Bench Bulletin - Issue 19 - Kenya Law Reports

The Bench Bulletin 

Transforming Legal Information into Public Knowledge 

A Publication of The National Council for Law Reporting 

A service state corporation in the Judiciary. 

The Bench Bulletin is the definitive intelligence briefing for Kenya’s judicial officers, the law practitioner, 

managers and the business people. It is a quarterly digest of recent developments in law, particularly, case 

law, new legislation in the form of Acts of Parliament, rules and regulations, pending legislation contained in 

Bills tabled before Parliament and selected Legal Notices and Gazette Notices. 

Issue 19: April - June 2012 

Address by the Chief Justice at the Launch of the 

Judiciary Transformation Framework on 

May 31, 2012 at KICC Grounds 

Pg 77 

Pg 82 

Pg 11 ............and much more......

Kenya Law Reports Bench Bulletin 

The Hon. Dr. W.M. Mutunga, D.Jur., S.C., E.G.H. Chief Justice of the Republic of Kenya, President of 

the Supreme Court & Chairman, National Council for Law Reporting. 

The Hon Mr Justice P. K. Tunoi 

Judge of the Supreme Court 

Issue19 | April - June 2012 

Issue15: April-June 2011 

The Hon. Justice (Dr.) W.M. Mutunga, D.Jur., S.C., E.G.H 

Chief Justice, President of the Supreme Court & 

Chairman, National Council for Law Reporting. 

The Hon Lady Justice J. W. Lesiit 

Judge of the High Court 

Mrs. Gladys Boss Shollei 

Chief Registrar, Judiciary of Kenya 

Prof. J. Otieno Odek 

Dean, School of Law, University of Nairobi 

Mr. Antony Oteng’o Ombwayo 

Attorney-General’s Representative 

Mr. P. Sang 

Goverment Printer's Representative 

Mr. Evans Monari 

Law Society of Kenya 

THE NATIONAL COUNCIL FOR LAW REPORTING 

THE BOARD OF THE COUNCIL 

Ms Florence Muoti Mwangangi 

Law Society of Kenya 

Mrs. Flora Mutua, 

Snr. Management Analyst 

Directorate of Personnel Management, 

Ministry of State for Public Service 

Mr. Christopher Ombega, 

Senior Assistant Inspector General 

Inspectorate of State Corporations 

Mr. Jeremiah M. Nyegenye , 

Head, Office of Legal Counsel 

The Office of the Clerk of the Kenya 

National Assembly 

Mr. M.M. Murungi 

Editor/C.E.O 

Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy 

and comprehensiveness of the information contained in this publication, the Council makes no warranties 

or guarantees in that respect and repudiates any liability for any loss or damage that may arise from an 

inaccuracy or the omission of any information. 

1

Contents 

Regulars 

1 

3 

4 

5 

86 

89 

90 

94 

115 

NCLR Board members 

Editors Note 

Citizen Jane 

What they said 

Features 

6 

11 

16 

18 

29 

65 

69 

71 

77 

79 

82 

Departmental 

Reports 

21 

24 

33 

75 

132 

147 

153 

154 

Keynote speech for the Africa and 

International Law Conference Albany Law 

School, at 9.15 on April 13, 2012 

Address by the Chief Justice at the Launch 

of the Judiciary Transformation Framework 

on May 31, 2012 at KICC Grounds 

NCLR joins Global Forum on Law Justice 

and Development 

NCLR-KCDF Partnership: Community 

Development through Support and 

Mentorship 

Report on-E-Accessibility Workshop for 

persons with disabilities held on 10 &11th 

May, 2012 at the Laico Regency, Nairobi. 

Laws of Kenya and Editorial Departments 

attend Training on electronic publishing 

for Print. 

Legal Definition of Disability 

A Comparison between the Constitution of 

Kenya and the East African Treaty 

The National Council for Law Reporting 

partners with MRYG For CSR activities 

Parenting: How much time do you spend 

with your children? 

Talent beyond Law Reporting: Winners 

‘Uwazi football tournament, 2012’ 

Strategic planning quality 

assurance and performance 

department 

Editorial department 

Laws of Kenya depatment 

Information communication 

technology (ICT) department 

Cases 

Feature Case 

Supreme court cases 

Court of Appeal 

High Court Cases 

A compilation of summaries 

of selected cases on emerging 

Jurisprudence 

A compilation of summaries of 

selected cases on the Interpretation 

of the new constitution of Kenya 

In the East African Court of Justice 

appellate division at Arusha 

In the Constitutional Court of South 

Africa 

The Supreme Court of the United 

Kingdom 

EDITOR 

Michael Murungi 

EDITORIAL ASSISTANT 

Monica Achode 

CONTRIBUTORS 

Michael Murungi 

Esther Nyaiyaki 

Monica Achode 

Cornelius W. Lupao 

Andrew Halonyere 

Njeri Githang’a 

Emma Kinya 

Wambui Kamau 

Bench Bulletin April - June 2012 Issue 19 

Christian B. Ateka 

Nelson K. Tunoi 

Wanjala Sikuta 

Phoebe Ayaya 

Monicah Mwangi 

Brenda Orau 

Stanley Mutuma 

Yvonne Kirina 

Martin Mbui 

11 

82 

DESIGN AND LAYOUT 

Catherine Moni 

John Muriuki 

Geoffrey Andare 

PROOFREADERS 

Phoebe Ayaya 

Innocent Ngulu

Editors Note 


Our Esteemed Readers, 

First, my apologies for the delay in the release of this edition. I hope that the breadth of its 

content will compensate for that. Evidently, the legal and judicial space has been in a state 

of flux – quite expectedly so – since the promulgation of the Constitution of Kenya, 2010. 

In the wake of this new ‘constitutional dispensation’ is a lot to write about – developments 

in the transformation of the Judiciary, and of course the emerging jurisprudence from the 

interpretation and application of the new constitution. 

At the Council, we are also undertaking an editorial transformation exercise whose purpose 

has been best captured by The Hon. Justice (Dr.) W.M. Mutunga, the Chief Justice: “…[T] 

he Council is now discharging its mandate in the context of a country that has enacted a 

new Constitution and a Judiciary that is going through a phase of transformation. Its role 

in the creation of a robust, indigenous, progressive and patriotic jurisprudence cannot be 

underestimated.” 

In this edition we have featured an article by Ms. Monica Achode, who is the Team Leader 

for the Editorial Department, which has more information on the key aspects of the editorial 

transformation. The transformation is inspired by The Hon. The Chief Justice and certain 

recommendations expressed to the Council by The Hon. Justice (Prof.) JB Ojwang, Judge 

of the Supreme Court and it is informed by the advice of the Council’s Board of Directors. 

We are re-engineering the Council’s role in the nurturing of a ‘robust, patriotic and indigenous 

jurisprudence’ by effectively monitoring and reporting on judicial opinions that contribute 

to the development of jurisprudence. The editorial emphasis will not be on the hierarchical 

standing of a court but on the place of the court’s judicial opinion in the place of existing 

jurisprudence on the subject at hand. The Council will also partner with the Judiciary Training 

Institute, the Bar, the academia, civil society and other institutions in stimulating scholarly 

discourse and improving the quality and quantity of scholarly legal research material. The 

discourse will not only focus on Kenyan jurisprudence but also place that jurisprudence 

in the context of comparative international jurisprudence, not merely for the purpose of 

‘benchmarking’ against it but in order for Kenya’s emerging jurisprudence to serve as a 

‘product for export’ to other jurisdictions. 

In reclaiming ‘lost jurisprudence’ - past judicial opinions that are key to the development 

of Kenyan jurisprudence that may not have been given reporting consideration - we are 

engaging a Consulting Editor to supplement our team of Law Reporters and work with us in 

identifying, collecting and reporting these opinions. 

Finally, we will continue to avail ourselves of all the opportunities for interacting with and 

obtaining the feedback of Judges and the judiciary community at large.


C :M, Murungi. illustration: E. Obare 

4 Issue19 | April - June 2012



WHAT THEY SAID 

“More importantly, the Council is now discharging its mandate in the context of a country that 

has enacted a new Constitution and a Judiciary that is going through a phase of transformation. 

Its role in the creation of a robust, indigenous, progressive and patriotic jurisprudence cannot 

be underestimated”. 

The Hon. Justice W.M. Mutunga, D.Jur, SC, EGH, Chief Justice, President of the 

Supreme Court of Kenya & Chairman of the National Council for Law Reporting, in 

his foreword to the 2011 NCLR Annual Report - June 2012. 

“The uncontestable object of reporting court decisions is to extract the essence of juristic thought and to lay 

it out as one of the beacons for the legal path for conflict resolution, in the advancement of civilized society”. 

The Hon. Justice (Prof.) J.B. Ojwang, Judge of the Supreme Court of Kenya, in a letter making 

certain recommendations for a review of the Council's editorial policy - April 2012. 

"Some of the important principles which apply to the interpretation of a constitution are that: a court should avoid a 

construction that produces an absurd, unworkable or impracticable result; a court should find against a construction that 

creates an anomaly or otherwise produces an irrational or illogical result; and that the court should strive to avoid adopting 

a construction which is adverse to public interest, economic, social and political or otherwise." 

Court of Appeal Justice[s] EM Githinji, MK Koome, HM Okwengu, KH Rawal & DK Maraga JJ A, in Centre 

for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012]eKLR 

The Hon. Mr Justice Justice 

Erastus M Githinji 

The Hon. Lady Justice 

Martha Koome 


Hannah M Okwengu 


K. H. Rawal 

The Hon. Mr Justice David K 

Maraga 

5

Feature 

(*These remarks were also submitted in the 

United States' House of Representatives through 

Congressman Steve Cohen of Tennessee and are 

part of the Congressional Record for April 25 2012 

pp. E652-E654) 

Fellow Africans and our Friends 

I 

thank the Albany Law School and Professor 

James Gathii for inviting me to this conference. I 

am delighted to be among so many practitioners 

and scholars of international law who share 

a commitment to Africa. There is a very special 

reason for me to be delivering this address today. 

April 13th was the late President -- Mwalimu– Julius 

Nyerere’s birthday. He would have been 88 today. 

Nyerere was a special and inspirational leader – he 

believed in the solidarity of the African people as 

well as in human dignity. 

Nyerere was interested in both constitutional law 

and international law. There is a picture of him as a 

student at Edinburgh holding a copy of Dicey’s Law 

of the Constitution. His interest was both scholarly 

and practical. It fell to him to develop a constitution 

suitable for his country—where his commitment to 

a one party state, although intended to increase 

democracy, must have come sorely in conflict with 

the Diceyan preference for the rule of law. As far as 

international law goes, he was greatly concerned 

to promote African unity, redefine the relationship 

between Africa (indeed the whole of the South) and 

the West—as well as deal with Tanzania’s colonial 

legacy, including that relating to treaty succession. 

He ruled out automatic succession, so the newly 

independent country was not burdened with unfair 

and unequal obligations. 

KEYNOTE SPEECH FOR THE 

AFRICA AND INTERNATIONAL 

LAW CONFERENCE ALBANY 

LAW SCHOOL, NEW YORK,USA 

AT 9.15 ON APRIL 13, 2012 

By: The Hon. Justice W.M. Mutunga, D.Jur, SC, EGH, 

Chief Justice, President of the Supreme Court of Kenya 

I also felt honored as I read the biographies of the 

other participants in this conference: they read like a 

“Who’s Who?”of international law and Africa. One 

only has to look at the conference program to see 

the broad depth of international law work relating 

to Africa. The papers submitted are impressive. I am 

looking forward to the deliberations here and the 

opportunity to get to know you and to talk about our 

common commitments and concern about Africa. 

My challenge to you always is to continue making 

transformative contributions in your work on Africa 

and international law. This will at times require those 

of you who are based outside Africa to return home 

and help contribute to the growing use and practice 

of international law in Africa. 

My focus this morning is the new Constitution of Kenya 

and the role of the judiciary within it. First I want to 

tell you about that constitution and the vision that it 

espouses. We are now engaged in the challenging 

but difficult task of implementation in which a key role 

has been assigned to the judiciary. The judiciary has 

already made a good start on a progressive, indeed 

in some respects, radical jurisprudence—and now 

enjoys great public support. 

The Constitution is one of the most progressive in 

the world. It was overwhelmingly approved in a 

referendum as a result of the most consultative and 

participatory processes of Constitution making 

anywhere in the world. The long period before 

the Constitution was upheld in the referendum was 

characterized not only by delays and deadlock, but 

by a series of governance challenges familiar in many 

countries of Africa: 

• An absence of a political culture of obedience 



to and respect for rules, and a cavalier 

treatment, even of constitutional texts; 

• Failed systems including the electoral 

system; 

• Failed institutions including a corrupt 

judiciary and police force; 

• A population tortured and inhibited from 

fulfilling its full potential; 

• Exclusion of women and many groups from 

full participation in society; 

• Gross manipulation of ethnic, racial, 

regional, religious, generational, clan, 

class, and occupational divisions by 

politicians for their personal ends; 

• Extreme inequality, great poverty and 

failure of even development; 

• An institutional culture of timidity, even 

where no threats existed; 

• A society and politics characterized by 

violence, fragility and instability; and 

• An international community that excelled 

in perfidy and double standards and that 

could not be relied upon to consistently 

support progressive constitutional reforms. 

The result of the above has been a massive culture 

and practice of impunity and the marginalization of 

the constitution. The Constitution, which was, as my 

old teacher, and one of the leading constitutional 

scholars in Africa and the world, Yash Ghai is fond 

of saying, “forced upon the rulers by the ruled.” 

Here Yash’s reference to rulers means both internal 

and external rulers – for Ghai, the Constitution has 

to be written to address these ills. 

The 2010 Constitution of Kenya seeks to incorporate 

such rules in a number of ways. For example, it 

constantly emphasizes the sovereignty of the 

people, and is full of people oriented values. So 

Article 10 enumerates the national values and 

principles of governance that bind all state organs 

as well as everyone who applies or interprets the 

Constitution or any law or performs any public duty: 

• patriotism, national unity, sharing and 

devolution of power, the rule of law, 

democracy and participation of the people; 

• human dignity, equity, social justice, 

inclusiveness, equality, human rights, 

non-discrimination and protection of the 

marginalized; 

• good governance, integrity, transparency 


and accountability; and 

• sustainable development. 

I had argued before its promulgation that our 

constitution should establish a human rights state and 

society whose vision is radical social democracy. It is 

my view that this has now happened. It is, therefore, 

not surprising that there is considerable internal and 

external resistance to the constitution from people who 

have a vested interest in bad old habits—exploitation, 

oppression, tribalism, nepotism and corruption. This 

increases the responsibility of the judiciary to ensure 

the enforcement of the constitution, as indeed is 

envisaged in Art. 20(3), which requires that a court 

develops the law where the Bill of Rights fails to give 

effect to a right or fundamental freedom. 

The extent of my personal pride, sense of responsibility, 

and hope, as head of the judiciary, can perhaps be 

judged from the fact that I once wrote a book about 

efforts for a new Constitution, in the 1990s, in which 

I said 

“ 

The process of making the new 

constitution, the credibility of the final 

document and whether the people would be 

convinced that they own the new constitution 

are all issues at the root of the problem 

of constitution making. It is a fact that the 

judiciary has not fully implemented the Bill 

of Rights to protect the rights of the people 

against encroachment by the executive and 

state apparatuses. The overhauling of the 

judiciary and judicial system is also at the 

root of these issues”. 

I still believe in the key importance of the judiciary. 

And the Constitution does give it a central role. Article 

259 requires that the Constitution be interpreted in a 

way that promotes its purposes, values and principles, 

an obligation placed specifically upon courts and 

tribunals by Article 159(2) (e). And it provides a 

practical basis for this central role of the courts by its 

provisions designed to make them truly accessible, 

including through the institutionalization of public 

interest litigation. It destroys old concepts of standing 

by providing that anyone may bring an action to 

protect rights or enforce the constitution, even if they 

have no interest other than that of concerned citizen. 

It prohibits the charging of court fees for actions to 

enforce the Bill of Rights. It endorses the practice that 

the Indian Courts call “epistolary jurisdiction” – the 

possibility of actions being commenced by informal 

documentation. And while requiring the rules of 

natural justice to be observed, it denies the possibility 

of “unnatural justice” in the form of procedural 

technicalities standing in the way of justice. Much 

of this comes ultimately from the jurisprudence of the 

7


Supreme Court of India, some by way of the South 

African Constitution. 

The judiciary was one of the most criticized of the 

institutions of the old order. The legacy of the one 

party state was still discernible in judicial pandering 

to executive wishes. And I do not mean merely the 

sort of deference to the legislature that lawyers may 

legitimately argue about, but judges who would 

adjourn matters before them to take instructions 

from State House. The judiciary was one aspect 

of the machinery of impunity. Simple financial 

corruption was also rife. And, if you are auctioning 

your judgment to the highest bidder, it is probably 

counter-productive to exhibit much legal skill! For 

many years law reports were not up to date, and 

legal literature was all but non-existent. 

Radical measures were needed. And they are 

found firstly in a process of subjecting all serving 

judges and magistrates to an examination of their 

suitability to remain in office. This process is under 

way, in the hands of an independent body, a 

process with which I have nothing to do, and on 

which it is of course improper for me to comment. 

Secondly, the appointment system was revamped. 

Now judges are interviewed and nominated by a 

Judicial Service Commission truly independent of 

government. The President is to have no discretion 

but must act on the Commission’s recommendation. 

The Chief Justice and Deputy must be approved 

by Parliament. I was myself interviewed by the 

parliamentary committee, on live television, and 

questioned about, among other things, my finances, 

my attitudes to certain sensitive issues, my sexuality 

and my earring! 

The judiciary has embarked upon many 

organizational changes intended to realize the 

Constitution’s vision. These include the recruitment 

of judges and magistrates and professional 

administrative staff. Recently we appointed 26 

judges to the High Court (that is the court of first 

instance of unlimited jurisdiction) – half of them 

women. The Court of Appeal now has 7 more 

judges, 5 of them women. We will recruit 160 

Magistrates before the end of May, 2012. We 

have delinked judicial functions from administrative 

functions, boldly set out to stamp out corruption 

in the judiciary while speeding up reforms in 

computerization and other electronic justice 

measures. We have achieved some significant 

progress in reducing the backlog of cases and 

changing backward judicial culture. The 12 clusters 

that reflect these reforms, including the creation of 

progressive, indigenous and patriotic jurisprudence 

that I touch on later are contained in a write-up 

named the Judicial Transformation Framework that 

I will launch in May, 2012. 

The constitution also provides for the decentralization 

and democratization of the judiciary. Unlike previous 

years when the old constitution made the Chief Justice 

a judicial autocrat and monarch, under the new 

constitution I do not control everything from the top. 

I have already set up a management and leadership 

committee that is representative and participatory. 

Organization is of course important, even essential, 

to make the courts accessible, to end the interminable 

delays, the strain on the pockets and the patience, 

and to end impunity and, as far as the courts can, 

injustice. But I want briefly to emphasize something 

else. 

I preside over the Supreme Court. As I understand the 

reasoning of the Constitution makers when creating 

this new court, apart from the desire to reintroduce 

the possibility of a second appeal, was similar to 

that that motivated the drafters of the South African 

Constitution when they created the Constitutional 

Court: to have at the apex of the system a court 

that would be respected, was committed to the 

Constitution and could set a new standard, and a 

new tone. In my view, one of the most important 

tasks that court will perform will be as a source of a 

new, highly competent and indigenous jurisprudence. 

I link this last adjective to the Constitution’s value of 

patriotism. Patriotism (when not being abused as the 

“last refuge of the scoundrel” in Samuel Johnson’s 

words) requires putting love of country above love 

of self. For a judge it does not mean putting country 

above justice. I conceive that it requires the judge to 

develop the law, for, as we all know, in the common 

law system that is what judges do, in a way that 

responds to the needs of the people, and to the 

national interest. I call this patriotic and indigenous 

jurisprudence. Above all, it requires a commitment to 

the Constitution and to the achievement of its values 

and vision. 

But don’t get me wrong: by “patriotic and indigenous” 

I do not mean insular and inward looking. The values 

of the Kenyan Constitution are anything but that. We 

need to learn from other countries. And we need to 

learn from scholars like this assembled company. We 

intend to build up a network of interested and highly 

qualified academics who share our vision. I hope 

that some of you here will form part of that network. 

My concern, when I emphasize “indigenous” is 

simply that we should grow our jurisprudence out 

of our own needs, without unthinking deference 

to that of other jurisdictions and courts, however, 

distinguished. The Kenyan judiciary has, therefore, 

a great opportunity to develop a robust, indigenous, 

patriotic and progressive jurisprudence that will give 

the country direction in its democratic development. 

This transformative mission is a duty to all judicial 



officers. They have all undertaken a constitutional 

obligation to undertake it and I have challenged 

them to make a personal obligation to help 

accomplish it. 

Former Justice Krishna Iyer of the Indian Supreme 

Court expressed the same ambition, in his 

inimitable style: 

Jurisprudence must match jurisdiction and 

jurisdiction must broaden to meet the challenges 

of the masses hungry for justice after a long night of 

feudal-colonial injustice….The rule of law must run 

close to the rule of life and the court, to be authentic, 

must use native jural genius, people-oriented 

legal theory and radical remedial methodology 

regardless of Oxbridge orthodoxy, elitist petulance 

and feudal hubris. 

Far from being inward looking, it would be my 

hope that we could learn from, and even emulate, 

distinguished courts in other countries, including, 

for example, the Supreme Court of India and the 

South African Constitutional Court. The Kenyan 

courts do not need to be as bold as the Indian 

apex court: many of its procedural innovations in 

public interest litigation are already enshrined in 

our constitution. And I would argue that the types 

of jurisprudence that that court has been so creative 

in developing are already part of our constitution. 

Protection of the environment, recognition of rights 

of communities especially in land, affirmative 

action, rights of persons with disability, rights to 

education, health and food—and the redress of 

past injustices-- are engraved in our constitutional 

text. 

What the first President of the South African 

Constitutional Court, Arthur Chaskalson, said of 

their constitution could just as well be said of ours: 

We live in a society in which there are great 

disparities in wealth. Millions of people are living 

in deplorable conditions and in great poverty. 

There is a high level of unemployment, inadequate 

social security, and many do not have access to 

clean water or to adequate health services. These 

conditions already existed when the Constitution 

was adopted and a commitment to address them, 

and to transform our society into one in which there 

will be human dignity, freedom and equality, lies at 

the heart of our new constitutional order. 

For these reasons, including that our Constitution is 

couched often in language similar to that of South 

Africa, I anticipate that we shall learn a great deal 

from them, though always, as I say, suiting the 

decisions to our own realities. 

Upendra Baxi wrote, of Public Interest Litigation 


(PIL) , 

The Supreme Court of India is at long last 

becoming…the Supreme Court for Indians. For 

too long the apex court had become “an arena of 

legal quibbling for men with long purses”. Now 

increasingly, the court is being identified by the 

Justices as well as people as “the last resort of the 

oppressed and bewildered”. 

I would hope that the Supreme Court of my country 

will be the Supreme Court for Kenyans where the 

oppressed and bewildered will find justice. 

But it is not enough for the Supreme Court to shine 

in jurisprudential terms. Most cases will never 

get beyond the High Court. The corollary of the 

decision to create a new, final, court of general, not 

specifically constitutional jurisdiction, was the desire 

that courts at all levels could confront constitutional 

issues and deal with them in a way that fulfills 

the constitutional dream. We are hoping to raise 

standards of judging and standards of advocacy, 

including through the work of the Judicial Training 

Institute, and by adopting frequent use of written 

briefs, rather than just skeleton oral arguments. 

The development of a new jurisprudence must be 

a collaborative effort between judges at all levels, 

and practicing and academic lawyers. 

The internet is making access to precedents much 

easier, and there is an improvement in the law 

reporting situation. There is even some sign of a 

resurgence of interest in writing about Kenyan law. 

Do add your bit! 

If I may turn now to the focus of concern of most 

of you: international law. The Constitution took 

a bold step and provides that “The general rules 

of international law shall form part of the law of 

Kenya” and “Any treaty of convention ratified by 

Kenya shall form part of the law of Kenya under this 

Constitution”. Thus Kenya has become a monist 

state rather than a dualist one! 

The implications of this will have to be worked out 

over time, as cases come before the courts. I would 

not have you imagine that Kenyan judges have 

ignored international law. I know first-hand from 

Kenya’s supercharged civil society that constantly 

makes claims of international law to hold the 

government accountable, exemplifies the growing 

importance of international law in our courts. The 

courts have often applied the familiar common 

law approach, and indeed quoted the Bangalore 

Principles on Domestic Application of International 

Human Rights Norms, including: 

7. It is within the proper nature of the judicial 

process and well-established judicial 

9


functions for national courts to have regard 

to international obligations which a country 

undertakes– whether or not they have 

been incorporated into domestic law- for 

the purpose of removing ambiguity or 

uncertainty form, national constitutions, 

legislation or common law. 

8. However, where national law is clear 

and inconsistent with the international 

obligations of the State concerned in 

common law countries the national court 

is obliged to give effect to national law. 

In such cases the court should draw 

such inconsistency to the attention of the 

appropriate authorities since the supremacy 

of national law in no way mitigates a 

breach of an international legal obligation, 

which is undertaken by a country. 

Now, however, the courts have greater freedom. 

Many issues will have to be resolved: what 

precisely are the “The general rules of international 

law”?; what is the effect of the direct application of 

a treaty of which the language is not self-executing, 

such as “States Parties shall take all appropriate 

measures” rather than “everyone has the right”? 

And what is the effect of a treaty provision that 

does not fill a gap in domestic law but inescapably 

conflicts with it? And what if the general rules of 

international law are exploitative, oppressive and 

subvert the radical social democratic vision of our 

constitution? All these questions clearly identify 

where the scholarship of people like yourselves, 

will be much appreciated by both bar and bench. 

I should also like to quote another Bangalore 

Principle, relevant to my theme of indigenous 

jurisprudence: 

6. While it is desirable for the norms contained 

in the international human rights instruments 

to be still more widely recognized and 

applied by national courts, this process 

must take fully into account local laws, 

traditions, circumstances and needs. 

How can we achieve this marriage consistent with 

international law obligations? 

Let me also emphasize that Kenya does not intend 

to be a “user” of international law, but a producer, 

shaper and developer of it as well. This is the link 

to the Nyerere Doctrine where I began. Nyerere 

refused to accede to existing international rules 

on treaty succession and came up with his own 

innovation. Kenyan judiciary will not just import 

all international legal rules including those which 

are disempowering to the South as a political and 

economic category. Instead, as I pointed above in 

our strategy to create an indigenous, patriotic and 

progressive jurisprudence, the Kenyan judiciary 

will use our new constitution to begin a dialogue 

with international legal communities to nudge the 

jurisprudence of social justice in a progressive 

direction. In particular, we have a chance to 

develop jurisprudence on economic and social 

rights in ways that are unique to our social and 

economic development. We intend, therefore, to 

be able to export progressive jurisprudence to the 

rest of the world. 

Finally, let me not give the impression that I am 

negative about the work of my judicial colleagues. 

There are many competent and committed members 

of the bench. Even under the former constitution with 

its inadequate Bill of Rights (more limitations than 

rights!) creative judges were doing their best. And 

now many of them, new and longer established, 

are responding with enthusiasm to the challenges 

and opportunities of the new Constitution. I cannot 

really comment on individual cases – none has come 

before us yet, and some will undoubtedly do so. But I 

personally feel encouraged by signs of willingness to 

draw on international instruments, not only treaties, 

and by reliance on the values including those of Article 

10 – as Article 259 requires. 

As we say in Kenya in Kiswahili – Asante Sana. 

We also say Shukrani, shukran and shukria. 

Thank you very much. 

There are many competent and committed members of 

the bench. Even under the former constitution with its 

inadequate Bill of Rights (more limitations than rights!) 

creative judges were doing their best. And now many 

of them, new and longer established, are responding 

with enthusiasm to the challenges and opportunities of 

the new Constitution. 

The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President, 

Supreme Court of Kenya 


Feature 

ADDRESS BY THE CHIEF JUSTICE AT THE LAUNCH OF THE 

JUDICIARY TRANSFORMATION FRAMEWORK ON MAY 31, 

2012 AT KICC GROUNDS 

By: The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President, Supreme Court of Kenya 

Ladies and Gentlemen, Country Women and 

Men, Friends and Colleagues, 

I feel privileged to speak to you today about 

the distance we have covered and the journey 

upon which we wish to embark in reclaiming the 

Judiciary for the Kenyan public. In my Progress 

Report after 120 days in office, I painted a broad 

picture of the Judiciary we found. The details of 

that picture are much more engaging and warrant 

revisiting, even if only briefly. And in launching the 

Judiciary Transformation 

Framework today, I 

have chosen the eve of 

Madaraka Day, a day 

that marks our transition 

to self- rule as a signal to 

own our determination 

to create an independent 

and effective Judiciary. 

An oft-repeated criticism 

of the Judiciary has 

been over how it 

has accumulated an 

impossible case backlog. 

Case delays have become 

the badge of inefficiency 

and ineffectiveness the 

Judiciary wears as its 

mark of distinction. Case 

backlogs constitute the 

single most important 

source of public 

frustration with the 

Judiciary. They open a door for fugitives from 

justice to seek refuge in the courts by turning them 

into a playground for the rich and corrupt. 

Inefficiency manufactures artificial shortages of 

justice, manures the soils in which corruption is 

planted and manicures a culture of ineptitude. 

This environment distorted values and perverted 


the cause of justice. It created a vicious cycle 

where poor service, inadequate staff, graft and 

unfavourable working conditions fed on each other 

to create the crisis of confidence in whose grip the 

Judiciary found itself. 

We sought innovative ways that would yield 

the quickest benefits for the Kenyan public. We 

adopted the rapid results approach to jumpstart 

organisational change and increase the capacity 

of staff to implement programmes. Confronting the 

issue of case backlogs in the 

Court of Appeal as well as 

in five divisions of the High 

Court has generated results 

as well as important lessons 

that inform the changes 

we wish to undertake in 

moulding the new Judiciary. 

The Court of Appeal was 

an important starting point 

in this journey towards 

transformation. The average 

waiting period for a case 

in the Court of Appeal was 

six years. With the backlog 

of 3,800 cases, with each 

requiring three judges at 

the same time at current 

capacity levels, the Court of 

Appeal presented special 

logistical challenges. There 

appeared to be no way to 

conclude all the cases in 

under three years -- even if there were to be a 

sitting every day. Still, there are many roadblocks 

to justice in the unique Court of Appeal Rules, the 

special manner in which records of appeal must be 

prepared, and the low number of judges. 

These challenges notwithstanding, the Court of 

Appeal judges voluntarily adjusted their work 

11


schedules and created training manuals for 

preparing records of appeal. In 100 days, the 

Court of Appeal had reduced its case backlog by 

451 cases. The Court continues to encourage those 

who take cases before it to file written submissions 

as a time-saving measure, and is reviewing its 

rules to place greater emphasis on efficiency and 

concluding matters with dispatch. 

The Judiciary is transforming. 

At the High Court, similar initiatives were rolled 

out with encouraging results. Although the case 

backlog in the Environment and Land Division was 

5,000, a baseline survey established that 16,907 

new cases had been filed between the year 2000 

and 2011. Within 100 days, this division of the 

High Court had reduced its backlog by 3,419 

cases. In the Commercial and Admiralty division, 

where a baseline survey surfaced 29,000 cases, 

a whopping 27,000 cases were removed from the 

backlog: Many cases consisted only of files that 

had been opened, with no further action. They 

had been floating around the courts for years in 

the guise of backlog. 

Similar initiatives have been launched in the 

Constitutional, Human Rights and Judicial Review, 

the Criminal and the Family divisions. Out of 

the 58,800 cases captured as backlog in these 

courts, 30,670 were disposed of in just 100 days. 

I salute the judges and staff in these courts for 

demonstrating what is possible even under difficult 

circumstances. 

The Judiciary is already transforming. 

The lessons from this initiative, as from many others 

like it, are numerous. In many instances, the cases 

were greater in number than had previously been 

thought, and in some instances, far less. This 

speaks to the importance of court records and 

their management. Where the records storage, 

management and retrieval system is weak or nonexistent, 

the sagacity of a judge or magistrate 

alone can be woefully inadequate in preventing a 

miscarriage of justice. 

Some of the archives and exhibits stores around the 

country had fallen into such neglect as to become 

the habitations for snakes and rodents. Termites 

had developed a literal taste for the delicacy of 

the court file, which they would devour without a 

thought on the details contained therein. In several 

instances, some staff, acting on their own initiative, 

have created accessible filing and storage systems 

that facilitate the easy retrieval of records. We 

continue to encourage these efforts as we tap into 

the reservoir of creativity and energy that already 

abounds in the Judiciary. Already, the Judiciary is 

transforming. 

Concomitant with these rapid results approaches 

have been other emergency interventions to deal 

with roadblocks the public encounters in the quest for 

justice. The Office of the Judiciary Ombudsperson, 

set up to receive and investigate complaints against 

judicial officers by the public, and by the staff 

against each other or their employer, has opened 

a great avenue for contact and interaction. With 

the Ombudsperson’s office now peopled with 

liaison officers from court stations across the country 

and the establishment of an online and short text 

message service through the number 5834, I am 

confident that responses to complaints will be 

faster, better, more transparent and cost-effective. 

This office will be the beachhead of the strategy to 

reduce the citizens’ alienation from the Judiciary 

and demonstrate that the institution is open and 

available for all those who seek its help. 

Across the board, the Judiciary is making 

heavy investments in information communication 

technology to improve service delivery, increase 

efficiency, lower the transactional cost of justice and 

modernise the Judiciary. It is one of the platforms 

on which we continue to encourage public 

participation. A recent, remarkable outcome of this 

approach was the crowd sourcing of designs for the 

prototype court. Besides the many brilliant designs 

entered in the competition, whose winners were 

unveiled and awarded this week, Kenyans spoke 

candidly about the discomforts they suffer when 

they use the present court infrastructure – from lack 

of toilets to the absence of separate holding cells for 

men and women. Inconveniences around paying 

court fines and fees, and the deficit of compassion 

in the manner courts treat people are some of the 

other observations the public has voiced. 

Aware that happy staff make happy clients, we have 

undertaken several measures within the Judiciary 

to professionalise the work environment. A revised 

code of conduct and ethics is being finalized, 

as well as a sexual harassment policy whose 

enforcement are a matter of priority. Staff are being 

trained and sensitized on their implementation. We 

have undertaken nepotism and ethnicity audits, as 

well as a disability survey among Judiciary staff as 

first steps towards eliminating artificial barriers to 

career progression and creating a safe, rewarding 

work environment. 

Additionally, we have sought to give every member 

of staff the tools they need to perform their duties. 

We have also begun to improve the compensation 

packages for the staff working in the Judiciary. We 

embrace training and continuous learning as the 



anvil upon which we sharpen our professionalism 

and prepare us for the challenges the environment 

will throw at us. 

In return for the heavy investment the public is 

being required to make to secure the comfort of 

Judiciary staff, they must obtain value for money 

in the services they receive. That is why I remind 

my colleagues that no one has a title deed to a job 

in the Judiciary. 

Talking of confidence, technocratic reforms alone 

are not sufficient to win public confidence. They 

may produce results, but they are not sufficient 

to deliver fully on the promise the Constitution 

makes to Kenyans. They are probably reactive 

to situations that have undermined the Judiciary 

in the past but do not speak to the totality of our 

constitutional mandate. The face of justice in Kenya 

has remained forbidding and unapproachable 

because the Judiciary has largely been bereft 

of compassion, disinterested in the daily lives of 

ordinary people and manifestly indifferent in the 

name of maintaining neutrality. 

The Constitution does not require the Judiciary to 

merely clear case backlogs, eliminate the problem 

of lost files and computerise its operations for 

greater efficiency – important as these are. It 

demands a cultural shift to enable the Judiciary to 

lead the transformation of the Kenyan society to 

bring it in line with national values. 

The Judiciary will only lead this transformation by 

interpreting and defending the Constitution, but it 

can only do so by first transforming itself. 

This transformation, therefore, aims to ultimately 

reconstruct the Kenyan society. That is why reform 

alone would not be sufficient. The Judiciary is 

transforming because the Constitution requires it to. 

And this is how we intend to answer the command 

of the Constitution. 

As the engine of societal transformation, the 

Judiciary is required to adopt a culture of service 

that is people-centred. We must create an 

environment that supports the delivery of justice, 

upholds the rights of the Kenyan people and 

promotes national values. We must recapture the 

public imagination, not through outdated rituals 

and posture, but by evoking a common appeal. 

Drawing on the lessons of the last elections, we 

have established a Judiciary Working Committee 

on Election Preparedness to draw up a curriculum 

that will prepare judicial officers to try election 

offences and resolve election disputes. 

The Judiciary Transformation Framework that we 

launch today will be carried out in line with four 


pillars: focusing on people outside the institution; 

focusing on people within the institution, providing 

the resources and infrastructure required, and 

employing information communication technology 

across the board. 

In order to give structure to the numerous initiatives 

we are undertaking, and create coherence among 

them, I am happy to unveil the following 10-point 

action plan for transforming the Judiciary: 

Access to and expeditious delivery of justice: 

Justice is not the privilege of a few. We seek to 

expand access to the expeditious delivery of 

justice for all Kenyans. Every court shall have a 

customer care desk and a court counsel to provide 

information about the procedures one’s needs to 

follow, especially in cases where one would like 

to represent oneself. Court documents will be 

simplified. Our justice system will give due regard 

to traditional mechanisms of dispute resolution, as 

far as the constitution allows. There will be a High 

Court in every county and a magistrate’s court in 

every district and decentralize the Court of Appeal. 

We shall increase the number of mobile courts, and 

ensure that they work. Ultimately, our performance 

will be weighed on the scales of humanity and 

democracy. These commitments will be published 

in a Litigants’ Charter, which will be our contract 

with the Kenyan people. 

Public participation and engagement: We will 

never forget who the boss is. We shall explain 

ourselves simply and coherently even as we seek 

the views of the public in undertaking our various 

activities. We shall listen keenly, not just to satisfy 

the letter of the Constitution, but also to respond 

appropriately. For it is not our intention to talk at the 

Kenyan public, but rather to begin a conversation 

with them. The Office of the Ombudsperson will be 

strengthened and supported through technology to 

be responsive, effective and efficient at all times. 

We shall open dialogue with students and the 

public so that people know what we do. 

Stakeholder engagement: We take our 

responsibilities in the justice chain seriously 

and encourage our partners to do likewise. The 

independence of the Judiciary is complementary 

to our interdependence with others working within 

the justice system. We shall lead the National 

Council on the Administration of Justice in 

unlocking problems that hinder our work, just as 

we will collaborate with the Executive, independent 

commissions and other actors. We shall always 

defend our independence as a separate arm of 

government is guided by the national values of 

patriotism and national unity in helping the other 

arms of government to realize a new Kenya. 

13


Philosophy and culture: We shall evolve a new 

philosophy and culture that recognises the people 

of Kenya as the source of judicial authority. We 

pledge to offer imaginative leadership on law, 

accountable service with integrity, openness, and 

an orientation towards delivering results and ethical 

conduct. 

Leadership and management: People are our 

most critical asset. That is why we are adopting 

professionalism in leading and managing this 

critical resource. We shall equip our staff with 

skills, motivate them to perform, reward them 

fairly and create opportunities for their personal 

and professional growth. We shall match staff to 

work, skills to career progression, and additionally 

set up mortgage, 

medical and loan 

facilities. Policies 

on transfer as 

well as training 

and scholarships 

will be designed 

to make working 

in the Judiciary 

a competitive 

career choice. 

