempt of
Court, An Issues/Discussion Paper, University of Wellington
7
In re Contempt of Robertson (Davilla v Fischer Corp), 209 Mich.
App. 433, 436 (1995).
Laws of Kenya
concept from the common law ideals of supremacy and
independence of the judiciary.8 The concept has become
so widespread that it has been described as the Proteus
of the legal world, assuming an almost infinite diversity
of forms.9
The justification of the contempt law is that in
democratic states like Kenya, citizens rely on the courts
for the impartial decision of disputes as to legal rights
and obligations. Once a dispute has been submitted to a
court of law, citizens should be able to rely on the ability
of the court to decide it impartially, independently and
according to law.10 As a result, any activity which offends
the dignity and authority of judicial tribunals affects the
fair administration of justice and therefore ought to be
punished.11
The Supreme Court of Kenya has in the case of Board
of Governors, Moi High School, Kabarak v Malcolm
Bell12 typified the power to punish for contempt as
one of the inherent powers of the court which include
such powers as enable the Court to regulate its internal
conduct, to safeguard itself against contemptuous or
disruptive intrusions from elsewhere, and to ensure
that its mode of discharge of duty is conscionable, fair
and just. These endowments enable a court to remain
standing, as a constitutional authority, and ensure the
courts internal mechanisms are functional. Without this
power, protection of citizens rights and freedoms would
be virtually impossible. Courts of law would be reduced
to futile institutions spewing forth orders in vain.13
In this regard, the law of contempt is essentially
concerned with the maintenance of public confidence
in the administration of justice by the courts of law. The
law does not exist to protect the personal dignity of the
judiciary nor the private rights of parties or litigants since
contempt challenges the fundamental supremacy of the
law and not just the dignity of the court.14 Obedience of
court orders is therefore a primal part for the sustenance
of judicial authority and dignity. Disobedience of court
orders on the other hand not only undermines the very
foundation of the rule of law,15 but also erodes the dignity
and authority of the courts.16
It is justice itself that is flouted by contempt of court,
not the individual court or judge who is attempting to
administer it.17 The principle has been captured locally by
8
Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court
Finding the Limit, 2 NUJS L. Rev. (2009) at 56
9
J. Moskovitz, Contempt of Injunctions, Civil and Criminal (1943)
43 Col. LR 780.
10
Shah v Shah [1989] KLR 220
11
Times Newspaper ibid
12
[2013] eKLR
13
Akber Abdullah Kassam Esmail v Equip Agencies Ltd [2014] eKLR
14
Johnson v Grant [1923] SC 789 at 790
15
Abbeybarn Limited v Infinity Gemstones Ltd [2000] KLR 248.
16
Commercial Bank of Africa Limited v Ndirangu [1992] KLR 30
17
See Teachers Service Commission v Kenya National Union of
Teachers [2013] eKLR; Also see African Management Communication
19
Ibrahim, J (as he then was) when he said, It is essential

for the maintenance of the rule of law and order that the
authority and the dignity of our Courts are upheld at all
times.18
As a result, obedience of Court orders is not optional,
rather, it is mandatory and a person does not choose
whether to obey a court order or not.19 As Romer J held
in Hadkinson v Hadkinson20 it is a plain, unqualified and
uncompromising obligation of every person against,
or in respect of, whom an order is made by a court of
competent jurisdiction to obey it unless and until that
order is discharged. Consequently, court orders must be
obeyed unless they are discharged on application, appeal
or review. The obligation to obey court orders extends
to orders which may in the opinion of parties be void or
irregular, improperly obtained or too wide in its terms.21
It has been bluntly said that a court order is not a mere
suggestion of point of view, but is a directive that is issued
after much thought and with circumspection.22
Based on the foregoing, courts take applications for
contempt of court seriously and urgently. More often, the
court suspends any other proceedings until the matter is
dealt with and if the contempt is proven to punish the
contemnor or demand that it is purged or both. For
instance an alleged contemnor will not be allowed to
prosecute any application to set aside orders or take any
other step until the application for contempt is heard.
As a general rule contemnor has no right of audience
in any court of law unless he is punished or purges the
contempt.23 The position as to the right of a contemnor to
be heard is however starting to get obsfucated.
In a recent case, the High Court held that a person who
is in contempt of or alleged to be in contempt is entitled
to be heard in the proceedings as the right to be heard
is a Constitutional right which should not be limited.
That it is only by hearing that person that the court
can determine whether he/she deserves the prayers or
orders being sought in her application to discharge the
injunction.24 It is not clear what the court meant by
this ruling. Particularly, one cannot tell if the court was
referring to the right to a fair trial (of accused persons)
under Article 25 which is absolute or the right to a fair
hearing which is not said to be absolute and can therefore
be justifiably limited under Article 24.
International Limited v Joseph Mathenge Thuo [2013] eKLR.
18
Econet Wireless Kenya Ltd v Minister for Information &
Communication of Kenya [2005] 1 KLR 828
19
Shimmers Plaza Limited v National Bank of Kenya
Limited [2015] eKLR
20
[1952] ALL ER 567
21
Wildlife Lodges Ltd v County Council of Narok [2005] EA 344;
Shah & Another t/a Lento Agencies v National Industrial Credit Bank Ltd
[2005] 1KLR 300; Kenya Tea Growers Association v Francis Atwoli [2012]
eKLR
22
TSC v KNUT supra note 13
23
Econet Wireless Ltd v Minister For Information and Communication
[2005] eKLR
24
John Njoroge Gichora v Gideon Numa [2015] eKLR
20
4. The Troublesome Distinction Between Civil and

Criminal Contempt
In common law jurisdictions, there are broadly two
types of contempt: criminal or civil.25 According to
Halsburys Laws of England criminal contempt consists
of words and acts which obstruct or tend to obstruct or
interfere with the administration of justice. Contempt in
procedure, otherwise known as civil contempt, consists of
disobedience to the judgements, orders or other process
of court and involving a private injury.26 Contempt can
also be categorised as direct or indirect or as facie curiae
(in front of the court) or ex facie curiae (outside the court).
Criminal contempt occurs when the contemnor actually
interferes with the ability of the court to function properly.
Examples include being rude, yelling at the judge,
threatening a judge or witness, causing a disturbance
in the courtroom and disrespect to the decorum of the
court. Criminal contempt proceedings, are prosecuted
to preserve the power and vindicate the dignity of the
court. Civil proceedings on the other hand are remedial
in nature and are applied to enforce the rights of private
parties by motivating an accused contemnor into doing
what he is required to do by the court order.27 Sometimes,
the same act or failure to act by a party can justify either
civil or criminal contempt proceedings. Similarly, the
distinction between civil and criminal contempt can be
confusing because it has nothing to do with whether the
proceedings are criminal or civil.28
Section 72(1) of the repealed Constitution provided that
no person could be deprived of his personal liberty save
as authorized by law in execution of the order of the High
Court or the Court of Appeal punishing him for contempt
of that court or of another court or tribunal. Though the
Constitution of Kenya, 2010 has no similar provision, the
power to punish for contempt can be readily discerned
from its provisions.
5. Contempt of Court Under the Constitution of Kenya,
2010
In Kenya, the power to punish for contempt is an
expression of the sovereignty of the people. The preamble
to the Constitution of Kenya, 2010 recognizes the
aspirations of all Kenyans for a government based on
the essential values of human rights, equality, freedom,
democracy, social justice and the rule of law. The rule of
law which is recognised as a National Value and Principle
of Governance under Article 10, is the core value sought
to be protected by contempt law through the ordered
functioning of the court.
25
International Seminar on Promoting Freedom of Expression With
the Three Specialised International Mandates, Background Paper on Freedom
of Expression and Contempt of Court
26
Halsburys Laws of England (4th edn, 1974) Vol 9, para 2.
27
Laura Thornton, Fines, Imprisonment or Both: Civil v Criminal
Contempt, Virginia Lawyers Magazine, February 2001
28
Nijjar, Manjit Singh, An Appraisal of the Law of Contempt in
India, PhD Thesis, Punjabi University, Patiala, 2010
Laws of Kenya
Article 1 accordingly recognizes that all sovereign power

belongs to the people of Kenya, and is delegated to the
Judiciary and independent tribunals, and shall be exercised
at the national and county levels only in accordance with
the Constitution. Article 159(1) confirms that judicial
authority is derived from the people and vests in, and
shall be exercised by, the courts and tribunals established
by or under the Constitution.
Despite the constitutional underpinning of the power
to punish for contempt deriving from the elevation
of the rule of law to a national value and a principle of
governance as well as the recognition of judicial authority
as the expression of the sovereign power of the people of
Kenya, the contempt of court in Kenya largely retains its
common law ancestry.
Before the promulgation of the Constitution of Kenya,
2010, section 5(1) of the Judicature Act, Cap 8 was mainly
the substantive law on contempt of court. The Section
provides:
5.(1) The High Court and the Court of Appeal shall have
the same power to punish for contempt of court as is for
the time being possessed by the High Court of Justice in
England and that power shall extend to upholding the
authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment
for contempt of court shall be appealable as if it were a
conviction and sentence made in exercise of the original
criminal jurisdiction of the High Court. (Emphasis
supplied).
In fact there is a school of thought which is informed by a
narrow interpretation of the preceding section and which
insists that only the High Court and Court of Appeal have
the power to punish for contempt.29
In Mohamed Saleh Mahdi v B.M. Ekhubi,30 Odero J held that
Section 5 makes it very clear that the power to punish for
contempt rests exclusively with the High Court and the
Court of Appeal.
This cannot be true as section 5 of the Judicature Act, Cap
8 is only conclusive to the power of the High Court and
Court of Appeal to punish for contempt. Other courts,
including the Supreme Court, the specialist courts and
the subordinate courts, can punish for contempt as well.
To begin with, section 63 of the Civil Procedure Act, Cap
21 provides that:
63. In order to prevent the ends of justice from being
defeated, the court may, if it is so prescribed:
...
(c) Grant a temporary injunction and in case of
disobedience convict the person guilty thereof to prison
and order that his property be attached and sold
29
See Odero Js judgment in Mohamed Saleh Mahdi v B.M. Ekhubi,
the Resident Magistrate Mombasa [2014] eKLR
30
[2014] eKLR
Laws of Kenya
The legislative prescription foreseen in the introductory
phrase to the Section 63 has been made through Order
40 Rule 3, of the Civil Procedure Rules, 2010. The Rule
provides that in cases of disobedience, or of breach of any
such terms, the court granting an injunction may order
the property of the person guilty of such disobedience or
breach to be attached, and may also order such person to
be detained in prison for a term not exceeding six months
unless in the meantime the court directs his release. All
applications under Order 40 Rule 3 are to be made by
notice of motion within the suit.
Court is defined to mean the High Court or a subordinate
court, acting in the exercise of its civil jurisdiction. It
emerges therefore, that a subordinate court exercising
its civil jurisdiction can punish disobedience contempt
flowing from temporary injunctions. Accordingly,
subordinate courts have the power to convict for civil
contempt arising from the disobedience of temporary
injunctions. The court can convict the contemnor to
prison or order the sale of their property. This, it seems,
was the kind of power the court exercised in convicting
Koinange and Gachoka. It can be said the subordinate
court was rightly within its jurisdiction in convicting the
duo for contempt of court.
What is not clear from the law is whether the option
of a fine was available to the court. There is no express
indication of the power of the court to order the
payment of a fine. Nevertheless, the discretionary
phrase unless in the meantime the court directs his
release ought to be interpreted to give the court
the power to attach conditions to the release of the
contemnor. The option of a fine is one possible
condition.
However, any criminal contempt or civil contempt
arising from circumstances other than a temporary
injunction the subordinate courts can only be punished
by the High Court. This interpretation is consistent with
the provisions of section 5 of the Judicature Act, Cap 21
in which the power of to punish for contempt is extended
to upholding the authority and dignity of subordinate
courts.
Aside of these two statutes, other laws provide for the
punishment of contempt by other courts. Section 28(4) of
the Supreme Court Act, 2011 gives the Supreme Court the
power to punish for contempt. Article 162(2) provides for
the establishment of specialist courts with the status of
the High Court to hear and determine disputes relating to
employment and labour relations on one hand and on the
other hand the environment, use, occupation and title to
land. It is however a point for discussion, whether these
specialist courts established under the Constitution, and
which are of the same status as the High Court, have
similar powers to those of the High Court to punish for
contempt.
21
Indeed in Teachers Service Commission v Kenya

National Union of Teachers31 the Employment and
Labour Relations Court ruled suo moto on its power to
punish for contempt. The court, held that the similarity
of status between it and the High Court signified a
similarity of powers between it and the High Court in all
matters arising out of employment and labour relations.
As a result, the term High Court in Section 5(1) of the
Judicature Act, Cap 8 would therefore include references
to the Employment and Labour Relations Court and the
Environment and Land Court. It is therefore apparent that
the specialist courts have the similar powers as the High
Court to punish for contempt, and that the power extends
to upholding the dignity and authority of subordinate
courts in employment and labour relations as well as
environment and land cases. Similarly, the legislation
establishing the courts have various provisions on the
power to punish contempt arising from the proceedings
of those courts.
Section 20 of the Industrial Court Act, 2012 provides
that the court may for the purpose of dealing with any
matter before it, order in writing require any person to:
furnish such particulars in relation to such matters as it
may require; attend before it; give evidence on oath or
otherwise; and produce any relevant documents. The
section further provides that a person who without
reasonable cause fails to comply with an order duly given
or is required by an order to furnish information, and
who makes any statement or furnishes any information
which the person knows, or has reasonable cause to
believe, to be false or misleading in material particular,
commits an offence and shall, on conviction, be liable to
a fine not exceeding two hundred thousand shillings or
to imprisonment for a term not exceeding six months or
to both.
On its part, Section 29 Environment and Land Court
Act, 2011 provides that any person who refuses, fails
or neglects to obey an order or direction of the Court
given under the Act, commits an offence, and shall, on
conviction, be liable to a fine not exceeding twenty million
shillings or to imprisonment for a term not exceeding
two years, or to both.
One can easily perceive that there is no express
provision on the procedure for the prosecution of these
misdemeanours relating to the contempt of the specialist
courts. There are at least three possibilities on the
procedure for the prosecution of the offence of contempt
of the specialist courts.
The first and most plausible scenario is that the task of
prosecution of contempt of the specialist courts falls
to the Director of Public Prosecution. Under Article
157 of the Constitution all state powers of prosecution
are bestowed upon the DPP. Specifically, the DPP has
31
Ibid
22

powers under Article 157(6) to (a) institute and undertake

criminal proceedings against any person before any court
(other than a court martial) in respect of any offence
alleged to have been committed. If these offences are to
be prosecuted by the DPP, the cases would ironically end
up at the magistrates court in the first instance. Its an
interesting detail of law that the specialist courts though
bearing the status of the High Court would rely on the
subordinate courts to uphold their authority and dignity.
The second and less likely scenario is that the High Courts
jurisdiction under Section 5 of the Judicature Act, Cap 8
extends to the prosecution of the offences of contempt of
the specialist courts. This argument is however difficult
to accept as the specialist courts are of the same status
as the High and are not subordinate courts. The power
of the High Court to punish contempt under the section
is expressed to extend to upholding the authority and
dignity of subordinate courts. The specialist courts are
not subordinate courts.
The third scenario which involves the specialist court
presiding over prosecution for contempt of itself is the
most improbable. While the specialist hold the same status
as the High Court and should therefore logically have
similar powers to the High Court, it should be noted that
the powers exercised by the High Court under section 5
are derived from the common law dependent and depend
on a summary procedure. To the contrary, the offences of
contempt of the specialist courts are statutory offences
whose prosecution must be subjected to a full criminal
trial and accorded a fair trial.
It emerges therefore that the misdemeanors comprising
contempt of the specialist court are prosecutable by the
Director of Public Prosecution and are subject to the
procedure outlined in the Criminal Procedure Court and
subject also the requirements of the Constitution on fair
hearing and fair trial respectively.
6. The Procedure of Contempt Law in Kenya
Section 5(1) of the Judicature Act, Cap 8 subjects the
proceedings of contempt of court in Kenya for the time
being to the power possessed by the High Court of Justice
in England. The law governing the justices in England
previously was subject to common law and Order 52 of
the Supreme Court Rules. However, England enacted
the Contempt of Court Act, 1981 which supplements its
common law contempt of court offences. The prevailing
law of contempt in England is now found in the Contempt
of Court Act, 1981 and in Part 81 of the Civil Procedure
(Amendment No. 2) Rules, 2012 that replaced Order 52
of the Supreme Court Rules on contempt proceedings in
the Supreme Court of England.
The Kenyan High Court and Court of Appeal have
accordingly interpreted and applied the prevailing law of
contempt in Law of England in several recent decisions.32
32
Christine Wangari Gachege v Elizabeth Wanjiru Evans [2014]
eKLR; Shimmers Plaza Limited v National Bank of Kenya Limited [2015]
eKLR
Laws of Kenya
In Christine Wangari Gachege v Elizabeth Wanjiru Evans

[2014] eKLR the Court of Appeal affirmed Section 5 of the
Judicature Act and Section 63(c) of the Civil Procedure
Act as the statutory basis of contempt of court in so far as
the Court of Appeal and the High Court are concerned.
The court interpreted Section 5 to hold that applicable law
in contempt proceedings in Kenya is the law applicable
in the High Court of Justice in England at the time the
application for contempt is filed.33
It merits clarification, however, that the Court of Appeals
obiter dictum in Christine Wangari Gachege34 to the extent
that Section 5 of the Judicature Act is the only statutory
basis of contempt of court law in so far as the Court of
Appeal and the High Court are concerned, is erroneous.
In reality, the High Court has additional powers to punish
disobedience of temporary injunctions in the form of
imprisonment or attachment and sale of the contemnors
property under Section 63 (c) of the Civil Procedure Act,
Cap 21.
Nevertheless, Part 81 of the Rules provides for
proceedings for four different forms of violations: breach
of a judgment, order or undertaking to do or abstain from
doing an act; interference with the due administration
of justice (in criminal proceedings) under Rule 81.11;
contempt in the face of the court, under Rule 81.16; and
making false statement of truth or disclosure statement.
under Rule 81.17.
The Rules provide for the procedure for all contempt
proceedings. For instance, Rule 81.9 provides that no
contempt proceedings may be undertaken in committal
for breach of a judgment, order or undertaking to do
or abstain from doing an act unless a warning to the
person required to do or not do the act in question that
disobedience to the order would be a contempt of court
punishable by imprisonment, a fine or sequestration of
assets, has been prominently displayed, on the front of
the copy of the judgement or order served. While this is
the only category of committal that requires service of
an order endorsed with a penal notice, the requirement
for service can be dispensed with. Additionally, as a
general rule under Rule 81.6, the mode of service must be
personal service but the court has discretion to dispense
with the requirement for personal service.
Rule 81.8 outlines the situations in which the court may
dispense with personal service. First, in the case of a
prohibitory judgment or order, the court may dispense with
service of a copy of the judgment or order in accordance
if it is satisfied that the person has had notice of it by
being present when the judgment or order was given or
made; or by being notified of its terms by telephone, email
or otherwise. Second, in the case of any (not necessarily
prohibitory) judgment or order, the court may if it thinks
it just to do so either dispense with service or make an
order in respect of service by an alternative method or at
an alternative place.
33
Ibid at
34 Ibid
Laws of Kenya
23
In Justus Kariuki Mate v Martin Nyaga Wambora35 the

Court of Appeal acknowledged the move from the
position that a prohibitory order along with a Penal Notice
must be personally served on a person before contempt
can be proved. Lenaola J in the case of Basil Criticos v
Attorney General36 perceived an additional ground for
dispensation with the requirement for personal service;
... where a party clearly acts and shows that he had knowledge
of a court order, the strict requirement that personal service
must be proved is rendered unnecessary. Similarly, the
requirement of notice of the prohibitory judgement or
order would also be satisfied where a party is represented
in court by counsel who was present in court when the orders
were made.37
in the proceedings in which the judgment or order was

made or the undertaking given. The Application Notice
must set out fully the grounds on which the committal
application is made and must identify separately and
numerically, each alleged act of contempt and be
supported by affidavit(s) containing all the evidence
relied upon. The application notice and the affidavit or
affidavits must be served personally on the respondent
unless the court dispenses with service if it considers
it just to do so, or the court authorizes an alternative
method or place of service. It is clear from this summary
that leave, now called permission is not required where
committal proceedings relate to a breach of a judgment,
order or undertaking.
Therefore, knowledge of the judgment or order by the

alleged contemnors advocate therefore suffices for
contempt proceedings. There is an assumption which
is not unfounded and which is irrefutable that when
an advocate appears in court on instructions of a party,
then it behoves him to report back to the client all that
transpired in court that has a bearing on the clients case.38
This presumption is in line with the dicta of the Canadian
Supreme Court decision in the case of Bhatnager v Canada
(Minister of Employment and Immigration,39 where it was
held that a finding of knowledge on the part of the client
may in some circumstances be inferred from the fact
that the solicitor was informed. Similarly, in the United
States case of United States v Revie40 it was held that the
defendant had adequate notice of a show cause order
because his attorney was on notice.
That position must be contrasted with the requirement

in Rules 81.12 on committal for interference with the due
administration of justice and 81.17 on committal for making
a false statement of Truth or disclosure statement where
permission or leave is required. There is no indication as
to the applicable procedure for committal for contempt
in the face of the court, in criminal cases.
While there is consensus that the threshold is quite high

as contempt proceedings are of a criminal nature and
involve, if proved, loss of liberty,41 there are conflicting
decisions especially from the Court of Appeal on the
standard of proof applicable to contempt proceedings. In
Mutitika v Baharini Farm Limited42 the Court of Appeal
held that in our view, the standard of proof in contempt
proceedings must be higher than proof on the balance of
probabilities, almost but not exactly, beyond reasonable
doubt. The standard of proof beyond reasonable doubt
ought to be left where it belongs, to wit, in criminal cases
and it is not safe to extend it to an offence which can be
said to be quasi-criminal in nature. In a more recent case
the Court of Appeal held that the standard of proving the
facts relied is beyond reasonable doubt.43
The Rules also outline the other details for committal
proceedings including the requirement for leave. Under
Rule 81.4 in proceedings for breach of judgment, order
or undertaking the Application Notice should be made
35
[2014] eKLR
36
[2012] eKLR
37
Shimmers Plaza Limited supra note 25
38 Ibid
39
[1990] 2 SCR 217
40
834 F.2d 1198, 1203 (5th Cir. 1987)
41
Sam Nyamweya v Kenya Premier League Limited [2015]
eKLR; citing Ex Parte Lengely [1879] 13 Ch D/10 (CA)
42
[1985] KLR 229 at 234
43
Shimmers Plaza Limited ibid
7. Contempt of Court, the Common Law and

Transformative Constitutionalism
The law on Contempt of court is one of those vestiges
of the laws Kenya adopted from its colonisers, which
quite unfortunately has yet to be amended with a view to
bringing it in tandem with the constitution of Kenya 2010.
This and any other such statutes need a total overhaul
to align them to our endigenous current constitution.44
Additionally, the over-reliance on the common law in
jurisdiction with a trasformative constitution can be
problematic. Kwasi Prempeh has noted the problematic
application that the common laws doctrinal traditions,
philosophic underpinnings, and styles of reasoning and
interpretation carries with it elements and tendencies that
do not accord with the transformative vision reflected in
modern bills of rights.45
The
incompatibility of the common law with
transformative constitutionalism
has also been
the concern of Davis and Klare in Transformative
Constitutionalism and the Common and Customary
Law in the South African context46 The authors express
the apprehension that, in South Africa, the nation could
not progress to social justice with a legal system that
rigs a transformative constitutional superstructure onto
a common law base inherited from the past.47 They
therefore propose a transformative methodology
informed by the Bill of Rights and specifically by the
constitutional aspiration to lay the legal foundation
44
Shimmers Plaza supra note 25
45
Prempeh H K , The Common Law in a Constitutional
Era, in Marbury in Africa: Judicial Review and the Challenge of
Constitutionalism in Contemporary Africa, Vol. 80:1 Tulane Law Review 2006
at pp 72
46
47
(2010) 26 SAJHR at 405

