Bench Bulletin Issue 33

Bench Bulletin Issue 33, April - June 2016
"End of an Era"
Judges set to retire at 70 and thats final. For now
Witness Protection
Agency kenya
Why should witnesses be protected?
CONTENTS
BENCH BULLETIN
1. Editor/CEOs Note 1
2. CJs Message 8
3. Pictorial 14
4. What they Said 16
5. Feature Case 18
6. The Kenya Law Organizational Quality

Management System 21
Pg 23
7. Kenya Law Showcases at the Third

Annual Devoluton Conference
23
8. Why should witnesses be protected?
24
10. Difference in Judicial Reasoning
42
9. International Jurisprudence 26
11. Kenya Law Finishes 2nd Runners Up
the ICJs Uwazi Tournament
Held on 14th May, 2016
46
Pg 24
12. Kenya Law Donates Furniture

to Mbagathi District Hospital
48
13. LEGISLATIVE UPDATE: Synopsis
of Bills and Subsidiary Legislation 49
Pg 48
14. Kenya Gazette Presidential

Appointments to State Corporations

between April 2016 - June 2016
52
15. CaseBack 54
16. Cases 55
17. Law Reform Brief 81
Pg 46
Issue 33, April - June 2016
Editorial Team
Editor /CEO
| Longet Terer |

Deputy CEO(Ag)
| Monica Achode |
KENYA LAW REVIEW

JOURNAL VOLUME V
Ksh
2,000/=
Head of Law Reporting &

Council Secretary (Ag)
| Cornelius W. Lupao |
Senior Law Reporters

| Andrew Halonyere | Njeri Githanga Kamau |
| Linda Awuor |
Contributors
| Monica Achode | Linda Awuor | Wambui Kamau |
| Janette Watila | Mutindi Musuva | Eric Odiwuor |
| Edna Kuria | Nelson Tunoi | Emma Kinya |
| Collins Kiplimo | Phoebe Ayaya | 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 |
| Musa Okumu |
Publishing, Design and Layout

The Kenya Law Review Journal provides a forum for
the scholarly analysis of Kenyan law and
interdisciplinary academic research on the law. The
focus of the Journal is on studies of the legal system
and analyses of contemporary legal issues with
particular emphasis on the article's substantive
contribution to understanding some aspect of the
Kenya's legal system and seeks to include articles
showing the interplay between the law and other
disciplines.
ACK Garden Annex, 5th Floor, 1st Ngong Avenue, Off Ngong Road,
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| Catherine Moni | Josephine Mutie |

| Cicilian Mburunga | Robert Basweti |
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
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:
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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
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Law Reporting
Law Reporting
Editor/CEOs Note
The Jurisprudence of Dr Willy Mutunga: Kenyas

14th Chief Justice
By Longet Terer1**
on Dr Willy Mutunga retired as the Chief Justice of Kenya on 16th June 2016
ending a 5-year tenure of service that will no doubt take years to analyze
especially bearing in mind that he was the first Chief Justice under the
Constitution of Kenya, 2010. In this period Dr Mutunga was also the Chairman of
the Council for Law Reporting the overall policy decision-making
organ of the National Council for Law Reporting (Kenya Law).
Dr Mutunga has left the Judiciary and Kenya Law with a worthy
legacy and in this article we highlight what we consider his greatest
contribution to Kenyan constitutional theory and the field of
comparative constitutionalism- the theory of a holistic interpretation
of the Constitution. In the five years that Dr Mutunga CJ presided
over the Supreme Court, he managed to bring Kenyas long quest for
a philosophy of constitutional interpretation to an end. This legacy
alone firmly plants him on the right side of Kenyan history. Yes, there
were controversial moments such as the disputed Presidential
election but on the whole Dr Mutunga was the right Chief Justice
for the right moment.
Sotirios Barber concedes the centrality of the responsibility for
constitutional interpretation to the sustenance of a constitutional
order.1 To this end, the argument by Muthomi Thiankolu is that
a judges inclination to a particular theory of law can affect, and
invariably affects, the outcome of constitutional litigation.2 And
our judges once declared that the Bill of Rights was dead as a dodo
because the Chief Justice had not made rules for the enforcement
of the Bill of Rights.3 On another occasion they ruled that only the
Attorney General could sue in the public interest in an environmental
litigation.4 On yet another occasion, they held that the Law Society of Kenya despite its
section 4 mandate did not have the locus standi to sue for the recovery of public land
because it had failed to demonstrate to the judge personal injury over and above the
more than the 30 million plus Kenyans.5
Kenyas Constitutional Moment

It would be proper to signal that the 2010 Constitution was a product of a long quest
for constitutionalism which according to Julius Ihonvbere implies the development,
presentation, adoption and implementation of a political compact that defines power
relations between political communities and constituencies and carves out the rights,
duties, and obligations of the citizens.6 Within this scheme, the transformative, postliberal, and horizontal application of Kenyas 2010 is a matter that the Chief Justice
1
This article was co-authored with Mr Dudley Ochiel, Legal Researcher, Kenya Law
Issue 33, April

- JuneNote
2016
Editors
understood well. In Speaker of the Senate v Attorney-General7 the Dr Mutunga remarked

that the old Constitution was seen as legitimizing an unacceptable and unsustainable
status quo. For this reason, the Kenyan people had reconfigured and reconstructed the
State from its former vertical, imperial, authoritative, non-accountable content in its
place the people had created an accountable, horizontal, decentralized, democratized
and responsive State. Devolution was therefore interpreted as reflecting the desires of
Kenyans for equity and egalitarianism in all spheres of governance.8
Kenyas long quest for constitutionalism is attributable in part to the fact it is often difficult
to create a constitutional moment distinct from normal politics, where constitution
makers can debate long-term issues devoid of the influence of short-term individual,
group, or institutional interests.9 Jon Elster recognizes the robust link between crisis
and constitution making pointing to the fact that new constitutions almost always
are written in the wake of a crisis or other exceptional circumstance.10 For Kenya, the
crisis was the 2007-2008 post-election violence. Nevertheless, as Mark Tushnet notes,
for a nation-state like Kenya with a heterogeneous population a constitution has the
potential to serve as a renewed expression of national unity.11 This rings clear in the
words of the Preamble to the Constitution.
Prior to 2010, Kenya like most African States had largely been governed by a postindependence constitution that retained the colonial mind-sets in the executive,
legislature and judiciary. 12 Further, Okoth Ogendo posits that post-colonial governance
in Africa, even in the presence of written constitutions, was largely marked by a failure
of the constitution to check the exercise of power or entrench itself as the grund norm
of the legal system and touchstone for the function of governance.13 As a result, with
the promulgation of a new Constitution, it might have been taken for granted that the
history of unprincipled, eclectic, vague, pedantic, inconsistent14 literal and restrictive
interpretation of the Constitution had gone away.
Sometimes though, in spite of the birth of a new constitutional order a cursory glance
reveals that elements of past societies, conflicts, decisions, are still there, still active
components of todays problems and attitudes. 15 There was a grave danger that the
old order could carry over into Kenyas nascent constitutional regime. Walter Khobe
remarks that given the poor political institution in polyarchies, the risk of a slide back
to authoritarianism is never far away.16
For instance, despite the presence of Article 23(3)(d) and Article 47 coupled with the
enactment of the Fair Administrative Action Act, 2015 the Courts largely continue to
dispense judicial review as if it were a continuation of the common law prerogative as
opposed to a constitutional right and remedy.
To some, a constitution is best made during historical moments when one order dies
and another is born, preferably through violence, conflict, or a deeply embedded social
dysfunction.17 David Landaus confirms the perception that constitution-making is
frequently undertaken in situations where existing political institutions have broken
down, and the constitution-making process itself is a challenge to the legitimacy of
remaining institutions.18 As a result, the process involves the right of the people acting in
an extraordinary body and stepping outside the existing political order to overhaul it.19
Dr Mutunga therefore correctly summarized the making of the Kenyan Constitution
as a story of ordinary citizens striving and succeeding to overthrow the existing social
order and defining a new social, economic, cultural, and political order for themselves.20
Bruce Ackerman perceives four crucial elements of a constitutional moment,
contributing to their rarity and implying that they must be seized.21 First, there must
be a signaling phase when the proponents of the change show that they have earned
the constitutional authority to claim that their reform agenda should be placed at the
center of sustained public scrutiny.22 The signaling phase requires demonstration of
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the broad, deep, and decisive support of the people for a constitutional transformation.
During the proposal stage which follows, the drivers of the reform movement must
elaborate their transformative agenda into relatively concrete operational proposals for
constitutional reform that the people can accept or reject stage.23 Third, there follows a
substantial period for mobilized deliberation when the proposals are tested time and
the proponents of change gain majority public support. Ultimately, the last stage of legal
codification when the judiciary integrates the proposal as cogent doctrinal principles
into the overall body of constitutional law. It is this fourth stage of the constitutional
moment that the Kenyan people entrusted to Dr Mutunga to steer in 2011.
As the president of the first Supreme Court under the constitution, the Dr Mutunga
and his colleagues in the words of Charles Sumner were accorded the power of
fastening such interpretation as they see fit upon any part of the Constitution, - adding
to it or subtracting from it, or positively varying its requirements- actually making and
unmaking the Constitution.24
The Jurisprudence of Chief Justice Mutunga

Securing the democratic pedigree is a task at which the Dr Mutunga largely excelled
perceiving as he did in Speaker of the Senate v Attorney-General26 that constitutionmaking does not end with its promulgation; it continues with its interpretation. Dr
Mutunga rightly felt that the Supreme Court had: a solemn duty and a clear obligation
to provide firm and recognizable reference-points that the lower courts and other
institutions can rely on, when they are called upon to interpret the Constitution.27 Once
the Supreme Court had established a philosophy of constitutional interpretation then
all Courts, other than the Supreme Court would be bound by it thus undergirding
various streams and strands of our jurisprudence.28
Additionally, the Chief Justice accurately observed that constitution-making requires
compromise, which can occasionally lead to contradictions; and that the political and
social demands of compromise that mark constitutional moments, fertilize vagueness
in phraseology and draftsmanship.29 Jack N. Rakove is in concurrence on this point
asserting that constitutions often require pragmatic accommodation characterizing the
long periods that go into constitution making.30 The choices are under constraints and
collective choices derived from the goals of individual constitution-makers and which
must be aggregated as a collectivity into the final body of the constitution.31
The horizontal application of the 2010 Constitution is attributable to its post-liberal
leaning recognizing that private entities and individuals have an impact on human
rights.32 The 2010 Constitution represents a departure from liberal constitutionalism
evidenced by the incorporation of a Bill of Rights that applies vertically as against
the state and horizontally as between individuals.33 Classical liberal theory is mainly
informed by the Lockean social contract theory which perceives the state as the outcome
of a compact between individuals.34 In this sense, the primary role of the constitution
is thus believed to be to limit the scope of governmental power and thus preserve the
autonomy of civil society the concepts known as rule of law or constitutionalism.35
As the Chief Justice properly perceived, the Constitution of Kenya did more than just
limit the scope of governmental power and was transformative in the Klareian sense.36
During the constitution making process the question of the appropriate legal system
with its accompanying legal culture and legal tradition came up. The Constitution of
Kenya Review Commission noted in its Final Report that the prevailing legal system
preceded the independence Constitution, and was not created by it.37 Secondly, there
had been a failure to develop a uniquely Kenyan jurisprudence possessing inherent
judicial authority to do so. 38
Paul Berman notes that in a legal system with pluralistic overlapping normative
frameworks, the question of the influence and application of foreign norms is
inescapable.39 Likewise, the myriad ways that overlapping legal systems interact with
each other and the very existence of multiple systems creates openings for contestation,
resistance, and creative adaptation. 40 One such site of contestation and resistance
soon arose regarding the place of the common law under the current constitutional
dispensation especially in interpreting constitutional questions.
Accordingly, in the Communications Commission of Kenya v Royal Media Services
Limited41 the Dr Mutunga firmly cautioned that there is always the danger that
unthinking deference to cannons of interpreting rules of common law, statutes, and
foreign cases, can subvert the theory of interpreting the Constitution. Dr Mutunga
must have recalled the observation that the fact that Kenyas legal system derived most
of its principles and values from English law and had wittingly or unwittingly led to
suppression of indigenous laws, practices and value s.42 He similarly must have been
informed by the caveat that a post-authoritarian society cannot possibly progress
toward an egalitarian society based on human dignity, equality and freedom with a legal
system that rigs a transformative constitutional superstructure onto a common law and
customary legal culture inherited from the past.43 In Human Rights States and Societies:
A Reflection From Kenya Dr Mutunga propounded an urgent need for the competent
development of a robust rich, patriotic, and jurisprudence indigenous jurisprudence
based on the Constitutional value of patriotism and responsive to the needs of the
people, and to the national interest.44
Subsequently, in Judges & Magistrates Vetting Board v Centre for Human Rights
& Democracy45 the dispute revolved around the appropriate interpretation to a
constitutional clause which provided that the process of or removal of a judge from
office under the vetting process would not be subject to question or review by any
court.46 The Chief Justice warned that a stereotyped recourse to interpretive rules
of the common law, statutes or foreign cases, can subvert requisite approaches to the
interpreting the Constitution.47
For this reason, Dr Mutunga led the court to the right decision which discerned the
waning public confidence in the Judiciary as part of the pre-constitutional history and
reason for entrenchment of the vetting process as a compromise.48 That compromise
had the effect of creating legal penumbras such as the one the court had to illuminate.49
As a result, Dr Mutunga held that the ouster clause had to be strictly construed as a
transitional clause holding in abeyance the courts jurisdiction in the context of Kenyas
unique historical background.50 The supervisory jurisdiction of the High Court, and
indeed the jurisdiction of any other Court had to remain in abeyance during the vetting
process consistent with the demands of the people of Kenya.
Paul Bermans proposes creation and preservation of legal spaces for productive
interaction among multiple overlapping legal systems by managing without eliminating
inevitable legal pluralism as the requisite response to legal hybridity.51 This can resolve
conflicts of law by appreciating that multiple communities may legitimately wish to
assert their norms over a given act or actor by seeking ways of reconciling competing
norms, and by deferring to alternative approaches if possible.52 In resolving Bermans
trilogy of contestation, resistance and creative adaptation between the normative
framework of the Constitution and the common law, the Dr Mutunga opted to draw
from the strength of comparative jurisprudence while bridging its weaknesses from
our own unique socio political and juridical experiences.
In Jasbir Singh Rai v Tarlochan Singh Rai the Dr Mutunga held that: While our
jurisprudence should benefit from the strengths of foreign jurisprudence, it must at
the same time obviate the weaknesses of such jurisprudence, so that ours is suitably
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enriched.53 Afterwards, in Gatirau Peter Munya v Dickson Mwenda Kithinji the Dr

Mutunga would affirm that references to foreign cases had to take into account peculiar
Kenyan needs and contexts as set out in Section 3 of the Supreme Court Act, 2011.54
Pluralism realizes that our conception of law must include more than just officially
sanctioned governmental edicts or formal court documents and that in opposition to the
Austinian positivism, law does not reside solely in the coercive commands of a sovereign
power.55 Accordingly, cognisant of Article 10 and Section 3 of the Supreme Court Act,
the Dr Mutunga noted the presence of non-legal phenomena into the interpretation
of the Constitution in the quest for coherence, certainty, harmony, predictability,
uniformity, and stability with the goal to facilitate the social, economic and political
growth of Kenya.56 Dr Mutunga further emphasized that the Constitution cannot be
interpreted as a legal-centric letter and text because it was a document as having varied
non-legal content aside of the jural phenomena for which reason references to Blacks
Law Dictionary would not always suffice and foreign cases had to take local situations
into context.57
In the CCK Case a five judge bench streamlined the theory of a holistic interpretation
propounded by Dr Mutunga and held that constitutional interpretation must take
into account Kenyas historical, economic, social, cultural, and political contexts of the
country together with its traditions.58
Gender Representation
Concerning gender representation, the Chief Justice stood out for his dissenting opinion
in the Gender Representation Case.59 Having realized that the constitution being a
document of compromise would present inconsistencies, grey areas, contradictions,
vagueness, bad grammar and syntax, legal jargon reflecting contested terrains fraught
with vested interested to be harmonized and a status quo to be mitigated.60 The
Chief Justice adverted to the continuous and consistent historical thread of agitation
and struggle for equity and equality in all spheres of life. He held that the one-third
representation rule was the bear minimum which was realizable immediately and that
the progressive realization would only be applicable to further steps towards a 50-50
representation. Though the final determination of the Court was that there was no
mandatory obligation resting upon the State to take particular measures, at a particular
time, for the realization of the gender-equity principle.61, Dr Mutunga maintained his
holistic view of the interpretation of the Constitution by highlighting the historical and
contextual place of this provision and holding that the one third gender rule was to be
complied with immediately.
Conceptualizing Public Participation

While the Constitution of Kenya, 2010 provides for public participation as a national
value and principle of governance, there is no definition of the term or other conceptual
framework for the analysis or justification of participation of the people in the democratic
process in Kenya. In the absence of such a framework there is a danger that government
at both levels might treat public participation as a cosmetic exercise in public relations
and thus give it the least of efforts with the narrow aim of avoiding court cases.
Dr Mutunga attempted to supply such a conceptual framework In the Matter of the
National Land Commission62 The Chief Justice held that public participation was
a fundamental pillar in Kenyas constitution-making and was therefore seen as a
rejection of elitist acts meant to subvert the sovereign will of the Kenyan population.63
Additionally, public participation was a major pillar, and bedrock of democracy and good
governance and formed the basis for the transformation envisioned by the Constitution
giving citizens a major voice and impact on the equitable distribution of political power
and resources.64 Accordingly, the obligation of the judiciary within this framework would
be one of indestructible fidelity to the value and principle of public participation.
The Incomplete Transformation of Judicial Review

Despite the Chief Justices explication of judicial review in the CCK Case65 the field of
judicial review has largely remained untransformed and some members of the judiciary
continue to dispense judicial review as if it still were a common law prerogative.66 Some
of the Courts have not acknowledged this transformation as is evidenced by the routine
citation and over reliance on common law precedents. This is exactly what Dr Mutunga
warned against in the bulk of his jurisprudence and in his argument for a decolonizing
jurisprudence. So does James Gathii in Judicial Review in Transformative Constitutions:
The Case of the Kenya Constitution, 201067 where he cautions the Kenyan judiciary against
the development of a two track system of judicial review, one based on the Constitution
and another on the common law. The judiciary must heed Onguto Js call in Kenya Human
Rights Commission v NGO Co-ordination Board for dialogue on the traditional judicial
review and the now entrenched substantive constitutional judicial review68 so that the
purpose, vision and objects of the Constitution are realized.
The incomplete transformation of the judicial review marked by the routine recitation
of common law cases, must be of the greatest concern of the next Chief Justice otherwise
the purpose, vision and objects of the constitution on judicial review will be stultified.
Accordingly, to safeguard the Chief Justices legacy, the judiciary must heed Onguto Js
call for dialogue in Kenya Human Rights Commission v NGO Co-ordination Board on
the traditional judicial review and the now entrenched substantive constitutional judicial
review.70
Conclusion
All in all, based on this brief jurisprudential survey, It is clear the Dr Mutunga harbours
a deep appreciation of constitutional development and that his strong conviction for the
development of a indigenous, patriotic Kenyan jurisprudence is tempered with the an
appreciation of the holistic nature of the constitution, as a living document, and the social
economic and politic environment, which serves as an ever present backdrop, to all activities
in society. In adopting this approach Dr Mutunga has enriched Kenyas jurisprudence by
entrenching a holistic interpretation of the Constitution that will serve Kenya well as it
continues to implement and entrench the Constitution of Kenya, 2010.
This together with his administrative initiatives including the growth of alternative
dispute resolution mechanisms; automation of court processes; clearance of case backlog;
development of judiciary manuals and policies; amongst many others initiatives detailed
in the Judiciary Transformation Framework, have ensured that Dr Mutunga has laid the
foundations for a transformative judiciary that is geared towards serving the people in a
responsive and efficient manner.
Above all his non-judicial interaction with the Kenyan citizenry has served to demystify
the law and make judiciary more transparent and citizen friendly.
Farewell Dr Willy Mutunga.
Endnotes
1.
Sotirios A. Barber, Robert P. George Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton University Press, 2001)
71
2.
Muthomi Thiankolu Landmarks from El Mann to the Saitoti Ruling: Searching a Philosophy of Constitutional Interpretation in Kenya, (2007) 1 Kenya
Law Review 188-213
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3.
Joseph Maina Mbacha v Attorney General (High Court Misc. Application No. 356 of 1989)
4.
Maathai v Kenya Times Media Trust Ltd [1989] eKLR
5.
Law Society of Kenya v Commissioner of Lands [2001] eKLR; Cf section 4 of the Law Society of Kenya Act, Cap 18 (now repealed) which provided
that the objects of the society was inter alia ... to protect and assist the public in Kenya in all matters touching, ancillary or incidental to the law; See also the
re-enacted section 4 in the Law Society of Kenya Act, 2014.
6.
Julius Ihonvbere Introduction in John Mukum Mbaku and Julius Ihonvbere (eds) The Transition to Democratic Governance in Africa: The
Continuing Struggle (Praeger, 2003) 17
7.
[2013] eKLR
8.
Ibid
9.
David Landau Constitution-Making Gone Wrong (2013) 64 Alabama Law Review 923
10.
Jon Elster, Forces and Mechanisms in the Constitution-Making Process (1995) 45 Duke Law Journal 364-396
11.
Mark Tushnet Constitution-Making: An Introduction (1984) 31 Texas Law Review 1982
12.
See Yash P. Ghai Constitutions and Governance in Africa; A Prolegomenon in Sammy Alderman & Abdul Paliwala (eds) Law and Crisis in the
Third World (Hans Zell Publishers, 1993) 51-75; see also Willy Mutunga The Constitution of Kenya 2010: Decolonizing Kenyas Jurisprudence (2015) Issue
26 Kenya Law Bench Bulletin 26-29
13.
H.W.O Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an African Political Paradox in Shivji, G. I. (ed) State and
Constitutionalism: An African Debate on Democracy (1991) 325
14.
Githu Muigai, Political Jurisprudence or Neutral Principles: Another Look at the Problem of Constitutional Interpretation 2004 Volume 1 East
African Law Journal 1
15.
John Sassoon Ancient Laws and Modern Problems: The Balance Between Justice and a Legal System (Intellect Ltd, 2005)
16.
Walter Khobe Chief Justice Willy Mutunga and Justice Njoki Ndungu: A Tale of Contrasting Visions on the Role of the Apex Court in a Polyarchy
(2016) No 16 The Platform for Law Justice and Society 54
17.
Makau Mutua, Kenyas Quest for Democracy- Taming the Leviathan (Lynne Rienner Publishers, 2008) 142
18.
Landau ibid 925
19.
Landau ibid 928
20.
Willy Mutunga The 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme Court Decisions (2014) University
of Fort Hare Inaugural Distinguished Lecture Series. Accessed from http://www.constitutionnet.org/files/mutunga_-_theory_of_interpreting_kenyas_
transformative_constitution_2-1_oct_14.docx (last accessed 30 June, 2016)
21.
Bruce Ackerman, We the People: Foundations, (Volume 3 Belknap Press, 1991) 5
22.
Ackermann ibid at 266
23.
Ibid
24.
Charles Sumner The Complete Works of Charles Sumner (Library of Alexandria LLC, 1899)
25.
Samuel Issacharoff Constitutional Courts and Democratic Hedging (2011) Volume 99 Georgetown Law Journal 961
26.
[2013] eKLR
27.
Speaker of the Senate v Attorney-General [2013] eKLR at 156
28.
[2014] eKLR at 228
29.
Speaker of the Senate ibid at 156
30.
Jack N. Rakove The Great Compromise: Ideas, Interests, and the Politics of Constitution Making (1987) Vol 44 William and Mary Quarterly 424457
31.
Jon Elster Forces and Mechanisms in the Constitution Making Process (1995) Vol 45 Duke Law Journal 364
32.
J. J. Paust, Human Rights Responsibilities of Private Corporations (2002) 35 Vanderbilt Journal of Transnational Law 801, 802
33.
John Osogo Ambani and Morris Kiwinda Mbondenyi A New Era in Human Rights Promotion and Protection in Kenya? An Analysis of the Salient
Features of the 2010 Constitutions Bill of Rights in Morris Kiwinda Mbondenyi, Evelyne Owiye Asaala, Tom Kabau and Attiya Waris (eds) Human Rights and
Democratic Governance in Kenya: A Post-2007 Appraisal (Pretoria University Law Press, 2015); Walter Khobe Ochieng, The Horizontal Application of the Bill
of Rights and the Development of the Law to Give Effect to Rights and Fundamental Freedoms (2014) 1 Journal of Law and Ethics 77
34.
Richard A. Epstein The Classical Liberal Constitution (Harvard University Press) xi
35.
Epstein ibid
36.
Karl Klare Legal Culture and Transformative Constitutionalism (1998) Vol 14 S. Afr. J. on Hum. Rts. 146
37.
Constitution of Kenya Review Commission (CKRC) The Final Report of the Constitution of Kenya Review Commission (Nairobi 2005) 86
38.
Ibid
39.
Paul Schiff Berman Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge, 2012) 10
40.
Ibid
41.
[2014] eKLR 358
42.
Ibid at 87
43.
Dennis Davis and Karl Klare, Transformative Constitutionalism and the Common and Customary Law (2010) Vol 26 South African Journal on
Human Rights 403-509
44.
Willy Mutunga Human Rights States and Societies: A Reflection from Kenya (2015) 2 Transnational Human Rights Law Review 63-102, 82
45.
[2014] eKLR
46.
Section 23 of the Sixth Schedule to the Constitution of Kenya
47.
Ibid at 206
48.
Ibid
49.
Ibid
50.
Ibid 213
51.
Berman Ibid at 10
52.
Ibid
53.
Ibid [2013] eKLR
54.
[2014] eKLR at 231
55.
Berman ibid
56.
Munya ibid at 233
57.
Ibid
58.
CCK Case ibid
59.
In the Matter of the Principle of Gender Representation in he National Assembly and he Senate [2012] eKLR
60.
Ibid
61.
Ibid
62.
[2015] eKLR
63.
Ibid
64.
Ibid
65.
CCK Case ibid
66.
See Ochiel Dudley The Constitution of Kenya 2010 and Judicial Review: Why the Odumbe Case Would Be Decided Differently Today (2013) Issue
28 Kenya Law Bench Bulletin 11-13; See also Ochiel Dudley Grounds for Judicial Review in Kenya: An Introductory Comment into the Fair Administrative
Action Act, 2015 (2015) Issue 32 Bench Bulletin 26-27; Dancun Okubasu Judicial Review in Kenya Today: Redeeming Justice Odunga and Others from
English Common Law & Its Foundations (2016) Number 17, Platform for Law, Justice & Society 58; Walter Khobe Reasonableness is Not Wednesbury
Reasonableness! Righting Wrongs in Kenyas Administrative Law Jurisprudence (2016) Number 17, Platform for Law, Justice & Society 54
67.
James Gathii Judicial Review in Transformative Constitutions: The Case of the Kenya Constitution, 2010 (2014) Paper presented at the Annual
Judges Conference at the Safari Park Hotel Nairobi
68.
[2016] eKLR
CJs Message
Speech By The Hon. Chief Justice Dr. Willy Mutunga, in his
address to the Senate on Wednesday 15Th June, 2016
r. Speaker Sir, Honorable Senators, I am delighted by your kind invitation to

make this address to the Senate. I believe that this is the first time a Chief Justice
is addressing Parliament and the Senate in particular. It marks an important and
significant development in our constitutional democracy where institutions create and
build a custom and tradition of comity. Not too long ago, the Speaker of the Senate graced
the occasion of the admission of advocates to the Roll at the Supreme Court Grounds;
and, he and I attended the Council of Governors Devolution Conference in Meru. This is
the spirit of cooperation and consultation that the Constitution invites,
and which we, as leaders, must embrace.
Today I want to talk about the Senate and the Judiciary - especially
in terms of what we have achieved in our Transformation journey.
The gains and challenges of Transformation are contained in the
Annual State of the Judiciary Reports that I have faithfully submitted
to both Chambers of Parliament for debate in the last four years. But
I would like us to have this discussion within a broader constitutional
and political context, and conclude with my reading of what the
comparative roles of the Senate and the New Empowered Judiciary
are. One of the main reasons I was honored by this invitation is that the
Judiciary Transformation that I have been leading for the last five years
has been partly premised on the principle of robust independence and
constructive interdependence among agencies and institutions. For a
political society that is obsessed with zero-sum politics, I understand
it when the media continually but wrongly frames what are normal
and healthy constitutional contestations in emerging or even mature
democracy, as supremacy wars. This is being a tad too reductionist.
Mr. Speaker Sir, controversies around the role of institutions within