Our management 

style will be 

participatory and 

representative of 

all sectors of the 

Judiciary. 

Organizational 

structure: We 

will simplify the 

way the Judiciary 

is organised in 

order to clarify 

reporting lines 

and create clear 

accountabilities 

in order to fasttrack 

decision 

making. Our 

organisational 

design will be 

devolved to 

encourage discipline and reward performance. 

There shall also be a court inspectorate unit. Human 

resource and finance functions will be devolved to 

17 regions around the country. 

Growing jurisprudence and judicial practice: 

Training, research and partnerships will be at 

the heart of our efforts to enable judges and 

magistrates to develop the law and its application 

in order to bring it to par with practices around 

the world. We shall embrace continuous learning, 

mentoring and peer review in order to create new 

thinking about the law and how it is applied. 

Physical infrastructure: We shall have courts that 

are friendly, accessible and have the required 

facilities. We have begun the process of creating 

a model court from the designs received from a 

recent competition. Once the public makes further 

contributions to these designs, they will be turned 

into a model design to be used in building standard 

courts. We shall also have an infrastructure 

development master plan to guide development, 

and an inspectorate department. 

Financial resources. We shall get the Judiciary 

Unveiling of the Wanjiku statue at the Launch of the 

Judiciary Transformation Framework on May 31, 2012 

at KICC 

Fund working in order to secure our financial 

autonomy, but we shall also embrace budget for 

results, manage our finances responsibly and be 

accountable at all times. Although some of the 

Judiciary’s activities are currently supported by 

development partners, the public must eventually 

pay for it in order to own it and demand the 

requisite accountability of it. 

ICT as an enabler: We shall harness ICT to improve 

the administration of justice and right across 



all the key result areas. We undertake to deploy 

electronic case management, integrated document 

management and audio-visual recording to cut back 

on delays and other opportunities to frustrate the 

search for justice. 

This blueprint encourages every court station to 

innovate. It allows the creativity of every Judiciary 

official to show. With it, we are creating a structure 

that encourages resourcefulness and enables it to 

thrive. Unlike other reports, plans and frameworks, 

the Judiciary Transformation Framework will not 

just be a document. It is a roadmap for action. 

That is why I have created a full-time Judiciary 

Transformation Secretariat within my office to drive 

its implementation. The person I have picked to lead 

the Judiciary Transformation Secretariat is highly 

talented and has shown a remarkable sense of 

commitment to serve by leaving a tenured position 

as professor at one of the foremost universities in 

the world to take up a position as a judge. Justice 

Professor Joel Ngugi, who has been a critical part of 

implementing the pilot transformation programme at 

the Machakos Law Courts, brings invaluable insights 

into how each station can make this framework a 

living reality. 

All citizens must be reminded that this is their 

Judiciary. They pay for it, and it must work for them. 

This Judiciary Transformation Framework is their 

tool for holding each of us, at every level of the 

Judiciary, to account. Civil Society has a special 

role as our partners in promoting this framework as 

the new template for how the Judiciary will work. As 

stated before, we regard the co-ordinate branches 

of government as interdependent and look forward 

to a healthy relationship as we seek that society the 

Constitution commands us to build. 

We require more scrutiny from the media – not just 

here in Nairobi, but around the country, so that it 

can never be said we had a good plan that we 

failed to implement. 

Finally, for those who may be inclined to resist this 

Judiciary Transformation Framework, I would say 

this to you: the train has already left the station. 

The forces against change have no alternative 


but to obey the Constitution -- unless they want to 

overthrow it. This I am certain of: the old order 

is dead. What is uncertain is how expensive the 

forces of resistance will make the funeral. 

Those who may think focusing on an individual can 

halt or derail this transformation have not made the 

necessary mental shift. There is a critical number 

of Kenyans in the Judiciary who share this vision 

for transformation. 

They would do well to note that the office of 

the Chief Justice is not a transmission station for 

instructions from any quarter – the Executive, the 

legislature, civil society, capital or any organised 

interest. I do not tell judges what to decide and no 

Kenyan, however low or high, should think that 

they can ask me to do so. I have not done it and I 

will not do it. Ultimately, our aim is not to defeat or 

humiliate anyone. It is only to deliver to Kenyans 

what is promised to them in the Constitution. 

And to my colleagues in the Judiciary, I wish to 

say this: The journey of an earnest transformation 

of the entire Judiciary begins today. It is a cause 

long pre-determined by the Constitution and high 

expectations and on which we have no choice. 

You owe it to yourselves to create an institution of 

pride – make the Judiciary the most prestigious, 

attractive, and effective arm of government. I am 

sure that a great deal of professional satisfaction 

is to be derived from working for an institution of 

distinction and not one that is the object of constant 

public scorn and ridicule. 

As the Chief Justice and head of this institution, I 

will do my part to help us realize our transformation 

objectives. The burden of history requires me 

to provide leadership in the creation of a new 

institution. It is a burden I have taken up with 

pleasure and will pursue with uttermost conviction. 

No decision will be too tough for me to make if that 

is the price we have to pay to meet the aspirations 

of the Kenyan people. The time for testing is past. 

Now is the time for results. We must all transform 

or perish. 

Thank you. 

And to my colleagues in the Judiciary, I wish to say this: The 

journey of an earnest transformation of the entire Judiciary 

begins today. It is a cause long pre-determined by the 

Constitution and high expectations and on which we have 

no choice. You owe it to yourselves to create an institution of 

pride – make the Judiciary the most prestigious, attractive, 

and effective arm of government. 

The Hon. Dr. Willy Mutunga, D. Jur., SC, EGH Chief Justice/President, 


15

Feature 

The National Council for Law Reporting has 

joined the Global Forum for Law, Justice 

and Development (GFLJD) – www.bbi.syr. 

edu/gfljd/ 

Mr. Michael M. Murungi (third from left), the CEO/Editor of the National Council 

for Law Reporting, with a delegation from the World Bank’s Legal Vice Presidency 

led by Mr. Hassane Cisse, Deputy General Counsel, Knowledge and Research 

(second left); Ms. Nightingale Rukuba-Ngaiza, Senior Counsel (extreme left) and 

Mr. Steven Mukaindo, Counsel (extreme right), when the delegation visited the 

Council in March 2012 and invited the Council to join the Global Forum on Law, 

Justice and Development. 

The GFLJD seeks to: 

- Promote a better understanding of the role 

of law and justice and; 

- Strengthen and better integrate legal and 

NCLR JOINS GLOBAL FORUM 

ON LAW JUSTICE AND 

DEVELOPMENT 

By: Michael Murungi,CEO/Editor 

judicial institutions in the development process, 

through selected capacity building initiatives 

and an open repository of knowledge. 

Rationale: Across the globe, 

isolated spheres of legal 

excellence exist that are 

advancing civic, economic, 

and social development 

outcomes, but their advances 

are not sufficiently translated 

or available broadly for 

replication. In particular, 

development experts are 

not currently able to directly 

and easily access and assess 

international research, policy, 

and practice. Because strong 

legal and judicial systems are 

an important cornerstone of 

sustainable economic and 

social development, there is 

a need in the international 

community for a permanent 

global knowledge exchange 

forum. Such a forum can 

greatly advance opportunities 

to connect experts and 

stakeholders from around 

the world for identifying, 

co-generating, sharing, and 

disseminating relevant knowledge and solutions. 

In our ever increasingly interconnected world, this 

can be accomplished by harnessing technological 

advances that are providing new opportunities to 

connect geographically distributed experts and 

stakeholders. 



The GFLJD consists of two mutually reinforcing 

pillars: 

- a permanent forum; and 

- an ICT web-based platform designed and 

administered by the Burton Blatt Institute 

(BBI) at Syracuse University (SU). 

The GFLJD is composed of three broad participant 

groups involved in the legal dimension of 

international development: 

- the World Bank as promoter, facilitator and 

convener; 

- a group of international and regional 

organizations, such as International 

Financial Institutions (IFIs), Universal and 

Regional Organizations; and 

- a group of national stakeholders, such as 

government authorities, academia, thinktanks 

and civil society organizations. 

The forum will be supported by a web-based 

Information and Communication Technology 

(ICT) platform that will facilitate the internal and 

external communication, host relevant knowledge 

(databases, research, documents, etc.) and provide 

easy and free access to knowledge relevant to 

policy makers, development practitioners and the 

general public. 

The GFLJD partners believe that harnessing these 

new technologies can fill the gap in the international 

community for a permanent legal forum. 

The forum is organized by thematic areas where 

partners are clustered based on their expertise, and 

each cluster of partners is expected to collaborate 

via Communities of Practice (CoP) using blogs, 

discussion forums, multi-media collaborative 


problem-solving, and professional networking. 

Information will be shared online - for immediate, 

free to access (no cost) and free to use (no 

restrictions on re-use other than attribution) - and 

will be made available in alternative formats, for 

locations that have low or no access to internet. 

The platform will incorporate reviews of knowledge 

products by allowing users to rate every knowledge 

product on multiple scales, thus using the crowdsourcing 

of consumer reviews to provide information 

on the usability, efficacy, impact, and effectiveness 

of shared knowledge products. 

The sustainability of the initiative is based on a 

menu of options that include: 

- “in-kind contributions” from intellectual 

partners; 

- “financial contributions” from financial 

partners, sponsors and supporters; and 

- combinations of in-kind and financial 

support. 

In order to encourage financial partnerships from 

the South GFLJD sets US$ 250,000 as minimal 

threshold for financial contribution for developing 

countries. 

The GFLJD is expected to provide a tremendous and 

unprecedented return on investment by fostering 

enhancement of human capital capacity through 

knowledge sharing as well as participation in larger 

social networks. 

Sources: GFLJD Brochure 

GFLD Website - www.bbi.syr.edu/gfljd/ 

National Council for Law Reporting 

The whole aim of the constitution we passed in 2010 was, and is, 

to move away from past ideas of leadership and past standards of 

integrity. Those are the past ideas that had brought Kenya down in 

the damaging years 1964-2010 

Pheroze Nowrojee 

17

Feature 

NCLR-KCDF PARTNERSHIP: COMMUNITY DEVELOPMENT 

THROUGH SUPPORT AND MENTORSHIP 

April 4, 2012 - Mr. Kipkemoi Sang (middle 

in black suit) and Mr. MacDonald 

Shiundu (4th from right) when they were 

introduced to their mentors, Dr. Willy 

Mutunga, the Chief Justice, (4th from left) and Mr. 

Michael Murungi, the CEO/Editor of the National 

Council for Law Reporting (3rd from right) by 

the Kenya Community Development Foundation 

(KCDF). With them is a delegation from the KCDF 

led by Ms. Janet Mawiyoo, the Executive Director 

(3rd from left); Ms. Catherine Kiganjo, Programme 

Co-ordinator (2nd from right); Ms. Damaris Njeri 

(extreme left); Mr. Melvin Chibole (2nd from left) 

and Ms. Neema Mutemi (extreme right). 

April 4, 2012 - Mr. Kipkemoi Sang (middle in black suit) and Mr. MacDonald Shiundu 

(4th from right) when they were introduced to their mentors, Dr. Willy Mutunga, 

the Chief Justice, (4th from left) and Mr. Michael Murungi, the CEO/Editor of the 

National Council for Law Reporting (3rd from right) by the Kenya Community 

Development Foundation (KCDF). With them is a delegation from the KCDF led by 

Ms. Janet Mawiyoo, the Executive Director (3rd from left); Ms. Catherine Kiganjo, 

Programme Co-ordinator (2nd from right); Ms. Damaris Njeri (extreme left); Mr. 

Melvin Chibole (2nd from left) and Ms. Neema Mutemi (extreme right). 

On April 4, 2012, two young men stood in the 

office of Dr. Willy Mutunga, the Chief Justice 

and Chairman of the National Council for Law 

Reporting, at the Supreme Court building in 

Nairobi and shared the stories of their lives and 

more importantly, their dreams for a bright future. 

Mr. Kipkemoi Sang, 22, served as an usher at a 

Nairobi church and nursed a deep and passionate 

ambition to study law and become a human rights 

By: Michael Murungi, CEO/Editor 

lawyer. Mr. MacDonald Shiundu, 21, had battled 

many odds to secure an admission at a local university 

to study a degree in Economics. 

The occasion was the introduction of the two young 

men to their mentors – the Chief Justice and Mr. 

Michael Murungi, the Editor/CEO of the National 

Council for Law Reporting - by the Kenya Community 

Development Foundation (KCDF). 

Through a partnership between the KCDF and the 

Council, the Board and members of staff of the 

Council can support KCDF’s beneficiaries financially 

through voluntary payroll-deducted donations from 

their salaries and emoluments 

and socially through KCDF’s 

mentorship programme. 

Founded in 1997 and 

registered in Kenya as a public 

foundation, KCDF is a Kenyan 

development organisation 

that supports communities to 

drive their own development 

priorities, by linking them to 

resources and information. The 

foundation promotes sustainable 

development approaches by 

among other things, encouraging 

local resource mobilization, and 

helping communities to utilize 

resources that they have. 

Mr. Sang, who’s mother has 

taught him that service to God 

is a virtue, an obligation and 

a lifestyle, gave a bold and 

eloquent statement of his vision 

“My dream has continued to 

flame in my heart for several years beginning with 

mere wishes like; ‘when I grow up I want to be 

a lawyer’. This dream has now blossomed into a 

genuine passion for life. I have always learned and 

accepted the challenges that have threatened this 

dream and refused to quit because I have grown up 

experiencing a lot of injustices to the humble people 

in the neighborhood of my village. I have always had 

the passion to be a lawyer, a bully of injustice that 



have seemed detrimental to the human lives. This is 

because every injustice that diminishes humankind 

diminishes me”. 

For Mr. Shiundu, the challenges of his life have 

only strengthened his resolve to be of service to 

humankind: “I am highly interested in helping 

the needy in society to solve their problems, 

enlightening the society and serving them as a 

leader”, he said. “I strongly believe in intrinsic 

features of motivation within myself. A free 

minded person does what is right according to the 

expectations of the society. I am never satisfied if I 

see conflict and I fail to solve it whether it’s above 

or below me”. 

Thanking and congratulating the KCDF for its work 

and for its partnership with the Council, the Chief 

Justice observed that mentorship is commonly and 

mistakenly viewed and applied as patronage – 

where a mature and supposedly wise mentor 

lords over his perceived life lessons and ideas 

on a younger and supposedly naïve mentee. His 

idea of mentorship, he said, was one in which 

both the mature and the young individual regard 

each other as equal partners bonded together by 

a gentleman’s/ladies’ agreement to mutually and 

reciprocally share life lessons and ideas. In this 

regard, he hoped to learn at least as much from 

Mr. Sang as Mr. Sang would learn from him. 

KCDF is also the local implementing partner 

of the Global Give Back Circle, which is a 

KCDF MEMO ON MENTORSHIP 


registered Clinton Global Initiative Commitment. 

The 'Circle' integrates mentoring; private sector 

investment and local community support in a circle 

of empowerment that socially and financially 

empowers young girls to pursue their educational 

and professional goals and to become agents 

of change themselves. In return, the mentees 

implement ‘Give Back Commitments’ in their 

local communities, undertake to mentor the next 

generation of girls, and commit to ‘give back’ 

once they realize their professional and financial 

independence. KCDF’s mentorship programme for 

young men is modeled on the Global Give Back 

Circle's girls' programme. 

The event was witnessed by Mrs. Gladys Shollei, 

the Chief Registrar of the Judiciary; two members 

of the Council’s Board of Directors, namely, Prof. 

James Otieno-Odek (Dean of the School of Law, 

University of Nairobi) and Mr. Paul Sang (Snr. 

Printer, Government Printer); Ms. Ann Asugah, an 

Assistant Editor at the Council; and a delegation 

from the KCDF led by Ms. Janet Mawiyoo (Chief 

Executive Officer); Catherine Kiganjo (Programme 

Coordinator); Ms. Damaris Njeri, Melvin Chibole 

and Neema Mutemi. 

Kenya Community Development Foundation 

www.kcdf.or.ke 

Global Give Back Circle 

www.globalgivebackcircle.org 

MISSION 

To harness the talents of women globally to transition disadvantaged girls out of the 

circle of poverty and into a circle of social participation, contribution, fulfillment and 

independence. 

SCHOLARS are disadvantaged girls who come to the Nairobi area or other large towns 

(to attend high school) from villages and towns all over Kenya. Most have lost a father, 

a mother or both. They come from extreme poverty. They may be Christian or Muslim. 

They are girls who have scored high enough on the national primary school exams to 

qualify for a place in high school – girls with an opportunity to move beyond poverty, 

to become global citizens. 

FINANCIAL PARTNERS are corporations, foundations, government agencies and 

individuals who provide funding. USAID, GGBC’s largest partnering funder, provides 

half of the support. The corporations who fund GGBC are typically global organizations, 

which fund from their Kenyan operations. Each scholar should know who is sponsoring 

her through ICT training and university or collage. 

THE COMMUNITY is made up of several “on the ground” institutions in Kenya including 

19


the schools, universities and colleges. The Kenyan Community Development Foundation 

(KCDF) implements GGBC in Kenya. KCDF is a world-standard model for grass-roots 

implementation of community-based programs and an outstanding example of transparent 

rant making. KCDF ensures that all funding from Financial Partners reaches the scholars 

and is granted to them in a manner that makes them accountable for their spending, 

thus embedding financial literacy skills. KCDF dedicates a staff of three professionals 

and two interns to the implementation of the GGBC process. 

MENTORS are the heart of GGBC- they are the women who fulfill the role of sisters, 

aunts, teachers, friends and angles who guide the scholars in developing in maturity 

and making decisions that will lead them to independence. 

GLOBAL GIVE BACK CIRCLE 

IS A CLINTON GLOBAL INITIATIVE COMMITMENT 

What is the Clinton Global Initiative? 

President Clinton, tires of attending conferences that were all talk, no action, created the 

Clinton Global Initiative (CGI) in 2005 to turn ideas into action. 

In September 2008, GGBC was invited to attend CGI and formed a commitment with ATE 

Bank of Greece, Equity Bank (Kenya) and Microsoft to raise $350,000 to transition 35 

girls onto tertiary education. In 2009, GGBC was invited back as a featured commitment 

makers. In 2011, GGBC updated its commitment progress report to show that it has raised 

$7 million dollars to transition 535 girls. The new goal is 1,000- 1,000 empowered 

young women in Kenya! Read the Article. 

Becoming a member of CGI was important on two levels. First it gave GGBC high level 

of credibility in obtaining additional funding. Second, it provided the model for each 

GGBC scholar to give back. CGI commitments must be specific and measurable. With 

a goal of sustainability, GGBC asks the girls in the program to develop and implement 

their own give back commitment. Ask your mentee how she is giving back to the world 

around her. 

USAID is an independent US federal government agency that receives foreign policy 

guidance from the Secretary of State. It provides foreign aid to developing countries with 

the mission to promote democracy and improve the lives of millions of people around 

the world. 

In early 2011, the GGBC program (at KCDF) received $ 3.5 million from USAID, allowing 

GGBC to increase its reach to a total of 535 girls over the next three years. As a result, 

over half of the GGBC scholars will be sponsored by USAID for their tertiary education. 

Read about USAID and GGBC. 


Strategic Planning Quality Assurance and Performance Department 

If you are an executive, manager, or team 

leader, one of your toughest responsibilities is 

managing your people's performance. Does this 

From left to right Pascal Othieno (Finance), Michael Mayaka (ICT), Ann Asugah 

(Laws of Kenya) Ms. Mutindi Musuva (HR), Ms. Esther Nyaiyaki (Deputy CEO). 

Ms. Monica Achode (Editorial) Ms. Linda Awuor (Sales and Marketing and Mr. 

Nganatha Karugu (Senior Principal Lecturer KIA) 

sound familiar? It is performance review session, 

you ask each of your direct supervisees into a 

conference room one by one, hand them an 

official looking document and then start with the 

same old conversation. You say some positive 

things about what the employee is good at, then 

some unpleasant things about what he is not good 

at – and end with some strokes of his ego. The 

result - a mixed message that leaves even the best 

of your employees feeling disappointed. Yet if you 


NCLR MANAGERS LEARN 

HOW TO CONDUCT EFFECTIVE 

APPRAISALS 

take the right approach, appraisals are an excellent 

opportunity to reinforce sold performers and redirect 

poor ones. 

It is for this reason the Council’s 

managers convened at the 

Kenya Institute of Administration 

for a weeklong training (May 

7- 11 2012) on performance 

appraisal and management 

course. The managers sought 

insights on how to carry out 

an objective appraisal, how to 

design an effective appraisal 

performance tool, the nexus 

between performance and 

reward, the role of mediation 

in performance management 

to name but a few. While the 

managers’ expectations were 

numerous the focus of this article 

is the lessons we took away 

What the experts said 

By: Esther Nyaiyaki Onchana, 

Senior Assistant Editor 

on how to conduct effective 

appraisals. 

Why is appraisal necessary? The government for a 

long time was resistant to measuring the performance 

of persons holding public office. If it was done, it 

was done in a perfunctory manner. The Government 

of Kenya introduced performance contracts in the 

public service through Legal Notice No. 93, the State 

Corporations (Performance Contracting) Regulations, 

2004 in August 2004. 

21


This was part of the broader Public Sector Reforms 

aimed at improving efficiency and effectiveness in 

the management of the public service. 

Performance appraisal is necessary in the public 

sector to meet the citizens’ expectations, to 

ensure a holistic approach performance and to 

entrench continuous performance and to embed 

a performance culture. A performance contract 

is a mutually agreed document that specifies the 

responsibilities, commitments and obligations 

of both parties to the agreement. The contract 

stipulates the key result areas, the level of 

performance expected towards achievement of 

agreed targets and how the performance will be 

measured. 

According to Mr. Humphrey Mokaya, a lecturer at 

the Kenya Institute of Administration, the concept of 

performance management encompasses the 4 Ps, 

that is the organization’s policies, practices, people 

and procedures. The policies should be consultative 

and participatory while taking caution to borrow 

only the best fitting practices when bench marking. 

The organization should be keen in hiring the right 

people whom they will facilitate and empower. 

What about the employees? The employees 

ought to have a clear line of sight towards the 

organizational goals and their individual goals. 

They must ask themselves this question ‘How do 

my daily activities contribute to the organization’s 

objectives? 

Ms. Muthoni Gachire, also a lecturer at the Kenya 

Institute of Administration gave lessons on how to 

set performance objectives. The objectives should 

flow from the national objectives down to the 

agencies departmental and individual objectives. 

For example at the national level the Key Result 

Areas may be derived from the Millennium 

Development Goals, and the national development 

plans while departmental performance objectives 

will be drawn from the agency’s mandate. She 

defined Key Result Areas (KRAs) as ‘ that area 

where performance is critical to the achievement 

of the organization's goals, objectives and 

strategies’. Failure in a KRA may constitute failure in 

organizational performance. The Key Performance 

Indicators (KPIs) are quantifiable measurements in 

terms of performance levels and/or standards. They 

reflect the achievement of performance objectives. 

KPIs are used to observe progress and measure 

actual results compared to expected results 

Delivering an effective performance appraisal 

For many employees, a face-to-face performance 

review is the most stressful work conversation they 

will have all year. For managers, the discussion 

is just as tense. No matter what kind of appraisal 

system an organization uses, below are several 

strategies to help you make performance review 

season less nerve-racking and more productive. 

Set expectations early - Mr. Paul Mathenge, 

a lecturer at KIA emphasized that performance 

review does not start with a sit down in the spare 

conference room at the end of the year. You must 

be clear from the outset how, when and what you 

will evaluate the employee. It is advisable to do 

so at the beginning of the year. In that meeting 

the supervisor and supervisee will not only set the 

individual performance targets but will also discuss 

the employee’s personal goals and expectations. 

Understanding what the employees want from their 

careers will help you figure out ways to broaden 

their professional experiences. 

Lay the groundwork - Weeks before the face-toface 

review ask your employee to write down a 

few things he or she has achieved over the review 

period. You may ask the employee to conduct a 

self-assessment on the various pre-agreed targets. 

This will help both of you to refresh your memory 

and it will put a positive focus on the event that 

is often seen as negative. Next go over the other 

reports you have kept over your employee over the 

year: a well-executed project, a missed deadline, 

the deft handling of a difficult client. However 

Mrs. Esther Gachango, a senior lecturer at KIA, 

reminds us that nothing should be a surprise 

during the appraisal meeting. It is assumed that 

appraisal is an on-going two-way conversation 

throughout the year. When evaluating the values 

and competencies of the employee you may seek 

for feedback from others who work closely with 

him in the organization. Inform the employee in 

advance the topics you intend to bring up during 

the face-to-face meeting, as well as the order you 

plan to cover them. 

Set the tone - Open the face –to-face meeting with 

an upbeat tone. Keep your feedback focused on 

the employee’s performance and let your message 

be clear and concise. Walk through the evaluations 

with your employees and provide them with specific 

information regarding the rationale behind your 

ratings. If you use self-evaluations, discuss the 

points where you and your employees agree and 

disagree. Most people are good solid workers, 

so for the vast majority, you should concentrate 

exclusively on things the person has done well. 

This method tends to motivate people who are 

already competent at their jobs. For your marginal 

workers, however, do not sugarcoat the bad news. 

Performance reviews are your chance to confront 



poor performers and demand improvement. 

Constructively coach - After discussing the 

strengths and achievements of your solid performers, 

ask them how they feel about how things are 

going. In many cases you are dealing with mature 

adults and you will draw out their honest opinion. 

Angela Baron suggests that the feedback should 

be framed in terms of a "stop, start, and continue" 

model. What is the employee doing now that is 

not working? What are they doing that is highly 

effective? What actions should they adopt to be 

more so? This will take the personal edge out of 

the conversation. 

End the sessions positively - Summarize the 

discussion, ask for final questions, set follow-up 

dates for goal setting, have the employees sign 

hard copies of the evaluations, and end with 


positive expectations. 

Additional information obtained from How to Be 

Good at Performance Appraisals by Dick Grote 

published by the Harvard Business Review Press 

“ You 

can’t manage what you can’t 

measure; and you can’t measure 

what you can’t describe” 

Peter Drucker 

23

Editorial Department 

As you are aware the National Council 

for Law Reporting is a semi-autonomous 

state agency enacted under the National 

Council for Law Reporting Act, Act No. 

Below is the front cover image of the latest specialised edition of the 

Gender Based Violence (GBV) Law report. 

11 of 1994..., which tasks the Council with the 

mandate of law reporting. In fulfillment of part 

of this mandate the Editorial Department collects, 

analyzes and provides affordable access to 

accurate and relevant case law in order to aid 

the administration of justice, the practice and 

teaching of the law and the development of Kenya’s 

jurisprudence. You may be familiar with some of our 

products such as Kenya Law Reports Volumes, the 

Specialized KLR Volumes – G & F, E & L, EP & GBV, 

TRANSFORMING THE EDITORIAL 

DEPARTMENT; FOLLOWING IN 

OUR PARENT'S FOOTSTEPS 

By: Monica Achode, 

H.O.D Editorial Department 

the KLR Monthly publication and the Bench Bulletin. 

Under the Judiciary Transformational Framework 

pillars our contribution falls under Pillar two 

regarding Transformative 

Leadership, Organizational 

culture, and Professional and 

Motivated Staff; KRA 7: Growth 

of Jurisprudence and Judicial 

Practice. The Constitution 

requires the Judiciary to 

develop jurisprudence, which 

is the lifeblood of any Judiciary. 

Sound jurisprudence will enable 

the Judiciary to assert its 

authority, command respect and 

distinction among its peers, and 

earn respect and legitimacy in 

the eyes of the public. Indeed the 

ultimate test of transformation of 

the Judiciary should be manifest 

in the quality of jurisprudence 

emanating from the Bench, and 

who better than the Council? 

With this in mind the Editorial 

Department of the Council after 

receiving constructive feedback from the Bench, 

specifically the Supreme Court, has undertaken 

a transformative process aimed at improving the 

following key areas of its functions and workflow 

processes: 

• The manner in which the Department receives 

feedback and suggestions from the Judiciary 

community regarding its editorial policy, 

scope and content – more specifically, to 

take advantage of the close relationship 



between the Council and the Judiciary 

Training Institute by working closely in the 

development of jurisprudence; 

• To move away from the hierarchical 

standing of the court rendering the opinion 

in the reporting of judicial opinions and 

focus more on the contribution being made 

by the said court and its contribution to 

the growth of jurisprudence – specifically 

expanding the scope of reportage for the 

judicial opinions of the High Court that 

contribute to the growth of jurisprudence; 

• In-order to ensure that “no stone remains 

unturned” the Department in its bid to 

capture all jurisprudence emanating from 

the Courts also intends to engage a law 

reporting consultant to read through the 

superior court decisions of Kenya for the 

last 10-20 years for the consideration of 

the Department for the publication of an 

additional law report to cover judicial 

opinions of jurisprudential value that may 

not have been reported; 

• The Department is also looking into 

improving on the technical aspects of 

it’s publications, particularly the style of 

formatting, grammar, sentence structure 

and punctuation and make a benchmarking 

comparison with the editorial policy and 

style adopted by other respected law 

reporting establishments such as Lexis 

Nexis, the publishers of the All England 

Law Reports; and the Incorporated Council 

for Law Reporting of England and Wales. 

• The Department is also looking into getting 

ICT consulting services to streamline 

its online content, specifically the case 

search database, in order to make it 


more manageable, more accessible and 

make the whole online experience more 

pleasurable for our users. 

• One area that has been a challenge for 

the department is staffing. The Department 

recognizes that the judicial officers have 

been increased over the last year, directly 

increasing the workload of the department, 

while the staffing levels in-house have 

remained the same. It is recognized that 

the working environment will require an 

enhanced budget, modern working tools 

and equipment and an enhanced and 

enabled workforce. We look forward to 

engaging with the Judiciary in achieving 

this. 

The Department does not intend to achieve all 

this on its own; indeed we have a very committed 

and engaged leadership giving strategic direction 

to this transformative process. Each member 

of the department has internalized the fact 

that the responsibility for the success of the this 

transformative process does not solely rest on the 

Editor or the Head of the Department, it lies with 

each and every one of us at all levels and in all 

our different capacities. We hope the Judiciary will 

strengthen the capacity of the National Council for 

Law Reporting in order to improve the Council's 

capacity to continue monitoring and reporting on 

the development of jurisprudence. 

We also hope to leverage on the new judicial 

researchers who were recently hired and inducted 

by the Judiciary, to assist with some of our 

processes, especially with regard to bringing 

jurisprudential issues to the Department’s attention. 

In this way we hope to foster an environment in 

which constructive feedback can be given and 

received. 

EDITORIAL TRANSFORMATION FRAMEWORK 

25


EXPRESSION OF INTEREST 

EOI No.: NCLR-EDITORIAL/006/12-13 

Consultant Editor, Kenya Law Reports 

About the National Council for Law Reporting 

The National Council for Law Reporting is a state corporation in the Judiciary charged 

with the mandate of publishing the Kenya Law Reports, which contain the Judicial 

Opinions of the Superior Courts of Kenya, the Laws of Kenya and other types of public 

legal information. 

The vision of the Council is to be the leading legal institution in Africa in providing reliable 

and accessible legal information to the public. 

The Council invites expression of interest from qualified individuals or firms to provide 

Law Reporting Editorial Services under the supervision and direction of the Editor of the 

Kenya Law Reports. 

Background 

The Kenya Law Reports series was first published in 1906 by the East Africa Protectorate. 

Later, after Kenya became a republic, the publication of the series was continued by the 

Government Printer. After the publication of the 1980 edition, there followed a lapse of 

two decades before the series was revived by the National Council for Law Reporting, 

which had been established as state corporation in 1995. The Council has since published 

24 editions of the Kenya Law Reports volumes covering the years 1980-1994 and 2000- 

2009, a consolidated Index and four specialized editions on the subjects of Land & 

Environment, Gender & Family, Election Petitions and Gender Based Violence. 

Due to previous difficulties in accessing the records of judicial opinions, challenges in the 

resourcing of the Council and also due to a limitation in the Council’s scope of editorial 

coverage, a number of judicial opinions that contribute to the advancement of Kenya’s 

jurisprudence may not have been given reporting consideration. 

The Council seeks to collect, review and report these judicial opinions through the services 

of a Consultant Editor 

Scope of the Assignment 

The purpose of this Consultancy is to supplement the Editorial Department of the National 



Council for Law Reporting by: 

o Identifying, collecting, reviewing the judicial opinions delivered by the High Court of 

Kenya and the Court of Appeal of Kenya which have not been reported in the Kenya 

Law Reports and which contribute to the advancement of jurisprudence; 

o Advising the Editor of the Kenya Law Reports on the suitability of the selected judicial 

opinions for reporting; 

o Upon the advise of the Editor of the Kenya Law Reports, compiling the selected 

judicial opinions into a manuscript for a special edition or editions of the Kenya Law 

Reports that conform to the Council’s Editorial Policy, guidelines and house rules. This 

manuscript, the final published editions as well as all other information collected or 

generated under this consultancy shall be the property of the Council. 

In the scope of consideration, there is no limitation in the range of the years in which 

the judicial opinions were delivered save that they should be the decisions of a superior 

court of record established under the law of the Republic of Kenya. 

Qualifications 

The consultancy will involve individual consultants or a firm comprised of individuals 

possessing at least the following mix of skills, knowledge and experience: 

i. A postgraduate degree in Law or its equivalent; 

ii. An undergraduate degree in Law; 

iii. An advocate admitted to practice law in the superior courts of Kenya; 

iv. At least 8 years post-admission experience as: 

a. a distinguished academic in law; or 

b. a legal practitioner in a busy and challenging litigation environment; or 

c. an eminent author and/or publisher of legal materials, including but not 

limited to the review of Kenyan case law. 

v. A highly competent grasp of the law with a thorough understanding of Kenya’s 

legal system and jurisprudence, and the theoretical and practical elements of 

the doctrine of precedent; 

vi. At least 5 years of experience in legal research, and report writing; review 

of judicial precedent, legal analysis and the drafting legal briefs on a variety of 

legal issues; 

vii. Excellent command of written and spoken English, with proficiency in Business 

English and Legal English; 

viii. Excellent analytical and report-writing skills. 

Deliverables 

The Consultant is expected to provide the following deliverables: 

i. An Inception Report setting out the Consultant’s understanding of 

the assignment and the methodology the Consultant proposes to apply 

in undertaking the assignment to be presented within thirty [30] days 

of signing the contract; 

ii. A report of the Judicial Opinions of the superior courts of record identified, 


27


collected and reviewed, setting out each opinion’s contribution to the advancement 

of jurisprudence, to be presented with four [4] months after the presentation of the 

Inception Report; 

iii. A draft manuscript or manuscripts for a special edition or editions of the Kenya 

Law Reports containing the Judicial Opinions selected for reporting set out in the 

style of the Council’s Editorial Policy, guidelines and house rules, to be presented 

within four [4] months after the presentation of the report detailing the records 

collected and reviewed; 

iv. An exit report setting out, in the Consultant’s opinion, the extent to which 

the Consultant had satisfied the terms of the assignment and making any pertinent 

recommendations to the Editor of the Kenya Law Reports; and 

v. Periodic progress reports detailing the progress of the consultancy to be submitted 

at least every six [6] weeks. 

[Unless otherwise advised by the Council, all reports and documentation are to be 

submitted in both electronic and print formats]. 

Duration and locus 

The consultancy shall be undertaken in Nairobi, Kenya in close consultation with the 

Editor of the Kenya Law Reports. The estimated time for the consultancy is one year. 

Expression of Interest documents must be submitted in plain sealed envelopes with 

Expression of Interest reference number and name clearly marked on top to the address 

below or placed in the tender box at our office. 

National Council for Law Reporting, 

ATT: Procurement Unit, 

P.O BOX 10443-00100, 

Nairobi, Kenya. 

Tel No: (+254) (020) 271 27 67, 271 92 31 

Email: procurement@kenyalaw.org 

The deadline for submission of the Expression of Interest documents is 21st 

August 2012 at 1100hrs. Expression of Interest documents will be opened immediately 

thereafter on the above respective date in the presence of prospective bidders or their 

representatives who choose to attend. 

CHIEF EXECUTIVE OFFICER 

NATIONAL COUNCIL FOR LAW REPORTING 


Feature 

The Communications Commission of Kenya 

(CCK) is the regulatory authority for the 

communications sector in Kenya and also 

has the mandate to protect the interests of 

consumers of communication services. 

Having recognized that persons with disabilities 

have numerous challenges in accessing, purchasing 

and using communication services in Kenya and in 

an effort to address these issues and challenges, 

the Commission facilitated a two day workshop 

whose theme was "E-accessibility for Persons with 

Disabilities”. Persons with disabilities (PWD’s) form 

an integral part of consumers of communication 

services and they face numerous challenges in 

accessing, acquisition and usage of communication 

services. They hence require protection under the 

law like any other citizen. 


TARGET GROUPS 

Michael Murungi, CEO/Editor giving a speech at the E-accessibility workshop 

for persons with disabilities at the Laico Regency, Nairobi. 

REPORT ON-E-ACCESSIBILITY 

WORKSHOP FOR PERSONS WITH 

DISABILITIES HELD ON 10 &11TH MAY, 2012 AT THE LAICO REGENCY, 

NAIROBI. 

By: Njeri Githang’a Kamau, 

Assistant Law Reporter, Editorial Department 

The workshop was attended by representatives from 

government agencies, disabled 

person’s organizations (DPO's), 

parents, residential associations, 

communication service providers 

and many others. The main focus 

of the workshop was challenges 

experienced by persons with 

disabilities with regard to 

access, acquisition and usage 

of ICT services and interventions 

required to enable persons with 

disabilities access, purchase and 

use communication services. 

The objective of the workshop was: 

• To enhance participants' 

understanding of the policy 

and legislative framework 

around or relating to the 

promotion of e-accessibility 

for PWD's. 

• To encourage the design of accessible 

information, ICT products and services to 

mitigate limitations to access to information, 

employment, social inclusion and training of 

PWD's. 

• To have an appreciation of assistive 

technologies, other methodologies and best 

practices that mitigate against financial, 

physical and functional barriers. 

29


The National Council for Law reporting was 

represented by Michael Murungi-CEO/Editor, 

Wambui Kamau-Laws of Kenya department and 

Njeri Githang’a Kamau- Editorial department 

The workshops started with the launch of the PWD 

web portal www.kenyadisability.or.ke which is 

a collaborative initiative of the Communications 

Commission of Kenya (CCK), National Council for 

Persons with Disabilities (NCPWD) and Disability 

Rights Organization through the United Disabled 

Persons of Kenya (UDPK). Access to information 

is a human right guaranteed in the Constitution 

of Kenya 2010 and International Conventions 

including the Convention on the Rights of Persons 

with Disabilities (CRPD). 

The web portal aims to: 

• Enhance access to information by persons 

with disabilities. 

• Provide to the public information on 

available services for persons with 

disabilities. 

• Create awareness about disability as a 

human rights issue. 

There after various presentations were made on 

Policy Legislation and Regulatory Framework, 

Promoting Accessible Computing Devices and 

Applications, Promoting Accessible Websites, 

challenges facing PWD in accessing ICT and so 

on. Under Promoting Accessible Websites, Mr. 

Murungi –NCLR CEO/EDITOR made a presentation 

entailing some of the efforts the council has made 

to make its website universally accessible and also 

to accommodate persons with disabilities (PWDs) 

which includes; 

• Raising the universal access IQ: this has 

been done through engaging with persons 

and institutions dealing with the welfare 

of persons with disabilities in order to 

obtain baseline data and information to 

help its understanding of the situation of 

persons with disabilities both generally 

and with regard to access to public legal 

information. 