Ibid at 411
24

of a just, democratic and egalitarian social order. The

transformative methodology would take a contextsensitive view of the case from the perspective of all
pertinent ethical and socio-economic considerations48.
The circumspection to the application of the common
law in the toolbox of a Judiciary charged with
interpreting a transformative constitution has been
echoed by the Mutunga CJ of the Supreme Court who
has deprecated the mindless references to the common
law in interpreting the constitution. In Communications
Commission of Kenya v Royal Media Services Limited49
where he expressed the caution that unthinking deference
to cannons of interpreting rules of common law, statutes,
and foreign cases can subvert the theory of interpreting
the constitution.
8. Conclusion
As this paper has demonstrated, the continued existence of
Section 5(1) in our statute books has generated confusion
and imposed an unwieldy burden on our courts. The
High Court, the Court of Appeal and law practitioners
have the unenviable duty to ascertain the applicable law
of contempt in the High Court of Justice in England, at
the time an application is brought.50 It has been said that
the unacceptable status that courts in Kenya must make
reference to the laws of England in dealing with matters
of contempt of court has led to the unsatisfactory state of
the law of contempt of court.51 Similarly, there is a need
to align contempt of court to the constitution and the Bill
of Rights .
At the same time, the courts have been criticised for using
the power to punish for contempt to squelch legitimate
public criticism of judicial conduct.52 The case of Rev
Jackson Kipkemboi v Samuel Muriithi Njogu53 will
forever remain as a shameful stain on the reputation
of Kenyas judiciary. In that case the Plaintiffs through
their advocate a Mr Zebedee Elisha Ongoya made an
application for the presiding Judge to disqualify herself
from the case on the ground that they would not be
accorded a fair hearing, based on the judges previous
conduct in the proceedings.
This routine application for recusal was not taken lightly
by the learned Judge who not only declined to recuse
herself, but also proceeded to commit the plaintiff and his
advocate to one month imprisonment. According to the
judge, the conviction was meant to be a clear warning to
other beneficiaries of the justice system who have made
it their ambition to tarnish the names of judicial officers and
pervert the course of justice. Theres no need to say more
than that Article 159(1) confirms that judicial authority
48
Ibid at 412
49
[2014] eKLR at 357-358
50
Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others
[2014] eKLR; In the Matter of an Application by Gurbaresh Singh & Sons Ltd
[1983] eKLR
51
Republic v County Council of Nakuru ex parte Edward Alera t/a
Genesis Reliable Equipment & 3 others [2011] eKLR
52
Patricia Kameri Mbote and Migai Akech, Kenya Justice Sector and
the Rule of Law, 2011 Discussion Paper Open Society Initiative for Eastern
Africa at pp. 8
53
HCCC No 1237 of 1999
Laws of Kenya
is derived from the people and vests in, and shall be

exercised by, the courts and tribunals established by or
under the Constitution.
The judiciary should always remind itself, whether acting
on application or suo moto, that contempt proceedings
have nothing to do with the integrity of the judiciary
or the court or even the personal ego of the presiding
judge. It should also be understood by all parties that the
proceedings are not about placating the applicant who
moves the court by taking out contempt proceedings.
Rather, contempt of court proceedings are an expression
of the sovereignty of the people of Kenya and serve to
preserve and safeguard the rule of law, which is a national
value and principle of governance.
I recommend the speedy conclusion of the pending
Contempt of Court Bill, 2013 to provide a legal framework
for contempt of court proceedings in this jurisdiction.
The Bill should provide a clear statement of the definition
of contempt of court and the procedure for dealing
with contempts in specific situations. The procedures
should include the appropriate burden and standard of
proof as well as sufficient safeguards to limit the potential
for abuse. To uphold the freedom of expression and the
media, and to minimise the kind of criticism generated
by the Koinange-Gachoka cases, the Bill should outline
clear guidelines to guide the media to understand what
publication may constitute contempt. Similarly, the Bill
should impose clear limits on the penalties which may be
imposed for contempt of court as well as sufficient rules
as to who may commence and discontinue contempt
proceedings. We expect that the Bill include a statement
on contempt of court as a justifiable limitation of
fundamental freedoms and rights under Article 24 of the
Constitution.
*The writer is an Advocate of the High Court of Kenya and a Legal Researcher at
Kenya Law
Laws of Kenya
25
26

Parental Responsibility and Child Maintenance in

Kenya
By Sikuta Wanjala (Laws of Kenya Department)
Introduction
arental Responsibility and

Child Maintenance forms
the key jurisdictional duties
of the Children Court in Kenya.1 Indeed, its part of the
matters that the court deals with in its day to day business.
In most cases coming before the court, either parent will
have absconded his or her parental responsibility or both
of them, and this therefore creates a lot of problems with
regard to the care, protection, growth and welfare of the
child hence the motivation behind this study.
Parental Responsibility refers to the legal duty that a
parent has to his/her child. While biological mothers
automatically have parental responsibility, not all
biological fathers do.2 Those who are not automatically
given parental responsibility need to apply for it or
risk losing their say in how their child is raised.3 Child
maintenance on the other hand is the provision of help
with a childs everyday living costs.4 This includes aspects
like food and clothes, and helping to provide a home for
the child or children.5 Child maintenance is not the only
way a parent can contribute, but it is a very important
one.6 Child maintenance is usually money that the parent
without the main day-to-day care of a child pays to the
other parent.7 But, sharing the care of the children and
buying things directly for them can also be included in
family-based child maintenance arrangements, if both
parents agree to it.8 The Children Act, 2001 defines
parent as the mother or father of a child and includes
any person who is liable by law to maintain a child or is
entitled to his custody.9 Parental responsibility in the Act
is defined as all the duties, rights, powers, responsibilities
and authority which by law a parent of a child has in
relation to the child and the childs property in a manner
consistent with the evolving capacities of the child.
Legal Position Before The Constitution of
Kenya, 2010
Previously in our laws, the mother was deemed to have
parental responsibility over the child at first instance.10
Section 24 (3) of the Children Act, 2001 provides that
where the childs father and mother were not married to
each other at the time of the childs birth and have not
subsequently married each other, the mother shall have
parental responsibility at the first instance. Under Section
25, the father only acquires parental responsibility for the
child if he applies to the court for it, acquire it through an
agreement with the mother, has accepted paternity or has
maintained the child or lived with the child for 12 months.
This shows that the father does not automatically acquire
the responsibility towards the child.11 In many cases,
such children are not maintained by their fathers because
of the lack of parental responsibility on the part of the
fathers hence this puts such children in a lot of hardships.
Legal Position Under The Constitution of

Kenya 2010
Parental Responsibility is automatic to both biological
parents regardless of their marital status.12 Every child
has the right to parental care and protection including
parental responsibility of the mother and father to
provide for the child whether they are married or not.
The position of joint responsibility of both parents
whether married to each other or not, is guided by Article
53 (e) of the Constitution which provides that every child
has a right to parental care and protection which includes
equal responsibility of the mother and father to provide
for the child, whether married to each other or not.13
This provision was upheld in a landmark case of Zak
& Another vs. The Attorney General & Another
(2013)eKLR.14 In this case, the petitioner challenged
the Constitutionalism of section 24(3) of the Children
10
Action for Children in Kenya. Support and Maintenance of a child born out of wedlock and the legal position in Kenya. Accessed at www. actionchildren.or.ke on 6th April, 2015.
11
Ibid.
ing-up/a-short-guide-to-parental-responsibility/:Accessed on
12
Hon. Anthony Mwicigi, Principal Magistrate, Milimani
3oth March, 2015.
Law Courts. A Discussion on Parental Responsibility and the
3
Ibid.
Constitution. A paper presented at the Law Society of Kenya
CLE Seminar in Nyeri. Accessed on www.lsk.or.ke on 6th April,
4
http://www.cmoptions.org/en/maintenance/:Accessed
2015.
on 3oth March, 2015.
13
Action for Children in Kenya. Support and Mainte5
Ibid.
nance of a child born out of wedlock and the legal position in Ke6
Ibid.
nya. Accessed at www. actionchildren.or.ke on 6th April, 2015.
7
Ibid.
14
See Zak & Another vs. The Attorney General & Another
8
Ibid.
(2013)eKLR. Accessed at www.kenyalaw.org/caselaw/cases/
9
Children Act, 200, Section 2.
view/89114 on 6th April, 2015.
Taita Taveta Women Representative, Joyce W. Lay being presented with Kenya Laws publications by
Longet Terer- Ag. Chief Executive Officer
Laws of Kenya
1 See the Children Act, 2001, Section 73.

2
http://www.oneplusone.org.uk/content_topic/break-
Laws of Kenya
Act and section 25.15 She argued that these sections
infringed Article 27(1) of the Constitution which states
that every person is equal before the law and has a
right to equal protection and equal benefit of the law.
In line with that argument, Mumbi Ngugi J stated that
it was unconstitutional for the Children Act to place the
responsibility of the children born outside marriage on
the mother only.16 In this regard, the provisions of section
90(a) and (e) of the Children Act were unconstitutional
considered alongside the provisions of section 24(3)
which places the responsibility of the child on the mother
at the first instance where the mother and the father are
not married.17
The judge then proceeded to find that in line with the
provisions of section 7 of the Sixth Schedule of the
Constitution, the Children Act must be read as imposing
parental responsibility on both biological parents,
whether they were married to each other or not, at the
time of the childs birth. The court therefore found the
above mentioned provisions of the Childrens Act to be
unconstitutional hence null and void.18 The Court further
emphasised the fact that; any law including customary
law that is inconsistent with the Constitution is void to
the extent of inconsistency and thus, such provisions
hindering the best interest principle on any child to be
achieved should be struck out.19
Acquisition of Parental Responsibility under

In Vitro Fertilization (IVF) Technology in
Kenya
The Children Act, 2001 defines parent as the mother
or father of a child. The term includes any person who
is liable by law to maintain a child or is entitled to his
custody. While the second limb of the definition is not
problematic, the word mother or father of a child can
bring serious disputes where the child has been born
through gamete or embryo donation, or other forms of
assisted human reproduction. The natural interpretation
of mother or father of a child means the genetic father
or mother. What comes out from the foregoing is that
a married couple who beget a child through gamete or
embryo donation may not, as a matter of strict legal
interpretation, necessarily be the childs parents.
In the case of sperm donation, the couple may even
have bigger problems. The first would be the question
of legitimacy of the child, particularly where the
woman undergoes heterologous artificial insemination
15
Action for Children in Kenya. Support and Maintenance of a child born out of wedlock and the legal position in Kenya. Accessed at www. actionchildren.or.ke on 6th April, 2015.
16
Ibid.
17
Ibid.
18
Ibid.
19
Ibid.
27
without her husbands consent.20 It appears Kenyan law

would almost inevitably presume the husband to be the
childs father, whether or not he had consented to the
insemination of the wife with the donors sperm. This
therefore begs the question, why would a Kenyan husband
acquire parental responsibility for his wifes children fathered
by other men through artificial insemination? And what
happens in situations where it is an issue of maintenance of a
child born through IVF in a marriage where the husband is
infertile? Section 118 of the Evidence Act (Chapter 80 of
the Laws of Kenya) provides, inter alia, that the fact that a
person is born during the continuance of a valid marriage
between his mother and any man, or within 180 days of
its dissolution, (the mother remaining unmarried) shall
be conclusive proof that he is the legitimate child of that
man.
The husband would escape from the presumption of
legitimacy (paternity) if he can show that there was no
(sexual) contact between him and the wife at any time
when the child might have been begotten. While section
28 of the Human Fertilisation and Embryology Act, 1990
(UK) contemplates the question of paternity of children
conceived as a result of assisted human reproduction,
it does not solve the problem of the common law
presumption of legitimacy (paternity) embodied in
section 118 of the Kenyan Evidence Act.21
Though section 28 of the Human Fertilization and
Embryology Act, 1990 (UK) lays primacy on the husbands
consent to a wifes infertility treatment in determining
the question of paternity, it is rather unsatisfactory in
cases where the wife undergoes treatment without the
husbands consent. Subsection 5 of this section renders
the issue of the husbands consent irrelevant in relation
to any child who, by virtue of the rules of common law
(codified in section 118 of the Kenyan Evidence Act), is
treated as the legitimate child of the parties to a marriage.
Since there are no Kenyan precedents in this area, it is
difficult to tell how Kenyan courts would deal with the
matter where the wife is proved to have undergone
artificial insemination with the sperm of another man
without her husbands consent. If such a dispute were to
arise under the current state of Kenyan law, section 118
of the Evidence Act would visit an injustice on husbands.
The Human Fertilisation and Embryology Act, 2008
(UK) sets out who under English law the legal parents
of a child are which is born after sperm donation or
artificial insemination or other fertility treatment. As
far as opposite-sex married and unmarried couples are
concerned there is no substantive change between the
20
Ruth Zafran, Dying to be a father: Legal paternity in
cases of posthumous Conception, Houston Journal of Health
Law &Policy.
21
See the Human Fertilisation and Embryology Act, 1990
(UK) as well as section 118 of the Evidence Act, Cap. 80 Laws of
Kenya.
28

current law and the old law as it was under the Human
Fertilisation and Embryology Act 1991.
Under this statute, the mother who gives birth to the child
is always the mother of the child. Whether the biological
father is legally the father of the child and whether the
mothers male or female partner counts as the other
parent of the child, depends on the following: whether
the insemination took place informally under a private
arrangement; or at a licensed clinic in the UK; whether
or not the mother is married or in a same-sex civil
partnership; and whether the mothers partner agreed to
the mother being inseminated or to the IVF treatment.
The Constitutional provisions on children and the
Children Act do not directly address or contemplate
this scenario of IVF. However, in ZAK v MA (2013)
eKLR at para 35, Mumbi J stated, Looked at through
the prism of the Constitution, particularly Article 53(2)
which requires that the best interests of the child be the
paramount consideration in any matter concerning the
child, I believe that a step-parent in such circumstances
must be held to have an obligation recognised in law to
exercise parental responsibility as defined in section 23
of the Children Act over his or her step-child. It would be
an affront to morality and the values of the Constitution
for a party who has had a relationship with a child akin
to that of a father or mother to disclaim all responsibility
and duty to maintain the child when he or she falls out
with the parent of the child. Such responsibility would,
however, depend on the circumstances of each case, and
the relationship that is shown to have existed between the
person in question and the children in respect of whom he
or she is sought to be charged with parental responsibility
for.22
What this means is that even when the man is not
the parent, but the fact that he and the mother of the
child are married, he cannot entirely disclaim parental
responsibility.
Best Interest Principle

The best interest principle is provided for under section
4 of the Children Act to which the court must adhere to.
Section 4 is concerned with the survival and best interests
of the child and states that: Every child shall have an
inherent right to life and it shall be the responsibility of
22
cases.
the Government and the family to ensure the survival

and development of the child; in all actions concerning
children, whether undertaken by public or private
social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the
child shall be a primary consideration; all judicial and
administrative institutions, and all persons acting in the
name of these institutions, where they are exercising any
powers conferred by this Act shall treat the interests of
the child as the first and paramount consideration to the
extent that this is consistent with adopting a course of
action calculated to: safeguard and promote the rights
and welfare of the child; conserve and promote the
welfare of the child; secure for the child such guidance
and correction as is necessary for the welfare of the child
and in the public interest.
The section further provides that in any matters of
procedure affecting a child, the child shall be accorded an
opportunity to express his opinion, and that opinion shall
be taken into account as may be appropriate taking into
account the childs age and the degree of maturity.
Conclusion
It is now established that in any matter before courts
concerning the child on parental responsibility and child
maintenance, the best interest principle is the key towards
securing the care, protection and maintenance of the
child. Parental responsibility is Constitutional and every
child is entitled to the care, protection and maintenance of
both parents equally, whether they are married or not. It
is also an established law that not only biological parents
have parental responsibility but any person under whose
care and custody of the child is provided can exercise
such responsibility.
In a situation such as IVF, though such a case has not yet
come before any Kenyan Court, the court should take
into consideration the best interests of the child and the
relationship that existed between the child and the stepparent against whom orders of maintenance are sought
and the statutory provisions regulating the matters on
the care, custody and welfare of the child. Courts in
other jurisdictions have held that such a parent has an
obligation to provide financially for the child, even where
the child has reached the age of eighteen years.
ZAK v. MA eKLR 2013 available at www.kenyalaw.org/
Laws of Kenya
Some rights reserved by Dennis Jarvis
29
Devolution, the Equitable Solution For Kenya
By Stanley Mutuma Advocate High Court of Kenya.
evolution as defined in the Oxford English dictionary

means to decentralize, or break down into smaller
units. As a term to denote power relations it can be
interpreted, to mean decentralizing power relations1 i.e.
Administratively and executive powers to smaller bodies such
as determined by regional or population size.
There is a tried and tested rationale for having devolved

system of governance. Devolution as a concept is not
only applicable to governments but also to cooperatives,
institutions and other structured agencies.
The concept in a laymans language can be illustrated as
giving local populations/citizenry the authority to decide
and execute for themselves what they deem is best and most
suitable for their needs.
In the realms of governance in terms of states and nation
states, devolution is an ideal concept and system of executive
and administration that is a solution for multi ethnic or nation
states with wide ranging distinctions of either geographical
or social economic variance.
After the promulgation of the constitution of Kenya, 2010,

Kenyans chose to have a devolved system of governance.
This was enshrined in the constitution under article 6, as a
fundamental principle, of governance and structure of the
administration. In effect it means that such a provision cannot
be altered other than by a referendum.2 The constitution
under the article ensures that there are 47, counties that
are similar to the original districts of Kenya at the time of
independence . These creates 47, mini governments. The
counties are also contained in the constitution for purposes of
clarity and absence of doubt. All the counties have their own
legislative bodies known as county assemblies.3 The members
of the county assemblies are elected members of their
respective wards, with a few nominated members as required
in the constitution, to represent marginalized groups. The
constitution which is the grand norm,4 has the provision of
representation of marginalized groups under article 100, that
takes cognizance of historic and traditional cultures and
biases that have led to the unequal position and stratification
of the contemporary Kenyan society, and seeks to cure some
of these defects with such provisions. Since the constitution
is a living document, some of the provisions are executory
in nature and thus we witness the continuous struggle with
the proper and effective practical implementation of such
provisions, with interest groups lobbying on how to execute
such. It is a healthy sign of democracy and the spirit of the
constitution that the Wanjikus chose as their governing
1
Vy a legal instrument. i.e. through statute or the
constitution
2
See article 255, constitution of Kenya
3
The fourth schedule of the constitution, outlines
roles of the national and county governments
4
Hans Kelsen [pure theory of law]
document.
With the successful formulas of

implementation of all provisions of
the constitution, it will ensure that
such huge social and economic glaring discrepancies are not
common place and will seek to cure historical biases and
ensure that we have a society that is more just, equitable and
socially cohesive.
In a comparative jurisdiction, Kenya can borrow a leaf from
other states that have successful devolution models. For
instance, Germany, India, United States etc.
India is reputed to be the largest thriving democracy. With

a population of approximately 1.2 billion persons, it is a
remarkable achievement. Some critics of democratic and
devolved regimes, however lamented that the system is
too expensive. India has dispelled the myth, as it is not a
first world nation, rather it is in the category popularized as
BRICS. Together with Brazil, Russia, China and South Africa.
The BRICS, category is a group of rapidly industrializing
nations that are now threatening to enter into the big league of
developed nations that has traditionally been held by mainly
western nations, plus Japan.
Germany has also a well-developed federal system,5 with 16

representatives from the different states. The states possess
semi autonomy authority, which through the constitution
gives out a power sharing formula between the federal
states and the national government. The system creates a
harmonious and cohesive relationship that ensures that the
centralization of power is limited and there is the issue of
checks and balances. To a large extent this would deter and
make it difficult for a tyrannical ruler like the Nazi leader
Adolf Hitler to take the country to ruins.
The other main advantage of devolved systems/governance is
the distribution of resources. The county system for instance
in Kenya, has an executive arm of government i.e. the governor,
deputy governor and the county executive committees
members as having authority to utilize resource for the benefit
of the counties. As they are directly elected by the citizens of
each county, answerable directly to the people. It cuts down
on bureaucracy and political biases that would occur were
the same to be done in a centralized form of government.
I opine that its a system that we as Kenyans should embrace
as it gives a greater control of our resources, utilizing our
taxes, and demand greater accountability from our leaders
whom we have chosen and take it as our right guaranteed in
the constitution for promotion of equity and equality, which
in turn advances the access to justice and enhancement of
human rights for all citizenry.
5
A more entrenched devolved system, with states
having great powers
Laws of Kenya
30

LEGISLATIVE UPDATE: Synopsis of Bills of

Parliament
By Christian Ateka (Laws of Kenya Department)
A)
BILLS
NATIONAL ASSEMBLY
1. Kenya National Examination

Council (Amendment) Bill, 2015
Kenya Gazette Supplement No. 7 (National Assembly Bills No.3)
The main object of the Bill is to amend the Kenya National Examination Council Act, 2012 (No. 29 of 2012) so as to abolish
the examination fees payable by candidates at the Kenya Certificate of Primary Examination and the Kenya Certificate of Secondary Education Examination. This is aimed at facilitating the
implementation of right to education as guaranteed by Article 43
(1) (f) of the Constitution and also actualize the full attainment
of the free and compulsory basic education as outlined under
Part IV of the Basic Education Act, 2013 (No 14 of 2013)
2. Public Finance Management (Amendment) Bill, 2015
Kenya Gazette Supplement No. 15 (National Assembly Bills
No.4)
The principal object of this Bill is to amend the Public Finance
Management Act (No. 18 of 2012) so as to ensure smooth implementation of the Act. The Bill seeks to effect a total sixty-eight
(68) amendments to the Public FinanceManagement Act.
3. Political Parties (Amendment) Bill, 2015
No.5)
The principal objective of this Bill is to amend the Political Parties Act (No. 11 of 2011) to reflect the purpose for which the Political Parties Fund was established. The amendment thus seeks
to ensure that the Political Parties Fund is made available to all
parties including small political parties that do not necessarily
need to secure at least five percent of the total votes in a preceding general election.
4. Special Economic Zones Bill, 2015
No.6)
The purpose of this Bill is to provide for the establishment of
special economic zones, the promotion and facilitation of global
and local investors, the development and management of enabling environment for such investments. Further, the Bill seeks
to create an enabling environment for the development of all
aspects of special economic zones and the regulation and administration of activities within the special economic zones with
due regard to the principles of openness competitiveness and
transparency.
5. Engineering Technologists and Technicians Bill, 2015
No.7)
The objective of the Bill is to provide a legal framework on the
Laws of Kenya
regulation, practice and standards of engineering technologists

and technicians. The Bill contains provisions on the establishment, powers and functions of the Engineering Technologists
and Technicians Board as the body responsible for the co-ordination and regulation of engineering technologists and technicians.
6. National Youth Employment Authority Bill, 2015
No.8)
The principal objective of this Bill is to give effect to Articles
55(c) and 56(b) of the Constitution which requires the State to
take measures to ensure that the youth access employment. The
Bill thus seeks to establish a legal framework to facilitate access
by the youth to employment opportunities. It further provides
for the establishment of an Authority whose core mandate is to
maintain a database of all youth seeking employment and facilitate their employment.
7. Fair Administrative Action Bill, 2015
No.10)
The objective of this Bill is to give effect to the provisions of
Article 47 of the Constitution on the right to fair administrative
action and the review of such action by a court or an independent tribunal. The Bill however excludes the disciplined forces,
which have their own administrative procedures.
8. Division of Revenue Bill, 2015
No.11)
The Division of Revenue Bill, 20l5 has been prepared in fulfilment of the requirements of Article 218 of the Constitution and
Section 191 of the Public Finance Management Act, 2012 (No.
18 of 2012) which requires that the Bill be submitted to Parliament every year.
9. Business Registration Service Bill, 2015
No.13)
The purpose of this Bill is to establish the Business Registration
Service as a state corporation under the general supervision of
the Attorney-General. Some of the functions of the Business
Registration Service will include carrying out all registrations
required under the Act, maintaining registers, data and records
on registrations carried out by the Service, among others.
10. Agriculture, Fisheries and Food Authority (Amendment)
Bill, 2015
No.17)
The principal object of this Bill is to amend the Agriculture,
Fisheriers and Food Authority Act (No. 13 of 2013) to provide
Laws of Kenya
for maximum agricultural weight to be carried by a worker to
prevent accidents. The Bill proposes to insert a new part VIA to
provide for the need for instructions and medical examinations
of workers, the use of technical equipment and packaging so as
to limit or facititate the manual transport of loads.
11. Two-Third Gender Rule Laws (Amendment) Bill, 2015
No.20)
This Bill seeks to make amendments to the existing laws in order to give effect to Article 100 of the Constitution which requires Parliament to enact legislation to promote representation
of marginalized groups in Parliament. It contains proposed
amendments to the following laws: National Gender and Equality Commission Act (No.11 of 2011); Political Parties Act (No.l1
of 2011); Elections Act (No. 24 of 2011); Independent Electoral
and Boundaries Commission Act (No.9 of 2011) and County
Governments Act (No. 17 of 2012).
12. Controller of Budget Bill, 2015
No.21)
The principal object of the Bill is to give effect to the provisions of Articles 228 and 252(1)(d) of the Constitution of Kenya regarding the functions of the Office of the Controller of
Budget. The Bill provides for the functions of the Controller
of Budget which, amongst others, will include authorization of
withdrawals from the Equalization Fund, Consolidated Fund,
County Revenue Funds and any other public fund which by an
Act of Parliament requires approval of the Controller of Budget
for withdrawal from that fund.
B) SENATE BILLS
1. Senior Citizens Care and Protection Bill, 2014
Kenya Gazette Supplement No. 165 (Senate Bills No. 43)
The principal object of the Bill is to give effect to Article 57 of
the Constitution on the right of older persons to fully participate in the affairs of society; pursue their personal development;
live in dignity and respect and be free from abuse; and receive
reasonable care and assistance from family and the State. It recognises the fact that for a long time, senior citizens, particularly
those who are unable to care for themselves, have often been
neglected and are unable to carry on living decent lives. The
Bill therefore provides the necessary legal framework for the
establishment of a system for the care and maintenance of senior
citizens.
31
2. Employment (Amendment) Bill, 2015