and between arms are constitutionally anticipated even encouraged.
The moments of creative tension that, if responsibly handled by
leadership, even yield better political and democratic dividends. It
is what accounts for the interpretative role that the Constitution grants to Courts.
The constitutional cases that have arisen since 2010, and the divergent institutional
perspectives resulting there from, are not issues that are peculiar to Kenya. These are
normal occurrences for countries struggling to find the right institutional equilibrium
within the context of constitutional transition. In the United States, after the Supreme
Court delivered the famousMarbury vs. Madisonjudgment that set the stage for
judicial review of legislative acts, Congress, clearly offended by the Courts decision,
defunded the Supreme Court and impeached one of the justices! But before we get too
giddy and uppity here, remember that that was in the 19th century, and the democratic
demands of the 21stcentury do not permit such institutional ego-tripping games.
I want to applaud the Senate for showing statesmanship and enlightened leadership in
this regard. I am glad that the Senate, for most part, even when it has disagreed with
the courts decisions, have not yelled or hectored too much at the judges. It has, instead,
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accepted or appealed those decisions. The Senate, to its credit, organized a joint session
with Senior Judiciary Leadership in November 2014 to discuss sticking issues in the
administration of justice and the intersection of legislative and judicial functions. That,
Honorable members, is how you build institutions and a democracy brick by brick.
Mr. Speaker Sir and Honorable members, I know many of you here have been surprised
by the openness and direct engagement that the Judiciary has had with the Kenyan
public, as with the other arms of government. When I hosted the security agencies to
discuss issues of bail and bond and general adjudication of criminal trials within the
context of terrorism, many expressed shock and alarm fearing that we were securitizing
justice. It was a sight never seen before in the history of this country the men and
woman (there was one, the Deputy
IG) of and in uniform meeting the men and women of wigs and robes in the hallowed
grounds of the Supreme Court Building not to prosecute a case, but to discuss issues of
state security and the role of the justice sector in this process.
We had a delightfully enlightened conversation, bound by the fact that, regardless of
our institutional location in the Constitution, we all swore to uphold one Constitution,
not just those sections that create or apply to us. I hope that there will be no alarm that
a Chief Justice is addressing the Senate.
We are not about to judicialize the Senate or politicize the Judiciary. The alarmists
forgot that the Constitution says that judicial authority, as is executive and legislative
authority, is derived from the people and, it commands every Organ of State to obey
it and to exercise power in the public interest. This alarm that a dialogue between two
independent Organs of State triggers is grounded on a fundamental misunderstanding
of our Constitution. That is why I always get amused when some observers, clearly
powered by a weak appreciation of the origins, content and context of our Constitution,
charge that the Judiciary, through its decisions and conduct, has become activist.
The Constitution, 2010 is exactly activist by origin, design, text and intent. It has almost
eliminated or blurred the traditional activist-judicial restraint divide.
That is why it commands the courts in Article 159 (2) to exercise judicial authority
guided by the purpose and principles of this Constitution.. - principles which are in
Article 10, and which include such progressive principles as human dignity, social
justice, human rights, sustainable development, protection of the marginalized,
integrity and so on. I sometimes wonder what the conservative meaning of these
principles is! I wonder, too, what possible conservative meaning one could assign to the
constitutional commandment in Article 259 that the Constitution must be interpreted
in a manner that advances the rule of law, human rights and fundamental freedoms
while permitting the development of the law and while adhering to the delightful
doctrine that the law is always speaking.
Further, Judicial authority is derived from the people. This means whether you choose
common, civil or religious law; whether you choose to don or doff foreign attire, or
use exotic or vernacular accents, the primary source of judicial authority is the people
themselves. I wonder why some people think Kenyans are a conservative people
despite evidence to the contrary. Conservative societies dont overwhelmingly vote for
such a progressive Constitution. It is only an activist or progressive society that could
have recommended the total disbanding or vetting of the Judiciary; not a conservative
one. It is only an activist and progressive society that could have provided for an open,
competitive recruitment of a Chief Justice in the full glare of the media.
Conservative societies do not do that. It is also a progressive not conservative society
that frowns upon legislative supremacy in favour of constitutional supremacy even
while acknowledging the important role played by the representatives of the people in
10
a democracy.
If by conservatism they mean what I found in the Judiciary, then I am so glad I am not
conservative even by unconscious accident. Let me illustrate by drawing a portrait of an
institution I found: Many members here who were advocates remember that the current
Supreme Court Building used to stink; literally.
Courts in many parts of the country were dilapidated and judicial officers were sitting
in broken seats, and magistrates sometimes had to adjourn to go to the bathrooms in
the nearest town centers. The Judiciary did not even know how many cases were in
the court system. 65 per cent of Judiciary budget, which stood at a meager 3 billion,
was taken up by about 53 judges; there was endemic institutional corruption; litigants
were treated rudely; high courts were confined to the railway line, marginalizing large
swathes of the Kenyan society; there was a spirit and culture of anti-intellectualism
because judges argued that they could not be trained, and those who went for further
studies on their own were punished. Some staff had served for over 20-25 years without
attending a single training- none whatsoever, and yet we expected first rate service from
our registries. Over 80% of our staff were Form Four graduates and we denied them
training opportunities, paid them poorly, treated them with disdain and still expected
excellent services. Staff did not have a medical insurance cover and many had stagnated
in the same job group for over 10 years. The salaries were pathetic, sapping away the
confidence of colleagues and completely disempowering them through a culture of fear,
recrimination; using transfer of judges as punishment, not having basic management
manuals in finance, human resources, gender, disability; being overrun and over seen
by the executive, compromising judicial independence and so on. Jurisprudentially,
courts were shy to validate rights and all too often cowed to the whims of the Executive.
Mechanical jurisprudence reigned; the jurisprudence of technicality menacingly stalked
and policed our corridors of justice. Not anymore! This is what I found and I have tried
to reverse, which is activism and progressiveness in full unapologetic splendor. Those
who frown upon an independent Judiciary only do so until they get into trouble, at
which point their language changes from profane condemnation to profuse celebration
of independent and strong judges.
So today, the Judiciary has changed significantly, in ways seen and unseen.
First, the Judiciary has gallantly defended and protected the Constitution even when
it might have been politically convenient not to do so. Second, we have invested in
reclaiming public confidence in the institution through the public outreach programs,
establishing Customer Care Desks, and being friendly to litigants. But building public
confidence is a daily grind as one incident in one court may influence perception of a
very large and complex institution.
Third, we have reduced case backlog from an estimated 1 million cases in 2011 to
420,000 in June 2016, and declining. Fourth, we have reasserted the independence of
the Judiciary. Fifth, we have improved on internal organization of the Judiciary. This has
been accomplished through a number of policies. We never even used to induct judges
or staff. These have and are being done. We have introduced Performance Contracting,
improved staff welfare; promoted nearly 500 staff who had stagnated for as many as 1015 years; revived a learning culture by reviving the Judiciary Training Institute, which
used to hold less than 5 trainings in a year to the current 65. This is the same culture
of learning that now privileges constructive engagement: an enlightened mind sure
of its learning coupled with a humble soul confident of its integrity spurs and stokes
structured and respectful engagement and interaction with others and does not retreat
to the judicial monastery at the slightest hint of intellectual debate.
Sixth, we have improved access to justice. This has been accomplished as the number of
judges has increased from 53 to 136; magistrates have shot up from 316 to 443; Kadhis
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What they Said
11
have increased from 15 to 56. The number of High Court stations have risen from 14
to 34, Court-Annexed Mediation and Alternative Justice System are being piloted. The
Court of Appeal has been decentralized to Malindi, Nyeri and Kisumu, and the waiting
time in that court for civil matters has reduced from a high of 9 years to a low of 3-1
year in out stations. Before, this court used to circuit once or twice a year in these
towns; now the court has a permanent seat. And we have achieved near perfect gender
parity in the Judiciary. In 2011, the Court of Appeal had no woman judge; now, out of
25 judges in the court, 8 are women.
Seventh, we have fought corruption and led other arms of government in this regard.
This we have done with resolve and grit. In doing so, we have been open and transparent
ignoring the peddled wisdom among Government functionaries that dirty linen
about corruption should be swept under the rug so as to project the image of a clean
institution. Instead, we have opened ourselves to public scrutiny believing that
sunshine is the best disinfectant.
We set up the Office of the Judiciary Ombudsperson, which, I noticed, Parliament was
reluctant to create. You will recall that long before the fight against corruption became
vogue, we were the first arm of government to take bold action against corruption in
the administrative wing, and the cartels and bandits fought us viciously, using their
beach heads in National Assembly, the Executive and the Media but we prevailed.
The peculiarity of Kenya is the tendency to attribute the bad behavior or corrupt
activities of other people, to the person fighting these vices. So if there is corruption,
whose evidence they are reluctant to give you, they accuse you of not doing anything
about it. When you act, they accuse you of having failed to stop it in the first instance,
or acting in excesses of your powers. If you do something about it, they say, well, you
are fighting it too loudly and it is too messy! Wasnt there a better way? They intone!
Mr. Speaker Sir, Honorable Members, as I conclude let me turn my attention to the role
of the Senate as I see it.
Senate, like and the New Empowered Judiciary, is a product of the New Constitution.
As such, it is not surprising that thestatus quoand many individuals and institutions
favoured by the old order would find the two new institutions a threat to thestatus
quo. It is also not surprising that the two institutions are much misunderstood they
have even misunderstood each other!
Both the Senate and the New Empowered Judiciary, as products of the New
Constitution, are also given the obligations and authority to protect the Constitution.
In particular, the two, together with Governors, are named partners in a joint venture
called Devolution. They have sacred duties to fight for and defend Devolution as one
of the mixture of tools forming the glue that Kenyans manufactured to bond together
the historically disenfranchised and disempowered Kenyans on the one hand and
the middle and upper classes with a stake in the political economy, on the other hand.
The Kenyan Constitution is a social democratic pact in which the different classes
with a stake in the viability of Project Kenya have agreed to live together provided the
promises of the Constitution are realized. From this perspective, the Senate, as much
as the New Judiciary and the Governors, have a solemn duty to save Kenya by ensuring
that the safety valves that sustain Kenya, of which Devolution is key, are animated and
implemented. The first role of the Senate is that of representation of the Counties and
their governments. As a collective agency of the Counties, the Senate cannot afford to
be an adjunct to the Executive or the national government as such would be dereliction
of duty.
It is therefore incumbent and proper for yourselves as Senators to ensure that your
line of duty is to represent and assist and advocate for the rights and entitlements of
12
the Counties to the fullest extent possible- as against the national Government. This is a
duty that calls for objectivity but not neutrality.
In other words, whenever there is a cross-road as to whether to act in favour of the
Counties or national Governments, the Senators constitutional obligation is already
spoken for and must not be in doubt the County comes first. I say this because there is
a feeling that the impeachment proceedings that have arrived before you would give the
impression that sometimes this august institution considers itself as the executioner of
the Counties rather than its Guardian and protector.
The Senate as an institution must realize its constitutional promise and potential and
seize the moment to be the vanguard of Devolution. In doing so, the Senate must learn
from history and comparative studies:History has taught us that an Institution can rise
above the authority given by the text of its birth certificate or constituting instrument
or sink well below its textual authority and relevance, depending on how the institution
captures the imagination of the people, contextualizes its mission and functions and
becomes socially relevant or irrelevant. The Colombian Constitutional Court gives as
good an example as the Seven Bearded Sisters (one of who sits in this Senate Today)
shows how even a section of an institution can be vital for fighting for peoples freedom.
Comparative Jurisprudence also teaches us that the liberating role of an institution even
when bequeathed by the Constitution is not readily accepted or nurtured. Instead, those
threatened by potential for such liberation would do everything to ensure the institution
is still-born.
The Senates role in Kenyas Constitutional architecture is not yet fully activated due to
the political context. However, the solution is not to resort to overly assertive and extralegal maneuvers to assert authority and relevance but to strategically assert Senates
constitutional role by strategically using the courts, constructively engaging with other
arms of government and civil society; and mounting enlightened civic awareness of
the public. It is the pedagogy of strategic engagement with the other arms and actors,
consistent issue-oriented discourses with the public and systematic and sequential
implementation of Constitutional promises that will entrench Senate to its rightful role
in our Constitutional architecture.
The Senates role will only be entrenched by befriending the Rule of Law and making
it an ally not by competing with other government organs to find innovative and
intransigent ways to disobey court orders. As a new crown institution in Kenya, the Senate
must not allow itself to act like a toddler seeking to learn from the old hands. I get this
impression from the fact that while the Constitution is clear that Kenyas is a bi-cameral
legislative body, the Senate appears to be treated-whether in media or other political
circles, as the backward chamber of the Legislative functions. The Constitution is clear
that Parliament consists of the Senate and the National Assembly yet too frequently, it is
the members of the latter who are referred to as MPs. While the Constitution does not
seek to establish a hierarchy or seek to keep the National Assembly and the Senate in
supremacy battles, I think it is important that the
Senate should claim its space within the Constitutional architecture as a chamber of
legislation and part of Parliament by itself. This is no less important in the endeavor to
implement the Constitution as intended.
The Constitution and our history place in the Senate a monumental challenge irrespective
of the age of the institution within Kenya. I urge you to reflect on the fact that on the
average, a person gets to sit in this Senate by virtue of representation of a wider scope of
space and larger numbers of voters in comparison to other legislative houses. You must
take this as the signal from the Constitution that you as Senators represent more than
just political, regional or even parochial ethnic or religious interests. Indeed take the
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13
history from Senators worldwide and you will understand that a senator is not merely a
Politician. Senators are called to be Statesmen and women.
This Chamber therefore must represent and exude conduct and speech worthy of
statesmen and women. In other words, you should not simply debate issues. This is
more than a debating chamber but also a deliberative one. You should deliberate on
issues that are national and which transcend mere party or regional interests. Ensure
therefore that there is less politics among you and more statesman and stateswoman
ship in the way you conduct the affairs of this institution. In other words, in other words,
you are expected to distinguish yourselves from the ordinary legislator Kenyans are used
to. By all means, disagree with each other but let the Senate distinguish itself in the
level of principled argumentation advocating for opposite sides of policy debates in the
chambers. By all means, embrace divergent visions for a prosperous Kenya but let the
Senators distinguish themselves by the mastery of the diverging economic theories
not the tyranny of voting numbers. Let Senators distinguish themselves by the sheer
eloquence of their commitment to the better parts of party ideologiesnot the perfected
biology-laced ethnic-identity politics of the everyday politician.
The place of the Senate in the future of this country will only be secured when Senate
acts and behaves like the Upper House it was supposed to be; A House eminently
capable of rising above narrow partisan politics; a house capable of engaging beyond
the ethnic lens of the Kenyan politics; A House capable of debating real issues affecting
Kenyans devoid of narrow political interests. Thank you very much Mr. Speaker, Sir,
and Honourable Senators for the support you have given me during my tenure as Chief
Justice and President of the Supreme Court of Kenya.
Dr. Willy Mutunga, D.JUR, SC, EGH, SEGH.

Chief Justicd& President Of The Supreme Court Of Kenya
14
Pictorial
The Council of Kenya Law during the external launch
The former CJ giving his speech during the external launch
The former CJ, and Deputy CEO of Kenya Law in 2011 touring the Kenya Law offices
The former CEO Mr. Murungi giving the

then newly appointed CJ Dr. Willy a tour of
the Kenya Law secretariat
The former CJ, DCJ, RHC and CEO of

Kenya Law in 2011 touring the Kenya Law
offices
The former CJ handing a pocket size constitution to Mr. Musonobari during the external launch of
the rebranded name Kenya Law
Law Reporting
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15
The Kenya Law Management team presenting the Council with two awards; The Chief Information Officer 100 (CIO 100) Awards, 2015 and The ICT Association of Kenya Value
Awards, 2015, at a Council Meeting in the Kenya Law Boardroom on 17th December 2015
The Kenya Law Management team during the launch of the Kenya Law Strategic Plan
The former CJ thanking the exiting member of the Council

Ms. Florence Mwangangi, for her service on the Kenya Law Council
The former CJ and the CEO of Kenya Law Mr. Terer

during the launch of the Kenya Law Strategic Plan
The former CJ and the CEO of Kenya Law Mr. Terer during the farewell diner
16
What they Said

The Supreme Court lacked jurisdiction to entertain an application challenging the exercise
of discretion by the Court of Appeal under rule 5(2) (b) of the Courts Rules, where there was
neither an appeal, nor an intended appeal pending before the Supreme Court. In the instant
case the Court of Appeal exercised its original and discretionary powers in issuing orders
under rule 5(2)(b) of the Court of Appeal Rules, and was yet to determine the main appeal
where it would ordinarily hear the submissions of the parties, and arrive at a reasoning on the
relevant issues on appeal
Court of Appeal Judges

in GBM Kariuki, A
Makhandia, W Ouko,
PO Kiage, K MInoti J
Mohammed, J Otieno
Odek,
in
Kaplana
Rawal v Judicial Service
Commission & 4 others,
Civil Appeal (application)
No 1 of 2016
The apprehension of bias is to be a reasonable one held by reasonable and right-minded

persons, applying themselves to the question and obtaining thereon the required information.
The test is what an informed person, viewing the matter realistically and practically
and having thought the matter through concludes. The test contains a two-fold objective
element: the person considering the alleged bias must be reasonable and the apprehension of
bias itself must also be reasonable in the circumstances of the case. Further the reasonable
person must be an informed person, with knowledge of all the relevant circumstances,
including the traditions of integrity and impartiality that formed a part of the background
and appraised also of the fact that impartiality is one of the duties the judges swore to uphold.
Even if the Defendant were to claim enjoyment of the freedom of the media and that
of expression as provided under articles 33 and 34 of the Constitution it could not aid
him in the matter. Those aforesaid freedoms were all subject to the limitations provided
by the Constitution which include the need to respect the rights and freedoms of other
individuals Considering factors including the refusal by the Defendant to apologize
and pull down the offending words from the Facebook platform the Plaintiff was entitled
to total relief of 5Million Kenya Shillings. Kenya Shillings 2 Million general damages,
1.5 Million exemplary damages and 1.5 million aggravated damages
High
Court
Judge
Mumbi Ngugi J in
Geoffrey
Andare
v
Attorney General & 2
others, Petition 149 of
2015
What they Said
Supreme Court Judges

W.M.
Mutunga
CJ;
M.K.
Ibrahim,
J.B.
Ojwang, S.C. Wanjala
&N.S. Njoki, In Deynes
Muriithi & 4 others v
Law Society of Kenya
&
another,
Civil
Application No. 12 of
2015
High Court Judge Mbogholi

Msagha, in Arthur Papa
Odera v Peter Ekisa, Civil
Suit No. 142 of 2014
Section 29 did not define what amounted to a message that was grossly offensive, indecent
obscene or menacing character and did not answer the question as to which message could
course annoyance, inconvenience, needless anxiety. In the absence of definition of the
aforementioned words the meaning of those words was left to the subjective interpretation
of the Court, which meant that the words were so wide and vague that their meaning would
depend on the subjective interpretation of each judicial officer seized of a matter. Section 29
imposed a limitation on the freedom of expression in vague, imprecise and undefined terms
that went outside the scope of the limitations allowed under article 33 (2) of the Constitution.
The Respondents had not been able to show that such limitations were permissible under
article 24, or that they were the least restrictive means available. If the intention was to protect
the reputations of others the prosecution of mean spirited individuals who post defamatory
statements on social media did not achieve that. Libel laws provided for less restrictive means
of achieving that purpose. Therefore section 29 of the KICA was also unconstitutional for
violating article 33 of the Constitution, and therefore null and void.
Law Reporting
17
What they Said

Justice B.N Olao J in
Peter Mburu v Andrew
Kimani Adam & 2
others, ELC Case No. 85
of 2015
Section 13 of the Environment and Land Court Act gave the Environment and Land
Court both original and appellate jurisdiction to hear and determine disputes in
accordance with article 162 (2) (b) of the Constitution. The said court was not enacted
to take away the jurisdiction of subordinate Courts to handle land disputes where
the value of the subject matter falls within those Courts pecuniary jurisdiction
Parliament could not have intended to take away the jurisdiction that magistrates had
all along exercised in land cases where applicable
In the High Court of Kenya, a judgment of a foreign court that was a designated
court of a reciprocating designated country is capable of registration in Kenya and is
enforceable as a High Court of Kenya judgmentthere is no treaty in place between
Kenya and Ethiopia pursuant to which either countrys courts may enforce either
countrys judgmentIn the absence of a reciprocal enforcement arrangement, a foreign
judgment is enforceable in Kenya as a claim in common law
High
Court
Judge
F
Gikonyo,
J
in
Rajnikantkhetshi Shah
v Habib Bank A.G.
Zurich, Civil Case No.
246 of 2011
Court
of
Appeal
Judges EM Githinji, J
Mohammed & J Otieno
Odek JJA in Jayesh
Hasmukh Shah v Navin
Haria & another Civil
Appeal 147 of 2009
The in duplum rule was designed by common law and now statutory law in Kenya
to obviate such circumstances as these ones. Judicial prophesy may not be avoided when
cases as this nature show up. It is about time Parliament clears the clutter in the statutory
expression of the in duplum rule in our Banking Act; there is need for courageous
enactment here so that courts will apply the rule for its full effects and extent.
The term, declaration of rights is an action which a litigant requests the courts
assistance not because any rights had been violated but because those rights were
uncertain. The deceaseds rights were yet to be determined as at the time of his demise.
There was therefore nothing to be taken over by the applicantThe moment the
deceased died before his rights could be ascertained; he died with those unascertained
rights which were personal in nature. The unascertained rights of the deceased were
not a chose in action which could be assigned to someone else.
High Court judge E

B Obaga, in Nicolaas
Hendrick
Claasen
v
Commissioner of Lands
& 4 others, Constitutional
Petition No. 7 of 2015
Issue 33, Feature

April - Junecase
2016
18
*Editorial note:
This feature case is a summary of the decisions of the Courts in the dispute between the Deputy Chief Justice and
the Judicial Service Commission on the question of retirement of judges appointed prior to the promulgation of the
Constitution of Kenya, 2010. It traces the dispute from the High Court, the Court of Appeal and the Supreme Court.
Judges set to retire at 70 and thats final. For now

Kalpana H Rawal v Judicial Service Commission & another
By Monica Achode Deputy CEO (Ag.)
The Supreme Court has upheld a ruling by the Court

of Appeal requiring Deputy Chief Justice (DCJ)
Kalpana Rawal and Justice Philip Tunoi to retire.
In the ruling made on 14th June 2016, the Supreme
Court also allowed the two Judges to appeal the
ruling once the Supreme Court was reconstituted.
The genesis of this matter was a retirement notice
issued by the Judicial Service Commission (JSC)
on September 1, 2015, to the DCJ that she was
due for retirement as from January 16, 2016, as
she would be 70 years old by then. The JSC placed
an advertisement in the local dailies for a vacancy
in the Office of the Deputy Chief Justice. It called
for applications from suitable candidates to fill the
vacancy. Prior to the said retirement notice, the JSC
had earlier on issued a circular indicating that the
judges appointed to the Judiciary under the repealed
Constitution would retire at 74 years. However, that
position was later retracted in a subsequent memo
from the JSC in which it stated that all judges were
required to retire at the age of 70 years.
Aggrieved with that retirement notice, the
Deputy Chief Justice immediately filed a notice of
motion seeking conservatory ordersto stay the
implementation of the JSCs decision and staying
the recruitment process. It was her contention
that judges should be allowed to stay on until they
turned 74, where they had taken office under the old
Constitution. Supreme court Judge Phillip Tunoi
instituted a comparable suit, Justice Philip Tunoi
& Others vs Judicial Service Commission & Others
Petition No.244 of 2015 consolidated with Petition
Law Reporting
No.495 of 2014,raising similar issues regarding the

retirement age of judges who were in office prior to
the promulgation of theConstitution 2010, and in
which the Chief Justice had appointed a five judge
bench.
The High Court, empaneled as a five judge bench,
allowed that petition finding, in part, that there
had been a non-compliance with sections of the
Judicial Service Act which prescribed the manner
in which vacancies in the offices of judicial officers
were to be handled and that required transparency
in the recruitment process for judges. These were
to commence with a Gazette Notice issued by the
Chief Justice. Additionally, the Court quashed
the retirement notice issued to the DCJ and the
advertisement for a vacancy in the Office of the
Deputy Chief Justice on grounds that the Judicial
Service Commission did not have the mandate to
issue the retirement notice or act on the vacancy in
the manner that it did.
The High Court further considered the retrospective
effect of the constitutional provisions elaborating
on the principles to be applied. These were: first,
whether the language of the constitutional provision
was forward looking; second, whether there was a
slight indication or sense that showed a retrospective
orientation, also known as the whiff test; and third,
whether the provision had the effect of divesting an
individual of a right legitimately acquired before the
provision came into effect.
However, on the issue of the retirement age, the
Law Reporting
High Court was categorical in stating that the
retirement age of a judge appointed under the
repealed Constitution was 70 years.
This decision instantly generated an appeal to the
Court of Appeal by Justice Rawal. It raised several
grounds in which the judge contended that the
High Court had erred in several findings, among
them: in its construction, interpretation and
application of the Constitution and sections of the
Sixth Schedule; by holding that the retirement of
judges appointed under the former Constitution
was 70 years; by purporting to determine issues
that were not pleaded; by ascribing to Article 167
of the Constitution retrospective application and
lastly by finding that the appellant had no legitimate
expectation that she would serve as a judge until she
attained 74 years of age.
The Court of Appeal duly considered the record,
the grounds of appeal, submissions by the parties,
both written and oral, the authorities relied upon
by them, and the law. This being a first appeal, the
court re-evaluated and reappraised the evidence
and came to its own conclusion. It however bore
in mind that save in a few instances, there was not
much disagreement on matters of fact; the real
dispute was in the interpretation and application of
the Constitution.
The determination that aggrieved the Deputy
CJ (Justice Rawal) arose from the High Courts
interpretation of Article 167(1) of the Constitution,
which provided for the term of the office of the Chief
Justice. The Court found that it was not reasonable
to expect that the High Court could interpret that
article in total isolation and without regard to the
other six provisions of the same Article, or even
other related Articles. It also found that the High
Court neither erred nor went on a frolic of its
ownin deciding on matters not pleaded, the issue
considered and determined by the High Court
touching on who was qualified to hold the office
of the Chief Justice, was directly relevant to the
interpretation and application of Article 167(1) of
the Constitution.
Further, the Appellate Court found that by declining
to adopt and apply in Kenya practices and provisions
of other nations while interpreting the Constitution
of Kenya on the background of its peculiar history
and context, the High Court could not be said to have
erred. The Court, was living up to the true meaning
in regard to the Supreme Court caution that in
interpreting the Constitution of Kenya, primacy had
to be given to its historical context. Nor did it err
19
in finding that there was no property right to hold

the office of judge under the Constitution, indeed a
judge had no right to a salary for a period not served
and for services not rendered.
The Appellate Court opined that the High Court
had framed the issue on legitimate expectation as
one of the issues for determination. It extensively
considered the doctrine of legitimate expectation.
While it was true that the court did not expressly
state whether the appellant had any legitimate
expectation, a proper reading of the judgment made
it palpably clear that the High Court rejected the
claim that Justice Rawals legitimate expectations
had been violated. Having been heard by the JSC
and having ultimately been informed that the
retirement age was 70 years, she had no legitimate
basis for continuing to expect that the retirement
age for judges was 74 years. For an expectation to
be legitimate, therefore, it had to be founded upon
a promise or practice by a public authority that was
expected to fulfill the expectation. The retirement
age for judges was set and fixed by the Constitution
and could not be a subject of promise or legitimate
expectation derived from the unbinding opinions of
the JSC. Justice Rawals claim founded on legitimate
expectation was therefore not sustainable.
On the issue of the judges retirement age, the
appellate court had this to say: that persons
appointed judge of the High Court, Court of Appeal
or the Supreme Court were appointed pursuant to
separate and distinct Articles of the Constitution
and held separate and distinct constitutional office
with separate and distinct jurisdictions; and that
neither the Supreme Court nor office of Deputy
Chief Justice nor the office of Judge of the Supreme
Court were successors to any office established
under the former Constitution. This meant that
upon successful vetting, a judge who was in office on
the effective date was transited to the Constitution
by section 23 of the Sixth Schedule, and thereafter
the Constitution, rather than the other parts of the
Schedule, applied to him or her.
In its final analysis, the Appellate Court dismissed
Justice Rawals appeal finding that the retirement age
of all judges was 70 years. This was the subject matter
of the appeal in the Supreme Court. Justice Rawal,
filed an application at the Supreme Court to stay
the orders of the Court of Appeal pending the filing
of a substantive appeal. That application was heard
before Supreme Courts Lady Justice Njoki,who,
on that occasion, granted the conservatory
orders sought pending the filing of appeals for an
20
ultimate determination by the Supreme Court.
Three days later, Chief Justice Dr. Willy Mutunga,
publicized a variation to the Order which related
to inter parteshearing of the earlier application for
conservatory orders bringing forward that date.
This formed the background to various preliminary
applications and objections.
One of those preliminary objections argued that
several members of the Supreme Court Bench
had already made their positions on the contested
question of Judges age of retirement known. This in
fact was the matter in issue in Justice Rawals main
cause. It was further claimed that the two members
of the Bench who were also members of the Judicial
Service Commission had already taken a stand on
matters in litigation, and so, had lost impartiality,
thereby forfeiting their entitlement to perform
the adjudicatory role. It was asserted that in light
of this the Supreme Court sitting as it was, had no
jurisdiction to hear and determine the appeal on
that matter. The other objection was on the issue of
the powers of the Chief Justice to reverse an order of
a Supreme Court single judge bench.
Supreme Court Judge J.B. Ojwang upheld Lady
Justice Ndungus orders, stating that the legal
foundation in her orders was crystal-clear; and
that contests of them emerged only as general lines
of persuasion. Such contests were by no means
anchored in succinct bases of law, neither did they
establish authority.He opined that the sustenance
of single-Judge Orders was an integral outflow from
the fundamental constitutional principle of judicial
independence, and was beyond question.
He went on further to state that the Supreme
Court, indeed, had jurisdiction to proceed with the
cause before it, and to hear all matters, whether
preliminary or not, including the application for
conservatory Orders. He stated that the Supreme
Feature Case
Court had the ultimate word in the interpretation

of the Constitution; and, a fundamental guideline in
the discharge of that obligation, was the vindication
of all elements set out under the Bill of Rights. Justice
Rawal had well-safeguarded rights of recourse to the
Courts, and of appeal up to the Supreme Court, for
the protection of her fundamental rights which
included rights of fair trial, and rights ofrecourse to
the full-scale appellate system, he concluded.
Supreme Court Judges Smokin Wanjala and
Mohamed Ibrahim on the other hand recused
themselves citing various reasons. Justice Wanjala
recused himself on the grounds that it was not
possible to surmount the perception of bias in the
case, due to the fact that he was a member of the JSC
whose position on the matter was well known. He
however stated that membership in the JSC did not
automatically disqualify a Judge from adjudicating
a dispute to which the former (JSC) was a party
and that membership in the Commission was a
constitutional imperative. Justice Ibrahims reasons
for recusal were that he was disqualified by reason
of conflict of interest in the matter, having stated his
position on the matter earlier.
In the final analysis the Supreme Court concluded
the matter by stating that there was no constitutional
quorum of judges of the Court to sit and hear any
matter in those proceedings at that point in time.
The result of that was that the Supreme Court single
judge interim orders granted by Justice Ndungu
could no longer stand until there was a bench with
the required quorum. Further, it would be one where
none of the judges were disqualified on grounds of
conflict of interest and were able to hear the appeals.
That meant that the retirement age remained 70
years as per the Court of Appeals decision.
21
The Kenya Law Organizational Quality Management System