• Employment integration: This is through 

affirmative action in the form of head 

hunting, including a statement in vacancy 

advertisements that ‘the Council is an equal 

opportunity employer and persons with 

disabilities, persons from minorities and 

marginalized communities are encouraged 

to apply’; bringing the job advertisement 

to the particular attention of institutions 

dealing with the welfare of persons with 

disabilities, etc. 

• Developing comprehensive universal 

accessibility guidelines: Through the 

support of the Rockefeller Foundation, 

the Council has engaged a consultant to 

develop a comprehensive set of guidelines 

and standards to serve as the reference for 

the Council in originating and providing 

its web content in universally accessible 

formats. 

• Implementing basic universal accessibility 

guidelines: Through consultations with 

persons and institutions dealing with 

the welfare of persons with disabilities 

and through research, the Council 

has formulated certain guidelines and 

standards for the universal accessibility of 

web content. The Council is progressively 

applying the guidelines in converting public 

legal documents that were originated in 

formats that are not universally accessible. 

So far, the Council has published Braille 

copies of the Persons with Disabilities 

Act(No. 14 of 2003) and distributed it to 

key institutions dealing with the welfare of 

persons with disabilities; it is earmarking 

further content for Braille production; and 

has converted some if its documents into 

access-friendly formats. 

• Leveraging on extra-budgetary support 

towards universal access: this has been 

done through the support of the Rockefeller 

Foundation in engaging a consultant to 

guide the Council in developing universal 

web content accessibility guidelines and 

standards. 

• Integration through Impact Sourcing: The 

Council will be seeking to outsource some 

of its business processes, including the 

conversion of documents into universally 

accessible formats, to an Impact Sourcing 

Service Provider – i.e. a BPO provider who 

engages the labour of socio-economically 

disadvantaged persons, including persons 

with disabilities. 

• Shifting public policy, law and practice on 

universal access: The Council has engaged 

a consultant to develop guidelines for both 

the translation of legal documents from 

English to Swahili and also for the universal 

accessibility of web content. We hope that 

the demonstrable success of our efforts 



will serve to inspire other government 

departments. 

• IMPACT-IS: (Improving Public Access to 

Information through Impact Sourcing – 

IMPACT-IS.) This is an initiative that has 

obtained the seed funding of the Rockefeller 

Foundation but which will ultimately be 

mainstreamed into the Council’s operations. 

The IMPACT-IS initiative will inspire other 

institutions: 

• by demonstrating how government agencies 

can be more effective and efficient by 

outsourcing all or some of their routine 

business processes; 

• by providing a model on how corporate 

objectives and also government 

procurement processes can be aligned with 

the attainment of positive social outcomes, 

such as indirectly providing employment to 

persons with disabilities and other socioeconomically 

disadvantaged persons; 

• by cultivating an interest in and demand 

for Impact Sourcing as a viable business 

proposition; 

• ultimately, by catalyzing a positive shift in 

government approaches towards poverty 

alleviation and universal access. 

• International partnerships and 

benchmarking: 

• Bookshare – www.bookshare.org : The 

Council is a partner of Bookshare, the largest 

online accessible library of copyrighted 

content for people with print disabilities. 

Through its technology initiatives and 

partnerships, Bookshare seeks to raise 

the floor on accessibility issues so that 

individuals with print disabilities have the 

same ease of access to print materials as 

people without disabilities. 

Some of the Challenges mentioned in the conference 

included; 

• Lack of sign interpreters for Television 

programming. 

• Learning institutions lack sign language 

interpreters e.g Kenyatta University which 

has about 8 deaf students with no sign 

language interpreters yet it’s their right to 

access Education. 


• Access to buildings for physically disabled 

persons-lack of lifts and ramps etc 

• Banking –Few banks with ATMs that 

accommodate the visually impaired persons. 

• Lack of Sign Language interpreters in banks 

• Software’s needed by visually impaired 

persons are expensive hence cannot be 

accessed by most of the PWDs. 

Proposals were made on how to curb some of the 

challenges which included. 

• Broadcasting to issue warning before issuing 

flash lights as they trigger epilepsy attacks. 

• CCK and Persons with disabilities 

organizations to meet with media owners and 

discuss some of the issues in broadcasting. 

• Government to make internet affordable and 

accessible 

• Banks to offer sign Language for their 

products also have universally accessible 

ATMs 

• Need for blanket copyright allowing 

conversion of all audio productions of books 

in print. 

• All public information to be posted on the 

PWD web portal 

KEY LESSONS LEARNT 

Integration not segregation 

• It is the right of persons with disabilities 

to live in a world which integrates rather 

than segregates them. They have a right 

to community integration – meaning that 

rather than having separate facilities 

and conveniences set aside for persons 

with disabilities, we should have all our 

public and private spaces designed and 

conceptualized in a way that they are 

accessible to all persons. This way we will 

not view their challenges as disabilities or 

inabilities, because they are not. What 

makes them challenges, disabilities or 

inabilities is the fact that we have not built 

our communities and our world for everyone 

– Universal Access. 

• Employment integration of persons with 

disabilities helps to improve two things: 

31


a. the employer’s understanding of the 

situation of persons with disabilities; 

b. the employer’s capacity to make its content 

universally accessible. 

• The same approach – that is integration 

rather than segregation – would apply to 

web content, whether for public institutions 

or private ones. The approach would not 

be to set aside certain segments of our 

websites that have content that is accessible 

to persons with disabilities – segregation 

of content. I think the proper approach 

would be to integrate universal accessibility 

standards into the concept, structure and 

design of all website content. 

• A majority of government content is 

originated in the English language and 

in paper format or in digital formats that 

are not universally accessible. Integrating 

rather than segregating the welfare of 

persons with disabilities means that all 

web content is originated in universally 

accessible formats so that the need for 

downstream conversion is eliminated. 

The Constitution of Kenya 2010 

54.(1) A person with any disability is entitled –– 

• Through Impact-Sourcing, government 

institutions can achieve two very important 

objectives: 

• Convert their historical/legacy content into 

universally accessible formats; and 

• Indirectly provide employment to persons 

with disabilities and other socialeconomically 

disadvantaged persons. 

• Universal access is not a favor, it is a 

constitutional responsibility 

The welfare of persons with disabilities has been 

the subject of welfare initiatives such as corporate 

social responsibility initiatives, ‘giving back to 

society’, ‘caring for the less fortunate’. While 

concern for others is altruistic and is good for 

humanity, the tragedy is that such initiatives and 

vocabulary towards persons with disabilities only 

serves to socially segregate them as the subjects of 

pity and the objects of charity. It may look good on 

corporate brochures and company reports but in 

my opinion, it does not help at all with the social 

integration of persons with disabilities. 

(a) to be treated with dignity and respect and to be addressedand referred 

to in a manner that is not demeaning; 

(b) to access educational institutions and facilities for personswith disabilities 

that are integrated into society to the extentcompatible 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 person’s 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. 


Laws of Kenya Department 

On January 13th, 2012, the High 

Court, (Justices Isaac Lenaola, Mumbi 

Ngugi and David Majanja delivered 

its judgement on the election date to 

be within sixty days of 15th January, 2013. This 

followed a constitutional petition to the High Court 

of John Harun Mwau &3 others v Attorney General 

& 2 Others (2012). They based their judgment on 

section 9 and 10 of the Sixth Schedule constitution 

which states that the first elections for the president, 

the National Assembly, Senate, County assemblies 

and county governors shall be held at the same 

time, within sixty days after the dissolution of the 

National Assembly at the end of its term or upon 

expiry of the term of the 10th Parliament on the 

5th Anniversary of the day it first sat which is 

designated by Legal Notice No. 1 of 2008 as 15th 

2008. The term therefore expires on 14th January, 

2012. The elections will be held within sixty days 

after 15th January, 2013. 

This pronouncement had an immense influence on 

the shape of politics within the country. The Political 

Parties Act (No. 11 of 2011) is the main legislative 

framework when it comes to political parties. It is 

guided by the principles set out in the Constitution of 

Kenya, 2010 and other governing Articles such as 

Article 91which provides for the basic requirements 

for political parties. These requirements include: 

a) having a national character 

b) a democratically elected governing body 

c) Promotion of national unity 

d) Abiding by the democratic principles of 


POLITICAL PARTIES AND THE 

INGREDIENTS OF THE LAW 

By: Wambui Kamau,Legal researcher, 


good governance, rule of law free and fair 

elections 

Further the Constitution restricts political parties from: 

a) being founded on a religious, linguistic, 

racial, ethnic, gender or regional basis or 

seek to engage in advocacy or hatred. 

b) engaging in violence or intimidation of its 

members, supporters or opponents 

c) establishing or maintain a paramilitary force, 

militia or similar organisation. 

d) Accepting or using public resources to 

promote its interests or its candidates in 

elections, unless otherwise provided for by 

law. 

Under the Political Parties Act, a party may register 

either provisionally or full. However, a party that 

is provisionally registered should apply for full 

registration not later than one hundred and eighty 

days from the date of provisional registration. The 

difference between provisional registration and full 

registration is that with provisional registration, a 

party shall not be entitled to participate in an election. 

The Registrar of Political Parties is charged with 

the mandate of registering, regulating, monitoring, 

investigating and supervising political parties to 

ensure compliance with the provisions of the Political 

Parties Act. 

Having registered parties due for election, Kenyans 

must be enlightened in dealing with political parties. 

A repeat of the post election violence that occurred 

33


in 2007 is totally unacceptable. The law through 

the Political Parties Act has taken steps to ensure 

a smooth coverage of the elections. These steps 

include: 

a) Naming of a Political Party 

Section 8 dictates that the Registrar of Political 

parties may refuse to register a party which has the 

abbreviation of the name or symbol that is obscene 

or offensive. 

b) Registration of Coalitions/ Mergers 

Two or more political parties may from a collation 

before an election, however, the coalition agreement 

should be deposited with the Registrar at least three 

months before that election. 

c) Integrity of leaders 

In applying the principle of integrity, section 13 of 

the Act provides that a person who is disqualified 

from holding public office under any written law 

shall not hold office in the governing body of a 

political party or be its founding member. 

d) Deregistration of political party 

A political party will be deregistered if it does not 

promote free and fair nomination of candidates, 

does not respect the national values and principles 

of the Constitution, obtained its registration in a 

fraudulent manner or has instigated or participated 

in the commission of an election offence. 

e) Accountability 

A political party, according to section 29, must 

within ninety days of the end of its financial year, 

publish the sources of its funds stating the amount 

of money received from the Fund, the amount of 

money received from its members and supporters 

and the amount and sources of the donations given 

to that party. It shall also state the income and 

expenditure of the political party and the assets 

and liabilities of the political party. This information 

should be published in at least two newspapers 

having nationwide circulation. 

In addition to this, a political party shall at least 

ninety days before a general election, submit to the 

Registrar a register of its members and a statement 

of its assets and liabilities in the prescribed form. 

Failure to comply, the party risks deregistration. 

However, for a fair verdict, parties have the right 

to appeal to the Political Parties Disputes Tribunal 

which has the jurisdiction to hear appeals from 

decisions of the Registrar under the Act. 



A 

Bill is a proposed law under consideration 

by the legislature. Under the Kenyan 

jurisdiction, Parliament is tasked with 

the legislative authority. Once a Bill is 

introduced in Parliament, it must go through a 

number of stages before it can become law. This 

allows the Bill's provisions to be debated in detail, 

and for amendments to the original Bill to also 

be introduced, debated, and agreed to. Below 

is a synopsis of various Bills before Parliament at 

various stages for the period between April-June, 

2012. 

Public Financial Management Bill, 2012 

The principal object of this Bill is to provide for the 

effective management of public finances by the 

national government and the county governments 

in accordance with the Constitution and for 

the accountability of public officers, given the 

responsibility of managing those finances, to the 

public, through Parliament and the respective 

county assemblies. 

The Bill provides for the establishment of the 

National Treasury under Article 225 of the 

Constitution which establishes the National 

Treasury as an entity of the National Government, 

comprising the Cabinet Secretary who will be the 

head and the Principal Secretary responsible for 

finance. 

The Bill provides for responsibilities of the National 

Treasury as contemplated in Chapter 11 and 12 

of the Constitution which include: formulating, 

monitoring and implementation of macroeconomic 

policies; managing public debt, including loan 


A SYNOPSIS OF THE BILLS 

UNDER CONSIDERATION IN 

PARLIAMENT FOR THE PERIOD 

APRIL-JUNE, 2012 

By: Christian B. Ateka, Legal Researcher, 


guarantees; promoting economic and financial 

policies and facilitating social and economic 

development; Designing and prescribing of financial 

management systems; Capacity building for effective 

and efficient financial management. 

The Bill also provides for the powers and responsibilities 

of both national government and county governments 

with respect to the management and control of public 

finance. 

Finally, the Bill provides for the establishment of the 

Intergovernmental Budget and Economic Council 

whose purpose is to provide a forum for consultation 

and cooperation between the national government 

and the county governments on matters relating to 

budgeting, the economy and financial management at 

the National and County level; on matters relating to 

borrowing and national government loan guarantees; 

among others. 

Traffic (Amendment) Bill, 2012 

The Traffic (Amendment) Bill, 2012 seeks to bring 

a raft of major changes to the existing traffic law 

in Kenya. One of the more radical measures being 

proposed is the abolishment of the Kenya Traffic 

Police Department. According to the Bill, which is 

sponsored by Gem MP Jakoyo Midiwo, all police 

officers would be required to enforce traffic laws. 

The main objective of this Bill is to amend the Traffic 

Act (Cap.403) by vesting ownership of motor 

identification plates on the Kenya Revenue Authority, 

and to require surrender of the plates to the Registrar 

of Motor Vehicles once a motor vehicle is transferred 

from one person to another. The Bill further seeks to 

enhance the penalties for various traffic offences in 

35


order to deter commission of those offences and 

consequently minimise loss of lives on Kenyan 

roads through accidents. 

The following is a quick overview of some of the 

major points in the Bill: 

• The Administrative Unit of the Kenya Police 

Service known as the Traffic Department 

would be abolished; 

• Ownership of vehicle registration plates 

would be given to the Kenya Revenue 

Authority (KRA); 

• Driving under the influence would attract 

a penalty of 10 years in jail or a minimum 

of KES 500 000 fine, or both; 

• Overlapping, driving on pavements and 

pedestrian walkways or using petrol 

stations to avoid traffic would get you a 

three month prison term or a fine of KES 

30 000, or both; 

• The licence of a person found guilty of 

exceeding speed limits would be invalid 

for not less than 3 years if the limit is 

exceeded by up to 10 KPH or if the offense 

is repeated more than three times. 

Prohibition of Pyramid Schemes Bill, 2012 

The object of this Bill is to prohibit certain acts in 

relation to pyramid schemes and proposes stiffer 

penalties for anybody or institution that engages 

in the business. The Bill, sponsored by Ikolomani 

MP Boni Khalwale proposes up to 10 years 

imprisonment or a fine of Sh10 million, or both 

for those involved in pyramid schemes that have 

in the past seen Kenyans lose billions of shillings. 

The Bill has a wide definition of a pyramid scheme 

and says it could involve marketing of goods or 

services, or both. 

Among other provisions of the Bill, it is an offence to 

participate in a pyramid scheme or induce another 

person to participate in it knowing that any benefit 

gained is entirely or substantially derived from the 

introduction to the scheme of new participants. 

Further, directors and partners of illegal firms 

fleecing Kenyans will also have no excuse that 

they were in the dark about the activities. The Bill 

provides for the liability of a relevant person of a 

corporate body or unincorporated body the firm or 

a person as a member of the unincorporated body 

commits an offence. The proposed law proposes 

that perpetrators of the schemes pay compensation, 

which is recoverable as a civil debt. Such payment 

might be financial or non-financial. 

However, the Bill will not interfere with pending 

claims filed by victims against owners of pyramid 

schemes that have since collapsed. 

Social Assistance Bill, 2012 

This Bill seeks to establish a law that will mandate 

the government to identify and provide social 

assistance to persons in need. The Bill, prepared 

by Sotik MP Joyce Laboso, seeks to establish the 

National Social Assistance Authority which, other 

than identifying those in need, shall have the 

power to make grants to any organisation, group 

of citizens for the purpose providing assistance to 

persons in need or likely to become in need. 

The Bill also provides that those to qualify for 

assistance include: orphans and vulnerable 

children, poor and elderly persons, unemployed 

persons, persons disabled by acute chronic 

illnesses, persons with disabilities. However, the 

unemployed persons to benefit from the programme 

will have to be youths and show proof that lack of 

income is not due to negligence or lack of industry. 

The Authority shall also maintain and promote 

the status, wellbeing, rights, safety and security 

of persons in need of social assistance. It will also 

develop, maintain and operate a National Social 

Assistance Information Management system and 

mobilize resources to support and fund social 

assistance programmes. 

Public Private Partnerships Bill, 2012 

This Bill seeks to make it easier for the private sector 

to participate in government projects. If enacted, 

the Bill which was tabled by Finance Minister Mr 

Njeru Githae, will see establishment of a committee 

to oversee the partnerships. It will be the first 

comprehensive guide on how private sector players 

can engage the government and participate in 

development of infrastructure and other projects. 

In its Vision 2030, the government envisages rapid 

expansion of infrastructure and expects publicprivate 

partnerships to be among the approaches 

that would enable the realisation of turning the 

country into a medium status. Experts have argued 

that lack of clear guidelines on public-private 

partnerships has hindered private sector investors 

from investing in government projects like road 

construction and energy. Among the projects that 

the government has indicated it will rely on publicprivate 

partnerships include the multi-billion Lamu 

Port Southern Sudan Ethiopia Transport (Lapset) 

corridor. 

The Bill also seeks to review the legal, institutional 

and regulatory framework of public-private 

partnerships. Further, it addresses the sharing of 



revenues between the government and the private 

investors where appropriate. 

National Drought Management Authority 

Bill, 2012 

Drought continues to be a major issue affecting 

Kenya. Certain sections of the country continue 

to face perennial drought which results in severe 

negative economic, social and environmental 

effects. It is against this background, and in light 

of the critical importance of drought management 

and mitigation of the effects of drought, that this Bill 

seeks to give the National Drought Management 

Authority statutory status such that the establishment 

of the Authority would be founded in statute rather 

than in an executive Order. 

Currently, the National Drought Management 

Authority exists by virtue of National Drought 

Management Order issued through Legal Notice 

No. 171 of 2011. The legal effect of this Bill 

therefore will be to transit the Authority established 

under the 2011 Order into a statutory body. 

Internally Displaced Persons Bill, 2012 

The main object and purpose of this Bill is to: 

provide for the protection and assistance to 

internally displaced persons and to give effect to 

the Great Lakes Protocol on the Protection and 

Assistance to Internally Displaced Persons and 

the United Nations Guiding Principles on Internal 

Displacement. 

The Great Lakes Protocol on the Protection and 

Assistance to Internally Displaced Persons entered 

into force on June 21, 2008, following ratification 

by eight member states, including Kenya. Under 

article 2(6) of the Constitution, any treaty or 

convention ratified by Kenya shall form part of 

the law of Kenya under the Constitution. The Bill 

seeks to fulfill the specific aspects of Great Lakes 

Protocol on the Protection and Assistance to 

Internally Displaced Persons that required action 

through domestic legislation. 

The Bill provides for rights-based response to 

internal displacement and imposes an obligation 

on every person, including public bodies, State 

officers, public officers and private bodies 

or individuals involved in the protection and 

assistance to internally displaced persons in the 

Kenya to act in accordance with the Protocol and 

the Guiding Principles. 

Further, the Bill establishes the Protection and 

Assistance to Internally Displaced Persons Fund. 


The Fund is the successor to the Humanitarian 

Fund for Mitigation of Effects and Resettlement of 

Victims of Post-2007 Election Violence established 

by regulation 3 of the Government Financial 

Management (Humanitarian Fund for Mitigation 

of Effects and Resettlement of Victims of Post-2007 

Election Violence) Regulations, 2008. 

Public Benefits Organization Bill, 2012 

This Bill seeks to provide a legislative framework to 

govern the establishment and operations of public 

benefit organisations. The Bill takes cognisance of 

the important role that public benefit organizations 

play in serving the public good, supporting 

development, social cohesion and tolerance 

within society, promoting democracy, respect 

for the rule of law, and providing accountability 

mechanisms that can contribute to improved 

governance. 

The Bill provides a legal mechanism for the 

registration and self-regulation of public 

benefit organisations. While Civil Society 

Organizations in Kenya are diverse in nature, 

there are also many registration and regulatory 

regimes governing them, making it difficult for 

effective legal and statutory compliance and 

accountability. Such laws, which include: the 

Non Governmental Organization Coordination 

Act of 1990, the Companies Act Cap 486 (for 

Companies Limited by Guarantee), Societies Act 

Cap 108, Trustee Perpetual Succession Act Cap 

164, and Trustees Act Cap 167 have been 

unable to bring on board the diverse spectrum 

of the civil society organizations, particularly 

those engaged in public benefit activities. The 

existing fragmented and uncoordinated legal 

and institutional frameworks makes coordination 

of these organizations difficult. 

Finally, the Bill contains provisions on the 

establishment, powers and functions of the Public 

Benefit Organisations Registration Commission. 

The Commission is intended to take over from the 

Non-Governmental Organisation Co-ordination 

Board which is a body corporate and whose 

enabling legislation is the Non-Governmental 

Organisations Co-ordination Act, 1990. 

Prohibition of Anti-Personnel Mines Bill, 2012 

The Convention on the Prohibition of the use, 

Stockpiling, Production and Transfer of Anti- 

Personnel Mines and on their Destruction (Ottawa 

Convention) provides for a comprehensive 

framework for ending the suffering caused by 

anti-personnel mines. States that are parties to 

the Convention (of which Kenya is one) have 

37


undertaken to cease production and acquisition of 

these weapons and to dispose of existing stockpiles. 

Article 9 of the Convention requires a party to the 

Convention to impose penal sanctions to suppress 

activities prohibited under the Convention. The 

object of this Bill is to therefore impose the required 

sanctions, in such circumstances and with such 

exceptions as are consistent with the terms of the 

Convention. 

The Bill prohibits use, development and production 

of anti-personnel mines. Further, acquiring, 

transferring or possessing anti-personnel mine or a 

component of such a mine is also prohibited, except 

for the purposes of certain military operations 

or training exercises or in other circumstances 

permitted under Article 3 of the Convention. 

The Bill also provides for the location and rendering 

safe of anti- personnel mines and component 

parts, for the issue of warnings and other notices 

and for the removal and destruction of mines and 

components by persons authorized by the Cabinet 

Secretary. Provision is also made for the issue of 

warrants and authorizations to search premises 

where necessary. 

Public Service Commission Bill, 2012 

The principal object of this Bill is to re-orient the 

Public Service Commission to accord with the 

Constitution of Kenya, 2010. It achieves this by 

constituting and incorporating the Commission, 

modernizing and expanding its functions and 

clearly articulating the procedure for appointment 

and removal of the chairperson, members and 

secretary. The Bill also enhances the Commission's 

operational and financial autonomy. 

The Bill also provides for the composition, 

qualifications and appointment of members of the 

Commission. It clearly outlines the structure and 

operations of the Commission including provisions 

on the secretariat, power to employ staff, the role 

of the secretary and rules applying in the conduct 

of meetings of the Commission. 

Further, the Bill provides that all expenses incurred 

by the Commission in the execution of its mandate 

shall be a charge on the Consolidated Fund and 

thereby requiring the preparation of audited 

accounts and annual financial estimates and 

reports. 

Teachers Service Commission Bill, 2012 

This Bill outlines plans by Teachers Service 

Commission’s to overhaul rules for its engagement 

with teachers, including fresh registration of all 

educators by TSC. The new measures outlined in 

this Bill will require all teachers to register afresh 

with TSC soon after Parliament passes it into law. 

The radical reforms proposed in the Bill are 

expected to enable students get quality education 

as a right in line with the Constitution. The Bill gives 

the Commission powers to take steps to ensure 

anybody in the teaching service complies with the 

teaching standards prescribed under the Bill. For 

instance, all registered teachers will be required 

to undertake career progression and professional 

development programmes that will be prescribed 

by new regulations. In this regard, a teacher 

who fails to undertake a prescribed career and 

professional development programmes would be 

struck off the roll of the teaching fraternity. 

Kenya National AIDS Commission Bill, 2012 

The objective of this Act is to provide a legal 

framework for the establishment, powers and 

functions of the Kenya National AIDS Commission. 

The Commission is established as a successor to 

the National AIDS Control Council. In its current 

state the National Aids Control Council is a State 

Corporation established vide the National Aids 

Control Council Order published in Legal Notice 

No. 170 of 1999. 

In the current state the Council operates under and 

reports to the Office of the President. This raises 

serious questions of autonomy which may end up 

hampering the effective operations of the Council. 

This lack of autonomy may also be a limiting factor 

in the body exercising general functions. Further, 

funds that the Council is dependent on are drawn 

from the ministerial allocations. 

The Bill seeks to reverse this state of affairs by 

establishing the Commission as a body corporate 

with perpetual succession and a common seal. 

This gives it the full autonomy that comes with the 

status of a corporate body including the capability 

to sue and be sued, to enter into contracts and to 

own property in its own name. The funds to the 

Commission will also now be directly allocated by 

the Parliament thus strengthening the Commission. 

The Bill also intends to strengthen the institutional 

structures of the Commission by providing for 

a transparent and meritorious system for the 

appointment of the members of the Commission. 

The Chair and members of the Commission are 

made subject to and protected by the provisions 

of the Constitution as relates to state officers. The 

appointment process includes nomination by a 

panel and parliamentary approval. 



Kenya Medical Supplies Authority Bill, 2012 

The principal object of this Bill is to establish, by 

statute, the Kenya Medical Supplies Authority to 

procure and distribute drugs and other medical 

supplies to all public health institutions. The 

Authority will be the successor to the Kenya Medical 

Supplies Agency established under the State 

Corporations Act vide the Kenya Medical Supplies 

Agency Order of 2000, which this Bill proposes 

to repeal. The Authority will improve the quality of 


the health care services, and ensure its long term 

sustainability and availability. 

The Authority will among other functions ensure 

availability and accessibility of drugs and 

medical commodities to public and private 

health institutions, advice consumers and health 

providers on the rational and cost effective use 

of drugs and medical supplies and decentralize 

its warehousing functions to counties. 

39


Synopsis of Land legislation as recently 

enacted by Parliament 

Chapter Five of the Constitution of Kenya, 

2010 makes provisions on Land and 

Environment. Article 68 specifically 

stipulates the mandate of Parliament in 

enacting land legislation. It provides that Parliament 

shall revise, consolidate and rationalise existing 

land laws. The Land Laws that have been enacted 

address the folowing needs as stipulated in Arctile 

68: 

a) prescribe minimum and maximum land 

holding acreages in respect of private land, 

b) regulate the manner in which any land may 

be converted from one category to another, 

c) protect, conserve and provide access to all 

public land amongst other objectives, 

To achieve this end, Parliament has enacted 

three important pieces of legislation based on the 

following principles as stipulated in Article 60. 

These include: 

• equitable access to land 

• security of land rights 

• sustainable and productive management 

of land resources 

• transparent and cost effective adminstration 

of land 

The following laws were assented to by the 

President on the 27th April, 2012 and came into 

force on the 2nd of May, 2012. 

a) THE LAND ACT (NO. 6 OF 2012) 

This Act is to give effect to Article 68 of the 

Constitution and to revise, consolidate and 

rationalize land laws. It also seeks to provide for 

the sustainable administration and management of 

land and land based resources. This law repeals 

the Wayleaves Act (Cap. 292) and the Land 

Acquisition Act (Cap. 295). 

ACTS AS PASSED BY PARLIAMENT 

By: Wambui Kamau, Legal researcher, 


Section 3 of the Act applies to all land declared as 

public land, community land and private land. The 

Constitution provides for the definition of these types 

of land in Artciles 62,63 and 64 respectively. In brief, 

public land includes unalienated government land, 

land lawfuly held, used or occupied by any State 

organ, land transferred to the State, land in which 

no heir can be identified by any legal process. Also 

government forests, minerals and mineral oils as 

defined by law and others as described in Article 62 

of the Constitution of Kenya. 

Community land will include land lawfully: 

a) registered in the name of group representatives 

under provisions of any law 

b) transferred to a specific community by any 

process of law 

c) held, managed or used by specific 

communities as community forests, grazing 

areas or shrines 

d) ancestral lands and lands traditionally 

occupied by hunter gatherer communities or 

e) land lawfully held as trust land by the county 

governments 

Private land on the other hand consists of registered 

land held by any person under freehold tenure, land 

held by any person under leasehold tenure and any 

other land declared as private land under any Act 

of Parliament. 

The forms of tenure shall be freehold, leasehold, such 

forms of partial interest as may be defined under the 

law and customary land rights. 

Section 7 further articulates the methods in which title 

to land may be acquired which include, allocation, 

land adjudication process, compulsory acquisition, 

prescription, settlement programs, transmissions, 

transfers and long term leases exceeding twenty years 

created out of private land. 

The National Land Commission established under the 



Constitution of Kenya, 2010 is to be incharge of 

managing public land on behalf of the national 

and county governments. 

On administration and management of Private 

Land, all contracts on the disposition of land must 

be in writing and signed by all the parties and 

each signature attested to by a witness who was 

present when the contract was signed by such a 

party. 

On transfers, section 43 defines a transfer to 

include a conveyance, an assignment, transfer 

of land, lease or other intrument used in the 

disposition of an interest in land. Transfers are to 

take effect immediately. 

This Act provides for transmissions by providing 

details on transmission on death and bankruptcy or 

upon company’s liquidation. Provisions on leases 

and charges are substantively articulated. 

On compulsory acquisition of land, the national or 

county government may acquire some particular 

land compulsorily of which just compenstaion 

shall be paid promptly in full to all persons 

whose interests in land have been determined. 

Disputes under this Act may be referred to the 

Land and Environment Court for determination. 

This Court will have exclusive jurisdiction to hear 

and determine disputes, actions and proceedings 

concerning land under the Act. 

Settlement Programmes are provided for in Part IX. 

The National Land Commission is charged with the 

mandate to implement settlement programmes to 

provide access to land for shelter and livelihood. 

The Commission will also assist the national 

and county governments in the administration 

of setlement programmes. To achieve this end, 

the Land Settlement Fund is established under 

section 135 which shall be administered by the 

Commission. This Fund will be applied for the 

provision of access to land to squatters, dispalced 

persons,. Development projects, conservation 

and other such cayuses. It will also be used for 

the establishment of refugee camps, provision of 

shelter and a liveilihood to persons in need. 

This Law repeals the Wayleaves Act(Cap. 292) 

and the Land Acquisition Act (Cap. 295). 

b) THE LAND REGISTRATION ACT (NO. 3 

OF 2012) 

This law seeks to revise, consolidate and rationalize 

the registration of titles to land and to give effect to 

the principles and objects of devolved government 

in land registration. According to Section 3, this 


Act shall apply to registration of interests in all 

public land, private land and registration and 

recording of community interests in land. On 

limitation of the Act, the Act will not prohibit or 

otherwise affect the system of registration under 

any law relating to mining, geo-thermal energy 

or any rights over land and land- based resources 

in respect of public land. 

On organisation and administration, Part II 

provides for the Land Register and Offices and 

for the proper maintenance of the land register 

and documents such as the cadastral map, parcel 

files, any plans, index, presentation book and a 

register and a file of powers of attorney. 

Overiding interests such as spousal rights over 

matrimonial property, trusts, rights of way are 

provided for. 

The following laws are repealed by this piece of 

legislation: 

c) The Indian Transfer of Property Act, 1882 

d) The Government Lands Act (Cap. 280) 

e) The Registration of Titles Act (Cap. 281) 

f) The Land Titles Act (Cap. 282) 

g) The Registered Land Act (Cap. 300) 

THE NATIONAL LAND COMMISSION ACT (NO. 

5 OF 2012) 

This makes further provision as to the functions 

and powers of the National Land Commission. 

The object and purpose of the Act is to specifically 

to provide for the management and adminstration 

of land in accordance with the principles of land 

policy, for the operations, powers, responsibilities 

and additional functions of the Commission. It 

also seeks to provide for the framework for the 

identification and appoitnment of the chairperson, 

members and the secretary of the Commission. 

The function of this Commission will be to 

recommend a national land policy to the national 

government amongst other duties stipulated in 

Article 67(2) of the Constitution. It also seeks 

to give effect to the objects and principles of 

devolved government in land management and 

administration. 

In carrying out functions, the Commission shall 

work in consultation and co-operation with the 

national and county governments. 

41


KENYA SCHOOL OF GOVERNMENT ACT (NO. 

9 OF 2012) 

This Act establishes the Kenya School of 

Government as a successor to the Kenya Institute 

of Administration and the Kenya Development 

Learning Centre. It is to commence on the 1st July, 

2012. 

The School will be responsible for the training, 

consultancy and research services designed to 

inform public policy, promote national development 

and standards of competence and integrity in the 

Public Service.It will also be responsible for the 

continous learning for public service excellence 

and programmes that promote a culture of 

decency, honesty, hard work, transparency and 

accountability. It shall be administered by a 

Council which shall consist of a non- executove 

chairperson, the Permanent Secretaries in the 

ministry responsible for public service, finance, 

higher education and other key persons stipulated 

in section 6. 

This Act repeals the Kenya Institute of 

Administration, (No. 2 of 1996). 

THE PUBLIC SERVICE SUPERANNUATION ACT 

(NO. 8 OF 2012) 

This Act is to establish the Contributory Public 

Service Superannuation Scheme for providing 

retirement benefits to persons in the public service. 

However, it shall come into operation on such 

date as the Minister may appoint by notice in the 

Kenya Gazete. 

The purpose of the Act is to pay retirement 

benefits to members of the Scheme, ensure 

that every member of the Scheme receives his 

retirement benefits. It will aso assist to improve 

the social security of members of the Scheme by 

ensuring that the members save in order to cater 

for their livelihood during their retirement and to 

establish a uniform set of rules, regulations for the 

admninistration and payment of retirement benefits 

for members of the Scheme. 

The Public Superannuation Fund is established 

and the monies that shall be paid into it will be 

contributions and any other payments required by 

this Act and out of it, will be the benefits and any 

other payments required under the provisions of 

this Act. This Fund wil be administered by a board 

of trustees. This Fund wil be valued at intervals of 

five years by an actuary appointed by the Board. 

The Act further seeks to amend the Pensions Act 

(Cap. 189) by stipulating who the provisions of 

the Act do not apply to. These persons include: 

a) a person who at the commencement of this 

Act is employed in the public service on 

permanent and pensionable terms and has 

not attained the age of forty five years. 

b) Secondly, a person who joins the service 

of the Government after the commencment 

of this Act and 

c) lastly a person who in the service of the 

Government at the commencment of the 

Act elects that the provisions shall apply 

to him. 

Further amendments of the same effect are made 

to the Widows’ and Childrens’ Pensions Act 

(Cap.195), National Social Security Fund Act 

(Cap. 258). 

Information Courtesy of the Commission for the Implementation of the 

Constiution - www.cickenya.org 




43




DATE OF 

PUBLICATION IN 

KENYA GAZETTE 

9th March, 

2012. 


KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 12. 

No. 13. 

Legislative Supplements: A digest 

of selected legal notices recently 

published in the Kenya Gazette 

NAME OF 

LEGISLATION 

The Parliamentary 

Service (Constituency 

Offices) (Amendment) 

Regulations, 2011 

L.N. 13/2012. 

The National Assembly 

Constituencies And 

County Assembly 

Wards Order, 2012. 

L.N. 14/2012 

REMARKS 

By: Yvonne Kirina, Copy Reader. 


These Regulations amend the 

Parliamentary Service (Constituency) 

Offices regulations, 2005 by 

inserting certain words to comply 

with the Constitution. 

Further, regulations 2, 3, 13, 35 

have been amended while a new 

regulation was inserted immediately 

after regulation 11 which provides 

that every nominated Member of 

Parliament shall have an office 

within the precints of Parliament in 

Nairobi. 

This Order is made under the 

Independent Electoral and 

Boundaries Commission Act 

No.9 of 2011. Pursuant to Article 

89(1) of the Constitution, there 

shall be two hundred and ninety 

constituencies for the purposes of 

the election of the members of the 

National Assembly provided for in 

Article 97(1) (a). 

This Order determines the 

number, names and delimitation 

of boundaries for constituencies 

and county assembly wards; and 

the specific geographical and 

demographical details relating to 

such delimitation. 

45


DATE OF 


KENYA GAZETTE 

23rd March, 

2012 

13th April 

2012 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 16. 

No. 17. The Copyright 

(Amendment) 


No. 22 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

The Limited Liability 

Partnership Act, No. 

42 of 2011 

L.N. 15/2012 

L.N. 20/2012 

The Medical 

Practitioners And 

Dentists (Disciplinary 

Proceedings) 

(Procedure) 

(Amendment) Rules, 

2012 

L.N. 21/2012. 

REMARKS 

Through this notice, the Attorney- 

General appoints the 16th March, 

2012, as the date on which this 

Act shall come into operation. 

These Regulations seek to amend 

the Second Schedule of the 

Copyright Regulations 2004, 

by deleting Form No. CR 1 and 

substituting with Form No. CR 

1(Revised).The Schedule contains 

an Application for Registration of a 

Copyright Work Form. 

Further the Second Schedule to the 

Copyright Regulations, 2004, is 

amended in item1 by deleting the 

number “600” and substituting it 

therefor the number “1,000”. This 

has the effect of raising the fees 

for application of registration of 

copyright work. 

The Medical Practitioners And 

Dentists (Disciplinary Proceedings) 

(Procedure) Rules are amended by 

inserting a new rule 4A, Professional 

Conduct Committee. This establishes 

a Committee charged with various 

functions; 

a) Conduct inquiries into the 

complaints submitted by 

the preliminary Inquiry 

Committee made under Rule 

4(2) and make appropriate 

recommendations to the 

Board. 

b) ensure that the necessary 

administrative and evidential 

arrangements have been met 

so as to facilitate the Board 

to effectively undertake an 

inquiry under rule 6;. 

c) convene sittings in respective 

counties to determine 

complaints; 



DATE OF 


KENYA GAZETTE 


KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 25 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

The Konza 

Technopolis 

Development Authority 

L.N. 23/2012. 

REMARKS 

d) promote arbitration between 

the parties and refer matters 

to such arbitrator as the 

parties may in writing agree 

Made under section 3 (1) of the 

State Corporations Act, Cap. 446, 

this order 

establishes an Authority to be 

known as the Konza Technopolis 

Development Authority. 

Under this order, the word ‘Area’ 

means all that parcel of land known 

as L.R. 9918/6 located within 

Makueni and Machakos Counties 

measuring approximately 2023.6 

hectares. 

The Authority will be manged by a 

Board which will be comprised of a 

non-executive chairperson appointed 

by the President, the Permanent 

Secretary to the Treasury, the 

Permanent Secretary in the Ministry 

for the time being responsible for 

matters relating to information and 

communications technology among 

others. 

The functions of the Board will be to; 

a) to develop all aspects of 

the area; to regulate and 

administer approved activities 

within the Area, through 

implementation of a system 

in which the Area enterprises 

are self regulatory to the 

maximum extent possible; 

b)liaise with relevant government 

institutions to promote both 

locally and internationally 

the opportunities for 

investment in information and 

communications technology 

and such other industrial 

activities of the Area; 

c) liaise with the Machakos and 

47


DATE OF 


KENYA GAZETTE 

20th April, 

2012 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 26 The Petroleum 

(Amendment) Rules, 

2012 

These regulations amend regulation 

31A of the Petroleum Rules found 

in the Energy Act. With effect from 

L.N. 24/2012. 

the 1st July, 2012, no person shall 

import or cause to be imported 

refined petroleum products except— 

No. 27 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

The Kenya Water 

Towers Agency Order, 

2012 

L.N. 27/2012. 