This Bill seeks to amend the Employment Act (No. 11 of 2007)
so as to provide for adoptive leave for employees in respect of
whom an adoption order is made authorizing such employees to
adopt a child pursuant to section 154 of the Children Act (No.
8 of 2001). This Bill therefore seeks to ensure that the rights
of adopted children are safeguarded and that an opportunity for
parental care and protection is availed to adopted children on
their adoption.
3. Self-Help Associations Bill, 2015
The principal object of the Bill is to provide a framework through
which communities can mobilise resources and carry out socioeconomic activities to enhance their self-reliance and economic
development through self-help associations. It recognises the
fact that self-help associations have increasingly, over the years,
played a key role not only as an entry point for economic and
other development initiatives and interventions carried out with
respect to various communities but has also enhanced the economic independence of the members of the community. The
Bill therefore provides the necessary legal framework for the
registration of self-help associations and for their operation, and
the necessary mechanisms for their regulation.
4. Cancer Prevention and Control (Amendment) Bill, 2015
The principal object of this Bill is to amend the Cancer Prevention and Control Act (No. 15 of 2012) to provide for the establishment of the headquarters of the National Cancer Institute of
Kenya in the Capital City. The Bill also provides for the establishment of county cancer prevention and control committees in
each county whose functions will include the conduct of sensitisation and awareness programmes, data collection and dissemination of information, the establishment of counselling centres
and palliative care facilities and the monitoring and evaluation
of the implementation of programmes for the control and prevention of cancer.
5. County Allocation of Revenue Bill, 2015
The principal object of this Bill is to make provision for the allocation of revenue raised nationally among the county governments for the financial year 2015/2016.
He who decides a case without hearing the other side, though he decides justly, cannot be considered just.
- Lucius Seneca
32
Laws of Kenya
Digest of Recent Legal Supplement on Matters of

General Public Importance
Yvonne Kirina (Laws of Kenya Department)
This article presents a brief summation of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers a period between 1st
February, 2015 and 30th April, 2015. For more of this, visit www.kenyalaw.org
LEGISLATIVE
CITATION
SUPPLEMENT NUMBER
PREFACE
This legislation is an amendment to the National Hospital

Insurance Fund Act (Standard Contributions) Regulations,
2003. It provides for new NHIF contribution rates as
shown below:
The National Hospital Insurance

Fund (Standard and Special
Contributions) Regulations, 2015.
L.N. 14/2015
Gross Income (KSh.) Proposed Premiums (KSh.)

5,999
150
6,000-7,999
300
8,000-11,999
400
12,000-14,999
500
15,000-19,999
600
20,000-24,999
750
25,000-29,999
850
30,000-34,999
900
35,000-39,999
950
40,000-44,999
1,000
45,000-49,99
1,100
50,000-59,999
1,200
60,000-69,000
1,300
70,000-79,999
1,400
80,000-89,000
1,500
90,000-99,000
1,600
100,000and over
1,700
Self-employed (Special)
500
These regulations are in operation.
The Public Finance Management

(Strategic Food Reserve Trust Fund)
Regulations, 2015
The Strategic Food Reserve Fund shall provide a strategic

food reserve in physical stock and cash equivalent. The
fund shall:
L.N. 15/2015.
(a) stabilize the food supply and prices in the country;

(b) arrange for procurement, storage and sale of food
commodities;
(c) maintain adequate strategic food reserves in physical
stock or cash equivalent at any one given time; and
(d) mobilize resources to support strategic food reserve
related activities
The initial capital of the Fund shall be two billion and
two hundred million shillings appropriated by Parliament
in the financial year 2014/2015 and additional capital of
the Fund shall be made in the subsequent financial years
budgets.
33

10
The National Police Service

Commission (Recruitment and
Appointment) Regulations, 2015.
L.N. 18/2015
11
The National Transport and

Safety Authority (Operations of
Motorcycles) Regulations, 2015.
L.N. 19/2015
These regulations provide for the general provision of

hiring a member of National Police Service, recruitment
categories, gender regional and ethnic balance among
others.
These are among regulations set out by NTSA for operations of Motorcycles on public roads in Kenya.
These regulations provide that a motorcycle owner must
comply with the following requirements among others:
(a) two helmets which comply with the standards
established by the Kenya Bureau of Standards and
which shall have the registration number indelibly printed in letters not less than three inches in
height on both sides of the helmet;
(b) two reflective jackets which shall have
the registration number of the motorcycle
indelibly printed in letters notless than four
inches in height on the back of the jacket.
22
The Public Finance Management

(State Officers House Mortgage
Scheme Fund) Regulations, 2015.
L.N. 23/2015.
These regulations establish the State Officers House Mortgage Scheme Fund whose objective and purpose shall be to
provide a loan scheme
for the purchase or development of property
by the State Officers.
The capital of the fund shall consist of the initial capital
of one billion shillings appropriated by Parliament in the
2014/2015 financial year and such other funds as may be
voted for the purposes of the Fund in subsequent financial
years.
37
The Basic Education Regulations,

2015.
L.N. 39/2015
These regulations offer guidance on free and compulsory education, alternative provisions of basic education,
trainings and continuing adult education, official school
hours, school rules, discipline procedures for students and
management of basic education institutions.
Where there is hunger, law is not regarded; and where law is not regarded, there will be hunger.
Laws of Kenya
- Benjamin Franklin
34
Kenya Law Wins Plate at the ICJs Uwazi

Tournament
enya
Law
participated
in this years
annual International
Commission
of
Jurists (ICJ) Uwazi
Cup
tournament
which is an annual
football tournament
organized by the
International
Commission
of
Jurists (ICJ). The
event
brings
together
teams
drawn from the
various stakeholders
involved
in
the
administration
of justice, including judges and
magistrates, auctioneers, advocates, law
students, the police, parliamentarians,
human rights NGOs and media houses
from around the country.
This year, the Uwazi Cup Football
Tournament was held on Saturday,16th
May, 2015at the newly refurbished
Kasarani Complex Sports Centre under
the theme of The Role of Media in
Promoting Access to Information
and among the guests who graced
the occasion were the Chairman of
the
Constitution
Implementation
Commission (CIC) Mr. Charles
Nyachae and the Executive Director
of the International Commission of
Jurists, Mr George Kegoro.
The day started off on a tensed note for the Kenya Laws
Team having failed to make a great impact in the previous
recent tournaments but as the day progressed and with
constant hard work from the team and the unwavering
support from the cheering staff members, positive results
could be realized leading to the team winning the plate
cup.
Participating in the tournament was not only a great

sporting event, but helped in marketing Kenya Law as
an organization and also provided a bonding experience
with the various clients and stakeholders of the Kenya
Law especially those within the legal fraternity.
Hopefully, Kenya Law team will next year retain the Plate
trophy if not win the Overall Cup.
35

KENYA LAW REPORTS

Law Reports are an essential tool for any Legal Practitioner.
Invest in the official Law Reports of the Republic of Kenya and take your
practice to greater heights.
*Kindly note that all deliveries out of Nairobi County shall attract a separate shipping charge.
For all your inquiries please contact;

The Marketing and Communication Department
ACK Garden Annex, 5th Floor, 1st Ngong Avenue, Ngong Road, Upper Hill
P.O Box 10443 - 00100, Nairobi - Kenya
Tel: +254 (020) 2712767, 2011614 ,2719231 020 2604142, 2611322
Mobile: +254 718 799 464, 736 863 309
Email: marketing@kenyalaw.org
www.kenyalaw.org
mykenyalaw
@mykenyalaw
Mykenyalaw
HR
Department
National Council for Law Reporting (Kenya Law) - A service state corporation in the
Judiciary
36

Kenya Law attends supervisory skills

development course at the Kenya School of
Government (KSG) Nairobi
By Lydia Midecha, SQ Department
even (7) members of The

National Council for Law
Reporting
(Kenya
Law)
were sponsored by the Judiciary Judicial Performance
Improvement Plan (JPIP) for a two (2) weeks supervisory
skills development course at the Kenya School of
Government (KSG) Nairobi that took place between 23rd
March, 2015 2nd , April, 2015 .
become problem solvers and on the job trainers.

Need to embrace and uphold non-financial

programs like Recognition of employees, employee
involvement/participation programs, job enrichment
and participation of employees as motivating
strategies of employees.
Need to identify the dependable employees whom at

times can be ignored at the work place despite their
quality of work.
Need to appreciate and implement work planning

and performance appraisal systems which again
involve participation of both the appraiser and the
appraisees.
Need to appreciate that all public officers hold their

respective offices in trust of the public and should
therefore uphold the highest standards of integrity
and ethics and maintain a certain standard of service
delivery to both the internal and external clients.
Need to always observe the rules of natural justice

and the constitution in whatever we do especially in
disciplinary processes.
Need to always be responsive to change or else

change will change us forever. At the same time,
we need to come up with change strategies and
recognize and make those of us who might not even
be in management or any supervisory positions be
change agents.
Need to understand our employees personality and

deploy or assign them duties depending on their
personalities for instance deploying sanguine to
marketing departments.
Need to always make use of the iceberg effect in

analyzing and resolving any conflict within our
organizations.
Need to put in place effective communication

systems in our organizations which is the lifeline of
any successful organization.
Need to have short and unto the point (sticking to the

agenda) meetings
Need to sensitize employees on the HIV/AIDS and the

existence of any support systems for their utilization
as need may arise.
Need to train all supervisors and heads of departments

on the basic counseling and guidance skills.
The objective of the training was to:

Set performance objectives, standards and targets
Manage and supervise staff effectively
Apply appropriate control measures in work setups
Create conducive atmosphere for team work

performance
Resolve work team conflicts
The participants were trained by internal lecturers from

the Kenya School of Government, as well as highly trained
external lecturers, who were experts in various fields.
The areas trained on included: Concepts, Principles and
Practice of Management, Decision Making and Effective
Delegation, Roles and Functions of a Supervisor,
Motivating Staff, Government Organizations and
Functions, Public Service Integrity and Ethics, Work
Planning and Organization, Principles of the constitution
and the rule of law, Managing Change, Role of Supervisor
in Managing Quality, Role of Supervisor in Performance
Appraisal, Conflict Management, Budgeting and
Budgetary Process, Training and Development, Effective
Communication, Conduct of Meeting, Interpersonal
Relations, HIV/AIDS at the work place, Team Building,
Report Writing, Current Reforms in the Public Service,
Guidance
and
Counseling/Stress
Management,
Disciplinary and Disciplinary Procedures, MDGS &
Vision 2030, Records Management by the Supervisors,
and Public Relations and Customer Care.
From the training, participants came up with a number
of salient issues for consideration, and appropriate action
and implementation. These were identified as:

Need for a Knowledge Management strategy to

ensure rare skills and knowledge are captured and
transferred to other employees to minimize the effect
of such employees leaving the organization.
Need for supervisors to develop a team approach,

disregard conventional disciplinary attitude and
SQAP
SQAP

Need to have and stick to the Training Needs

Analysis and Training Projections to offer training
opportunities to all. At the same time taking the
training opportunities seriously and surcharge those
who dont attend organizations sponsored trainings.
Need to embrace good labor relations at the work

place to avoid disputes and grievances from not only
the employees but other relevant stakeholders as well.
Need to develop good interpersonal relations at

the work place so that team work can be enhanced,
employees need fulfilled and the entire organizations
objectives met.
Need to adhere to the Public Procurement Oversight

Authority Act (PPOA) and the Public Financial
Management Act.
Need for every public officer to comply with chapter

six (6) of the constitution, article 232 and 236 of the
constitution.
Need to take note and embrace the current reforms

taking place in the Public Sector and understand
both the internal and external drivers of such reform
initiatives.
Need to have a counseling and guidance policy at the

work place and take note of the challenges in making
use of the available facilities and coming up with
mechanism of enhancing accessibility and provision
for the same facilities.
Need to analyze the root causes of stress to the
37
employees and address them appropriately.

Need to develop a culture of blaming (correcting)

silently and praising loudly.
Need to have appeal mechanism in all disciplinary

processes.
Need to understand the value of records and develop

a records management policy at the work place.
(Reference can be made to the Archives Act, Evidence
Act and Records Disposal Act)
Need to appreciate the Vision 2030 which is the

vision of the Government and in whatever we do and
in as much as we strive to achieve of organizational
vision we should not lose focus of the Vision 2030
which requires all our contribution as public officers
and public institutions.
Need to have effective public relations and customer

care systems in place as well as monitoring the
feedback from the clients.
All in all, the training was quite relevant for all the
participants who are in middle level management from
various departments and all the listed topics were
adequately covered. With proper implementation of
the skills and knowledge learnt, the participants will
definitely make a difference at the National Council for
Law Reporting (Kenya Law). It is our recommendation
that the organization should continue sponsoring
middle level managers for the supervisory skills training
especially at the Kenya School of Government, Nairobi
which exhibited very high level of professionalism.
...we should grow our

jurisprudence out of our own
needs, without unthinking
deference to that of other
jurisdictions and courts, however,
distinguished.
- CJ Willy Mutunga
Some rights reserved by Fulvio Spada
38

Considering a Merger? Please Consult the I.T

Department
By Martin Andago Team Leader ICT Department
ergers are a fact of

corporate life. When two
organizations decide to
come together the journey can be long, expensive and
fraught with danger. There being no absolutes, each case
must be assessed on its own merit.
However, it is important to note that IT plays a major role
in merger decision-making because different systems
must be consolidated. The work IT performs in mergers
is so mission-critical that if its determined that systems
cant be readily consolidated and made to work together,
the merger might not tae-off or survive the honeymoon
period
Below is a list of to think about when considering a
merger:
1. Understand what exactly is at stake
Mergers arent just clinical projects that convert
systems so they work together. For IT and throughout
the organizations
involved, mergers mean
that
some
jobs are likely to be
consolidated as well.
Some
IT staffers are going
to keep their jobs, while
others
might
n o t .
Specific
IT
staff
may also
have technical allegiance to certain s y s t e m s
they are familiar with. So if a favored system is designated
for termination, there can be fear and bitterness because
that also potentially eliminates a particular technical skill
set.
2. Governance Compatibility?
Whenever IT systems from different companies must be
made to work with each other, the focus is on technical
systems compatibility. However, especially if youre in a
highly regulated industry like healthcare, insurance, or
finance, equal billing should be given to compatibility
of security and governance practices between the two
organizations.
I.C.T Department
3. Consumer & Investor worries

Its easy for IT managers to get caught up in meeting
deadlines for system migrations and conversions that
come about in mergers and acquisitions and to forget
about the outside world of investors and customers
who are wondering what doing business with the
new company (and its systems) will be like. If there are
system complications, plans should be in place to deal
with political and people matters as well as the technical
problems.
4. Do we have a failover plan?
System migrations and conversions seldom work
flawlessly when the IT systems of two companies are
blended. This is why its crucial to have failover plans
for all mission-critical systems that can be immediately
activated if the necessity arises.
5. Discontinue non-critical systems
From
a
technical
standpoint,
it
straightforward
to
systems are mission
must be continued
which can be done away
and even a business

might
appear
decide
which
critical and
a n d
with. However, its equally important to remember that

most of these systems have internal supporters. Never
put yourself in a position where you unilaterally make
choices on which systems to unplug. Instead, take the
time to gather together users so everyone can collectively
agree on the decisions.
6. Touch base with vendors
In most mergers and acquisitions, the two companies
involved have at least several systems that do the same
thing but that are from different vendors. Vendors dont
like to lose customers, so if a decision is made to terminate
a particular vendors system, you should first perform
I.C.T Department
due diligence on how cooperative that vendor is going to
be. Lack of vendor cooperation and responsiveness can
extend the time of a system migration or conversion for
weeks and even months.
7. Make disaster recovery provisions
Failover provisions must be made during system
migrations and conversions. But at the same time, its
important to be updating the long-term disaster recovery
plan to incorporate the addition of a new organization.
8. Secure systems and networks
With the addition of a new organization, there are also
new networks and network nodes to look after. One
of the greatest security exposures companies face postacquisition is ensuring that there are no unsecured
backdoors or open ports into corporate networks. This
39
can easily happen after an acquisition, because there is so

much IT ground to cover that a backdoor can easily be
overlooked.
9. Consider the possibility of sabotage
No one likes to consider employee malice or sabotage,
but that can happen during a merger or an acquisition
because there are usually at least some employees who
are upset. The possibility of employee sabotage is highest
in IT, where significant damage can be done to systems. If
you feel that you have at-risk areas in your organization,
the activities in them should be closely monitored. If a
potential sabotage begins to unfold, you need to act
swiftly and call in outside expertise if necessary.
Wisdom is like a baobab tree; no one individual can

embrace it. ~ Akan proverb
40

Kenya Law Greens the Nairobi National

Park
By Evelyn Emaase and Emily Nakhungu
enya
L a w
staff
participated in a major tree planting exercise at the
Nairobi National Park on Friday, June 26th 2015. The
initiative which was spearheaded by the Ag. CEO Mr.
Longet Terer saw 70 employees plant 250 trees at the
park, the only game park in the world located within a
city.
Kenya Law is aware of its obligation in the advancement
of society and has a mandate to care for the wellbeing
of one another and of the environment and to align its
processes, services and products with the attainment of
positive social outcomes.
The tree planting activity was indeed a great chance for
Kenya Law to work for a good cause. It was a key activity
of Kenya Laws corporate Social responsibilitys program.
The benefits of tree planting cannot be emphasized
enough. In recent years, our generous, tranquil Nairobi
National Park has experienced ever-increasing human
encroachment as the city outgrows itself. Its proximity to
the capital has exposed the Park and its rich ecosystem to
massive environmental risks.
It is for these reasons that Kenya Law partnered with the
Nairobi GreenLine Trust, a project that invites industries,
I.C.T Department
conservationists, corporate organizations and the public

to join the campaign to grow 300,000 trees from the
Cheetah Gate in Athi River, a distance of 32km, to the
Carnivore restaurant.
This is an
opportunity
for
staff
to
support
community
events in a
very practical
way.
Its
wonderful
that
Kenya
Law is part of
the dream to
make Nairobi
National Park
not just a
greener place
but to also
bring
back
wildlife to the
city. Said Mr.
Terer .
The initiative
I.C.T Department
41
Greenline Forester Mr. Simon Waithaka (in a cream cap) addresses the
Kenya Law team at the Greenline secretariat June 26th 2015.
leaves a visible legacy, which will see the organization

make the activity an annual tradition.
Among these indigenous species that we planted included:

Acacia Kirkii
Acacia Mellifera
Acacia Polyacantha
Acacia Xanthophloea
Acacia Nilotica
Balanites Aegyptiaca
Croton Megalocarpus
Calodendron Capense
Dalbergia Melanoxylon
Olea Europea
Warbugia Ugandensis
Carissa
42

Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
J.K. Ngarngar.
SPM-Nyando.
Thanks for this service.

It is a good feedback mechanism for us. It also goes a long way to
enrich our jurisprudence.
Thank you. The caseback service is wonderful. Keep up the good work.
Mburu.
Regards,
Hon. Munyekenye
David Wanjohi
RM, Garissa
Thank you so much. You are very informative.
DR-Eldoret
Thank you for re-activating CaseBack. Is it possible to make the

judgments you send amenable to save on
Christine Meoli,
Judge High Court
of Kenya,
Naivasha
Law Reporting
Law Reporting
43
Supreme Court Cases

Court holds that orders delivered pending reasons of the judgement amount to a
judgment of the court
Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others
Supreme Court of Kenya
Civil application No. 35 of 2014
J.B. Ojwang, M.K Ibrahim, SCJJ
May 27, 2015
Reported by Emma Kinya Mwobobia
Brief facts
Upon the Court of Appeal delivering its edict, the applicant
herein filed a timely notice of appeal. However, he avered
that he could not file his appeal within time, because he
was awaiting the judgment of the Court of Appeal. To him,
what that Court had delivered was only an Order and not
a Judgment. During the period of awaiting that Judgment,
the time for filing an appeal lapsed. He subsequently
chose to file in the Court of Appeal an application,
seeking certification that his intended appeal involved
matters of general public importance. He complained of
delay in the Court of Appeal, in the determination of his
said application for certification. Thus, he moved to the
Supreme Court, with an application seeking extension of
time, since time had lapsed before he could file an appeal
as of right. The applicant urged that under the Supreme
Court Rules, he could not file an appeal without the
Judgment of the Court of Appeal. To him, what the Court
of Appeal rendered was only an Order, rather than the
Judgment.
Issues
i.
Whether the applicant could have filed an appeal

based on an order of the court reserving the
reasons for the judgment from the Court of
Appeal
ii.
Whether an appeal that lies as of right could have

been converted to one that required certification
where the prescribed time for lodging an appeal
had lapsed
iii.
Whether a delay by the Court of Appeal to certify

a matter for appeal to the Supreme Court in
a matter involving matters of general public
importance could convert the matter to one as
of right inorder to allow the applicant to seek
the Supreme Court directly
iv.
Whether a record of appeal could have been

prepared without the reasons of the Court of
Appeal decision
v.
Whether an applicant could move the Court of
Appeal for leave to file an appeal to the Supreme

Court as well as move the Supreme Court
for extension of time or for the same leave
concurrently
vi.
What was the status of the applicants Notice of

Appeal? Was it to be deemed lapsed or withdrawn?
Jurisdiction jurisdiction of the Supreme Court jurisdiction

of the Supreme Court to review a decision of the Court of
Appeal with respect to certification of a matter for appeal to
the Supreme Court constitutional provision for review by
the Supreme Court in respect of matters of general public
importance in an intended appeal whether the application
had merit Constitution of Kenya, 2010 article 163(4)(b)
Civil Practice and Procedure extension of time application
for leave for extension of time to lodge the record of appeal
against judgment and orders of the Court of Appeal claim
that the delay was occasioned by an incomplete record of appeal
by virtue of the fact that the Appellate Court had only given
the order of the court and reserved the reason for a later date whether the Supreme Court could grant an extension of time to
file an intended appeal on the basis that the said appeal raised
issues of interpretation and/or application of the Constitution
whether the application was merited - Constitution of Kenya,
2010, article 163(4)(a)&(b); Supreme Court Rules, 2012, Rule
33(4),33(6),37(1)
Rule 33(4) of the Supreme Court Rules
It provides:
For purposes of an appeal from a court or tribunal
in its appellate jurisdiction, the record of appeal shall
contain documents relating to the proceedings in the
trial court corresponding as nearly as possible to the
requirements under sub rule (3) and shall further
contain the following documents relating to the appeal
in the first appellate court
(a)
the certificate, if any, certifying that the

matter is of general public importance;
(b)
the memorandum of appeal;
Cases
44
(c)
he record of proceedings; and
(d)
the certified decree or order.
Rule 33(6)
Provides:
Where a document referred to in sub-rule (3) and (4)
is omitted from the record of appeal, the appellant
may within fifteen days of lodging the record of
appeal, without leave, include the document in a
supplementary record of appeal.
Rule 37(1)
Provides:
Where a party has lodged a notice of appeal but fails
to institute the appeal within the prescribed time,
the notice of Appeal shall be deemed to have been
withdrawn, and the Court may on its own motion or
on application by any party make such orders as may
be necessary.
Held:
1. The Judgment of the Court of Appeal was
delivered on November 21, 2013, and the
reasoning of the judgment issued on January 13,
2014 running through that Judgment, as those
had been reserved.
2. It was not a mandatory requirement for a record
of appeal from the Appellate Court to the Supreme
Court to include the complete Judgment of the
Court of Appeal. A certified Decree or Order of
the Appellate Court sufficed.
3. Considering Rule 33(6) of the Supreme Court
Rules, It followed that, with the Court of Appeal
Order of November 21, 2013, the applicant was in
a position to file a record of appeal. Such a record
would have been complete, with a certified Order
of the Court of Appeal. Having filed a notice
of appeal on December 2, 2013, the last day of
filing an appeal with an incomplete record of
appeal was January 1, 2014. The reasons having
been delivered on January 13, 2014 the applicant
could still have filed without leave those reasons,
as a missing document, by January 16, 2014.
There was no basis, therefore, for the applicants
contention that he could not have filed his appeal
out of time without the reasons of the Appellate
Courts decision.
4. The two avenues of the appellate jurisdiction
of the Supreme Court were distinct. Firstly, an
appraisal of the nature of an appeal as involving
a matter of constitutional interpretation or an
application signalling access to the Supreme
Court as of right. No form of authorization or
leave from the Court of Appeal or the Supreme