Introduction
The National Council for Law Reporting (Kenya
Law) is committed to developing and implementing
an Organizational Quality Management System.
This is a target under the Performance Management
& Measurement Understanding (PMMU) as signed
between Kenya Law and the Judiciary. It is for this
reason that Kenya Law sought technical assistance in
the implementation of a quality management system
based on the ISO 9001:2015.
The documentation process is expected to culminate
in the organization seeking for certification from a
recognized certification body.
The certification is geared towards improved quality
of service and enhanced performance leading
to Customer Satisfaction. The ISO 9001:2015
certification is one of Kenya Laws strategic agendas
that seeks to accomplish quality management practices
within our organization in a stipulated time frame.
What is ISO 9001 Certification?
ISO 9001 is the worlds most widely recognized
Quality Management System (QMS). It belongs
to the ISO 9000 family of quality management
system standards (along with ISO 9004), and helps
organizations to meet the expectations and needs of
their customers, amongst other benefits. ISO 9001
quality management system helps a company to
continually monitor and manage quality across all
operations, and outlines ways to achieve, as well as
benchmark, consistent performance and service. It is
the quality system of choice internationally.
Standards in the ISO 9000 family include:
ISO 9001:2015 - sets out the requirements of a
quality management system
ISO 9000:2015 - covers the basic concepts and
language
ISO 9004:2009 - focuses on how to make a quality
management system more efficient and effective
ISO 19011:2011 - sets out guidance on internal
and external audits of quality management
systems.
Below are some of the benefits of ISO 9001
Quality Management:
It allows you to become a more consistent
competitor in your marketplace
Better quality management helps you meet
customer needs
More efficient ways of working will save time,
money
and
resources
I m p r o v e d
operational
performance will
cut errors and
increase profits
Motivate
and
engage
staff
with
more
efficient internal
processes
By Monica Achode - Deputy CEO (Ag.)
Win more high
value customers
with better customer service
Broaden business opportunities by demonstrating
compliance
The Principles of Quality Management Systems
Some of the Principles of a quality management
systems include (but are not limited to):
i. Customer Focus - The primary focus of
quality management is to meet customer
requirements and to strive to exceed
customer expectations. Sustained success
is achieved when an organization attracts
and retains the confidence of customers and
other interested parties on whom it depends.
Every aspect of customer interaction provides
an opportunity to create more value for the
customer. Understanding current and future
needs of customers and other interested
parties contributes to sustained success of an
organization.
ii. Leadership - Leaders at all levels establish unity
of purpose and direction and create conditions
in which people are engaged in achieving
the quality objectives of the organization.
Creation of unity of purpose, direction and
engagement enable an organization to align
its strategies, policies, processes and resources
to achieve its objectives.
iii. People Engagement - It is essential for the
organization that all people are competent,
empowered and engaged in delivering value.
Competent, empowered and engaged people
throughout the organization enhance its
capability to create value. To manage an
organization effectively and efficiently, it is
important to involve all people at all levels
and to respect them as individuals.
22
iv. Process Approach - Consistent and predictable
results are achieved more effectively and
efficiently when activities are understood
and managed as interrelated processes that
function as a coherent system. The QMS
is composed of interrelated processes.
Understanding how results are produced
by this system, including all its processes,
resources, controls and interactions, allows
the organization to optimize its performance.
v. Improvement - Successful organizations
have an ongoing focus on improvement.
Improvement is essential for an organization
to maintain current levels of performance, to
react to changes in its internal and external
conditions and to create new opportunities.
The Kenya Law Quality Management Journey
In 2010 Kenya Law participated in the Kenya
Institute of Management (KIM), Organizational
Performance Index (OPI) assessment process to
gauge and most importantly to open up its business
system with comparative organizations. KIM
developed OPI (Organizational Performance Index),
as the tool to assess the level of performance excellence
and competitiveness of the participating companies.
The ratings of OPI are used to determine the winners
at the Company of the Year Awards (COYA).
A rigorous OPI process was undertaken which
formed the basis for evaluation and subsequent
activities leading to the production of a management
report. The OPI assessment combined desktop
analysis which was carried out at the Kenya Law
offices along with a review of documents submitted.
The findings of the assessment indicated that Kenya
Law at the time scored the highest in Information
and Knowledge Management. They also showed that
there was a need to improve in the areas of policy and
procedure documentation as well as implementing a
structured system in implementing productivity and
quality initiatives.
In COYA 2010, Kenya Law managed to attain he
OPI Bronze Standard at a score of 4. 29. It went also
on to win the COYA Judges Award in that year with
the citation For an organization that has the urge
and enthusiasm to always seek opportunities for
improvement; Never Give Up Mentality.
The Benefits of ISO 9001:2015 Certification for
Kenya Law
ISO 9001:2015 specifies requirements for a quality
management system when an organization:
SQAP
a) needs to demonstrate its ability to

consistently provide products and services
that meet customer and applicable statutory
and regulatory requirements; and
b) aims to enhance customer satisfaction
through the effective application of
the system, including processes for
improvement of the system and the assurance
of conformity to customer and applicable
statutory and regulatory requirements.
All the requirements of ISO 9001:2015 are generic
and are intended to be applicable to any organization,
regardless of its type or size, or the products and
services it provides.
Kenya Law recognizes the need and benefit
to undertake a systematic quality management
certification process. This along with Kenya Laws
commitment to Pillar I of the Judiciary Transformation
Framework on People-Focused Delivery of Justice
culminated in the realization that our main focus
had to be the satisfaction of our customers. The ISO
9000 family addresses various aspects of quality
management and contains some of ISOs best known
standards. The standard will provide guidance and
tools for Kenya Law to ensure that our products and
services consistently meet our customer requirements,
and that quality is consistently improved.
ISO 9001:2015 sets out the criteria for a quality
management system and is the only standard in the
family that can be certified to (although this is not a
requirement). It can be used by any organization,
large or small, regardless of its field of activity. This
standard is based on a number of quality management
principles including a strong customer focus, the
motivation and implication of top management, the
process approach and continual improvement.
Kenya Laws primary focus in implementing this
quality management system is to meet our customers
requirements and to strive to exceed their expectations.
We recognize that our sustained success can only
be achieved when our organization can attract and
retain the confidence of our customers and other
interested parties on whom we depend. Every aspect
of customer interaction provides an opportunity for
Kenya Law to create more value for the customer.
Therefore we believe that our understanding of the
current and future needs of customers and other
interested parties shall contribute to our sustained
success of as an organization.
Using ISO 9001:2015 will help Kenya Law ensure that
our customers get consistent, good quality products
and services.
SQAPE
23
Kenya Law Showcases at the Third Annual Devoluton

Conference
he 3rd Annual Devolution Conference,

2016, aimed at establishing a platform
for collaboration, capacity building and
knowledge sharing between the government
and all stakeholders that have a role to play in
the implementation of the devolved system of
government.
This years conference was held between 18th and
23rd April, 2016 in Meru County. The theme of this
years conference was The promise of Devolution:
Consolidating the Gains after Transition and
Looking into the Future
The vision of Kenya Law is to provide accessible
public legal information towards an enlightened
society. Having a twofold mandate, Kenya law does
this through first, monitoring and reporting on the
development of Kenyan Jurisprudence through the
publication of the Kenya law Reports and secondly,
revising, consolidating and publishing the Laws of
Kenya.
The Constitution of Kenya in Article 260 defines the
laws of Kenya to include county Legislation by stating
that county legislation is law made by an assembly of
a county government, or under authority conferred
by such a law. Further, the legislative authority of
a county vests
in
its
county
assembly. Kenya
Law
attended
the
Devolution
conference
for
purposes
of
providing
a
platform
to
enlighten members
of
the
society
of its mandate
of
revising,
consolidating and
publishing
the
county laws of
Kenya. Further, the
conference served
as
a
platform
to interact with
stakeholders
of
the
county
governments so as
to enlighten them
on this important role of publishing county laws.

Kenya Law uses its website to channel this legislation
for purposes of the public getting access to these
laws legislated at the county level. Counties can use
the Kenya Law portal for the following benefits:
a) Access to Information
Article 35(1) of the Constitution together with
Section 96 of the County Governments Act provides
the citizen with the right to access to information
held by the State and County governments.
b) Peoples participation
Article 10 of the Constitution provides for public
participation as a national value. The Kenya Law
portal is one media that a County Government can
use to disseminate its laws. This is in line with Article
174(c) of the Consitution which lists the powers of
self- governance to the people and enhancing the
participation of the people in the exercise of the
powers of the State and in making decision that
affect them.
The Devolution Conference was helpful in
establishing strategic partnerships with county
governments for the collection and publication of
county legislation on our official website.
24
Why should witnesses be protected?

Mr. Calvine Oredi, Principal Public Relations Officer, Witness Protection Agency (WPA)
he ability to protect
witnesses and victims
of offences in judicial
proceedings is critical in
ensuring effective investigation and prosecution
of serious crimes. It is particularly salient in the
context of prosecutions of organized criminal
gangs and terrorist groups, who have the means and
the motivation to intimidate and harm potential
witnesses in order to prevent them from cooperating
with law enforcement and judicial authorities.
The protection of victims and witnesses is of
importance also in
regard to prosecution
of serious violations
of human rights
and of international
humanitarian
law.
In some countries,
actors
involved
in
committing
organized
and
serious crimes may
also be responsible
for human rights
violation.
Witness Protection
Agency (WPA) usually
carries out awareness
campaigns to sensitize
members of the public
on witness protection
services if threatened
or intimidated.
Kenyans make inquiries at the Witness

Protection Agency (WPA) stand during the
Nairobi International Trade Fair
Investigating and prosecuting serious and organized

crimes requires that law enforcement and judicial
authorities are able to obtain information, and to
have witnesses willing to provide evidence that is
factual and truthful. Potential witnesses are less
likely to cooperate with authorities when the state
has inadequate capacity to undertake proper risk
assessments and to provide protection measures.
Needless to say, any credible investigation or
prosecution is mainly dependent on the quality
of evidence adduced by witnesses to the crime, or
Law Reporting
about the crime - and that is precisely why witnesses

are considered to be vital pillars in any successful
criminal justice system.
It is extremely important, therefore, that witnesses
have unfailing trust in the criminal justice system,
if they are to volunteer in assisting law enforcement
agencies in the investigation, prosecution and,
ultimately, determination of cases. Witness
protection can ensure such trust by enhancing
access to justice by witnesses at risk without fear of
reprisals, thus promoting the rule of law.
Law Reporting
Various instruments of both international and
national law, in the administration of justice now
recognize witness protection as a fundamental
human right. Article 50 (8) and 50 (9) of the
Constitution of Kenya, under the Bill of Rights,
not only provides for the protection of identity of
witnesses and vulnerable persons in the interests
of fair hearing before a court or tribunal, but also
for enactment of legislation providing for the
protection, rights and welfare of victims of offences.
The Witness Protection Agency through the Witness
Protection Act, Cap. 79 Laws of Kenya, is mandated
to provide protection to witnesses in criminal and
other proceedings. The Agency has an established
Witness Protection Programme which specifically
protects the safety and welfare of crucial witnesses
and related persons who are threatened, or at risk.
In essence, witness protection embodies a range of
measures and methods applied to ensure safety and
security of intimidated and threatened witnesses
that are required by law, or on their own accord to
testify in a court of law or tribunal.
The kind of protective measures required in a given
case depends to a large degree on the type of witness
(victim, vulnerable witness, justice collaborator,
etc.), the type of crime and the level of threat. They
will also depend on the environment and resources
available. Good practices for the protection victims
and witnesses is a complex area, requiring a legal
basis or policy, and the action and coordination of
a variety of actors such as the police, investigators,
prosecutors,
judges
and
prison
officials.
Furthermore, there is often a lack of awareness of
the concept of whistle-blower protection and
25
a tendency to equate whistle-blower protection

with witness protection. A whistle blower is not
necessarily a witness.
Witness protection encompasses operational and
judicial protection measures. Judicial protection
measures regulate proceedings where protected
witnesses are concerned. Section 36(2) of the Act
empowers the Chief Justice to make rules of court
as may be necessary for giving effect to the Act. For
effective implementation of the Act, the Chief Justice
gazzeted the Rules of Court which clearly set out
rules on evidence and procedure to be observed by
all parties to judicial proceedings. The bottom line
was to ensure that witnesses and victims of offences
not only testify in an environment that secures their
rights to fair hearing, but also ensure that justice is
done.
Its also worth noting that protecting victims and
witnesses requires regional and international
cooperation.
Police protection, procedural
protections, victim assistance, witness protection
and whistle blower protection programmes all serve
different purposes and involve different resources,
expertise and risks. The failure to understand their
differences can imperil the success and justification
of each programme, as well as to put people at risk
of harm.
Therefore, protecting witnesses is critical in
supporting administration of criminal justice
by ensuring access to justice by threatened and
intimidated witnesses. This is a sure way of ending
impunity and enhancing the Rule of Law in Kenya.
26
International Jurisprudence
Forfeiture of the Position of Deputy Secretary General to make way for an in-coming
Secretary General from the same Partner State is in effect not a Withdrawal as Stipulated
under Article 67 (2) of the Treaty.
In the matter of: A request by the Council of Ministers of the East African Community for an Advisory
Opinion made pursuant to Articles 14 (4) and 36 of the Treaty for the Establishment of the East African
Community and Rule 75 (4) of the East African Court of justice Rules of Procedure, 2013
Emmanuel Ugirashebuja, P.; Liboire Nkurunziza, V.P; James Ogoola, JA; Edward Rutakangwa, JA; and
Aaron Ringera, JA
November, 2015
Reported by Linda Awuor & Faith Wanjiku
Brief Facts
The Republic of Rwanda, as a partner state of the
Community, nominated its national (Mr. Alloys
Mutabingwa), for appointment as EAC deputy
secretary general by the Summit of Heads of State
(the Summit). Mr. Mutabingwa was duly appointed
in that position on April 29, 2009, for a term of 3
years. However, on April 29, 2011, well before
the expiry of Mr. Mutabingwas 3-year term, the
Republic of Rwanda nominated Amb. Dr.Richard
Sezibera for appointment by the Summit as secretary
general of the Community for a term of 5 years. By
virtue of article 67 (2) of the Treaty Establishing the
East Africa Community, Mr. Mutabingwas contract
was brought to an end, exactly 12 months before
the due date of its expiry. Upon that premature end,
the Community, as employer, compensated him
in an amount equivalent to his full remuneration
package for the 12-month balance of his contract as
provided for under Rule 96 (3) of the Staff Rules and
Regulations, 2006.
The Community Secretariat then requested the
Republic of Rwanda to reimburse to the Community
the amount of that compensation. Rwanda declined
to make the requested reimbursement; on the basis
that the matter did not fall within the ambit of
Rule 96 (3). Additionally, Rwanda contended that
there was no clear established state practice in that
regard. Confronted with that impasse, the Council
of Ministers took a decision to seek the Courts
Advisory Opinion on the matter.
Issues
i.
Whether forfeiture of the position of deputy

secretary general under article 67(2) of the
EAC Treaty for purposes of making way
for an in-coming secretary general from the
Research and Development Department
same partner state was in effect a withdrawal

of such deputy secretary general.
ii.
Whether there was an established state

practice on the issue of partner state refunds
to the Community for compensation paid to
outgoing deputy Secretaries General.
International Law-Law of Treaties-Treaty
Establishing the East African CommunitySecretary General-whether forfeiture of the
position of deputy Secretary General for purposes
of making way for an in-coming Secretary
General from the same partner state was in effect
a withdrawal of such deputy Secretary GeneralTreaty Establishing the East African Community
article 67(2)
International Law- East African Community
Staff Rules and Regulations-Termination whether there was an established state practice
on the issue of partner state refunds to the
Community for compensation paid to outgoing
deputy Secretaries General- EAC Staff Rules and
Regulations, 2006 rule 96(3)
International Law-Interpretation-difference in
meaning of the words forfeit and withdraw as
used in the EAC Treaty and Staff Rules- Treaty
Establishing the East African Community article 67(2)-EAC Staff Rules and Regulations,
2006 rule 96(3)
Words and Phrases-definition of forfeit- an
imposition of the law forcing surrender, to
forego, to sacrifice that which is entitled
Words and Phrases- definition of withdraw- to
remove, take away or similar cognate meanings

Relevant Provisions of the Law
Treaty Establishing the East African Community,
1999
Article 67(2)-Secretary General
Upon the appointment of the Secretary General the
Partner State from which he or she is appointed shall
forfeit the post of Deputy Secretary General.
EAC Staff Rules and Regulations, 2006
Rule 96(3)- Termination
Where a Partner State withdraws one of its executive
staff before the expiry of contract, the individual shall
be compensated the full remuneration package he or she
would have received if he or she had served the entire
period of the running contract. The funds paid by the
Community shall be reimbursed by the concerned Partner
State.
Held
1. A fair, good faith interpretation and
construction of the word withdraw, meant
exactly what that word said, namely: to
remove, take away or similar cognate
meanings. Therefore, to have given the word
withdrawal a meaning that encompassed the
forfeiture of article 67(2) of the Treaty, was
clearly to stretch the meaning unreasonably,
unrealistically and unnaturally in light of the
context of both article 67 of the Treaty, and
of Rule 96 of the Staff Rules.
2. To withdraw required the deliberate decision
and voluntary action of the concerned
partner state to recall the deputy Secretary
General. To change the ordinary meaning
would have been to give that term a special
meaning which under Article 31(4) of the
Vienna Convention on the Law of Treaties,
required one to establish that the partner
states intended such special meaning. In
the case, no such special meaning had been
established by the submissions of either the
representatives of any partner state, or those
of the Secretary General of the Community.
In that connection, Rwandas contention in
her written submission was correct: the act
of withdrawal was entirely dependent on
the will of the partner state effecting the
withdrawal. On the other hand, to forfeit
was an imposition of the law on the partner
state, forcing it to surrender, to forego, to
sacrifice that to which the partner state was
otherwise entitled, namely, the position of
deputy secretary general.
27
3. If the drafters of the Staff Rules had intended

to give the same effect to the two words,
nothing could have been easier or simpler
than to use the same word, forfeit, in the
Rules. But, no, the Rules opted for withdraw.
That was not for reasons of ignorance nor
indeed for lack of linguistic agility. On the
contrary, the drafters were fully conscious
of the word forfeit for they used it in the
nextdoor Rule of the same Staff Rules. The
two words stood for two different things
in their substantive application. Forfeiture
was an imposition by compulsory fiat of the
law. Withdrawal was a deliberate act and
choice made by the free will of the partner
state concerned. The context of article 67(2)
provided a definite, one of a kind purpose
for the forfeiture of the position of deputy
Secretary General namely, to give way to
an in-coming secretary general. On the
other hand, the withdrawal of a deputy
Secretary General in the context of Rule
96(3), provided no particular purpose for the
contemplated withdrawal. Given those two
different contexts, therefore, the two words
could not mean the same thing.
4. By using the word withdraw, in Rule 96(3),
instead of the word forfeit, the Staff Rules
clearly intended to, and did, construct an
altogether different concept, having an
entirely different effect and consequence
from that of the concept of forfeiture
contained in article 67(2) of the Treaty.
To ask the Court to reverse the semantic
gears of those two terms at that late stage,
therefore, was to ask it to do violence to the
linguistic purity of the two words. Worse
still, to do so would be to offend the clear
intent and purpose of both the Treaty and
the Staff Rules. The Court could not do so,
however attractive and however compelling
the temptation was to do so.
5. The practice in question needed to be an
active practice. That active practice should
have been consistent, rather than haphazard;
and it should have occurred with a certain
frequency. Some jurists went even further to
state that the practice in question must have
been concordant and common to all parties.
Equally, some practices had been dismissed
for not being uniform hence, not relevant.
Other practices had been dismissed because
28
their lapse of time that is, their longevity
was too short to observe a genuine relevant
practice. The European Court on Human
Rights had been fairly flexible in taking into
consideration subsequent practice. It had
not demanded that the practice be followed
unanimously by the contracting parties to the
European Convention on Human Rights but
merely by a great majority of those parties.
6. Forfeiture of the position of a deputy
Secretary General pursuant to article 67(2) of
the Treaty was a function and consequence
imposed by automatic operation of the law
without the free will or choice of the partner
state concerned. Withdrawal of deputy
Secretary General from their position by a
partner state, for purposes of making way
for an in-coming Secretary General of the
same partner state, though contemplated
under Rule 96(3) of the Staff Rules of the
Community, would in its application have
been a function and a consequence of the
free will and choice of the particular partner
state involved. To that extent, that function
would have offended and would clearly
have been inconsistent with and contrary
to the objectives and purpose of the Treaty,
in particular concerning the principle of
rotation in article 67(1) and (2) of the Treaty.
7. Given the above inconsistency between the
Treaty and the Staff Rules, which was made
pursuant to the provisions of articles 14(3)
(g) and 70(3) of the same Treaty, the Staff
Rules must to the extent of the inconsistency
have yielded to the primacy of the provisions
of the Treaty. The practice whereby two
partner states had in the past refunded
to the secretariat of the Community the
compensation paid to two former deputy
Secretaries General of their nationality
for premature termination of their tenure
(in order to give way to the in-coming
Secretaries General of the same nationality),
had not as yet sufficiently developed to trigger
objective recognition under international
law as an established State practice. It was,

at best, only a developing practice. At worst,
any emerging practice from the past two
precedents of Uganda and Tanzania, had
been fatally wounded and could have well
be on its way to becoming inchoate, if not,
comatose.
8. Of the three precedents signifying the alleged
practice, the first, Ugandas was effected prior
to the 2006 Staff Rules and, therefore, lacked
any legal basis at all; the third, Rwandas had
been plainly challenged and openly disputed
by the partner state concerned. That left only
the second, Tanzanias as the lone practice.
There was therefore, no legitimate basis to
hold that as a valid practice of the partner
states of the East African Community.
Accordingly, it was quite evident that the
so called practice could not have been taken
into account for purposes of interpreting
or applying article 67(2) of the EAC Treaty,
and Rule 96(3) of the EAC Staff Rules and
Regulations.
9. To avoid the latent friction between article
67(2) of the Treaty and Rule 96(3) of the
Staff Rules, the two needed formal, adequate,
and appropriate harmonization by the
competent organs and authorities of the
Community. In the result, the Republic of
Rwanda was under no legal obligation to
refund the compensation that was paid in
2011 by the Secretariat of the Community to
the outgoing Deputy Secretary General.
Forfeiture of the position of deputy secretary
general under article 67(2) of the EAC Treaty
for purposes of making way for an in-coming
secretary general from the same partner state
was in effect not a withdrawal of such deputy
secretary general.
The Republic of Rwanda was under no legal obligation
to refund the compensation that was paid in 2011 by the
Secretariat of the Community to the outgoing Deputy
Secretary General.
29
Supreme Court Holds Litigant Liable for Defamation for Comments Made by Friends
on Her Facebook Post, its Republication therein and through Email.
Douglas James Pritchard V Katherine Anne Van Nes (Vaney)
Honourable Mr. Justice A. Saunders
April 20, 2016
Brief Facts
The Plaintiff was a school teacher and he and his
family had been neighbours of the Defendants family
since 2008. There had been tensions between them
since 2011. Those tensions gave rise to allegations of
the Defendant using her property in such a manner as
to constitute a nuisance, interfering with the Plaintiffs
enjoyment of his property. That included the running
of a waterfall in the Defendants compound at night,
her dog trespassing onto and defecating on the
Plaintiffs property, late night noise from parties,
parking vehicles that blocked the Plaintiffs driveway
and two sons of the Defendant on more than one
occasion entering the Plaintiffs backyard without
permission.
The tensions also led to the Defendant making a
number of postings concerning the Plaintiff on
the internet social platform Facebook, on June 9,
2014. The comments included statements calling
the Plaintiff a nutter and a creep, and accusing him
of using a system of cameras and mirrors to keep
her backyard, and her children, under 24-hour
surveillance. The Defendant had more than 2,000
Facebook friends. She also had her privacy settings
set to public, allowing her posts to be viewed by all
Facebook users. Numerous comments made by
the Defendants friends contained more explicit
denunciations of the Plaintiffs alleged behaviour.
The Plaintiff thus sued for defamation and nuisance,
seeking damages, grant of a permanent injunction
and costs in his favour.
Issues
i. Whether the Defendants post on Facebook,
its republication therein and through email
and comments made by her friends made her
liable for defamation.
ii. Whether the Defendants actions amounted
to nuisance.
iii. What constituted the law of liability for
defamatory republication.
iv. What factors were to be considered in
assessment of defamation awards.
v. What evidence was to be considered in
awarding a higher amount of general damages
by reasons of aggravation.
Held
1. The principles that underlay claims in nuisance
were reviewed by the Supreme Court of
Canada in St. Lawrence Cement Inc. v. Barrette.
At common law, nuisance is a field of liability
that focuses on the harm suffered rather than
on prohibited conduct. Nuisance is defined
as unreasonable interference with the use of
land. Whether the interference resulted from
intentional, negligent or non-faulty conduct
is of no consequence provided that the
harm could be characterized as a nuisance.
The interference has to be intolerable to
an ordinary person. That is assessed by
considering factors such as the nature,
severity and duration of the interference,
the character of the neighbourhood, the
sensitivity of the Plaintiffs use and the utility
of the activity. The interference has to be
substantial, which means that compensation
would not be awarded for trivial annoyances.
2. The waterfall structure met the above
tests. The Court did not have the benefit of
any objective evidence such as noise level
measurements. Nor did it have any evidence
from any persons other than the Plaintiff
and his wife as to the noise level. However, it
did not have any reason to conclude that the
Plaintiff was overly sensitive. On the whole,
the Plaintiffs evidence that the noise was a
substantial interference causing him some
distress, discomfort, and annoyance over the
past four years was accepted. The noise level
caused by the waterfalls during the night
was unreasonable, by objective standards.
The severity of the nuisance, however, fell
towards the lower end of the range giving rise
to damages.
3. Over the period of roughly two years, as alleged,
the numerous times that the Defendants
dog trespassed onto and defecated on the
Plaintiffs property, constituted a nuisance.
The Court characterized the misbehaviour of
the Defendants sons, the late night noise from
parties, and the issues surrounding parking
to constitute unneighbourly acts that fell
30
short of being nuisances. There was no doubt
that these incidents aggravated the Plaintiff
and exacerbated his feelings of frustration
over the waterfall and the dog, but alone or
taken as a whole these unneighbourly acts
did not warrant a finding of tortious liability
sounding in damages.
4. In Grant v. Torstar Corp. a plaintiff in a
defamation action was required to prove
three things on a balance of probabilities to
obtain judgment and an award of damages: (1)
that the impugned words were defamatory,
in the sense that they would tend to lower
the Plaintiffs reputation in the eyes of a
reasonable person; (2) that the words in
fact referred to the Plaintiff; and (3) that the
words were published, meaning that they
were communicated to at least one person
other than the Plaintiff. The Plaintiff was not
required to show that the Defendant intended
to do harm as the tort was one of strict liability.
5. The Plaintiff had proven that the Defendants
initial Facebook posts and her subsequent
replies to her friends comments were
defamatory, in that they tended to lower the
Plaintiffs reputation in the eyes of a reasonable
person. The ordinary and natural meaning
of the Defendants comments unequivocally
described the Plaintiff as a nutter, a creep, and
an abnormal person. They suggested that the
Plaintiff was obsessed with videotaping her
and her family under the guise of keeping
a record of her dog. In that context she
referred to his actions as borderline obsessive
and abnormal. That implied that he now
continuously had children under observation,
coupling voyeurism with a prurient interest
in young girls.
6.
The next sentence of her initial post

supported the innuendo that the Plaintiff was
a paedophile; she stated there was a red flag
in that he worked for the school district. That
term implied that his behaviour was alarming,
as if he posed a threat to students. In the next
sentence of the initial post, she reinforced
the implied meaning of the foregoing by
highlighting the 24/7 videotaping of her
children. She then referenced what she
purportedly understood to be his desire
that she moves the play centre out of the
covenanted forest area, which appeared to
have the effect of moving it closer to his
property line; as if moving the children closer,
so they could be observed, was his goal.