REMARKS 

Makueni County Authorities to 

ensure developments within 

the buffer zone are in line 

with the permitted standards 

of the Area. 

d) generate additional economic 

activities in the area and 

to carry out any other 

activity necessary for the 

promotion and facilitation of 

development of information 

and communication 

technology products and 

services within the Area. 

(a) liquefied petroleum gas; 

(b) bitumen, and 

(c) fuel oil for use in Kenya 

other than through an Open 

Tender System centrally 

coordinated by the Ministry 

responsible for energy. 

All importation of refined petroleum 

products other than those stated 

above shall except where exempted 

by the Minister in writting, be 

through the Kipevu Oil Storage 

Facility, Shimanzi Oil Terminal, 

Miritini LPG Import Terminal and 

Kenya Petroleum Refineries Limited, 

Changamwe, Mombasa. 

Under this Order, ‘Biodiversity 

hotspot’ means a unique habitat 

with rare and diverse animals, 

organisms and endangered 

species, which is under threat of 

extinction; 

The functions of the Agency among 

other things is to co-ordinate 

and oversee the protection, 

rehabilitation, conservation, and 

sustainable management of water 

towers. 



DATE OF 


KENYA GAZETTE 

18th May, 

2012 

31st May, 

2012 


KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 41 

No. 45 

No. 48 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

The Treaty for the 

Establishment of 

the East African 

Community (Election 

of Members of the 

Assembly) rules, 

2012. 

L.N. 31/2012. 

The Judiciary Fund 


L.N. 35/2012. 

The Biosafety 

(Labeling) 

Regulations, 

2012 

L.N. 40/2012. 

REMARKS 

This Legal Notice is under the Treaty 

for the Establishment of the East 

African Community Act, No 2 of 

2000. 

The rules, among other things 

provide for the election, voting and 

appointment of members of the East 

African Legislative Assembly. 

These Regulations are found 

under the Judicial Service Act,1 of 

2011.The objectives of the fund 

are; 

(a) to utilise it for the settlement 

of the administrative 

expenses of the Judiciary 

and such other purposes as 

may be necessary for the 

discharge of the mandate 

of the Judiciary; 

(b) for defraying personal 

emoluments, program 

activities for the Commission, 

the Supreme Court, the 

Court of Appeal, the High 

Court, Subordinate Courts 

and other judicial services 

under the Act. 

Sources of the Fund shall be from 

all proceeds resulting from net 

proceeds of disposal of excess or 

surplus property, or stores, including 

miscellaneous receipts; Funds from 

Parliament, Consolidated Fund 

fees or Levies administered by the 

Judiciary; grants, gifts, donations or 

bequests. 

The Biosafety (Labelling) Regulations 

are made under the BioSafety Act 

2009. 

In these regulations, ‘labeling’ is 

defined as any written, printed, or 

graphic matter that accompanies 

49


DATE OF 


KENYA GAZETTE 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 48 

No. 49 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

The Nurses 

(Nominations And 

Elections To The 

Council) 


L.N. 41/2012. 

The Energy 

(Electricity Licensing) 


L.N. 44/2012. 

REMARKS 

a food or is displayed near the 

food, including that for the purpose 

of promoting its sale or disposal. 

The object and purpose of these 

regulations is to ensure that 

i ) Consumers are made aware 

that food feed or a product 

is genetically modified so 

that they can make informed 

choices and 

ii) To facilitate the traceability 

of genetically modified 

organism products to assist 

in the implementation of 

appropriate risk management 

measures where necessary. 

These regulations are made under 

sec 4(2) & 26 of the Nurses Act. 

The regulations provide for 

the procedure for nominations 

of members to the Council and 

procedure for appointment of 

nominated members. Further, 

the regulations provide for the 

qualifications of various categories 

of elected members to be elected 

to the council. 

These regulations are under the 

Energy Act. Regulation 2 provides 

an application to any person who 

engages or intends to engage in the 

generation, transmission, distribution 

and supply of electricity energy in 

Kenya. Such persons shall make 

an application in the Form and 

manner set out in the First Schedule 

and the application shall contain 

information required therein and be 

accompanied by the information and 

documents specified in the Second 

Schedule; 

An application for a licence shall be 

accompanied by a non-refundable fee 

of ten thousand shillings payable to 

the Rural Electrification Authority. 



DATE OF 


KENYA GAZETTE 


KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

No. 52 

15th June, 2012 No. 63 

KENYA GAZETTE 

SUPPLEMENT 

NUMBER 

The National 

Construction Authority 

Act.(No. 41 of 2011) 

L.N. 45/2012. 

The Kenya School of 

Government Act (No. 

9 of 2012) 

L.N. 46/2012. 

The Kenya 

Citizenship and 

Immigration 

Regulations, 

2012 

L.N. 64/2012. 

REMARKS 

The Minister for Public Works 

appoints 8th June, 2012 as 

the date on which this Act shall 

come into operation. 

This Act provides for the 

establishment, powers and 

functions of the National 

Construction Authority and for 

connected purposes. 

The Minister of State for Public 

Service appoints the 1st July, 

2012, as the date on which this 

Act shall come into operation. 

Subsection 5(1) provides that the 

School shall provide learning and 

development programmes to build 

capacity for the Public Service. 

The Kenya Citizenship and Immigration 

Regulations, 2012, seeks to make 

provisions for the application of the 

Kenya Citizenship and Immigration 

Act, No. 12 of 2011. 

These Regulations make provisions 

on the import of permanent residence 

certificate and student pass, procedure 

on how to regain citizenship, dual 

citizenship, renunciation of Kenyan 

Citizenship, application for citizenship 

by registration and the revocation of 

Kenyan Citizenship. 

Further, the regulations make 

provisions on the application of 

passports and other travel documents 

and the information to be contained 

thereto. 

Lastly, these regulations provide for 

the Immigration control, points of 

entry departure, reports of entry and 

departure and the types of Visas to be 

issued by the Directors of Immigration 

services and permits of passes to 

be issued by an immigration officer 

and the procedure for acquiring 

them. The foreign naturals register, 

accommodation and employment 

records. 

51


The Kenya Gazette is an official publication 

of the Government of the Republic of Kenya. 

It contains notices of new legislation, notices 

required to be published by law or policy 

as well as other announcements that are published 

for general public information. It is published every 

week, usually on Friday, with occasional releases of 

special or supplementary editions within the week. 

The following is a recap of notable appointments 

made under the Kenya Gazette from April to June, 

2012. 

A). STATE CORPORATIONS AND PARASTATALS 

State corporations are by order established by 

the President and generally regulated by the State 

Corporations Act (Cap. 446). 

The President or the Minister under whose docket 

the particular body lies make various appointments 

to the various state corporations, parastatals and 

even commissions. 

State Advisory Committees are established under 

section 26 of the Act and whose functions are 

mandated in section 27 to advise the president on 

the establishment, reorganization and dissolution 

of the state corporations. 

Gazette Notice No. 244 Dated 16th February, 

2012 

PHYSICAL PLANNERS REGISTRATION BOARD 

The Minister for Lands in exercise of the powers 

conferred by paragraph 1(b) of the Schedule to 

the Physical Planners Registration Act, appointed- 

A RECAP OF EXECUTIVE 

APPOINTMENTS PUBLISHED IN 

THE KENYA GAZETTE FOR THE 

PERIOD APRIL- JUNE 2012 

JANE M. MANASSEH 

to be a member of the Physical Planners Registration 

Board for a period of three(3)years effective 26th 

January, 2012. 

Gazette Notice No. 2444 Dated 21st February 2012 

KENYA ORDINANCE FACTORIES CORPORATION 

The Minister of State for Defence in exercise of section 

6(1) of the State Corporations Act appointed- 

MAJ.-GEN. S.N. KARANJA 

as a member of the Board of Directors of Kenya 

Ordinance Factories Corporation (KOFC) for a period 

of three (3) years effective 18th February, 2011 

Gazette Notice No. 2446 Dated 22nd February 

2012 

THE COMMISSION FOR HIGHER EDUCATION 

The Minister for Higher Education, Science and 

Technology in exercise of the powers conferred by 

section 4 (1) (e) of the Universities Act appointed- 

KIPLAGAT KOTUT 

By: Wanjala Sikuta, Legal proof reader, 


to be a Commissioner for Commission for Higher 

Education, for a period of five (5) years effective 31st 

October, 2011. 

The appointment of David Court as Commissioner 

for Commission for Higher Education was revoked. 



Gazette Notice No. 2799 Dated 5th March, 2012 

NON-GOVERNMENTAL ORGANIZATIONS CO- 

ORDINATION BOARD 

The Minister of State for National Heritage and 

Culture in exercise of the powers conferred by 

section 5(1) of the Non-Governmental Organizations 

Co-ordination Act, appointed- 

PETER OLOISHORUA OLE NKURAIYIA 

to be the Executive Director of Non-Governmental 

Organizations Co-ordination Board, for a period 

of three (3) years effective 15th February, 2012. 

Gazette Notice No. 2801 Dated 2nd February, 

2012 

HORTICULTURAL CROPS DEVELOPMENT 

AUTHORITY BOARD 

The Minister for Agriculture in exercise of the 

Horticultural Crops Development Authority Order, 

1995, appointed- 

STEPHEN MBITHI MWIKYA (DR.) 

to be a Board member of the Horticultural Crops 

Development Authority, for a period of three (3) 

years effective 3rd February, 2012. 

Gazette Notice No. 2802 Dated 1st March, 2012 

COAST DEVELOPMENT AUTHORITY 

The Minister for Regional Development Authorities in 

exercise of the powers conferred by section 4 (1)(i) 

of the Coast Development Authority Act, appointed- 

MICHAEL MURE 

to be a member of the Coast Development Authority 

for a period of three (3) years effective 12th March, 

2012. 

Gazette Notice No. 2801 Dated 2nd March, 2012 

KENYA SUDAR BOARD 

The Minister for Agriculture in exercise of the powers 

conferred by section 5(1) and (3) of the Sugar Act, 

2001 appointed- 

Under section 5(1)(b):- 

Kiptorus Arap Korir, 

Ewing Makhakha Muombo, 

Zakaria Okoth Obado, 

Nicholas Odongo Oricho, 

Billy Wanjala Mukenya, 


Mohammed Mukhwana. 

Under section 5 (1) (c)- 

Evans Kidero (Dr.), 

Paul O. Odola, 

Himesh Kumar B. Patel. 

to be members of Kenya Sugar Board for a period 

of three 3years effective 1st March, 2012. 

Gazette Notice No. 2807 Dated 2nd March, 

2012 

KERIO VALLEY DEVELOPMENT AUTHORITY 

The Minister for Regional Development Authorities 

appointed- 

MOSES LENAIROSHI 

to be a member of the Kerio Valley Development 

Authority for a period of three (3) years effective 

12 March, 2012. 

Gazette Notice No. 3218 Dated 12th January, 

2012 

PHARMACY AND POISONS BOARD 

The Minister for Medical Services in exercise 

of the powers conferred by section 3(1) of the 

Pharmacy and Poisons Act, appointed- 

Francis Kimani (Chairman) 

Kipkerich Chumo Koskei (Dr.) 

Peter Ithondeka(Dr.) 

Paul Mwaniki(Dr.) 

Joseph Oluoch(Dr.) 

Jeniffer Orwa (Dr.) 

Abdi Orma Jama, 

Evans Mumo Mwangangi(Dr.) 

to be members of the Pharmacy and Poisons 

Board for a period of three (3) years effective 

16th March, 2012. 

Gazette Notice No. 3221 Dated 12th March, 

2012 

KENYA YEAR BOOK BOARD 

The Minister for Information and Communications 

in exercise of the powers conferred by section 

3(2)(j) of the Kenya Year Book Order, 2007, 

appointed- 

Mundia Muchiri 

Philip Ochieng 

to be members of the Kenya Year Book Board for 

a period of three(3) years effective 23rd January, 

2012. 

53



WORKING COMMITTEE ON THE KENYAN CASE 

BEFORE 

THE INTERNATIONAL CRIMINAL COURT 

Attorney-General notified for general information 

of the public that the period of appointment of the 

working committee to advise the Government on 

the case before the International Criminal Court 

involving Kenyan Citizens contained in Gazette 

Notice No. 996 of 2012 had been extended for 

a period of ten days effective 7th March, 2012. 


National Hospital Service Committee 

The Minister for Medical Services in exercise of 

the powers conferred by section 6(2)(a) of the 

Governmental Financial Management(Hospital 

Management Services) Regulations, 2009, 

appointed- 

SAID KAITANY 

as Chairman of the National Hospital Service 

Committee for a period of three(3) years. The 

appointment of Beatrice Sabana was revoked. 


2012 

NATIONAL CEREALS AND PRODUCE BOARD 


powers conferred by section 32(b)(c) and (d) of 

the National Cereals and Produce Board Act, 

appointed- 

Geoffrey Gitamo Obure, 

Sunil Shah, 

Daniel Damocha Dibo, 

Monica Amolo, 

Ahmed Ferej (Dr.) 

to be members of the Board of the National Cereals 

and Produce Board for a period of three (3) years 

effective 16th March, 2012. The appointments 

of Mohammed Islam Ali, Adrian W. Mukhebi and 

Timothy K. Busienei were revoked. 


THE KENYA FORESTRY RESEARCH INSTITUTE 

(KEFRI) 

The Minister for Forestry in exercise of the powers 

conferred by section 19 (1) of Science and 

Technology Act, appointed- 

BEN E.N. CHIKAMAI (DR.) 

to be the Director of the Kenya Forestry Research 

Institute for a period of three (3) years effective 1st 

May, 2012. 

Gazette Notice No. 3973 Dated 21st March, 

2012 

NATIONAL GENDER AND EQUALITY 

COMMISSION 

The President and Commander-in-Chief of Kenya 

Defence Forces in consultation with the Prime 

Minister and in exercise of the powers conferred 

on him by section 11 (9) of the National Gender 

and Equality Commission Act, 2011, as read with 

section 9 of the Act, appointed- 

SIMON JONI NDUBAI 

to be a member of the National Gender and 

Equality Commission effective 23rd November, 

2011 


NATIONAL LABOUR BOARD 

The Minister for Labour in exercise of the powers 

conferred by section 6(1) of Labour Institutions Act, 

2007, appointed- 

Under part (a) 

Ekuru Aukot - (Chairperson) 

Under paragraph (b) 

Francis Atwoli 

Under paragraph (c) 

Jacqueline Mugo 

Under paragraph (d) 

Christopher Malayu 

Maureen Onyango 

Under paragraph (e) 

George N. Muchai 

Isaiah Kubai 

Under paragraph (f) 

Edna Ameyo 

George Kamau 

to be members of the National Labour Board, for 

a period of three(3) years effective 21st March, 

2012. 

Gazette Notice No. 4339 Dated 2nd April, 2012 

COMPETENT AUTHORITY 

The Attorney-General in exercise of the powers 

conferred by section 48(1) of the Copyright Act, 



2001, appointed- 

Benard Sihanya(Prof.) – (Chairman) 

Members: 

Paul Musili Wambua(Prof.), 

Leonard Aloo Obura, 

JohnSyekei, 

Michi Kirimi, 

to be members of the competent Authority for a 

period of three (3) years. Gazette Notice No. 6385 

of 2009 was revoked. 


ANTI-CORRUPTION AND ECONOMIC CRIMES 

ACT 

Chief Justice/ President of the Supreme Court in 

exercise of the powers conferred by section 3 (1) 

of the Anti-corruption and Economic Crimes Act, 

appointed- 

STEPHEN N. RIECHI 

Chief Magistrate, as special magistrate to preside 

over cases involving corruption and economic 

crimes in the area of jurisdiction of his current court 

station and future stations deployed to from time to 

time effective 2nd April, 2012. 


CONSOLIDATED BANK OF KENYA 

The Minister for Finance in exercise of the 

powers conferred by section 6 (1)(e) of the State 

Corporations Act, appointed- 

Methuselah Langat Rono, 

George Mugo Murage 

to be members of the Board of Consolidated Bank 

of Kenya Limited for a period of three (3) years 

effective 12th March, 2012. 


COMPETITION TRIBUNAL 

The Minister for Finance in exercise of the powers 

conferred by section 71(2)(a) of the Competition 

Act, appointed- 

SAMUEL NDUNG’U MUKUNYA 

to be the Chairman of the Competition Tribunal for a 

period of five (5) years effective 12th March, 2012. 

Gazette Notice No. 4686 Dated 4th April, 2012 

NATIONAL SOCIAL SECURITY FUND BOARD 

OF TRUSTEES 

The Minister for Labour in exercise of the powers 

conferred by section 1 of the First Schedule to the 

National Social Security Fund Act, appointed- 

Under paragraph 1(d)(i)- 

Jacqueline Mugo, 

Under paragraph 1(d)(ii)- 

Francis Atwoli, 

Cornelius Ogutu Nyang’un, 

to be members of the National Social Security 

Fund Board of Trustees for a period of three (3) 

years. 

Gazette Notice No. 4682 Dated 22nd March, 

2012 

The Minister for Trade in exercise of the powers 

conferred by section 6(1)(e) of the State 

Corporations Act, appointed- 

JOSEPH MWANGI WACHIURI 

to be a member of the Board of Directors of the 

Kenya Wine Agencies Limited for three years (3) 

years effective 20th March, 2012 


2012 

KENYA MEDICAL RESEARCH INSTITUTE 

The Minister for Public Health and Sanitation in 

exercise of the powers conferred by section 15(1) 

(f) of the Science and Technology Act, appointed- 

Ruth Nduati (Prof.) 

Peter Omboga (Dr.) 

Wilson Kipng’eno Koech (Prof.) 

to be members of the Kenya Medical Research 

Institute Board of Management for a period of 

three (3) years effective 1st March, 2012. 

Gazette Notice No. 4688 Dated 11th April, 

2012 

KENYA AGRICULTURAL RESEARCH INSTITUTE 


powers conferred by section 19 of the Science 

and Technology Act, appointed- 

EPHRAIM A. MUKISIRA(DR.) 

to be Director, Kenya Agricultural Research 

Institute and under section 15(1)(d) to be the 

Secretary to the Board of Management of Kenya 

Agricultural Research Institute for three (3) years 

effective 10th April, 2012. 


55



2012 


The Chief Justice/President of the Supreme Court 

and Chairman of the National Council for Law 

Reporting notified for general information of the 

public that in exercise of the powers conferred on 

him by section 4(1)(f) of the National Council for 

Law Reporting Act, the Law Society of Kenya had 

appointed- 

Florence Muoti Mwangangi 

Evans Monari 

to be members of the Board of the National Council 

for Law Reporting representing the Law Society 

of Kenya for a period of three (3) years effective 

23rd March, 2012. 


KENYA WINES AGENCIES LIMITED (KWAL) 

The President and Commander-in-Chief of the 

Defence Forces of the Republic of Kenya, reappointed- 

RICHARD MOITALEL KENTA 

to be the Chairman of the Kenya Wine Agencies 

Limited (KWAL) for three (3) years effective 13th 

March, 2012., 


EXPORT PROMOTION COUNCIL 


Defence Forces of the Republic of Kenya, 

appointed- 

PETER NJERU NDWIGA 

to be the Chairman of the Export Promotion Council 

for three (3) years effective 13th March, 2012. 


KENYA ROADS BOARD 



appointed- 

JOEL MUTHUNGA WANYOIKE (ENG.) 

to be the Chairman of the Kenya Roads Board for 

three (3) years effective 13th March, 2012. 


NATIONAL GENDER AND EQUALITY 

COMMISSION 


Defence Forces of the Republic of Kenya, in 

exercise of the powers conferred on him by 

section 11(9) of the National Gender and Equality 

Commission Act, 2011 as read with section 9 of 

the Act and in consultation with the Prime Minister, 

appointed- 

WINFRED OSIMBO LICHUMA 

to be the Chairperson of the National Gender and 

Equality Commission for three (3) years effective 

23rd November, 2011. 


TRANSPORT LICENSING BOARD 


Defence Forces of the Republic of Kenya, appointed- 

JOSEPH KAMAU THUO (ENG.) 

to be the Chairman of the Transport Licensing Board 

for one (1) year. 


NATIONAL CAMPAIGN AGAINST DRUG ABUSE 

AUTHORITY( NACADAA) 

The Minister of State for Provincial Administration 

and Internal Security appointed- 

WILLIAM N. OKEDI 

The National Co-ordinator and Chief Executive 

Officer of the Authority for three(3) years effective 

6th April, 2012. 

Gazette Notice No. 5054 Dated 15th February, 

2012 

NZOIA SUGAR COMPANY LIMITED 

The Minister for Agriculture appointed- 

SAUL WASILWA 

to be the Managing Director and Secretary to the 

Board of Nzoia Sugar Company Limited for three 

(3) years effective 20th May, 2012. 




KENYA CITIZENS AND FOREIGN NATIONALS 

MANAGEMENT SERVICE BOARD 



appointed- 

AMB. KALIMI MUGAMBI MWORIA 

to be the Chairperson of the Kenya Citizens and 

Foreign Nationals Management Service Board for 

six (6) years. 


CONSTITUENCIES DEVELOPMENT FUND 

The Minister of State for Planning, National 

Development and Vision 2030, appointed- 

BONIFACE LOKAALE KOROBE 

to be a member of the Board of the Constituencies 

Development Fund for three (3) years effective 10th 

April, 2012. 


KENYA FERRY SERVICES 

The Minister for Transport appointed- 

Khamis S. Khamis, 

Miriam N. Mahero (Mrs.) 

to be members of the Board of Directors of the 

Kenya Ferry Services for three (3) years effective 

16th April, 2012. 

Gazette Notice No. 5061Dated 10th April, 2012 

KENYA PORTS AUTHORITY 


Bernard Gaithuma Njuguna, 

Eunice Wanja Njeru (Ms.), 

Khadija Karim (Mrs.), 


Kenya Ports Authority for three (3) years effective 

17th April, 2012. 

Gazette Notice No. 5061Dated 10th April, 2012 

KENYA RAILWAYS CORPORATION 


Charity Kanyeche Maingi(Mrs.), 

Michael Njau Njoroge, 



Kenya Railways Corporation for three (3) years 

effective 8th April, 2012. 

Gazette Notice No. 5068 Dated 1st April, 2012 

NEW NYANZA PROVINCIAL HOSPITAL 

The Minister for Medical Services notified for 

public information that the name of the New 

Nyanza Provincial General Hospital had been 

changed to 

- 

JARAMOGI OGINGA ODINGA TEACHING 

AND REFERRAL HOSPITAL 


2012 

KENYA CIVIL AVIATION AUTHORITY 


KEVIN KANINA KARIUKI (DR.) 

to be the Chairman of the Board of Directors 

of the Kenya Civil Authority for three (3) years 

effective 2nd April, 2012. 


2012 

NATIONAL OIL CORPORATION OF KENYA 

The President and Commander-in-Chief of 

the Defence Forces of the Republic of Kenya, 

appointed- 

PETER K. MUNGA 

to be the Chairman of the Board of Directors, 

National Oil Corporation for three (3) years 

effective 24th March, 2012. 

Gazette Notice No. 5416 Dated 19th April, 

2012 

NATIONAL ENVIRONMENT MANAGEMENT 

AUTHORITY(NEMA) 

The President and Commander-in-Chief of 

the Defence Forces of the Republic of Kenya, 

appointed- 

GEOFFREY M. WAHUNGU(PROF.) 

to be Director-General of the National Environment 

Management Authority(NEMA) for four (4) years. 


2012 

57


MULTI-AGENCY TASK FORCE ON THE 2007/2008 

POST-ELECTION VIOLENCE CASES 

The Director of Public Prosecutions notified for 

the general information of the public that he had 

established a Multi-Agency Task Force to consider 

the cases arising out of the 2007/2008 Post- 

Election Violence 

The Task Force comprised of the following; 

Dorcas Oduor—(Chairperson) 

Joseph King’arui—(Vice-chairperson) 

Members 

Emily Chweya 

Mohamed I. Amin 

Lilian Kiamba 

James Marienga 

Sebastian Mutinda 

Patrick Ndeto 

Thomas Kathuli 

Alexander Muteti 

Zachary Omwega 

Lilian Obuo 

George Murithi 

Geoffery Obiri 

Peter Kiprop 

Benjamin B. Limo 

Katherine Kithikii 

Mary Wang’ele 

Armstrong Rotich 

Terry Kahoro 

The terms of reference of the Task Force was— 

(a) undertake a country-wide review, reevaluation 

and re-examination of all the 

cases arising out of the 2007/2008 

Post-Election Violence and make 

appropriate recommendations; 

(b) review any reports, publications and 

judicial decisions that are relevant to the 

Post- 

(c) The duration of the Task Force was a 

period of six months, with effect from the 

6th February, 2012. 

(d) The Secretariat of the Task Force was 

at the Office of the Director of Public 

Prosecutions, NSSF Building; Block A, 

19th Floor, P. O. Box 30701-00100, 

Nairobi. 

Gazette Notice No. 5419 Dated 19th April, 2012 

ENERGY REGULATORY COMMISSION 

The Minister for Energy, appointed- 

Stanley Ngaine, 

Nassra Abdirahman, 

to be Commissioners of the Energy Regulatory 

Commission for three (3) years effective 20th 

April, 2012. 

Gazette Notice No. 5420 Dated 23rd April, 2012 

KENYA ORDINANCE FACTORIES CORPORATION 

(KOFC) 

The Minister of State for Defence appointed- 

MAJOR-GENERAL L.K. TUMBO 

as a member of the Board of Directors of the 

Kenya Ordinance Factories Corporation(KOFC) 

for three (3) years effective 11th April, 2012. The 

appointment of Major-General S.N. Karanja was 

revoked. 


NATIONAL HOSPITAL INSURANCE FUND BOARD 



appointed- 

Richard Muga (Prof.)—(Chairman); 

Members: 

Wilson Sossin, 

David Konchella, 

Judith Bwonya (Dr.), 

Andrew J. Suleh (Dr.), 

Elijah Adui Onyango, 

Jacqueline Mugo (Mrs.), 

Julius Mutua, 

Francis Kimani (Dr.), 

Samwel Karicho, 

Richard L. Kerich, 

as members of the National Hospital Insurance 

Fund Board, effective 9th May, 2012. 


CHEMELIL SUGAR COMPANY LIMITED 

IN EXERCISE of the powers conferred by section 6 

(1) (b) of the State Corporations Act, the Minister 

for Agriculture appointed— 

CHARLES APUDO OWELLE 

to be the Managing Director, Chemelil Sugar 

Company Limited, for a period of three (3) years, 

with effect from the 11th May, 2012. 

Gazette Notice No. 6259 Dated 9th May, 2012 

NATIONAL HOSPITAL INSURANCE FUND 

IN EXERCISE of the powers conferred by section 

7 (3) of the State Corporations Act, the President 

and Commander-in-Chief of the Kenya Defence 



Forces, appointed— 

Mutuma Mugambi (Prof.)—(Chairman), 

Titus Ndambuki, Permanent Secretary, Ministry of 

State for Public Service, 

Esther Koimett (Ms.), Permanent Secretary, Ministry 

of Finance (Representative), 

Beatrice Kituyi, Permanent Secretary, Ministry of 

Labour, 

Mary W. Ngari, Permanent Secretary, Ministry of 

Medical Services, 

Peter Ondieki, Inspector-General, State Corporations, 

Office of the Prime Minister, 

Stephen K. Kirogo, Secretary, State Corporations 

Advisory Committee, Presidency and Cabinet Affairs 

Office, 

Francis Atwoli, Secretary-General, Central 

Organization of Trade Unions (COTU), 

Jackline Mugo, Federation of Kenya Employers, 

Tom Odege, Secretary-General, Union of Kenya 

Civil Servants, 

David Okuta, Secretary-General, Kenya National 

Union of Teachers, 

to be members of the Board of the National Hospital 

Insurance Fund, for a period of three (3) months. 


KENYA AIRPORTS AUTHORITY 

IN EXERCISE of the powers conferred by section 5 (1) 

(f) of the Kenya Airports Authoriity Act, the Minister 

for Transport appointed— 

GABRIEL COMBA KIVUTI 

to be a member of the Board of Directors of the 

Kenya Airports Authority, for a period of three (3) 

years, with effect from the 3rd May, 2012. 

Gazette Notice No. 6938 Dated 22nd May, 2012 

INDEPENDENT POLICING OVERSIGHT AUTHORITY 


(8) of the Independent Policing Oversight Authority 

Act, 2011, the President and Commander-in-Chief 

of the Kenya Defence Forces, appointed— 

MACHARIA NJERU 

to be the Chairperson of the Independent Policing 

Oversight Board for a period of six years. 

Gazette Notice No. 6939 Dated 22nd May, 2012 

INDEPENDENT POLICING OVERSIGHT AUTHORITY 


(8) of the Independent Policing Oversight Authority 

Act, 2011, the President and Commander-in-Chief 


of the Kenya Defence Forces, appointed— 

Mbugua Thomas Kagwe 

Fatuma Ali Saman 

Jedidah Pilale Ntoyai 

Madoka Grace Barbara 

Vincent Kibet Kiptoo 

Rose Awuor Bala 

Jane Njeri Njoki Onyango 

to be Members of the Independent Policing 

Oversight Board for a period of (6) years. 

Gazette Notice No. 6940 Dated10th May, 2012 

KENYA FORESTRY RESEARCH INSTITUTE 


15 (1) (f) of the Science and Technology Act, the 

Minister for Forestry and Wildlife appointed— 

ROBERT MASIBHO WANJALA 

to be a member of the Board of Management 

of the Kenya Forestry Research Institute, for a 

period of three (3) years, with effect from the 28th 

March, 2012. 

Gazette Notice No. 6941 Dated14th May, 2012 

NATIONAL COMMUNITY SERVIC ORDERS 

COMMITTEE 


7 (1) (j) of the Community Service Orders Act, 

the Chief Justice/President of the Supreme Court, 

appointed— 

Timothy Okello, 

Roseline Njogu Mugambi, 

to be members of the National Community Service 

Orders Committee, with effect from the 1st April, 

2012. 


2012 

COFFEE RESEARCH FOUNDATION 


6 (1) (e) of the 

State Corporations Act, the Minister for Agriculture 

appointed— 

Jenesio Kinyamario (Prof.), 

Elijah Biamah (Prof.), 

Joseph Mailu Malu, 

Henry Kipngeno Tonui, 

to be members of the Board of Coffee Research 

Foundation for a 

period of three (3) years, with effect from 11th 

59


May, 2012. 


NATIONAL CONSTRUCTION AUTHORITY 


7 (1) (g) of the 

National Construction Authority Act, 2011, the 

Minister for Public Works appointed— 

KENNEDY ONDITI 

to be the Chairperson of the Board of the National 

Construction Authority, for a period of three (3) 

years, with effect from the 8th June, 2012. 

Gazette Notice No. 8281 Dated 18th June, 2012 

THE TRANSITION AUTHORITY 


5 (1) (a) and First Schedule to the Transition to 

Devolved Government Act, 2012, President and 

Commander-in-Chief of Kenya Defence Forces, in 

consultation with the Prime Minister, appointed— 

KINUTHIA MWANGI WAMWANGI 

to be the Chairperson of the Transition Authority. 

Gazette Notice No.8282 Dated 18th June, 2012 

THE TRANSITION AUTHORITY 


5 (1) (a) and First Schedule to the Transition to 

Devolved Government Act, 2012, President and 

Commander-in-Chief of Kenya Defence Forces, in 

consultation with the Prime Minister, appointed— 

Angeline Awino Hongo, 

Safia Abdi, 

Mary Mwongeli Ndeto, 

Jacqueline Akhalemesi Mogeni, 

Erastus B. I. Nyaga Rweria, 

Simeon Pkatey Pkiyach, 

Bakari Garise Omara, 

Dabar Abdi Maalim, 

to be members of the Transition Authority. 

Gazette Notice No. 8283 Dated 18th June 2012 

PUBLIC INQUIRY 


9 of the Civil Aviation (Investigation of Accidents) 

Regulations, the Minister for Transport, being 

of the opinion that it was in the public interest, 

appointed— 

Lady Justice Kalpana Rawal, Judge of Appeal— 

(Chairperson); 

to hold a public inquiry into the causes and the 

circumstances surrounding and leading to a fatal 

accident involving aircraft registration 5Y–CDT type 

AS 350B3, which occurred on the 10th June, 2012, 

in Kibiko, Ngong Forest. 

She will be assisted by the following assessors— 

Maj.-Gen. (Rtd.) Harold Tangai, 

Maj. (Rtd.) Charles Munyeki Wachira, 

Capt. Peter M. Maranga, 

Fred Aggrey Opot. 

The assisting counsel shall be— 

Charles Mutinda, 

Faith Irari, 

James Mungai Warui. 

The Technical Assistant shall be— 

Clatus Macowenga. 

The terms of reference of the Public Inquiry are— 

1. To probe into the procedures surrounding 

the procurement and purchase of 

Helicopter Eurocopter 5Y–CDT type AS 

350 B3. 

2. To probe into the servicing, maintenance, 

usage and storage of Helicopter 

Eurocopter 5Y–CDT type AS 350 B3 prior 

to the accident. 

3. To look into the circumstances 

surrounding the flight control of Helicopter 

Eurocopter 5Y–CDT type AS 350 B3 by 

Wilson Control Tower on the morning of 

the 10th June, 2012. 

4. To probe into and to establish the causes 

that led to the fatal accident of Helicopter 

Eurocopter 5Y–CDT type AS 350 B3. 

5. To look into any other matter relating 

or consequential to the accident of 

Helicopter Eurocopter 5Y–CDT type 

AS 350 B3 and make appropriate 

recommendations. 

The Secretariat of the inquiry shall be at Transcom 

House, 8th Floor, Nairobi. 

Gazette Notice No. 8288 Dated 19th June, 2012 


(1) of the Civil Aviation (Investigations of Accidents) 

Regulations, 1979, the Minister for Transport 

appointed— 



CLATUS MACOWENGA 

to be Chief Inspector of Accidents, for a period 

of one and half (11/2) years with effect from 5th 


Gazette Notice No. 8289 Dated 23rd May, 2012 

TEA BOARD OF KENYA 

IN EXERCISE of the powers conferred by section 4A 

of the Tea (Amendment) Act, 2011, the Minister for 

Agriculture appointed— 

SICILY KANINI KARIUKI 

to be the Managing Director and Secretary to the 

board of the Tea Board of Kenya, for a period of 

three (3) years, with effect from 26th May, 2012. 

Gazette Notice No. 7572 of 2012 was amended. 


CO-OPERATIVE TRIBUNAL 


77 (1) (a) of the Co-operative Societies Act (Cap. 

490), the Minister for Co-operative Development 


and Marketing, appointed— 

BEATRICE WAMBUI MATHENGE 

as Deputy Chairperson of the Co-operative 

Tribunal, with effect from the 15th June, 2012. 


RIFT VALLEY WATER SERVICES BOARD 


51 of the Water Act, 2002, the Minister for Water 

and Irrigation appointed— 

SAMUEL KALENG LOUMO 

to be a member of the Board of Directors of Rift 

Valley Water Services Board, for a period of 

three (3) years, with effect from 14th June, 2012. 

61


Introduction 

The current Kenyan Constitution was enacted 

on 27th August 2010, replacing the 

older one that had been in place since 

independence in 1963. Article 2 of the 

Constitution provides that the Constitution is the 

supreme law of the Republic of Kenya and binds 

all persons and all state organs at both levels of 

government. 

Article 2(4) further states that any law including 

customary law that is inconsistent with this 

constitution is void to the extent of the inconsistency, 

and any act or omission in contravention of this 

Constitution is invalid. 

Clearly the principle of constitutional supremacy is 

well illustrated but the challenge posed is that laws 

that were enacted before it are still in existence; 

as a result courts have had to disregard certain 

provisions of statute law that are inconsistent with 

the constitution. 

Below are some of these instances; 

A. INCONSISTENCY WITH STATUTE LAW 

THE EMPLOYMENT ACT 

In Samuel G. Momanyi vs The A.G & Anor 

High Court, Constitutional and Human Rights 

Division 

Petition No. 341 of 2011 

THE EFFECT OF THE NEW 

CONSTITUTION ON THE LAWS 

OF KENYA 

In this case the court declared Section 45(3) of the 

Employment Act inconsistent with the provisions of the 

constitution of Kenya particularly Article 28, 41(1), 

47, 48 and 50(1). Section 45(3) provides that an 

employee who has been continuously employed by 

his employer for a period of not less than thirteen 

months immediately before the date of termination 

shall have the right to complain that he has been 

unlawfully terminated. 

Justice Lenaola said that section 45(3) purports to 

deny the petitioner the right to human dignity, right 

to fair labor, consumer rights, right to access justice 

and the right to have a dispute resolvable by the 

application of the law decided in a fair and public 

hearing, which are the rights enshrined in Article 28, 

41(1), 47, 48 and 50(1) of the Constitution. 

CHILDREN’S ACT. 

By: Monicah Mwangi & Brenda Orau, 

Legal interns, Laws of Kenya Department 

In the case of M.S vs I.A.K suing through Mother and 

next friend C.A.O 

Constitutional Application No. 526 of 2008 

High Court of Kenya at Nairobi 

In this case the court stated that Article 53(2) of the 

Constitution which states that child best interest is of 

paramount importance in every matter concerning 

the child, takes precedence over section 24(2) of the 

children’s Act which only applies to men who are not 

biological fathers and who have acquired parental 

responsibility. 

Justice Mumbi Ngugi affirmed that any provision 

of the Children’s Act that is in conflict with the 

Constitution must give way to the Constitution. 



ANTI-COUNTERFEIT ACT 

P.A.O & 2 others v A.G 

High Court of Kenya 

High Court declared that the enforcement of section 

2, 32 and 34 of the Anti-Counterfeit Act violated 

the right to life as protected by Article 26(1), the 

right to human dignity guaranteed under Article 28 

and the right to the highest attainable standard of 

health provided by Article 43(1) of the Constitution. 

Section 2 of the Anti-Counterfeit Act defines actions 

that when taken without the authority of the owner 

of the intellectual property subsisting in Kenya or 

elsewhere in respect of protected goods will amount 

to counterfeiting. Section 32 also criminalizes any 

dealings with counterfeit goods. 

The judge was of the view that enforcement of the 

Anti-Counterfeit Act in so far as it affects access 

to affordable and essential drugs and medication 

particularly generic drugs is a breach of the 

petitioner’s right to health guaranteed under the 

Constitution. 

He also stated that it is incumbent on the state 

to reconsider the provisions of section 2 of 

the Act alongside its constitutional obligation 

to ensure that its citizens have access to the 

highest attainable standard of health and make 

appropriate amendments to ensure that the rights 

of the petitioner and other dependants on generic 

medicine are not put in jeopardy. 

ADVOCATES (PRACTICE) RULES 

Okenyo Omwansa George and anor v the A.G 

& 2 others 

High Court at Nairobi-Constitutional and Human 

Rights Division 

The High Court was of the view that if rule 2 of the 

Advocates (practice) rules which bars advocates 

from advertising constitutes a complete ban then 

it is unconstitutional and inconsistent with Articles 

46(1) and Article 48 of the constitution. 

Article 46(1) provides for consumer rights and 

Article 48 provides for access to justice for all 

persons. 