Court was required at the beginning.
5. If on the other hand, the appeal did not fall within
the ambit of Article 163(4)(a) of the Constitution
(i.e., appeal as of right), then it should have been
certified as one involving a matter of general
public importance, by being brought within the
Hermanus principles. On that limb, an application
for certification had to be originated in the Court
of Appeal.
6. Suffice it to say that the path that a litigant took
was determined on the basis of the subject-matter
as had been held by the superior courts. Once the
Court of Appeal rendered its decision, the litigant
was able to elect which course to follow. The
decision was taken in advance, as it was the basis
of determination on whether to seek certification
first, or to proceed directly to the Supreme Court.
Thus, the decision on how to proceed rested on
the character of the issues involved in the subject
matter, rather than on such procedural shortfalls
as may have afflicted a litigants progress. It
followed therefore, that where a party had
elected the path to the Supreme Court as of right,
that matter could not be converted to one where
certification was required, just because time for
filing an appeal as of right had lapsed.
7. A litigant was under a forensic obligation
to categorize his or her case, indicating the
constitutional or legal category under which
he or she was moving the Supreme Court. The
pathway thus identified, was for pursuit. And
where it was perceived that an appeal raised both
categories of issues, the course of merit was to
comply with the requirements of both i.e file an
appeal as of right on the constitutional issues and
seek leave as regards matters of general public
importance. In regard to the latter, the relevant
appeal was to be filed only after the grant of
leave. It was then left to the Supreme Court in
its exercise of discretion, whether the two causes
should be consolidated and resolved as one.
8. A party, who moved the Court of Appeal for leave
and certification, had recognized the relevant
cause as one founded on a matter of general
public importance. Consequently, the Supreme
Courts intervention was not in issue until the
Court of Appeals task was complete.
9. As the applicant had an application for grant of
leave pending at the Court of Appeal, there was
no basis in law for entertaining his application
in the Supreme Court. The pendency of an
application in the Court of Appeal mitigated
against the scenario of a parallel right that could
have been pursued in the Supreme Court. Where
an appeal lay on the basis of leave, the same could
45

not be converted to an appeal as of right, on the

basis that the Court charged with granting leave
had delayed its determination.
10. If the prayer in question was for certification
of the intended appeal, as involving matters of
general public importance, then the Supreme
Court had to await the decision of the Court of
Appeal and await a review application in respect
of that decision in a proper case.
11. The High Court, under Article 165(3)(d) of the
Constitution, is the primary Court with the
jurisdiction to determine questions in respect of
interpretation of the Constitution, especially the
question whether any law was inconsistent with
or in contravention of the Constitution. In the
exercise of that jurisdiction, the High Court had
already pronounced itself on the constitutionality
of Section 16 of the Supreme Court Act.
12. The High Court decision on the constitutionality
of Section 16 of the Supreme Court Act had not
been the subject of the instant appeal. As the
apex Court, and conscious of the Supreme Court
mandate under Section 3 of the Supreme Court
Act (to assert the supremacy of the Constitution)
and paying due regard to the competence and
defined remits of other Courts, the Supreme
Court recognised the finding of the High Court
that Section 16(2) (b) of the Supreme Court Act
was unconstitutional.
13. There was no leave contemplated under Sections
15 and 16 of the Supreme Court Act, apart from
leave certifying that a matter was one of general
public importance and therefore appealable to
the Supreme Court. Where an appeal was one
involving matters of general public importance,
the application for certification had to be
originated in the Court of Appeal.
14. Rule 37(1) of the Supreme Court Rules was
not to be read in isolation and had to be read
in conjunction with other rules, particularly
Rule 53 which provided that the Court could
extend the time limited by the Rules, or by any
decision of the Court. It meant that where the
time contemplated under Rule 33(1) for filing

the appeal lapsed, and there was no action on the
part of the litigant, then Rule 37(1) had to set in.
However, where time thus lapsed, but there was
a satisfactory explanation of the inaction, then
the Court, guided by Rule 53 (and as a Court of
equity), had the discretion to extend time.
15. In extending time to allow the filing of an appeal
out of time, the Court essentially breathed life
into the notice of appeal which had lapsed, and it
was deemed to be still in force. That was what the
law contemplated in providing for application(s)
for extension of time to file an appeal out of time.
With such extension of time, the competence of
the notice of appeal was reinstated.
16. The litigant coming before the Supreme Court
had the duty of categorizing his or her case, so
as to beckon the specific constitutional opening
under which the matter fell. Where the litigants
prayer was pending for leave in the Court of
Appeal, the motion in that Court was to run its
full course and the matter did not in a parallel
course, transmute into an appeal not conditional
on grant of leave. The Supreme Court had
discretion, exercised on the merits of each case,
to revive a notice of appeal, the prescribed timeframe of which may have lapsed, provided there
was a satisfactory explanation of the delay.
17. Subject to the obligation on the part of all Courts
to ensure efficiency and dispatch in proceedings
before them, as required under the Constitution,
it was an important principle guiding the judicial
function that the Courts were independent,
and were committed to the judicious and
conscientious discharge of their mandate. Upon
this premise, the Supreme Court would in general,
keep faith in the other Courts, in the absence of
any plain situation to the contrary, that merited
judicial notice. A default on such a scale had not,
in the instant case, been shown.
Notice of Motion disallowed.
Cases
Cases
46
The Appellate Jurisdiction Act is not applicable when moving the Supreme Court on
Appeal
Daniel Kimani Njihia v Francis Mwangi Kimani & another
Supreme Court of Kenya
Civil Application No 3 of 2014
PK Tunoi & M Ibrahim, SCJJ
May 27, 2015
Reported by Andrew Halonyere
Brief facts
The applicant filed an application seeking leave from
the Appellate Court to appeal to the Supreme Court
against the said Ruling. He urged that the intended appeal
involves a matter of general public importance, in that
it raises an important question of law as to whether the
Land Registrar can arbitrarily transfer land without the
consent of the registered owner.
The Court of Appeal held that the matter did not fall
within the category of a matter of general public
importance and therefore dismissed the application.
The applicant subsequently, filed an application to the
Supreme Court seeking inter-alia orders of review of the
Court of Appeals decision.
Issues
I.
Which is the right provision of law to invoke the

Supreme Courts jurisdiction when a review of
denial of certification is sought?
II.
What is required to be established when seeking

leave to appeal to the Supreme Court?
Civil practice and procedure review - provision of law
to invoke the Supreme Courts jurisdiction when a review of
denial of certification is sought when can the Court of Appeal
grant leave to appeal to the Supreme Court
Held
1. The Notice of Motion had been brought under
Sections 3A and 3B of the Appellate Jurisdiction
Act (Cap 9, Laws of Kenya), and Rules 39, 42 and
43 of the Court of Appeal Rules, 2010. These were
not the right provisions of law under which the
applicant should move the Supreme Court, where
a review of denial of certification was sought.
The Supreme Courts jurisdiction is exercisable
only on the basis of express provisions of the
Constitution and the law. The operational rules
for the Supreme Court (Supreme Court Rules,
2012) were made pursuant to the Constitution,
article 163(8)
2. The only applicable sources of law when moving
the Supreme Court were the Constitution, the
Supreme Court Act, and the Supreme Court
Rules, 2012. The Appellate Jurisdiction Act was
not applicable when moving the Supreme Court.
Neither was the Civil Procedure Code.
3. The extraordinary standing of the Supreme

Court would demand that, in principle, litigants
should be clear as to the terms of the jurisdiction
they were invoking. The litigant should invoke
the correct constitutional or statutory provision;
and an omission in that regard was not a mere
procedural technicality that could be cured under
article 159 of the Constitution.
4. For a party to be granted leave to appeal to
the Supreme Court there had to be a clear
demonstration that such a question of law,
whether explicit or implicit, had arisen in the
lower tiers of Courts, and had been the subject
matter of judicial determination. The Supreme
Court had not been conceived as just another
layer in the appellate Court structure.
5. Not all decisions of the Court of Appeal were
subject to appeal before the Supreme Court. One
category of decisions perceived as falling outside
the set of questions appealable to the Supreme
Court, was the discretionary pronouncements
appurtenant to the Appellate Courts mandate.
Such discretionary decisions, which originate
directly from the Appellate Court, were by no
means the occasion to turn the Supreme Court
into a first appellate Court, as that would stand in
conflict with the terms of the Constitution.
6. Even if the Supreme Court assumed that the
intended question of general public importance
was whether the Land Registrar could transfer
land without the consent of the owner, the
Supreme Court would still not admit the plea
before it, for the reason that such a question
had at no time been the subject of appeal before
the Appellate Court, neither had there been any
decision upon such an issue, before that Court.
Application dismissed
47

Reversion of title deeds to original owners of compulsorily acquired land deemed to be a

matter of general public importance warranting a Supreme Court hearing
Town Council of Awendo v Nelson Oduor & 13 others
Misc Application No 49 of 2014
Supreme Court of Kenya at Nairobi
W M Mutunga, CJ & P, P K Tunoi, M K Ibrahim, J B Ojwang & S N Ndungu, SCJJ
May 6, 2015
Reported by Beryl A Ikamari
Brief facts
The Applicant made an application for a stay of execution
and a review of the Court of Appeals decision declining
to certify the appeal as one involving matters of general
public importance. The basis of the application was that
the Court of Appeal did not evaluate all the material before
it in reaching at its decision.
The matter concerned Gazette Notice No. 2996 of
1976 (Legal Notice No. 47 of 1976), which allowed for
compulsory acquisition of land for the development of
South Nyanza Sugar Scheme, and Gazette Notice No. 3737
of 1976 (Legal Notice N0. 47 of 1976), which allowed for
the expansion of Awendo Township within the sugar-belt.
The genesis of the matter was that the Respondents
filed a suit at the High Court concerning land that was
compulsorily acquired in 1976 for sugarcane farming but
was left unutilized. They sought orders for title deeds to
revert back to their original owners and for compensation
for any destroyed property. At the High Court, the
Respondents obtained the orders for reversion of titles to
the original owners and compensation.
The Appellant lodged an appeal at the Court of Appeal
against the High Court decision and the appeal was
dismissed. In response, the Appellant sought certification
from the Court of Appeal which would allow for a further
appeal to be made at the Supreme Court but the Court of
Appeal declined to grant certification on the basis that the
appeal did not raise matters of general public importance.
Issues
i.
Whether the constitutional threshold for the
certification of the intended appeal as a matter
which involved matters of general public
importance was met.
ii.
Whether under the circumstances, a review as
provided for in article 163(5) of the Constitution
of Kenya 2010, could be granted.
Appeal-appeal to the Supreme Court-certification that a matter
involved issues of general public interest-circumstances in which
certification which allowed for an appeal to be lodged at the
Supreme Court would be granted-Constitution of Kenya 2010,
article 163(4)(a) & 163(5).
Held
1. There were two issues canvassed at the Court
of Appeal, namely; whether land that had been
compulsorily acquired for a certain purpose, but
was not used for that purpose, ought to revert
to the persons from whom it was acquired
2.
3.
4.
5.
6.
7.
notwithstanding the fact that they had been

compensated for the acquisition, and the impact
of the judgment on a large number of persons who
had been allocated the residual lands.
The Court of Appeals decision had its basis in
section 110 of the Land Act, No 6 of 2012, which
allowed the Land Commission to offer original
owners, or their successors in title, pre-emptive
rights to acquire unutilized land, upon restitution
of the full amount paid in compensation, to the
acquiring authority.
The High Court applied a novel concept, which
was upheld by the Court of Appeal in determining
the matter, in stating, Between the plaintiffs and
the defendant, who has a better claim over the
remainder of the suit lands if the government,
the legal owner, is not interested in the same? Is it
equitable for the defendant to evict the plaintiffs
out of the land and cause the same to be divided
and allocated to other people? The questions
raised by the judgment touched on critical spheres
of the administration of justice by the relevant
State Organs and the mode of resolution adopted
was set to affect a considerable number of people.
The decision by the High Court that the Applicant
had no proprietary rights over the unutilised
portions of the suit land, the events stretching
across the period of time since the parcels of land
were compulsorily acquired by the Government,
the supervening changes in the laws of property,
the introduction of devolved governments and the
expansion of Awendo Township as a Sub-County
of Migori County were all vital issues bearing on
the governance landscape, and had fundamental
impacts on public interest.
The matter raised a clear case for clarifying
the state of the law relating to the compulsory
acquisition of land by the government.
The question on whether the Respondents were
entitled to the reversionary interest in unutilised
portions of land, invoked critical sub-themes of
jurisprudential significance and which touched on
matters of public interest.
A due consideration and determination of
the issues raised traversed the interests of the
Respondents and affected third parties as well as
the public at large.
Application allowed.
Cases
48
Cases
Supreme Court upholds directions on the progressive realization of the right to vote for
Kenyans living in the diaspora for all elective posts
Independent Electoral & Boundaries Commission (IEBC) V New Vision Kenya (NVK Mageuzi) & 4 others
Petition 25 of 2014
Supreme Court of Kenya at Nairobi
K H Rawal, DCJ & VP, P K Tunoi, M K Ibrahim, J B Ojwang, S C Wanjala & S N Njoki, SCJJ
May 6, 2015
Reported by Beryl A Ikamari
Brief facts
The 1st to 4th Respondents had sought orders from the
High Court in relation to the rights of Kenyans living in
diaspora to vote and to seek elective office. Particularly,
they sought orders declaring that Kenyans in diaspora
who held dual citizenship were eligible to be registered
to vote and seek to be elected. They also sought orders
requiring the IEBC to provide voter registration and
voting mechanisms for Kenyans residing in the diaspora.
At the High Court the Petition was dismissed. On appeal,
the Court of Appeal granted orders to the effect that
dual citizens living in the diaspora were eligible to be
registered as voters and to vote and also directed the
IEBC to set up voter registration centers for Kenyans
living in the diaspora progressively. The IEBC appealed
against the Court of Appeal decision, at the Supreme
Court, on grounds that the orders granted went contrary
to existing legislation and were made without a holistic
interpretation of the Constitution.
Issues
i.
Whether orders directing the IEBC to provide
progressive voter registration for Kenyans living
in the diaspora to vote in all elective posts, were
inconsistent with the Constitution and legislative
provisions.
ii.
Whether the IEBC was not afforded an
opportunity to be heard on the issue of diaspora
voting for all elective posts before the Court of
Appeal decision was made.
Constitutional Law-fundamental rights and freedomsenforcement of fundamental rights and freedoms-the right to
vote-the constitutionality of orders requiring the progressive
realization of the right to vote for Kenyans living in the
diaspora to vote in all elective posts-Constitution of Kenya
2010, articles 83(2), 94(1) & (5), 82(1)(e) & 88(5); Elections Act,
No 24 of 2011, section 109(1); Elections (Registration of Voters)
Regulations 2012, regulation 39.
Held
1. The right to vote was not an inalienable right but
was a right which was subject to limitations in a
manner and form permitted in article 24 of the
Constitution of Kenya 2010. Therefore, the right
to vote was not an absolute right.
2. The Court of Appeals directions, which required
the IEBC to ensure that the registration of
Kenyans living in the diaspora as voters in
all elective posts was realized progressively,
expressed the principle of incremental progress
toward a full-scale attainment of the right to vote.
3. The Court of Appeals orders were not a departure
from the terms of the Constitution and were
orders which were aspirational and expressed the
possibility of Kenyans in the diaspora gaining the
capacity to vote in all elective posts apart from
the Presidency and referenda. It was however,
impractical to decree a specific mode of the
exercise of diaspora voting with respect to all
elective posts as from any named date.
4. The IEBC would be required to put in place
mechanisms to ensure that voting at every
election was simplified, transparent and took
into account the needs of persons or groups
with special needs, such as Kenyans living in the
diaspora.
Appeal dismissed
49

The Court of Appeal Cases

Jurisdiction of a family court to grant orders in respect of distribution of properties
registered in the name of a limited liability company
S N K v M S K & 5 others [2015] eKLR
Civil Appeal 139 of 2010
Court of Appeal at Nairobi
R N Nambuye, D K Musinga & A K Murgor, JJA
April 24, 2015
Reported by Nelson Tunoi
Brief Facts:
The 1st respondent filed for divorce at the High Court
against the appellant and consequently the marriage
was dissolved. The High Court ruled in favour of the 1st
respondent awarding a lump sum of Kshs. 10,000,000/= to
the 1st respondent for maintenance; Kshs. 10,000,000/= to
the 3rd respondent for her schooling and upkeep; transfer
of properties owned by a limited liability company to the
1st respondent for her benefit and that of the children; that
the 1st respondent was entitled to 50% ownership of the
properties registered in the appellants name; that Kshs.
80,000,000/= to be paid to the 1st respondent in lieu of her
interest in the limited liability companies where she had
interests together with the appellant; and the costs for
three advocates and interest in the suits filed (the divorce
cause and the originating summons applications). The
appellant thus filed the instant appeal.
Issues:
i. What was the jurisdiction and principles of the
family court in dealing with an application under
section 17 of the Married Womens Property Act,
1882?
ii. Whether the family court has jurisdiction to
grant orders in respect of properties registered in
the name of a limited liability company in which
the spouses were shareholders?
iii. Whether the court could grant lump sums for
maintenance of a divorced spouse and for a
minors schooling and upkeep?
Married Womens Property Act, 1882, section 17:
In any question between husband and wife
as to the title to or possession of property,
either party may apply by summons or
otherwise in a summary way to any judge of
the High Court of justice and the judge
.. may make such order with respect to the
property in dispute, and to the costs of and
consequent on the application as he thinks
fit.
Family law matrimonial property appeal against division
of matrimonial property where the High Court awarded

huge lump sums for maintenance of a spouse and for a
minors schooling and upkeep - whether the family court had
jurisdiction to grant orders in respect of properties registered
in the name of a limited liability company in which the spouses
were shareholders whether the appeal was merited - Married
Womens Property Act, 1882, section 17; Judicature Act (cap
8), section 3; Companies Act (cap 486) sections 211 & 222(2);
Matrimonial Property Act, 2013, section 7
Held:
1. The trial court did not have jurisdiction to order
the transfer of property to the 1st respondent for
her benefit and that of the couples children. The
court equally did not have jurisdiction to order
the appellant to pay the 1st respondent Kshs.
80,000,000/= on account of her shares or interest
in the limited liability company.
2. The High Court could only make such orders in
appropriate proceedings brought under section
211 or 222(2) of the Companies Act (cap 486). The
High Court did not give due regard to the settled
principle of company law in Salmon v Salmon
(1897) AC 22, that a company was a separate legal
person from its shareholders and directors.
3. The Matrimonial Property Act, 2013 was enacted
to remedy the injustice visited upon wives
in dividing property between spouses where
non-financial contribution of a wife towards
acquisition of property by the husband during
marriage was not considered. However, that law
was not in force at the time of the instant case.
4. While the 1st respondent did not demonstrate that
she had made any direct financial contribution
towards acquisition of the properties, she had
made some indirect financial contribution,
though not as high as that of the appellant. The
1st respondent was a minor shareholder in the
family business, which was the major source of
the family finances. Apart from the shareholding,
she served in that company, either as an employee
or otherwise, before her marriage to the appellant
broke down.
5. Although the appellant told the court that the
Cases
Cases
50
1st respondent was a heavy spender and that he

single-handedly financed the family budget and
her lavish lifestyle, the court could not overlook
the fact that her investment in the said company,
financially or otherwise, partially contributed to
the success of the company which translated to
the appellants affluence.
6. From the evidence on record, the court was
unable to find that the 1st respondent was entitled
to 50% ownership of the properties. Had the
High Court correctly applied the principles laid
down by the Court of Appeal in Echaria v Echaria
[2007] eKLR, it would have arrived at a different
conclusion. The 1st respondents indirect
financial contribution towards acquisition of the
properties could at best be assessed at 25% and
her commensurate ownership thereof should be
25% and not 50% as held by the High Court.
7. In making an order for maintenance, the courts
must consider the means of the husband (See:
Tolley v Tolley [1977] KLR 116). The means of a
husband refer to both the cash available at his
disposal and his ability to raise cash through
overdraft, loan or other means (See: J v J [1955]
2 ALL ER 85).
8. Considering the award made for lump sum
payments to the 1st and 3rd respondents for
maintenance and schooling respectively, the issue
was whether it ought to have been periodical
or lump sum. Ordinarily, a lump sum payment
should not be awarded where the effect of such
an order would cripple a business or cause
unnecessary hardship in order to realize the
amount ordered by the court to be paid.