7. The finding of the Defendants remarks
having defamatory meaning by innuendo was
also supported by the explicitly defamatory
nature of the comments made by her friends.
They clearly understood her meaning. The
Defendant clearly identified the Plaintiff as
the subject of her comments. She identified
him by his first name, his occupation, the
school and the school district in which he
worked, and by his position as her nextdoor neighbour. The Defendants remarks,
by their ordinary and natural meaning taken
together, and by innuendo, were defamatory
in meaning that the Plaintiff was a paedophile
and was unfit to teach.
8. The law of liability for republication of
defamatory statements was as stated in The
Law of Defamation in Canada. Republication
occurred where the person to whom the words
were originally published communicated
them to someone else. The general rule was
that a person was responsible only for his or
her own defamatory publications, and not
for their repetition by others. There was no
liability for a republication by a third person
that the Defendant neither authorized nor
intended to be made unless the repetition
was the natural and probable result of his or
her publication. The Plaintiff was entitled
to recover damages from the Defendant
both for the original publication and for the
republication by the person to whom it was
initially published.
9. It was uncontroversial that the distribution of
information; comments, photographs, videos,
links to items of interest amongst users was
fundamental to the use of a social media
platform such as Facebook.
An individual users posts to their own page
were automatically shared with friends
who were linked to the users page. As
friends reacted by commenting, the friends
comments could be spread automatically
to friends of friends. Such comments were
solicited implicitly through the mediums
tools that allowed comment on a post and
reply to a comment and use of the like button.
Further distribution took place through the
share function. That was intended only as
a generic description; no detailed evidence
was presented as to the specific features in

operation on Facebook at the time of that
incident. It appeared from the evidence that
these basic features all played a role in the
dissemination of the Defendants defamatory
remarks.
10. The Defendant, who had no privacy settings
in place, had more than 2,000 friends. She
implicitly authorized the republication of
her posts. There was actual evidence of the
republication at least to Ms. Regnier, who
learned of the posts through the comments
posted by several of her own friends. There was
the indirect evidence through the comments
made by neighbours who subsequently
encountered the Plaintiffs wife and remarked
on the posts. There was also the possibility,
at least, of republication having been made
on Facebook by Mr. Parks who stated in
one of his comments that he had shared her
post on his own Facebook page. All of that
republication through Facebook was the
natural and probable result of the Defendant
having posted her defamatory remarks. She
was liable for all of the republication through
Facebook.
11. The implied authorization for republication
that existed as a consequence of the nature of
social media, and the structure of Facebook,
was not limited to republication through
the social media only. The Defendant had
constructive knowledge of Mr. Parks
comments, soon after they were made. Her
silence, in the face of the statement that
stated why dont we let the world know,
therefore effectively served as authorization
for any and all republication by him, not
limited to republication through Facebook.
The Defendant ought to have known that
her defamatory statements would spread,
not only through Facebook. She was liable
for republication through the email on that
basis. In Crookes v. Newton, it was stated that
publication had two components: an act that
made the defamatory information available
to a third party in a comprehensible form,
and the receipt of the information by a third
party in such a way that it was understood.
The Plaintiff had to show that the act was
deliberate. That required showing that
the Defendant played more than a passive
instrumental role in making the information
available.
12. The Defendant had an obligation to delete
31
her initial posts, and the comments, in their

entirety, as soon as those friends began
posting defamatory comments of their own.
The Defendant acquired knowledge of the
defamatory comments of her friends, if not
as they were being made, then at least very
shortly thereafter. She had control of her
Facebook page. She failed to act by way of
deleting those comments or deleting the
posts as a whole, within a reasonable time,
given the gravity of the defamatory remarks
and the ease with which deletion could be
accomplished, being immediately. She was
liable to the Plaintiff on that basis.
13. In Leenen v. Canadian Broadcasting Corp.
some factors to be considered in assessing
defamation awards included the seriousness
of the defamatory statement, identity of the
accuser, breadth of the distribution of the
publication of the libel, republication of the
libel, failure to give the audience both sides
of the picture and not presenting a balanced
review, desire to increase ones professional
reputation or to increase ratings of a
particular program, conduct of the Defendant
and Defendants counsel through to the end
of trial, absence or refusal of any retraction
or apology and failure to establish a plea of
justification.
14. The seriousness of the Defendants
defamatory Facebook post, her replies, and
the comments of her friends could not be
overstated. An accusation of paedophilic
behaviour had to be the single most effective
means of destroying a teachers reputation
and career, not to mention the devastating
effect on their life and individual dignity. The
identity of the Plaintiff was especially relevant
in the case. Through his engagement in extracurricular activities he occupied a position
of trust as a music teacher for children.
Through hard work and dedication to his
students, he had earned the communitys
respect and admiration, as clearly established
on the evidence. He now faced the challenge
of repairing the damage the Defendant had
caused, if that was even possible at the point.
15.
Recovering from false allegations of

impropriety against children could not be
easy for the Plaintiff. It was to be hoped that
the reasons for judgment would assist. But the
taint of suspicion was not easily expunged,
and the reality was that regaining the stellar
32
reputation he once enjoyed would not be
quick or easy. In Hill v. Church of Scientology
of Toronto, the pervading nature of defamation
and its long term impact was succinctly stated
that a defamatory statement could seep into
the crevasses of the subconscious and lurk
there ever ready to spring forth and spread its
cancerous evil. The unfortunate impression
left by a libel could last a lifetime. Seldom
did the defamed person have the opportunity
of replying and correcting the record in a
manner that would truly remedy the situation.
The Defendants conduct had a devastating
impact on the Plaintiff, which continued to
the day and into the future. That factor, in and
of itself, merited a significant damages award.
16. The Plaintiff asked to be awarded an even
higher amount of general damages by
reasons of aggravation. An increase in the
award for general damages on account of
aggravation had to be based on a finding that
the Defendant inter alia was motivated by
actual malice, established through intrinsic
or extrinsic evidence. However, there was a
withdrawal of the libelous statement made
by the Defendant which wasnt clearly aimed
at obtaining the widest possible publicity in
circumstances that were the most adverse
possible to the Plaintiff as in the case. The
Defendants subsequent actions bore none
of the indicia of malice discussed above.
She removed the posts relatively quickly,
probably when the gravity of the situation
became apparent to her through the police
presence at the Plaintiffs home; she did not
seek to publicize the proceedings, giving rise
to further dissemination of the defamation;
she did not file a defence. Aggravated damages
were therefore not in order.
General damages of $2,500 awarded for the nuisance claim.
General damages of $50,000 awarded for the defamation
claim.
Additional punitive damages of $15,000 awarded.
Permanent injunction granted enjoining the Defendant,
owners and occupiers of the property on which the
Defendants residence was located from operating the
waterfall structure between the hours of 10 p.m. and 7 a.m.
Defendant to bear costs.
Relevance to the Kenyan Situation
In the Constitution of Kenya, 2010, article 33
under the bill of rights provides for freedom
of expression which does not extend to among
others advocacy of hatred that constitutes

ethnic incitement, vilification of others or
incitement to cause harm. This would be a
relevant provision to this case.
Section 29 of the Kenya Information
and Communication Act, Cap 411A was
recently declared unconstitutional in
Geoffrey Andare v Attorney General & 2 others
[2016]. It criminalized use of a licensed
telecommunication system to send a grossly
offensive message,a false one, or one that
caused annoyance. It was found to be broad
and uncertain and thus violated the above
article. The Respondent had been sued for
defamation over a post about the Petitioner
on the social media platform; Facebook.
However in Arthur Papa Odera v Peter O. Ekisa
[2016], the Court found the Defendant liable
for libel after even refusal by the Defendant to
apologize and pull down the offending words
from the Facebook platform. The Plaintiff
was entitled to total relief of 5Million Kenya
Shillings; Kenya Shillings 2 Million general
damages, 1.5 Million exemplary damages
and 1.5 million aggravated damages. The
Court stated that articles 33 and 34 of the
Constitution could not aid the defendant in
the matter even if he were to claim enjoyment
of the freedom of the media and of expression.
That freedom was subject to the limitations
provided by the Constitution which included
the need to respect the rights and freedoms of
other individuals.
The Canadian judgement has however gone
ahead to provide for a common law precedent
to Kenya on a yet to be litigated issue. It has
laid down factors to be considered on the
issues. This as seen in the judgement is where a
defendant can be found guilty over defamatory
comments by third parties, that is, her friends
on Facebook, especially if they dont delete
them. The case has also provided for liability
over republication therein, where one has
no privacy settings and thus the defamatory
information can be disseminated to every
Facebook user. Additionally, republication
through email by a friend to the defendant
which the defendant clearly is aware of and
allows could attract the said liability.
33
Supreme Court of India Declares the Doctrine of Adverse Possession Archaic

State of Haryana vs Mukesh Kumar & Others
Dalveer Bhandari, Deepak Verma
September 30, 2011
Brief Facts
The Petitioner had filed a civil suit seeking a
relief of declaration to the effect that it had
acquired the rights of ownership by way of
adverse possession over land situated in the
revenue estate of Hidayatpur Chhavni, Haryana.
The other prayer in the suit was that the sale
deed, mutation no. 3690 as well as judgment
and decree passed in Civil Suit No. 368 were
liable to be set aside. As a consequential relief,
it was also prayed that the Respondents be
perpetually restrained from interfering with
the peaceful possession of the suit land by the
petitioner. However, the respondent specifically
denied that the Petitioner ever remained in
possession of the suit property for the last
55 years. It was submitted that the disputed
property was still lying vacant. However, the
Petitioner had recently occupied it by using
force and thereafter also raised a boundary
wall of police line.
Issues
i.
Whether the Petitioner had acquired the

rights of ownership by way of adverse
possession.
Held
1. The concept of adverse possession was
born in England around 1275 and was
initially created to allow a person to
claim right of seisin from his ancestry.
Many felt that the original law that relied
on seisin was difficult to establish, and
around 1623 a statute of limitations was
put into place that allowed for a person in
possession of property for twenty years
or more to acquire title to that property.
The early English doctrine was designed
to prevent legal disputes over property
rights that were time consuming and
costly. The doctrine was also created
to prevent the waste of land by forcing
owners to monitor their property or
suffer the consequence of losing title.
2. The concept of adverse possession was
subsequently adopted in the United
States.
The doctrine was especially
important in early American periods
to cure the growing number of title
disputes.
The
American
version
mirrored the English law, which was
illustrated by most states adopting
a twenty-year statute of limitations
for adverse possession claims.
As
America developed to the present date,
property rights became increasingly
more important and land became
limited. As a result, the time period to
acquire land by adverse possession was
reduced in some states to as little as five
years, while in others, it remained as
long as forty years. The United States
also changed the traditional doctrine by
preventing the use of adverse possession
against property held by a governmental
entity.
3. The doctrine of adverse possession
arose in an era where lands were vast
particularly in the United States of
America and documentation sparse
in order to give quietus to the title
of the possessor and prevent fanciful
claims from erupting. The concept
of adverse possession exited to cure
potential or actual defects in real estate
titles by putting a statute of limitation
on possible litigation over ownership and
possession. A landowner could be secure
in title to his land; otherwise, long-lost
heirs of any former owner, possessor or
lien holder of centuries past could come
forward with a legal claim on the property.
Since independence of the country it
witnessed registered documents of title
and more proper, if not perfect, entries
of title in the government records. The
situation having changed, the statute
called for a change.
4. In Munichikkanna Reddy v. Revammathe
concept of adverse possession was dealt
with in detail. The legal position in
various countries was also examined
particularly in English and American
34
systems. It was observed that a dverse
possession in one sense was based
on the theory or presumption
that the owner had abandoned the
property to the adverse possessor
on the acquiescence of the owner to the
hostile acts and claims of the person
in possession. It followed that sound
qualities of a typical adverse possession
lay in it being open, continuous and
hostile.
5. A person pleading adverse possession
had no equities in his favour since he
was trying to defeat the rights of the true
owner. It was for him to clearly plead
and establish all facts necessary to
establish adverse possession. Though
the law of adverse possession was gotten
from the British, it was important to
note that English Courts were taking a
very negative view towards the law of
adverse possession. The English law was
amended and changed substantially
to reflect the changes, particularly in
light of the view that property was a
human right adopted by the European
Commission. Adverse possession was
termed as a negative and consequential
right effected only because somebody
elses positive right to access the Court
was barred by operation of law. As
against the rights of the paper-owner,
in the context of adverse possession,
there evolved a set of competing rights
in favour of the adverse possessor who
had, for a long period of time, cared for
the land, developed it, as against the
owner of the property who had ignored
the property. That was stated in Taylor v.
Twinberrow.
6. In JA Pye (Oxford) Ltd. v. United Kingdom
went on to observe the irony in law of
adverse possession. It was observed
that the law which provided to oust an
owner on the basis of inaction of 12 years
was illogical and disproportionate. The
effect of such law would b e draconian
to the owner and a windfall for the
squatter. The Supreme Court expressed
its astonishment on the prevalent law
that ousting an owner for not taking
action within limitation was illogical.
The Applicant Company aggrieved by
the said judgment filed an appeal and

the Court of Appeal reversed the High
Court decision. The Appellant then
appealed to the House of Lords, which,
allowed their appeal and restored the
order of the High Court.
7. It was deemed appropriate to observe
that the law of adverse possession which
ousted an owner on the basis of inaction
within limitation was irrational, illogical
and wholly disproportionate. The law
as it existed was extremely harsh for the
true owner and a windfall for a dishonest
person who had illegally taken possession
of the property of the true owner. The
law ought not to h a v e benefited a person
who in a clandestine manner took
possession of the property of the
owner in contravention of law. That in
substance would have meant that the law
gave seal of approval to the illegal action
or activities of a rank trespasser or who
had wrongfully taken possession of the
property of the true owner. The Supreme
Court failed to comprehend why the law
should place premium on dishonesty
by legitimising possession of a rank
trespasser and compelling the owner to
lose his possession only because of his
inaction in taking back the possession
within limitation. That was stated in
the Hemaji Waghaji Jat case.
8. Another
important
development
in the protection of property rights
was the Fifth Amendment in the U.S.
Constitution. James Madison was the
drafter and key supporter for the Fifth
Amendment. The Fifth Amendment
stated that private property would
not be taken for public use, without just
compensation. The main issue was to
pay just compensation for acquiring
the property. There were primarily
two situations when a landowner could
obtain compensation for land officially
transferred to or depreciated by the
Government. First, an owner could
be entitled to compensation when
a governmental entity intentionally
acquired private property through
a formal condemnation proceeding
and without the owners consent.
The States power to take property

was considered inherent through
its eminent domain powers as a
sovereign. Through the condemnation
proceedings, the government obtained
the necessary interest in the land, and
the Fifth Amendment required that the
property owner be compensated for the
loss.
9. The
second situation
requiring
Fifth
compensation under t h e
Amendment
occurred when the
Government had not officially acquired
private property through a formal
condemnation
proceeding,
but
nonetheless took property by physically
invading or appropriating it. Under
that scenario, the property owner, at
the point in which a taking had occurred,
had the option of filing a claim against
the G overnment actor to recover just
compensation for the loss. When the
landowner sued the Government
seeking compensation for a taking,
considered
an inverse
it
was
condemnation proceeding, because
the landowner and not the government
was bringing the cause of action.
10. The law of adverse possession was inherited
from the British. The Parliament could
have considered abolishing the law of
adverse possession or at least amending
and making substantial changes in law in
the larger public interest. The Government
instrumentalities including the police in
the instant case had attempted to possess
land adversely. That, in the Courts opinion,
was a testament to the absurdity of the law
and a black mark upon the justice systems
legitimacy. The Government should have
protected the property of a citizen, not steal
it. And yet, as the law currently stood, they
could have done just that. If that law was
to be retained, according to the wisdom of
the Parliament, then at least the law had
to require those who adversely possessed
land to compensate title owners according
to the prevalent market rate of the land or
property in question. That alternative would
have provided some semblance of justice to
those who did nothing other than sitting on
their rights for the statutory period, while
allowing the adverse possessor to remain on
property.
35
11. While it may have been indefensible to

require all adverse possessors, some of
whom could have been poor, to pay market
rates for the land they possessed, perhaps
some lesser amount could have been realistic
in most of the cases. The Parliament could
either have fixed a set range of rates or left it
to the judiciary with the option of choosing
from within a set range of rates so as to have
tailored the compensation to the equities of
a given case. The Parliament could seriously
have considered to at least abolish bad
faith adverse possession, that is, adverse
possession achieved through intentional
trespassing. Believing it to be their own
and thus could receive title through adverse
possession sent a wrong signal to the society
at large. Such a change could ensure that
only those who had established attachments
to the land through honest means would be
entitled to legal relief.
12. In case the Parliament decided to retain the
law of adverse possession, the Parliament
could have simply required adverse
possession claimants to possess
the
property in question for a period of 30 to
50 years, rather than a mere 12. Such an
extension could have helped to ensure that
successful claimants had lived on the land
for generations, and were therefore less
likely to be individually culpable for the
trespass (although their forebears might
have). A longer statutory period could also
have decreased the frequency of adverse
possession suits and ensured that only those
claimants most intimately connected with
the land acquired it, while only the most
passive and unprotective owners lost title.
13. It was the Courts bounden duty and obligation
to ascertain the intention of the Parliament
while interpreting the law. Law and Justice,
more often than not, happily coincided only
rarely we found serious conflict. The archaic
law of adverse possession was one such. A
serious re-look was absolutely imperative
in the larger interest of the people. Adverse
possession allowed a trespasser, a person
guilty of a tort, or even a crime, in the eyes
of law to gain legal title to land which he had
illegally possessed for 12 years. How 12 years
of illegality could suddenly be converted to
legal title was, logically and morally speaking,
baffling.
36
14. The outmoded law essentially asked the
Judiciary to place its stamp of approval upon
conduct that the ordinary Indian citizen
would find reprehensible. The doctrine of
adverse possession had troubled a great
many legal minds. The Court was clearly of
the opinion that time had come for change.
If the protectors of law became the grabbers
of the property (land and building), then,
people would be left with no protection and
there would be a total anarchy in the entire
country. It was indeed a very disturbing
and dangerous trend. It had to be arrested
without further loss of time in the larger
public interest. No government department,
public undertaking, and much less the Police
Department could be permitted to perfect
the title of the land or building by invoking
the provisions of adverse possession and
grab the property of its own citizens in the
manner that had been done in the case.
15. There was an urgent need for a fresh look of
the entire law on adverse possession.
The Supreme Court recommended the Union of India
to immediately consider and seriously deliberate
either abolition of the law of adverse possession and in
the alternate to make suitable amendments in the law
of adverse possession. A copy of the judgment was to
be sent to the Secretary, Ministry of Law and Justice,
Department of Legal Affairs, Government of India
for taking appropriate steps in accordance with law.
Petition dismissed .Petitioner to bear costs.
Relevance to Kenyan Situation
The Kenyan position on adverse possession of land
remains contentious. The Courts have found in its
favour especially where its proved but still call for
reforms. The Constitution of Kenya 2010 unlike the
Repealed one in section 75(6) does not provide for
adverse possession. However the Land Act No. 6
of 2012, Land Registration Act No. 3 of 2012 and
the Limitation of Actions Act Chapter 22 Laws of
Kenya, do.
Section 7(d) of the Land Act recognizes prescription
as a method of acquiring title to land though it does
not provide how this acquisition is to be realized.
Section 28 (h) of the Land Registration Act too
recognizes the right to land acquired by virtue of
any written law relating to the limitation of actions
or other rights acquired by any written law. Section
38 of the Limitation of Actions Act provides for the
procedure an adverse possessor is to follow in order
to be registered as the new proprietor of the land in
place of the registered owner.

However, Article 40(2(a) of the Constitution of Kenya
2010 provides that Parliament shall not enact a law
that permits the State or any person to arbitrarily
deprive a person of property of any description or
of any interest in, or right over, any property of
any description. Secondly in terms of section 107,
the Government can compulsorily acquire private
land and compensate the owner. Section 3(1) of the
Trespass Act Chapter 294 Laws of Kenya provides
that any person who without reasonable excuse
enters, is or remains upon, or erects any structure
on, or cultivates or tills, or grazes stock or permits
stock to be on, private land without the consent of
the occupier thereof shall be guilty of an offence. Part
IX of the Land Act, provides for the establishment
of settlement schemes to facilitate access to land,
shelter and livelihood; settlement programs to
provide for access to land to squatters, displaced
persons and establishment of Land Settlement
Fund to be applied in the provision of access to land
for squatters and displaced persons.
In Mtana Lewa v Kahindi Ngala [2015], it was held
that acquisition of land by adverse possession
was not inconsistent with Article 40 (2) (a) of the
Constitution as the Constitution had to be read
and interpreted in a holistic and purposive manner.
However, K Minoti JA termed it as extreme to an
extent while Makhandia JA stated that it would be
a proper recourse for the statutes to be carefully
researched and developed to cover the mischief of
unscrupulous squatters in the current state of affairs.
Ouko JA, stated that reforms were required in the
area which included reasonable compensation of
the paper owner for loss of his land to the neighbour
since in the case of squatters and displaced persons
section 135 (3) (b) of the Land Act made provision
for a fund to be used in purchasing private land
to settle such class of people. He also stated that
although the acquisition process under sections 7,
9, 13, 37 and 38 of the Limitation of Actions Act
follows due process of the law, the most acceptable
way of hearing the paper-owner was by a procedure,
similar to that of the English Registration of Land
Act 2002, where the paper owner was given notice
on the 10th year, to decide his fate with regard to his
ownership of the land as he may have only relapsed
into a siesta but not gone to sleep. It was only when
the owner failed to take advantage of the window
could it be concluded safely that he had lost interest
in the property.
37
Remedial Action taken against a President for Breach of his Constitutional Obligations is
Legally Binding.
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v
Speaker of the National Assembly and Others
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mhlantla J, Nkabinde J and Zondo J
March 31, 2016
Brief Facts
Several South Africans, including a Member of
Parliament, lodged complaints with the Public
Protector concerning aspects of the security
upgrades that were being effected at the Presidents
Nkandla private residence. That triggered a fairly
extensive investigation by the Public Protector
into the Nkandla project. The Public Protector
concluded that several improvements at the said
residence; a cattle kraal, chicken run, swimming
pool, amphitheatre and a visitors centre were nonsecurity features. Since the State was in that instance
under an obligation only to provide security for the
President at his private residence, any installation
that had nothing to do with the Presidents security
amounted to undue benefit or unlawful enrichment
to him and his family and had to therefore be paid
for by him. In reasoning her way to the findings,
the Public Protector found that the President acted
in breach of his constitutional obligations in terms
of section 96(1), (2)(b) and (c) of the Constitution,
Executive Members Ethics Act 1998
and the
Executive Ethics Code 2007.
Having arrived at that conclusion, the Public
Protector took remedial action against him in the
following steps:
a) With the assistance of the National Treasury
and the SAPS (South African Police
Service), to determine the reasonable cost
of the measures implemented by the DPW
(Department of Public Works) at his private
residence that did not relate to security.
b) To pay a reasonable percentage of the
cost of the measures as determined with
the assistance of the National Treasury,
also considering the DPW apportionment
document.
c) To reprimand the Ministers involved for
the appalling manner in which the Nkandla
Project was handled and state funds were
abused.
d) To report to the National Assembly on his
comments and actions on the report within
14 days.
Consistent with this directive, the President

submitted his response to the National Assembly
within 14 days of receiving the report. It was
followed by yet another response about five months
later. The National Assembly set up two Ad Hoc
Committees, comprising its members, to examine
the Public Protectors report as well as other reports
including the one compiled, also at its instance, by
the Minister of Police. After endorsing the report
by the Minister exonerating the President from
liability and a report to the same effect by its last Ad
Hoc Committee, the National Assembly resolved to
absolve the President of all liability. The President
therefore did not comply with the remedial action
taken by the Public Protector.
Issues
i. Whether the Constitutional Court had
exclusive jurisdiction to hear the application
by the Economic Freedom Fighters (EFF).
ii. Whether the Public Protectors remedial
action had a legally binding effect which
required the President to comply with.
iii. Whether both the President and the
National Assembly acted in breach of their
constitutional obligations.
Constitutional Law-Constitutional court- whether
the Constitutional Court had exclusive jurisdiction to
hear the application by the Economic Freedom FightersConstitution of the Republic of South Africa, 1996, section
167(4)(e)
Constitutional Law-Public protector-Functions of
public protector- Whether the Public Protectors remedial
action had a legally binding effect which required the
President to comply with- Constitution of the Republic of
South Africa, 1996, section 182
Constitutional Law- Executive- President; National
Assembly-Powers of National Assembly- whether both
the President and the National Assembly acted in breach
of their constitutional obligations- Constitution of the
Republic of South Africa, 1996, sections 42(3), 55(2),83(b)
Constitution of the Republic of South Africa, 1996
38
Section 42(3)-Composition of Parliament
The National Assembly is elected to represent the
people and to ensure government by the people under
the Constitution. It does this by choosing the President,
by providing a national forum for public consideration
of issues, by passing legislation and by scrutinizing and
overseeing executive action.
Section 55(2)-Powers of National Assembly
The National Assembly must provide for mechanisms
(a) to ensure that all executive organs of state in the
national sphere of government are accountable to it; and
(b) to maintain oversight of
(i) the exercise of national executive authority, including
the implementation of legislation; and
(ii) any organ of state.
Section 83(b)-The President
The President
(b) must uphold, defend and respect the Constitution as
the supreme law of the Republic;
Section 167(4) (e)-Constitutional Court
Only the Constitutional Court may
(e) decide that Parliament or the President has failed to
fulfil a constitutional obligation
Section 182 (1)-Functions of the Public Protector
The Public Protector has the power, as regulated by
national legislation
(a) to investigate any conduct in state affairs, or in the
public administration in any sphere of government, that
is alleged or suspected to be improper or to result in any
impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action
Public Protector Act 23 of 1994
Section 8 (2) (b) (iii)-Publication of Findings
The Public Protector shall, at any time, submit a report
to the National Assembly on the findings of a particular
investigation ifIt requires the urgent attention of, or the intervention by,
the National Assembly
Held
1. The Court had exclusive jurisdiction in a
matter involving the President or Parliament
but first, it must have been established that
a constitutional obligation that rested on

the President or Parliament was the one
that allegedly had not been fulfilled. Second,
that obligation must have been closely
examined to determine whether it was of
the kind envisaged by section 167(4) (e). An
alleged breach of a constitutional obligation
must have related to an obligation that was
specifically imposed on the President or
Parliament.
2. To determine whether a dispute fell within
the exclusive jurisdiction of the Court,
section 167(4) (e) had to be given a contextual
and purposive interpretation with due
regard to the special role the apex Court was
established to fulfill. As the highest court
in constitutional matters and the ultimate
guardian of the Constitution and its values,
it had to adjudicate finally in respect of issues
which would inevitably have had important
political consequences. Also to be factored
into the process was the utmost importance
of the highest court in the land being the one
to deal with disputes that had crucial and
sensitive political implications. That was
necessary to preserve the comity amongst the
judicial branch, the executive and legislative
branches of government.
3. For the EFF to have met the requirements for
the Court to exercise its exclusive jurisdiction
over the President and the National Assembly,
it would have first relied on what it considered
to be a breach of a constitutional obligation
that rested squarely on the President as an
individual and on the National Assembly as
an institution. That obligation must have had
a demonstrable and inextricable link to the
need to ensure compliance with the remedial
action taken by the Public Protector. It must
have been apparent from a reading of the
constitutional provision of the EFF relied
on, that it specifically imposed an obligation
on the President or the National Assembly,
but in a way that kept focus sharply on or
was intimately connected to the need for
compliance with the remedial action.
4. The EFF argued that the President breached
his obligations in terms of sections 83, 96,
135, 181 and 182 of the Constitution. An
obligation was expressly imposed on the
President to uphold, defend and respect the
Constitution as the law that was above all

other laws in the Republic. As the Head of
State and the Head of the national Executive,
the President was uniquely positioned,
empowered and resourced to do much more
than what other public office-bearers could
do. It was, no doubt, for that reason that section
83(b) of the Constitution singled him out to
uphold, defend and respect the Constitution.
He breached his constitutional obligation by
allegedly not complying with the remedial
action taken by the Public Protector in terms
of section 182(1)(c) thus violating the section
181(3) obligation to assist and protect the
Public Protector in order to guarantee her
dignity and effectiveness.
5. The requirement that the President failed
to fulfill a constitutional obligation that was
expressly imposed on him was best satisfied
by reliance on both sections 83(b) and 182(1)
(c) of the Constitution; very much in line
with the narrow or restrictive meaning to be
given to section 167(4) (e) and mindful of the
role that the other courts had to also play in
the development of the constitutional law.
Section 182(1) (c) did in that case, impose an
actorspecific obligation. Although section
182 left it open to the Public Protector to
investigate state functionaries in general, in
the case, the essential link was established
between section 182 and section 83 by the
remedial action actually taken in terms of
section 182(1)(c). In the exercise of that
constitutional power, the Public Protector
acted, not against the Executive or State
organs in general, but against the President
himself. Compliance was required only from
the President. He was the subject of the
investigation and was the primary beneficiary
of the non-security upgrades and thus the
only one required to meet the demands of
the constitutionally-sourced remedial action.
6. As in the case of the President, the National
Assembly also had an actorspecific
constitutional obligation imposed on it by
section 182(1)(b) and (c) read with section 8(2)
(b)(iii) of the Public Protector Act. Crucially,
the Public Protectors obligation to report
on that conduct meant to report primarily
to the National Assembly, in terms of section
182(1) (b) of the Constitution read with
section 8 of the Public Protector Act. She
reported to the National Assembly for it to do
something about that report. Together, these
39
sections brought home into the Chamber

of the National Assembly the constitutional
obligation to take appropriate remedial
action. Although remedial action was not
taken against the National Assembly, the
report in terms of section 182(1)(b) read with
section 8(2)(b)(iii) of the Act was indubitably
presented to it for its urgent attention or
intervention. That constitutionally-sourced
obligation was not shared, not even with
the National Council of Provinces. It was
exclusive to the National Assembly. When
that report was received by the National
Assembly, it effectively operationalized the
Houses obligations in terms of sections
42(3) and 55(2) of the Constitution. The
presentation of that report delivered a
constitutionally-derived obligation to the
National Assembly for action which failed
to fulfill these obligations in relation to the
remedial action. The EFF had thus met the
requirements for the Court to exercise its
exclusive jurisdiction in the application
against both the President and the National
Assembly.
7. The President thus failed to uphold,
defend and respect the Constitution as the
supreme law of the land. That failure was
manifest from the substantial disregard
for the remedial action taken against him
by the Public Protector in terms of her
constitutional powers. The second respect in
which he failed related to his shared section
181(3) obligations. He was duty-bound to,
but did not, assist and protect the Public
Protector so as to ensure her independence,
impartiality, dignity and effectiveness by
complying with her remedial action. His
conduct was illegal due to its inconsistency
with his constitutional obligations in terms
of sections 182(1) (c) and 181(3) read with
83(b).
8. The National Assembly was indeed entitled
to seek to satisfy itself about the correctness
of the Public Protectors findings and
remedial action before it could hold the
President accountable in terms of its sections
42(3) and 55(2) obligations. Those sections
imposed responsibilities so important that
the National Assembly would be failing in its
duty if it were to blindly or unquestioningly
implement every important report that came
its way from any institution. Both sections
40
42(3) and 55(2) did not define the strictures
within which the National Assembly was
to operate in its endeavour to fulfill its
obligations. It had been given the leeway
to determine how best to carry out its
constitutional mandate. Section 182(1) (b)
read with section 8(2)(b)(iii) did not state how
exactly the National Assembly was to attend
urgently to or intervene in relation to the
Public Protectors report and was thus left to
its discretion in a way that did not undermine
or trump the mandate of the Public Protector.
9. The high importance, sensitivity and
potentially far-reaching implications of
the report, considering that the Head of
State and the Head of the Executive was
himself implicated, pointed but only to one
conclusion. That report was a high priority
matter that required the urgent attention of
or an intervention by the National Assembly.
It ought therefore to have triggered into
operation the National Assemblys obligation
to scrutinize and oversee executive action
and to hold the President accountable, as a
member of the Executive. Also implicated was
its obligation to give urgent attention to the
report, its findings and remedial action taken
and appropriate intervention in that matter.
On a proper construction of its constitutional
obligations, the National Assembly was dutybound to hold the President accountable by
facilitating and ensuring compliance with
the decision of the Public Protector. The
exception would be where the findings and
remedial action were challenged and set aside
by a court, which was of course not done in
the case.
10. There was everything wrong with the
National Assembly stepping into the shoes of
the Public Protector, by passing a resolution
that purported effectively to nullify the
findings made and remedial action taken
by the Public Protector and replacing them
with its own findings and remedial action. By
passing that resolution the National Assembly
effectively flouted its obligations. Neither the
President nor the National Assembly was
entitled to respond to the binding remedial
action taken by the Public Protector as if
it was of no force or effect or had been set
aside through a proper judicial process. The
ineluctable conclusion was therefore, that the
National Assemblys resolution based on the
Ministers findings exonerating the President

from liability was inconsistent with the
Constitution and unlawful. Similarly, the
failure by the National Assembly to hold
the President accountable by ensuring
that he complied with the remedial action
taken against him, was inconsistent with
its obligations to scrutinise and oversee
executive action and to maintain oversight
of the exercise of executive powers by the
President and in particular, to give urgent
attention to or intervene by facilitating his
compliance with the remedial action.
i. The Democratic Alliances application for
direct access was granted.
ii. The remedial action taken by the
Public Protector against President Jacob
Gedleyihlekisa Zuma in terms of section
182(1) (c) of the Constitution was binding.
iii. The failure by the President to comply with
the remedial action taken against him,
by the Public Protector in her report of 19
March 2014, was inconsistent with section
83(b) of the Constitution read with sections
181(3) and 182(1)(c) of the Constitution and
therefore invalid.
iv. The National Treasury was to determine
the reasonable costs of those measures
implemented by the Department of Public
Works at the Presidents Nkandla homestead
that did not relate to security, namely the
visitors centre, the amphitheatre, the cattle
kraal, the chicken run and the swimming
pool only.
v. The National Treasury was to determine a
reasonable percentage of the costs of those
measures which ought to be paid personally
by the President.
vi. The National Treasury was to report back to
the Court on the outcome of its determination
within 60 days of the date of the order.
vii. The President was to personally pay the
amount determined by the National Treasury
in terms of paragraphs 5 and 6 above within
45 days of the Courts signification of its
approval of the report.
viii. The President was to reprimand the Ministers
involved pursuant to paragraph 11.1.3 of the
Public Protectors remedial action.
ix. The resolution passed by the National
Assembly absolving the President from
compliance with the remedial action taken
by the Public Protector in terms of section