PENAL CODE 

Republic v John Kimita Mwaniki (2011) 

High Court at Nakuru 

In this case inconsistency between section 204 


of the penal code which states that any person 

convicted of murder shall be sentenced to death 

and section 26 of the Constitution which says that 

every person has the right to life and a person 

shall not be deprived of life intentionally, except to 

the extent authorized by this constitution or other 

written law was pointed out. 

CRIMINAL PROCUDURE CODE 

Aboud Rogo Mohammed & Another v Republic 

(2011) 

High Court at Nairobi 

Inconsistency between Section 123 of the Criminal 

Procedure Code and Section 49(1) of the new 

constitution was pointed out in this case. 

Section 123 of the Criminal Procedure Code 

excludes from bond and bail persons charged 

with offences of murder, treason, robbery with 

violence, attempted robbery with violence or any 

drug related offence. While Section 49(1) of the 

constitution states that any arrested person has the 

right to be released on bond & bail, on reasonable 

conditions pending a charge or trial, unless there 

are compelling reasons not to be released. 

H.I.V AND AIDS PREVENTION CONTROL ACT 

Aids Law Project v A.G & Another (2011) 

In the High Court of Kenya 

Petition No 97 of 2010 

The applicants in this case stated that there is 

inconsistency between Section 24(1) of the H.I.V. 

and AIDS Prevention Control Act and Article 31 


Section 24 of the HIV and AIDS Prevention 

Control Act provides that a person who is aware 

of being infected with the virus shall take all 

reasonable measures and precautions to prevent 

the transmission of the virus to others by disclosing 

their HIV status. On the other hand Article 31 of 

the Constitution provides that every person has a 

right to privacy, and this includes the right not to 

have information relating to their private affairs 

unnecessarily required or revealed. 

B. INCONSISTENCY WITH CUSTOMARY LAW 

Lucy Kemboi v Cleti Kurgat & 5 Others (2012) 

In the High Court of Kenya 

In this case the Court stated that a widow has a 

63


right just like that of her in-laws, to bury the remains 

of her husband, this right is guaranteed by Article 

27(3) and 27(4) of the Constitution which gives both 

women and men the right of equal opportunities in 

cultural and social spheres and that there should 

be no discrimination directly or indirectly on any 

ground. 

The Court acknowledged that though Keiyo 

Customary Law was applicable which allows the 

clan and the brothers to bury the deceased, the 

applicant had her right derived from the written 

law which supersedes customary law. 

Samson Kiogora Rukunga vs Zipporah Gaiti 

Rukunga High Court at Meru 

In this case the judge held that married daughters 

were entitled to inherit their parent’s estate. This 

matter was settled by Article 27 and 60 of the 

Constitution which prohibits discrimination. 

Article 60(f) eliminates gender discrimination 

in law, customs & practices related to land and 

property in land. The Court further laid emphasis 

on Sections (3) (4) and (5) of Article 27 of the 

new Constitution which forbids marital status as 

a ground for discrimination. 

CONCLUSION 

The new Constitution is a great progress, but it’s 

just a starting point, parliament needs to urgently 

enact Laws that will help in its implementation 

and enforcement. 

It’s important that the inconsistencies in existing 

legislation and the Constitution be cured to allow 

for equality before the law; this will also facilitate 

protection of the fundamental rights in the Bill of 

Rights and access to justice. 

“Africa is a continent surging with impatient nationalist movements 

striving to win freedom and independence. Apart from this 

struggle, there is the struggle against disease, poverty and 

ignorance. Unless these three evils are defeated, political freedom 

would become hollow and meaningless…the motive behind 

various nationalist movements should always be geared towards 

the security of all our people, higher standards of living and social 

advancement.” 

Tom Mboya on July 1st 1958 at Makerere University 


Feature 

Introduction 


LAWS OF KENYA AND 

EDITORIAL DEPARTMENTS 

ATTENDS TRAINING ON 

ELECTRONIC PUBLISHING 

FOR PRINT 

By: Evelyn Anyokorit Emaase, 

Copyeditor, Laws of Kenya Department 

& Catherine Magiri Moni, 

Publishing Assistant, Editorial Department 

Changing trends in technology are greatly impacting the growth of the publishing Industry. Publishers 

need to be in line with current technology for efficient services. The National Council for Law 

Reporting (NCLR) in its effort to better its products and services, organized for a two week training 

on Electronic Publishing for Print. The training was tailored to suit the current publishing needs 

of the two departments. It was facilitated by the Academy of Graphic Technologies (AGT), between 7th 

and 18th May, 2012 both at NCLR’s and AGT’s premises. The course was intended to equip the officers 

with vast and emerging technology in the field of publishing. 

Participants 

pause for a 

photograph 

after training 

from left; AGT 

Trainer Daniel 

Katambo, Eva 

Murage, Naomi 

Mutunga, 

Cicilian 

Mburunga, Laila 

Mbevi, Geoffrey 

Andare, 

Catherine Moni, 

Dorcas Kaveke, 

Lisper Njeru, 

Julie Mbijiwe, 

Yvonne Kirina, 

Evelyn Emaase, 

Wambui Kamau 

and Phoebe 

Iyaya 

65


The areas addressed include: 

1. Introduction to electronic publishing for print 

Electronic publishing for print is using the computer 

to combine text and graphics into documents for print 

or electronic distribution. To achieve this, designers 

need a dedicated graphics software package. For 

most print publishing an illustration program, and 

an image editor are the types of programs needed. 

Some programs may incorporate a few features of 

the other type, but designers will require each one. 

2. Standard softwares used for publishing 

Adobe suite softwares are the most ideal for 

publishing, these include: Adobe indesign, photoshop 

and Illustrator. Adobe indesign can be used to create 

works such as posters, flyers, brochures, magazines, 

newspapers, books and so forth. It is suitable for any 

print design projects because it is built for pre-press 

and color management. 

Adobe Photoshop as the name suggests is an 

excellent software for editing photos and images. 

If a designer is preparing a digital or scanned 

photograph for use in a project, whether it be a 

website, brochure, book design or packaging, the 

first step is often edit it in Photoshop. Using a variety 

of tools within the software, a designer is able to 

achieve the desired results by cropping, resizing 

photos, adjust & correct colors, Touch-up photos, 

such as erasing a blemish or removing a tear or a 

fold. Saving photos in a variety of formats for use in 

print projects is another key element among others. 

3. Exploring the advantages of using Adobe 

indesign as a publishing software:- Capabilities 

and compatibilities 

The participants were taken through Adobe Indesign 

application practically 

exploring its capabilities 

and compatibilities, 

among them: 

The ability to support 

abundance of paper 

layout and the ability 

to create custom 

page layout without 

restrictions; 

Ability to place and 

align objects accurately 

using text and image 

frame tools; 

Master pages that save 

one from creating the same background multiple 

times for a multipage documents –masters allow 

creation of a document that can be applied to 

every page document; 

Linked text boxes that allow text to flow freely 

within a network of text boxes. This makes editing 

text content much easier since the text boxes 

automatically adjust the contained text. 

Graphic tools that allows one to edit images 

beyond image manipulation gives a set of built 

in image effects, filters and functions like adding 

shadows, feathering, transparency and so forth. 

Unlimited export options that works seamlessly 

with Adobe Acrobat to Portable Document Formats 

(PDF) as PDF is the most accessible format to view 

in any operating system solving cross platform 

problems; 

Adobe InDesign CS5 software that includes new 

and enhanced EPUB file export features improve 

production and provide greater control for creating 

compelling eBooks that can be read on a wide 

range of eBook reading devices, including the 

Apple iPad, and various mobile phones; 

Adobe InDesign allows the designer to embed 

fonts and images hence becoming a property of 

the file thus retaining the desired quality when 

printed. If files are not embedded they loose some 

components such as fonts, when this happens 

documents default to the alternative font making it 

loose its quality. It is important to note that some 

computers at times cannot recognize another font 

to default and the characters will drift loosing out 

their original shape. 

Paste board, custom workspace, document presets, 

page numbering, eye dropper, swatch pallet 

among others are the characteristics of Adobe 

Members keenly follow on the capabilities and 

compatibilities of Adobe indesign 

as a publishing software 



in design that make it stand out as suitable for all 

types of publishing for print. 

4. File Preflight and packaging 

Preflight is quality check performed on the 

document before printing to a ascertain problems 

that may have arisen during document creation. 

Such problems may include: missing links or fonts, 

low-resolution images, overset text and a number 

of other conditions. 

It is possible to configure preflight settings to define 

which conditions are detected. These preflight 

settings are stored in preflight profiles for easy 

reuse. Preflight profiles can be created or imported 

from your printer or another source. 

To have advantage of live preflight, specific 

preflight profile is created in the early stages of 

creating a document. If Preflight is turned on, a red 

circle icon appears in the status bar when InDesign 

detects any problems. One can open the Preflight 

panel and view the Information section to get basic 

guidance for fixing the problems. 

Packaging 

This entails gathering the files used, including 


fonts and linked graphics, in preparation for the 

document to be sent for printing. When packaging 

a file, a folder that contains the In Design document 

is created (or documents in a book file, any 

necessary fonts, linked graphics, text files, and a 

A screen shot of a pop-up window with a 

summary of what is being packaged. 

NCLR’s Laws of Kenya and Editorial team 

with the AGT Trainers after touring 

the AGT printing press. 

67


customized report). This report, which is saved as 

a text file, includes the information in the printing 

instructions dialog box. 

5. Imposition 

Imposition is one of the fundamental steps in the 

prepress printing process. It consists the arrangement 

of the product’s pages as they will appear on the 

printed sheet, in order to reduce turn around time, 

simplify binding processes and reduce paper waste. 

Some of the factors to consider during imposition 

includes: 

Format of the product: The size of the finished page 

determines how many pages can be printed on a 

single sheet. 

Number of pages of the printed product: 

The designer must determine how many sheets are 

to be printed to create a finished book. 

Binding method: The designer must understand how 

the sheets are placed to form the signatures that 

compose the finished book. 

Imposition proof 

Imposition proof is the last check that is performed 

before beginning the print run. This check is 

performed to verify, through, that the imposition was 

successful. Typical checks are that the pages are 

on the correct spot and the crossover bleeds work. 

EPUB stands for Electronic Publication and it’s 

the accepted standard format for digital book 

publishing. ebook that can be read on a digital 

device, need to be in EPUB format. EPUB format, 

is the preferred format for reading on many ebook 

readers. To read a file that is stored in electronic 

format one needs a reader. A reader is a software 

program that permits you to view the words and 

images contained in the document. 

The Epub format that has overtaken the most 

popular readers like PDF is fast gaining popularity 

because it has features superior to what other 

readers offer and which is why publishers are 

moving from PDF to ePUB. 

One attractive feature of ePUB is that it is based on 

what is referred to as an open format. What this 

means is that an ePUB document is compatible with 

a wide range of devices such that one can view 

NCLR’s Laws of Kenya and Editorial team 

with the AGT Trainers in a session learning about 

paper size and weight. 

documents using various portable device such as 

iPhone, ipad. 

ePUB documents can be compressed to a greater 

extent thus implying that the resulting files will be 

much smaller compared to other file formats. The 

benefit of this is that one can store more documents 

in portable device's memory. 

It is important for publishers to embrace technology 

and make their products and services universally 

accessible. 


Feature 

According to the United Nations Standard 

Rules on the equalization of Opportunities 

for Persons with disabilities: 1 the term 

“Disability” summarizes a great number 

of different functional limitations occurring in any 

population, in any country of the world. People 

may be disabled by physical, intellectual or sensory 

impairment, medical conditions or mental illness. 

Such impairments, conditions or illnesses may be 

permanent or transitory in nature) 

The United Nations adopted a convention on the 

rights and privileges of persons with disability. The 

convention adopted in 2006 and which came 

into force in 2008, 2 states and recognizes that 

“disability” is an evolving concept which is subject 

to change from time to time. For instance due to 

the improvement in medical science and other 

new discotveries of how the human body works. It 

is possible for doctors to determine that a person 

who does not seem to have any physical disability 

to be laboring from some of mental or sensory 

impairment that can now be ascertained through 

he use of science. 

The Convention follows the civil law tradition, with 

a preamble, in which the principle that "all human 

rights are universal, indivisible, interdependent and 

interrelated " of Vienna Declaration and Programme 

of Action is cited, followed by 50 articles. Unlike 

many UN covenants and conventions, it is not 

formally divided into parts. 

Article 1 defines the purpose of the Convention 

thus: 

to promote, protect and ensure the full and equal 

enjoyment of all human rights and fundamental 


LEGAL DEFINITION OF DISABILITY 

By: Stanley Mutuma, Law Student 

freedoms by all persons with disabilities, and to 

promote respect for their inherent dignity 

Articles 2 and 3 provide definitions and general 

principles including communication, reasonable 

accommodation and universal design. 

Articles 4 - 32 define the rights of persons with 

disabilities and the obligations of states parties 

towards them. Many of these mirror rights affirmed 

in other UN conventions such as the International 

Covenant on Civil and Political Rights, International 

Covenant on Economic, Social and Cultural Rights 

or the Convention Against Torture, but with specific 

obligations ensuring that they can be fully realized 

by persons with disabilities. 

Rights specific to this convention include the rights to 

accessibility including the information technology, the 

rights to live independently and be included in the 

community (Article 19), to personal mobility (article 

20), habilitation and rehabilitation (Article 26), and 

to participation in political and public life, and cultural 

life, recreation and sport 

The recognition before the law for the countries having 

ratified this treaty is found under article 12. In effect 

it means that this is a legal document that can be 

used to give effect to the rights and privileges found 

within it. 

The Americans with disability act, 3 provides the 

definition as being: Statutory Definition -- With respect 

to an individual, the term "disability" means 

(A) a physical or mental impairment that 

substantially limits one or more of the major 

69


life activities of such individual; 

(B) a record of such an impairment; or 

(C) being regarded as having such an 

impairment. 

42 U.S.C. § 12102(2); covers persons who 

actually have physical or mental impairments that 

substantially limit one or more major life activities. 

The focus under the first part is on the individual, 

to determine if (s)he has a substantially limiting 

impairment. To fall under the first part of the 

definition, a person must establish three elements: 

(1) that (s)he has a physical or mental impairment 

(2) that substantially limits 

(3) one or more major life activities. 

The second and third parts of the definition cover 

persons who may not have an impairment that 

substantially limits a major life activity but who 

have a history of, or have been misclassified as 

having, such a substantially limiting impairment, or 

who are perceived as having such a substantially 

limiting impairment. The focus under the second 

and third parts is on the reactions of other 

persons to a history of an impairment or to a 

perceived impairment. A history or perception of 

an impairment that substantially limits a major life 

activity is a "disability." (b) Regulatory Definition 

-- A physical or mental impairment means 

(1) [a] physiological disorder, or condition, 

cosmetic disfigurement. 

The main aim of the ADA, was to create a civil 

law frame work, with the objective of having the 

protective framework and aiming to eliminate all 

forms of discrimination to the class of persons 

listed there in. It also intended to have persons 

with disability represented in the main in new 

advances in medical , science and affording them 

opportunities in all spheres of life including space 

frontiers. It was intended to be flexible , with new 

laws being strengthened and not weakened by 

future case laws. It was signed by president G.W. 

Bush’s and it came into operation in2008. 

The definition of the term, “disability” under the 

Kenyan jurisdiction is found under section 2, of 

the persons with disability act, as amended in 

2007. It states: 

s, ““disability” means a physical, sensory, 

mental or other impairment,including any visual, 

hearing, learning or physical incapability, whether 

arising from natural or artificial causes, which 

is irreversible and long term and which impacts 

adversely on a person’s capacity to participate 

in social, economic, cultural or political activities. 

The act is further given priority as enshrined by 

the bill of rights in the constitution of Kenya. Under 

article 54, which provides specific protection of 

fundamental rights to the class of persons with 

disability. The article provides inter alia: 

The right to be addressed and treated in a dignified 

manner. 

The right to education and provision of education 

services in a manner that caters for the needs of 

the individual in question. 

The right to reasonable access to all public places 

and places of leisure and recreation. This might 

include sporting facilities, recreational parks, 

restaurants etc 

The right to use a language that the persons 

understands and uses e.g. Braille and sign 

language. 

The right to use accessible technology and devices 

that will assist the individual overcome his disability. 

The right to progressive employment up to 5% by 

the government. 

These among others are provided for and the legal 

backing exists under the stated law and other acts, 

that help improve the enforcement of the rights of 

PWD’S. 

The disclaimer to this is that the above stated 

definitions are legal in nature, and may differ to 

some degree, to the social or academic definitions 

of the term “disability” As noted by the UNPWD 

convention. it is also evolving and it may be 

altered slightly from time to time with the changes 

in the fields of science and medicine. The Kenyan 

act also amended the legal meaning of the term 

through the “2007 amendment, of the principal 

document of 2003”. Therefore it suffices to say 

that this concept is a dynamic one and we should 

be keen enough to determine its application when 

interpreting it. 

References 

1.United Nations Standard Rules On 

Equalisation of Opportunities -1993 

2.United Nations Convention on the Persons 

with Disability [2008] 

3.Americans with Disability Act -1990 

4. The Persons With Disability Act Of Kenya 

2003 

5. The Constitution of Kenya - 2010 


Feature 

A COMPARISON BETWEEN THE CONSTITUTION OF KENYA 

AND THE EAST AFRICAN TREATY 

The Constitution of Kenya as promulgated on 

August 27, 2010, has envisaged certain 

principles that the Kenyan people aspire for 

themselves Following a rigorous process for 

the clamor of a new constitution by the people. 

The need for better governance and improved 

standards of life led the citizens to agitate for 

the changing of the constitution. The issue of bad 

governance was also a great factor that propelled 

the citizens to demand for a new supreme law 

that would have checks and balances and would 

determine how their issues would be determined. 

The new constitution therefore has these provisions 

set out in its various articles, which are also 

envisaged to be in line and in conformity with 

other laws that ascribe to similar provisions 

relating to governance and leadership of citizens 

of other jurisdictions. For instance when doing a 

comparison between the constitution of Kenya and 

the East African treaty, I will consider the areas of 

law dealing in leadership and governance and how 

they compare and also contrast the areas where 

they differ or their is divergence. 

Article 10 of the Constitution 1 deals with matters 

of leadership and governance. Any public officer, 

or constitution or any body that seeks to enforce 

public authority must ensure that they adhere to 

the following principles of good leadership as 

stipulated by the article, that the officers shall be 

patriotic and shall uphold the values of dignity, 

equity, social responsibility, inclusiveness, including 

the rights of the marginalized etc. Under subsection 

[c] good governance, integrity, transparency and 

accountability are to be the guiding principles in 

carrying out one's duties; and [d] one must take into 

account the issues of sustainable development. The 

provision compares well with article 3, sub section 

[b] of the treaty, 2 which states that for a country to 

be a member of the East African community, it need 

to adhere to the well established and accepted 

1 Constitution of Kenya 2010 

2 East African treaty, ratified in November 

1999 

3 East African community. 


By: Stanley Mutuma, Law Student 

principles of good governance, accountability, 

democracy, the rule of law, and adherence of human 

rights and dignity. 

Further on under article 3 [e] of the treaty in regards 

to the matter of economic compatibility within the East 

African states and matters of sustainable development 

as being paramount, a similar position espoused by 

our constitution. The bill of rights is well framed and 

protected under the constitution. Chapter four, states 

and enumerates the fundamental rights and freedoms 

to be enjoyed by the citizens. Article 19, states 

that the rights and freedoms are not granted by the 

government, but rather they are inherent. 

The rights and freedoms contained in this chapter 

are not conclusive and thus other rights cannot be 

excluded, in so far as they are not inconsistent with the 

constitution. It means that the state has an obligation 

to enforce the fundamental rights and freedoms, a 

party who feels that his rights have been aggrieved 

can seek redress in the high court. A division has been 

created by the high court known as the “constitution 

and human rights division” all matters lodged in this 

court are pertaining to such matters as to breech of 

the constitution and breach of human rights as well 

elaborated by the constitution. 

There are some rights that are not qualified by any 

law and no limitation may apply to this rights. They 

are the rights categorized under article 25, of the 

constitution. Included the right to prevention from 

inhuman treatment, and deprivation of dignity, the 

right to prevention of slavery, the right to a fair 

hearing and the right to apply for the order of habeas 

corpus. Equality and non-discrimination of any kind in 

reference to gender, religion, work, disability or any 

other form of prejudice is prohibited by article 27. 

A similar safeguard to the fundamental human rights 

and freedoms are guaranteed under the treaty. Under 

article 3 [c] of the treaty it mentions that any foreign 

country seeking membership of the community 3 must 

71


respect and uphold fundamental human rights that 

are ascribed to by other democratic countries. 

Further on the rights are strengthened by article 

6, of the treaty “(d) good governance including 

adherence to the principles of democracy, the rule 

of law, accountability, transparency, social justice, 

equal opportunities, gender equality, as well as 

the recognition, promotion and protection of 

human and peoples rights in accordance with the 

provisions of the African Charter on Human and 

Peoples Rights”. In effect it means that if a person's 

rights are violated and the party is a member of 

the East African community , and the party cannot 

or is unable to have his right enforced for instance 

in his member country, e.g. in Kenya then he 

can appeal such a matter as a breach of human 

rights in the East African court in accordance to 

this section. Article 27 gives the East African court 

the mandate to interpret and enforce the articles 

of this treaty, powers which include 

1. The Court shall initially have jurisdiction over 

the interpretation and application of this Treaty. 

2. The Court shall have such other original, 

appellate, human rights and other jurisdiction 

as will be determined by the Council at a 

suitable subsequent date. 

To this end, the Partner States shall conclude 

a protocol to operationalize the extended 

jurisdiction. Under the constitution of Kenya, article 

51, it provides for the protection of a persons 

human rights if one is under detention, and for the 

right to petition for the order of habeas corpus if 

one is detained. 

To further categorize these rights and provide 

for their interpretation, the Constitution provides 

for the protection of classes of people deemed 

to be vulnerable in the society. Under article 53, 

it provides for the protection of children, which 

include inter alia right to a name and nationality 

right from birth, right to a basic education, right 

to good nutrition, right not to be detained unless 

its the last resort etc. 

Another category of special class of persons 

protected by the Constitution of Kenya in particular 

is the rights of persons with disability, addressed 

under article 54, which include inter alia right 

to be treated and addressed in a manner not 

demeaning, right to access education in schools 

for persons with disability or integrated schools 

to the level of their disability, right to access 

reasonable transport and access to other public 

facilities, right to use the language accessible and 

available to them i.e. Braille, sign language etc, 

right to use electronic devices and specialized 

materials in order to overcome the challenges in 

their environment etc. 

To crown the above-mentioned rights and 

freedoms in the Constitution, “Part V” article 59, 

of the constitution provides for the creation of 

the human rights and equality commission. The 

body is tasked with the mandate of promotion 

and protection of fundamental human rights, 

listed in the constitution and others which are 

not inconsistent with the constitution or any other 

written law. It further provides that any person 

who deems that his rights have been violated 

under the constitution has the right to lodge with 

the commission for further investigation and 

action. The commission also is mandated with 

the authority to investigate and interrogate the 

conduct of any public body or organ which seeks 

to infringe unfairly on the rights of any citizen or 

class of persons. Article 30, of the treaty, gives 

the citizens or legal persons of any of the member 

states the right to approach it, in order to seek 

redress, in the instance the matters arising could 

not or are unable to be adequately addressed in 

their respective countries. 

Under article 34, of the treaty, decisions of the 

East African court shall have precedent over 

national courts in such matters, this provision 

seems to contradict with the one of our constitution 

which states that the constitution of Kenya, shall 

be the supreme law and any other law that is 

inconsistent with this constituent shall be void to 

the extent of the inconstancy. In effect it means if 

a certain judgment delivered by the East African 

court which seems to have a differing opinion 

from that given by a Kenya court then it shall 

take precedence over the Kenya court. The article 

34, may seem to have a watering down effect on 

national laws of the member states. 

The rules, regulations and proceedings governing 

the East African court are contained under article 

40 to 44, of the treaty. They provide for the 

procedure to be followed in a court proceeding 

and article 43, provides for the immunity of 

judges, in decisions made in the carrying out 

of their duties. Comparable to the constitution, 

which outlines the formation of the judicial/court 

structure in Kenya and provides for the manner 

and nature of the formation and protection of the 

institution. Under article 161, the structure of the 

judiciary is set out as being comprised of the chief 

justice, deputy chief justice, the chief registrar 

and other judges, magistrates and other officials 

serving in the judicial system. It also provides for 

the formation of the hierarchy of the court system 

in Kenya. Beginning with the superior courts, i.e. 

the Supreme Court, the court of appeal and the 



high court. 

The Supreme Court is established under article 

163 of the Constitution. It has the powers to hear 

presidential election petitions and shall form binding 

precedents to all other courts below it. This provision 

begs the question as to whether if a decision is 

passed in the East African court regarding a matter 

whose decision is contrary to one of the Supreme 

Court which court’s decision shall take precedent. 

Appointment of the Chief Justice is addressed under 

article 166, of the Constitution whereby it provides 

for the appointment of the mentioned officials by the 

president after recommendation from the Judicial 

Service Commission. 

The matter of taxation is evidently of paramount 

to any government. Governments through the 

collection of taxes gain revenue from which they use 

to run the various operations needed to establish 

an effective running state/country. Therefore the 

issue of taxation is shed under “part 3” of the 

constitution, under article 209 where it states that 

[1] only the national government has the right to 

impose taxation with regard to the following areas 

(a) income tax; 

(b) value-added tax; 

(c) customs duties and other duties on import 

and export goods; and 

(d) excise tax. 

(2) An Act of Parliament may authorize the national 

government to impose any other tax or duty, except 

a tax specified in clause (3) (a) or (b). 

County governments which came into existence 

with the formation of this Constitution are mandated 

to impose land rates, and other taxes incidental to 

the performance of their duties. In doing so county 

governments and county councils shall not levy 

taxes in a manner that is prejudicial to the national 

development agenda. Article 210, has the effect 

that no imposition or waiver of taxation may be 

permitted without legislation. Where waiver is to 

be given, then this must be under a written reasons 

and the record to be given to the auditor general. 

The revenue collected shall be distributed as set 

out by the commission of revenue allocation as set 

out in article 215. 

With regard to taxation and the East African 

community article 75, of the treaty, envisages the 

progressive formation of a single customs union. 

The objective being to accomplish the principles 

set out under article 5, of the treaty. Issues that will 

arise on the implementation of this article, include: 

how will the constitution guarantee the raising of 

revenue as the treaty envisages the abolishment of 

internal barriers to trade, including taxation save for 

the common customs tariffs intended to be common 

for the member states of the community. The removal 


of the internal barriers to trade and formation of a 

common market under article 76, of the treaty, is 

expected to have an impact on the internal markets 

of the member states, which the member states seek 

to mitigate by drawing up a protocol to address the 

changes anticipated. 

The treaty envisages the scope of corporation under 

article 82, to incorporate the use of compatible 

common currency as they proceed towards 

harmonization of a common market and leading 

to the objective of having less reliance on foreign 

exchange. 

Other areas of comparison include the areas 

of environment i.e. article 112 of the treaty 

comparable to article 60 of the constitution. The 

treaty seeks to establish a joint environmental 

management board that will help curb or reverse 

the effects of harmful environmental effects, ensure 

programs that sustain the bio diversity, institute 

programs in institutions that teach the importance 

of the environment, conservation of bio diversity, 

equitable distribution and use of genetic material 

etc. The principles enumerated by the treaty under 

this chapter are in harmony with those listed and 

outlined in the constitution with the objective 

of having meaningful development without 

compromising the environment. To this end both 

documents have set out mechanisms that deal with 

obtaining of environmental impact assessment 

studies before embarking on any major physical 

developments. The constitution under article42, 

guarantees the right to all citizens to have a clean 

and healthy environment, for the present generation 

and for the future generations, giving special 

considerations to the provisions set out in article 

69, and 70 in regards the environment and use, 

preservation and conservation of natural resources 

in an equitable manner. The article provides redress 

for a party who deems that his rights to a clean 

and healthy environment have been breached. The 

article is special in the manner it is couched, i.e. one 

need not prove that he has suffered loss from the 

breach, but can demonstrate that the infringement 

of the environment is likely to be in contradiction 

with the rights created under the various articles 

with regards to the environment created in the 

constitution. Comparable to article 111, of the 

treaty which guarantees the following obligations 

in respect to the protection of the environment and 

management of it: 

(a) agree to take concerted measures to foster 

cooperation in the joint and efficient 

management and sustainable utilization of 

natural resources within the Community; 

(b) undertake, through environmental 

management strategy, to co-operate and 

co-ordinate their policies and actions for the 

protection and conservation of the natural 

73


resources and environment against all 

forms of degradation and pollution arising 

from developmental activities; 

(c) undertake to co-operate and adopt common 

policies for control of trans-boundary 

movement of toxic and hazardous waste 

including nuclear materials and any other 

undesirable materials; 

(d) shall provide prior and timely notification 

and relevant information to each other 

on natural and human activities that may 

or are likely to have significant transboundary 

environmental impacts and 

shall consult with each other at an early 

stage; and 

(e) shall develop and promote capacity 

building programmes for sustainable 

management of natural resources. 

Under article 113, of the treaty it seeks to have the 

member states harmonize their legal framework in 

order to be compatible with the principles, further 

it envisages that the member states will accede to 

international protocols and treaties that have the 

objective of further protecting and preserving the 

environment. 

Other articles in the treaty provide for the creation 

of laws in the member countries that shall enhance 

the harmonization of various sectoral fields 

touching on the socioeconomic of the member 

states, inter alia; education, health, arts, sports 

etc. These sectoral areas for corporation are not 

limited and under article 131, of the treaty it 

provides for the corporation of other areas that 

may arise or develop as the community seeks f 

to be harmonized I in manner that will eventually 

lead to the formation of an east African community 

with political obligations. 

Some of the provisions of the treaty are transitory 

in nature and article 142, has set it out to create 

tripartite commissions tasked with the 

(a) Agreement for the Establishment of The 

Permanent Tripartite Commission for Cooperation 

Between the Republic of Kenya, 

the Republic of Uganda and the United 

Republic of Tanzania; 

(b) Protocol on the Establishment of a 

Secretariat of the Permanent Tripartite 

Commission for Co-operation Between 

the Republic of Kenya, the Republic 

of Uganda and the United Republic of 

Tanzania; 

(c) Headquarters Agreement between the 

Secretariat of the Commission for East 

African Co-operation and the Government 

of the United Republic of Tanzania; 

(d) Tripartite Agreement for the Avoidance 

of Double Taxation and the Prevention of 

Fiscal Evasion with respect to Taxes on 

Income; 

(e) Memorandum of Understanding on Cooperation 

in Defence; 

(f) Tripartite Agreement on Road Transport; 

(g) Tripartite Agreement on Inland Waterways 

Transport; 

(h) Memorandum of Understanding on 

Foreign Policy Co-ordination; and 

(I) Memorandum of Understanding between 

the Republic of Kenya and the Republic 

of Uganda and the United Republic of 

Tanzania for Co-operation on Environment 

Management. 

The life of the treaty is expected to have perpetual 

life subject to article 143, save for the punitive 

steps to be taken under the treaty if a member 

state does not honour its obligations as set out in 

the treaty. If a member state wishes to withdrawal 

from the EAC, then it must follow the steps 

stipulated under article 145, of the treaty, by 

giving a notice to the secretary of the community 

within a period of not less than 12 months, within 

which time the state must continue to carry out its 

obligation to the community. 

In conclusion, I note that there are many provisions, 

rights and freedoms that are embedded and 

espoused in the constitution that are also 

comparable to those created and embedded 

in the DAC, treaty. Kenya ha having ratified 

the treaty became a member of the community. 

According to the provisions of article 2[5] and 2 

[6] of the constitution which state that any general 

rules of international law shall form part of the 

Kenya law and that any treaty or convention 

ratified by Kenya shall form part of our laws as 

under the constitution. Therefore in effect it means 

that Kenya has a duty to abide by the provisions 

found under the treaty, which form part of its 

laws. Some of the provisions are transition in 

nature and once they come into force, then they 

shall also form part of our laws. In the instance 

that there will be a law that upon coming into 

force that will fundamentally alter the nature of 

our constitution, the constitution maybe in need 

of some amendments to that effect, which can 

only be done by subjecting those provisions to 

a referendum. 

References. 

A. The constitution of Kenya-August 2010. 

B. The East African treaty ratified –November 

1999 in Arusha, Tanzania. 


Information Communication Technology (ICT) Department 

I. Network Security: 

Security on the Internet and on Local Area Networks is now at the forefront of computer related issues. 

The technical jargon of the day is information warfare and network security, and there are valid 

reasons for their rise in importance. Throughout the evolution of networking and the Internet, the 

threats to information and networks have risen dramatically. Many of these threats have become 

cleverly exercised attacks causing damage or committing theft as explained in the history of computer 

malware/viruses in later articles. Consequently, the public has become more conscious of the need for 

network security and so too has the government. Protective tools and techniques exist to combat security 

threats; nevertheless, only with the proper implementation will they succeed. Consequently, this article is 

a discussion of network security, 

its history, the threats and 

responses to those threats, 

and the method of designing 

a secure network that follows 

the process model for software 

engineering. 


LOOKING INTO INSTITUTIONS 

NETWORK SECURITY 

By: Martin Mbui, System administrator, 

Information Communication Technology (ICT) 

Department 

II. Information Security: 

Currently the greatest asset of 

corporations and governments 

is information and also in 

institutions like National Council 

for Law Reporting. 

Information encompasses a 

wide range of diverse pieces 

including: computer data, 

marketing strategies, tax and 

personnel records, military 

strategies, financial data, 

communications, and business 

plans. Organizations that value their internal information realize that information is a strategic and 

competitive tool. Our society is so reliant on information that the loss or corruption of the NCLR 

information infrastructure would create a situation where accounts, ICT, procurement, management, library, 

BRH and most other departments would not survive. 

75


In short, information is the backbone of the 

operations of these departments, and the security 

of this information is critical. 

Loss of information can be devastating for a 

corporation or government. In general, the 

motivational factor for preventing loss of 

information is financial. The loss of information 

integrity exceeds strictly the financial arena 

and extends much further. Businesses have 

confidential information stolen and patented 

by competitors, individuals end up in jail and 

inmates are released because of disruption in law 

enforcement computers, IRS computer failures 

have caused thousands of small companies to be 

put out of business, corporate telephone switches 

have regularly had hundreds of thousands of 

dollars worth of telephone calls stolen through 

them over a weekend, and the list goes on almost 

without end. 

Information security is the necessary means by 

which critical information is controlled and its 

loss is prevented. Information security deals with 

those administrative policies and procedures 

for identifying, controlling, and protecting 

information from unauthorized manipulation. 

This protection encompasses how information is 

processed, distributed, stored, and destroyed. 

In order for information security to be achieved, 

several attributes must first be attained. Information 

that is distributed, whether through a network, on 

disk, or on paper, must be done so in a secure 

fashion. 

Educational training must be given to all individuals 

involved with specific information and especially 

to those required to secure that information. 

Classification and clear demarcation of information 

into different sensitivity levels is another necessary 

step in securing information. Information must 

be monitored and tracked consistently and 

continuously throughout its existence. 

Finally, securing a network is the most important 

piece of information security. Information security 

is in essence all of the aforementioned measures 

for securing vital information and network security 

is the key to doing so. 

But when you have bad governance, of course, these resources are 

destroyed: The forests are deforested, there is illegal logging, there 

is soil erosion. I got pulled deeper and deeper and saw how these 

issues become linked to governance, to corruption, to dictatorship. 

Wangari Maathai. 


Feature 

On Saturday May 5, 2012, between 

12.30pm and 5.15 pm, the National 

Council for Law Reporting was hosted 

by the Mathare Roots Youth Group 

Part of NCLR staff with the CEO, Mr. Michael Murungi 

(right), Billian Music Family and MRYG members pose 

for a group picture during NCLR tour of Mathare Slums 

(MRYG) at the Group’s offices in Mathare, Nairobi 

and thereafter, the Group conducted the Council on 

a tour of the Mathare community. The Council was 

represented by Cornelius Lupao the (Organizer) Ivy 

Njoki, John Paul Mutugi, Laila Mbevi (and her son 

Nabil), Michael Murungi, Moses Wanjala, Njeri 

Githanga, Pascal Othieno, Wambui Kamau and 

Yvonne W. Kirina.Geoffrey Andare, who is also 

a member of staff and one of the officials of the 

Mathare Roots Youth Group, was the liaison person 

for the group during the visit and tour. 


THE NATIONAL COUNCIL FOR 

LAW REPORTING PARTNERS 

WITH MRYG FOR CSR 

ACTIVITIES 

By: Cornelius Lupao, Advocate, 

Editorial Department 

The MRYG was founded by the youths of Mathare 

in 2006 to provide an avenue for the youth to 

engage with and contribute to the welfare of their 

community and also to serve 

as a link between the Mathare 

community and the opportunities 

for partnership in community 

welfare that would be available 

outside the community. 

The MRYG is a membership 

organization comprised largely 

of young people from the Mathare 

Community who wish to partner 

together to achieve positive social 

outcomes for the community. 

MRYG partners with individuals 

and institutions in opening up 

opportunities for the improvement 

of the welfare of the Community. 

The visit at the MRYG office: 

Members of the Council were 

met by the officials and members of the MRYG, 

namely: Geoffrey Andare, Rosemary Mueni, Fabian 

Kithusi, Elma Atieno,Edith Isaiah, Jackline Atieno, 

Billian Okoth and Billian Music Family among others. 

The MRYG informed the Council about how it was 

founded, its resourcing, partners, membership and 

the projects it undertakes 

Among the programmes and projects that the MRYG 

has been or is currently involved in are: 

1 Education: 

Financial sponsorship through partnership with 

77


Canada Mathare Education Trust (CMET), 

a school fees sponsorship programme for 

students from within the community. The 

group also partners with Nairobits Digital 

Design School, which trains students on 

basic computer skills, advanced Web and 

Graphic Design courses, which are also 

sponsored. 

2 Adolescent Health Programme (AHP): 

This is an initiative by MRYG whereby 

facilitators from the group train pupils in 

schools within the community on social 

topics ie Children Rights, Self Esteem, 

Career, Education, and social vices 

such as Violence and Rape, etc. It aims 

to ensure that all youths have essential 

communication skills and understanding of 

peoples' rights to consent. These help them 

get the right knowledge and skills to 

help lead healthier and more active 

lives. 

3 Environmental Conservation: 

This is done through Tree Planting 

within and without the Community 

as well as occasional community 

cleanups 

4 The MCEDO School – The 

Mathare Community Education & 

Development Organization founded 

and initiated by some of Mathare 

Roots Members is a community 

school which also has a Feeding 

programme for pupils from within the 

Community 

5 Mentorship Programme: The group 

also links school going youth with individual 

mentors. 

6 Sports, Culture and Art: MRYG also 

engages in Sports whereby it has a Football 

Team, Real Mathare, an Art department that 

deals with making of African ornaments 

and accessories as well as performance 

Art through Billian Music Family. 

7 Exchange Programs: MRYG also 

engages in exchange programs with local 

and international youth groups, mainly 

within Mathare, Kibera, Korogocho, and 

internationally with Canada and German 

based CBOs. 

MRYG is working towards sustainability, particularly 

sustainable community-based solutions to the 

community’s challenges – where the Group and 

the members of its community reduce or eliminate 

dependency on external aid. 

The National Council for Law Reporting identified 

Possible areas of collaboration & partnerships with 

MRYG which will include, but not limited to: 

1 Invitation and participation in each other’s 

events. For the part of the NCLR, MRYG 

can attend/witness/participate in our 

events such as product launches, games, 

road shows and such related events. 