9. The order of lump sum payment of Kshs.
10,000,000/= to the 1st respondent was
substituted with an order of a month payment
of Kshs. 350,000/= during her lifetime or until
she remarries. Further, the 3rd respondent had
attained the age of majority and therefore not
entitled to any statutory maintenance from the
appellant, who had paid for her education up to
university level and had also paid a substantial
sum of money for her maintenance. The order
for the payment of Kshs. 10,000,000/= to the 3rd
respondent for maintenance was set aside.
10. There was no justification for the court to award
costs of the suits for three advocates representing
the 1st respondent. Whereas the trial court had
exercised its discretion in making the order on
costs and interest in favour of the 1st respondent,
the costs ought to have been limited to one
advocate.
Orders:
i. The order of lump sum payment of Kshs. 10,000,000/=
to the 1st respondent substituted with an order of a
monthly payment of Kshs. 350,000/= during her
lifetime or until she remarries.
ii. The order for the payment of Kshs. 10,000,000/= to
the 3rd respondent for maintenance set aside.
iii. Costs for the trial suit awarded to the 1st respondent
for one advocate.
iv. Each party to bear their own costs of the appeal.
Three Year waiting period for parties who contract marriages with foreign nationals to
gain citizenship was reasonable and not discriminatory
Khatija Ramtula Nur Mohamed & another v Minister for Citizenship and Immigration & 2 others
Civil Appeal 51 of 2013
Court of Appeal at Mombasa
Okwengu H M, Makhandia A & Sichale F, ( JJA)
February 26, 2015
Reported by Phoebe Ida Ayaya
Brief facts
The 1 appellant, a Kenyan and the 2 appellant, a
Pakistani contracted a marriage under Islamic Law. The
2nd appellant came to Kenya under an Alien Certificate
issued pursuant to the Immigration Act. Whilst in Kenya,
the 2nd appellant with others incorporated a company,
but due to differences in the company, his co-directors
hatched a scheme to have him deported by detaining his
passport and so he was unable to renew his visa when
it expired. The two appellants filed a constitutional
petition seeking a declaration that the Citizenship and
Immigration Act was unconstitutional to the extent
that it discriminated upon them from getting automatic
st
nd
residency status by virtue of their marriage, contrary to

article 27 of the Constitution of Kenya, 2010. The High
Court dismissed the petition and that decision resulted
in this appeal.
Issue
Whether section 37(d) of the Citizenship and Immigration
Act was unconstitutional.
Constitutional Law Fundamental rights and freedoms
right to residency where a Kenyan national and a foreign
national contracted a marriage where the parties contracted
a marriage under Islamic Law where the foreign national
obtained entry into Kenya using an alien certificate where the
51

foreign national was supposed to obtain permanent residence

after three years of marriage whether the three year waiting
period for parties who contract marriages with foreign nationals
was unreasonable and/or discriminatory Citizenship and
Immigration Act, section 37; Constitution of Kenya, 2010
articles 24(1) and 45(1).
Constitution of Kenya, 2010
Article 24(1):A right or fundamental freedom in the Bill of
Rights shall not be limited except by law, and then only to the
extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including
(a) The nature of the right or fundamental freedom;

(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The need to ensure that the enjoyment of rights and
fundamental freedoms by any individual does not

prejudice the rights and fundamental freedoms of
others; and
(e) The relation between the limitation and its purpose
and whether there are less restrictive means to achieve

the purpose.
Article 45(1)The family is the natural and fundamental unit

of society and the necessary basis of social order, and shall enjoy
the recognition and protection of the State.
(2) Every adult has the right to marry a person of the opposite
sex, based on the free consent of the parties.
(3) Parties to a marriage are entitled to equal rights at the time
of the marriage, during the marriage and at the dissolution of
the marriage.
(4) Parliament shall enact legislation that recognizes-
(a) marriages concluded under any tradition, or system of

religious, personal or family law; and
(b) any system of personal and family law under any

tradition, or adhered to by persons professing a
particular religion,
To the extent that any such marriages or systems of law are

consistent with this Constitution.
Citizenship and Immigration Act
Section 37: The following persons their children and spouses,
shall be eligible upon application in the prescribed manner for
grant of permanent residence status in Kenya
(a) ...
(b) ...
(c) ...
(d) The spouses of Kenyan citizen married for at least
three years
Held
1. Although article 45 of the Constitution of Kenya,
2010 placed a premium on the family unit, the
Court was alive to the fact that whatever rights
the Constitution bestowed, there were also
limitations and/or qualifications in the same
Constitution for the full attainment of such rights.
To this end, section 37(d) of the Citizenship and
Immigration Act that placed a fetter on automatic
acquisition of citizenship was in tandem with
article 24(1) of the Constitution of Kenya, 2010.
2. The provision of a three (3) year waiting period
was reasonable, justifiable and not unduly long,
bearing in mind the importance of the purpose
of the limitation since, if there was no such
limitation, undesirable persons could enter the
country, contract a marriage for convenience and
automatically become citizens which would pose
a real danger to the countrys security.
3. In addition, the contention that the position
was discriminatory was untenable because
the provision affected the Kenyan spouse as
well as the foreign spouse not the foreign
spouse alone. Therefore, the limitation was not
unconstitutional.
Appeal dismissed
Cases
Cases
52
Court of appeal departs from its own decisions on the issue of defective charge sheets
based on the phrase jointly charged
Isaac Nyoro Kimita & another v R
Court of Appeal at Nairobi
Criminal Appeal No. 187 of 2009
D.K.Maraga, J.W.Mwera & J. Mohammed, JJ.A
November 14, 2014
Issues:
i.
Whether or not a court is bound by its previous

decisions on a particular issue or it whether it can
depart from it.
ii.
Whether or not the use of the term jointly

charged in the particulars of the charge sheet
prejudiced an accused person
iii.
Whether the evidence of the complainant, a

minor, required corroboration
Criminal Practice and Procedure charge sheet defective

charge sheet claim that the particulars section in the charge
sheet was wrongly worded and therefore occasioned an injustice
to the accused persons during trial whether a defective charge
sheet could lead to an acquittal of the accused person in the
circumstances
Criminal Practice and Procedure charge sheet defective
charge sheet use of the phrase jointly charged in the
particulars section of a charge sheet whether the phrase could
be said to occasion an injustice to the accused person where he
was charged with the offence alongside other co-accuseds
doctrine of precedent where a court is bound by its previous
decisions on a particular issue departure of the court on its
previous decisions instances where a court can depart from
its previous decisions whether the court in the instant matter
was justified in its departure from its previous decisions on the
issue of jointly charged
Stare Decisis doctrine of precedent where a court is
bound by earlier decisions of a superior court court reliance
on its previous decisions by a superior court for the effect of
consistency in a particular subject matter whether a court
was bound by its previous decisions
Section 134 of the Criminal Procedure Code
It provides that:
Every charge or information shall contain, and shall
be sufficient if it contains, a statement of the specific
offence or offences with which the accused person is
charged, together with such particulars as may be
necessary for giving reasonable information as to the
nature of the offence charged.
Held:
1. The complainant, a minor, could not have
voluntarily given her consent to the sexual

intercourse with the appellant.
2. It was practically impossible for two men to
jointly defile one girl or to rape one woman.
3. For consistency and to avoid confusion, a court
should follow its previous decisions. However,
where it appeared that its previous decision was
either per incuriam or was no longer a sound
statement of the law, the Court of Appeal could
depart from such previous decision.
4. A court of law should not be hyper technical but
should strive to do substantive justice in each
case. That was the command under Article 159 of
the Constitution.
5. The Court should however, not ignore the
requirements of the law. Section 134 of the
Criminal Procedure Code required in mandatory
terms that every charge should be precise and
abundantly clear to the appellant.
6. The Court had no doubt that the appellant knew
that it was practically impossible for him and
others to have jointly defiled the complainant.
He therefore understood the charge against
him to have been that on the material date,
while together with others engaged in an
illegal enterprise, they successively defiled the
complainant. It was confirmed by the fact that
in the trial, the appellant extensively crossexamined prosecution witnesses and defended
himself.
7. The defects in the charge sheet were minor and
did not prejudice the appellant. They did not
occasion any miscarriage of justice or violate
the appellants constitutional right to a fair trial.
Therefore, that being the Court of Appeals view
of the matter, they departed from the holding in
the Paul Mwangi Murunga v R [2008]eKLR.
8. The law was clear that the evidence of the
complainant, a minor, required corroboration.
In sexual offences, however, where the minor
was the victim of the offence, the evidence of
that minor, if believed by the trial court, could,
without corroboration, found a conviction.
Appeal dismissed.
53

High Court Cases

Court Declares Section 43(5) of the Elections Act Unconstitutional in its limitation to the
Rights of Public Officers to vie for by-elections
The Union of Civil Servants & 2 Others v Independent Electoral and Boundaries Commission & Another
High Court at Nairobi
Constitution and Human Rights Division
Petition No. 281 of 2014 & Petition No. 70 of 2015 (Consolidated)
Isaac Lenaola J.
March 18, 2015
Brief facts
Petition No.281 of 2014 was about the constitutionality
or otherwise of Section 43(5) of the Elections Act, 2011
which provided that a public officer must resign six
months before a by- election date if he wished to contest
such an election. Further, that the said law unfairly barred
such an officer from lawfully contesting for a position in a
by-election because it was practically impossible to meet
its expectations. They also alleged that Section 43(5) of
the Elections Act was discriminatory as read with Section
43(6) if applied in General Elections regarding public
officers. Counsel opposed the claim that the petition
was barred by the doctrine of res judicata submitting that
the instant petition raised different issues as compared
to those in Charles Omanga & Another v Independent
Electoral and Boundaries Commission & Another
(Charles Omanga), Evans Gor Semelango v Independent
Electoral and Boundaries Commission & Another (Gor
Semelango) and Patrick Muhiu Kamilu v Independent
Electoral and Boundaries Commission & Another
(Patrick Muhiu). That the question of constitutionality or
otherwise of section 43(5) of the Elections Act vis--vis
Articles 27 and 38(3)(c ) of the Constitution in the context
of all Parliamentary and County Assembly by-elections
has never been canvassed or adjudicated upon in the
aforesaid cases or in any other case.
Petition No.70 of 2015 raised the same issues as Petition
No.281 of 2015 save that the Petitioner was a public officer
serving in the National Treasury until his resignation
on 9th February 2015. He averred that he was desirous
of contesting the Kabete Constituency by-election
scheduled for 4th May 2015 and he was apprehensive that
because of the existence of Section 43(5) of the Elections
Act, his rights under Article 38(3) of the Constitution
were at the risk of being violated.
Issues:
i.
Whether the doctrine of res judicata barred the
court from entertaining the petition in light of the
decisions in Charles Omanga, Gor Semelango
and Patrick Muhia
ii.
iii.
iv.
v.
vi.
Whether there was a difference in the application

of the doctrine of res judicata in civil law and in
constitutional matters
Whether section 43(5) of the Elections Act was
unconstitutional to the extent that it barred a
public officer from vying in a by-election
Whether section 43(5) of the Elections Act
violated the petitioners right to equity and
freedom from discrimination as provided under
Article 27 of the Constitution
Whether the provisions of section 43(5) of the
Elections Act were reasonable, practical and
tenable in relation to a by-election where no
certain date could be set in advance
Whether the limitation of the right to enjoyment
of political rights as set out in section 43(5) of the
Elections Act was reasonable and justifiable in
the context of a by-election
Constitutional law interpretation of a constitutional

provision constitutionalityof Section 43(5) of the Elections
Act where section43 (5) of the Actprovided that a
publicofficer must resign six months before a by- election date
if he wished to contest such an election whether the section
was reasonable practical and tenable in relation to a by-election
where no certain date could be set in advance - whether the
section was unconstitutional to the extent that it barred a public
officer from vying in a by-election Constitution of kenya,
2010 article 38,101(1) - Elections Act, 2011 section 43 (5)
Electoral law political rights where the Election Act
provides that a public officer must resign six months before
a by- election date if he wished to contest such an election whether the limitation of the right to enjoyment of political
rights was reasonable and justifiable in the context of a byelection Elections Act, 2011, sections 43(5),
Civil practice and procedure resjudicata preliminary
objection claimthat issues of Parliamentary and County
Assembly by-elections had been canvassed or adjudicated before
in previous cases fundamental principles of the doctrine of
resjudicata whether there was a difference in the application
of the doctrine of res judicata in civil law and in constitutional
matters - whether the application had merit
Cases
Cases
54
Elections Act, 2011

Section 43(5) provides as follows;
A public officer who intends to contest an election
under this Act shall resign from public office at
least seven months before the date of election.
Constitution of Kenya, 2010
Article 38 provides as follows;
Every adult citizen has the right, without
unreasonable restrictions(a)
(b)
To be registered as a voter;
To vote b by secret ballot in any election
or referendum; and
(c )
To be a candidate for public office, or
office within a political party of which
the citizen is a member and, if elected, to
hold office.
Article 101(1) provides as follows;
(1)
A general election of members of
Parliament shall be held on the second Tuesday
in August in every fifth year.
Held:
1. The basis for the doctrine of res judicata was that
if a controversy in issue had been finally settled
or had been determined by a Court of competent
jurisdiction, it could not be re-opened. The
doctrine was further based on two fundamental
principles; that there ought to have been an end
to litigation and that a party should not have been
vexed twice over the same cause.
2. It had generally been the position of the High
Court that res judicata should only have been
invoked in the clearest of cases and only where
a party was litigating the same issue twice, on
the same conditions as above. In rights based
litigation particularly, the invocation of the
principle should only be done very sparingly and
in the most obvious of cases. In other words, in
constitutional matters, Courts should be slow
to invoke res judicata or risk violating the same
rights, including that of access to justice, which
they ought to jealously guard.
3. The parties in the petition were not quite the same
as those in Charles Omanga, Gor Semelango and
Patrick Muhia Kamilu although the Respondents
largely remained the same. In fact, whereas
Charles Omanga filed his Petition without any
personal interest in any by-election, both Gor
Semelango and Patrick Muhia Kamilyu were
prospective contestants in by-elections.
4. In none of the two last cases involving by-elections
was the constitutionality of section 45(3) of the
Elections Act addressed in depth neither was a
categorical decision made on the issue. Therefore
on a serious consideration of the matter and
in the specific circumstances of the petition,
the issue before the Court was live and had not
been previously determined. This was because
while all the mentioned Petitions basically
concerned eligibility to contest in an election
(save for Charles Omanga which was narrowed
down to a general election) the instant Petition
sought a determination of the constitutionality
or otherwise of section 43(5) of the Elections Act
in so far as the eligibility of a public officer to
contest in a by-election was concerned.
5. While an interpretation of section 43(5) of
the Elections Act may have been an issue in all
Petitions, the real issue in contest in the instant
petition was different and being a constitutional
Petition, the Court found it difficult to bar the
Petitioners in Petition No.281 of 2014 from being
heard and the principle of res judicata could not
have been invoked. The High Court therefore
had jurisdiction to entertain the Petitioners
claim in Petition No.281 of 2014.
6. For the Government at the national and devolved
levels to function during an election period,
certain functions could not have been suspended
including those of the President and County
Governor, otherwise there would be chaos. How
would the Government function without the
Head of State and other such Officers? The same
Constitution also differentiated between elected
officials and other public officials because the
former had specific time frames within which
they ought to have served invariably for five years.
7. The same findings ought to apply to a by-election
and there could not be a sound argument that
the said section was discriminatory as alleged. It
mattered not whether the discrimination alleged
was between different categories of public
officers or between public officers and the general
populace. The findings remained the same.
8. In the context of a general election and by
comparison, there was certainty as to the date
of such an election because as provided for
under article 101(1) of the Constitution general
elections were to be held on the second Tuesday
in August every fifth year. Therefore, a public
officer had sufficient notice of an election date
and could properly resign within the period
given which was otherwise reasonable.
9. The rights to equality and freedom from
discrimination and political rights under articles
27 and 38 of the Constitution, respectively,
could be limited. Further, article 24 permitted
the limitation of certain rights but under a strict
and elaborate scrutiny anchored upon the test of
reasonability and justifiability.
10. Once a limitation of a fundamental right and
freedom had been pleaded as had happened in
the instant Petition, (on grounds of equality and
freedom from discrimination under article 27 of
the Constitution and political rights under article
55
38 of the Constitution), then the party which

would benefit from such a limitation ought to have
demonstrated a justification for the limitation. In
demonstrating that the limitation was justifiable,
such a party ought to have demonstrated that
the societal need for the limitation of the right
outweighed the individuals right to enjoy the
right or freedom in question.
11. The impartiality of public servants was a cardinal
value enshrined in article 232(1)(a) of the
Constitution which provided that a public servant
and service ought to be responsive, prompt,
efficient, impartial and equitable in the provision
of services. How could a public servant espouse
those principles if he was allowed to remain in
office until the election date? Therefore, on the
need for neutrality, the limitation in the law was
reasonable.
12. Section 43(5) of the Elections Act was not
reasonable and justifiable in the context of a byelection because as could be discerned from the
provisions of article 101(4) of the Constitution,
a by-election was conducted subject to a vacancy
arising in circumstances contemplated under
article 103 of the Constitution. Taking those
circumstances into account i.e. death, resignation,
disqualification etc., it would have been difficult
to predict and foresee the possibility of a vacancy
arising in Parliament or a County Assembly so
that a public officer could prepare to contest in
that by-election. Those circumstances were also
uncertain.
13. Despite the above uncertainties, the law as
stipulated in article 101(4)(b)of the Constitution
was clear that a by-election ought to have been
held within three months of a vacancy arising.
How then could one say that seven months
was reasonable and justifiable when the period
envisaged under section 43(5) was longer than
that stipulated under article 101(4)(b) of the
Constitution?
14. It could not have been the intention of the drafters
of the Constitution that the enjoyment of the
rights under article 38 (3)(c) of the Constitution
should have been limited differently; in the case
of a general election and in the case of a byelection. That contradiction and the limitation
were certainly unreasonable and there is no
justification for it specifically in the case of a byelection.
15. The contradiction created by section 43(5)
and 2 of the Elections Act, could not override
the provisions of article 101(4) (b) of the
Constitution. Article 2 of the Constitution was
clear in that regard, that the Constitution was
the Supreme law and any law inconsistent with
the Constitution was void to the extent of that
inconsistency.
16. There was no justification for denying a public
officer the right to contest a vacant seat in a byelection if he had resigned as soon as a vacancy
had occurred and that was as soon as the Speaker
of either House of Parliament had given notice of
the vacancy to the IEBC under article 101(4)(a) of
the Constitution. To hold otherwise would be to
promote an absurdity that was never intended by
the drafters of the Constitution.
17. On whether it would be impossible for public
officers to resign and be ready for a by-election
given a public officer ought to issue and serve
sufficient notice before resignation, even if it were
so, there were no difficulties with that situation
because a by-election had no connection with
employment and in any event, employment
disputes could be resolved through other avenues
known in law.
18. Applying the reasonability test to the
circumstances of the two Petitions before court,
it was clear that section 43(5) of the Elections Act
did not meet the fairness and reasonability test as
provided for under Article 24 of the Constitution.
19. Article 159(2) (d) of the Constitution was relevant
in such a situation as it empowered the Court
to administer justice without undue regard to
technicalities and having found section 43(5) of
the Elections Act to be unreasonable in limiting
the political rights of public officers under article
38 of the Constitution to contest a by-election. It
was therefore declared unconstitutional only to
the extent that it applied to a by-election.
20. (Obiter) I am cognizant that this matter is of
considerable interest to public officers who
may wish to run for elective positions, let this
judgment sound as a preparatory gong to them;
they cannot have one leg in public service and
another at their elective area. The law was
designed to aid them make up their minds on
where they want to maximize their energies.
Seven months before the election date is sufficient
time for them to prepare themselves to meet their
fate at the election box. A longer period would
be unreasonable and a shorter period would be
more unreasonable.
Orders:
i.
Section 43(5) of the Elections Act was unreasonable in
its limitation of the rights of public officers under Article
38(3)(c ) of the Constitution to vie in a by-election and
to that extent only was declared unconstitutional.
ii.
A declaration issued that save for any other lawful
reason, Wilson Kangethe Mburu was qualified to
contest the by-election for Member of the National
Assembly for Kabete Constituency.
iii.
A permanent injunction was issued to restrain the
IEBC from barring a public officer from contesting a
by-election under Article 101(4) of the Constitution on
grounds that the public officer had not resigned from
office within seven months of the by-election as such
Cases
56
iv.
v.
Cases
a period would have been untenable and impractical
under the said Article 101(4) of the Constitution.
A copy of this judgment was to be be forwarded
to the IEBC and the Attorney General to consider
amendments to Section 43(5) of the Elections Act to
bring it in line, preferably, with the 90 day period
under Article 101(4) of the Constitution in the event
of a by-election and taking into account all other
factors including reasonable notice of resignation by
the public officer.
Each party was to bear its own costs.
Law Reform issue:

Given my findings as above, I direct that a copy of
this judgment be served on the IEBC and the Attorney
General so that they can move with haste and address the
anomaly created by Section 43(5) of the Elections Act
with respect to a by-election. If any guidance is needed,
they may take heed from the provisions of Article 101(4)
of the Elections Act as I have explained in this Judgment.
Court declares certain sections of the Security Laws (Amendment) Act, unconstitutional
Coalition for Reform and Democracy (CORD) & 2 others V Republic of Kenya, Attorney
General & 7 others
Petition No.628 of 2014 Consolidated with Petition No.630 of 2014 and Petition No.12 of 2015
I Lenaola, M Ngugi, H Ongudi, H Chemitei, J L Onguto, JJ
February 23, 2015
Reported by Longet Terer and Njeri Githanga
The
consolidated
petitions
challenged
the
Constitutionality of various sections of the Security Laws
(Amendment) Act, No 19 of 2014 (SLAA) which amended
the provisions of twenty two other Acts of Parliament
concerned with matters of national security. The Security
Laws (Amendment) Bill was published on December 11,
2014. It was debated on December 18, 2014 and passed. It
received Presidential assent on December 19, 2014. SLAA
came into force on 22nd December 2014.
Issues
i.
Whether the Court had jurisdiction to determine
the petition in terms of.
a) Whether the issues in dispute were ripe for
determination;
b) Whether the Court could be guided by the
doctrine of avoidance;
c) Whether determination of the issues raised
in the matter was a violation of the doctrine
of separation of powers;
d) Whether the Kenya National Commission on
Human Rights (KNCHR) as a constitutional
commission could lodge a claim against the
State.
ii.
Whether the process of enactment of SLAA
was in violation of the Constitution in terms of
whether:
a) The enactment was unconstitutional for
failure to involve the Senate in legislation
that involved Counties;
b) The process was unconstitutional in light of
the chaotic manner of enactment of SLAA
that was in breach of Parliamentary Standing
Orders with regard to Parliamentary debate
and voting;
c) The process was flawed and unconstitutional
iii.
iv.
v.
vi.
for lack of public participation;

d) In light of the shortcomings above,
the presidential assent to the Bill was
unconstitutional.
Constitutionality of the provisions of SLAA vis -a
-vis the Bill of Rights in that whether SLAA was
unconstitutional for violation of:
a) The right to freedom of expression and the
right to freedom of the media guaranteed
under Articles 33 and 34;
b) The right to privacy under Article 31;
c) The rights of an arrested person under Article
49 and the right to fair trial under Article 50;
d) Entitlement to citizenship and registration of
persons under Article 12;
e) The right to freedom of movement under
Article 39 and the rights of refugees under
Articles 2(5) and 2(6) of the Constitution and
International Conventions.
Whether the amendments to various Acts of
Parliament contained in SLAA limited the Bill of
Rights and whether the limitation was justifiable
in a free and democratic society.
Whether the provisions of the Act were
unconstitutional for violating the provisions of
Articles 238, 242 and 245 of the Constitution
with regard to national security, appointment
and tenure of office of the Inspector General of
Police, creation of the National Police Service
Board and the appointment and tenure of the
National Intelligence Service Director General
and the Deputy Inspector General of Police.
The extent to which the court could inquire
into the processes of the legislative arm of
government and in particular, whether the court
could interrogate parliamentary proceedings.
57
vii.
Whether matters of National Security were

exclusively vested on the National Assembly or
both the National Assembly and the Senate and
in what circumstances.
viii.
Whether the correspondence between the
Speakers of the Senate and the National Assembly
amounted to consultation as contemplated
under article 110 (3) of the Constitution and
concurrence under Standing Order No 122.
ix.
Whether the State could set a cap on the
number of refugees allowed into the country,
without running afoul of the Constitution and
international treaties to which it was a party, and
which, under article 2(5) and (6), were part of
Kenyan law.
Constitutional law- enforcement of Bill of Rights whether the
amendments to various Acts of Parliament contained in SLAA
limit or violate the Bill of Rights or are otherwise inconsistent
with the Constitution of Kenya Whether the process leading
to the enactment of SLAA was in violation of the ConstitutionConstitution of Kenya, 2010 , articles
Constitutional law public participation - degree of
participation in the law-making process whether the public
was accorded reasonable opportunity in the law making process
- what amounted to a reasonable opportunity whether
the process leading to the enactment of the Security Laws
Amendment Act 2014 complied with the public participation
standards required in the Constitution.
Constitutional Law - separation of powers - distribution
of power to the Legislature and Judiciary - independence of
branches of democratic government in performing functions
- extent and role of the Judiciary in reviewing parliamentary
proceedings and outcomes - Consultation and concurrence
- Whether the enactment of SLAA was unconstitutional for
failure to involve the Senate- Art 110(3)
Jurisdiction-jurisdiction of the High Court - constitutional
jurisdiction of the High Court to hear any question respecting
the interpretation of the Constitution - constitutional
avoidance doctrine - whether the doctrine was applicable in
the circumstances-whether the High Court had jurisdiction to
determine the constitutionality of any law before its violation
-Constitution ofKenya, 2010, article 165 (3)(d).
Held;
1. Article 259 of the Constitution required that the
Court, in considering the constitutionality of any
issue before it, interprets the Constitution in a
manner that promotes its purposes, values and
principles, advances the rule of law, human rights
and fundamental freedoms in the Bill of Rights
and that contributes to good governance. Article
159(2) (e) of the Constitution which require the
Court, in exercising judicial authority, to do so in
a manner that protects and promotes the purpose
and principles of the Constitution. The court
was hence enjoined to give it a liberal purposive
2.
3.
4.
5.
6.
7.
8.
interpretation. The Court was also required, in

interpreting the Constitution, to be guided by the
principle that the provisions of the Constitution
had to be read as an integrated whole, without any
one particular provision destroying the other but
each sustaining the other,
There was a general presumption that every Act
of Parliament was constitutional and the burden
of proof lay on any person who alleged that an
Act of Parliament was unconstitutional. However,
the Constitution itself qualified that presumption
with respect to statutes which limited or were
intended to limit fundamental rights and freedoms.
Under article 24 there could be no presumption
of constitutionality with respect to legislation
that limited fundamental rights: it had to meet the
criteria set in the said article.
The Court was also required, in determining
whether an Act of Parliament was unconstitutional,
to also consider the objects and purpose of the
legislation and also its effect.
The words in articles 22, 165(3) (d) and 258 of the
Constitution taken in their ordinary meaning made
it clear that controversy before the court was ripe
and justiciable: a party did not have to wait until a
right or fundamental freedom had been violated, or
for a violation of the Constitution to occur, before
approaching the Court. He had a right to do so if
there was a threat of violation or contravention of
the Constitution.
It could not have been in vain that the drafters
of the Constitution added threat to a right
or fundamental freedom and threatened
contravention as one of the conditions entitling
a person to approach the High Court for relief
under article 165(3) (b) and (d) (i). A threat had
been defined in Blacks Dictionary, 9th Edition as
an indication of an approaching menace e.g. threat of
bankruptcy; a Person or a thing that might cause harm
(emphasis added). The same dictionary defined
threat as a communicated intent to inflict harm or
loss to another
The use of the words indication, approaching,
might and communicated intent all went to
show, in the context of articles 22, 165(3) (d) and
258, that for relief to be granted, there needed not
be actual violation of either a fundamental right
of the Constitution but that indications of such
violations were apparent.
The test to apply when a court was confronted with
alleged threats of violations was that each case had
to be looked at in its unique circumstances, and
a court had to differentiate between academic,
theoretical claims and paranoid fears with real
threat of constitutional violations.
Where the basic structure or design and
architecture of the Constitution were under
threat, the Court could genuinely intervene and
protect the Constitution. Clear and unambiguous
Cases
58
Cases
threats such as to the design and architecture of the