182(1)(c) of the Constitution was inconsistent
with sections 42(3), 55(2)(a) and (b) and
181(3) of the Constitution, was invalid and
was set aside.
x. The President, the Minister of Police and the
National Assembly were to pay costs of the
applications including the costs of the two
counsel.
Relevance to Kenyan Situation
Section 8 of the Commission on Administrative
Action Act, Chapter 102A Laws of Kenya, provides
for functions of the Commission which include
investigation of conduct of state affairs, complaints,
inquire into allegations made and report to the
National Assembly bi-annually on the complaints
investigated and the remedial action taken thereon.
Section 29 provides for jurisdiction in investigations
which includes public offices, state corporation or
any other body of the State. It goes on further to
state that it shall resolve any matter brought before
it by conciliation, mediation or negotiation, unless
impossible where it will make recommendations as
it deems fit. The Office of the Ombudsman borrows
its mandate here and thus carries out the above.
Section 5 of the Fair Administrative Action Act
No. 4 of 2015 provides for the procedure should
administrative action be affecting the public. The
administrator therein should issue a public notice
of the proposed administrative action inviting
public views in that regard and consider all views
submitted in relation to the matter before taking the
administrative action. The Office of the Ombudsman
in Kenya thus can be equated with the office of the
Public Protector in South Africa.
41
improperly use his office to acquire land or other

property for himself or another person, whether or
not the land or property is paid for. Sections 35 and
36 of the same Act provide for investigations by the
appropriate commission into the improper conduct
of the public officer and the disciplinary action to
be taken. However section 39 of the Public Officers
Ethics Act exempts officers which the Constitution
provides the procedure for removal for misbehavior
from investigations.
Article 143 exempts the President from any legal
proceedings during his tenure in office unless he
is prosecuted under a treaty Kenya is party to, that
prohibits such immunity.
As seen from the above law provisions, a President
of Kenya can only be impeached and cease to
hold office should he be found to have breached a
Constitutional provision or for gross misbehavior.
Disciplinary actions such as paying back of misused
funds and reprimanding of Cabinet Secretaries are
not provided for. Instituting of legal proceedings
from the same is also a dead end as the President is
immune from both civil and criminal proceedings
in the courts. Kenya can borrow a leaf from South
Africa and maybe amend the Constitution to
allow for other disciplinary mechanisms arising
from gross violation of the Constitution and gross
misbehavior by a sitting President to be investigated
by the Ombudsman.
The Constitution of Kenya 2010 in Article 131(2) (a)

provides that the President shall respect, uphold and
safeguard the Constitution. Article 95 5(a) provides
that the National Assembly shall review the conduct
in the office of the President and initiate the process
of his removal while subclause (b)provides that it
shall also exercise oversight of state organs. Article
145 provides for the impeachment of the President
on the grounds of gross violation of a provision
of the Constitution or gross misconduct. It goes
further to give the procedure for initiating the said
impeachment leading to the President ceasing to
hold office.
The Public Officers Ethics Act, Chapter 183 Laws of
Kenya, in section 11(1) and 2 (a) provides that a
public officer shall not use his office to improperly
enrich himself or others and more specifically
42
Difference in Judicial Reasoning

The Applicability of the Government Proceedings Act to County Governments
By Linda Awuor & Kevin Kakai
he Constitution of Kenya, 2010 created

devolved units known as county governments.
With the creation of the county governments,
courts have been faced with the issue of whether
or not to apply the Government Proceedings
Act to county governments. This is because the
word government has not been defined in the
Constitution of Kenya, 2010 nor was it defined in
the Government Proceedings Act. However, the
Interpretation and General Provisions Act, Cap 2
Laws of Kenya defines government as meaning the
Government of Kenya. That definition does not aid
much with regard to applicability of the Government
Proceedings Act to county governments.
This issue has found its way to the courts and
various courts have ventilated on this issue. In
Republic v The Attorney General & another ex-parte
Stephen Wanyee Roki Misc Civil Application No. 93
of 2015, the Court held that section 7 of the Sixth
Schedule to the Constitution of Kenya (Transitional
and Consequential Provisions) provided that all
law in force immediately before the effective date
continued to be in force and should be construed
with the alterations, adaptations, qualifications
and exceptions that were necessary to bring it
into conformity with the Constitution and that it
followed that the provisions of the Government
Proceedings Act, a legal instrument enacted
before the effective date should be construed with
the alterations, adaptations, qualifications and
exceptions necessary to bring it into conformity
with the Constitution. The Court went on to state
that one such construction would be the reality that
Government was now at two levels and that Article
189(1)(a) of the Constitution requires that the
constitutional status and institutions of government
at both the National and County levels be respected.
It was the Courts view that such respect could not
be achieved unless both levels of Government were
treated equally and one such area would have been
with respect to execution proceedings.
The Court further held that it was therefore clear that
the importance of devolution of government could
not be underestimated and that It was therefore
not by coincidence that sharing and devolution of
power was recognised as one of the national values
and principles of governance in Article 10 of the
Constitution. The Court should therefore protect

devolution and promote its principles. It should
stop actions which were likely to bring onslaught to
a county government and grind its operations to a
halt and paralyse it from realising and fulfilling its
constitutional mandate.
The Court finally held that the extent of the immunity
granted under section 21(4) of the Government
Proceedings Act should necessarily extend to the
county governments.
The High Court in its ruling at Embu in Josphat
Gathee Kibuchi v Kirinyaga County Council Civil
Case No. 184 of 2009 took into consideration the
definition of a government as provided for in the
Constitution of Kenya, Article 176 which states that:
1. There shall be a county government for each
county, consisting of a county assembly and a
county executive.
2. Every county government shall decentralize its
functions and the provisions of its services to the
extent that it is efficient and practicable to do so.
The Court also considered the Blacks Law
Dictionary, 8th Edition definition of the term
government as being:
1. The structure of principles and rules determining
how a State or organization is regulated.
2. The sovereign power in a Nation or State.
3. An organization through which a body of people
exercises political authority; the machinery by
which sovereign power is expressed.
The Court further considered the definition of a
state officer under article 260 of the Constitution
of Kenya 2010. The definition includes member of
a county assembly, governor or deputy governor of a
county, or other member of the executive committee of a
county government.
The Court then went on to hold that in view of the
foregoing definitions, a county government is part
of the state or government and that the Constitution
of Kenya established two levels of government being
the national and the county government. The Court
further held that the provisions of Section 21 of
the Government Proceedings Act were therefore
applicable to proceedings relating to a county
government.

In Kilimanjaro Safari Club Limited v GovernorKajiado County(In Place Of County Council Of Ol
Kejuado [2014] eKLR the Applicant in his submissions,
argued that the County Government was not a
Government as per the Government proceedings
Act. This was based on Section 5 (i) of the Office of
the Attorney General Act (No. 49 0f 2012) which
provides, inter alia, the functions of the Attorney
General as follows:-representing the National
Government in all civil and constitutional matters
in accordance with the Government proceedings
Act (Cap 40). The applicant argued that the said
Act was specific that the Attorney General shall
represent the National Government in accordance
with the Government Proceedings Act. According
to the applicant, the County Government Act was
silent about the Attorney General representing
the County Government in accordance with the
Government Proceedings Act.
The court held that it was common ground that
the Government Proceedings Act came into force
before devolution and that there was no express
definition of the term Government in the said Act.
In that case the term Government as used in the said
act was inclusive and there was no reason why the
County Government should be excluded from the
operations of the said Act.
The Court, in defining what Government is referred
to The Interpretation and General provisions Act,
under section 3(1) which states that the Government
means the Government of Kenya and the Blacks
law Dictionary, 8th Edition which defines the term
Government as:
1) The structure of principles and rules
determining how a State or Organization is
regulated;
2) The sovereign power in a Nation or State;
3) An Organization through which a body of
people exercises
political authority; the
machinery by which sovereign power is
expressed
According to the Court, the second and third
definition above when read together with Article
1 of the Constitution of Kenya clearly brings out
the picture that a County Government was equally
Government. Article 1 of the Constitution provides
that:(3) Sovereign power under this Constitution is
delegated to the following State organs, which shall
perform their functions in accordance with this
Constitution
(a) Parliament and the legislative assemblies in

county governments;
43
the
(b) the national executive and the executive structures

in the county governments; and
(c) the Judiciary and independent tribunals.
(4) The sovereign power of the people is exercised
at
(a) the national level; and
(b) the county level.
The Court noted that it was clear that the
Constitution created two levels of Government
which were distinct and inter-dependent. It is not
in dispute that the representation of the County
Government by the Attorney General as provided
for in section 43 of the County Government Act
does not mention the Government proceedings
Act. However, to interpret the same to mean that
the Government Proceedings Act does not apply to
the County Government was, in the courts view a
narrow approach. The court went on further to state
that the said section only provides that the Attorney
General may represent the County Government
in Court or in any other proceedings other than
criminal proceedings. The section did not in any
way provide for the substantive procedures of
proceedings against Government. The draftsman
in coming up with the Government Proceedings
Act had in mind the interests of the Government
as a whole. The County Government was not an
exception.
The Environment and Land Court at Eldoret in
Petition No. 18 of 2015 between Kenneth Kiplagat
Kimaiyo & 3 others and 2 others was of a contrary
opinion. The Court in this case held that the
Government Proceedings Act forbade courts from
giving injunctive orders against the Government.
The Court further held that the said Act was in place
even before the devolved system of Government
came into force and that the County Governments
were body corporate entities with power to sue and
be sued. The Court further held that there was no
provision in the County Governments Act of 2012
which protected them from injunctive orders. The
Court took the view that it was not the intention of
the legislature that the county governments were to
enjoy the same status as the national government. If
this was to be the intention, then the Government
Proceedings Act would have been amended to
include County Governments. The Court finally held
that the county governments could not come under
44
the protection of the Government Proceedings Act.
Simiraly the Environment and Land Court at Kitale
in James Muigai Thungu v County Government of
Trans-Nzoia & 3 others, Land Case No. 31 of 2015
took a similar view to the above case in determining
whether or not to apply the Government Proceedings
Act to county governments. The Court held that the
aforementioned Act was in place even before the
devolved system of Government came into force and
that the county governments were body corporates
with power to sue and be sued. The Court further
held that there was no provision in the County
Governments Act, 2012 which protected them from
injunction orders. The Court was of the view that
it was not the intention of the legislature that the
Dream Deferred
What happens to a dream deferred?
Does it dry up
Like a raisin in the sun?
Or fester like a sore-And then run?
Does it stink like rotten meat?
Or crust and sugar over-like a syrupy sweet?
Maybe it just sags
like a heavy load.
Or does it explode?
by Langston Hughes
county governments were to enjoy the same status

as the national government. The Court further held
that if this was the intention, then the Government
Proceedings Act would have been amended to
expressly include County Governments. The Court
then went on to state that it did not find that the
County Government could come under the umbrella
of the Government Proceedings Act, when it comes
to injunctions against them as well as their officers.
From the above decisions it is clear that the
applicability of the Government Proceedings Act to
county governments has not yet been settled. There
is need for the legislature to put the matter to rest by
amending the said Act to expressly provide for the
county governments or exclude them.
P RO D U CT C ATALO G U E
45
PRODUCT
STATUS
COSTS
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Available
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46
HR Department
Kenya Law Finishes 2nd Runners Up in the ICJs

Uwazi Tournament Held on 14th May, 2016
By Erick Obiero Odiwor, Hr and Adm Department
enya Law emerged 2nd

runners up during this
years edition of the
annual Uwazi Cup tournament. Uwazi Cup is
an annual football tournament organized by the
International Commission of Jurists (ICJ). The
event brought together teams drawn from various
stakeholders in the legal and administration of justice
sectors such as the Judiciary, the Ombudsmans
office, a number of law firms, the Kenya School of
Law, Parliament (the Senate and a team representing
Kibra parliamentary office, human rights NGOs,
Standard media group, Safaricom Ltd among other
stakeholders in the legal sector.
This year, the Uwazi Cup Football Tournaments was
held on Saturday,14th May, 2016at the Safaricom
Stadium, Kasarani under the theme of Transparency
and Accountability: Fighting Corruption through Access
to Information.
By taking part in such a noble activity, Kenya Law
had the opportunity to interact with the relevant
stakeholders as well as grow our brand visibility
and this was evident from the enthusiastic cheering
squad comprising of Kenya laws brand ambassadors
who are also staff members.
Uwazi Cup tournament also provided a perfect

opportunity for staff to have a family fun day as most
of the staff members were accompanied by their
children who really had fun apart from cheering the
team.
The event also provided an avenue for staff to
rejuvenate after the normal day to day office work
since January this year, thus enriching their energy
and readiness to work towards ensuring the
organization achieves its set mandate of making
legal information into public knowledge, accessible
with an aim of having an enlightened society. Kenya
Laws vision coincided with the theme of the day, that
is : Transparency and Accountability: Fighting
Corruption through Access to Information.
Kenya Laws team which was pooled together with
the Senate, Centre for Rights, Education and
Awareness (Creaw) and Independent Medico-Legal
Unit (IMLU) teams, started on a high note, cheered
on by enthusiastic supporters which included none
other than the CEO himself, Mr. Longet Terer.
The team on its part did not disappoint, it did well
and went ahead and topped the group stage. After
emerging top at this stage, the team qualified for the
knock out stages where it humbled Safaricom Ltd
47
football team, to set a date with Ghetto radio football

team at the semifinals stage. The Ghetto radio team
had to resort to defensive display (packing the bus),
forcing penalties shootout where Kenya Law team
lost 3 Nil but proceeded to third and fourth play offs.
The team put on a brave face and ensured it defeated
Kenya School of Law team one nil to emerge this
years second runners up.
Bravo Kenya Law football team and to the cheering
squad team!!
Kenya Laws Children Family Group Photo

Kenya Laws Staff Cheering Squad and Some Reserve Team Members
Kenya Law Team and Part of Cheering Squad accompanied with their children celebrates after being awarded the second runners up trophy
HR Department
48
Marketing & Communication Department
Kenya Law Donates Furniture to Mbagathi District

Hospital
By Joseph Asige- Sales Marketing and Customer Care Department.
enya Law, led by the

CEO/Editor Mr. Longet
Terer donated used
furniture to Mbagathi District Hospital on Friday,
April 8th 2016 as part of its Corporate Social
Responsibility programme.
At Kenya Law, we understand that we have a
responsibility to better our society and we have made
Corporate Social Responsibility (CSR) an integral
part of our organizational culture to underline our
deep commitment to making a difference in the
community.
Kenya law staff were received by an elated Dr.

Andrew Sule, the hospitals medical Superintendent
who, together with his team gave a tour of the
various sections of the hospital.
In his remarks, Dr. Sule thanked Kenya Law for the
donation which included used ICT equipment, work
stations, chairs and office cabinets. As Mbagathi
hospital community, we are highly indebted to Kenya
Law, most organizations prefer conducting their CSR
with the private sector but Kenya law saw it important to
do it at Mbagathi hospital which shows your commitment
to humanity and we greatly appreciate that He said.
1.
The furniture and ICT equipment will play a significant role in equipping the various offices at the hospital and in turn enhance quality of service.
2.
Kenya Law CEO Mr. Longet Terer (left)shakes hands with Dr. A. J. Sule (right) the Medical Superintendent at Mbagathi County Hospital during a Kenya
Law initiated CSR activity held on April 8, 2016 at the Mbagathi County Hospital. Looking on are Kenya Law members of staff.
3.
Mbagathi Hospital Superintendent Dr. Andrew Sule welcomes Kenya Law CEO Mr. Longet Terer to his office at Mbagathi District Hospital during a Kenya
Law initiated CSR activity held on April 8, 2016.
4.
Kenya Law staff pose for a photo after touring Mbagathi District Hospitals maternity wing during a CSR activity on 8th April 2016 where Kenya Law donated
furniture to the facility.
49
LEGISLATIVE UPDATE: Synopsis of Bills and

Subsidiary Legislation
By Yvonne Kirina (Laws of Kenya Department)
The Constitution of Kenya (Amendment) Bill,

2016 (Kenya Gazette Supplement No.3 (Senate Bills No.
1)
The principal object of this Bill is to amend Section,
15 of the Sixth Schedule to the Constitution so as
to allow for the extension of the period for transfer
of functions from the National Government to the
County Governments by a maximum of three years
after the expiry of the three years period currently
specified in Section 15 of the Sixth Schedule. The
amendment seeks to insert a new subsection which
reads (1A) Despite subsection (1), the Senate may,
by resolution, extend the period specified under
subsection (1) for a further period of not more than
three years.
Kenya
National
Examination
Council
(Amendment) Bill, 2016 Kenya Gazette Supplement
No. 2 (National Assembly Bills No.1)
The principal object of this Bill is to anchor the
existence and practice of structured ranking of
schools and candidates in statute law. The Bill seeks
to address the challenges facing ranking of schools
and candidates like the current abolishment of the
ranking system in national examinations without
proper consultations. The Bill therefore, empowers
the Kenya National Examination Council to rank
schools and candidates based on the national
examinations conducted and administered by the
Council.
Political Parties (Amendment) Bill, 2016 Kenya
Gazette Supplement No. 10 (National Assembly Bills No.
2)
The principal object of this Bill is to amend the
Political Parties Act No. 11 of 2011 in order to
reorganize the manner in which political parties
are managed and remove the existing ambiguities
in the Act. The Bill seeks to among other things
include a requirement that political parties shall
promote the values of inclusiveness, democracy and
participation of the people. The Bill further seeks to
ensure that applicants for registration of a political
party uphold the constitutional threshold of the
two-thirds gender rule.
Anti-Doping Bill 2016 Kenya Gazette Supplement No.
27A (National Assembly Bills No. 4A)
The Bill seeks to provide for

the implementation of the
United Nations Educational,
Scientific and Cultural Organization Convention
Against Doping in Sport; the regulation of sporting
activities free from the use of prohibited substances
and methods in order to protect the health of
athletes; the establishment and management of
the Anti-Doping Agency and to provide for the
Agencys powers, functions and management. The
principal object of this Bill is to give effect to the
World Anti-doping Code and the United Nations
Educational Scientific and Cultural Organization
Convention Against Anti-doping in order to protect
the fundamental right of athletes to participate in
sport free of prohibited substances and methods.
Vetting of Judges and Magistrates (Amendment)
Bill, 2016 Kenya Gazette Supplement No. 33 (National
Assembly Bills No. 5)
Vetting of Judges and Magistrates Act, No. 2 of
2011. The Bill proposes that section 23(3) of the
Act be amended in order to increase the remaining
time of the Board from three months to six months
to enable the Board complete pending reviews and
other unfinished vetting activities.
Constitution of Kenya (Amendment) Bill, 2016
Kenya Gazette Supplement No. 35 (National Assembly
Bills No. 6)
The Bill seeks to amend Article 143 of the
Constitution in order to extend the immunities of
the President to the Deputy President. Further, the
Bill seeks to amend Article 245 of the Constitution
in order to ensure Constitutional uniformity
and harmony by providing that the approval of
the appointment of the Inspector General of the
National Police Service shall be undertaken by the
National Assembly which is the constitutional body
that undertakes approval of all other appointments
by the President.
Value Added Tax (Amendment) Bill, 2016 Kenya
Gazette Supplement No. 40 (National Assembly Bills No.
7)
Value Added Tax Act, 2013 (No. 35 of 2013) to
exempt sugarcane farmers from paying value added
Laws of Kenya
50
tax (VAT) on transportation of sugarcane from the

farms to the milling factories.
ACTS OF PARLIAMENT
Kenyatta Mausoleum Bill, 2016 Kenya Gazette

Supplement No. 46 (National Assembly Bills No. 8)
This is an Act of Parliament to establish Small

Claims Court and to provide for the Jurisdiction
and procedures of the court. It commenced on 21st
April, 2016
This Bill seeks to provide for the access, control,

management and development of the Kenyatta
Mausoleum. The objective of this Bill is therefore
to provide a legal framework through which the
Kenyatta Mausoleum can be made accessible to
the public upon the payment of a prescribed fee.
Further, the Mausoleum will serve as a repository
of the artefacts of the late President Jomo Kenyatta.
The Hydrologists Bill, 2016. Kenya Gazette
Supplement No. 48 (National Assembly Bills No. 10)
The principal object of this Bill is to provide for the
registration of persons practising as hydrologists,
assistant hydrologists, consulting hydrologists or
otherwise describing themselves as hydrologists.
Clause 3 seeks to establish of Board to
Civil Aviation (Amendment) Bill, 2016 (National
Civil Aviation Act, 2013 to address the findings of
the International Civil Aviation Organization audit
(ICAO) and the Federal Aviation Administration
(FAA) technical review for International Audit
Safety Assessment Category I Status (IASA CAT
1) as well as incorporating Articles of the Chicago
Convention that had not been captured in the Act.
Witness Protection Bill, 2016 (National Assembly
Bills No. 12)
Witness Protection Act, 2006, for purposes of aligning
the provisions of the Act with the Constitution and
further to make provisions for reciprocal protection
arrangements with foreign countries to ensure its
effective operationalization.
Penal Code (Amendment) Bill, 2016 (National
The principal object of this Bill is to amend the Penal
Code to provide a legal framework to address the
escalating problem of livestock theft in the country
by enhancing penalties for offences relating to cattle
rustling. Enactment of the Bill shall reduce the
current disruption of the socioeconomic activities
and livelihood of pastoralist communities living in
counties where the vice is rampant.
Laws of Kenya
Small Claims Court Act, 2016 No. 2 of 2016
Anti-Doping Act, 2016 No. 6 of 2016

This is an Act of Parliament to provide for the
implementation of the United Nations Educational,
Scientific and Cultural Organization Convention
Against Doping in Sport; the regulation of sporting
activities free from the use of prohibited substances
and methods in order to protect the health of
athletes; the establishment and management of the
Anti-Doping Agency and to provide for the Agencys
powers, functions and management. It commenced
on 26th April, 2016
Statute Law (Miscellaneous Amendments) Act,
2016 No. 7 of 2016
This is an Act of Parliament that provides minor
amendments to various statutes such as the Land
Adjudication Act, Urban Areas and Cities Act, County
Governments Act, Agriculture, Fisheries and Food
Authority Act, Crops Act and the Kenya Agricultural
and Livestock Research Act. It commenced on 10th
May, 2016.
Division of Revenue Act, 2016 No. 9 of 2016
The object and purpose of this Act is to provide
for
the equitable division of revenue raised
nationally between the national and county levels
of government for the financial year 2016/17 in
accordance with Article 203(2) of the Constitution
and to provide conditional allocations to county
governments in accordance with Articles 202(2) and
187(2) of the Constitution. It commenced 23rd May,
2016
Climate Change Act, 2016 No. 11 of 2016
This Act shall be applied for the development,
management, implementation and regulation of
mechanisms to enhance climate change resilience
and low carbon development for the sustainable
development of Kenya. It commenced on 27th May,
2016.
Mining Act, 2016 No. 12 of 2016
This Act gives effect to Articles 60, 62(1)(f), 66
(2), 69 and 71 of the Constitution in so far as they
apply to minerals; provide for prospecting, mining,
processing, refining, treatment, transport and any
Laws of Kenya
dealings in minerals and for related purposes. It
commenced on 27th May, 2016.
Private Security Regulation Act, 2016 No. 13 of
2016
The Object of the Act is to provide for a framework
of regulation of the private security services industry
in accordance with the values and principles set out
51
in the Constitution.It also provides for a framework

for the regulation of foreign ownership and control
of a business operating as a security service provider;
regulate private security services registered in Kenya
rendered outside the Republic and provide for a
framework for cooperation between the private
security services industry and the state agencies that
deal with security. It commenced on 3rd June, 2016.
SUBSIDIARY LEGISLATION.
LEGISLATIVE
SUPPLEMENT
NUMBER
CITATION
PREFACE
50
Traffic (Registration of Plates) Rules

L.N. 62/2016.
These Rules apply to registration plates carried pursuant

to section 12 of the Traffic Act and to plates carried for
use under a dealers general licence.
In addition, these rules provide for the description,
restriction, general, motor cycle, trailer, tractor, heavy
machinery,three wheeler motor cycle, State Coperation,
garage, Government of Kenya, Diplomatic , United
Nation and International organisation registration
plates.
60
Kenya Citizen and Foreign Nationals

Management Service (Charges for
use of Information from the Register)
Regulations, 2016 L.N. 69/2016.
These set of regulations apply to persons who wish to

access information from the Register for the purpose of
verification of details concerning an individual or for any
other purpose and shall apply to the Cabinet Secretary,
in writing. A person granted access to the Register shall
pay a fee of five shillings per record searched, to the Cabinet
Secretary.
60
Public Service Commission (County The purpose of these Regulations is to regulate the
Government Public Services Appeals hearing of appeals by the Commission that have been
Procedures) Regulations, 2016
filed by public officers or any other person against the
L.N. 70/2016.
decisions of county governments public service.
65
Capital Markets (Nairobi Securities

Exchange Limited Shareholding)
Regulations, 2016 L.N. 74/2016.
These Regulations, among other things, offer the

following:
1) An individual or private company shall not, at any
time, directly or indirectly, either individually or
together with persons acting in concert hold more than
five percent of the equity share capital of the Exchange.
2 )A public company shall not, at any time, directly or
indirectly,
either individually or with persons acting in concert,
hold more than ten
percent of the equity share capital of the Exchange.
3)The trading participants shall not, at any time, directly
or indirectly, cumulatively hold more than forty percent
of the total equity shareholding of the Exchange.
52
Kenya Gazette Presidential Appointments to State

Corporations between April 2016 - June 2016
By Collins Limo (Laws of Kenya Department)
1. TASK FORCE ON THE DEVELOPMENT OF THE MIRAA INDUSTRY

Geoffrey Nchooro Mmwenda
Chairperson
Richard Leresian Lesiyampe
Alternate Chairperson
Dave Ntawa Muthuri
Vice-Chairperson
Mweria Joseph Miriti
Member
Kinyua Geoffrey John
Member
Kilemi Lucy Nkirote
Member
Rimbere Peter Kinyua
Member
Karumpu R. Rodgers
Member
Henry Ntongai Ituuru
Member
Hon. Joseph Mturia
Member
Isabella Nkonge
Member
Ephantus I. Njeru
Member
George Karicha Thuranira
Member
Jasper Mbiuki -
Joint Secretaries
Philip Nyingi -
Joint Secretaries
2. NATIONAL IRRIGATION BOARD (NIB)
Dr. Malachy Ekal Imana
Non-Executive Chairperson
Hussein Faya -
Member
Prof. Eng. Bernard Kimani Njoroge -
Member
Caroline Gatwiri Mugwongo
Member
Beatrice Mbingi
Member
Lalakipini Kambaki
Member
Edwin Irungu -
Member
3. HIGHER EDUCATION LOANS BOARD
David Ndegwa Wachira
Laws of Kenya
Chairman
Laws of Kenya
53
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Feedback For Caseback Service

By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department
Lillian Arika
SM Milimani
Commercial
Courts
Dear CaseBack Team,

Most gratefully acknowledged.
It is indeed a delight to receive such a great decision that upheld my Judgment.
Keep up the good work. The feedback helps Judicial officers to improve
jurisprudence.
Thank you Team KLR,

I keep learning a lot from these feedback .
Its immense feedback and moving forward an added way to enrich my work
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Kind regards,
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Judge -Milimani
Law Courts
Thank you for the case back report. I really appreciate.
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Principal
Magistrate - Eldoret
Cases
Cases
55
Supreme Court Cases

Supreme Courts jurisdiction to vacate interlocutory orders under rule 5 (2 ) (b) of the
Court of Appeal Rules based on grounds of pre-determining effects of a pending petition
before the trial court
Deynes Muriithi & 4 others v Law Society of Kenya & another
Civil Application No. 12 of 2015
Supreme Court of the Republic of Kenya
W.M. Mutunga CJ; M.K. Ibrahim, J.B. Ojwang, S.C. Wanjala &N.S. Njoki, SCJJ
March 16, 2016
Reported by Kipkemoi Sang
b. hear
appeals
arising
from
interlocutory orders, under rule 5 (2)
(b)
Brief facts
The Applicant sought orders to set aside the
conservatory orders of the Court of Appeal. The
said court had ordered that monies due from the
respondents towards the intended construction of
the Law Society of Kenya International Arbitration
Centre be deposited in an interest- earning account
in the joint names of advocates for all the parties,
to be opened in any sound financial institution to
be mutually agreed upon by learned counsel for the
parties, within thirty days of the date of the Ruling.
In contention was the jurisdiction of the Supreme
Court to determine matters from an application
under rule 5(2) (b) of the Court of Appeal Rules and
to hear appeals arising from interlocutory orders
Issues
i.
Whether the
Supreme Court had the
jurisdiction to vacate interlocutory orders
under rule 5 (2 ) (b) of the Court of Appeal
Rules based on grounds of pre-determining
effects of a pending petition before the trial
court
ii.
Whether the order of the Court of Appeal

requiring the Applicants to pay up the sums
which were in contention, and formed the
subject of the Petition before the High Court
for violation of fundamental rights and
freedoms of the Applicant had the effect of
predetermining the said petition at the High
Court
iii.
Whether the Supreme Court had jurisdiction

by virtue of article 163 (4)(a) of the
Constitution to:
a. determine matters arising from an
application under rule 5 (2) (b) of the
Court of Appeal Rules
iv.
What was the nature of applications under

rule 5(2)(b) of the Court of Appeal Rules
Jurisdiction- jurisdiction-jurisdiction of the Supreme