2 The MRYG through Billian Music Family 

(BMF) can provide entertainment at such 

events and other members of MRYG can 

provide ushering and logistical support 

duties. 

3 Exchange of knowledge and mentorship – 

both organizations have a lot of knowledge 

to exchange amongst their members. The 

mentorship would be both ways. For the 

part of the NCLR, members of staff could 

volunteer to mentor young persons in 

the MRYG’s community either directly or 

by offering motivational speaking at the 

MCEDO school and Valley View 

Academy. Also explored was possible 

offer of internship programs by the NCLR 

to qualified students from within MRYG 

projects. 

4 Preparation of the NCLR Calendars – 

MRYG informed NCLR that they prepare 

calendars, which they sell. The calendars 

can be branded jointly by NCLR and 

MRYG and purchased by NCLR for sale 

and/or distribution to its partners. 

5 Individual members of staff of the National 

Council for Law Reporting to make financial 

contributions to support the activities of the 

MRYG. 

6 Such other activities as may be mutually 

agreed between the NCLR and MRYG from 

time to time. 

78 Issue19 | April - June 2012 

NCLR, BMF 

and MRYG 

teams hike 

up Mathare 

Valley during 

NCLR tour 

of Mathare 

Slums

Feature 

Parenting according to the online dictionary 

is the rearing of a child or children with 

emphasis on the care, love, and guidance 

given by a parent. Parenting is also defined 

by other sources as the process of promoting and 

supporting the physical, emotional, social, and 

intellectual development of a child from infancy 

to adulthood. 

Parenting looks into the aspects of bringing up a 

child as opposed to the biological relationship. 

Good parenting is about providing warm, secure 

life, helping your child to learn good values and 

to develop good self-esteem. 

Why is parenting important? 

Good parenting makes it 

possible for children to grow 

up in a positive direction. If 

children do not learn how 

to behave, they will find it 

difficult to get along with 

grown-ups and peers. They 

will find it hard to learn 

at school, misbehave and 

probably become unhappy 

and frustrated in life. It is 

important that parents in 

their busy schedules find 

variable time to spend with 

their children. 

Combining parenting and 

career 

Most parents don’t spend enough time with their 


PARENTING: HOW MUCH 

TIME DO YOU SPEND WITH 

YOUR CHILDREN? 

By: Evelyn Anyokorit Emaase, 

Copy editor, Laws of Kenya Department 

children as a result of combining parenting and their 

careers. Combining parenting and work and making 

both effective and meaningful is a challenge to many 

parents. Having children is the easy part; the tough 

part is to make time to be part of their lives as they 

grow up. 

In most cases, when two demands are to be met 

almost equally in addition to other forces, naturally 

people tend to incline to the one with the financial 

gain neglecting the other demands, which should not 

be the case. Children deserve the best part of their 

parents’ time, so being able to combine the two could 

not only be difficult but important and if not necessary. 

A child’s brain growth requires interaction with 

significant other 

According to the attachment 

theory by John Bowlby, a 

child psychiatrist, and Mary 

Ainsworth, a Psychologist, the 

brain’s capacity to think, feel 

and to act is dependent on the 

interaction between a child and 

the significant other; that is the 

all round important figures in a 

child’s life such as the mother, 

father, siblings and care givers. 

Dorcas Kaveke spends quantity and Children need bonding or 

quality time with her baby, Cindy, at attachment to another person 

the 2010 Justice Cup Tournament at in order for the immature brain 

Parklands Sports Club 

to develop in the most optimal 

way. This attachment begins with 

a non-verbal communication in 

which the mother or any other 

attachment figure aligns him/ herself to the infants 

79


needs and emotional state. 

When a baby cries because it is hungry and the 

mother feeds it, the baby comes to learn that its 

needs can be met. The baby’s body experiences 

satisfaction because someone responded to it's 

needs. When the baby is wet and cold and the 

mother changes its diaper and it is no longer 

uncomfortable, it learns that its physical needs 

are met. Through the mother’s regular response to 

the needs of the child, the child develops a sense 

of integration both internally and interpersonally. 

In other words, it is through the child’s intimate 

relationship and bonding to someone who is 

irrationally in love with the child that the baby’s 

brain develops a positive pattern or mental model 

for how it sees itself and others. 

When the child’s needs are not met 

If a baby is unable to get its needs met, the insecure 

attachment the child experiences will reverberate 

in its internal and interpersonal world, it will be 

emotionally distant from others and the quality of 

its relationships are likely to be 

superficial and detached. 

It is true that even without a caring 

and understanding parent or any 

other figure, a child can still learn 

many things and the brain can 

accumulate many facts. But, it 

is the significant person, early 

in a child’s life who has the best 

opportunity to demonstrate to the 

child what it means to be human 

and to influence how the facts the 

child learns in school and in life 

can be used to make the world a 

better place. 

Giving your children the Gift 

of time 

Spending quality time with children is extremely 

important for their development and happiness. 

Many children will let their parents know in their 

own ways if they are not getting the attention they 

deserve. Some will get withdrawn and others will 

act out. This is evident when kids resort to behavior 

that will get the parent’s attention for example 

fighting, bedwetting, choosing their nanny over 

their own parents. If children cannot get your 

attention by doing good, they will definitely turn 

to doing bad. 

Quality time versus Quantity time. 

According to researchers in a wide range of 

fields, the time children spend with their parents is 

essential for their health development be it quality 

or quantity. 

Some organizations occasionally organize for 

social opportunities like football tournaments, 

corporate social responsibility (CSR) activities 

among others that allow their employees to spend 

both quantity and quality time with their children. 

The National Council for Law Reporting for instance 

supports these events by planning or affiliating with 

organization that organize for such forums to allow 

its employees to not only have quality and quantity 

time with their children but also experience relaxed 

bonding and networking with other families. 

Carolyn Ross Tomlin, a former kindergarten teacher 

in her article, ‘Quantity Versus Quality Parent Time; 

How Can Child Care Providers Help?’ argues that 

practical application of quantity time means that 

a parent finds teachable moments throughout the 

day with their children. Teachable moments happen 

without planning when your child shows 

National Council for Law Reporting members bond with their 

children at the 2010 Justice Cup Tournament at Parklands 

Sports Club 

interest in learning more about a specific task or 

activity. 

Quality time is defined by development experts as 

memorable and meaningful time parents spend 

nurturing and teaching their children. On the other 

hand Gregory L. Jantz and Ann McMurray in their 

book ‘Healthy Habits, Happy Kids: A Practical 

Plan to Help Your Family’ argue that quality time 

happens within the context of quantity of time. 

Career parents can also have quality time with their 

children. It's what one can make of the time they 

spend with their children that makes it quality time. 

In as much as quality time is important in a child’s 

development, quantity time is equally important, 



some parents think that if they have spent an hour 

or so of quality time with their children, they have 

done enough. It is important to note that this time 

normally focuses on an enjoyable time such as 

watching movies, going out etc and it would not 

substitute good parenting. 

Most parents tend to abuse quality time meant to be 

enjoyed with their children by making it come out 

as compensatory action as a result of having spent 

less time with their children. It is also important to 

note that quality time does not make up for the time 


ADVERT 

not spent with children, using quality time as a make 

up creates an ill affect. Parents are supposed to as 

much as possible create both quality and quantity 

time for their children. 

The point is that quantity time matters just as much 

as, if not more than quality time. Parents need to be 

there to witness their children grow which means, 

creating time for your children but more importantly 

being there when they need you and being an 

active participant in their everyday life. 

81

Feature 

The Uwazi Football Tournament is an annual 

sporting event hosted by International 

Commission of Jurists (ICJ Kenya). The event 

brings together business and corporate 

organizations, media, government, CBOs, 

NGOs together 

through football aims 

at raising awareness 

and advance its 

campaign on the 

need for a Freedom 

of Information law 

by hosting the event. 

The tournament is by 

design convened for 

business and corporate 

organizations and 

bring together players 

from the banking, 

industrial and 

corporate sector which 

provides a relaxed 

platform for networking 

and showcasing the 

achievements of various 

prestigious institutions. 

Participation in the 

tournament is usually exclusively for the staff of 

the sponsoring corporations, each team is always 

advised to include both males and females in 

their squad, at least a minimum of two females to 

enhance gender balance. 

This year, the tournament was held on 12th May 

2012 at Impala Grounds, Ngong Road. Some of 

the teams that participated include; Commission 

for the Administration of Justice (CAJ), TI-Kenya, 

TALENT BEYOND LAW REPORTING: 

WINNERS ‘UWAZI FOOTBALL 

TOURNAMENT, 2012’ 

By: Geoffrey A. Andare, 

Data Processor, Football Team Captain, 


Standard Media, Mathare Roots Youth Group (MRYG) 

sponsored by the National Council for Law Reporting 

(NCLR), EACC, Mazars Auditors, Sichangi Partner 

Advocates, Oilibya, ICJ-Kenya, Sichangi and co. 

Members of NCLR staff together with MRYG Team 

holding the trophy in celebration of the win 

Advocates, Ghetto Radio, Centre for Governance 

and Development, Kituo Cha Sheria, UNDP - Amkeni 

Kenya, Kenya National Commission for Human Rights 

(KNCHR), Royal Media Group, Safaricom and the 

Law Society of Kenya amongst others. 

The games began at 8.30am and Hon. Peter Kenneth, 

MP for Gatanga and a Presidential Aspirant’ was the 

Guest of Honor during the kick off while Mr. Otiende 

Amollo, Chairman of the Committee on Administration 



of Justice was to preside over the closing ceremony. 

We hoped it would be a fun filled day. 

This year NCLR 

opted to participate 

indirectly by 

sponsoring Mathare 

based reputable 

youth group, Mathare 

Roots. Mathare 

Roots Youth Group 

is in partnership 

with NCLR as part 

of CSR. The group 

was very delighted 

by the opportunity 

and was determined 

to go for glory from 

the start. The team 

was pooled in Green 

Group where it 

was to face Centre 

for Governance 

and Development, 

Commission for the 

Administration of 

Justice (CAJ), Mazars Auditors, UNDP - Amkeni 

Kenya and Kenya National Commission for Human 

Rights (KNCHR). 

The first match was against Centre for Governance 

and Development of which the game ended in 

a barren draw, 

a few minutes 

later, the boys 

stepped back to 

the pitch and hit 

a one nil win over 

Mazars Auditors, 

a third match 

followed against 

Commission for 

the Administration 

of Justice (CAJ) 

and the game 

ended with a 

goal for each 

side. At this point, 

most teams had 

been extremely 

competitive and 

had either same 

amount of points, 

a single point or 

goal difference, 

only two top teams within the group could make 

it to the next level. There came the fourth match 

in battle against KNHCHR, both the teams fought 

well but Mathare Roots proved to be a bit stronger 

and hammered the team 6 – 0 to be the top team 


on the pool with most points and goals, two of the 

goals came from awarded penalty kicks. 

Members of NCLR staff, kids and MRYG Team line up 

for a group picture immediately after the 

final match 

The fifth and the finally match for the group level 

was no shaggy dog story, it was a determinant 

for qualifiers to the next level and each team had 

geared to the fullest of their ability, especially for 

second spot as the first was already taken. Mathare 

Roots Team was then to face UNDP; the winning 

was sustained as MRYG mortified UNDP 

MRYG team player taking a penalty kick against Commission for the 

Administration of Justice during one of the first round matches 

with another 6 - 0 win to their docket againts UNDP- 

Amkeni Kenya to seal their top position in the group 

stage and proceed to the next level, quarters. The 

team won a total of four matches and only drew 

once; by this time, the team had already ended 

sprite run for many teams in the tournament and 

83


was among the last standing eight teams from 

the four pools. 

After all the 

vigorous 

morning game 

activity, the 

clock had hit 

past midday 

and all the teams 

converged for 

a meal before 

proceeding for 

quarter finals, the 

elimination level. 

After dine and 

a few minutes 

of rest, all the 

qualified teams 

embarked on 

their aspiration 

to carry the day, 

MRYG was put 

against Sichangi 

and co. Advocates. The game was tough and 

very fast paced, due to a lot of pressure; a player 

from Sichangi’s side hit an own goal. The game 

ended up 1 – 0, MRYG once again qualified for 

the next level, semi finals. The semis proved to be 

even tougher; MRYG was set to play against the 

mammoth Mobile Service Provider, Safaricom. 

Safaricom team contested strongly but eventually 

lost the battle as it was crushed 1 – 0 by MRYG. 

The MRYG team 

yet again made it 

to the top two and 

had a chance to be 

either crowned the 

champions or take 

the second position; 

Safaricom took 

the third position 

after another tough 

match against the 

then Defending 

Champions, Kituo 

cha Sheria. After the 

third position match, 

there was a short 

break then came 

time for the final 

match, the only last 

two standing teams 

were MRYG and 

Muhammad Muigai Advocates. The match kicked 

off with everyone glued on the field in anticipation 

to see which team carries the day. Six minutes to 

the game, each team had made countless attempts 

in vein, both the defenses attested unbreakable. 

The game ended twelve minutes later with no goal 

on any side. The referee settled on penalties as 

NCLR staff and MRYG members celebrate 

victory after qualifying for the finals 

the platform to determine the winners of the day 

so the teams took positions. There was opportunity 

for five kicks for each side and MRYG took the 

first one straight into the net, Muigai’s team 

player also hit the net with the first kick, it was 

a smooth flow until Muigai’s team lost their third 

kick. Unfortunately one of MRYG player lost the 

fourth kick and so the round ended up a draw. The 

second round was three kicks from each side and 

Muigai’s team hit the first score, all went well for 

NCLR Web/Graphic Designer and football team 

captain receives a medal from Mr. Otiende Amollo, 

Chairman of the Commission for the Administration of Justice 

the teams until Muigai’s team lost their final kick; 

MRYG was to seal the win by scoring their third 

and final kick but the goal keeper saved Muigai’s 

at that point. 



At that time, there was a lot of tension an anxiety; 

there was a lot of cheering and the loud supporters 

made it even more uncomfortable for the kickers, an 

opportunity was granted to teams, a penalty kick 

each. The kicks were to be taken by a lady from 

each team against male goalkeepers; Muigai’s 

team took the first kick and lost when MRYG keeper 

grabbed it. Once again MRYG got a chance to 

take hold of the cup, fortunately on their side, the 

lady did not disappoint, she hit the ball hard to 

extreme left of Muigai’s keeper and he just could 

not get hold of it. MRYG took the day, in partnership 

with NCLR; the team was crowned the winners of 

Uwazi Tournament 2012 and also took home the 


top scorer award. Mr. Otiende Amollo, Chairman 

of the Committee on Administration of Justice, 

presented the award to the team led by NCLR/ 

MRYG representative and team captain, Geoffrey 

Andare. Mr. Otiende Amollo also presided over 

the closing ceremony. Safaricom team took the 

third position; Muigai’s team who also grabbed 

a trophy for best player took the second spot. This 

was all happening already late into the evening, 

about 7:15 pm and after closing of the ceremony, 

all the teams and officials departed. 

MRYG’s Dominic scooped the top scorer position for which he also received an award 

85

Feature Case 

SENTENCE FOR ATTEMPT TO COMMIT ROBBERY IS DEATH NOT SEVEN YEARS 

James Maina Magare & another v Republic [2012] eKLR 

Court of Appeal at Mombasa 

Criminal Appeal 224 of 2010 

Githinji, Visram & Okwengu JJ.A 

March 16, 2012 

By Esther Nyaiyaki Onchana 

The Court of Appeal has held that sentence for an attempt to commit robbery is death as 

provided by section 297 (2) of the Penal Code and not a term of imprisonment not exceeding seven 

years. The Court held that section 389 of the Penal Code, which provides for a prison term not 

exceeding seven years for attempted offences, was only applicable where the legislature had not 

provided any other sentence. 

The decision arose out of a case involving James Maina Magare and John Kibanya Maina, the 

first and second appellants respectively. The Senior Resident Magistrate in Taveta convicted each of 

them with three offences. The first count, in respect of which the two appellants were charged jointly, 

was attempted robbery with violence contrary to section 297(2) of the Penal Code. Each of the 

appellants was sentenced to the mandatory death penalty. Each of the appellants were also convicted 

of two separate counts of being in possession of firearm without a firearm certificate contrary to section 

4(1) as read with section 4(3) of the Firearms Act and being in possession of ammunition without a 

firearm certificate. 

They were both sentenced to serve 10 years imprisonment on each of the two separate counts. In view 

of the death sentence imposed on the first count, the sentences in regard to the other two separate 

counts were ordered to run concurrently, but to remain in abeyance. 

Being dissatisfied with the judgment of the subordinate court, the appellants appealed to the High 

Court against their conviction and sentence. In their judgment the High Court (Azangalala & 

Odero, JJ), upheld the appellants’ conviction and sentence in regard to the first count, but quashed 

their convictions and set aside their sentences in regard to the other two separate counts. 

The appellants were still dissatisfied with the judgment of the High Court and therefore lodged a second 

appeal. The 1st appellant’s memorandum of appeal prepared by Azania Legal Consultants Advocates 

raised three grounds. One of the substantive grounds alleged the judges erred in law by passing 

the death sentence. According to the first appellant the mandatory death sentence as provided by 

section 297(2) of the Penal Code was unlawful since it contradicted section 389 of the Penal Code. 

Mr. S. Kimani, counsel for the 2nd Appellant associated himself with the submissions made by Mr. 

T. Bryant who appeared for the 1st Appellant. Mr. T Bryant pointed out that the High Court erred in 

convicting the appellant for the offence of robbery with violence contrary to section 296(2) of the 

Penal Code, when the appellant was charged with the offence of attempted robbery contrary to 

section 297(2) of the Penal Code. Mr. Bryant submitted that the appellant could not be convicted of 

a charge, which he was not aware of during his trial. 



He further submitted that there was a contradiction between section 297(2) of the Penal Code, which 

provides for death sentence for attempted robbery, and section 389 of the Penal Code which provides 

for a sentence not exceeding seven years where one is convicted of attempting to commit an offence 

punishable by death or life imprisonment. He argued that the appellant ought to have been sentenced 

to a term not exceeding seven years. In support of his submissions he relied on several authorities. 

The gravamen of Mr. Bryant’s argument was that the sentence imposed upon the appellant was 

unlawful in view of section 389 of the Penal Code, which provided a general penalty for an attempt to 

commit a felony or misdemeanour. The section provides as follows: “389. Any person who attempts 

to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is 

provided, to one half of such punishment as may be provided for the offence attempted, but so that 

if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment 

for a term exceeding seven years.” 

He relied on the cases of David Mwangi Mugo v Republic and Boniface Juma Kisa vs. Republic 

eKLR where the Court of Appeal was of the view that there was an apparent conflict between section 

389 of the Penal Code which provides for a sentence of seven years where the attempted offence 

is punishable by death, and section 297(2) which provides for a death sentence for the offence of 

attempted robbery with violence. 

In the court’s view, three things stood out from the reading of section 389. Firstly, the section sets 

out a general offence of an attempt to commit a felony or a misdemeanour. This was an implied 

recognition that there are instances where specific offences were provided for in the Penal Code, 

but no specific provision made for an attempt to commit such an offence. 

Secondly, the section recognized that there were situations where no punishment has been provided 

for an attempt to commit specific offences, and the section therefore provided a formula for sentencing 

where no other punishment provided for such attempt. Thirdly, a specific sentence of a term of 

imprisonment not exceeding seven years had been provided, where the offence attempted was one 

punishable by death or life imprisonment. The latter part of section 389 of the Penal Code which 

provided for the specific sentence, had to be read in conjunction with the words “if no other punishment 

is provided” and “but so that” in the preceding part of that section. In other words, the specific 

punishment in cases where the offence attempted was one punishable by death or life imprisonment, 

was only applicable where the legislature had not provided any other sentence for such an attempt. 

Thus, for the offence of an attempt to commit robbery with violence under section 297(2) of the Penal 

Code, in respect of which a sentence of death has been provided under that section, section 389 

of the Penal Code could not apply. The fact that section 297(1) of the Penal Code, which provides 

for the offence of attempted simple robbery, provided for a sentence of seven years, confirmed the 

legislature’s intention to provide a more severe punishment for the more serious offence of attempted 

robbery with violence under section 297(2) of the Penal Code. 

In the court’s view, the legislature’s intention to exclude the offence under section 297(2) of the 

Penal Code from the application of section 389 of the Penal Code was clear. The court referred to 

its earlier decision Evans Kiratu Mwangi V Republic [2011] eKLR where it was stated that section 

297(2) of the Penal Code provides for a sentence of death, and that sentence was therefore lawful. 

The court distinguished this case from the decision in Godfrey Ngotho Mutiso V Republic [2010] 

eKLR where the legality of the mandatory death sentence was dealt with. It was of the view that 

issues raised in this case were different. 

The court noted that both appellants had been given an opportunity in the subordinate court to 


87


mitigate before the sentence was imposed. The court concluded that notwithstanding the fact 

that the Senior Principal Prosecuting counsel conceded the appeal, the appeal had no merit, 

as the sentence imposed on the appellants under section 297(2) of the Penal Code was lawful. 

The appeal was therefore dismissed in its entirety. This judgment was delivered pursuant to Rule 

32(2) of the Court of Appeal Rules, Visram JA having declined to sign the judgment. 



“The constitutional petitions filed in 

the High Court raised justiciable 

questions, entailing issues of 

constitutional interpretation under 

a jurisdiction properly vested in the 

High Court. The issues ought to be 

litigated and resolved in the High 

Court, and the High Court’s decision 

in that respect would be subject to the 

appellate procedure running through 

the Court of Appeal, to the Supreme 

Court.” 

The applicant, the Interim 

Independent Electoral 

Commission, had moved 

the Supreme Court by a 

Constitutional Application dated April 

28, 2011. It cited Articles 101(1), 

136(2) (a), 177(1)(a) and 180(1) 

of the Constitution as providing 

that elections for Members of the 

National Assembly and the Senate, 

the President, Members of County 

Assemblies and Governors “shall be 

held on the second Tuesday in August 

in every fifth year”. It was also noted 

that clause 9(1) of the Sixth Schedule 

to the Constitution stated that: “The 

first elections for the President, the 

National Assembly, the Senate, county 


SUPREME COURT’S ADVISORY OPINION ON 

ELECTION DATE 

In Re the Matter of the Interim 

Independent Electoral 

Commission [2011] eKLR 

Constitutional Application 2 of 2011 

The Supreme Court of Kenya 

W.M. Mutunga, CJ; Nancy Baraza, 

DCJ & Tunoi, Ibrahim, Ojwang, 

Wanjala & Ndung’u, SCJJ. 

December 20, 2011. 

By: Njeri Githang’a Kamau 

assemblies and county governors 

under new Constitution shall be held 

at the same time, within sixty days 

after the dissolution of the National 

Assembly at the end of its term.” 

The applicant hence sought the 

advisory opinion of the Court on 

the question what, in the light of 

the above provisions and the other 

provisions of the Constitution of Kenya 

and the other continuing applicable 

provisions of the former Constitution, 

was the date for the next election for 

the aforesaid offices of President, 

Members of the National Assembly 

and the Senate, Members of County 

Assemblies and Governors. 

A preliminary objection was raised 

on the ground, among others, that 

the original grievance in the High 

Court Petition of April 19, 2011 

was a justiciable question, entailing 

constitutional interpretation belonging 

first and foremost, to the jurisdiction of 

the High Court; and that such a matter 

ought to be litigated and resolved 

in the High Court which decision in 

that respect would be subject to the 



Court. The contention, in its essence, 

was that the Supreme Court lacked 

jurisdiction at that stage. 

The court noted that while the Advisory- 

Opinion jurisdiction was exclusively 

entrusted to the Supreme Court, the 

Constitution did not provide that the 

Court while rendering an opinion 

may not interpret the Constitution. 

It followed that the Supreme Court 

could, while rendering an Advisory 

Opinion under Article 163(6) of the 

Constitution, undertake any necessary 

interpretation of the Constitution. It was 

opined that the application amounted 

to a request for an interpretation of 

Articles 101(1), 136(2) (a), 177 (1)(a) 

and 180(1) of the Constitution, and 

clause 9 of the Sixth Schedule to the 

Constitution hence the question placed 

before the court was not a normal 

one within the Advisory-Opinion 

jurisdiction as envisaged under Article 

163(6) of the Constitution. 

In the light of the several petitions 

pending before the High Court, the 

court found that the application was 

89


inappropriate. The cases sought the 

interpretation of the Constitution, with 

the object of determining the date 

of the next general election. Those 

petitions raised substantive issues that 

required a full hearing of the parties; 

and those matters were properly 

lodged and the parties involved had 

(Appeal from a judgment and orders 

of the High Court of Kenya at Nairobi 

(Constitutional and Human Rights 

Division, Lenaola, Mumbi Ngugi and 

Majanja, JJ.) dated the 13th January, 

2012in Constitutional Petition No. 

65 of 2011) July 31, 2012 Judgment 

Constitutional law – interpretation 

of the Constitution – determination of 

the date of the first general election 

under a new constitution - rules 

of interpretation - schedule to a 

constitution – status of a schedule 

vis a’ vis the other provisions of a 

constitution – whether the election 

was to be held on the 2nd Tuesday 

of August in 2012 or within 60 days 

after the end of the term of the serving 

Parliament in 2013 - Constitution of 

Kenya 2010 Articles 101, 262; Sixth 

Schedule sections 2, 3, 9, 10, 12 

Civil Procedure – appeal – parties 

filed their pleadings and made claims 

to be resolved by the High Court. To 

allow the application, in the opinion of 

the court would constitute interference 

with due process, and with the rights 

of parties to be heard before a Court 

duly vested with jurisdiction and 

also constitute an impediment to the 

Court of APPEAL Case 

NEXT GENERAL ELECTION TO BE HELD 

60 DAYS AFTER JANUARY 14 2013 

Centre for Rights Education 

and 

Awareness & another v John Harun 

Mwau & 6 others 

[2012]eKLR 

Court of Appeal at Nairobi 

EM Githinji, MK Koome, 

HM Okwengu, 

KH Rawal & DK Maraga JJ A 

By: Michael M. Murungi, Advocate 

to an appeal in the Court of Appeal - 

whether a person who is not a party 

to the proceedings in the High Court 

has locus standi to lodge an appeal – 

whether such a person may be heard 

de bene esse – matters the court will 

consider – Constitution of Kenya 2010 

section 164 – Court of Appeal Rules 

2010 rule 75, 77 

Civil Procedure – jurisdiction – Court 

of Appeal - whether the Court of 

Appeal has jurisdiction to decide upon 

a matter which was not canvassed in 

the High Court and adjudicated upon - 

Words and phrases 

“appeal” 

“de bene esse” 

“party directly affected” [by a 

decision of the High Court so as to 

entitle the party to file an appeal]. 

On August 27, 2010, Kenya 

prospect of any appeal from the High 

Court up to the Supreme Court. The 

Court had to protect the jurisdiction 

entrusted to the High Court hence it 

consequently upheld the preliminary 

objections and directed the High Court 

to proceed to hear and determine the 

several petitions pending before it. 

promulgated a new constitution – the 

Constitution of Kenya 2010. The 

new constitution provided for a new 

structure of government and contained 

transitional provisions governing the 

conclusion of the term of the serving 

government and the establishment 

and commencement of the term of the 

new government through a general 

election. 

Previously, in 2008, Kenya’s 

legislature had passed the National 

Accord and Reconciliation Act, 2008 

to establish a coalition government 

through a National Accord, which 

was a reconciliation framework 

brokered after the violent aftermath 

of the disputed results of the general 

election held in December 2007. 

A dispute arose on the interpretation 

of some provisions of the new 



constitution and the National Accord 

and Reconciliation Act, 2008 on the 

question of what would trigger the 

first general election under the new 

constitution and how the date of the 

election would be reckoned. These 

provisions were: 

The National Accord and 

Reconciliation Act, 2008: 

• Section 6: The coalition shall 

stand dissolved if - (a) the Tenth 

Parliament is dissolved;…” 

The Constitution of Kenya 2010: 

• Article 101(1): “A general 

election of members of 

Parliament shall be held on 

the second Tuesday in August 

in every fifth year”. 

• Article 102(1): “The term of 

each house of Parliament 

expires on the date of the next 

general election”. 

• Article 262 provided that the 

transitional and consequential 

provisions set out in the 

schedule were to take effect on 

the date that the Constitution 

came into force on August 27 

2010. 

• The Sixth Schedule, section 

3(2) provided that certain 

provisions of the former 

Constitution would continue 

to apply until the first general 

elections. That section 

excluded section 59 which 

gave the President the power 

to prorogue and to dissolve 

Parliament at any time. The 

section further provided that 

the provisions of the former 

Constitution concerning the 

executive and the National 

Accord would continue to 

operate until the first general 

elections. 


9(2): “The first elections for 

the President, the National 

Assembly, the Senate, 

county assemblies and 

county governors under this 


Constitution shall be held at 

the same time, within sixty 

days after the dissolution of 

the National Assembly at the 

end of its term”. 


9(2): “Despite subsection (1), 

if the coalition established 

under the National Accord 

is dissolved and general 

elections are held before 

2012, elections for the 

first county assemblies and 

governors shall be held during 

2012.” 

• The Sixth Schedule, Section 

10 provided that the 

National Assembly existing 

immediately before the date 

of the promulgation of the new 

constitution would continue as 

the National Assembly for the 

purposes of the Constitution 

for “its unexpired term”. 


12 provided that the President 

and the Prime Minister 

would continue to serve in 

accordance with the former 

Constitution and the National 

Accord until the first general 

elections unless they vacate 

office under the former 

Constitution and the Accord. 


12(2) allowed the Cabinet 

and the Assistant Ministers 

under the repealed constitution 

to continue holding office until 

the first general elections 

under the new constitution 

unless they vacated or were 

removed from office in 

accordance with the former 

Constitution and the National 

Accord. 

In interpreting these provisions, the 

High Court had found, among other 

things, that, firstly, following the 

repeal of the former Constitution, the 

President had no power under the 

Constitution to dissolve Parliament. 

Secondly, it had found that the date 

of the first elections under the new 

Constitution would be determined by 

reference to Sections 9 and 10 of the 

Sixth Schedule as follows: - 

a. In the year 2012, within 

sixty days from the date 

on which the National 

Coalition is dissolved by 

written agreement between 

the President and the Prime 

Minister in accordance with 

Sections 6(b) of the National 

Accord and Reconciliation 

Act, 2008 or, 

b. Upon the expiry of the term of 

the 10th Parliament on the 5th 

of the Anniversary of the day 

it first sat which is designated 

by Legal Notice No.1 of 

2008 on 15th January 2008 

and the term therefore expired 

on 14th January, 2013 and 

the elections shall be held 

within sixty days of 15th 


Two appeals were lodged in the Court 

of Appeal against these findings. One 

of the appeals was lodged by an 

entity which had not been a party to 

the proceedings in the High Court on 

the ground that the entity was directly 

affected by the decision of the High 

Court and that the Constitution entitled 

it to file the appeal. The two appeals 

were consolidated. 

Held: 

On the locus standi of one of the 

appellants: 

1. Even though in the first 

instance appeals to the 

Court of Appeal will 

invariably be brought 

by persons who were 

parties in the suit from 

which the appeal emanates, 

this is not to say 

that a person who was 

not party to the suit cannot 

go to the Court on 

appeal. Each case must 

be considered on its 

own merit. 

2. A person who was not a 

party in the original suit 

has the obligation to establish 

that it is affected 

91


by the judgment or order, 

subject of the appeal 

- and the required 

interest is not to be restricted 

to proprietary 

or financial interest only 

- and to establish that 

there are good reasons 

for not having pursued 

its interest in the High 

Court. Where a matter 

is of public interest and 

relates to the protection 

and promotion of the 

Constitution, it may be 

in the interest of justice 

to admit such a party. 

3. However, it would not 

be proper for such a 

party to canvass matters 

in the Court of Appeal 

which were not the subject 

of the litigation in 

the High Court. 

On the principles of interpreting a 

constitution: 

4. Some of the important 

principles which apply 

to the interpretation of 

a constitution are: 

a. A court should avoid a 

construction that produces 

an absurd, unworkable 

or impracticable 

result; 

b. A court should find 

against a construction 

that creates an anomaly 

or otherwise produces 

an irrational or illogical 

result; 

c. The court should strive 

to avoid adopting a 

construction which is adverse 

to public interest, 

economic, social and 

political or otherwise. 

5. The sixth schedule to the 

Constitution of Kenya 

2010 was an integral 

part of the Constitution 

and had the same status 

as the provisions of the 

other Articles although it 

is of a limited duration. 

On the merits of the appeals: 

6. By finding that the general 

election could be held 

in the year 2012 within 

sixty days from the date 

on which the National 

Coalition is dissolved 

by the President and the 

Prime Minister, the High 

Court was in effect giving 

the President and the 

Prime Minister power to 

dissolve the National 

Assembly, which power 

was not conferred by 

the Constitution. 

7. It was not within the 

province of the High 

Court to amend, as it in 

effect did by that decision, 

sections 9(2) and 

10 of the Sixth Schedule 

to the Constitution of Kenya 

2010 and section 

6(b) of the National Accord 

and Reconciliation 

Act, 2008. The decision 

was inconsistent with the 

new constitution particularly 

sections 10 and 12 

of the Schedule. 

8. It was the intention of the 

Constitution of Kenya 

2010, as evident in 

sections 9(1) and 10 of 

the Sixth Schedule, that 

the National Assembly 

would complete its unexpired 

term and that 

the first elections would 

be held within sixty days 

after the dissolution of 


at the end of its terms. 

9. The High Court was 

right in its second finding 

that the first elections 

under the new Constitution 

could only be lawfully 

held within sixty 

days upon the expiry 

of the term of the 10th 

Parliament and in computing 

the date of expiry 

as January 14 2013. 

Per Martha Koome JA, dissenting: 

Held: 

1. A party before the High 

Court has to demonstrate 

how they are 

affected by the decision 

being appealed 

against. The appellant 

should have first sought 

leave before the High 

Court so as to demonstrate 

the general public 

interest it was pursuing 

and given reasons why 

it did not appear before 

the High Court to agitate 

its case. 

2. Having also considered 

that the life of Parliament 

is five years as per the 

Section 59 (5) of the 

repealed Constitution, 

which was saved by 

section 10 of the Sixth 

Schedule to the new 

Constitution, then section 

9(1) of the Sixth 

Schedule should not 

have been read as a 

stand-alone leaving out 

the provisions of Section 

10 of the Sixth Schedule 

to the new constitution 

and section 59(5) of the 

repealed Constitution. 

3. If Sections 9 and 10 

of the Sixth Schedule 

to the new constitution 

and section 59(5) of 

the repealed constitution 

were read conjunctively 

and given their purposeful 

meaning within the 

prevailing context that 

traditionally general 

elections are held within 

five years, the National 

Assembly should dissolve 

sixty days before 

the expiration of term. 

The dissolution of Parliament 

sixty days after the 

expiry of its term would 

contradict section 10 of 

the Sixth Schedule as it 



extended the period of 


beyond the term of five 

years. 

4. The National Assembly 

should have been dissolved 

sixty days before 

the expiration of its 

term - that should have 

been on or about 14th 

November, 2012. This 

way, the current National 

Assembly would not 

go beyond its lifespan 


of five years and the 

Members of Parliament 

would have served their 

entire term of five years. 

The date for the next 

general elections would 

then be on or about the 

January 15 2013. 

By majority decision: The order of 

the High Court providing that the 

general elections could be held in the 

year 2012 within 60 days from the 

date on which the National Coalition 

is dissolved by written agreement 

between the President and the Prime 

Minister in accordance with section 6 

(b) of the Accord was set aside. 

The order of the High Court providing 

that the general elections shall be held 

upon the expiry of the term of the 10th 

Parliament on the 5th Anniversary of 

the day it first sat - which is designated 

by Legal Notice No. 1 of 2008 as 

15th January, 2008 and the term 

therefore expires on 14th January, 

2013 - so that the election shall be 

held within sixty days of 15th January, 

2013, was confirmed. 

93



Constitutional law – electoral and 

boundaries law – delimitation 

of electoral and administrative 

boundaries – decision of the 

Independent Electoral and Boundaries 

Commission declaring the names, 

population and boundaries of wards 

and constituencies – duty of the 

Commission to comply with the Bill of 

Rights, Article 89 of the Constitution 

and the Independent Electoral and 

Boundaries Commission Act in the 

delimiting exercise – political rights - 

right to vote - right to representation 

– rights of minorities - principles of 

electoral systems - public participation 

and consultation - whether the 

decision of the Commission violated 

the Constitution and the law – 

whether the Commission had failed 

in its obligation to ensure public 

participation and consultation in the 

delimiting exercise - Constitution of 

Kenya Articles 10, 19, 20, 38, 40, 

56, 81, 88, 89, 174, Sixth Schedule - 

Independent Electoral and Boundaries 

Commission Act sections 36, Fifth 

Schedule – Survey Act (Cap. 229) 

sections 29, 39, 41 

Constitutional law – interpretation 

of the Constitution – Constitution of 

Kenya Article 259(1) 

PUBLIC PARTICIPATION CRUCIAL IN 

DETERMINING ELECTORAL BOUNDARIES. 

Republic v Interim Independent 

Electoral and Boundaries 

Commission & another ex 

parte Eliot Lidubwi Kihusa & 

5 others [2012] eKLR 

High Court at Nairobi – 

Judicial Review Division 

M. Warsame, RN Sitati, 

HA Omondi, P Nyamweya & 

D Majanja JJ 

July 9, 2012 

Judgment 


Statute – interpretation of statute 

– constitutionality of a statutory 

provision – Constitution prescribing 

three months as the time within 

which an application for the review 

of a decision on the delimitation of 

electoral units is to be heard – statute 

prescribing thirty days for a court to 

determine such a matter – whether 

the statute was inconsistent with the 

Constitution - Constitution of Kenya 

Article 89 - Independent Electoral 

and Boundaries Commission Act Fifth 

Schedule section 4 

Jurisdiction – High Court – jurisdiction 

of the High Court – whether the Court 

had jurisdiction to review to the 

decision of the Independent Electoral 

and Boundaries Commission on 

the creation, naming, population, 

distribution and boundaries of 

constituencies and county wards – 

incidence of scope of the court’s power 

– Constitution of Kenya Article 22, 

89(11), 165, 259(9) - Independent 

Electoral and Boundaries Commission 

Act sections 36, Fifth Schedule 

The Constitution of Kenya 

(Amendment) Act, 2008 

amended Kenya’s former 

constitution to dissolve the then 

Electoral Commission of Kenya and to 

create two interim bodies; the Interim 

Independent Electoral Commission 

(the IIEC) and the Interim Independent 

Boundaries Review Commission (the 

IIBRC). 

After a national exercise of consultations 

and review of the boundaries of 

various administrative units, the 

IIBRC presented its report (the IIBRC 

Report), in November 2010, which 

determined the names and details of 

the boundaries of 290 constituencies. 

The IIBRC also published the names 

of the constituencies in the National 

Assembly Constituencies Order No. 

2 of 2010. 

Whereas it was mandated to determine 

the optimal numbers, names and 

boundary details of County Assembly 

Wards, the IIBRC was unable to 

deliver on this mandate because the 

county wards came into force through 

a new Constitution promulgated in 

August 2010, long after the IIBRC had 

held public consultations. The IIBRC 

recommended that the existing local 

authority wards established under the 

Local Government Act (Cap. 265) 

should serve as wards until County 

Assembly Wards were determined in 



accordance with the new Constitution. 

It also noted that its work was to run 

up to June 2011 hence it was unable 

to conduct field surveys to confirm the 

maps for the 290 constituencies in line 

with the names and boundary details 

it had determined. 

The IIBRC Report was adopted by 

the National Assembly in December 

2010. 