Constitution were what a party seeking relief had
to prove before the High Court could intervene.
9. The doctrine of constitutional avoidance required
the courts to resolve disputes on a constitutional basis
only when a remedy depended on the constitution.
However, in the case, the petitioners and some
interested parties challenged the constitutionality
of various provisions of diverse legislation which
impacted inter alia on constitutional guarantees
in the Bill of Rights. The Constitution had vested
the Court with the jurisdiction to determine the
question whether any law was inconsistent with
or in contravention of the Constitution. It could
not be left to the trial courts to determine whether
or not the amendments to the Penal Code, for
instance, or the Prevention of Terrorism Act,
were constitutional for that was a mandate vested
expressly in the High Court by the Constitution
under article 165 (3)(d). The doctrine of avoidance
was hence not applicable in the circumstances.
10. The doctrine of separation of powers did not
stop the court from examining the acts of the
Legislature or the Executive. Under article 165(3)
(d) of the Constitution, the Judiciary was charged
with the mandate of interpreting the Constitution;
and had the further mandate to determine the
constitutionality of acts done under the authority
of the Constitution.
11. The effect of the constitutions detailed provision
for the rule of law in the process of governance
was that the legality of executive or administrative
actions was to be determined by the Courts, which
were independent of the executive branch. The
essence of separation of powers, in that context,
was that the totality of governance powers was
shared out among different organs of government,
and that the organs played mutually countervailing
roles. In that set-up, it was to be recognized that
none of the several government organs functioned
in splendid isolation.
12. It was not the Courts which limited Parliament
rather it was the Constitution itself. It also set
constitutional limits on the acts of the three arms of
government while giving the Court the jurisdiction
to interpret the constitutionality of any act said to
be done under the authority of the Constitution.
13. Article 59 of the Constitution under which KNCHR
was established indicated that among its objects
were to investigate any conduct in state affairs,
or any act or omission in public administration
in any sphere of government, that was alleged or
suspected to be prejudicial or improper or to result
in any impropriety or to prejudice; to investigate
complaints of abuse of power, unfair treatment,
manifest injustice or unlawful, oppressive, unfair
or unresponsive official conduct and to report on
complaints investigated and also take remedial
action. There was nothing in the Constitution
that would preclude a constitutional commission

from instituting any proceedings against the
government on any ground as a remedial action. In
addition, article 249 of the Constitution gave the
Commission powers to secure the observance by
all state organs of democratic values and principles;
and the promotion of constitutionalism.
14. Under article 110(3) of the Constitution and
Standing Order No. 122, the two Speakers of both
parliaments were expected to consult and in the
instant case in view of the correspondence between
them that had been placed before the court, they
did. There was concurrence between the Speakers
and the SLAA was enacted in compliance with
article 110(3) and Standing Order No. 122.
15. There was no provision that obligated the National
Assembly to legislate on security matters in
consultation with the Senate and article 238(2)(a)
could not be such a provision. In that context, SLAA
was an omnibus Act with amendments to existing
legislation previously enacted or creation of new
provisions. There was no basis for the National
Assembly to subject such a legislative process to the
Senate whose mandate was largely a matter relating
to Counties and not the enactment of every piece
of conceivable legislation per se. Had the drafters
of the Constitution intended otherwise, they would
have said so expressly in article 96. Article 238(2) (a)
was not violated by the National Assembly in the
passage of SLAA.
16. Under article 124(1) of the Constitution,
a jurisdiction such as Kenyas in which the
Constitution is supreme, the Court had jurisdiction
to intervene where there had been a failure to
abide by Standing Orders which had been given
constitutional underpinning under the said article.
However, the court had to exercise restraint and
only intervene in appropriate instances, bearing in
mind the specific circumstances of each case.
17. While evidence was presented of the chaotic scenes
in the House during debate on the Bill, no evidence
was presented of the allegation that there were
strangers in the House who participated in the
proceedings and voting. However, even if there was
evidence of the presence of strangers in the National
Assembly, Article 124 (3) of the Constitution
anticipated such an eventuality and provides that:
The proceedings of either House are not invalid
just because of the presence or participation of any
person not entitled to be present at, or to participate
in the proceedings of the House.
18. From the Hansard, it could only be confirmed that
there were moments of loud consultations during
the debate and vote on the Bill but ultimately the
Bill was passed. Neither the 10-minute video
evidence nor submissions that the Hansard may
not have been authentic could override the fact that
the Hansard, as the lawful record of proceedings
59
in the National Assembly could not be wished

away by the Court without strong evidence to the
contrary. The Hansard indicated that although
there was disorder in the National Assembly, SLAA
was passed and was eventually assented to by the
President. There was no clear, blatant disregard of
the Standing Orders of the National Assembly.
19. The sacred fountain of the constitutional doctrine of
public participation was embedded in the principle
of sovereignty of the people under article 1 of the
Constitution. In addition, article 2 contemplated
direct and indirect exercise of sovereignty by the
people through elected representatives, at all times
the people reserving the right to direct exercise of
sovereignty. The right of public participation was
further captured as one of the national values and
principles of governance enshrined in article 10 of
the Constitution.
20. The forms of facilitating an appropriate degree
of participation in the law-making process
were indeed capable of infinite variation. What
matters was that at the end of the day a reasonable
opportunity was offered to members of the public
and all interested parties to know about the issue
and to have an adequate say. What amounted to
a reasonable opportunity would depend on the
circumstances of each case.
21. The Memoranda of the Administration and
National Security Committee on the Security Laws
(Amendment) Bill, 2014 indicated that a total of
46 stakeholders gave their input on the Bill.In the
circumstances, and taking into account the views of
authorities on public participation, local and from
other jurisdictions, the National Assembly acted
reasonably in the manner in which it facilitated
public participation on SLAA.
22. While acknowledging that an opportunity could
have been availed for greater public participation,
it would be to expect too much to insist that every
Kenyans view ought to have been considered
prior to the passage of SLAA or any statute for
that matter. In any event, the members of the
National Assembly pursuant to articles 1(2), 94(2),
95(1) and 97 of the Constitution also represented
the people of Kenya. While such representation
could not be said to dispense with the need for
public participation, taken together with the
views expressed by the organisations, there was
reasonable public participation and SLAA could
not be held unconstitutional on account of lack
of public participation. A fortiori, the Presidential
assent could not be faulted as the process leading to
the same was within the ambit of the law.
23. A party alleging violation of a constitutional right
or freedom had to demonstrate that the exercise of a
fundamental right had been impaired, infringed or
limited. Once a limitation had been demonstrated,
then the party which would benefit from the
limitation had to demonstrate a justification for
the limitation. The State, in demonstrating that

the limitation was justifiable, had to demonstrate
that the societal need for the limitation of the right
outweighed the individuals right to enjoy the right
or freedom in question.
24. The guiding test for determining the justifiability of
a rights limitation was;
a. The limitation be one that was prescribed
by law. It had to be part of a statute, and
be clear and accessible to citizens so that
they were clear on what was prohibited.
b. The objective of the law had to be
pressing and substantial, that it had to be
important to society.
c. The principle of proportionality;
whether the State, in seeking to achieve
its objectives, had chosen a proportionate
way to achieve the objectives that
it sought to achieve; They must be
rationally connected to the objective
sought to be achieved, and must not be
arbitrary, unfair or based on irrational
considerations. Secondly, they must limit
the right or freedom as little as possible,
and their effects on the limitation of
rights and freedoms are proportional to
the objectives.
25. Article 24 of the Constitution expressed the
manner of considering the constitutionality of a
limitation on fundamental rights by requiring that
such limitation be reasonable and justifiable in a
free and democratic society, and that all relevant
factors are taken into account, including the nature
of the right, the importance of the purpose of the
limitation, the nature and extent of the limitation
and the need to balance the rights and freedoms of
an individual against the rights of others.
26. Section 34 of SLAA was unconstitutional to the
extent that it included telescopes in the Section 2 in
the Firearms Act.
27. Aside from the recognition and protection given in
the Constitution, the right to freedom of expression
was also protected under international covenants
to which Kenya was a party and which formed
part of Kenyan law by virtue of article 2(6) of the
Constitution.
28. General Comment No. 34 (CCPR /C/GC/34) on
article 19 of the ICCPR, the United Nations Human
Rights Committee emphasized the close interlinkage between the right to freedom of expression
and the enjoyment of other rights.
29. Protection of the right to freedom of expression
was of great significance to democracy. It was the
bedrock of democratic governance. The importance
of freedom of expression including freedom of the
press to a democratic society could not be overemphasised. Freedom of expression enabled the
public to receive information and ideas, which
were essential for them to participate in their
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governance and protect the values of democratic

governance, on the basis of informed decisions. It
promoted a market place of ideas. It also enabled
those in government or authority to be brought to
public scrutiny and thereby hold them accountable.
30. The constitutional guarantee of freedom of
expression in Kenyas Constitution was not
absolute, and was subject to the limitations set out
in article 33(2) which stated that the protection
of freedom of expression did not extend to
propaganda for war, incitement to violence, hate
speech or advocacy of hatred that constituted ethnic
incitement, vilification of others or incitement
to cause harm and was based on any ground of
discrimination specified or contemplated in article
27 (4). Such limitations also accorded with article
19(3) of ICCPR,
31. The State could penalize the broadcast or
publication of any expression that fell under article
33(2), namely propaganda for war, incitement to
violence, hate speech and advocacy to hatred. The
new offence under the Penal Code that sought to
punish insulting, threatening, or inciting material or
images of dead or injured persons which are likely to
cause fear and alarm to the general public or disturb
public peace which were not defined in the section,
and were therefore left to subjective interpretation,
misinterpretation and abuse, limited the freedom
of expression to a level that the Constitution did
not contemplate or permit, and in a manner that
was so vague and imprecise that the citizen was
likely to be in doubt as to what was prohibited.
32. The provisions of Section 12 of SLAA and Section
66A of the Penal Code limited the right to freedom
of expression and of the media to such a large extent
that they could not be said to be in conformity with
the Constitution, unless they could be justified as
proportional to the object sought to be achieved,
and a rational nexus could be discerned between
the limitations and the object or purpose sought to
be achieved.
33. Freedom of expression demanded that it could not be
suppressed unless the situations created by allowing
the freedom were pressing and the community
interest was endangered. The anticipated danger
should not be remote, conjectural or farfetched. It
should be proximate and (have) direct nexus with
the expression. The expression of thought should
be intrinsically dangerous to the public interests.In
other words the expression should be inseparably
locked up with the action contemplated like the
equivalent of a spark in a powder keg.
34. A media that is cognizant of its role and responsibility
to society with regard to terrorism would be
expected to exercise restraint in its coverage of
terrorism and terrorist activity. Further, a properly
functioning self-regulatory media mechanism such
as was contemplated under the Media Act, 2013
ought to have and demand strict adherence to clear
guidelines on how the media reports on terrorism

to avoid giving those engaged in it the coverage that
they thrive on, to the detriment of society.
35. On the material placed before the court, there was
no rational connection between the limitation on
publication contemplated by section 12 of SLAA and
Section 66A of the Penal Code, and the stated object
of the legislation, national security and counter
terrorism. Section 12 of SLAA which introduced
Section 66A to the Penal Code was an unjustifiable
limitation on freedom of expression and of the
media and was therefore unconstitutional.
36. A law that limited a fundamental right and freedom
must not be so vague and broad, and lacking in
precision, as to leave a person who was required
to abide by it in doubt as to what was intended
to be prohibited, and what was permissible. With
regard to Section 30A for instance, how was any
information which undermines investigations or security
operations relating to terrorism be interpreted?
Who interpreted what information undermines
investigations or security operations? The effect of
such a prohibition would amount to a blanket ban
on publication of any security-related information
without consulting the National Police Service.
37. Section 30A and 30F were unconstitutional for
limiting the rights guaranteed under article 34(1)
and (2) and the State had not met the test set in
article 24. It had not demonstrated the rational
nexus between the limitation and its purpose,
which had been stated to be national security and
counter-terrorism; had not sought to limit the
right in clear and specific terms nor expressed the
intention to limit the right and the nature and extent
of the limitation; and the limitation contemplated
was so far reaching as to derogate from the core
or essential content of the right guaranteed under
article 34.
38. With regard to the criminalization of publication or
broadcast of photographs of victims of a terrorist
attack without their consent, there was cause for
concern with media conduct in relation to victims
of terror, particularly the use of graphic and
shocking photographs in both broadcast and print
media. However, there were already in existence
clear constitutional and legislative provisions to
cover such situations. Article 33(3) contained the
restriction that formed the basis for the law of
defamation by providing that: In the exercise of the
right to freedom of expression, every person shall respect
the rights and reputation of others.
39. To criminalize matters that had a civil remedy
in defamation would have a chilling effect on
the exercise of freedom of the media, and would
consequently have a deleterious effect on the right
of the public to information. Indeed, it had been
recognised that the application of criminal law in
61
defamation matters should be confined to the most

serious cases
40. The concerns that precipitated the legislation under
challenge were real. However, rather than enacting
legislation that went against the letter and spirit
of the Constitution and eroded the fundamental
rights to freedom of expression and of the media,
an approach that brought together the State and
the media in finding a way to cover terrorism
without compromising national security should be
explored.
41. Even with an ethical and properly self-regulated
media, the challenge, with the wide spread and
the largely uncontrolled use of the internet and
social media, of enforcing legislation that sought
to control what was published and broadcast to the
public, would be daunting.
42. The right to privacy guaranteed under article 31 of
the Constitution was also expressly acknowledged
in international and regional covenants on
fundamental rights and freedoms. It was provided
for under article 12 of the UDHR, article 17 of the
ICCPR, article 8 of the European Convention on
Human Rights (ECHR) and article 14 of the African
Charter on Human and Peoples Rights.
43. Protecting privacy was necessary if an individual
was to lead an autonomous, independent life, enjoy
mental happiness, develop a variety of diverse
interpersonal relationships, formulate unique
ideas, opinions, beliefs and ways of living and
participate in a democratic, pluralistic society. The
importance of privacy to the individual and society
certainly justified the conclusion that it was a
fundamental social value, and should be vigorously
protected in law. Each intrusion upon private life
was demeaning not only to the dignity and spirit
of the individual, but also to the integrity of the
society of which the individual was part.
44. Surveillance
in
terms
of
intercepting
communication impact upon the privacy of a
person by leaving the individual open to the threat
of constant exposure. That infringed on the privacy
of the person by allowing others to intrude on his
or her personal space and exposing his private zone.
The right to privacy had to ensure the preservation
of the dignity and freedom of the individual in a
sovereign, independent and democratic society.
The dignity and freedom of an individual in a
democratic society could not be ensured if his
communication of a private nature, be they written
or telephonic, were deliberately, consciously and
unjustifiably intruded upon and interfered with.
45. Any legislation that sought to limit the right to
privacy in a free and democratic open society had
to be such that it did not derogate from the core
normative content of that right.
46. In the circumstances, the requirements of article
24(2) (a) had been complied with in respect of
sections 56 and 69 of SLAA. The need to monitor
communication permitted in both Part V of the NIS

Act and the Prevention of Terrorism Act, which it
was conceded limited the right to privacy had one
purpose; to enhance national security by ensuring
that national security agents, through their covert
operations and monitoring of communication,
could be one step ahead of terrorists, and were
thus able to thwart terrorist attacks. That was an
extremely important purpose, recognised world
over as justifying limitations to the right to privacy.
47. Right to privacy could never be absolute. It had
to be balanced against the States duty to protect
and vindicate life. What needs to be done was
to subject the limitation and the purpose it was
intended to serve to a balancing test, whose aim
was to determine whether the intrusion into an
individuals privacy was proportionate to the public
interest to be served by the intrusion.
48. Taking judicial notice of the numerous terrorist
attacks that the country had experienced in the last
few years, the interception of communication and
the searches contemplated under the two impugned
provisions of law were justified and would serve a
genuine public interest. The right to privacy had to
be weighed against or balanced with the exigencies
of the common good or the public interest: and
in the instance, the scales tilted in favour of the
common good.
49. There were sufficient safeguards to ensure that
the limitation of the right to privacy was not
exercised arbitrarily and on a mass scale. Under the
Prevention of Terrorism Act which had, prior to the
enactment of SLAA and the introduction of Section
36A already contained limitations of the right to
privacy, there were safeguards to ensure that the
process was undertaken under judicial supervision.
50. The new section 36A of the Prevention of Terrorism
Act could not therefore be read in isolation. It had
to be read with sections 35 and 36, which not only
required the involvement of the court, but also
included penal consequences for the unlawful
interception of communication.
51. The monitoring of communication and searches
authorized by section 42 of the National Intelligence
Service Act, which had replaced the previous
section 42 by virtue of the amendments brought
in by Section 56 of SLAA contained safeguards in
the exercise of the powers under the section. The
new section required that the information to be
obtained under section 42(3) (c) had to be specific,
had to be accompanied by a warrant from the
High Court, and would be valid for a period of six
months unless extended.
52. While Section 56 of SLAA and the new Section 42
of the NIS Act, as well as Section 69 of SLAA and
Section 36A (which it introduced to the Prevention
of Terrorism Act) limited the right to privacy, they
were justifiable in a free and democratic state,
and had a rational connection with the intended
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purpose, the detection, disruption and prevention

of terrorism. Given the nature of terrorism
and the manner and sophistication of modern
communication, there was no less restrictive way
of achieving the intended purpose and none was
advanced by any of the parties.
53. The Constitution protected both arrested and
accused persons. Articles 49 and 50 in various
instances had similar sets of rights even though one
was facing a trial or was about to, while the other
faced the prospects of a trial but was subject to and
was still under examination.
54. Notwithstanding the fact that article 49 referred
specifically to arrested persons and article 50 to
accused persons, in the context of the instant
petition, the rights enshrined under article 49
would equate fair trial rights. That was despite
the fact that some rights, like the right to silence
overlapped article 50. The right to fair trial begun
the moment the criminal process was initiated; and
the criminal process was initiated at the point at
which the coercive power of the State, in the form
of an arrest, was exercised against a suspect.
55. The Constitution itself limited the arrested
persons rights. Sections 36A of the CPC extended
the ambit and safeguards of that constitutional
limitation. The courts discretion was now limited
by way of specific statutory directions. It could
be argued that the Constitution, in setting a 24
hour time limit, anticipated a situation where
the arrested person spent a lesser period in
lawful detention or custody. While that may be
so, the same Constitution left the period for any
continued remand by order of the court too open
ended and susceptible to abuse, even though the
assumption, unless proven otherwise, must be that
judicial officers always act constitutionally. The
new legislation not only limited time but laid out
a detailed process to be followed in stating a case
for the continued remand of an arrested person.
The provisions of article 24(1) have been met as
the limitation which was specific and kept intact
the constitutional provisions was reasonable and
justifiable noting that the burden was imposed on
the arresting officer to convince the court, under
oath, that the continued remand of the suspect was
necessary.
56. Section 15 of SLAA and 36A of the CPC were based
on a reasonably structured statutory framework
which dealt comprehensively with alternatives
available to both the arresting officer and the
arrested person as well as to the court. The sections
were therefore not unconstitutional and or in
breach of article 49 and 50 of the Constitution.
57. The right to a fair trial was absolute in the sense
that under article 25 of the Constitution, it was one
of the rights and fundamental freedoms that could
not be limited. Consequently, attempts to curtail
that right, whether by legislation or in the course
of criminal proceedings, had to always be frowned

at. The same way that it was the responsibility of a
judge to ensure that proceedings were conducted
in an orderly and proper manner which was fair
to both the prosecution and the defence and in
adherence to the Constitution was the same way it
was the responsibility of the Legislature to ensure
that the right to fair trial, as a fundamental right,
was not derogated from through legislation.
58. Disclosure of evidence was prompted by fairness.
That duty of disclosure ran through all stages of the
criminal process in relation to an accused person
even though the level of disclosure could not be
the same at every stage. Disclosure was required at
the very early stage for the obvious reason that the
accused person had to prepare his defence. What
had to be disclosed was material relevant to the
case. It did not matter whether it strengthened the
accused persons case or touched on issues of public
interest. It did not matter either that the evidence
or material exculpated the accused.
59. While the doctrine of public interest immunity in
relation to the State was forever alive to ensure
that the administration of justice especially in
the criminal sphere was never compromised, the
overall fairness of a criminal trial should never be
compromised even if a limitation on the rights to
a fair trial was geared towards a clear and proper
public objective.
60. There was no doubt that circumstances could exist
where disclosure may seriously undermine and
prejudice public interest but, under article 25 of
the Constitution the right to a fair trial could never
be derogated from. Section 42A of the CPC did
not seem to appreciate that and there was a rather
blanket right on the part of the prosecution to
withhold disclosure until immediately before the
hearing but in an open and democratic society, trial
by ambush could not be approved of.
61. The
disclosure
contemplated
under
the
Constitution was to be made in advance and such
prescription was with a purpose and deliberately so.
A provision of the law which stated or prescribed
otherwise would be unconstitutional. Disclosure
immediately before the trial would derogate from
not only the right to have adequate time to prepare
ones defence but also the right to be informed in
advance of the evidence the prosecution intended
to rely upon.
62. Section 42A of the CPC could not therefore be
justified in so far as the decision to disclose was left to
the prosecution until immediately before the hearing.
It would be contrary to the purpose of article 50(2)
(j). It would lead to trials by ambush which both the
Constitution as well as international law frowned
upon. There was already in place a statutory
framework for the protection of witnesses as well
as informers; the Witness Protection Act, 2006.
63. Section 16 of SLAA and 42A of the Criminal
63
Procedure Code derogated from the right as under

article 25 of the Constitution hence section 42A
was unconstitutional as it violated article 50 (2) (j).
64. In so far as the amendment sought to have the
accused person remanded notwithstanding an order
releasing him on bail or bond the same amounted
to an unnecessary affront to the accuseds liberty
earned through due process.
65. The amendment to section 364 of the Criminal
Procedure Code also limited the judicial
authority of the court to make a determination on
matters concerning bail and bond. There was no
justification for the amendment and the same was
unconstitutional.
66. The right of an arrested or accused person to be
released on bail or bond terms as enshrined under
article 49(1) (h) was not absolute. The Constitution
itself limited the same by stating that the existence
of a compelling reason could lead to the accused or
the arrested person not being released on bail or
bond. Such reasons were determined as genuine
and valid or otherwise by a court. The wording
of section 379A of the Criminal Procedure Code
would not make the stay of the bail or bond orders
de rigueur once the DPP opted to appeal to the
Court of Appeal. The wording made such stay
optional and the discretion was with the Court, be
it the appellate Court or the Court of first instance.
67. The constitutionality of section 379A was thus not
questionable as the safeguards of the limitation
were clear in so far as the discretion was still
with the court to grant stay for fourteen days and
likewise the extent of the limitation is also clear
in so far as it is limited to the select statutes. With
the knowledge that a court was not infallible, there
would certainly be instances when release on bond
or bail should not have been sanctioned and the
appeal by the prosecution truly warranted.
68. Where a statute stated or purported to state that an
accused persons non-reaction or silence in relation
to what the prosecution sought or says in relation
to his indictment and trial including a statement(s)
by the prosecution witness (es) meant that the
statement was to be admitted in evidence, then it
would imply that the accused person was indirectly
being forced to assist the prosecution in his own
prosecution. That could also lead to the absurd
scenario where there were no witnesses testifying
but the accused was still convicted simply because he
exercised his right to keep silent. Besides, admission
of statements without the maker being called to
testify and with the accused person having kept his
peace would also mean that the right to challenge
evidence prompted by article 50(2) (k) particularly
through cross-examination would be transgressed.
Sections 26 of SLAA and 20A of the Evidence Act as
amended was hence unconstitutional as it limited
the right to a fair trial by denying the accused the
choice to keep silent.
69. Section 59A of the Evidence Act was not peculiar