Court to determine appeals and hear interlocutory orderswhether the Supreme Court had to determine matters
arising from an application of the Court of Appeal
Rules and appeals arising from interlocutory ordersConstitution of Kenya 2010, article 163(4)(a), Court of
Appeal Rules, 2012, rule 5 (2)(b)
Civil Practice and Procedure-orders of the Court of
Appeal- nature of the Court of Appeal applications- What
are the nature of applications under rule 5(2)(b) of the
Court of Appeal Rules-effects of the orders of the Court
of Appeal- whether the order of the Court of Appeal
requiring the Applicants to pay up the sums which were in
contention, and formed the subject of the Petition before
the High Court for violation of fundamental rights and
freedoms of the Applicant had the effect of predetermining
the said petition at the High Court
Held
1. Rule 5(2)(b) provided that the Court could in
any civil proceedings where a notice of appeal
had been lodged in accordance with rule 75,
order a stay of execution, An injunction or a
stay of any further proceedings on such terms
as the Court could think just. The Court of
Appeal Rules 2012, were derived from article
164 (3) of the Constitution. It illuminated
the Court of Appeals inherent discretionary
jurisdiction to preserve the substratum of an
appeal, or an intended appeal.
2. In the interpretation of any law touching on
the Supreme Courts appellate jurisdiction,
56
Cases
the guiding principle was to be that the
chain of Courts in the constitutional set-up,
running up to the Court of Appeal, had the
professional competence, and proper safety
designs, to resolve all matters turning on the
technical complexity of the law; and only
cardinal issues of law or of jurisprudential
moment, would deserve the further input of
the Supreme Court.
3. The Supreme Court lacked jurisdiction
to entertain an application challenging
the exercise of discretion by the Court of
Appeal under rule 5(2) (b) of the Courts
Rules, where there was neither an appeal,
nor an intended appeal pending before
the Supreme Court. In the instant case the
Court of Appeal exercised its original and
discretionary powers in issuing orders under
rule 5(2)(b) of the Court of Appeal Rules, and
was yet to determine the main appeal where
it would ordinarily hear the submissions of
the parties, and arrive at a reasoning on the
relevant issues on appeal..
4. In exercising its discretion, the Supreme
Court was obliged to ensure that fundamental
freedoms, values including human rights
were not departed from as beckoned under
article 20(3) (a) and (b) of the Constitution.
The court was to ensure that no injustice was
occasioned by its decision in question; or that
the decision in question was inconsistent
with the same Courts earlier decision. In
such instances, the Supreme Court could
take into account objective criteria as it
could determine, or formulate on the basis
of comparative jurisprudential perspectives,
being constantly guided by the object of
averting any grave injustice.
5. The Order of the Court of Appeal had a
pre-emptive effect on the Petitions pending
before the High Court, where the Applicants
hoped to be accorded a fair hearing. Such a
right was secured for all by virtue of article

50(1) of the Constitution, which required
that; every person be given a right to have
any dispute that could be resolved by the
application of law decided in a fair and public
hearing before a court or independent and
impartial body or tribunal. Furthermore, the
Order of the Appellate Court had the effect
of pre-determining the petitions at the High
Court, without the applicants having been
heard on merits, contrary to the terms of
article 50 of the Constitution
6. In considering an application brought
under rule 5(2) (b), the Court should not
make definitive or final findings of either
fact or law at that stage, as doing so could
embarrass the ultimate hearing of the main
appeal. As the Court of Appeal exercised its
discretion under rule 5(2) (b) of the Court of
Appeal Rules, 2012, it needed to be mindful
of the parameters set by article 164(3) of
the Constitution, and to ensure that the
Orders it granted did not have the effect
of predetermining the substantive cause
pending before the Court below it. The
Supreme Court had jurisdiction, not as to
the merits, but for the purpose of correcting
the injustice occasioned by a contravention
of the Constitution.
7. The impugned Order of the Court of Appeal
had the effect of disposing of the substratum
of the substantive matter before the High
Court. It also had the effect of denying the
parties a fair hearing, and that contravened
the prescriptions of the Constitution. The
Appellate Court had overstepped its mandate
and encroached on that of the High Court by
determining a matter that was not before it
but rather, before the High Court
Conservatory orders by the Court of Appeal vacated and
ruling set aside. Costs to be in cause
57
Legal considerations relating to the exercise of advisory opinion jurisdiction by the

Supreme Court
Speakers of the 47 County Assemblies v Commission on Implementation of the Constitution & 2 others
Advisory Opinion Reference No 3 of 2014
Supreme Court of Kenya
K H Rawal, DCJ & VP, M K Ibrahim, J B Ojwang, S C Wanjala & S N Ndungu, SC JJ
April 20, 2016
Reported by Beryl A Ikamari
Brief facts
On June 21, 2013, the Salaries and Remuneration
Commission (SRC) issued a circular limiting
the number of sittings of committees of County
Assemblies to eight in one week. The Speakers
opinion was that the circulars were an interference
with their independence which was contrary to
article 189(1) of the Constitution. Furthermore, the
Applicants apprehended that the Ethics and AntiCorruption Commission (the 2nd Interested Party)
was in the process of imposing regulations on the
operations of County Assemblies.
Initially, the Applicants unsuccessfully sought legal
advice from the Attorney General in relation to the
circular. Thereafter, Applicants sought an Advisory
Opinion from the Supreme Court pursuant to the
provisions of article 163(6) of the Constitution. The
issues concerning which they sought the opinion
included questions on whether a Constitutional
Commission or an Independent Office could,
through a Circular, regulate the internal affairs
of a County Assembly, such as the sittings of the
Assembly or a County Government organ. The other
issues for which an opinion was sought were on the
nature, if any, of immunity enjoyed by a member of
the County Assembly with respect to proceedings
and speech at the County Assembly and on what
would constitute valid grounds for the removal of a
Speaker of a County Assembly.
The Applicants stated that the procedure for the
removal of a County Assembly Speaker under
section 11 of the County Assembly Act, No. 17 of
2012, was in conflict with the provisions of article
47(1) & 47(2) of the Constitution. The removal of
the Isiolo County Assembly Speaker from office was
cited as a case of a groundless decision which was of
relevance to the conflict between the statute and the
Constitution.
In response, the Respondent filed a Preliminary
Objection stating that the Court lacked jurisdiction
to render an Advisory Opinion. The Respondent
said that the Supreme Courts jurisdiction was not
to be exercised because the issues raised called for

an interpretation of the law and were matters that
could be determined through litigation at the High
Court and some issues were already the subject of
such litigation or had been decided on.
Issue
i.
The circumstances under which the Supreme

Court would exercise its advisory opinion
jurisdiction.
Jurisdiction-jurisdiction of the Supreme Court-advisory

opinion jurisdiction-advisory opinion sought to challenge
the constitutionality of a statute and the actions of a
Constitutional Commission- the effect of allegations that
matters which formed the subject of the advisory opinion
were also matters which formed the subject of Court
proceedings at the High Court-Constitution of Kenya
2010, article 163(6).
Constitution of Kenya 2010, article 163(6);
(6) The Supreme Court may give an
advisory opinion at the request of the
national government, any State organ, or
any county government with respect to any
matter concerning a county government.
Held
1. A Preliminary Objection was capable of being
raised only with respect to a pure question of
law. A Preliminary Objection would not relate
to a contest on the facts which it concerns.
Questions which related to the jurisdiction
of the Court were questions which raised a
pure point of law. The instant Preliminary
Objection was about the jurisdiction of the
Supreme Court and it was on a pure point
of law. There was no contest relating to the
issuance of the circular by the Salaries and
Remuneration Commission and also to the
attempts at removing the Isiolo County
Assembly Speaker.
2. The jurisdiction of the Supreme Court to
render an advisory opinion was provided for
in article 163(6) of the Constitution. Under
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58
Cases
that provision, the Supreme Court had the
discretion to give an advisory opinion at the
request of the National Government, any
State organ, or any County Government
with respect to any matter concerning a
County Government.
3. The Supreme Court issued guidelines on the
exercise of its advisory opinion jurisdiction.
Those guidelines included the following;
a) The matter concerning which an advisory
opinion was sought had to be a matter
concerning a County Government.
Whether a matter concerned a County
Government was a question to be
determined on a case by case basis.
b) The only parties that could request for
an advisory opinion were the National
Government, a State organ, or County
Government. Other parties could be
enjoined to the proceedings with leave
of Court as an Interested Party or amicus
curiae.
c) The Supreme Court would be hesitant
to render an advisory opinion over
matters which were the subject of Court
proceedings at a lower Court. However,
despite the existence of such proceedings,
the Supreme Court would render advisory
opinion, if it was satisfied that it was in
public interest to do so.
d) Despite the existence of Court proceedings
over a matter for which an advisory
opinion was sought, the Supreme Court
would render an advisory opinion if the
Applicant demonstrated that the issue
was of great public importance and
required urgent resolution through an
advisory opinion. Additionally, such an
Applicant would have to demonstrate
that the issue in question would not
be amenable to expeditious resolution
through adversarial Court process.
4. The instant Application concerned questions

relating to the operation of County
Governments and specifically the operations
of County Assemblies. Additionally, it
was brought by the Speakers of County
Assemblies. Therefore, in accordance with
the guiding principles relating to the advisory
opinion jurisdiction of the Supreme Court,
the Application revolved around a matter
concerning a County Government.
5. The Salaries and Remuneration Commission
under article 230 of the Constitution was
mandated to set and regularly review the
remuneration and benefits of all State
Officers. The Applicants argument was
that the mandate of the Salaries and
Remuneration Commission did not allow it
to regulate the internal affairs of Counties.
Rendering an advisory opinion would mean
that the Supreme Court would either declare
the circular unconstitutional, or affirm the
actions by the SRC as valid under article
230 (4) of the Constitution. However, such a
determination would not serve the purpose
for which the advisory opinion jurisdiction
was sought. The issue being canvassed
was clearly justiciable and raised no novel
constitutional questions that would merit
the Courts intervention.
6. The Applicants also asked the Court to
develop jurisprudence by way of guidelines,
as to the appropriate procedure for the
removal of a County Speaker under the
County Government Act but such matters on
the removal of a County Assembly Speaker
had been canvassed by the High Court.
Having been canvassed by the High Court,
the question on the appropriate procedure
for impeaching a County Assembly Speaker
was not a proper subject for an advisory
opinion reference.
Preliminary Objection upheld & reference for an advisory
opinion dismissed.
59
The Court of Appeal Cases

The test for determining the existence or otherwise of
an allegation of bias so as
to make a judge recuse himself/ herself from hearing a matter
Kaplana Rawal v Judicial Service Commission & 4 others
Civil Appeal (application) No 1 of 2016
Court of Appeal at Nairobi
GBM Kariuki, A Makhandia, W Ouko, PO Kiage, K MInoti,
J Mohammed, J Otieno Odek, JJA
March 11, 2016
Reported by Phoebe Ida Ayaya
Brief facts
The Applicant filed the application, the subject of the
ruling, in which she sought the recusal of a judge.
The basis of the prayer for recusal, as deponed in
her supporting affidavit sworn was that she had
learnt from a confidential source that on the night
of 5th and 6th February 2016 the judge held a meeting
with the Attorney General,, at a Club, at which they
discussed Justice Tunoi, a Judge of the Supreme
Court of Kenya pending appeal.
The two agreed, it was claimed, that the appeal would
be dismissed ex tempore and reasons given later, so
as to pre-empt appointment, by the President of the
Republic, of a tribunal to inquire into the suitability
of the said Justice Tunoi, SCJ continuing to serve as
a judge due to intervening allegations of corruption
levelled against him.
Issues
i.
Whether an allegation of bias could be made

against a judicial officer from a confidential
source
ii.
What was the test for determining the

existence or otherwise of an allegation of
bias so as to make a judge recuse himself/
herself from hearing a matter?
Judicial Officer - judge recusal of a judge of the Court

of Appeal application for the recusal of a judge of the
Court of Appeal - principles for determining the recusal
of a judge - whether an allegation of bias could be made
against a judge from a confidential source - the test for
determining the existence or otherwise of an allegation
bias so as to make a judge recuse himself/ herself from
hearing a matter
Held
1. An application for recusal of a judge is a
necessary evil. On the one hand it called
into question the fairness of a judge who had

sworn to do justice impartially, in accordance
with the Constitution without any fear,
favour, bias, affection, ill-will, prejudice,
political, religious, or other influence. In
such applications, the impartiality of the
judge was called into question and his
independence was impugned. On the other
hand, the oath of office notwithstanding,
the judge is all too human and above all the
Constitution did guarantee all litigants the
right to a fair hearing by an independent and
impartial judge.
2. When reasonable basis for requesting a
judge to recuse him or herself existed, the
application had to be made, unpleasant
as it could be. That was the lesser of two
evils. The alternative was to risk violating
a cardinal guarantee of the Constitution,
namely the right to fair trial, upon which the
entire judicial edifice was built. Allowing a
judge who was reasonably suspected of bias
to sit in a matter would be in violation of
the constitutional guarantee of a trial by an
independent and impartial court.
3. A litigant and her or his counsel who found it
necessary to apply for the recusal of a judicial
officer had an unenviable task and the
propriety of their motives could not lightly
be questioned. Where the grounds were
reasonable it was counsels duty to advance
the grounds without fear. On the part of the
judge whose recusal was sought there was to
be a full appreciation of the admonition that
she or he was not to be unduly sensitive and
ought not to regard an application for his [or
her] recusal as a personal affront.
4. An application for recusal of a judge in which
Cases
60
Cases
actual bias was established on the part of the
judge hardly posed any difficulties: the judge
was to, without more, recuse himself. Such
was the situation where a judge was a party to
the suit or had a direct financial or proprietary
interest in the outcome of the case. In that
scenario bias was presumed to exist and the
judge was automatically disqualified. The
challenge however arose where, like in the
present case, the application was founded on
appearance of bias attributable to behaviour
or conduct of a judge.
5. The question was whether there was a real
danger that a fair trial was likely to be denied.
The test did not win universal acceptance
within the Commonwealth and the test
as to whether a fair minded and informed
observer, having considered the facts, would
conclude that there was a real possibility that
the judge was biased.
6. The objective test of reasonable apprehension
of bias is good law. The test is stated variously,
but amounted to: did the circumstances give
rise to a reasonable apprehension, in the
mind of the reasonable, fair minded and
informed member of the public that the
judge did not (would not) apply his mind to
the case impartially. Needless to say, a litigant
who sought disqualification of a judge came
to court because of his own perception that
there was appearance of bias on the part of
the judge. The court however, had to envisage
what would be the perception of a member
of the public who was not only reasonable
but also fair minded and informed about all
the circumstances of the case.
7. The apprehension of bias was to be a
reasonable one held by reasonable and rightminded persons, applying themselves to the
question and obtaining thereon the required
information. The test was what would
an informed person, viewing the matter
realistically and practically and having
thought the matter through concluded.
The test contained a two-fold objective
element: the person considering the alleged
bias must be reasonable and the apprehension
of bias itself must also be reasonable in
the circumstances of the case. Further the
reasonable person must be an informed
person, with knowledge of all the relevant
circumstances, including the traditions of
integrity and impartiality that formed a part

of the background and appraised also of the
fact that impartiality was one of the duties
the judges swore to uphold.
8. The reasonable person could also be taken
to be aware of the social reality that formed
the background to a particular case, such as
societal awareness and acknowledgement of
the prevalence of racism or gender bias in
a particular community. The jurisprudence
indicated that a real likelihood or probability
of bias was to be demonstrated and that
mere suspicion was not enough. The
existence of a reasonable apprehension of
bias depended entirely on the facts. The
threshold for such a finding was high and
the onus of demonstrating bias lay with the
person who was alleging its existence. That
was the proposed test to be adopted in this
application, as it was the accepted test.
9. It was obvious from the test above that
there was no basis for the rather elastic test
where a judge must automatically recuse
himself or herself upon the making of a
bare allegation by any of the parties. On the
contrary decisions, abound that judges could
not recuse themselves on flimsy and baseless
allegations.
10. The point urged by the interested party to the
effect that bias on the part of one out of seven
judges was of no consequence, was equally
doubtful. The Constitution guaranteed a
litigant trial by an independent and impartial
court. For present purpose, the Constitution
guaranteed the Applicant the right to be
heard by an independent and impartial court
made up of seven judges. If one were to be
partial, it mattered not that the other six were
not, the constitutional guarantee would have
been violated. The Court was constituted by
all the judges sitting, not some of them only.
11. There was no basis for the Respondents
suggestion that the Applicant had necessarily
committed the offence of perjury. Since
the Applicant averred to be relying on
information from a confidential source who
she declined to divulge, it was not possible
to find, on the basis of the material before
the Court that as regards the alleged meeting
between the judge and the Attorney General,
the Applicant had knowingly deponed to
statements of fact that she knew not to be
61
true.
12. The court was to first ascertain all the
circumstances before employing the test,
which had a bearing on the suggestion that
the judge was biased. In this case, the recusal
was premised on the allegation that the judge
held a meeting with the Attorney General at
Karen Country Club on the nights of 5th and
6th February 2016 at which they discussed
and agreed on the dismissal of Tunoi, SCJs
appeal. Although the alleged discussion did
not touch on the Appellants appeal, it was
her view that if Tunoi, SCJs was dismissed,
hers too, would suffer the same fate as both
appeals raised a common issue.
13. It could not be gainsaid that the Applicant
bore the duty of establishing the facts upon
which the inference was to be drawn that a
fair minded and informed observer would
conclude that the judge was biased. It was
not enough to just make a bare allegation.
Reasonable grounds were to be presented
from which an inference of bias was to be
drawn. In this case, the Applicant did not
pretend to have been in the alleged meeting
or at the alleged Club. She did not aver that
her source, who she declined to divulge, was
at the meeting either. So it was absolutely
unclear to the court how the source came by
the information from which the court was
asked to conclude that the judge was likely
to be biased. Where a party wished to rely on
statements of information, which they could
not prove, the least that was expected was to
disclose the source of the information so that

its credibility could be gauged and assessed.
14. The credibility of the allegations that the
Applicant relied upon was further dented by
the clear information on the Court record
regarding the date when the President of the
Court of Appeal empanelled the bench. The
bench was empanelled on February 8 2016.
Before that date, the judge had no association
with this appeal. Yet the Applicant claimed
that he was discussing and guaranteeing the
outcome of the appeal on a date when he was
not even a member of the bench to hear the
appeal.
15. The manner in which the Applicant had
chosen to handle the serious allegations
against the judge was not consistent with
the heavy duty vested in her office to
ensure or assist in ensuring an independent,
professional, ethical and corruption free
judiciary and further rendered credence to
the Respondents submission that there was
indeed no substance in the allegations.
16. No fair minded observer aware of the facts in
this application could conclude that the judge
held a meeting with the Attorney General
to plot the dismissal of Tunoi, SCJs appeal;
that he was biased; and that the Applicants
appeal could not get a fair hearing.
Application dismissed with costs to the Respondents and
the interested party.
Procedure of enforcement of foreign judgments from countries not designated under the
Foreign Judgments (Reciprocal Enforcement) Act
Jayesh Hasmukh Shah v Navin Haria & another
Civil Appeal 147 of 2009
Court of Appeal at Nairobi
EM Githinji, J Mohammed & J Otieno Odek JJA
February 26, 2016
Brief facts
The appeal related to enforceability in Kenya of
foreign judgments from non-designated countries.
The Appellant sought to enforce and execute in
Kenya a judgment from Ethiopia that was not a
designated country under the provisions of Foreign
Judgments (Reciprocal Enforcement) Act.
The Appellant correctly appreciating that Ethiopia
was not a designated country under Kenyas Foreign
Judgment (Reciprocal Enforcement), Act filed a

Plaint against the Respondents at the High Court
of Kenya in Nairobi. In the Plaint, the Appellant
claimed against the Respondents the sum of Kenya
Shillings Thirty Six Million One Hundred and
Ninety One Thousand Six Hundred and Four (Ksh.
36,191,604/=) being the equivalent of Ethiopian Birr
4,839,161/40 at the exchange rate of 1 Ethiopian
Birr = Ksh. 7.4789 prevailing on May 31, 2007.
Cases
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62
The Respondents filed a statement of defence

averring that Kenya had no reciprocal enforcement
agreement with Ethiopia and as such, the foreign
judgment from Ethiopia was not recognizable and
enforceable in Kenya; the Respondents denied
receiving any loan from the Appellant and if at
all any such loan was received, the same was time
barred as the suit should have been filed within six
years after due date of payment.
Issues
Whether Kenya had a law on
enforceability of foreign judgments from
non-designated countries
ii.
What was the procedure for enforcement
of foreign judgments from nondesignated countries?
iii.
The common law principles on
enforcement of foreign judgments
iv.
What were the requirements to be
followed in order to enforce a foreign
judgment in Kenya from a nondesignated country
Civil Practice and Procedure-foreign judgmentapplication for enforcement and recognition of a foreign
judgment- whether Kenya has a law on enforceability
of foreign judgments from non-designated countries Foreign Judgments (Reciprocal Enforcement) Act
i.
Civil Practice and Procedure-foreign judgmentapplication for enforcement and recognition of a foreign
judgment- the procedure for enforcement of foreign
judgments from non-designated countries - common
law principles on enforcement of foreign judgments - the
requirements to be followed in order to enforce a foreign
judgment in Kenya from a non-designated countryForeign Judgments (Reciprocal Enforcement) Act
Relevant Provisions of the law
The Foreign Judgments (Reciprocal Enforcement) Act
The objective of the Act is to make provision for enforcement
of judgments given in countries outside Kenya that accord
reciprocal treatment to judgments given in Kenya. Under
the Act, a judgment creditor in whose favour a foreign
judgment from a designated country has been made may
apply and register the foreign judgment at the High Court
of Kenya and such foreign judgment shall, for purposes of
execution, be of the same force and effect as a judgment of
the High Court of Kenya entered at the date of registration.
Subject to exceptions in section 18 of the Act, a judgment
of a designated court shall be recognized in any court
in Kenya as conclusive between the parties thereto, as
to the matter adjudicated upon, in all proceedings (no
matter by which of the parties in the designated court
they are instituted) on the same cause of action and
may be relied upon by way of defence or counterclaim
in those proceedings. The designated countries under the

Kenyan Foreign Judgments (Reciprocal Enforcement) Act
were: Australia, Malawi, Seychelles, Tanzania, Uganda,
Zambia, the United Kingdom and Republic of Rwanda.
Held
1. It is trite in civil litigation in Kenyas
jurisdiction that a judgment of whatever
nature, whether foreign or otherwise, is
good until otherwise declared. But it is not in
its form as a judgment per se that it is capable
of being enforced. It has to take the shape
of another procedural document before it
could reach any execution stage.
2. Pursuant to section 3 of the Judicature Act,
the jurisdiction of the High Court of Kenya
is exercised inter alia in conformity with
the Constitution, all other written laws
and subject to certain qualifications, the
substance of common law of England. In
the High Court of Kenya, a judgment of a
foreign court that is a designated court of a
reciprocating designated country is capable
of registration in Kenya and is enforceable as
a High Court of Kenya judgment.
3. There is no treaty in place between Kenya
and Ethiopia pursuant to which either
countrys courts may enforce either countrys
judgment. It is not in dispute that Ethiopias
Federal Supreme Court is not a designated
court within the meaning of Kenyas Foreign
Judgment (Reciprocal Enforcement) Act.
4. In the absence of a reciprocal enforcement
arrangement, a foreign judgment is
enforceable in Kenya as a claim in common
law. The common law principles on
enforcement of foreign judgments are: a. Where a foreign court of competent
jurisdiction had adjudicated a certain
sum to be due from one person to
another, a legal obligation arose to
pay that sum, on which an action of
debt enforced the judgment may be
maintained.
b. In deciding whether the foreign court
was one of competent jurisdiction,
courts would apply not the law of
the foreign court itself but English
rules of private international law.
The competence of the foreign court
was competence of the court in an
international sense i.e. its territorial
competence
over
the
subject
matter and over the Defendant. Its
competence or jurisdiction in any
other sense is not material.

c. In actions in personam there were five
cases in which the courts of England
would enforce a foreign judgment.
These were: (i) where the Defendant
was a subject of the foreign country in
which the judgment was obtained; (ii)
where he was resident in the foreign
country when the action began; (iii)
where the Defendant in the character
of Plaintiff had selected the forum
in which he was afterwards sued; iv.
where the Defendant had voluntarily
appeared and (v) where the Defendant
had contracted to submit himself to
the forum in which the judgment was
obtained.
d. If a foreign judgment was to be
enforced against a corporation, it
must be shown that at the relevant
time, the corporation was carrying
on business and it was doing so at
a definite and to some reasonable
extent, permanent place in the foreign
country.
e. It was only the judgment of a foreign
court recognized as competent by
English law that will give rise to
an obligation on the part of the
Defendant to obey it. The onus was
on the Plaintiff seeking to enforce
the foreign judgment to prove the
competence of such court to assume
jurisdiction; the evidentiary burden
could shift during trial.
f. The principle that a foreign court had
jurisdiction to give an in personam
judgment if the judgment debtor,
the Defendant in the foreign court,
submitted to the jurisdiction of the
foreign court is well settled.
g. A foreign judgment obtained in
circumstances that were contrary to
natural justice did not give rise to any
obligation of obedience enforceable
at common law.
h. If a foreign court pronounced a
judgment over persons within its
jurisdiction and in a matter in which
it was competent to deal, English
courts would never investigate
the propriety of the proceedings
in the foreign court, unless they
offended substantial justice. Where
no substantial justice was offended,
all that the English court were to
look into was the finality of the
63
judgment and the competence of the
foreign court to entertain the sort of
case which it did deal with and its
competence to require the Defendant
to appear before it. Mere procedural
irregularity, on the part of the foreign
court according to its own rules,
was not a ground of defence to
enforcement of the foreign judgment.
i. A defendant, shown to have been
subject to the jurisdiction of a foreign
court, could not seek to persuade
English court to examine the
correctness of the judgment whether
on the facts or as to the application
by the foreign court of its own law. A
foreign judgment is not impeachable
merely because it is manifestly wrong.
j. A judgment of a foreign court having
jurisdiction over the parties and
subject matter i.e. having jurisdiction
to summon the Defendants before it
and to decide such matters as it had
decided could be impeached on
merits but could be impeached if the
proceedings, the method by which
the court came to a final decision,
were contrary to English views of
substantial justice.
5. Adopting the foregoing common law
principles mutatis mutandis and taking into
account the provisions of section 9 of Civil
Procedure Act to enforce a foreign judgment
in Kenya from a non-designated country, the
following requirements must be fulfilled:
a. A party must file a plaint at the High
Court of Kenya providing a concise
statement of the nature of the claim,
claiming the amount of the judgment
debt, supported by a verifying
affidavit, list of witnesses and bundle
of documents intended to be relied
upon. A certified copy of the foreign
judgment should be exhibited to the
Plaint.
b. It was open to a defendant to challenge
the validity of the foreign judgment
under the grounds set out in section
9 of the Civil Procedure Act.
c. A judgment creditor was entitled to
summary judgment under Order 36
unless the defendant judgment debtor
could satisfy the Court that there was
a real prospect of establishing at trial
one of the grounds set out in section
9 of the Civil Procedure Act.
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64
Cases
d. If the foreign judgment creditor was
successful after trial, the judgment
creditor will have the benefit of a High
Court judgment and the judgment
creditor would be entitled to use the
procedures of the Kenyan courts to
enforce the foreign judgment that
would now be executed as a Kenyan
judgment.
e. The money judgment in the
foreign judgment must be final
and conclusive. It may be final and
conclusive even though it was subject
to an appeal. Under section 9 of
the Civil Procedure Act, a foreign
judgment was conclusive as to any
matter thereby directly adjudicated
upon between the same parties or
between parties under whom they or
any of them claim, litigating under
the same title except:
i. where it had not been pronounced
by a court of competent
jurisdiction;
ii. where it had not been given on the
merits of the case;
iii. where it appeared on the face of
the proceedings to be founded on
an incorrect view of international
law or a refusal to recognize the
law of Kenya in cases in which
such law was applicable;
iv. where the proceedings in which
the judgment was obtained were
opposed to natural justice;
v. where it had been obtained by
fraud; or
vi. where it sustained a claim founded
on a breach of any law in force in
Kenya.
f. Under section 4 (4) of the Limitation
of Actions Act, an action for
enforcement of a foreign judgment
must be brought in Kenya within 12
years of the date of that judgment.
g. The foreign court must have had
jurisdiction, (according to the
Kenyan rules on conflict of laws)
to determine the subject matter of
the dispute and the parties to the
foreign courts judgment and the
enforcement proceedings must be
the same or must derive their title
from the original parties.
h. The Kenya High Court would
generally consider the foreign court
to have had jurisdiction where the

person against whom the judgment
was given:
i. Was, at the time the proceedings
were
commenced,
habitually
resident or incorporated in or
having a principal place of business
in the foreign jurisdiction or
ii. Was
the
claimant
or
counterclaimant in the foreign
proceedings or
iii. Submitted to the jurisdiction of
the foreign court or
iv. Agreed, before commencement,
in respect of the subject matter of
the proceedings to submit to the
jurisdiction of the foreign court.
v. Where the above requirements
were established to the satisfaction
of the Kenyan High Court, the
High Court would not re-examine
the merits of the foreign court
judgment. The foreign judgment
would be enforced on the basis
that the defendant had a legal
obligation as a matter of common
law, recognized by the High Court,
to satisfy the money decree of the
foreign judgment.
6. A relevant comparative judicial decision was
the Uganda case where the issue that was
raised was not one of reciprocity because
quite clearly, there were no reciprocal
arrangements between Uganda and the
USA. The question raised was as to what a
judgment debtor who was stranded with a
judgment from a country with no reciprocal
arrangements with Uganda, like in this case,
was supposed to do with the judgment.
Comity in the legal sense was neither a matter
of absolute obligation, on one hand, nor a
mere courtesy and good will, on the other;
it was the recognition which one nation
allowed within its territory to the legislative,
executive or judicial acts of another nation,
having due regard both to international duty
and convenience, and to the rights of its own
citizens or of other persons who were under
the protection of its laws.
7. Where there had been opportunity for a
full and fair trial abroad before a court of
competent jurisdiction, conducting a trial
upon regular proceedings, after due citation
or voluntary appearance of the defendant,
and under a system of jurisprudence likely to
secure an impartial administration of justice
65
between the citizens of its own country

and those of other countries, and there was
nothing to show either prejudice in the court
or in the system of laws under which it was
sitting, or fraud in procuring the judgment,
or any other special reason why the country
of the nation should not allow its full effect,
the merits of the case should not, in an action
brought in the country upon the judgment
be tried afresh, as on a new trial or appeal,
upon the mere assertion of the party that the
judgment was erroneous in law or in fact
8. The judicial system under which the case
was tried was beyond reproach. A judgment
creditor armed with such a judgment
could be allowed to realize the fruits of his
judgment that could be afforded recognition
by Ugandan courts in absence of a reciprocal
arrangement. The court granted him the
prayer that the judgment was enforceable in
Uganda.
9. The fore-tasted common law principles and
section 9 of the Kenya Civil Procedure Act,
to the grounds of appeal urged in the matter
in light of the Appellants application for
summary judgment before the trial court.
Case law had crystallized the parameters
within which a relief of summary Judgment
could either be granted or withheld.
10. Where there were triable issues raised in an
application for summary judgment, there
was no room for discretion and the court
must grant leave to defend unconditionally.
An appellate court would not interfere with
a trial Judges exercise of his/her discretion
on an application for summary Judgment
unless the exercise was wrong in principle
or that the Judge acted wrongly on the facts.
It was trite that in applications for summary
judgment, the duty was cast on the Defendant
to demonstrate that he could have leave to
defend the suit. His duty was however limited
to showing prima facie the existence of bona
fide triable issue or that he had an arguable
case. On the other hand, it followed that a
Plaintiff who was able to show that a defence
raised by a Defendant was shallow or a sham
was entitled to summary judgment.
11. A defence that revealed contentious issues
could be dismissed by way of summary
judgment. While the purpose of proceedings
in an application for summary judgment
was to enable a Plaintiff to obtain a quick
judgment where there was plainly no
defence to the claim, when bona fide triable
issues existed, parties were allowed to defend

that issue without condition. Where it was
stated that on an application for summary
judgment, the plaint, defence, counterclaim
and reply to defence, if any, and affidavits in
support and in reply as well as all relevant
issues and circumstances were all proper
material for consideration. Where he stated
that if a Defendant was able to raise a prima
facie triable issue, he was entitled in law to
defend.
12. The issues raised in the statement of defence
were to be evaluated and considered in
light of the provisions of section 9 of the
Civil Procedure Act. The section was to
be applied to determine if the Ethiopian
foreign judgment was enforceable in Kenya.
The issues of competence of the Ethiopian
Court and alleged fraud in procurement of
the Ethiopian judgment had been pleaded;
the particulars of the alleged fraud had
neither been pleaded in the defence nor in
the replying affidavit. It was trite law that
particulars of fraud were pleaded. The trial
court was to determine the legal effect of
failure to pleaded particulars of fraud and
whether there was any evidence to support
an allegation of fraud was a question of fact.
13. In light of the provisions of section 9 of the
Civil Procedure Act, the decision that the
issues raised in the defence could not be
determined by way of summary judgment
where the foreign judgment was from a nondesignated country, the Ruling by the trial
court dismissing the Appellants application
for summary judgment was upheld. The suit
between the parties could proceed to full trial
and that the common law principles outlined
above on enforcement of foreign judgment
as read with section 9 of the Civil Procedure
Act could be applied in arriving at the final
determination of the issues in the suit.
14. The High Court of Kenya pursuant to the
provisions of section 3 of the Judicature
Act and its original and unlimited civil
jurisdiction provided in article 165 (3) of the
Constitution had jurisdiction to hear and
determine any issue relating to enforceability
of foreign judgments from non-designated
countries.
Appeal dismissed with no order as to costs.
Cases
66
Cases
High Court Cases