In its transitional provisions, the new 

constitution preserved the IIBRC but 

created the Independent Electoral 

and Boundaries Commission (IEBC) 

in Article 88(4)(c). The IEBC was to 

be responsible for the delimitation of 

constituencies and wards. 

The Bill of Rights of this new Constitution 

guaranteed political rights, including 

the freedom to make political choices 

and the right to free, fair and regular 

elections based on universal suffrage. 

Chapter Six on representation of the 

people set out how the right to vote is 

realized. Article 81 set out the general 

principles for the electoral system, 

including the freedom of citizens to 

exercise their political rights; gender 

representation quota in elective public 

bodies; fair representation of persons 

with disabilities; universal suffrage 

based on the aspiration for fair 

representation and equality of vote; 

and free and fair elections. 

In order to operationalize the activities 

of the IEBC, the Independent Electoral 

and Boundaries Commission Act 

(the IEBC Act) was passed. Section 

36 empowered the IEBC to resolve 

all issues relating the delimitation 

of boundaries of constituencies and 

wards arising from the report of 

the IIBRC. In addressing the issues 

arising out of the first review, IEBC 

was restricted by the IEBC Act and 

section 2(1) of the Fifth Schedule to 

use the IIBRC Report as its primary 

reference material and the report of 

a parliamentary committee on the 

IIBRC Report as secondary reference 

material. 

Ultimately, in March 2012, after 

a national exercise of public 

consultations, the IEBC published the 

National Assembly Constituencies 

and County Assembly Wards Order, 

2012 through Legal Notice No. 14 


of 2012. This Order contained the 

decision of the IEBC concerning the 

delimitation of constituencies and 

wards. 

The formula used by the IIBRC 

and the IEBC to distribute 

the constituencies was based 

on a national constituency 

population quota of 133,138, 

being the product of dividing the 

total country population (over 

38 million) by the number of 

legally mandated constituencies 

(290). To this quota was added 

or subtracted a number 

representing the percentage 

variation prescribed by Article 

89(6) of the Constitution for a 

city, sparsely populated areas, 

and other areas as the case 

may be to arrive at population 

quotas of 186,394 for cities; 

79,883 for sparsely populated 

areas; and for other areas, not 

more than 173,079 and not 

less than 93,197. The IEBC then 

mathematically redistributed 

the 290 constituencies within 

the existing provinces to arrive 

at 17 constituencies for Nairobi 

and 284 for other provinces 

but taking care to protect 

constituencies with populations 

below the quota. In effect, some 

constituencies were split and 

others were renamed. 

The methodology applied by the 

IEBC in the delimitation of County 

Assembly Wards took into account 

the county population quota. This 

quota was arrived at by dividing the 

total population of the county by the 

number of constituencies in the county. 

The total number of constituencies 

in the county was multiplied by 

five, being the ideal number of 

county wards per constituency as 

recommended by the Report of the 

Task Force on Devolved Government. 

Each constituency population within a 

county was then divided by the county 

population and the result multiplied 

by the number of County Assembly 

Wards awarded to the county to arrive 

at the number of the County Assembly 

Wards awarded to a constituency. 

Complaints were raised 

regarding the manner in which 

80 new constituencies and 1450 

County Assembly Wards had 

been created, their distribution, 

their names, boundaries 

and areas of allocation. The 

movement of sub-locations 

hitherto falling in one 

constituency to one or more 

of the proposed constituencies 

was also contested. Further 

grievances and controversies 

arose regarding the number 

of wards given to a particular 

constituency mainly on 

the basis of population, 

geographical, ethnic, clan, 

community, marginalized 

groups, minorities and other 

interests and the adequacy 

of the wards allocated. These 

complaints were contained in 

constitutional petitions and 

applications for judicial review 

filed in various High Court 

registries across the country, 

which were consolidated and 

heard by a bench of five judges 

of the Constitutional and 

Judicial Review Division of the 

Court. 

The two main issues for determination 

were, firstly, the jurisdiction and the 

powers of the High Court to ‘review’ 

a decision on the delimitation of 

electoral unites under Article 89(11) 

of the Constitution and secondly, the 

constitutionality and legality of the 

criteria for delimitation applied by 

the IEBC. The question of which party 

should bear the costs of the litigation 

was also contested. 

The fulcrum of the litigation was 

therefore the interpretation of 

and application of the criteria for 

delimitation set out in Article 89 as 

read with section 27 of the Sixth 

Schedule to the Constitution and 

section 36 of the IEBC Act as read 

with the Fifth Schedule to the Act. 

Held: 

Under Article 259(1) of the 

Constitution, the Constitution is to 

be interpreted in a manner that 

promotes its purpose, values and 

principles; advances the rule of 

law, human rights and fundamental 

freedoms in the Bill of Rights and 

permits development of the law and 

95


contributes to good governance. In 

interpreting the Constitution, the letter 

and the spirit of the supreme law must 

be respected. Various provisions of 

the Constitution must be read together 

to get a proper interpretation. Article 

89 could not be read or interpreted 

in isolation. The mandate of the IEBC 

was to be read, and the right to fair 

representation and equality of the vote 

determined, against the background 

of the entire Constitution. 

Since section 4 of the Fifth 

Schedule to the IEBC Act 

granted the right to apply for 

review either under the IEBC 

Act or the Constitution, the 

purported limitation on the 

Court to determine the matter 

within thirty days of filing the 

application was inconsistent 

with Article 89(11) of the 

Constitution which provided 

that the application for review 

shall be heard and determined 

within three months of the date 

on which it is filed. 

No person or body could claim 

not to be subject to or beyond the 

powers of the High Court when 

it is alleged that he or she has 

committed a transgression in exercise 

of a legitimate power conferred by 

the Constitution and the law. The 

jurisdiction of High Court can only 

be ousted by very clear and express 

language in the Constitution. 

The jurisdiction of the High Court 

to review the boundary delimitation 

process was not granted by statute 

but was founded in the Constitution 

Article 165; it is the jurisdiction of 

the High Court to satisfy itself of the 

propriety of any act or decision done 

by any person or body pursuant to the 

Constitution and the law. 

In discharging the function 

of review contemplated by 

Article 89(11), the court was 

not constrained by the statutory 

provisions or common law 

remedies. The duty was a 

constitutional duty and the 

relief must accord with the task 

at hand. The High Court had 

the powers to grant appropriate 

relief if contravention of the 

Constitution is established, even 

if the State and the IEBC were to 

be inconvenienced. The review 

contemplated in Article 89(11) 

was a review of the procedures 

and merits of the delimitation 

exercise. Where an application 

is made, the court assumes all 

the plenary powers necessary to 

ensure that the IEBC complied 


Therefore in exercising its 

jurisdiction in relation to 

the delimitation process, 

the High Court is meant to 

correct, modify, verify, 

eradicate, amend, override 

or suppress any illegality or 

unconstitutionality committed 

by the IEBC in exercise of its 

mandate of delimitation under 

Article 89. 

The requirement of Article 89(2) of 

the Constitution that the review of 

constituency and ward boundaries 

was to be completed at least twelve 

months before a general election did 

not apply to the review of boundaries 

preceding the first general elections 

under the Constitution. This left no 

doubt that it was intended that the 

first general elections under the 

Constitution be carried out based on 

the work done by the IIBRC. Therefore, 

the provisions of Legal Notice No. 14 

of 2012 took effect and applied to the 

next general elections. 

The internationally recognized and 

accepted principles of boundary 

delimitations were representativeness, 

equality of voting strength, independent 

and impartial authority, transparency 

and non-discrimination. The decision 

as to whether to delimit an electoral 

area and the means adopted depends 

on a country’s specific administrative, 

political, social conditions and the 

financial resources available. 

The purpose of the right to vote 

enshrined in the Constitution was not 

equality of voting power per se, but 

the right to "effective representation”. 

Effective representation and good 

governance compelled that factors 

other than absolute voter parity 

such as geography and community 

of interest be taken into account in 

setting electoral boundaries. The 

creation of electoral units must meet 

the necessary conditions and there 

must be a pressing and substantial 

need that is rationally connected to 

the concept that the creation will result 

in fair and effective representation 

while the differing representational 

concerns of urban and rural areas 

may be properly considered in 

drawing constituency and ward 

boundaries. The one-person onevote 

principle was tempered by the 

unique circumstances of Kenya and 

the specific provisions of the entire 

Constitution. The delimitation of the 

boundaries as required by Article 89 

required the IEBC to take into account 

the criteria contained in Article 89(5) 

and (6). 

The effect of treating the 

marginalized and minority 

communities in the exact 

same manner as the larger 

communities in the delimitation 

process would have been far 

more discriminatory, and would 

never eliminate the mischief 

intended to be reduced by 

Article 27 of the Constitution 

[on the right to equality and 

freedom from discrimination]. 

Instead, it would undermine the 

achievement of social justice. 

The IEBC was not restricted by the 

Constitution in the number of wards 

it could create and neither could it 

restrict itself to creating five wards per 

constituency. However, it adopted an 

objective, rational and valid process 

of determining the number of County 

Assembly Wards in line with the 

mandate imposed by the IEBC Act 

on it to resolve outstanding issues 

from the first review. The methodology 

used by the IEBC in conducting the 

first review did not breach of the 

Constitution or the Fifth Schedule to 

the IEBC Act. 

However, the IEBC was duty bound 

to ensure public participation in the 

process of delimitation. The nature 

and extent of that participation was 

for the IEBC to determine provided it 

was meaningful and gave effect to the 

purposes of the Constitution, that is, to 

promote accountability, transparency 

and good governance. 

Giving effect to the principles of 

consultation and public participation 

meant that the IEBC was to give great 

weight to public consensus where 



this was possible. In order to give 

effect to this value, the IEBC was 

obliged to consider the submissions 

made to it and give reasons for its 

ultimate decision. It is the giving of 

reasons that distinguishes an arbitrary 

decision from one that is founded 

in law. The IEBC had not properly 

discharged its obligation for public 

participation and consultation. 

It was not fatal for the IEBC to fail to 

consult the Attorney General on the 

delimitation plan. However, consulting 

the Attorney General expresses fidelity 


to the law and could, in the future, 

lead to a result that reduces the scope 

of litigation. 

Costs remained in the court’s 

discretion and like all forms of 

discretion, it must be exercised 

judicially, in light of the particular 

facts of the case and giving due 

regard to the national values 

and principles of governance 

set out in the preamble to the 

Constitution and Article 10 in 

order to achieve the objects of 

Article 259(1) on construing the 

Constitution. Each of the parties 

was to bear their own costs. 

In applying its findings in disposing 

of the consolidated petitions and 

applications, the Court issued 

orders for the renaming of certain 

wards; the moving of some wards, 

locations and sub-locations into other 

constituencies; the moving of some 

locations into certain wards and for 

the amendment of the maps of the 

affected constituencies in the IEBC 

Final Report and Legal Notice No.14 

of 2012 accordingly. 

97



The High Court has stated that it 

would be unlawful for a bank 

to increase a commission, late 

payment charge or other bank 

charge on money owed to it by its 

customer on a credit card account 

where such an increment does not 

have the prior approval of the Minister 

for Finance. Citing section 44 of the 

Banking Act (Cap. 488) which states 

that: “No Institution shall increase 

its rate of Banking or other charges 

except with the prior approval of 

the minister”, the Court observed 

that a charge would be illegal or 

unlawful if it is not contractual or if 

it is against statute. However, as for 

the rate of interest, the Court ruled that 

because this is a matter to be agreed 

contractually between the parties, a 

client who knowingly and willingly 

enters into a credit agreement which 

provides for a repayment at a very 

high rate of interest cannot thereafter 

complain to the courts that the rate 

is irrational or illegal just because 

it is exorbitant. This is because, as 

the court further observed, the work 

of the courts is to give effect to the 

agreement between the client and the 

bank and not to rewrite it. 

The Court made the findings in a case 

involving a claim by the Commercial 

Bank of Africa against its client and 

his guarantor for money owed by the 

BANK CHARGES NOT APPROVED BY 

THE MINISTER ARE ILLEGAL 

Commercial Bank of Africa v Paul 

Imison & another [2012] eKLR 

High Court at Milimani 

Commercial Courts 

Justice A. Mabeya 

June 5, 2012 


client on two credit card accounts. 

The client had opposed the claim, 

arguing that the amount claimed 

by the Bank was interest, which 

was illegal, unlawful, irrational and 

unenforceable. The defendants had 

executed a contract based on the 

Bank’s standard terms and conditions. 

One of these terms was an interest 

rate of 3.5% per month on any money 

outstanding on the credit cards and an 

interest chargeable for late payment. 

Following what appeared to a 

notification of increment fees 

contained in a bank statement, the 

total rate of interest had risen to 10% 

per month being 5% interest and 6% 

interest on late payment. The annual 

interest was approximately 132%. 

On the complaint that these rates 

were exorbitant and illegal, the High 

Court stated that the courts are not 

there to redraft contracts entered into 

by parties howsoever unfavorable 

such contracts may look to any of 

the parties. Once parties enter into 

a contract, the role of the courts is to 

give effect to such contracts except 

for certain limited instances in which 

a court may be justified in making an 

intervention. While observing that the 

rate of 132% per annum may look not 

only exorbitant but out of the ordinary, 

the court was satisfied that it was the 

rate that the parties had mutually and 

freely agreed upon in their contract 

and that there was no basis for the 

court to interfere with it. 

However, this would not apply to 

commissions, penalties fees and other 

bank charges levied on customers’ 

accounts. Before a bank can vary 

such charges upwards, the court 

noted, the Banking Act required the 

prior approval of such variation by 

the Minister. The provision for a late 

payment charge of 3% per month 

of the outstanding sum chargeable 

daily was a charge and not interest. 

According to the evidence presented 

to the Court, this rate had been 

increased to 7% per month so that in 

a space of three months, the amount 

claimed by the Bank had increased 

by approximately 40.8%. As it turned 

out, the monthly late payment fee was 

far much higher than the interest. 

The court was not satisfied that 

there was any ministerial approval 

to this increment. On the manner of 

establishing the lack of ministerial 

approval in evidence, the court stated 

that it was not for the client to show 

that the charges had been increased 

without authority. Rather, once the 

client alleged that the charges were 

illegal and irregular, the evidentiary 

burden shifted to the Bank to justify 




those charges and to show that it 

had obtained the minister’s approval 

to increase the late payment charge 

from a low of 3% to a high of 6% 

per month. 

A matter that caused further concern 

to the Court was that while in such 

claims banks would produce bank 

statements to show the amounts that 

may have been debited and credited 

The adoption of sole use of load 

capacity in the assessment of 

the load limits of cargo vehicles 

is not unlawful, the court has 

held. This was held by the High 

Court in Nairobi in a judicial review 

matter where Kyevaluki Services 

Ltd (Exparte Applicant) moved the 

court to quash the entire decisions 

by the Minister of Roads and Public 

Works (1st Respondent) and Kenya 

National Highway Authorities (2nd 

Respondent). 

The application was brought on the 

grounds that section 56 of the Traffic 

Act Cap 403 Laws of Kenya specified 

that any vehicle load on the road was 

the one specified by the manufacturer 

of the chassis of the vehicle or the load 

capacity determined by an inspector 


and therefore enable the court to 

determine what charges may have 

been levied on the customer’s account, 

the Bank in this case was satisfied 

with basing its claim merely on some 

opening balances as at August, 2006. 

It did not produce any bank statements 

to show how such balances were 

arrived at. The court found that there 

was an element of an illegal charge 

and that the application of the interest 

COURT OKAYS USE OF LOAD CAPACITY IN THE 

ASSESSMENT OF THE LOAD LIMITS FOR CARGO 

VEHICLES 

Republic v Minister of Roads and 

Public Works & another Exparte 

Kyevaluki Services LTD. 

( www.kenyalaw.org) 


Githua CW, J. 

May 29 2012 

By: Phoebe Ida Ayaya, Advocate 

under the Act. The applicant stated 

that the 1st and 2nd Respondents 

had solely adopted section 56 yet 

the system was inconsistent and gave 

different vehicle loads at different 

weigh bridges and had proceeded 

to penalize the applicant for claimed 

excess load before any conviction by 

a Court of Law. 

The applicant also claimed that the 

1st and 2nd Respondents’ sole use 

of the load capacity determined 

by an inspector under the Act was 

erroneous, was arrived without the 

applicant being heard and was 

tantamount to breach of the rules of 

natural justice and was oppressive 

to the applicant and other members 

of the public affected by the said 

decision. He also contended that he 

of 3.5% per month on the amount 

outstanding as from August 2006 

was wrong. 

However, the court found that parts 

of the Bank’s claim against the client 

and the guarantor were legal and had 

been established by evidence and it 

gave judgment in favour of the Bank 

on those aspects of its claim. 

had suffered substantial irreparable 

loss that he would continue to suffer if 

the 1st and 2nd Respondents’ decision 

was not quashed and a prohibitory 

order issued from enforcing the sole 

use of the load capacity determined 

by an inspector under the Act. 

Preliminary objections were raised by 

the 2nd respondent to the effect that 

the Notice of Motion was defective, 

as it had not been made in the Name 

of the Republic as per the established 

practice in commencing judicial 

review proceedings. The issue of 

whether the court had jurisdiction to 

issue orders of certiorari where no 

decision had been annexed to the 

application as required by Order 53 

Rule 7 of the Civil Procedure Rules 

99



was also raised. 

While opposing the application, the 

2nd respondent submitted that it had 

acted within the law as empowered 

by the Traffic Act when using the 

inspectors appointed under section 

3 in determining the vehicles load 

capacities and executing its statutory 

mandate of designing, building 

and maintaining national highways 

within the Republic of Kenya. It was 

also stated that it was erroneous to 

determine load capacity of vehicles 

by their gross weight as damage 

to the road was caused by weight 

on axles not gross weight. It was 

further submitted that there was 

direct connection between damage 

and maintenance of roads and axle 

loads and emphasis should have been 

placed on axle loads, which were 

determined by inspectors in order 

to serve the wider public interest of 

maintaining good roads. 

Lastly, the 2nd Respondent averred 

that the inspector was an expert who 

relied on the caliberation machines 

in determining the weight of vehicles 

when performing his duties. 

In deciding the matter, the court first 

dealt with the preliminary objections 

raised by the 2nd respondent. It 

found on the first objection that it was 

misplaced as the applicant’s Notice of 

Motion; on the face of it that it was 

made in the Name of the Republic as 

the applicant thus was not defective 

and is properly before the court. The 

Judge went on to say that even if the 

application was not made in the Name 

of the Republic, such omission would 

be a matter of form which would not 

have gone to the substance of the 

application and bore in mind that 

the new constitutional dispensation 

emphasized on substantive justice as 

opposed to procedural technicalities. 

It was concluded that such want of 

form would not have rendered the 

application incompetent or defective. 

On the 2nd objection, the applicant 

had sought orders of certiorari to 

quash decisions allegedly made by 

the 1st and 2nd respondent which 

adopted the use of a system that 

determined load limits of cargo 

vehicles by inspectors. Order 53 

Rule 7 of the Civil Procedure Rules 

provided that any proceedings, 

decisions or order or other record 

whose validity was challenged must 

be in writing. The law required that 

a copy thereof verified by affidavit 

be lodged with the court’s registrar 

before the hearing of the Notice of 

Motion perhaps to prove its existence. 

A party who failed to avail a copy 

of the impugned decision, order, 

warrant, commitment, inquisition 

or other record to the court before 

hearing of the Notice of Motion was 

to explain his failure to do so to the 

satisfaction of the court. It was held in 

this case that the applicant failed to 

prove that the respondent had made 

any decision detrimental to its interest 

that was capable of being investigated 

by way of Judicial Review or which 

was capable of being quashed by 

orders of certiorari and that the 

applicant failed to demonstrate that 

it was entitled to orders of certiorari 

as sought in the Notice of Motion. It 

was also clear, the Judge observed, 

that in adopting the 2nd method 

which was the load capacity to be 

determined by an inspector under 

the Act by the 2nd respondent as 

opposed to the 1st one where a load 

greater than the load specified by the 

manufacturer on the chassis of the 

vehicle was authorized , it did not 

make the respondents actions illegal or 

unlawful. Equally, the court observed 

that there was no evidence to counter 

the 2nd respondents position that 

the determination of excess vehicle 

load was done using machines and 

had nothing to do with an individual 

inspector's subjective decision. It 

found that this destroyed the credibility 

of claims by the applicant that the 

inspector’s determination of excess 

loads in its vehicles had been done 

unreasonably or arbitrarily. 

The applicant had also sought 

orders of mandamus to compel the 

respondents to apply the method 

of using gross weight shown by 

manufacturers on chassis of vehicles 

to determine maximum permitted 

weight of cargo vehicles. The Judge 

noted that the order of mandamus 

was not available to the applicant as 

prayed because the applicant failed to 

show that the respondents had failed 

or refused to perform their statutory 

duties under the Act to the detriment of 

the . On the contrary, Section 56(1) of 

the Act had given the 2nd respondent 

discretion in deciding which of the two 

methods specified therein to use when 

executing its mandate of determining 

the load capacity of cargo vehicles. 

Lastly, the court was urged to issue 

orders of prohibition forbidding the 

2nd respondent from adopting the 

sole use of load capacity determined 

by an inspector. On this prayer, the 

court held that prohibition orders 

looked to future and sought to stop 

contemplated decisions which if 

made would be contrary to the law. 

It noted that if the applicants were of 

the view that the respondents were 

wrong in adopting the said method 

of determining load limits of vehicles, 

the court could not issue orders of 

prohibition to stop a statutory body 

from executing its statutory functions 

unless it was established that the said 

body planned to violate the rules of 

natural justice or act contrary to the 

law when performing its statutory 

obligations and functions. 

In conclusion, the court dismissed with 

costs to the 2nd respondent Notice of 

Motion dated 16th December 2010 

for lack of merit. 




The Hon. Mr.Justice Issac Lenaola, J. 

Samuel Momanyi was employed 

by the SDV Transami Kenya Ltd 

as a Project Manager where 

he had served with dedication 

and diligence until his services were 

terminated without being heard and 

without any lawful reasons being 

given for that action. He admitted that 

his employment contract provided that 

any dispute between the parties would 

have been referred to arbitration but 

that he had filed a claim before the 

Industrial Court which claim was 

struck off under Section 45(3) of the 

employment Act 2007 as he had only 

worked for 11 months and 27 days 

with Transami. The Industrial Court 

had ruled that Samuel had no lawful 

basis for claiming that he had been 

unfairly terminated but he argued that 

inspite of that ruling, he was entitled 

to remedies under the constitution 

because his rights and freedoms had 

been violated by his employer. 

He therefore appealed to the High 

Court and prayed for a declaration 

that his right to fair labour practices 

under Article 41(1) of the Constitution 

had been violated by his employer 

because he was not accorded a 

fair opportunity to be heard on the 

allegations resulting in the termination 

of his employment and that section 

45(3) of the Employment Act was 

inconsistent with the provisions of 

the Constitution of Kenya particularly 

Articles 28, 41 (1), 47,48 and 50 


COURT DECLARES SECTION 45(3) OF THE 

EMPLOYMENT ACT UNCONSTITUTIONAL 

Samuel G. Momanyi v The Hon. 

Attorney General & Another 

High Court, Constitutional and 

Human Rights Division 


I. Lenaola, J. 

May 18, 2012. 

By: Emma K. Mwobobia, Advocate 

(1). He therefore asked that an order 

be issued declaring section 45(3) 

of the Employment Act invalid by 

reason of its violation of the rights 

and fundamental freedoms and the 

said ruling be reviewed and set aside. 

However, Transami denied that 

Samuel was diligent in his duties and 

that the termination of his employment 

was lawful and warranted. Counsel 

submitted that Samuel was given an 

opportunity to explain his lackluster 

performance prior to the termination 

and after a meeting which he 

attended, it was decided that he 

lacked the capability to perform the 

functions entrusted to him and he 

was given reasons why his continued 

employment was no longer tenable 

Various issues emerged during the 

hearing among them being whether 

the termination of the petitioner’s 

employment was in breach of Article 

41(1) of the Constitution on the 

right to fair labour practices. The 

court considered whether it was 

properly seized of the matter in the 

circumstances given that Article 162 

(2) (a) of the Constitution had created 

a court (Industrial Court) with the 

status of the High Court to determine 

disputes relating to employment and 

labour relations. However, the High 

Court observed that only itself could 

have determined whether any statute 

or parts of it were in conflict with the 

Constitution and that being the case, 

it was properly seized of the matter. 

Samuel had also argued that section 

45(3) was in conflict with Articles 48 

and 50 (1) of the Constitution which 

guaranteed the rights to access justice 

and the right to a fair hearing. It was 

his argument that it was discriminatory 

of certain kinds of employees and that 

only those who had served for over 13 

months could have claimed for unfair 

termination of their services. 

Justice Lenaola observed that the 

Employment Act was enacted in 

2007 before the enactment of the 

2010 Constitution of Kenya and 

therefore there was need to align 

the provisions of all statutes enacted 

prior to it with the said Constitution. 

The Judge held that in lieu of Articles 

27 and 48 of the Constitution which 

guaranteed equality and freedom 

from discrimination and the right to 

access to justice, there was obvious 

discrimination and that Samuel had 

been denied equal protection and 

equal benefit of the law. 

The Judge observed that no 

explanation had been given by 

either Transami or the Attorney 

General as to why a person who 

had worked for one year and one 

month was the only one who could 

have claimed that his employment 

had been unfairly terminated and 

101



that one who had worked for a lesser 

period could not have had the benefit 

of that claim. Judge Lenaola relied on 

Cradle V Attorney General [2006] 

eKLR where it was stated that when 

considering whether a section of the 

law was discriminatory, the court 

must have taken into account the 

history and Social Economic context 

of the legislation, in other words, the 

environment in which the legislature 

had enacted the statute. The Judge 

therefore found that the repealed 

Constitution did not have as much a 

robust bill of rights as the Constitution 

2010 and there was need for all 

laws to conform to it. The Judge 

further observed that the objects of 

the preamble of the Employment Act 

2007 could not have been met when 

section 45(3) of the same Act was left 

to stand in our statute books. 

In considering what circumstances 

a court could have declared a law 

to have been unconstitutional, Judge 

Lenaola held that section 45(3) was 

unreasonable and had the opposite 

of what the object of the Employment 

Act was intended to be. The Industrial 

Court had labored to show that the 

applicant would have otherwise 

been heard on his claim but for the 

barrier created by section 45(3). 

Judge Lenaola thus observed that the 

law was oppressive and the Industrial 

Court’s hands were tied and therefore 

upheld the Constitution and declared 

section 45(3) invalid to the extent of 

its consistency. 

Samuel had also prayed for the 

court to declare the ruling by the 

industrial Court to have been in 

breach of the petitioner’s rights under 

the constitution. The judge held that 

the matter was moot because once he 

had declared that section 45(3) was 

unconstitutional, certain consequential 

orders had to have followed with 

regard to the proceedings before the 

industrial court. 

However, Justice Lenaola considered 

the issue whether the High Court 

could have directed the industrial 

Court given that a court established 

under Article 162 of the Constitution 

had the same status as the High 

Court. He found that only the High 

Court could have interpreted the 

constitutionality or otherwise of any 

statute or its provisions. He relied 

on Brookside Dairy Ltd v Attorney 

General, Petition no. 33 of 2011 

and agreed with Justice Majanja that 

the Industrial Court as a creature of 

statute was a court subordinate to the 

High Court and that parliament had 

no constitutional authority under the 

former Constitution to create a court of 

equivalent status with the High Court. 

Regarding compensation for the 

alleged violation of his constitutional 

rights, the Judge did not make any 

award for reasons that neither 

Transami, nor the Attorney General 

could have been found to have 

deliberately acted to create the 

impugned section 45(3) and therefore 

to penalize either of them would have 

been unfair. 

The Judge further found that he had 

jurisdiction to issue orders directed at 

the Industrial Court without breaching 

Article 165(6) of the Constitution 

because the industrial Court was not 

a superior court as defined by Article 

162 (1) of the Constitution. 

The court' therefore declared and 

issued an order stating that section 

45(3) of the Employment Act 2007 

was inconsistent with the provisions of 

the Constitution of Kenya particularly 

Articles 28,41 (1), 47, 48 and 50(1) 

as the said section purported to deny 

the petitioner the rights and freedoms 

enshrined in the said Articles of the 

Constitution. 

We will not usurp jurisdiction. We will interpret liberty the etent of 

our jurisdiction 

The Hon. Mr. Justice C.B. Madan 

Munene v R (No2) [1978] KLR 

page 535, paragraph 15 




The Hon. Mr. Justice David Amilcar 

Shikomera Majanja J. 

“Jurisdiction is everything. Without it, 

a Court has no power to make one 

more step.” 

T 

he High Court has held that it 

has no jurisdiction in matters 

arising from the ongoing 

vetting process of Judges and 

Magistrates. The decision was made 

in an application by Peter O. Ngoge, 

an advocate of the High Court of 

Kenya brought under Order 53 rules 

1, 2, 3 of the Civil Procedure Rules, 

Section 8 and 9 of the Law Reform 

Act and Articles 10, 20, 22, 23, 

27, 34, 35, 47, 50 and 159 of the 

Constitution. 

FACTS 

In summary, Mr. Ngoge was 

aggrieved by the decision of the 

Vetting of Judges and Magistrate’s 

Board (“the Board”) given on April 

25, 2012 titled “Determinations 

Concerning the Judges of the Court 

of Appeal” hereinafter referred to as 

“the decision.” In the decision, the 

Board made certain findings as to the 

suitability of the Judges of the Court 

of Appeal in terms of section 23 of 

the Sixth Schedule to the Constitution. 

Mr Ngoge complained that he had 

been condemned unheard contrary 

to the rules of natural justice as he 

was not notified of the hearings 


HIGH COURT’S JURISDICTION UNDER 

THE VETTING OF JUDGES AND 

MAGISTRATES ACT 

Peter O. Ngoge V the Vetting 

of Judges and Magistrates 

Board and Another 


D.S. Majanja J. 

May 7, 2012. 

By: Njeri Githang’a Kamau. 

which were conducted in camera 

and he was not given an opportunity 

to present or prove his complaints 

in violation of Article 10, 22, 34, 

35, 47 and 50 of the Constitution. 

He also contended that he was 

discriminated against contrary to 

Article 27 of the Constitution as he 

was not mentioned in the decision 

as one of the complainants, Mr S. K 

Macharia. 

Mr Ngoge’s complaint in respect of 

violation of his rights was that he filed 

various complaints against each judge 

of appeal being vetted hence he ought 

to have been heard in respect of each 

and every complaint and given an 

opportunity to review each judge’s 

response to his complaint. 

He further complained that he was 

the subject of an adverse comment 

at Part VIII titled “FINDINGS AND 

DECISION,” Paragraph 3, page 11 

of the Board’s decision where it was 

observed that; 

“(3) A series of complains in this 

regard were made by an Advocate 

– whom I shall not name for reasons 

of confidentiality…the Board noted 

that that particular Advocate had laid 

complaints against every judge of the 

Court of Appeal, all basically to the 

effect that they are unfairly hostile 

to him and discriminate against … 

clearly, there has been a complete 

breakdown of trust and professional 

respect between the Advocate 

concerned and the judiciary…the 

situation calls for intervention by 

the Law Society of Kenya (LSK) … 

the Board will contact the LSK in this 

respect. It is not in a position to make 

a finding against the judge in respect 

of these complaints.” 

Mr Ngoge argued that these remarks 

were in reference to him since he 

filed complaints against all the Judges 

of Appeal. By stating that it would 

refer the situation to the Law Society 

of Kenya (LSK) for an appropriate 

remedy, he asserted that the Board 

violated his rights. He urged the 

court to intervene and vindicate his 

fundamental rights and freedoms as 

this reference to him by the Board 

affected him negatively in the eyes 

of his clients and the public. He 

hence urged the Court to grant 

leave to commence judicial review 

proceedings and for such leave to 

operate as a stay of the proceedings 

of the Board as he had established 

an arguable case to proceed to the 

substantive stage. He stated that the 

Board had to be guided by the values 

of the Constitution and the court could 

not allow the Board to violate his 

fundamental rights. 

The application was opposed on 

103



the ground that the Court lacked 

jurisdiction to intervene in matters 

of Board under the Constitution. As 

regards whether the proceedings 

should be heard in public, counsel 

submitted that the section 19(5) of the 

VJMA was clear that the proceedings 

were private except at the instance 

of the judicial officer concerned. On 

the whole, it was submitted that there 

were no grounds shown to warrant 

the Court’s intervention. Counsel for 

the Attorney General, concurred with 

the brief submissions and added 

that the Court could not intervene in 

the Boards’ proceedings as this was 

barred by section 23 of the Sixth 

Schedule to the Constitution. 

The decision 

The court noted that it had a wide 

discretion to allow or reject the 

application for leave. The test 

was whether the applicant had an 

arguable case which could be heard 

when the substantive motion was filed. 

The matter concerned the vetting of 

judges and magistrates which was 

carried out pursuant to section 23 of 


Section 23 (1) provided for the 

establishment of the Vetting of Judges 

and Magistrates Act, 2011 (VMJA) 

and section 23(2) provided; ''(2) A 

removal, or a process leading to the 

removal of a judge from office by 

virtue of the operation of legislation 

contemplated under subsection (1) 

shall not be subject to question, in, or 

review by, any court.'' 

Pursuant to these provisions, the 

court noted that Parliament enacted 

the VMJA which came into force 

on March 22, 2011. Section 6 of 

the VJMA establishes the Board and 

section 13 provides for the functions of 

the Board as being, ‘to vet judges and 

magistrates in accordance with the 

provisions of the Constitution and this 

Act.’ The court opined that the Board 

as constituted therefore exercised a 

mandate and function vested in it by 

the Constitution and the VJMA. 

The court affirmed that the Board had 

already completed its work in respect 

of the vetting of Court of Appeal 

Judges subject to the right of review 

under the VJMA. In light of section 

23(2) of the Sixth Schedule to the 

Constitution, the Board’s decision was 

part of a process leading to removal of 

a judge and could not be the subject 

to question in, or review by, any court. 

In substance Mr Ngoge sought to 

review the decision of the Board in 

so far as it applied to complaints 

lodged by him. That, according to 

the court, would be a collateral attack 

on the Board’s decision and was not 

permitted by the Constitution. The 

court referred to the case of Dennis 

Mogambi Mong’are v Attorney 

General and Others Nairobi Petition 

No. 146 of 2011, where the court 

held that the Sixth Schedule was part 

of the Constitution and could not 

be challenged on the basis of any 

inconsistency with the Constitution. 

The court affirmed that the order of 

certiorari, if granted, would lead to 

quashing the decision of the Board. It 

was therefore in conflict with the direct 

provisions of the Constitution and in 

the circumstances, the proceedings 

in so far as they would lead to a reopening 

or reconsideration or review 

of the Board’s decision or process 

leading to the removal of a judge 

could not lie in law and were not 

permitted by the Constitution. 

Though the court concurred with Mr 

Ngoge that where there is a breach 

of natural justice, the Court must 

intervene to correct such a violation, 

it noted that the proceedings under the 

VJMA were sui generis, the Board was 

empowered to regulate its procedure 

and in so doing receive complaints. 

A challenge to the Board’s procedure 

agitated by the applicant would 

inevitably lead to questioning the 

decision of the Board and would 

inevitably breach the wall established 

by the Constitution to protect the 

decisions and process of the Board. 

As regards the comments made by 

the Board in reference to an unnamed 

advocate, the court pointed out that 

it took into account the values of 

the Constitution and the rights of 

the unnamed person in declining to 

name the person referred to. There 

was hence no infringement of the 

applicant’s rights in the case, it stated. 

If the applicant was aggrieved by the 

fact that he was the unnamed person 

condemned, he had to await action 

by the LSK on the issue referred to it. 

It was at that stage that Mr Ngoge, if 

he was the subject of the consideration 

by the LSK, would have all the rights 

to a fair hearing accorded to him, the 

court held. 

Finally on the issue of orders of 

prohibition and mandamus against the 

provisions of the VJMA that excluded 

the public from hearings of the Board, 

the court opined that the provisions 

for confidentiality were intended to 

protect the inherent dignity of judges 

and magistrates accorded to them by 

the Constitution. The court was not 

permitted, directly or indirectly, from 

proceeding with the inquiry. 

In conclusion the court found that 

to allow the application in the 

circumstances of the case would 

be to circumvent the constitutional 

prohibition inherent in section 23(2) of 


Hence, the court had no jurisdiction to 

embark on the inquiry suggested by 

the applicant. 




T 

he High Court (M. Warsame, 

C. Githua & W. Korir, JJ.) 

has ruled that applications 

for judicial review ought to 

be made promptly, and whoever 

wished to challenge the action of a 

public body is therefore expected 

to move to court promptly once the 

decision being challenged is made. 

Although undue and inordinate delay 

in applying for judicial review is a 

major factor for consideration by 

the court in deciding whether or not 

to grant judicial review remedies, 

the three-judge bench observed that 

even where an application disclosed 

meritorious grounds for the grant of 

judicial review orders, the application 

could be rejected if there is evidence 

that the person seeking the orders sat 

on his rights and failed to seek relief 

in good time and with due diligence. 

Facts 

The facts of the case were that the Kenya 

National Commission on Human 

Rights (hereinafter the Respondent) 

in its report entitled “On the Brink of 

Precipice: A Human Rights Account 

of Kenya’s Post Election Violence” 

(hereinafter the Report) named the 

Hon. William Ruto (hereinafter the 

Applicant) as an alleged planner, 

financier and perpetrator of the postelection 

violence. From the evidence 

adduced in court, it was clear that 

the applicant was called during the 

investigations to present his views 

on the post-election violence and he 


COURT DISMISSES CHALLENGE AGAINST 

THE P.E.V. REPORT BY HUMAN 

RIGHTS BODY 

Republic v Kenya National Commission 

on Human Rights ex parte 

Hon. William Ruto [2012] eKLR 

JR Misc. Application No. 647 of 2009 


M. Warsame, C. Githua & 

W. Korir, JJ. 

May 4, 2012 

By: Nelson K. Tunoi, Advocate 

actually presented his views to the 

Commission. The evidence further 

showed that the report was distributed 

far and wide and had received 

extensive media coverage. 

The applicant sought judicial review 

orders of certiorari against the 

respondent to quash the decision 

of the respondent made in its report 

that the applicant participated and 

was involved by way of planning, 

inciting, meeting and financing the 

post-election violence. It was the 

applicant’s case that the respondent 

had breached the rules of natural 

justice by naming him as a planner, 

financier and perpetrator of the postelection 

violence without giving him 

an opportunity to be heard, and 

further that the respondent violated his 

legitimate expectation that he would 

be heard before being condemned 

hence denied the right to be presumed 

innocent unless adjudged otherwise 

by a competent court and thereby 

injuring his image and reputation. 

The applicant further challenged 

the jurisdiction of the respondent 

in making such adverse findings 

against him without affording him an 

opportunity to be heard and that the 

respondent’s report was unreasonable 

as it applied double standards in its 

investigations by giving other people 

an opportunity to be heard while 

denying him such a right. 

Conversely, it was the respondent’s 

case that it did not make any decision 

known to the law but only made 

recommendations and there was 

therefore no decision to be quashed 

by way of judicial review. Further, the 

respondent contended that the report 

was made in conformity with the 

Commission’s mandate and statutory 

obligations, that it acted fairly and 

without discrimination against the 

applicant, and that the applicant’s 

application was statute barred. 

The respondent further submitted 

that public interest demanded that 

the Commission’s documents, the 

character and scope of the human 

rights violations that occurred 

during the post-election violence, 

the anonymity of the witnesses and 

non-disclosure of information was 

paramount in the circumstances. The 

respondent argued that the applicant 

would have an opportunity to confront 

the evidence gathered if he were to 

face criminal charges. 