to homeland or national security issues. It was not
to apply to offences under the select statutes only,
but to all criminal proceedings where an accused
person was represented by an advocate. The
section would not apply where the accused was
unrepresented. The section had several safeguards
in relation to the accused persons constitutional
rights. The safeguards appeared to neutralize
the petitioners stand on the issue. Of critical
import were the provisions which stated that the
agreement on facts would only be invited if the
accused was represented by an advocate and also
the fact that the accused had a choice, which was
expressly granted by the statute. Thirdly, was the
fact that the Court still had control over the process
of admission of the facts contemplated by section
59 A.
70. The arguments that the accused persons right to
silence would be infringed vide subsection (4)
could not hold in the face of sub section (6) which
was to the effect that the Court could still insist on
oral evidence being adduced regarding the facts
contemplated by section 59A. That was where the
accused person requested the Court or where the
court on its own motion deemed it fit.
71. Section 59A of the Evidence Act had adequate
accommodating requirements to conclude that
it was not unconstitutional to invite an accused
person who was represented by counsel to admit
certain facts in criminal proceedings. Such a
process could only help to hasten the process of
criminal proceedings and meet one of the tenets of
fair hearing that the trial should begin and conclude
without unreasonable delay. Any judicial officer
faced with the trial of an indigent accused person
who had no advocate should not allow section 59A
to be invoked.
72. Section 78A of the Evidence Act was evidently
clear that the section expected the best evidence
to be availed to court. Subsection (1) did not limit
the evidence to its secondary form. A more liberal
reading of the section would give the effect that
it was primary evidence that would be expected
to be availed. The Court would be entitled to
admit secondary evidence only if, a reasonable
basis for it was laid. Coupled with the specific
safeguards outlined in the section and the fact
that the unconstitutionality of the section had
not been shown by the petitioners, Section 78A of
the Evidence Act as amended met constitutional
muster in view of the ever evolving technology.
73. Section 18A (1) and (2) of the amendment sought to
control illegal registration and forgery by allowing
the Director of Registration of Persons to cancel
the registration and revoke the identity card of any
person on the conditions and procedure provided
in Section 18A (1) and (2). The section provided an
elaborate procedure with adequate safeguards for
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the affected person. The person aggrieved not only

had an opportunity to appear before the Director
to explain his case but also had an opportunity to
challenge the Directors decision in a Court of law.
There was also no provision barring the affected
person from reapplying for another identity card
with the proper documents.
74. Section 18A (1) and (2) of the Registration of Persons
Act did not derogate the right to citizenship and/
or registration of persons. The above safeguards
ensured that the revocation of the identity card was
not done arbitrarily. Identity cards could be revoked
or cancelled as long as the correct procedure was
adhered to. The right to citizenship under article 12
of the Constitution had not been derogated from
vide section 25 of SLAA which introduced section
18A to the Registration of Persons Act.
75. The right to freedom of movement was not one
of the absolute rights under article 25 of the
Constitution and it could be limited under article
24(1). However, article 39 contained an inherent
limitation-the right to enter, remain and reside
anywhere in Kenya was guaranteed to citizens. The
limitation had been made to buttress section 12(f)
of the Refugee Act. It was therefore justified within
the meaning of article 24(1) of the Constitution.
76. Domestically and internationally, the cornerstone
of refugee protection was the principle of nonrefoulment the principle that no State shall return a
refugee in any manner whatsoever to where he or
she would be persecuted. That principle was widely
held to be part of customary international law.
77. Section 18A of the Refugee Act showed that the
intention is not to cap the number of refugees being
admitted into Kenya but those allowed to stay. As
Kenya already had 450,000 583,000 refugees, it
means that for the country to reach the 150,000,
not only must there be no admission of refugees,
but that there had to be expulsion of about 430,000
refugees. The effect of Section 18A was to violate
the principle of non refoulment, which was a part
of the law of Kenya and was underpinned by the
Constitution. The provisions of Section 48 of
SLAA, as well as the provisions of Section 18A
of the Refugee Act were unconstitutional and
therefore null and void.
78. Section 20(1) permitted the Commissioner to
revoke the refugee status of any person where
there were reasonable grounds to believe that he
should not have been recognized as a refugee, or
where his refugee status had ended; while Section
21(1) allowed the expulsion of a refugee, after
consultation with the Minister (Cabinet Secretary)
responsible for matters relating to immigration and
internal security, if the Minister considered that the
expulsion of the refugee or a member of his family
was necessary on the grounds of national security
or public order. The provisions on expulsion were
similar to article 32 of the 1951 Convention.
79. The State had legal options for dealing with refugees
whom it deemed to have engaged in conduct that
was not in conformity with their status as refugees,
and setting a cap that would lead to violation of the
Constitution.
80. The Cabinet Secretary was not a member of the
Security Organs set out in article 239 which were
the National Defence Force, the National Police
Service and the National Intelligence Service.
However, the Cabinet Secretary was, first, a public
or state officer as defined in article 260 of the
Constitution and who was bound by the provisions
of the Constitution and subscribed to an oath
of office. Secondly and more importantly, the
Cabinet Secretary was a member of the National
Security Council established under article 240 of
the Constitution and comprised, among others,
the Cabinet Secretaries responsible for defence,
foreign affairs and internal security.
81. The National Security Council was mandated,
under article 240 (3) to exercise supervisory control
over national security organs and perform any other
functions prescribed by national legislation. That being
the case, there was nothing in the substitution of the
Commissioner of Police with the Cabinet Secretary
that violated the Constitution. The only limitation
was that the section did not specify which Cabinet
Secretary was being substituted, so that one was
left to assume that it was the Cabinet Secretary in
charge of internal security.
82. Section 12 of the National Police Service Act,
in keeping with the spirit of the Constitution
with regard to public participation, was not in
conformity with the provisions of the Constitution
at article 245. The Article was clear that it was the
President who, with the approval of Parliament,
appointed the Inspector General of Police.
83. Article 246(3) gave the National Police Service
Commission, of which the Inspector General of
Police was a member in accordance with article
246(2), power to deal with the appointment,
recruitment and discipline of other officers in the
Service. If the people of Kenya intended that the
Inspector General of Police be appointed by the
National Police Service Commission, then the
Constitution should not have vested such powers
in the President under article 245(2) (a).
84. In the circumstances the amendments to section
12 of the National Police Service Act was in accord
with the Constitution. While the competitive
process and public participation that the previous
provisions of section 12 engendered were more in
keeping with the spirit of openness that Kenyans
desired under the Constitution, it was expected that
the provision for Parliamentary approval would
provide an opportunity for public participation
in the appointment, not only through the elected
representatives, but also through the opportunities
for such participation that Parliament was
65

constitutionally required by article 118 of the

Constitution to accord the public.
85. The duties of the Board were to inquire into
matters related to discipline for officers of the rank
of or above assistant superintendent, to undertake
disciplinary proceedings, and to determine and
make recommendations to the Commission,
including recommendation for summary dismissal.
Those functions conflicted with and overlapped
with those vested in the Commission under
article 246(3) of the Constitution which mandated
the Commission to observe due process, exercise
disciplinary control over and remove persons holding or
acting in offices within the service.
86. The effect of the amendment to the Act was to
create two disciplinary processes for officers of
or above the rank of assistant superintendent, one
to be undertaken by the Board and the other by
the Commission. The amendment ran contrary
to article 246(3) of the Constitution which vested
powers of recruitment, appointment and discipline
in the National Police Service Commission. The
existence of such a Board would not only whittle
down the powers and mandate of the Commission
and create conflict and confusion, but would also
be a violation of the Constitution. The amendment
was hence unconstitutional.
87. [obiter] This judgment has raised important
questions regarding the role of this Court in
determining issues relating to the legislative process
and we have determined that whereas under
Article 165(3) (d) of the Constitution as read with
Articles 22(1) and 23(1), the High Court has wide
interpretative powers donated by the Constitution,
it must be hesitant to interfere with the legislative
process except in the clearest of cases. The words
of Nzamba Kitonga, SC must therefore ring in
the ears of all; that the High Court should not be
turned into an alternative forum where losers in
Parliamentary debates rush to assert revenge on
their adversaries. It would render parliamentary
business impossible if the deliberate disruption of
legislative proceedings by a member or members
unhappy with decisions of the speaker was to lead
to invalidation of legislation by the courts.
88. The role of the media and the need for discipline, selfregulation and care in the publication of sensitive stories
has also come to the fore. Although we have upheld the
objections to certain Sections of SLAA that infringe on
the free press, the media also ought to know that the
issues raised in SLAA are not idle.
89. The tort of privacy may not be known to many a media
house. It is alive and well and may sooner or later; find
its way into our jurisprudence and bite, not through
Constitutional litigation but ordinary civil litigation.
Reckless reporting and insensitive publication of gory
pictures of the dead and victims of terrorist attacks as
happened during the Mandera killings of 2014 may
well attract painful Court sanctions including damages.
Blogs and social media, generally, may also not escape

that sanction.
Petition allowed in part as follows;
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Section 12 of the Security Laws (Amendment)

Act and Section 66A of the Penal Code declared
unconstitutional for violating the freedom of
expression and the media guaranteed under
articles 33 and 34 of the Constitution.
Section 64 of Security Laws (Amendment)
Act which introduced Sections 30A and 30F
to the Prevention of Terrorism Act declared
unconstitutional for violating the freedom of
expression and the media guaranteed under
Articles 33 and 34 of the Constitution.
Act declared unconstitutional in so far as
it includes telescopes in Section 2 of the
Firearms Act.
Act and Section 42A of Criminal Procedure
Code declared unconstitutional as they violate
the right of an accused person to be informed in
advance of the evidence the prosecution intends
to rely on as provided under Article 50(2) (j) of
the Constitution
Act which amended Section 364A of
the Criminal Procedure Code declared
unconstitutional for being in conflict with
the right to be released on bond or bail on
reasonable conditions as provided for under
Article 49(1) (h) of the Constitution.
Act which introduced Section 26A into the
Evidence Act declared unconstitutional for
violating the right of an accused person to
remain silent during proceedings as guaranteed
under Article 50(2) (i) of the Constitution.
Act which introduced Section 18A to the
Refugee Act, 2006 declared unconstitutional
for violating the principle of non-refoulment
as recognized under the 1951 United Nations
Convention on the Status of Refugees which is
part of the laws of Kenya by dint of Article 2(5)
and (6) of the Constitution.
Act which introduced Section 95A to the
National Police Service Act and created
the National Police Service Board declared
unconstitutional for violating Article 246(3) of
the Constitution.
Each party to bear its own costs.
Cases
66
Cases
The powers of the Commission on Revenue Allocation & the Controller of budget in
revenue allocation, budgetary processes and budget implementation
Speaker, Nakuru County Assembly & 46 Others vs. commission on Revenue Allocation & 3 Others
Petition No. 368 of 2014
High Court of Kenya at Nairobi
Lenaola J
February 20, 2014
Reported by Njeri Githanga & Kipkemoi Sang
Brief Facts
On July 23, 2014, the petitioners filed a petition challenging
the legality of the circular Reference No. CRA/CGM/
Vol.III/99 addressed to all County Governments, by the
Commission on Revenue Allocation (1st respondent)
recommending a ceiling on allocation for all county
Assemblies and all County Executives in County
budgets for the financial year 2014/2015. Thereafter,
the Controller of budget (2nd Respondent) on diverse
dates vide various circulars addressed to the County
Governments demanded that the County Assemblies
budget allocations comply with the aforesaid Circular
failure to which the 2nd Respondent would not approve
withdrawals from the County Revenue Fund or any other
fund by County Governments.
It was the petitioners contention that the said Circular
was void on two fronts. Firstly, that it was issued without
authority and in breach of the legislative authority of
County Assemblies under articles 185(1) and (2) of the
Constitution. Secondly, that in issuing and acting on the
said Circular, the 1stRespondent violated article 189 (1) of
the Constitution as it failed to consult County Assemblies
on a matter that fell within their mandate and would in
effect affect them.
Issues
i.
Whether the impugned circular was issued in
breach of the law and the legislative authority of
County Assemblies
ii.
Whether the Commission on Revenue Allocation
had powers to issue the Circular and if so, whether
the recommended ceilings were within the law.
iii.
Whether recommendations made by the
Commission on Revenue Allocation were binding
on all the organs to which they were made.
iv.
Whether the petitioners fundamental rights
under articles 27(freedom from discrimination)
and 47 (fair administrative action) of the
Constitution of Kenya, 2010 were violated by the
respondents, jointly or severally
v.
Whether County Assemblies were persons
capable of having their fundamental rights
protected and enforced under the Constitution.
vi.
What was the mandate of County Assemblies,
Commission on Revenue Allocation and the
Controller of budget in the budgetary making
process.
Constitutional Law-public finance-principles of public
finance- the budgetary and related processes in County
Governments- the powers of the Commission on Revenue
Allocation & the Controller of budget in revenue allocation,

budgetary processes and budget implementation-Constitution
of Kenya 2010, articles 10,216,217,218, Public Finance
Management Act, sections 104, 107; County Allocation of
Revenue Act; Division of Revenue Act
Constitutional Law- public finance-budgetary making
process-Commission on Revenue allocation-the role of the
Commission in the budgetary making process-where the
commission had issued a circular recommending a ceiling on
allocation for all county Assemblies and all County Executives
in County budgets for the financial year 2014/2015- whether
the 1st Respondent had powers to issue the Circular and if so,
whether the recommended ceilings were within the law- whether
recommendations made by the Commission on Revenue
Allocation were binding on all the organs to which they were
made.
Statutes-Interpretation of Statutes- National Revenue
Allocation Laws -Public Finance Management Act, sections
104, 107; County Allocation of Revenue Act; Division of
Revenue Act
Held
1. Article 218 (1)(a) of the Constitution of Kenya,
2.
3.
2010 directed that at least two months before

the end of each financial year, Division of
Revenue Bill should be introduced to parliament
to facilitate division of revenue raised by the
National Government among the two levels of
Governments. The National Treasury prepared
the 2014 Budget Policy Statement and presented
it to Parliament and it was adopted by Parliament
on March 20, 2014 in accordance with article
218(1)(a) of the Constitution.
Under article 216(1) and (2) of the Constitution
the 1st Respondent was the body charged with
the responsibility of making recommendations
inter-alia to the Senate, the National Assembly,
the National Executive, County Assemblies and
County Executives on the basis upon which
revenue would be shared equitably between
the National and County Governments. It also
recommended how the revenue allocated to
the County Government level would be shared
among the County Governments and also made
recommendations on matters concerning the
financing and financial management by the
County Governments.
Taken in its ordinary English meaning,
67
4.
5.
6.
recommendations do not have a binding

effect on the person or body to whom they
are made and are not the same as directives
or directions which are binding on those to
whom they are addressed. However, in the
context of the Petition and in order to interpret
recommendations, the Constitution had to be
read as a whole in order to ascertain its aim and
object so as to establish the aim of the drafters
of the Constitution. Heed had to be paid to the
language used and the context of the specific
provision under consideration. Article 217(7)
of the Constitution showed that the bonding
nature of the resolution was quite different from
a mere recommendation.
Articles 216, 217 and 218 of the Constitution as
well as the Commission on Revenue Allocation
Act, (Cap 5E) distilled a number of facts:
a. The principle function of the
1st respondent was to make
recommendations to the senate, the
National Assembly, the National
Executive, County Assembly and
County Executive
b. By
the
very
nature
of
recommendations,
they
were
persuasive but not binding on the
person or body to which they were
directed
c. Its principal functions in article
216(1) and (2) of the Constitution
were to be supplemented by
legislation and hence Section 10(1)
of the Commission on Revenue
Allocation Act.
d. The impugned Circular if looked at
in the context of article 216(1) (2) and
(5) of the Constitution and section
10(1) of the Commission on Revenue
Allocation Act could not be said to
be unlawful or unconstitutional as
argued by the Petitioners because it
was made well within the mandate of
the 1st Respondent.
Whether the Petitioners acted on the circular
was a non-issue because in fact it was not
binding on them or Parliament. That issue was
moot because once the recommendations made
were found not to be binding, then it followed
that any complaint by the Petitioners ought to
be directed at the State Organs with the final say
on the budgets i.e. Parliament.
The principles under section 107 of the Public
Finance Management Act, Cap.142 as read
together with section 12 were crucial in the
management of funds allocated to County
Governments and there was no reason in the
circumstances to delve into them because
there was no issue raised with regard to them.
Without section 12 or section 107 being declared

unlawful, there was no value of any case made
out of a non-binding Circular while the law that
came subsequent to it remained intact.
7. The 1st Respondent ought to perform its functions
as provided for under the four corners of the
Constitution and the law. Further, in meeting its
objectives it was bound by article 10, 216(3) and
249 (1), of the Constitution and section 10(2)
of the Commission on Revenue Allocation Act.
Section 10(2) created no obligation although
the information required could be useful to
the 1st Respondent but it was a matter wholly
of discretion on its part. The 1st Respondent
was not bound by the Constitution and the Act
to seek information and representations from
the County Government before making its
recommendations on budget ceilings though
the principles in article 189 of the Constitution
encourage consultation between the two levels of
Government. The same principles would apply
to relations between the levels of Government
and Independent Commissions and Offices
8. In the entire budgetary process, the views of
County Governments and Assemblies were
important and ought to be considered and taken
seriously in making the Budget Policy Statement
which would be used in preparing the National
Annual Budget but the court could not hold that
it was a mandatory obligation on the part of the
1st Respondent. While it was a good practice
to consult and in terms set out in article 189,
failure to do so could not amount to a violation
of any law or the Constitution itself. The point
was that out of respect for each others roles and
expertise, each organ should not off-handedly
dismiss any suggestions or information obtained
from the other but failure to do so could not
attract the Courts sanctions.
9. Under section 104(1)(a)(b) of the Public Finance
Management Act, it was the responsibility of the
County Treasury to prepare the Annual Budget
for a County and co-ordinate the preparation
of Estimates of Revenue and Expenditure of a
County Government. The procedure for the
budgetary process under section117 of the
Public Finance Management Act therefore
started with the preparation of a County Fiscal
Strategy Paper which was then submitted
for approval by the County Assembly by 28th
February of each financial year.
10. In preparing the County Fiscal Strategy Paper,
the County Treasury was obligated to specify
the broad strategic priorities and policy goals
that would guide the County Government in
preparing its budget for the coming financial
year. Thereafter, under section 118 of the Act,
the County Treasury prepared a County Budget
Review and Outlook Paper in respect of the
Cases
68
Cases
County for each financial year and submitted
the paper to the County Executive Committee
by 30th September of that year. The County
Executive Committee then was obligated to
discuss that Outlook Paper and after approval it
was laid before the County Assembly before it
was published and publicized.
11. It was within the mandate of the Treasury, County
Executive and County Assembly to prepare and
approve budgets for a County. However, that
process could not be read in isolation of other
processes because it was within the mandate
of the 1st Respondent to recommend to the
Senate, the National Assembly, the County
Assembly and the County Government on
equitable sharing of revenue between the two
levels of Government and as between County
Governments. By so recommending, the 1st
Respondent would in essence be performing its
obligations under article 216 of the Constitution
and even if the 1st Respondent had recommended
budgetary ceilings in the County Budgets for
2014/2015 financial year, that action did not
violate the Constitution. However it had to do
so in the framework and in accordance with the
Constitution and the law.
12. The 1st respondent was an independent
Constitution Commission and as such article
249(2) which provided for the objects of the
commissions and the independent offices,
were required to function free of subjection to
direction or control by person or authority,
but rather operate within the terms of the
Constitution and the law. The independent
clause did not accord them carte blanche to
act or conduct themselves on whom; their
independence was by design, configured to the
execution of their mandate and performance of
their functions as prescribed by the Constitution
and the law.
13. Under section 117 of the Public Finance
Management Act, the County Fiscal Paper
ought to be prepared by 28th of February in
each financial year, hence for Counties to
comply with the Circular as issued by the 1st
Respondent, they had to restart the budgetary
process with the preparation and adoption of
the Fiscal paper. However the issue was moot
considering that the Allocation of Revenue Act,
2014 was in operation and it was the one that
created the offending ceilings even if it was
based on non-binding recommendations from
the 1st Respondent.
14. Article 228(4) of the Constitution mandated the
2nd Respondent to oversee the implementation
of the budgets of the National and County
Governments by authorizing withdrawals from
public funds under articles 204, 206 and 207
of the Constitution and under article 228(5),
the Controller of Budget could not approve

any withdrawal from a public fund unless that
withdrawal was authorized by law.
15. Section 102 of the public Finance Management
Act read together with Chapter twelve of the
Constitution set out the principles that County
Government must adhere to in respect of Public
Finance.
16. Nowhere under the Public Finance Management
Act provided for the 2nd Respondent to review
budgets of County Governments before they
were enacted. Fiscal reporting mechanisms
were clear at the National level and so were they
in the County level with the County Executive,
County Treasury and County Assemblies each
charged with the responsibility of ensuring
accountability and transparency in utilization
of County resources and specifically, the
mandate of approving County Budgets was the
responsibility of a County Assembly. The 2nd
Respondent encroached on their mandate when
it sought to get involved in their budgetary
processes.
17. Article 228 was clear that the 2nd Respondent
only oversaw the implementation of budgets. In
that regard, the importance of the Appropriation
Act was obvious and could not be understated.
The argument that the 2nd Respondent would
only authorize withdrawals from the County
Revenue if the law and the budgetary process
as envisaged by the Constitution and the
Public Finance Management Act, 2012 was
adhered to was a matter of interpretation of the
Constitution and Statute based on a specific set
of contested facts.
18. The Petitioners were not private individuals but
officers serving in a public office as defined in
article 260 of the Constitution. The Respondents
were also officers and offices in the same public
office and it was inconceivable how one could
violate the others rights in the context of the Bill
of rights. In the circumstances of the Petition any
differences regarding the fiscal and budgetary
processes between affected State Organs should
not be such as to attract the Courts intervention
under the Bill of Rights. Those differences were
to be settled in the manner envisaged by article
189(4) of the Constitution and not by litigation
predicated on the Bill of Rights.
19. The dispute concerned the powers of the 1st and
2nd Respondent in revenue allocation, budgetary
processes and budget implementation. Article
10 of the Constitution set out the principles of
rule of law, transparency, accountability and
good governance as some of the national values
to guide such processes. Rule of law dictated
that every state organ, independent offices and
Commission had to apply the Constitution and
the law in its affairs and it was the duty of the
69
Court to determine the legality of their actions

and that was how far the Court should go.
20. It was the duty of the 2nd Respondent to
oversee the implementation of the budget in
accordance with the law. It was also not bound
to follow the respective County Budgets which
were themselves subject to National Revenue
Allocation Laws namely the Public Finance
Management Act, the Division of Revenue Act
and the County Allocation of Revenue Act.
21. (Obiter) This case brings to the fore the need
for prudence in the use of public funds and the
need to follow the lawful processes set by the
Constitution and relevant Statutes. It also makes
urgent the need for a clear across-the-board
understanding of Chapter 12 of the Constitution.
Although one of the most important Chapters in
the Constitution, seldom has it been subjected
to an interrogation at the practical level. The
result is that each of the Organs and institutions
charged with its implementation invariably
find relevance in areas reserved for others. The
Chapter creates distinct roles for the National
Executive, Parliament, County Executives and
County Assemblies, Independent Commissions

and offices and in this judgment; I have attempted
to demarcate those roles. Should any of them
for whatever reason become rogue, and should
any wrangles arise, the law has created sufficient
dispute resolution mechanisms to quickly
address such situations including alternative
dispute resolution mechanisms as is provided
for in article 189(3) and (4) of the Constitution.
22. Lastly, it is time that County Executives and
County Assemblies learnt that funds allocated
to Counties are meant to serve legitimate and
lawfully progressive purposes. It is distressing,
as was said by one party to this Petition, to
learn that Kenyans elected to serve in Counties
may have been banned from travel for being a
nuisance in certain foreign Countries. The funds
used for such trips are said to be in their millions.
Granted, no doubt devolution is working and
indeed it must work but wastage will only drain
an already drained populace
Petitions dismissed
A spiders cobweb isnt only its sleeping spring but also its food trap. African proverb
Cases
70
Cases
When a claim for discrimination arose out of the failure to shortlist internal candidates
Jane Achieng & another v University of Nairobi
Cause No. 2144 of 2012
Employment & Labour Relations Court at Nairobi
L Ndolo, J
April 10, 2015
Reported by Teddy Musiga
Brief facts
The claimants claim arose from a job advertisement
for 8 positions in the establishment of Librarian. They
applied for the advertised positions but were never
shortlisted. Instead, the respondent shortlisted 7 external
candidates. The gist of the claimants claim was that by
failing to shortlist them for the position of Librarian,
the respondent discriminated against them. Specifically,
they contended that in evaluating their respective
applications, the respondent failed to consider their
achieved qualifications and long experience as relevant
and equivalent for the advertised positions. They also
cited a wide range of instances where the respondent had
effected staff promotions within the University contrary
to the University policy on Training, Promotion &
Establishment (Kagiko report). The respondent however
pleaded that the recruitment had already taken place and
binding employment contracts signed with the successful
candidates and added that only 3 of the 8 positions were
filled, leaving 5 vacancies.
Issues
i.
Whether a recruitment process initiated &
completed by the respondent is discriminatory
for not considering internal applicants (claimants)
for the job advertised.
ii.
What are the available remedies for an aggrieved
claimant to a recruitment process where the
recruitment & selection process is already
completed?
Labour Law Employment Law - Employment relationship
claim for unfair discrimination claim where the respondents
failed to shortlist internal candidates - Whether a recruitment
process initiated & completed by the respondent is discriminatory
for not considering internal applicants (claimants) for the
job advertised article 27, 41; Constitution of Kenya, 2010;
sections 5 Employment Act;
Labour Law Employment Law adducing evidence in
employment disputes burden of proof in employment disputes
circumstances in which the burden of proof may shift from the
employee to the employer where the employee claims unfair
discrimination from the employer section 5 Employment Act
Held:
1. Employment and Labour rights were well
secured as part of the Bill of Rights under article
41 of the Constitution of Kenya, 2010. It followed
therefore that discrimination in the employment
sphere was outlawed in terms of article 27 of the
Constitution of Kenya, 2010 as well as section 5
of the Employment Act, 2007.