Court awards 5Million Shillings for Defamation through Facebook Platform on the basis
that it enjoys international readership
Arthur Papa Odera v Peter Ekisa
Civil Suit No. 142 of 2014
High Court of Kenya at Nairobi
Mbogholi Msagha, J
March 31, 2016
Brief facts
The Plaintiff was a Member of Parliament for Teso
North. He filed a suit against the defendant for
injurious comments published through a social media
platform known as facebook. The said publication
against the Plaintiff in their natural meaning labeled
the Plaintiff as unprincipled man, unprofessional,
corrupt and one who had been misusing Uwezo
Fund resources. The Plaintiff sought relief from the
court on the strength that the platform under which
the publication was made enjoyed international
readership and as such injured his political career.
The defendant did not enter any appearance nor did
he file any defence.
Issues
i.
Whether the defendant could have sought

refuge on account of freedom of expression
and that of the media under the Constitution,
ii.
What amount of relief could befit the Plaintiff

over a defamation made in a platform that
enjoyed international readership and in
his standing and status as a Member of
Parliament?
Tort Law-libel-consideration for award for damagesaward of damages for defamation that enjoys
international readership- What amount of relief could
befit the Plaintiff over a defamation made in a platform
that enjoyed international readership and in his standing
and status as a Member of Parliament
Constitutional Law-rights and fundamental freedomfreedom of the media, expression-limitation of rights

and freedoms- whether the defendant could have sought
refuge on account of freedom of expression and that of
the media under the Constitution- Constitution of Kenya,
2010, articles 33 and 34
Held
1. Even if the Defendant were to claim
enjoyment of the freedom of the media and
that of expression as provided under articles
33 and 34 of the Constitution it could not aid
him in the matter. Those aforesaid freedoms
were all subject to the limitations provided
by the Constitution which include the need
to respect the rights and freedoms of other
individuals.
2. Considering factors including the refusal by
the Defendant to apologize and pull down
the offending words from the Facebook
platform the Plaintiff was entitled to total
relief of 5Million Kenya Shillings. Kenya
Shillings 2 Million general damages, 1.5
Million exemplary damages and 1.5 million
aggravated damages.
Defendant to bare cost of the suit
67
Court holds that the establishment of the Environment and Land Court does not take
away the jurisdiction of the subordinate Courts to resolve land disputes
Peter Mburu v Andrew Kimani Adam & 2 others
ELC Case No. 85 of 2015
Environment and Land Court at Kerugoya
B.N Olao J
March 16, 2016
Brief facts
The Applicant sought a transfer of a suit to Wanguru
Principal Magistrates Court for hearing and final
disposal. The Applicant pointed out that the said
court had jurisdiction to hear and determine the
suit and all the parties reside and work within the
jurisdiction of that Court where the cause of action
arose. The Respondent opposed the application and
termed the attempt to transfer the suit as delaying
tactics by the applicant to delay the case. It was
apparent to the Court that it had jurisdiction to
either way try and as such had to consider the factors
that could or could not transfer the suit.
Issues
i. Whether the establishment of the
Environment and Land Court through the
Environment and Land Court Act took away
the jurisdiction of the subordinate Courts
ii. What factors were to be considered by
a Higher Court (Environment and Land
Court) before transferring suits?
iii. What was the rationale of the amendment of
section 150 of the Land Act through Statute
law Miscellaneous (Amendments) Act?
iv. Whether transfer of suits could warrant a
delay in the resolution of cases.
Statute-interpretation of statutes- rationale for
amendment of section 150 of the Land Act- what was the
rationale of the amendment of section 150 of the Land
Act through Statute law Miscellaneous (Amendments)
Act- Statute law Miscellaneous (Amendments) Act No. 25
of 2015
Environmental Law- jurisdiction of the Environment
and Land Court-jurisdiction of the Environment and
Land Court vis a vis subordinate courts-power of the
Environment and Land Court to transfer suits- whether
the establishment of the Environment and Land Court
through the Environment and Land Court Act took away
the jurisdiction of the subordinate Courts-Constitution of
Kenya, 2010, article 162 (2) (b); Civil Procedure Act (cap
21), sections 12 and 18
Civil Practice and Procedure case management
-inherent jurisdiction of the court-expeditious resolution

of cases-whether transfer of suits could warrant a delay
in the resolution of cases- Civil Procedure Act (cap 21),
sections 1A and 1B
Land Act (sub leg.) Statute law Miscellaneous
Amendments) Act No. 25 of 2015
Section 150
The Environment and Land Court established in the
Environment and Land Court Act and the subordinate
Courts as empowered by any written law shall have
jurisdiction to hear and determine disputes, actions and
proceedings concerning land under this Act
Held
1. Section 18 of the Civil Procedure Act vested
the High Court with wide power to transfer
any suit pending before it to a subordinate
court competent to try it or transfer any suit
from a subordinate Court to itself or transfer
any suit from one subordinate Court to
another. Section 12 of the Civil Procedure
Act also provided that a suit for recovery of
immovable property should be instituted in
the Court within the local limits of whose
jurisdiction the property was situated.
2. It was more economical and expeditious
to have the suit determined at the Court
nearest the parties and as such it would be
more convenient for the parties and even for
advocates who could be residing in the place
of the property in dispute.
3. Section 13 of the Environment and Land
Court Act gave the Environment and
Land Court both original and appellate
jurisdiction to hear and determine disputes
in accordance with article 162 (2) (b) of the
Constitution. The said court was not enacted
to take away the jurisdiction of subordinate
Courts to handle land disputes where the
value of the subject matter falls within those
Courts pecuniary jurisdiction.
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68
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4. Parliament could not have intended to
take away the jurisdiction that magistrates
had all along exercised in land cases where
applicable. It was in that regard therefore
that Parliament through Statute law
(Miscellaneous Amendments) Act, amended
section 150, of the Land Act 2012 which
previously vested the Environment and land
Court with exclusive jurisdiction to hear and
determine disputes, action and proceedings
concerning land under the Act.
5. The basis for the amendment of section 150 of
the Land Act was to recognise and appreciate
the jurisdiction of the subordinate courts

to hear and determine disputes, action and
proceedings concerning land as empowered
by the written law so as to validate the
appellate jurisdiction of the Environment
and Land Court.
6. Sections 1A and 1B of the Civil Procedure Act
ensured the just, expeditious, proportionate
and affordable resolution of cases and as
such parties needed not to worry of the
speedy resolution of disputes.
Application allowed. Each party to meet their own costs
A constitutional petition filed by a sole petitioner abates upon the death the petitioner.
Nicolaas Hendrick Claasen v Commissioner of Lands & 4 others
Constitutional Petition No. 7 of 2015
Environment & Land Court at Kitale
E B Obaga, J
February 2, 2016
Reported by Teddy Musiga
Brief Facts:
This application sought to substitute the Petitioner
Nicolaas Hendrick Claasen (deceased) with the
applicant (Karl Wehner Claasen). Prior to his death,
the deceased had filed a Constitutional Petition
against the respondents in which he contended that
his constitutional rights under articles 21, 27 and
40 of the Constitution had been violated. As a result
of the breach, he sought compensation of Ksh. 13,
914,000,000/= for loss of 4638 acres of land or any
other sum as could be determined by Court. He died
before his petition could be heard. The applicant
who was his son brought the application seeking
to be substituted in place of the deceased and to
continue with the Petition.
Issues:
i. Whether provisions of the Civil Procedure
Act and Rules thereunder were applicable in
constitutional petitions.
ii. Whether a Constitutional application which
was filed based on the provisions of the Civil
Procedure Act and Rules could be defeated
solely on the ground that it had been brought
under rules other than the manner provided
(Mutunga Rules).
iii. Whether a constitutional petition filed by a
sole petitioner survives upon that death of
the Petitioner.
Constitutional Law constitutional litigation
constitutional petitions - whether a constitutional petition
filed by a sole petitioner survives upon the death of the

Petitioner.
Constitutional Law constitutional litigation
litigation on fundamental rights and freedoms claim
where the petitioner invoked the Civil Procedure Rules
instead of the Constitution of Kenya (Protection of Rights
and Fundamental Freedoms) Practice and Procedure
Rules (Mutunga Rules) - whether a Constitutional
application which was filed based on the provisions
of the Civil Procedure Act and Rules could be defeated
solely on the ground that it had been brought under rules
other than the manner provided (Mutunga Rules)
Rule 19 Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules
(Mutunga Rules)
Held:
1. The Constitution of Kenya (Protection of
Rights and Fundamental Freedoms) Practice
and Procedure Rules (Mutunga Rules)
were the only ones guiding the filing of
Constitutional Petitions and any applications
thereunder and as such there was no need to
invoke the provisions of the Civil Procedure
Act or Rules.
2. The Mutunga Rules provided the manner
in which Constitutional Petitions and
applications were supposed to be filed. In
the case of applications, Rule 19 thereof
provided that an application was supposed
69
to be made by way of Notice of Motion as set

out in Form D of the Schedule.
of the deceased were not a chose in action

which could be assigned to someone else.
3. An application could not be defeated just

because it had cited wrong provisions of
the law. The main concern of the Court
was to do substantive justice as opposed
to technical justice. That was why even the
Mutunga Rules provided that the Courts had
to give an interpretation of rules in a manner
which furthered the overriding objective of
the Court with regard to article 259(1) of the
Constitution. Therefore, there was nothing
wrong in the applicant citing provisions of
the Civil Procedure Rules and the Act.
6. The Mutunga Rules were silent when it came

to death of a sole petitioner. Those rules
seemed to address the issue of substitution
in case where the proceedings were brought
in the name of the wrong person. They did
not say what happened in the case of death
of a sole petitioner. In the absence of what
happens to a Petition by a person who died
before his Petition was heard, such petition
abates.
4. The term, declaration of rights as an action

which a litigant requested a courts assistance
not because any rights had been violated but
because those rights were uncertain. The
deceaseds rights were yet to be determined
as at the time of his demise. There was
therefore nothing to be taken over by the
applicant.
5. The moment the deceased died before his
rights could be ascertained, he died with
those unascertained rights which were
personal in nature. The unascertained rights
7. [Obiter] There is need for us in Kenya to

expressly state what happens in situations
where a petitioner dies before his Petition is
heard. The estate of the deceased Petitioner
is not left without a remedy. They can file
a claim for what may have survived the
deceased but of course subject to the Law
of Limitation of Actions Act. In as far as the
Petition by the deceased is concerned, there
can be no substitution.
Application dismissed.
Court declares section 29 of the Kenya Information and Communication Acts

unconstitutional
Geoffrey Andare v Attorney General & 2 others
Petition 149 of 2015
Mumbi Ngugi J
April 19, 2016
Brief facts
The Petitioner was charged with an offence
under section 29 of the Kenya Information and
Communications Act, KICA. The said provision
criminalised any person who improperly used
licensed telecommunication system either to sends
a message or other matter that was grossly offensive
or of an indecent, obscene or menacing character.
The Petitioner had allegedly posted a message in
the social media described to have been grossly
offensive electronic mail within the meaning of
section 29 of the KICA. The message described to
have been annoying to the claimant in a criminal
case implicated the claimant to have been sleeping
with young girls before awarding them scholarship
opportunities to go to school. The Petitioner in
certain words had described the claimants acts as

shameful.
While the charges were ongoing against the
Petitioner sought to challenge the constitutionality
of section 29 on the grounds that its wordings were
vague, offensive to his freedom of expression thus
unconstitutional, and that the said section did not
have elements of criminal offences (mens rea and
actus reus) and as such the offence created therein
was not prosecutable.
Issues
i. Whether the High court had the jurisdiction
to entertain a matter filled before it in the
existence of a subordinate criminal trial.
ii. Whether the High Court could stay criminal
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70
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proceeding filed against an accused pending

the determination of statutory interpretation
whose outcome could have substantial
effects to the criminal proceedings in the
subordinate court
iii. What applicable principles could guide the
Court in determining whether the provision
of a statute was unconstitutional?
iv. Whether section 29 of the Kenya Information
and Communication Act, KICA was
unconstitutional
v. Whether section 29 limited the right and
freedom of expression and whether such
limitations were justified in a free and
democratic society
vi. What was the purpose of the limitation of
rights and freedoms, and how important was
it?
vii. Whether section 29 contained the elements of
a criminal offence that could be prosecutable
within the standards of what would amount
to a criminal offence
Constitutional Law-fundamental rights and of
expression-limitation of right to freedom of expressionswhether section 29 limited the rights and freedom of
expression and whether such limitations were justified in
a free and democratic society- what was the purpose of the
limitation of rights and freedoms, and how important was
it-Constitution of Kenya, 2010, articles 24 and 33
Criminal Law-prosecutable offence-elements of crimesmens rea and actus reus-what constitutes a prosecutable
offence- whether section 29 contained the elements of a
criminal offence that could be prosecutable within the
standards of what would amount to a criminal offenceKenya Information and Communication Act (cap 411A),
section 29
Statutes-interpretation of statutes-unconstitutionality
of
statutes-guiding
principles
in
determining
unconstitutionality of statute- what applicable principles
could guide the Court in determining whether the provision
of a statute was unconstitutional- whether section 29
of the Kenya Information and Communication Act was
unconstitutional-Constitution of Kenya, 2010, articles 2
and 259; Kenya Information and Communications Act
(cap 411A), section 29
Jurisdiction-jurisdiction of the High Court-jurisdiction
of the High Court to grant orders of stay of criminal
proceedings-whether the High Court could stay criminal
proceeding filed against an accused pending the
determination of statutory interpretation whose outcome
could have substantial effects to the criminal proceedings
in the subordinate court-whether the High court had the
jurisdiction to entertain a matter filled before it in the

existence of subordinate criminal trial of the accusedConstitution of Kenya, 2010, articles 23 and 165 (3)
Kenya Information and Communication Act (cap
411A)
Section 29
A person who by means of a licensed telecommunication
system
(a) sends a message or other matter that is grossly
offensive or of an indecent, obscene or menacing
character; or
(b) sends a message that he knows to be false for the
purpose of causing annoyance, inconvenience
or needless anxiety to another person, commits
an offence and shall be liable on conviction to
a fine not exceeding fifty thousand shillings, or
to imprisonment for a term not exceeding three
months, or to both.
Held
1. The Petition dealt with the question of a
statutory provision that allegedly offended

the Constitution. Such a question was beyond
the jurisdiction of the trial court which had
no relation with the weight, sufficiency of
evidence gathered and adduced at the trial
court in support of or in opposition to the
Charges. Where the constitutional validity
of a section of a statute under which the
DPP had preferred charges was challenged
on account of violation of the Constitution,
it was the duty of the High Court to
intervene and grant appropriate relief under
article 23 (3) read together with article
165 (3) of the Constitution. Jurisdiction is
everything should the court find that it had
no jurisdiction, it would be bound to down
its tools and take no further step. The High
Court had jurisdiction to determine whether
a provision of law is in any way in conflict
with the Constitution
2. The Court has power and indeed the
duty to prohibit the continuation of the

criminal prosecution if extraneous matters
divorced from the goals of justice guide their
instigation. It is a duty of the Court to ensure
that its process did not degenerate into tools
for personal score-settling or vilification on
issues not pertaining to that which the system
was even formed to perform. A stay should
be granted where compelling an accused to

stand trial would violate the fundamental
principles of justice which underlie the
societys senses of fair play and decency and/
or where the proceedings were oppressive or
vexatious. The machinery of criminal justice
was not to be allowed to become a pawn in
personal civil feuds and individual vendetta.
It was through the mandate of the Court
to guard its process from being abused or
misused or manipulated for ulterior motives.
3. When an Act of parliament is appropriately
challenged in the Courts as not conforming

to the constitutional mandate, the judicial
branch of the government has only one duty;
to lay the article of the Constitution which
was invoked beside the statute which was
challenged and to decide whether the latter
squares with the former. The court neither
approves nor condemns any legislative
policy. Its delicate and difficult office is to
ascertain and declare whether the legislation
is in accordance with or in contravention
of, the provisions of the Constitution and
having done that, its duty ends.
4. Article 2 of the Constitution is emphatic that
the Constitution is supreme, and any law

that is inconsistent with the Constitution
is void to the extent of the inconsistency.
Article 259 provided the manner in which
the Constitution was to be interpreted, it
required that the constitution should be
interpreted in a manner that promoted its
purposes, values and principles advance the
rule of law, human rights and fundamental
freedom in the Bill of Rights and that
contribute to good governance. Article
159(2) (e) of the Constitution mandated the
Court, in exercising its judicial authority,
to protect and promote the purpose and
principles of the Constitution.
5. Section 29 of the KICA barred improper use
of a system. It provided that a person who

by means of a licensed telecommunication
system sent a message or other matter that
was grossly offensive or of an indecent,
obscene or menacing character; or
sends a message that he knew to be false
for the purpose of causing annoyance,
inconvenience or needless anxiety to another
person, committed an offence and should be
liable on conviction to a fine not exceeding
71
fifty thousand shillings, or to imprisonment
for a term not exceeding three months, or to
both.
6. Section 29 did not define what amounted
to a message that was grossly offensive,

indecent obscene or menacing character
and did not answer the question as to
which message could course annoyance,
inconvenience, needless anxiety. In the
absence of definition of the aforementioned
words the meaning of those words was left
to the subjective interpretation of the Court,
which meant that the words were so wide
and vague that their meaning would depend
on the subjective interpretation of each
judicial officer seized of a matter.
7. The provisions of section 29 were so vague,
broad and uncertain that individuals did

not know the parameters within which
their communication fell and the provisions
therefore offended against the rule requiring
certainty in legislation that created criminal
offences. A norm could not be regarded as
law unless it was formulated with sufficient
precision to enable the citizen to regulate his
conduct: he should be able- if need be with
appropriate advice- to foresee, to a degree
that was reasonable in the circumstances, the
consequences which a given situation could
entail. Laws could not grant officials largely
unfettered discretion to use their power
as they do not wish, nor could laws be so
vaguely worded as to lead reasonable people
to differ fundamentally over their extension.
The provisions of section 29 were therefore
so wide and vague that they offended the
requirements with regard to law that carried
penal consequences.
8. 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 could not be over-emphasised.
Freedom of expression enables the public
to receive information and ideas, which
are essential for them to participate in
their governance and protect the values of
a democratic government, on the basis of
informed decisions. It promoted a market
place of ideas. It also enabled those in
authority to be brought to public scrutiny
and thereby hold them accountable. Once
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72
Cases
it was recognized that section 29 of the Act
limited a right that was as important as the
right to freedom of expression undoubtedly
was, the state should bring the law imposing
such limitation within the rubric of article
24 of the Constitution.
9. Article 24(2) of the Constitution required
that; a provision in legislation limiting a

right or fundamental freedom in the case
of a provision enacted or amended on or
after the effective date, was not valid unless
the legislation specifically expressed the
intention to limit that right or fundamental
freedom, and the nature and extent of
the limitation should not be construed as
limiting the right or fundamental freedom
unless the provision was clear and specific
about the right or freedom to be limited and
the nature and extent of the limitation.
10. Article 24(3) imposed a duty on the State, in
circumstances such as in the instant case. The

said article requires that, the State or a person
seeking to justify a particular limitation
should demonstrate to the Court, tribunal
or other authority that the requirements of
article 24 had been satisfied. Limitation of
fundamental rights and freedom should be
on grounds which were permitted in the
Constitution, which under article 33(2) of
the Constitution were those for propaganda
for war, incitement to violence, hate speech,
or advocacy of hatred.
11. The purpose of the provision in the
legislation was to protect the reputation

of others. As a result, section 29 was
inserted to criminalise the use of licensed
telecommunication systems. The purpose
of the KICA, aside from being intended to
establish the Communication Commission
of Kenya was to facilitate the development
of the information and communications
sector (including broadcasting, multimedia
telecommunications and postal services) and
electronic commerce.
12. Under section 24 of the KICA the
Commission could upon application in the

prescribed manner and subject to certain
conditions as it could deem necessary, grant
licences and authorise all persons, whether
of a specified class or any particular person
to inter alia operate telecommunication
systems; or provide telecommunication
services, of such description as could be

specified in the licence. In the instant case.
Individuals such as the petitioner and others
who post messages on Facebook and other
social media did not have licences to operate
telecommunication systems or to provide
telecommunication as could be specified in
the licence.
13. Section 29 imposed penal consequences
in broad vagueness, and as such was

unconstitutional for that reason. The
Respondents had failed to demonstrate that
the provision of section 29 were permissible
in a free and democratic society, in their duty
to demonstrate the relationship between
the limitation and its purpose and to show
that there were no less restrictive means to
achieve the purpose intended.
14. Section 29 imposed a limitation on the
freedom of expression in vague, imprecise and

undefined terms that went outside the scope
of the limitations allowed under article 33 (2)
of the Constitution. The Respondents had not
been able to show that such limitations were
permissible under article 24, or that they
were the least restrictive means available. If
the intention was to protect the reputations
of others the prosecution of mean spirited
individuals who post defamatory statements
on social media did not achieve that. Libel
laws provided for less restrictive means of
achieving that purpose. Therefore section
29 of the KICA was also unconstitutional for
violating article 33 of the Constitution, and
therefore null and void.
15. Crimes involved both blameworthy acts
and blameworthy mental elements or state

of mind on the part of the accused person.
Element of mens rea must accompany the
culpable act or conduct of the accused in
respect of that mental element generally. In
addition to proving that the accused satisfied
the definition of the actus reus of the particular
crime charged, the prosecution should also
prove mens rea, in that the accused had the
necessary mental state or degree of fault at
the relevant time.
16. Mens rea meant a number of quite different
things in relation to different crimes. Thus

one should turn to the definition of particular
crimes to ascertain the precise mens rea
required for specific offences. In the instant
73
case, section 29(a) criminalises the acts of

sending a message or other matter that was
grossly offensive or of an indecent, obscene
or menacing character. It did not require the
mental element on the part of the sender of
the message that would render his or her act
criminal in nature. The offence appeared
to be premised on how others interpret the
message.
17. Section 29(b) did contain both elements of

a criminal offence in that it criminalised the
sending of a message that the sender knew to
be false for the purpose of causing annoyance,

inconvenience or needless anxiety to another
person hence the provisions of the section
were over broad and vague, they limit the
right to freedom of expression and were
therefore unconstitutional.
Petition Orders allowed. Parties to bear own costs. No
prohibitory orders against the DPP to prosecute the
Petitioner under any other law other than section 29 of
the KICA.
Disability Rights arise automatically and not upon registration by persons with disability
with the National Council for Persons with Disability
Margaret Martha Byama v Alice A. Otwala & 3 others
Petition 74 of 2015
Employment and Labour Relations Court
J Abuodha, J
April 15, 2016
Brief facts
The Petitioner was employed as a civil servant
since 1982. At the time of filing the petition she was
employed as Chief Finance Officer, Job Group R, in
the Ministry of Commerce and Tourism. At the time
of her employment her compulsory retirement age
was 60 years and she was due to retire on September
8 2015.
On May 29 2012 the Government of the Republic
of Kenya through the then Permanent Secretary
of Ministry of State for Public Service issued
directives to the Kenya Government departmental
heads including the Respondents. The directive inter
alia directed that the mandatory retirement age of
Public Servants with disabilities be raised from 60
years to 65 years.
In 1988, the Petitioner was diagnosed with a
medical condition of thoracic spine and cervical
illness and chronic lower back pain. Since 1988 the
Petitioner had not made any effort to get a medical
assessment and membership to National Council
for Persons with Disability (NCPWD). However
as her retirement approached, the Petitioner went
through the proper legal and medical channels and
was registered as a person with disability by the
NCPWD
After registration, the Petitioner approached the
1st and the 2nd Respondents for rectification of
her employment records to reflect the mandatory
retirement age of 65 years. On May 6, 2015 the

1st Respondent through the 3rd Respondent
informed the Petitioner that the 1st Respondents
had disallowed her request to extend her retirement
age to 65 years. The Petitioner brought a suit to
challenge the decision by the 1st Respondent and 3rd
Respondent.
Issues
i. Whether disability rights were only
conferred to persons registered as persons
with disability by the National Council for
Persons with Disability
ii. Whether Public Servants with disabilities
who were not registered as persons with
disability could benefit from the directive
that extended the mandatory retirement age
of Public Servants with disabilities to 65.
Constitutional Law bill of rights rights of disabled
persons - whether disability rights were only conferred
to persons registered as persons with disability by
the National Council for Persons with Disability
Constitution of Kenya 2010, article 54.
Labour Law - retirement retirement of public servants
with disabilities - whether Public Servants with disabilities
that were not registered as persons with disability could
benefit from the directive that extended the mandatory
retirement age of Public Servants with disabilities to 65.
Words and phrases definition of disability - a physical
sensory, mental or other impairment, including any
Cases
Cases
74
visual, hearing, learning or physical incapacity which

impacts adversely on social economic or environmental
participation Persons With Disability Act (Act 14 of
2003), section 2.
Relevant Provisions of the law
Constitution of Kenya, 2010, article 54
(1) A person with any disability is entitled
(a) to be treated with dignity and respect and to be addressed
and referred to in a manner that is not demeaning;
(b) to access educational institutions and facilities for
persons with disabilities that are integrated into society
to the extent compatible with the interests of the person;
(c) to reasonable access to all places, public transport and
information;
(d) to use Sign language, Braille or other appropriate
means of communication; and
(e) to access materials and devices to overcome constraints
arising from the persons disability.
(2) The State shall ensure the progressive implementation
of the principle that at least five percent of the members
of the public in elective and appointive bodies are persons
with disabilities.
Persons With Disability Act (Act 14 of 2003)
Section 2
disability means a physical, sensory, mental or other
impairment, including any visual, hearing, learning or
physical incapability, which impacts adversely on social,
economic or environmental participation;
Section7(1)(c)(i)
The functions of the Council shall be(c) to register
(i) persons with disabilities.
Held
1. Part 3 of the Persons with Disability Act
contained the rights and privileges of a
person with disability. The objects of the
Act as it stood were to attempt to equalize
persons with disability as far as possible with
normal persons and mitigated the challenges
persons with disabilities go through in
their day-to-day lives. Those rights were
subsequently captured and were now an
integral part of Kenyas Constitution, 2010
under article 54.
2. Under the Persons with Disability Act,
disability was defined as a physical sensory,

mental or other impairment, including
any visual, hearing, learning or physical
incapacity that impacted adversely on social
economic or environmental participation.
Once a person had been certified to be
one with disability as provided in the Act,
that person qualified to be registered in
accordance with section 7(1) (c) of the Act.
3. The Act had not made any provision on
when a person was to register once certified
to be a person with disability. From the
Acts omission, disability could either be
congenital or as a result of subsequent
illness or incidental injury. The latter aspect
could occur to anyone at any stage in life.
Parliament saw the mischief or injustice that
would occur if timelines were set on when to
register as a person with disability.
4. Disability existed as a fact whether registered
or not. Registration was simply to create a
database for purposes of operationalizing
the rights conferred by the Persons with
Disability Act and the Constitution. It did
not confer those rights that automatically
existed once a person fitted into the definition
of disability contained in the Act.
5. The fact that the Petitioner sought to be
registered around the time she was due for
retirement was not read much into since it
was within her right to plead her disability to
continue in service as per government policy
for such persons.
Petition allowed:
a) Declaration that the decision made by the 1st
Respondent for the 2nd and 3rd Respondents
disallowing the Petitioner from working as a
Civil Servant of the Government of the Republic
of Kenya until attainment of 65 years as
unconstitutional, unlawful, null and void
b) Permanent injunction granted to restrain the
Respondents from retiring the Petitioner from her
position and employment until her attainment of
65 years.
c) No order as to costs.
75
Acquisition of Citizenship by birth is dependent on parentage and place of birth of the

child
Hashmukh Devani v Cabinet Secretary Ministry of interior and Coordination & 3 Others
Petition No 405 of 2015
Constitutional & Human Rights Division
J L Ongutu J
February 29, 2016
Reported by Kipkemoi Sang & Kiptoo Ian
Brief facts
The Petitioner was born in Nairobi on May 4,
1949 and both parents were citizens of India. The
Petitioners father passed on in 1959 while still an
Indian citizen whereas the Petitioners mother
passed on in 2005 as a Kenyan Citizen after being
registered as a Kenya Citizen on February 7, 1969.
The Petitioner left Kenya for the United Kingdom
where he resided for a period of ten years before he
returned to Kenya in 1973.
Following the Promulgation of the Constitution
of Kenya 2010, the Petitioner believed he was
now entitled to Kenya citizenship by virtue of
birth through article 14(2) of the Constitution.
The Petitioner had applied for the Kenya national
identification card and Kenya passport and was
denied by the 2nd and 3rd Respondents. He contended
that he was a Kenyan citizen by birth and that he
was entitled to all documents any Kenyan citizen
was entitled to and that denial of the said documents
contravened his fundamental rights and freedoms
under the Constitution.
Issues
i. Whether instituting an action in court
without due regard to the existing alternative
remedies or procedure was an abuse of court
process
ii. Whether the Director of Immigration was
in a position to conclusively interpret the
constitution
iii. Whether acquisition of citizenship by birth
could be affected by;
a. place of birth of the Petitioner.
b. parentage of the Petitioner
iv. Were the Petitioners fundamental rights and
freedoms under the constitution of Kenya,
2010 were infringed?
Constitutional
LawCitizenship-acquisition
of citizenship-citizenship by birth-what were the
qualifications for acquiring citizenship by birth-whether
the petitioner was a citizen of the republic of Kenya by
birth-Constitution of Kenya, 2010, article 14; Sixth
Schedule of the Constitution of Kenya, 2010, section 30;

Kenya Citizenship and immigration Act(cap 172), section
6
Jurisdiction Jurisdiction of the high court in interpreting
the Constitution- - Whether instituting an action in court
without due regard to the existing alternative remedies or
procedure is an abuse of court process- Constitution of
Kenya, 2010, article 22, 23 and 165 (3) (b) and (d)
Constitution of Kenya, 2010
Article 14-Citizenship by birth
(1) A person is a citizen by birth if on the day of the
persons birth, whether or not the person is born
in Kenya, either the mother or father of the person
is a citizen;
(2) Clause (1) applies equally to a person born before
the effective date, whether or not the person was
born in Kenya, if either the mother or father of
the person is or was a citizen;
(3) Parliament may enact legislation limiting the
effect of clauses (1) and (2) on the descendants of
Kenyan citizens who are born outside Kenya;
Sixth Schedule to the Constitution of Kenya, 2010
Section 30-Citizenship by birth
A Kenyan citizen is a citizen by birth if that citizen(1) acquired citizenship under Article 87 or 88 (1) of the
former Constitution
(2) would have acquired citizenship if Article 87(2) read
as follows:
Every person who, having been born outside Kenya is on
11th December 1963 a citizen of the United Kingdom and
colonies or a British protected person shall, if his mother
or father becomes, or would but for his or her death have
become, a citizen of Kenya by virtue of subsection (1)
become a citizen of Kenya on 12th December 1963
Constitution of Kenya, 1963 (Repealed)
Section 87-Persons who become citizens on 12th
December 1963
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76
Cases
(1) Every person who, having been born in Kenya, is on

11th December 1963 a citizen of the United Kingdom
and colonies or a British protected person shall become a
citizen of Kenya on 12th December 1963: provided that
a person shall not become a citizen of Kenya by virtue of
this subsection if neither of his parents was born in Kenya.
Section 88
(1)A person who, but for the proviso to section 87 (1),
would be a citizen of Kenya by virtue of that subsection
shall be entitled, upon making application before the
specified date in such manner as may be prescribed by or
under an Act of Parliament, to be registered as a citizen of
Kenya: Provided that a person who has not attained the
age of twenty-one years (other than a woman who is or
has been married) may not himself make an application
under this subsection, but an application may be made on
his behalf by his parent or guardian.
(4) A person who, on 11th December, 1963, is a citizen

of the United Kingdom and Colonies or of the Republic
of Ireland and is on that day ordinarily and lawfully
resident in Kenya (otherwise than under the authority
of a pass issued under the Immigration Act as then
in force and conferring on him the right to remain in
Kenya only temporarily) shall be entitled, upon making
application before the specified date in such manner as
may be prescribed by or under an Act of Parliament, to
be registered as a citizen of Kenya: Provided that a person
who has not attained the age of twenty-one years (other
than a woman who is or has been married) may not
himself make an application under this subsection, but an
application may be made on his behalf by his parent or
guardian.
(5) A person who, on 11th December, 1963, is a citizen of
the United Kingdom and Colonies
(a) having become such a citizen under the British
Nationality Act, 1948 by virtue of his having been
naturalized in Kenya as a British subject before that Act
came into force; or
(b) having become such a citizen by virtue of his having
been naturalized or registered in Kenya under that Act,
shall be entitled, upon making application before the
specified date in such manner as may be prescribed by or
under an Act of Parliament, to be registered as a citizen
of Kenya:
Kenya Citizenship and immigration Act (CAP 172)
Section 6-Citizenship by birth
A citizen by birth will carry the same meaning as provided
in Article 14 as read together with Clause 30 of the Sixth
Schedule of the Constitution.

Held
1. The correct legal position was that where
there existed an alternative remedy through
statute law; it was desirable that such
statutory remedy rather than Constitutional
relief be pursued first. In addition, there was
considerable merit that where there was clear
procedure for the redress of any particular
grievance prescribed by the Constitution or
an Act of Parliament, that procedure would
strictly be followed.
2. The right to access justice or the Court ought
not to be repressed or held back in a manner
that stalls the advancement or enforcement of
a fundamental freedom or a right.
3. Where there was a parallel remedy,
constitutional relief could not be sought unless
the circumstances of which the complaint
was made included some feature which made
it appropriate to take that course.
4. As a general rule, there must be some feature,
which, at least arguably, indicated that the
means of legal redress otherwise available
could not be adequate. To seek constitutional
relief in the absence of such a feature would
be a misuse, or abuse, of the Courts process.
It was not automatic that the existence of an
alternative remedy or avenue locked out a
Petitioner from seeking constitutional relief.
5. Pursuant to article 14 of the Constitution
and section 6 of the Kenya Citizenship
and immigration Act the ultimate mandate
and jurisdiction to determine questions of
violation of rights or fundamental freedoms
was in the High Court. Furthermore, article
22, 23 and 165 (3) (b) and (d) of the Constitution
provided that the ultimate mandate and
jurisdiction to interpret the Constitution was
also in the High Court. In the instant case
the 2nd Respondent was not in a position to
conclusively interpret and determination
determine the issue at hand
6. The dissatisfaction of the Petitioner as to
his status of citizenship by birth could only
be determined through the court system
starting with the High Court. Once that
interpretation and determination was made
as to who was a citizen by birth, then the
Respondents mandate would take forte. The
77
Court would not be easily divested of its

jurisdiction to arbitrate between a person and
the State or between two persons. The Court
had a mandate and jurisdiction to determine
whether the Petitioner was a Kenyan citizen
by birth, a determination which of necessity
invited an interpretation of the Constitution.
7. The text of the Constitution was to be read in
light of its history, with necessary implications
as could be derived from the Constitutional
structures. The Constitution was a mechanism
under which laws were made and not a mere
piece of legislation which declares what the
law was to fit specific situations.
8. The Constitution is not to be construed in
any narrow and pedantic sense. The words
used were necessarily general, and their full
importance and true meaning could only be
appreciated when considered, as the years
go, in relation to the vicissitudes of fact
which from time to time emerged. It was to
be construed in the same way as any other
legislative enactment, and that was where the
words used were precise and un-ambiguous.
They were to be construed in their ordinary
and natural sense. It was only where there
was some imprecision or ambiguity in the
language that a question arose whether a
liberal or restricted interpretation could be
put on the words.
9. The right to citizenship had been described
correctly as the right to have rights. Certain
rights were reserved under the Constitution
to only Kenyan citizens. Only citizens were
accorded the political rights as envisaged
under article 38 of the Constitution. Under
article 78 of the Constitution, only citizens
could be elected or appointed as state officers.
Article 83 by extension allowed every citizen
the right to vote. Article 99 allowed citizens to
be elected to Parliament.
10. Articles 14 and 15 of the Constitution
provided ways in which citizenship could be
acquired; they included citizenship by:
a. birth
b. descent and
c. naturalization or registration.
Like the other forms of acquisition of citizenship, jus
soli (citizenship by birth) had limitations.
11. In principle no human individual ought to be
rendered stateless as statelessness affected a

persons ability to enjoy various fundamental
privileges and rights. A stateless person
also became particularly vulnerable to both
detention and expulsion from country of
habitual residence
12. Chapter 3 of the Constitution provided
for the right or entitlement to citizenship,
the technical aspects of citizenship which
included, acquisition, naturalization, loss
and proof of citizenship, duties and rights
of citizenship and issuing of passports
were dealt with in the Kenya Citizenship
and Immigration Act which was enacted
pursuant to the provisions of article 19 of the
Constitution.
13. A closer and clear reading of article 14 in its
entirety as well as section 6 of the Act revealed
that the draftsmen of the Constitution as
well as the legislature departed from the
traditional formula of jus soli. Specific and
important limitations varying the principle
were enacted. The birth place was not of itself
to be equivalent to citizenship. It also had to
be bequeathed. One had to be born in Kenya
or even if born outside Kenya either or both
parents had to be citizens at the time of birth.
In the instant case, the Petitioner did not
qualify for citizenship under articles 14(1) or
(2). The Petitioner though born in Kenya in
1949 was not born of Kenyan parents and as
such met the first qualification of being born
in Kenya but failed the second qualification
of not being born to parents who were then
citizens of Kenya.
14. Assimilation of Section 87 of the Repealed
constitution with article 14(1) & (2) of the
Constitution of Kenya, 2010 and section 30
of the Sixth Schedule to the said Constitution
was clear that citizenship by birth had three
factors and categories. These were;
a.
one needed to have been born in

Kenya with both or either parent a
Kenyan citizen,
b.
one needed to have been born outside

Kenya and either of his parents was a
Kenyan citizen at the time of his birth
and,
c.
a person was a citizen of the United

Kingdom or protected colonies who
was born in Kenya as of December
Cases
78
Cases
11, 1963 of a parent who was himself
or herself also born in Kenya.
15. In all instances, at the time of birth, either or

both of the persons parents should have been
a Kenyan citizen or should have been born in
Kenya. The third category was essentially to
ensure that all locals or natives or residents
who then held United Kingdom citizenship
with a parent born in Kenya, did not continue
with foreign citizenship as Kenya attained
independence. Although born in Kenya,
the Petitioners parents whose nationality
was clearly and unquestionably Indian
automatically disqualified the Petitioner
under both the Repealed Constitution and the
Constitution of Kenya, 2010 from acquiring
citizenship by birth.
16. The Petitioner acquired the citizenship of his
parents who were both Indian nationals with
Indian citizenship. At the time the Petitioner
was born, India had existed as an independent

nation with its own nationals and citizens
and was no longer a British colony when the
Petitioner was born in 1949.There should
be a presumption that the Petitioner was an
Indian citizen unless there was evidence to
rebut such a presumption.
17. There was no evidence and clear provisions
of the Constitution to direct or order the
Respondents to take appropriate measures
to recognize the Petitioner as a citizen of
Kenya by birth and that nothing stopped
the Petitioner from applying for citizenship
under article 15 of the Constitution.
18. There was no proof that the Respondents
violated any of the Petitioners constitutional
rights and fundamental freedoms.
Petition dismissed with each party to bear its own costs.
Scope of a chargees/ mortgagees rights in the realization of a continuing security

(charge/ mortgage)
Rajnikantkhetshi Shah v Habib Bank A.G. Zurich
Civil Case No. 246 of 2011
F Gikonyo, J
April 22, 2016
Reported by Teddy Musiga & Silas Kandie
Brief Facts
The Plaintiff was a guarantor of the principal debtor
(borrower) while the Principal debtor was a limited
liability company. The Defendant alleged that the
Plaintiff was a director of that company and that
the said company owed the Defendant bank money
Ksh. 5,000,000. The Defendant further alleged
that the Plaintiff thus guaranteed the Companys
debt and gave his property as security for the debt.
The Plaintiffs claim in court was for a declaration
that he did not owe the Defendant any money and
the continued holding of a legal charge over the
suit property by the Defendant was unlawful and
inequitable. He also sought a declaration for the
handover of an instrument of discharge of the legal
charge registered against the suit property. The
plaintiffs contention was that he was entitled to be
told by the defendant of the default of the principal
debtor to pay the debt so that he would undertake to
ensure the debt was repaid and that he was entitled
to be informed that the money had been disbursed
to the principal debtor. The plaintiff urged that no
demand had never been issued to him in writing for
default given that the transaction took part in 1982

(33) years ago. He also submitted as to whether it
was usual for a bank to remain silent for 33 years
without any explanations whatsoever and fail to
pursue a debtor for such a huge sum of money
allegedly owed.
Issues
i. Whether the Defendants cause of action
was caught up by the trappings of limitation
of time for their failure to demand payment
from the Plaintiff or the borrower through
an independent suit for over 33 years.
ii. Whether the Defendant was guilty of
latches, acquiescence or had waived its right
to claim the debt from the Plaintiff where
there was a continuing security
iii. What are the circumstances in which a
chargor has the rights to seek a discharge of
charge?
iv. Whether there are instances in which a
guarantor can also be a principal debtor and
what are the extents of liability under the
charge in such a case?
Land law Mortgages & Charges - redemption of

mortgages & charges discharge of mortgages and
charges - claim seeking the discharge of a charge what
are the circumstances in which a chargor has the rights to
seek a discharge of charge?
Land Law Mortgages and Charges rights and duties
of chargors and chargees right of redemption of a charge
claim where the defendant delayed in instituting his
claim to realise over a security for over 33 years - whether
the Defendant was guilty of latches, acquiescence or had
waived its right to claim the debt from the Plaintiff where
there was a continuing security
Held
1. The charge on the suit property was still
subsisting. As long as the charge was
subsisting and had not been discharged, the
cause of action consisting in a discharge of
charge was unaffected. Similarly, unless
there existed circumstances to the contrary,
as long as the debt for which such charge
was given as security or guarantee remained
unpaid, the cause of action to recover the debt
through lawful realization of the security or
enforcement of the guarantee thereof was
also alive.
2. The suit was not time barred at all as it
related to a Chargor who was seeking to have
a discharge of Charge on his property. It was
a suit for redemption of mortgaged property
and the cause of action thereof does not die
until the chargors equity of redemption was
extinguished in accordance with the law.
3. It was permitted in law that a deed could
designate a person to be both a guarantor and
a principal debtor. That was what the legal
charge in this case had done; it described
the Plaintiff as the guarantor and principal
obligor/ debtor. However, the twinning
of the guarantor and the principal debtor
was usually problematic especially where
the principal debtor was a corporate entity
with limited liability and which in law was
separate from its directors and shareholder.
4. Unless otherwise provided, where a
guarantee limited the guarantors liability to
a fixed sum, the guarantors could be liable to
the extent of the guarantee only and not to
the entire debt of the principal debtor. That
was due to the nature of guarantee whose
terms were normally interpreted strictly.
Therefore, in such a case, it could not make
79
any legal sense to merge the principal debtor
and the guarantor into one person or merge
the guarantee with the borrowers contract
of the debt. The guarantee was quite separate
from the principal debtors contract for the
debt and it was desirable they were kept
separate.
5. In the case before the Court, the guarantee
was given in form of a legal charge and was
for a fixed amount of money Ksh. 5,000,000
together with interest. As such, whether the
chargor was a guarantor, or both guarantor
and principal debtor, his liability was to the
sum fixed in the charge.
6. The guarantee was effected through a legal
charge, thus it was strictly governed by the
law on mortgages. The rights, remedies and
obligations of both parties were governed by
the law on mortgage.
7. Clause 7(a) of the Charge was instructive,
it provided that the chargees statutory
power of sale became exercisable without
any further notice to the charger upon
occurrence of some events specified therein.
Under the charge, in the event of default by
the borrower or the charger, the security
would become enforceable and the bank
was required to do all such acts and things
as reasonably required to facilitate the
realization of security of guarantee therein.
The bank was also at liberty to exercise all
the powers conferred on it by law to realise
the security therein
8. Since the transaction was governed by the
law on mortgages, where default occurred,
the chargee had to issue a formal notification
and demand that was the basis for liability and
exercise of the chargees statutory remedies
provided in law. Therefore, it did not matter
whether the chargor was a guarantor or a
principal obligor. The statutory notification
of default and demand was sine qua non
liability and basis for seeking payment of the
debt. The bank did not make any demand for
payment of the debt from the Plaintiff or the
company. Similarly, the bank did not seek to
exercise any of its rights or remedies under
the charge and the law including sale of the
charged property either by private treaty or
public auction.
9. In law waiver of a right or relief could be
Cases
80
express or implied. Almost no difficulty

arose where the waiver was made expressly
by consent and the party benefiting from
it had acted upon it: that was sufficient
consideration. Where waiver was not express
and was to be implied from the conduct of
the parties, the court had to consider the
entire circumstances of the case to establish
conduct which was inconsistent with the
continuance of the right.
10. The charge delineated the rights, obligations
and remedies of the parties to the charge. As
long as the charge subsisted, the chargors
equity of redemption remained intact. That
was because redemption of the charged
property was of the very nature and essence
of a mortgage in equity. It was inherent in the
mortgage itself and it could not be clogged
or impeded upon by design, contrivance, or
default or be left to the whims of the chargee.
11. The actions of the defendant not to exercise
its statutory or legal remedies under the
legal charge, yet it continued to pile interest
on the loan for over 33 years resulted into a
humongous debt upon the charged property.
The guarantee was not to exceed Ksh.
5,000,000 together with interest. Despite
the realities that the borrower had ceased
business, its account became dormant in
November 1982, for over 33 years the
Defendant had never demanded any payment
of its alleged debt from the Plaintiff of the
Principal debtor. Indeed, from the evidence,
there was doubt on the debt owed. As such,
liability of the guarantor or the principal
obligor did not arise where the debt to the
principal debtor does not exist or could not
be contemplated or was obscure.
12. The Chargees failure to exercise its rights
under the Charge and realize its security,
through one or more of the various remedies
provided under the Charge and the law,
including but not limited to exercise of
mortgagees statutory of power of sale of the
mortgaged property for over 33 years to date
was a classic example of a suitor who had
literally slept on his rights of which he was
fully aware of. The conduct of the Defendant
bank- deliberate restraint not to assert on
its right- and its explanation of that grave
lapse or omission was reminiscent of stealth
acquiescence, contrived design calculated at
Cases
foreclosing the equity of redemption of the

Chargor.
13. The conduct of the Defendant bank was
contrived to defeat the law and particularly,
the equity of redemption of the Plaintiff. In
fact the conduct of the bank was inconsistent
with the very right of the bank under the
Charge to realize the security given in the
Charge. It caused prolonged delay which
was deliberate and inconsistent with its
pretentious pronouncement that it reserved
the right to institute the suit anytime.
Nothing prevented the Defendant from
filing any such suit. It was surprising that it
did not even file a counterclaim in the case
which would have acted as a cross-action.
14. All those things portrayed the Defendant as
someone who had abstained from asserting
its legal and statutory rights under the
charge for over 33 years with the sole aim of
clogging the chargors equity of redemption.
There was complete acquiescence. Latches
caught up with the Defendant in the whole
transaction. And as acquiescence was an
element of latches, estopel also arose.
15. Estopel operated against the Defendants
bank, and its right against the plaintiff was
lost. Therefore, all ingredients were present
for the invocation of estopel against the
Defendant bank to enforce its rights as
against the Plaintiff.
16. [Obiter] The in duplum rule was designed by
common law and now statutory law in Kenya
to obviate such circumstances as these ones.
Judicial prophesy may not be avoided when
cases as this nature show up. It is about time
Parliament clears the clutter in the statutory
expression of the in duplum rule in our
Banking Act; there is need for courageous
enactment here so that courts will apply the
rule for its full effects and extent.
Declaratory order issued that the continued holding
of the legal charge over L.R 7785/201 original
No. 7785/10/197 was unlawful, inequitable and
unconscionable. The defendant to hand over the
instrument of discharge in seven
Cases
81
Law Reform Brief

Jurisdiction of a statutory tribunal is not limited to what is expressly conferred to it by its
governing statute
Republic vs. Retirement Benefits Appeals Tribunal & 5 others Ex-Parte Kenya Airport Authority
Superannuation Scheme
High Court of Kenya at Nairobi, Judicial Review Application No. 58 of 2015
W. Korir J
November 5, 2015
Brief facts
On the 3rd March, 2015, the Applicants sought orders from the court, to quash the orders of the 1st
respondent, to prohibit the 1st respondent from hearing or entering any further proceedings in the
tribunal. The 1st Applicant was a retirement benefits scheme set up for the 2nd Applicants employees. The
scheme was registered by the 3rd Respondent and had been in operation since 1996. The 1st, 2nd and 3rd
interested parties retired on 31st December, 2005, 31st March, 2007 and 31st December, 2006 respectively.
In June, 2012, the interested parties filed a complaint with the 3rd Respondent in which they alleged that
the applicants had failed to give them annual pension increases as required by the law.
According to the applicants, the 3rd Respondents reply to the interested parties complaint was that, it had
investigated and addressed the issue in the year 2007. The interested parties nevertheless sought a review
of the 3rd Respondents position but the request was declined by the 3rd Respondent through a letter
dated 12th August, 2013. The interested parties being dissatisfied with this state of affairs proceeded to file
an appeal against the 3rd Respondents decision with the 1st Respondent seeking various judicial review
orders.
The applicants thus submitted that the jurisdiction of a statutory tribunal was limited to what was expressly
conferred to it by its governing statute. According to the applicants, section 49 of the Retirement Benefits
Act much as it provided for the jurisdiction of the 1st Respondent, the said section did not provide for the
grant of substantive relief by the 1st Respondent and as such the 1st respondent could not issue such relief.
Issues
i. Whether the 1st Respondent had jurisdiction to grant the orders of certiorari and prohibition to the
interested parties;
ii. Whether the decision of the 1st Respondent in issuing an order of certiorari was unreasonable.
Holdings pertinent to Law Reform:
1. The 2nd Respondent had no jurisdiction to grant the orders outside those expressly conferred on
it by section 49 of the Act. Whereas the effect of this decision was to render the 2nd Respondents
existence virtually purposeless, the Court could not countenance a situation where a Tribunals
powers are not circumscribed by the parent statute. To do so would be to create a monster in the
name of a statutory Tribunal. It was however hoped that the Attorney General would expeditiously
put into motion a process by which the Retirement Benefits Act, Cap 197 Laws of Kenya, could be
amended in order to expressly confer the necessary powers on the 2nd Respondent.
2. Where there were express powers donated to a Tribunal, it should necessarily be implied that the
Tribunal also had the powers to effectually exercise the expressly conferred powers. In the instant
case, the Act did not expressly confer on the 1st Respondent the jurisdiction to grant substantive
reliefs. In an appeal as opposed to a review, the powers of the appellate Tribunal should be expressly
conferred. The 1st Respondent had no jurisdiction to grant the orders outside those expressly
conferred on it by section 49 of the Act.
3. The Attorney General should relook at the Retirement Benefits Act with a view to clarifying the
appellate powers of the Retirement Benefits Appeals Tribunal [2nd Respondent].)
82
Proof of age of a victim to a sexual offence is important in the prosecution of sexual offences
Omar Nache Uche v Republic
The High Court at Marsabit, Criminal Appeal No. 11 of 2015
Kiarie Waweru Kiarie, J
November 11, 2015
Brief Facts
The appellant, was charged with an Offence of defilement and in the alternatively, with the offence of
committing an indecent act with a child. He however denied that there was any sexual intercourse between
the two. He was found guilty of the offence in the substantive charge and sentenced to serve 25 years
imprisonment. He appealed against both conviction and sentence.
Issue
Whether proof of age of a victim is crucial factor in cases of sexual offences under the Sexual
Offences Act
Holding pertinent to Law Reform:
The prosecution proved the case beyond reasonable doubt and the Court accordingly affirmed the
conviction in which the appellant was tried, convicted and sentenced to 15 years imprisonment. There was
need for a relook into the Sexual Offences Act CAP 62A and introduce a clause that would protect the male
child who may be termed as an age mate of a female minor (in spite of having attained the age of majority)
where intercourse was consensual and also in instances where the female played a leading role to initiate
the relationship.
Law Reporting
83
Failure to Comply with Procedural Requirements in the Construction of a Telecommunications Base
Transmission Mast was a Violation of the Right to a Clean and Healthy Environment
Ken Kasinga v Daniel Kiplagat Kirui & 5 others
Environment and Land Court at Nakuru, Petition No 50 of 2013
M Sila, J
November 4, 2015
Brief Facts
The 1st respondent and petitioner were neighbors. The 1st respondent entered into an agreement with the
3rd respondent to lease out his property to them at an annual rent of Kshs. 300, 000. The land was leased
out for purposes of erecting a telecommunications base transmission mast. The 3rd respondent acquired
the necessary consents and proceeded to erect the mast. However, the project irked the petitioner who
complained several times to the National Environmental and Management Authority and requested for
an Environmental Impact Assessment report for the activities on the adjacent property. NEMA responded
by informing him that he had a right to appeal against their decision to issue an Environmental Impact
Assessment License to the 3rd respondent at the National Environmental Tribunal.
The petitioner instituted a constitutional petition at the High Court claiming that his right to a clean and
healthy environment had been infringed. According to the petitioner, the respondents caused him injury
resulting from the noise at the construction site of the telecommunications base transmission mast. The
High Court found that it lacked jurisdiction to entertain the matter and transferred the matter to the
Environment and Land Court.
Issues
i. Whether the Environment and Land Court had jurisdiction over a dispute which could have been
heard at the National Environmental Tribunal in the first instance.
ii. Whether the Environment and Land Court could hear a dispute as a constitutional claim where
there were common law and statutory provisions which were applicable to the dispute.
Holding pertinent to Law Reform:
The Petitioners right to a clean and healthy environment had been infringed. Time was ripe for both NEMA
and CAK, to sit with all stakeholders and provide regulations for the setting up and the maintenance of
telecommunications base receiver stations and masts. The current lacuna in the law could not be allowed
to continue as there was potential that the same would lead to degradation of the environment as the case
84
Law Reporting

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Bench Bulletin Issue 33, April - June 2016

Judges set to retire at 70 and thats final. For now

Why should witnesses be protected?

6. The Kenya Law Organizational Quality

7. Kenya Law Showcases at the Third

10. Difference in Judicial Reasoning

12. Kenya Law Donates Furniture

14. Kenya Gazette Presidential

17. Law Reform Brief 81

Issue 33, April - June 2016

KENYA LAW REVIEW

Head of Law Reporting &

Senior Law Reporters

Publishing, Design and Layout

| Catherine Moni | Josephine Mutie |

MEMBERS OF THE COUNCIL FOR KENYA LAW

Dr. Willy M. Mutunga, D. Jur., SC, EGH

The Hon Lady Justice Lydia Achode

Mr Silvester Migwi, Ag Government Printer,

Prof Githu Muigai, SC

Members co-opted to serve in ad-hoc Advisory Capacity

Mrs Flora Mutua

Issue 33, April - June 2016

Issue 33, April - June 2016

You are free to:

The Jurisprudence of Dr Willy Mutunga: Kenyas

Kenyas Constitutional Moment

Issue 33, April

Issue 33, April - June 2016

understood well. In Speaker of the Senate v Attorney-General7 the Dr Mutunga remarked

The Jurisprudence of Chief Justice Mutunga

Issue 33, April - June 2016

enriched.53 Afterwards, in Gatirau Peter Munya v Dickson Mwenda Kithinji the Dr

Conceptualizing Public Participation

Issue 33, April - June 2016

The Incomplete Transformation of Judicial Review

Issue 33, April - June 2016

Issue 33, April - June 2016

r. Speaker Sir, Honorable Senators, I am delighted by your kind invitation to

Mr. Speaker Sir, controversies around the role of institutions within

Issue 33, April - June 2016

What they Said

Issue 33, April - June 2016

Dr. Willy Mutunga, D.JUR, SC, EGH, SEGH.

Issue 33, April - June 2016

Issue 33, April - June 2016

The Council of Kenya Law during the external launch

The former CJ giving his speech during the external launch

The former CEO Mr. Murungi giving the

The former CJ, DCJ, RHC and CEO of

The former CJ thanking the exiting member of the Council

The former CJ and the CEO of Kenya Law Mr. Terer

Issue 33, April - June 2016

What they Said

Court of Appeal Judges

The apprehension of bias is to be a reasonable one held by reasonable and right-minded

What they Said

Supreme Court Judges

High Court Judge Mbogholi

What they Said

High Court judge E

Issue 33, Feature

Issue 33, April - June 2016

Judges set to retire at 70 and thats final. For now