2. In adjudicating disputes between employers and
employees, the Employment & Labour Relations
Court was well advised to respect decisions made
by the employer in as far as they complied with
the law and internal policies. However, where
the employers actions failed to comply with the
relevant legal and policy parameters, the court
was obliged to intervene.
3. From an examination of the specifications
contained in the job advertisement giving rise to
the suit, there was a departure from the Kagiko
report (the respondents policy on Training,
Promotion & Establishment) in as far as the
experience period was reduced from 6 years
to 3 years. The respondent did not offer any
explanation for that departure.
4. An employer against whom an allegation
of unfair discrimination was made by an
employee was required to prove that the action
complained of was in fact fair. That was one of
the unique features of employment and labour
law where the burden of proof shifts from
employee to the employer. The reason for that
was that in an employment arrangement, the
employer possesses information that would not
ordinarily be within the reach of the employee.
The employee is therefore under a duty to
produce all information within its possession
that would aid the court to arrive at a just and
fair determination of the disputes before it.
5. The respondent chose to skirt around the issues
raised by the claimants and failed to respond
to most of the issues raised. In the absence
of any explanation, the court concluded that
the respondent knowingly manipulated the
recruitment process to the claimants detriment.
6. In order to achieve the ideal skills and
competencies mix, an employer was expected
to recruit both internally and externally. While
recruiting exclusively from within exposed an
employer to the vagaries of inbreeding, exclusive
external recruitment eroded employee morale
and defeated loyalty.
7. The Employment and Labour Relations Court
had to where necessary require employers
to provide full information for just and fair
determination of industrial disputes. That would
have included an audit of the establishment
mix, including the ethnic balance, in public
institutions. That had to be the case if we were
to translate the provisions in the Constitution
71

of Kenya, 2010 from mere aspirations to real life

experiences.
In filing the existing vacancies within the Library establishment
and within the University generally, the respondent had to
adhere strictly to the law and its own internal policies and
guidelines
In undertaking future recruitment, the university had to

examine its establishment mix bearing in mind the ethnic
diversity in the country.
Prayers for damages and specific performance rejected.
Respondents to meet the costs.
Court Awards Damages for negligence in Administering Contraception

AAA v Registered Trustee (Aga Khan University Hospital Nairobi)
High of Kenya at Nairobi
Civil Case No. 3 of 2013
H P G Waweru J
May 15, 2015
Reported by Andrew Halonyere & Kipkemoi Sang
Brief Facts
On the 4th day of July 2011 the Plaintiff consulted the
Defendant s family planning clinic for an appropriate
contraceptive method since she and her husband who
already had two children did not want a third child. She
was advised by the Defendant that the insertion of an
implant known as implanon would be the most suitable
and appropriate for her, and that the same, if implanted,
would protect her from conception for a period of three
years from the date of insertion. The Plaintiff took the
advice and on the same date she was taken through the
medical procedure of implanting the implanon into her
left upper arm under local anaesthesia.
On the month of August 2012, the Plaintiffs menses failed
and a home pregnancy test came out positive. She visited
the Defendants hospital on 10th August 2012 where a
further pregnancy test confirmed that she was indeed
pregnant. Other tests conducted by the Defendants
medical staff at the hospital confirmed that no implanon
had been implanted in her arm after all. The Plaintiff
claim was therefore founded on medical negligence that
resulted to unwanted pregnancy and subsequent delivery
of the unplanned child.
Issues
I.
Whether the Defendant was vicariously liable for
negligence of her medical staff in performance of
their duties.
II.
Whether the Plaintiff was entitled to award
of pain, suffering and loss of amenities, loss
of consortium and costs related to care and
upbringing of the child up to the age of 18 years.
Tort Law- Negligence-medical Negligence- Vicarious liabilitywhether the Defendant was vicariously liable for negligence of
her medical staff in performance of their duties.
Tort Law-Damage-award of damages- special damages
whether the Plaintiff was entitled to award of pain, suffering
and loss of amenities, loss of consortium and costs related to
care and upbringing of the child up to the age of 18 years
Held;
1. A claim for negligence for failed sterilization was
2.
3.
4.
5.
that; the Defendant would only succeed, if the

Defendant on evidence proofs that, at the time
of the sterilization, conception appeared to have
already taken place but could not be detected that
early by the pre-sterilization test, then available.
It was clear that; the implanon was never
implanted into the Plaintiffs arm or any other
part of her body and as such could only have
been because of the negligence of the Defendants
medical staff in the performance of their duties,
therefore the Defendant was vicariously liable for
that negligence.
Compensation for a failed sterilization or family
planning procedure that results in birth of a
healthy child paused a challenge to Courts in
the earlier days. Then, the claimant would only
be compensated for pain, suffering and loss
of amenities and loss of consortium; and that
the Court would only award damages for the
upbringing of the child only if the child was born
with congenital abnormalities. The Courts would
decline on account of public policy to award child
bearing expenses if the child was healthy. The
principle of Public policy was that, the joy derived
by parents in bringing up a child cancelled out the
compensation that could otherwise be awarded.
Courts have gradually moved away from
public policy approach and began awarding
compensation for the cost of bringing up an
unexpected child up to the age of majority. Since
the avoidance of a further pregnancy and birth
was the object of the sterilization operation
undergone by the Plaintiff, the compensatable
loss suffered by the Plaintiff as a result of
the negligence in performing that operation
extended to any reasonably foreseeable financial
loss directly caused by her pregnancy.
There was no rule of public policy which
prevented the Plaintiff from recovering in full the
financial damage sustained by her as a result of the
negligent failure of the defendants medical staff
to perform the sterilization operation properly,
Cases
Cases
72
regardless of whether the child was healthy or

abnormal. The Plaintiff ought to be entitled to
damages for loss of future earnings, maintenance
of the child up to the age of majority, and future
loss of amenity and pain and suffering, including
the extra care that the child would require.
6. The moral and theological considerations that,
public policy considerations could be used to
deny recovery to the parents of an unplanned
healthy child of all the damages proximately
caused by negligently performed operations, was
analytically undistinguishable from the ordinary
medical negligence action where a Plaintiff alleges
that a physician has breached a duty of care owed
to him with resulting injurious consequences. The
purpose of the physicians action was to prevent
conception or birth; therefore, elementary justice
required that he be held legally responsible for
the consequences which in fact occurred.
7. The elementary principle of compensatory
damages sought to place injured Plaintiffs in the
position they would have been had no wrong
occurred. Incidental damages included such as;
pre-natal and post-natal medical expenses, pain
and suffering incurred by the childs mother and
loss of consortium to the extent that it can be
proved.
8. Since family planning was widely accepted

in Kenya, and hospitals and doctors regularly
offered it, they therefore owe their patients
duty of care to perform those services to the
professional standards expected of them. When
they fall short, they must bear the consequences.
Obiter
Although public sentiments might recognize that to the
vast majority of parents, the long term and enduring
benefits of parenthood outweighed the economic cost
of rearing a healthy child, it would seem myopic to
declare currently that those benefits exceed the costs
as a matter of law. Family-planning concept as an
integral aspect of the modern marital relationship
had since departed from the honoured command; to
be fruitful and multiply which had not only lost
contemporary significance to a growing number of
potential parents but was contrary to public policies
embodied by law encouraging family planning.
Court awarded KShs. 500,000/00 for pain and loss of amenities
and Kshs. 4,320,000 for the cost of care and upbringing of the
child from birth to the age of 18 years at the rate of
Kshs. 20, 000 per month.
Court Orders TSC and State to Compensate Minors Defiled in School by their Deputy
Head Teacher
WJ & another (suing through their guardians) v Astarikoh Henry Amkoah & 4 others
Petition No 331 of 2011
M Ngugi J
May 19, 2015
Brief Facts
The petition raised the issue of the liability of state and
state organs in the education sector when persons under
their employ, and over whom they exercise powers of
discipline and control, violate the rights of children
placed under their care. It questioned the policies or lack
thereof pertaining to steps and process when persons in
the position of the 1st respondent abuse their positions
and violates the rights of those under their charge.
The petitioner alleged violation of their rights by the
Deputy Head teacher (1st respondent) of their school.
They accused him of defiling them on various dates in July
2010 causing them physical, emotional and psychological
harm and trauma. The petitioners also accused the state
and the Teachers Service Commission (TSC) of failing
to protect their rights and those of other school going
children by failing to protect them from sexual abuse by
persons in the position of the Deputy Head Teacher. They
further alleged that the state and TSC were vicariously
liable for the violation of their rights by the Deputy Head

Teacher.
Constitutional law- fundamental rights and freedoms- right
to education- right basic education- the nature and extent of
the right to education- defilement instance where a teacher
was accused of defiling a student- where the student dropped
out of school as a consequence - obligation of the state in
ensuring the realisation of the right to education duty of the
state to address the needs of vulnerable groups within the society
including minors - whether the State through the TSC failed in
their obligation to protect the rights of the children in achieving
an education - Constitution of Kenya, 2010 articles 21(1) &
43(1) (f).
Constitutional law fundamental rights and freedoms
right to Economic and Social Rights - right to the highest
attainable standard of health allegation that the acts of
defilement exposed the children to health risks of contracting
sexually transmitted diseases whether the childrens right to
the highest attainable standard of health was compromised in
the circumstances Constitution of Kenya, 2010 article 43(1)
73
(a).
Issues
i.
Whether acts of sexual violence against a student
amounted to a violation of the right to education
and health as provided for under Article 43(1) of
the Constitution and section 7 of the Children
Act.
ii.
Whether the State and the Teachers Service
Commission were vicariously liable for the
unlawful acts of defilement by the 1st respondent.
iii.
Whether a decision of a Criminal Court acquitting
an accused person would bar the Constitutional
court in considering issues of alleged violation
of constitutional rights on the basis of the same
facts.
iv.
Whether the petitioners were entitled to damages
based on the consequences of the defilement.
Held
1. The entry point into any court proceeding was
jurisdiction. If a court lacking jurisdiction to hear
and determine a matter overlooked that fact and
determined the matter, its decision would have no
legal quality and would be a nullity. Jurisdiction
was the first test in the legal authority of a Court or
tribunal, and its absence disqualified the Court or
tribunal from determining the question.
2. The Court was properly clothed with jurisdiction
under Articles 23 (1) and 165 (3) of the Constitution
to deal with the issues raised and, if satisfied that the
petitioners had established their claim, would grant
appropriate relief.
3. The Court had the jurisdiction to grant relief should
it have found that first, the rights in question were
protected under the repealed constitution and,
secondly, that the violations in question were
continuing violations.
4. There was no serious challenge to the petition with
regard to form, and in light of the provisions of
Articles 22, 23 and 159, and given the fact that the
alleged acts of negligence by the respondents, if found
to be established, would have the effect of infringing
on the petitioners rights, the Court was satisfied that
no prejudice had been caused to any party by the
present form.
5. The Constitutional and Human Rights Court was
not a criminal court. The court seized with the
jurisdiction to adjudicate on the 1st respondents
culpability under the criminal law had heard the case
against the respondents and on the evidence before
it weighed against the standard of proof required in
criminal cases, that was the standard of guilty beyond
reasonable doubt, and found the 1st respondent not
guilty.
6. The judgment of the Criminal Court acquitting
an accused on the merits of a case would not bar
disciplinary proceeding against him on the basis of

the same facts, nor would it operate as conclusive
evidence in the disciplinary proceedings. The reason
being that a criminal court required a high standard
of proof for convicting an accused. The case had to be
proved beyond reasonable doubt.
7. The acquittal of an accused by a Criminal Court only
meant that the case had not been proved against him
beyond reasonable doubt. Such a standard of proof
was not required for finding a person guilty in a
disciplinary proceeding.
8. The 1st respondent committed the acts of defilement
that he was being accused of. His employer, the
TSC, found him culpable of breaching the Code of
Conduct and Ethics, and not only dismissed him
from employment but struck him off the register
of teachers. At the very least, even though the acts
of defilement were not proved against him in the
criminal trial where proof beyond reasonable doubt
was required, on the balance of probability test, the
1st respondent did defile the petitioners.
9. The Constitution of Kenya 2010 was not retrospective
hence its provisions would not apply to matters that
occurred before the effective date of the Constitution.
Unless otherwise provided, the provisions of the
Constitution, 2010 could not govern matters
done under a different legal regime. It ought to be
acknowledged, however, that the rights guaranteed
to children under the Constitution, specifically
the right not to be subjected to any form of sexual
or physical violence, the right to education, nondiscrimination and the right to dignity, were also
guaranteed to children under the Children Act. These
rights were also guaranteed under the International
Convention on the Rights of the Child, which had
been domesticated through the Children Act.
10. The right to dignity guaranteed under Article 28 of the
Constitution was a continuing one. Where a teacher
defiled a child, leading to the child experiencing
emotional and psychological trauma, to feelings
of being an outsider in society and as somehow to
blame for the acts of the perpetrator as detailed in the
Counsellors report in respect of the petitioners, that
amounted to violation of the right to dignity and selfworth of the victim of abuse, which was continuous
in its effects.
11. The consequences of sexual violence against minors
were severe as they could affect their physical and
emotional well-being and expose them to the risk
of contracting sexually transmitted illnesses, thus
affecting their right to health. In addition, the fact
that their psychological well-being was affected was
a clear violation of their right to health, which was
defined as including the highest attainable standard
of physical and mental well-being.
Cases
74
Cases
12. There was a need to provide psycho-social support

to children in the position of the petitioners who
were adversely affected by the unlawful acts of sexual
abuse committed against them by the 1st respondent
and who, as in the case of the 2nd petitioner, found
it difficult to continue with their education. The
evidence before court suggested that that had not
been done in the case of the petitioners, and therefore
it was evident that the petitioners right to education,
as well as their right to health had been infringed.
13. The state through the TSC had and was still taking
some steps to ensure the provision of a safe and
conducive learning environment for children
in Kenya. The TSCs circular with respect to
sexual defilement by teachers which all parties
acknowledged was in place, was intended to ensure
the realization of such an environment, and the
launch of the website indicating the teachers who
had been found guilty of abusing pupils was a further
testimony of the good intentions of TSC. However,
the good intentions of the State and TSC were limited
as there was insufficient enforcement of the circular
and the Code of Ethics. If students and pupils were
still compelled by teachers to go to their houses and
perform domestic chores for them, as the petitioners
were, and in the process were subjected to sexual
violence, then the state, the TSC and those in charge
of institutions, such as school heads, were failing in
their duty to protect children.
14. The steps taken by the state and TSC were in many
respects limited, and no doubt ineffectual. For
instance, it was doubtful:
a. that students and pupils were aware
of the contents of the circular that
prohibited school teachers from
having any contact with them outside
what was required of a normal
teacher-pupil relationship.
b. that students were aware that there
was a prohibition against teachers
inviting students to their houses
c. that institutions and parents had
access to the TSC website on teachers
who were de-registered for breach of
the Code of Ethics and Regulations
for teachers and that the website was
up and functioning.
15. There was clearly a failure in providing support and
remedies for children who might have been subjected
to sexual violence by their teachers. While prosecution
and dismissal of offenders was a step in the right
direction, it did not deal with the psychological
trauma and stigma that the victims of such violence
experienced. The state or the TSC did not refer to any
policy or process for ensuring counselling or other
psychological support for victims of sexual violence.

It appeared that the state viewed its role as limited
only to punishing offenders, not addressing the needs
of the child victims of such offences.
16. The 2nd 4th respondents were under a duty to ensure
that pupils who were in educational institutions and
therefore under their care, who were young and
immature and therefore vulnerable, were protected
from harm. In particular, the 2nd 4th respondents
were under a duty to safeguard pupils from sexual
abuse by their teachers. Should they fail to do that,
they would not only be liable for failing in their duty
of care to the pupils, but also vicariously liable for the
unlawful acts of the teacher(s) found to have sexually
abused the pupils.
17. The 3rd and 4th respondents were vicariously liable for
the unlawful acts of the 1st respondent who sexually
abused the petitioners placed under his care. The TSC,
the State and any educational or other institution in
which teachers or other care givers commit acts of
sexual abuse against those who had been placed under
their care was vicariously liable for the wrongful acts
of its employees.
18. Public policy considerations dictated that those in
charge of educational and other institutions be held
strictly liable for abuses committed by those whom
they have placed in charge of vulnerable groups such
as minors in educational institutions. It was not
enough to prosecute those found to have breached
the duty of care, and to have intentionally committed
criminal acts against minors. The institutions were
under a duty to ensure that there was no room for
abuse by those they had placed in charge of those
vulnerable groups. In the circumstances, the 3rd and 4th
respondents were vicariously liable for the unlawful
acts of the 1st respondent against the petitioners.
19. Damages were the only remedy that the Court could
offer. In respect of the vicarious liability of the 3rd
and 4th respondents, such damages should not only
be borne by the 1st respondent as the perpetrator,
but also by his employer, the State through the TSC,
which had failed to adequately exercise its duty of
care to the petitioners.
20. Any teacher who violated his duty as a teacher, who
abused the trust of parents who leave their vulnerable
children in their charge, and who turns like a wolf
against them, would be held civilly liable, even though
he might escape criminal culpability.
21. The evidence before the Court and the reports placed
before the Court by the parties, suggested that girl
children were predominantly the victims, and that
male teachers were the abusers. Needless to say, the
findings of the Court would apply with equal force
to all teachers, regardless of gender, who sexually
abused children under their care.
75
22. (Obiter) The State through the TSC, must up its

game with respect to protection of minors. It could
not shuffle paedophiles from one school to another,
and finally, content itself with dismissals. It had to put
in place an effective mechanism, whether through an
inspectorate department within TSC or the Quality
Assurance Department within the Ministry, to ensure
that no-one with the propensity to abuse children
was ever given the opportunity to do so. Dismissal
and even prosecution while important could never
restore the childs lost innocence.
ii.
Petitioners were minors aged 12 and 13 respectively,

and should now be aged 16 and 17 respectively. The
awards, upon payment, be deposited in an interestearning account in trust for them and be utilized to
further their education or training with a view to their
being able to make a sustainable living for themselves.
iii.
Costs jointly and severally against the respondents.
Orders
i.
Compensation of Kenya Shillings Two Million (Kshs

2,000,000) & Three Million (Kshs 3,000,000) to WJ &
LN respectively
The Sun
Bringer of life, majestic deity

Worthy of the praise
Of all humanity.
You inspire and daze
And make us feel free.
Always vigilant
Over your domain
Nursing every plant
Back to life again.
Creating new forms
And brightening our days
After rain and storms
With your magic rays.
Warmer of the earth
And of orbs beyond
Forger of rebirth
In the cosmic pond.
Keeper of creation
Before the world begun.
Deserver of adoration,
Our everlasting Sun.
Cases
76

Appreciate the Present Moment

By Winnie Mbori. (HR Department)
ore often than not

our
struggle
for
achievements
and
material gain and satisfaction
overshadow the precious little
gems of life around us. We struggle
so hard to accomplish something big without sitting back
to realize that the greatest part of life is not exactly about
the big things that we constantly worry about, but the
little things we often take for granted.
Appreciating the present moment is all about focusing
our attention on the things which are pleasurable,
exciting, fulfilling, and satisfying. These things bring joy
and happiness into our lives as opposed to those things,
which are heart breaking, annoying, frustrating and
hurting. The present moment is what we have right here,
right now and not what we wish we had, but for some
Cases
reason, we dont. Failure to acknowledge and appreciate

the little things in life breeds resentment, anger, pain,
frustration and inability to appreciate the finer, simpler
and fulfilling things life has to offer.
One way of appreciating the present moment is showing
gratitude. Constantly remind yourself of the blessings
you have, however little they may be. Be optimistic about
the ones you have not yet received. What you have is far
much more important than what you dont have or what
you wish you had.
Your life for instance, how do you spend it? How many
times do you just take a moment to be grateful for
your life and health? How often do you feel sorry for
yourself for what you ought to be but you are not? Do
you spend your life apologizing for whom or what you
are and wish you were someone or something else? Are
you grateful for the family and the friends you have? Do
Cases
you value their relationship or do you wish you had it
differently? How often do you create time for your family
and friends? Are you the kind of person that your family
and friends can rely on even in the toughest of times? Do
you have a healthy relationship with your family, friends
and colleagues? Do you appreciate and respect your job
and other peoples jobs? Do you at times stop to imagine
that there are thousands of people all over the world
who feel lost, lonely, angry, frustrated and depressed just
because they are too busy striving for material gain and
satisfaction and in the process they forget to create time
and space for gratitude. These people wish they were in
your shoes and had what you have?
Appreciate your life and all that you have because you
have just one life. Learn to say thank you as many times
as you possibly can; apologize whenever you are wrong
it doesnt make you any less of a person; smile, laugh and
be happy- it does not mean that everything is perfect, it
just means that as much as life has its imperfections, you
are willing to look far beyond them and make the best
of every situation. Besides, each day is filled with endless
possibilities so make each day your possibility.
77
Love, cherish, value and respect the relationships that you

have built and nurtured and never take them for granted
or manipulate them for your own selfish gains. These
apply to all relationships including family, friendship,
professional and business. Purpose to have healthy
relationships and, in the same breath, avoid toxic ones
whose effect is to frustrate and discourage you from
having a happy and fulfilling life. Healthy relationships
are the key to all other.
Have dreams about the future and start working on them
today. Yours dreams are yours to make come true. But
do not let your future aspirations replace your present
realities because living in the present makes life more
meaningful, satisfying and stress-free.
Appreciate the present moment, live one moment at a
time, do what feels right and good to yourself and it will
definitely spill over to those around you.
78

Cases
Cases
79
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