Principal issues for determination 

The key issues for determination by the 

court were, among others, whether the 

report amounts to a decision which 

can be challenged by way of judicial 

review; whether the delay in filing the 

instant proceedings violated the six (6) 

months rule prescribed under section 

9 of the Law Reform Act and Order 

53 of the Civil Procedure Rules; and 

whether the respondent in preparing 

the report violated the applicant’s 

rights. 

105



With regards to jurisdiction of the 

court vis-à-vis section 33 of the Kenya 

National Commission on Human 

Rights Act [No. 9 of 2002 (now 

repealed)], the court observed that 

the respondent being a statutory body 

fell under the supervisory jurisdiction 

of the court, and as such, public 

bodies need the monitoring of the 

courts through supervisory jurisdiction 

exercise and granting appropriate 

judicial review remedies where 

appropriate, lest they injure citizens 

and abuse their rights in the guise of 

performing statutory obligations and/ 

or administrative functions. 

On the issue whether the respondent 

made any deliberate act with some 

specificity against the applicant, the 

court ruled that there was a clear and 

specific finding in the report by the 

respondent and there was no doubt 

that it was adverse to the applicant, 

it affected his rights and therefore the 

report amounted to a decision which 

was acquiescent to judicial review. 

The court in weighing the rules 

of natural justice vis-à-vis public 

interest observed that the prevailing 

"..so the trust if there be any, must 

either be implied by the law, or 

presumed by the court. There is one 

good, general and infallible rule 

that goes to both these kinds of trust; 

it is such a general rule as never 

deceives; a general rule to which 

there is no exception, and that is this; 

circumstances did not permit the 

respondent to comply strictly with 

the rules of natural justice. The court 

thus ruled that the respondent was 

not obligated to hear all the persons 

mentioned in the report since this 

would have endangered their source 

of information and would have been 

prejudicial to the recommended 

further investigation by the relevant 

Government Agencies. 

Regarding the issue whether the 

applicant’s application for judicial 

review orders was statute barred, 

counsel for the respondent submitted 

that the applicant’s application was 

barred by the operation of the law 

since the application was filed over 

fifteen (15) months after the report was 

unveiled in August, 2008. Conversely, 

counsel for the applicant argued that 

time should start running from 17th July, 

2009 being the date of the re-launch 

of the report and not August 2008. 

In the alternative, counsel submitted 

that the application was not statute 

barred since the report was not a 

judgment, order, decree, conviction or 

other proceedings and was therefore 

not subject to the six months rule. The 

HIGH COURT DECLINES TO IMPLY THE EXISTENCE 

OF A TRUST IN A SALE AGREEMENT 

Samuel Njuguna Kimemia v 

Rose Mgeni Mtwana (2012)eKLR. 

High Court of Kenya, at Mombasa 

R.M. Mwongo J. 

April 30, 2012. 

November 28, 2011. 

By: Emma Kinya Mwobobia, Advocate 

the law never implies, the court never 

presumes a trust but in the case of 

absolute necessity." 

T 

he High Court sitting in 

Mombasa has ruled that a mere 

allegation of a trust cannot 

create one and therefore, courts 

court noted that whatever had been 

said about the applicant in the report 

had not changed with the re-launch, 

and therefore it was not possible to 

quash the re-launched report and 

leave the original report unveiled in 

August, 2008 intact. The application 

by the applicant was therefore filed 

late in time and no reasonable 

explanation was offered for the 

inordinate delay. The court stated 

thus, “The applicant was supposed 

to file his application within six (6) 

months from the date the report was 

unveiled… the report was covered by 

the six (6) months rule in that though it 

is not a judgment, decree, conviction 

or order it is covered in the category 

of other proceedings.” Therefore the 

applicant failed to move to court with 

sufficient speed to protect his rights 

and the orders sought could not issue 

since they would be of no useful 

purpose to the applicant. 

Mr Katwa Kigen appeared for the 

applicant while the respondent 

was represented by Mr. Pheroze 

Nowrojee. 

will not imply a trust save in order 

to give effect to the intentions of the 

parties and such intention must be 

clearly determined beforehand. 

This dispute related to a suit property 

under the "house without land" 

system which was a land system or 




phenomenon mostly in the Coast. 

According to justice Mwongo, Judicial 

notice has long been taken of this 

strange system in the coast, and there 

has been substantial case law on it. 

However, scholarship and legislation 

has lagged behind on this issue. 

In summary, Samuel Kimemia had a 

relationship with Rose Mtwana who 

alleged that they were married under 

Kikuyu customary law and that there 

was a child born of the union, a 

statement Kimemia denied. However, 

there neither was evidence of dowry 

paid to prove the existence of the 

marriage nor were there documents 

produced at the trial evidencing the 

birth or existence of the child. The 

parties had a disagreement when 

Kimemia’s wife came to visit him at the 

coast and a dispute ensued between 

Kimemia, the wife and Rose and 

which was the genesis of this dispute. 

During the course of their relationship, 

Kimemia and Rose had entered into a 

sale agreement to purchase a house 

which they jointly owned according 

to the sale agreement. In her defence, 

Rose alleged that she had contributed 

to the purchase and renovation of 

the property. However, the evidence 

adduced in court indisputably showed 

that the entire purchase price had 

been raised by Kimemia. Although 

it was alleged that both parties 

participated in the renovations, it 

was clear from the evidence adduced 

before court that Kimemia bore the 

lion’s share of the financial burden of 

the renovations. 

The main issues before court therefore 

were whether Kimemia and Rose 

were Husband and wife at the time 

of purchase and whether Rose held 

half a share in the suit property in trust 

for Kimemia. 

After reviewing submissions from 

the rival parties, the court observed 

that although it was apparent that 

the parties were in a relationship, it 

was on record that they had never 

cohabited. Justice Mwongo therefore 

found that Rose, by any definition 

was not a wife to Kimemia although 

there seemed to have been a close 


relationship deep enough to draw 

out the jealousness of a spurned lover 

when Kimemia’s wife came to visit 

him. The judge held that if there was 

cohabitation at all, it had not been 

shown to have been continuous as 

there was little evidence of the things 

they had done jointly other than the 

purchase of the suit property. 

The allegation by Kimemia which was 

consequently denied in the defence 

was that during earlier discussions 

concerning the suit property , it had 

been agreed between the two that 

the suit property would have been 

conveyed into their joint names 

although Kimemia would solely have 

contributed to the purchase price. 

Kimemia had further indicated that 

Rose’s name would only have been 

included as a purchaser since she 

had misrepresented information and 

told him that he could not have been 

allowed to own property in that area 

because he was not a local person but 

from upcountry and further that she 

would hold the half share of the suit 

property on trust for the sole benefit 

of Kimemia. 

After perusal of the sale agreement, 

the judge found that the agreement 

identified Kimemia and Rose as joint 

purchasers of one part and further, 

that there was no indication in the 

agreement or in any other writing or 

communication between the parties 

to have suggested that Rose’s name 

was to have featured in the agreement 

on any condition or subject to any 

trust or other understanding. Justice 

Mwongo also observed that even 

subsequent actions of the parties had 

not evinced any intention on the part 

of Kimemia that Rose’s inclusion in the 

purchase was done on trust for him. It 

was not until the parties had fallen out 

and criminal proceedings had been 

instituted that the issue arose. 

According to the court, the burden of 

proof was on Kimemia to have proven 

the existence of a trust and therefore 

a mere allegation of its existence 

could not have created one. The 

court further observed that it was trite 

law that a trust, by definition, arose 

when a donor reposed confidence in 

a person who was termed a trustee, 

for the benefit of another who was 

called a cestui que trust, respecting 

property which was held by the 

trustee for the benefit of thecestui que 

trust. It further held that nothing in the 

purchase transaction had manifested 

any intention on the part of Kimemia 

that Rose should have held a share 

of the property for him or anyone 

else. While relying on the case of 

Mbothi & 8 Others v Waitimu and 11 

Others [1986]KLR 171, the court held 

that courts would not have implied 

a trust save in order to have given 

effect to the intentions of the parties 

and such intention must have been 

clearly determined beforehand. The 

judge therefore found that Rose was 

not holding any part of the property 

as a trustee for Kimemia and further 

that no shares had been distinguished 

in the agreement and none were 

distinguishable in interpretation. 

Having found that no trust had been 

proved, the judge concluded that 

the inclusion of Rose’s name as a 

purchaser was purely gratuitous 

on the part of Kimemia and having 

done so, he could not have reversed 

the proffered gift and obtained an 

injunction to have prevented Rose 

from enjoying the same. Similarly, 

having proffered the gift, Kimemia 

could not have obtained a court 

cancellation of Rose’s name from the 

landlord’s records in the absence of 

a contractual pre-condition, except 

with her consent. She was a proprietor 

of that which had been proffered to 

her. However, the judge dismissed the 

issue of misrepresentation by Rose to 

Kimemia that she had to have been 

included in the purchase as a local 

person because Kimemia was not 

from that area and added that there 

was no evidence which had been led 

by Kimemia to have proven this point. 

The court in deciding whether 

Kimemia was entitled to an account 

of rent collected from the suit property, 

ordered that Kimemia be given an 

account of all income that had been 

received and the true expenses that 

had been reasonably paid out from 

2009 to present by Rose. It further 

held that rent was a right to each 

joint owner of the suit property and 

Kimemia was entitled to a share 

107



thereof. 

In conclusion, the court ordered for 

the parties to agree on the extent of 

each party’s share in the rent earned 

T 

he High Court has stated that 

the Registrar of Titles has no 

power to revoke a land title, 

reiterating that the validity 

of a title document can only be 

pronounced by a court of law. The 

Judicial Review Division of the Court 

observed that it was immaterial that 

the title to land was acquired through 

illegal means as the due process of 

the well established mechanisms had 

to be followed as well enumerated 

in section 60 of the Registration of 

Titles Act (now repealed by the Land 

Registration Act, No. 3 of 2012). 

The holding arose from the 

administrative decision of the Registrar 

of Titles (1st respondent) to revoke 

the applicant’s title to the suit land 

based on the recommendations 

of the Commission of Inquiry into 

Illegal/Irregular Allocation of Public 

Land (commonly referred to as the 

Ndungu Commission/Report), the 

4th respondent in this case. Other 

respondents in this case were the 

Kenya Anti-Corruption Commission 

(2 nd respondent) and the Kenya 

Agricultural Research Institute (3 rd 

respondent). The applicant, Major 

(Rtd) Dedan Njuguna Gichuru sought 

judicial review orders of certiorari to 

quash the decision by the Registrar 

by the property and that failing 

agreement, the court would allow the 

parties to make submissions before 

it on the extent of their respective 

REVOCATION OF LAND TITLE BY REGISTRAR 

OF TITLES ILLEGAL 

Republic v Registrar of Titles – Nairobi 

Registry & 3 others [2012] eKLR 

Judicial Review Case 

No. Elc. 19 of 2011 


Weldon, K. Korir, J. 

April 24, 2012 


of Titles (1st Respondent) to revoke 

the applicant’s title to land through 

gazettement. The applicant further 

sought orders of certiorari to quash 

the recommendations of the Ndungu 

Commission and the further orders 

prohibiting the respondents from 

registering any documents adverse 

to the interests of the applicant or 

interfering with the applicant’s title 

and possession of the suit property. 

The genesis of the case arose earlier 

in 2004 when the 4th respondent 

released a report concluding that 

the applicant had been irregularly 

allocated the subject land and 

recommended that the same be 

revoked. On this basis the 1st 

respondent published a Gazette 

Notice declaring the said allocation 

illegal and irregular and revoked the 

applicant’s title to the subject land 

among others. However, the Gazette 

Notice only disclosed that the land in 

question had been reserved for the 3rd 

respondent and had failed to show 

under which law the 1st respondent 

had exercised the power to revoke 

the applicant’s title. Therefore, it 

was the applicant’s case that the 1st 

respondent had no power to revoke 

his title. Conversely, the respondents 

contended that the applicant’s title 

percentage interest in the suit property 

including detailed submissions on the 

rental income and expenses. 

was not valid title since it had been 

irregularly allocated to him and thus 

did not have good title which could be 

protected by way of judicial review. 

Therefore they contended that the 

action of the 1st respondent was 

justified in the name of public interest. 

The issues raised in the matter for 

determination by the court included 

whether the 1 st respondent acted 

ultra vires by revoking the applicant’s 

title; whether the issue of “public 

interest” could be raised outside the 

provisions of the law; and whether the 

applicant was entitled to the reliefs 

sought. Justice Weldon Korir first 

observed that public interest cannot 

be addressed outside the provisions of 

the law simply because however much 

a view is popular but not entrenched 

in the laws by Parliament, then the 

same cannot be elevated to the same 

status with the law. The judge then 

proceeded to hold that although 

the action of the 1 st respondent as 

argued was deemed to be in the 

public interest, the courts could not 

be allowed to be used as a cleansing 

mechanism by those who unlawfully or 

irregularly acquire public land. 

Regarding the issue whether the 1 st 




respondent acted within the confines 

of the law, the judge cited section 60 

of the Registration of Titles Act (now 

repealed) observed that the Registrar 

did not have absolute power to revoke 

the applicant’s title and had failed to 

apply the available legal mechanisms 

in revoking the applicant’s title. Even 

if he had powers, the judge assumed, 

the 1st respondent’s decision would 

still not have met the rules of natural 

justice threshold. The applicant was 

not accorded an opportunity to 

explain how he acquired the subject 

land hence the decision would still 

have been invalidated. The court ruled 

that only a court of law had the power 

The High Court has held that 

one cannot claim for alleged 

violation of right under the 

current Constitution in respect 

of violations that allegedly occurred 

prior to its promulgation. This was 

in a petition which arose out of 

a photograph taken at what the 

petitioners referred to as a “fun day” 

that was held in Nairobi where the 

petitioners, a mother and daughter, 

claimed that they were aggrieved 

by the publication of the photograph 

and asserted that it had violated their 

rights by revealing their HIV status 

without their consent. They further 

stated that their right to privacy, 

equality, before the law and nondiscrimination 

guaranteed by the 

Constitution of Kenya, 2010 had 


to pronounce the validity of a title. 

The issue of inordinate delay in filing 

the application was raised by the 

respondents and it was argued that the 

application was filed almost six years 

after the report by the 4th respondent 

was published hence contravening 

6 months rule under section 9 (3) of 

the Law Reform Act and Order 53 

Rule 2 of the Civil Procedure Rules. 

Although the applicant contended that 

the rule was only applicable to court 

proceedings, the court observed that 

“where an applicant comes to court 

too late in the day the court should 

not exercise its discretion in favour of 

such an applicant. It is imperative for 

HIGH COURT REJECTS PLEA FOR RETROSPECTIVE 

APPLICATION OF THE CONSTITUTION 

B.A ( Suing through the mother 

as next friend) v D.A.O 


Constitutional Petition No. 48 of 2011 

Mumbi Ngugi J. 

April 20, 2012 

By: Monica Achode, Advocate 

been violated by such publication. 

They therefore sought orders declaring 

that the respondent’s publication had 

violated the petitioner’s right to human 

dignity and the right to privacy and 

that the publication had threatened 

the petitioner’s right to equality before 

the law. 

The 2 nd and 3 rd respondents had 

organized a “fun day” for children 

from various children’s homes and 

the 2 nd petitioner had been asked to 

permit her daughter the 1st petitioner 

to attend the fun day which she 

did. However, the 2 nd petitioner 

averred that later on, the respondents 

published an article with a photograph 

of the 1st petitioner together with other 

children carrying foodstuff’s including 

any applicant to know the decision 

being challenged does not only affect 

the applicant but other parties too 

and those other parties may have 

acted on the decision.” Therefore the 

court cannot come to the aid of such 

indolent party. 

Regarding the other prayer sought 

by the applicant on prohibiting the 

respondents from interfering with 

the suit property in any way, the 

court declined to issue the order on 

grounds that the same would imply 

that the applicant acquired the land 

legally, which issue the court had not 

inquired about. 

the names of her daughter. 

The petitioner alleged that the 

publication had caused her anxiety, 

depression and psychological trauma 

and that she had lost friends as a 

result. Counsel for the petitioner 

submitted that since the 2 nd respondent 

was known locally and internationally 

as a home that took care of HIV 

positive children, the publication of the 

photograph had therefore identified 

and disclosed unlawfully the health 

status of the petitioners. He further 

argued that the constitutional rights 

which included the right to privacy and 

equal protection of the law which was 

also provided under the HIV and AIDS 

Act had been violated. In addition, 

the petitioners argued that the 3 rd 

109



respondents could have been sued in 

its own name since it was a charitable 

institution under the Children’s Act 

which provided care for children 

with HIV. The counsel also submitted 

that Article 2 of the Constitution had 

imposed an obligation on all person’s 

to observe its provision’s on protection 

of fundamental rights and these 

provisions were enforceable against 

both individuals and corporations. 

Additionally, he submitted that the 

term “persons” under the Constitution 

referred to both corporate and 

unincorporated entities and therefore 

even though the 3rd respondent was 

an unincorporated entity, it was a 

person with a duty to observe the 

human rights of others. 

However, the 1 st respondent, denied 

that the photograph had revealed the 

HIV status of the petitioners or any 

health status whatsoever and that at 

no time had it interviewed the 2 nd or 

3 rd respondent with regard to the HIV 

status of the petitioners. Counsel for 

the 1st respondent submitted that there 

was no evidence from the petitioners 

to show that the programme by the 

2 nd respondents catered only for HIV 

positive children and even if that 

was the case, the journalist who had 

covered the event had no idea of the 

medical status of the petitioners. It 

could therefore not have been said 

that the effect of the publication was 

to have disclosed a status not known 

about. With regard to the petitioner’s 

reliance on the provisions of the HIV 

Act, he submitted that no test had been 

disclosed and the sole aspect relied on 

was the association of the child with 

the Children’s home. 

Counsel for the 2 nd and 3 rd respondent 

added that the 3 rd respondent was 

an outreach programme of the 2nd 

respondent and therefore did not 

exist as a legal entity capable of 

being sued. 

The issues for determination in this 

case were whether the 3rd respondent 

was capable of being sued in its own 

name; whether the respondents were 

bound by the bill of rights; whether 

the petitioners could have claimed 

for the violation of constitutional rights 

under the new constitution in respect 

of violations that occurred prior to 

its promulgation and whether the 

respondents violated the petitioners’ 

rights and fundamental freedoms as 

alleged. 

Justice Mumbi Ngugi held that from 

the pleadings before the High Court, 

the 3rd respondent did not appear to 

be a ‘person’ even within the wide 

definition provided by Article 260 of 

the Constitution. She observed that 

the 3rd respondent was a part of the 

2nd respondent and the enforcement 

of any orders of the court in the matter 

would have clearly been against 

the 2nd respondent who was the 

incorporated entity. The judge further 

observed that even in allowing for a 

wide definition of the term ‘person’ 

in the Constitution, the joinder of 

the 3rd respondent was superfluous 

as the 3rd respondent who was an 

outreach programme did not exist 

independently of the 2nd respondent. 

The judge found that the Constitution 

had contemplated both vertical and 

horizontal application of the bill of 

rights and that it was not just the state 

which was under the obligation to 

observe and respect human rights. 

She stated that the Constitution 

required that all persons as well as 

the state to respect its provisions 

generally and the provisions of the bill 

of rights in particular. Justice Ngugi 

thus held that these provisions of the 

Constitution read together with the 

definition of ‘person’ in Article 260 

had made it clear that the provisions 

of the bill of rights had intended to 

have been binding on all persons 

whether neutral or legal, incorporated 

or unincorporated. 

On the issue of retrospective 

application of the Constitution, the 

judge held that the petitioners could 

not have claimed for the alleged 

violation of rights under the current 

Constitution in respect of violations 

that had allegedly occurred prior to 

its promulgation. The judge relied on 

the case of Joseph Ihuo Mwaura & 

82 others v Attorney General Petition 

No. 498 of 2009 where Majanja 

J. observed that “the Constitution 

promulgated in August 2010 was 

not retrospective hence its provisions 

would not have applied to matters 

that had occurred before the effective 

date of the Constitution and unless 

otherwise provided, the provisions 

of the Constitution 2010 could not 

have governed maters that were done 

under a different legal regime.” Judge 

Ngugi further stated that had the act 

complained of in this petition resulted 

in violation of a continuing nature, 

then it would have been possible 

to have considered the petition 

against the provisions of the current 

Constitution which was not the case 

and therefore the petitioner’s claim in 

respect of the rights protected under 

Article 28 and 31 of the Constitution 

had to fail. 

With regard to non-discrimination and 

equality before the law, judge Ngugi 

observed that there was nothing in 

the photographs or the captions that 

would have even remotely suggested 

the health status of the children. 

Indeed, there was nothing in the 

photograph that indicated what the 

2 nd and 3 rd respondent were about 

and the submission by counsel for 

the petitioner that the 2 nd and 3rd 

respondents were known nationally 

and internationally as institutions 

that care for children with HIV was 

not borne out by the pleadings, 

submissions or evidence before the 

court. 

The Court therefore found no merit in 

the petition and dismissed it with no 

order as to costs. 




The High Court has stated that it 

was legal for a foreign company 

to sign a lease agreement even 

though at the time the company 

had not filed its registration documents 

with the Registrar of Companies. The 

issue of non-compliance with the Act 

was one to which the company’s 

officers and agents were liable to 

a fine, which was a matter for the 

Registrar of Companies to pursue 

though the criminal justice system, 

and it was a separate matter from 

the legal capacity of the company to 

sign the lease agreement or to file a 

claim in court. 

The Court was giving a ruling in a 

case in which a company registered in 

Mauritius was running its business in 

Kenya through a local subsidiary, and 

before it had obtained a certificate 

of compliance from the Registrar of 

Companies, it entered into a lease 

agreement in its own name under a 

contract executed with the facilitation 

of the local company. 

Under sections 365 and 366 of the 

Companies Act (Cap. 486), a foreign 

company is not to be deemed to 

have a place of business in Kenya 


POWER OF A NON-REGISTERED FOREIGN 

COMPANY TO ENTER INTO A CONTRACT 

PNTC Worldwide PVT Ltd v Sun Palm 

Management Ltd & another 

[2012] eKLR 

High Court at Mombasa 

Justice J.W. Mwera 

March 23, 2012 


merely because it is doing business 

through an agent in Kenya at the 

place of business of the agent. The 

Act requires that foreign companies 

that establish a place of business in 

Kenya should deliver to the Registrar 

of Companies certain documents 

relating to the establishment of the 

company within thirty days. These 

documents include the company’s 

charter or memorandum, its directors 

and secretary, the name and 

address of a Kenyan contact and 

the company’s principal office. Once 

these documents have been presented 

to the satisfaction of the Registrar, the 

company is issued with a certificate 

of compliance. Where a foreign 

company fails to comply with these 

provisions, the law provides for the 

payment of a fine by every officer or 

agent of the company who willfully or 

knowingly allows that default. 

In a dispute relating to the lease 

agreement, it was argued that because 

the company had not complied with 

section 366 of the Companies Act, 

it had no legal personality and 

therefore it had no capacity to enter 

into any legally enforceable contracts 

in Kenya, much less to sue in court 

to enforce such a contract. The High 

Court found no merit in this argument, 

stating that what the parties did 

between them remained valid or 

invalid according to the legal regime 

they were operating under, and this 

was aside from the issue of noncompliance 

with the Act which was a 

matter for the Registrar of Companies 

of take action against. 

As Judge J. Mwera observed, there was 

no doubt that by the time the company 

filed its certificate of compliance it had 

not established a place of business 

in Kenya. It was a foreign company 

but it ran its operations/business 

through Stephanies Beach Ltd, a 

local company. This fell within the 

provisions of section 365 (2) of the 

Companies Act. What the company 

did or executed at the offices of its 

local agent was lawful and valid. 

Apart from the lease agreement, the 

court had not been shown any other 

activity by the company that ought to 

have been invalidated on the ground 

that it was foreign company that had 

not complied with section 366 of the 

Companies Act. 

111



“…although past judicial thinking 

alluded to the conventional wisdom 

that many heads are better than one, 

or to the fact that the subject matter 

was such as could not escape arousing 

public interest, recent court decisions 

have taken a different approach in 

interpreting the requirements of Article 

165 (4) of the Constitution with regard 

to what a ‘substantial question of law’ 

that merits reference to a three-judgebench 

means.” 

T 

he High Court has ruled 

that not all issues that raise 

substantial question of law with 

regard to constitutional rights 

automatically merit hearing by an 

uneven number of judges. 

In dismissing the application, Lady 

Justice Mumbi Ngugi held that the 

issues arising in the instant application 

could be adequately dealt with by 

a single judge and observed that in 

the event that any party to the matter 

was not satisfied with the decision of 

the single judge, the appeal process 

was open in which a bench of three 

appellate judges would consider 

the matter and further appeal to the 

Supreme Court if needed be. 

The petitioner, Gilbert Mwangi 

Njuguna, had filed a petition alleging 

violation of his fundamental rights 

under sections 71, 73, 74, 75, 77, 

REFERENCE FOR CONSTITUTION OF A 

THREE-JUDGE BENCH DISCRETIONARY, 

COURT RULES 

Gilbert Mwangi Njuguna v Attorney 

General [2012] eKLR 



Mumbi Ngugi, J. 

March 16, 2012 


82 and 84 of the former Constitution 

that arose with regard to his removal 

from his position as a magistrate. 

Amongst the orders that the petitioner 

sought included an order that the file 

be referred to the Chief Justice for 

purposes of constituting a three-judgebench 

to hear the petition. 

Ms. Mwangi representing the 

petitioner made reference to an article 

by former Chief Justice F. K. Apaloo 

carried in the Nairobi Law Monthly 

(January, 1995) on the circumstances 

in which the Chief Justice should 

appoint a three-judge-bench to hear 

a matter under section 84 of the 

former Constitution as being where 

complex issues of determinations 

of constitutional issues are raised. 

She further relied on the case of 

Samuel Kamau Macharia & another 

v. Attorney General & another [2000] 

eKLR in which the former Chief Justice 

Bernard Chunga while appointing a 

three-judge-bench set out the matters 

to be considered in appointing a 

three-judge-bench, among them that 

the motion seeking the referral should 

not be frivolous and must raise matters 

of considerable complexity and 

gravity in relation to the interpretation 


Ms. Mwangi submitted that the issues 

raised by the petitioner needed to 

be considered by more than one 

judge as they included a challenge 

of the manner in which the former 

Judicial Service Commission (JSC) 

had terminated the petitioner’s 

employment. Further, the petitioner 

argued that the matter touched on 

a critical issue of the nature and 

scope of judicial independence both 

under the former and the current 

Constitutions. 

The petitioner contended that the 

petition therefore raised serious 

constitutional issues which were not 

just complex but of public interest too, 

and which warranted the reference 

of the file to the Chief Justice for 

the constitution of a three-judgebench 

to hear the petition. Counsel 

submitted that the considerations for 

appointment of a three-judge-bench 

were now set out under Article 165 

(4) of the Constitution which provided 

that; 

“Any matter certified by the court as 

raising a substantial question of law 

under clause (3) (b) or (d) of shall be 

heard by an uneven number of judges, 

being not less than three, assigned by 

the Chief Justice.” 

There was no representation for 

the State at the hearing and no 

submissions were filed on its behalf. 

In dismissing the application, Lady 

Justice Mumbi Ngugi observed that 

although past judicial thinking alluded 




to the conventional wisdom that many 

heads are better than one - as opined 

by the then Chief Justice Apaloo - or 

to the fact that the subject matter was 

such as could not escape arousing 






that merits reference to such a bench 

means. The court made reference to 

the case of Community Advocacy 

Awareness Trust & others v Attorney 

General & others [2012] eKLR where 

the High Court (Majanja, J.) observed: 

“The Constitution of Kenya does 

not define, ‘substantial question of 

law.’ It is left to the individual judge 

A 

widow has a right, just 

like that of her in-laws, to 

bury the remains of her 

husband, the High Court 

has ruled. Justice Mshila held that a 

widow's right to bury the remains of 

her husband were provided for and 

protected by Article 27 (3) and (4) 

of the Constitution, in that a widow 

should not be discriminated upon by 

cultural practices. 

Article 27(3) and (4) of the 

Constitution gives both women and 

men the right to equal opportunities 

in cultural and social spheres and 

also provides that there should be no 

discrimination directly or indirectly 


to satisfy himself or herself that the 

matter is substantial to the extent that 

it warrants reference to the Chief 

Justice to appoint an uneven number 

of judges not being less than three to 

determine a matter.” 

The Court in the Community Advocacy 

Awareness Trust case further observed 

that in view of the fact that the new 

Constitution had an expanded Bill of 

Rights, 

“every question concerning the 

interpretation of the Constitution 

would be a substantial question of 

law as it is a matter of public interest, 

affects the rights of the parties, is fairly 

novel and has not been the subject of 

pronouncement by the highest court.” 

WIDOWS HAVE A RIGHT TO BURY THEIR 

HUSBANDS IN THEIR ESTABLISHED 

HOMES "BOMA" 

Lucy Kemboi v Cleti Kurgat & 

5 Others (2012) 

eKLR www.Kenyalaw.org 

A Mshila. J 

High Court, Eldoret 

March 13,2012. 

By: Andrew Halonyere, Advocate 

against any person on any ground. 

Lucy Kemboi brought a suit against 

her in-laws ,the defendants herein, 

seeking inter-alia authority to arrange 

for the collection, burial and interment 

of the body of her husband the late 

Ambrose Kipkoech Kurgat at their 

matrimonial home at Kamariny, Keiyo 

Marakwet County, on such reasonable 

time as she may determine, with 

liberty to the defendants to participate 

at their discretion. 

According to Lucy, the deceased 

was her husband and after he had 

passed on her In-laws held meetings 

and made funeral arrangements 

without involving her nor her children. 

The court noted that the circumstances 

would defeat the objective of the 

expeditious justice as outlined under 

Article 159 (2) (b) of the Constitution, 

providing that justice shall not be 

delayed, and therefore the court 

should consider each case on its merits 

and determine whether a particular 

matter ought to be referred to the 

Chief Justice for constitution of a three 

judge bench to hear it. 

In finding that the issues raised by 

the petitioner could be adequately 

dealt with by a single judge, the High 

Court declined to refer the matter to 

the Chief Justice for constitution of a 

bench of an uneven number of judges. 

The meetings were held at her late 

husband's step- mother's house and 

she was not afforded any hearing 

and was only given information as 

to what had been decided. Lucy 

submitted that she only got to know 

that her in-laws intended to bury the 

deceased next to the grave of his 

late father through a defence filed by 

her in-laws after she had filed a suit 

in the Chief Magistrates Court. She 

also submitted that her late husband 

had a homestead and that she had 

constructed a house thereat together 

with her late husband. She stated that 

the homestead and house were located 

on a parcel of land, which piece of 

land was demarcated and given to 

113



her late husband by the deceased's 

late father and that it was upon that 

portion of land that she wanted to 

inter her late husband's remains. Lucy 

further submitted that whereas her inlaws 

wanted to inter the remains at a 

grave site set apart by her late father 

in-law as a family graveyard, the said 

site was approximately two hundred 

(200) metres from her homestead 

and therefore she should have been 

allowed to bury her late husband at 

the right place where she had built a 

house and established a homestead. 

In support of her case, Lucy called a 

Keiyo elder to testify on her behalf 

on Keiyo customs. It was the elder's 

evidence that according to Keiyo 

customs, meetings for such funeral 

arrangements had to be held at the 

house of the deceased in consultation 

with the deceased's widow and 

children and that it was the practice 

that a married man had to be buried 

in his "Boma" and that it was the 

clan elders who decided where a 

deceased person was supposed to 

be buried. 

The defendants (in-laws) on their part 

submitted that their late father had 

set apart, aportion of the land as a 

graveyard, arguing that the burial 

site was outside the "Boma" of their 

late father and that their late father's 

remains, their mother's, their sister's 

and grandmother had been interred 

on that piece of land. The defendants 

also submitted that the alleged house 

built by Lucy and their late brother, 

was built for purposes of hosting 

their daughter's wedding, otherwise 

the deceased had a rented room in a 

place called Chembulet and carried 

on a business of a bar. 

The defendants further submitted that 

Lucy lived in a rented house in Iten 

and that she never slept in their home 

built in Kamariny. They stated that Lucy 

would attend the funeral meetings and 

would retire to her house in Iten after 

the meetings. It was their contention 

that the deceased had not been shown 

any portion of land by their late father 

but he had gone ahead and built the 

house on the portion. The defendants 

further submitted that their father's 

estate had not been distributed and 

that the site of the deceased's house 

might not have been the deceased's 

allotment upon distribution. They also 

testified that one of their late brother 

was buried on a piece of land that 

he had been given by their late 

father and that he had established 

his home on that piece of land, 

hence his being interred there. The 

defendants therefore asked the court 

that they should be allowed to inter 

the deceased at the family graveyard. 

The High Court after hearing rivalry 

submissions considered inter-alia, who 

should actually bury the deceased and 

where had the deceased established 

a home. 

It was the Court's view that though 

Keiyo customary law was applicable 

and that under the said customary law 

the clan together with the deceased 

brothers were responsible for the 

burial of the deceased, Lucy having 

been married to the deceased had a 

right derived from written law to bury 

the deceased. 

The Court further was of the view that 

the rights of Lucy were provided for 

and protected by the Constitution, in 

that Lucy should not be discriminated 

upon by cultural practices, that she 

had an equal right as her in-laws 

and the clan to bury her husband's 

remains. 

In answering the question as to where 

the deceased had established a home, 

the Court drew reference from the 

case of Apeli v Buluku C.A No. 12 

of 1979 where it was held that "…a 

person wishing to be buried outside 

his father's homestead takes steps to 

have an acceptable and established 

home elsewhere…". In view of that, 

the court observed that by conduct 

and by reference from the facts, 

neither the deceased nor Lucy had 

established a permanent home at 

Kamariny and that the fact that a 

temporary house had been built on 

the said portion of land did not confer 

ownership of the property upon the 

deceased. From the foregoing, Justice 

Mshila held that the deceased did not 

have a title to the portion of land at her 

alleged homestead as the estate was 

yet to be distributed nor had a Grant 

of Letters of Administration been taken 

out over their late father's estate. Thus 

by giving Lucy the body to inter at the 

alleged homestead would interfere 

with the other family members' rights 

to the property. 

Ultimately, the Court ordered that the 

deceased's body be handed over to 

Lucy and her in-laws jointly or to any 

one of them for burial at the site set 

apart by the late father in-law and 

father respectively for burial. 



A COMPILATION OF SUMMARIES OF SELECTED CASES ON EMERGING JURISPRUDENCE 


(January 2012 – June 2012) 

An unqualified advocate cannot recover costs 

Equity Bank Ltd v Capital Construction Limited & 3 others [2012] e KLR 

Civil Suit No. 645 of 2009 

High Court at Nairobi (Milimani Commercial Courts) 

Justice D. Musinga 

June 29, 2012 

Advocate – advocates’ costs – cost with respect to acts done by an unqualified advocate – whether such costs are 

recoverable in law 

Held: 

1. Under Section 32 (1) of the Advocates Act, an advocate is required not to engage in practice on his 

own unless he has practiced in Kenya continuously on a full-time basis for a period of not less than two 

years after obtaining the first practicing certificate in full-time employment either in the office of the Attorney 

General or an organization approved by the Council of Legal Education or by an advocate who has been 

in continuous full time practice on his own in Kenya for a period of not less than five years. 

2. No costs in respect to anything done by an unqualified person can be recoverable in any suit by any person. 

The law is silent as regards costs payable to a third party on account of work done by a duly qualified 

advocate who chooses to open up a law firm contrary to Section 32 of the Advocates Act. 

3. Article 159 (2) (d) of the Constitution of Kenya, 2010 requires the court to administer justice without 

undue regard to procedural technicalities. While the submission that a party who seeks to apply for review 

of an order must extract the order sought to be reviewed and annexe it to the affidavit in support of the 

application may be right in law, in the new constitutional dispensation, it cannot be a ground for dismissing 

an application for review that is otherwise merited. 

Constitutionality of a statutory provision prescribing academic qualifications for nominees for elective 

offices 

Hon. Johnson Muthama, M.P v Minister for Justice and Constitutional Affairs & another 

Petition No 198 of 2011 Consolidated With Petition No. 166 of 2011 And 172 of 2011 

High Court at Nairobi (Milimani Law Courts) 

Justice M. Ngugi 

June 29 2012 

Constitutional Law – supremacy of the Constitution – constitutionality of the Elections Act – Act providing for certain 

academic qualifications for persons seeking nomination for President, Deputy President, County Governor and Deputy 

County Governor – Elections Act section 24(2)(c) – Constitution of Kenya 2010 Article 22, 25, 27 

Held: 

1. In enacting the new Constitution and with special reference to Articles 1, 10, 27 & 38 among others, the 

people of Kenya sought to create a future with equal opportunity and equal voice regardless of social status. 

The legislation in deciding the educational requirements should consider the specific social context in which 

it will be applicable. Article 24 (1) (b) allows for the limitation of certain rights through legislation so long 

as certain criteria are met. 

2. By providing that a person may not be nominated as a candidate for an election unless the person ‘holds a 

post-secondary school qualification recognized in Kenya’, section 22 of the Elections Act was discriminatory 

and offended Article 27 of the Constitution which provides for the right to equality and freedom from 

discrimination. 

3. The Act, by excluding everyone who does not have a ‘post secondary qualification,’ a term which is not 

defined in the Act, from running for any elective office established under the Constitution, discriminates 

directly on the basis of status and social origin. 

4. Considering also the statistics on girl-child and women education in Kenya and the cultural gender biases 

on that subject, the provision also indirectly discriminated on the basis of gender. 

5. The provision also violated the Constitution in Article 38 and international law by limiting the right of the 

citizen to be a candidate for public office and the right to participate in public affairs as recognized under 

Article 25 of the International Covenant on Civil and Political Affairs. 

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6. The provision in the Elections Act section 22(2) that persons may be nominated for candidate for election as 

President, Deputy President, County Governor or Deputy County Governor only if the person is a holder of 

a degree from a university recognized in Kenya was not in violation of the petitioner’s rights or inconsistent 


7. Section 24(2) (c) of the Elections Act which made certain limitations with regard to exercise of political rights 

by those who acquire citizenship was reasonable and in accord with the Constitution. Limiting eligibility for 

election as Members of Parliament to those who have been citizens for at least ten years can properly be 

said to bear a rational connection to a legitimate purpose. 

8. The disqualification from contesting in elections of persons who have participated in a public fundraising 

or harambee during or within eight months preceding a general election did not violate the Constitution. 

This prohibition has been in statute and its intentions are in line with the attempt to bring in ethics in the 

conduct of elections. 

9. The provision in section 78 of the Elections Act for the payment of a deposit of money by a party coming 

before the court did not violate the right of access to justice under the Constitution. 

Constitutionality of Presidential appointment of County Commissioners 

Centre for Rights Education & Awareness (Crew) & others v The Attorney General consolidated with Patrick Njuguna 

& another v the Attorney General & another High Court at Nairobi (Milimani Law Courts) 

Justice Mumbi Ngugi 

June 29, 2012. 

Constitutional Law – constitutional office holders – appointment of constitutional office holders – procedure for 

making such appointments under the Constitution – the Office of the President having appointed county commissioners- 

Constitutionality of the Presidential appointment of County Commissioners- progressive realization- whether the 

appointments were in violation of rights within the constitution –Constitution of Kenya 2010, Article 2, 3, 10 ,20 

,129, 131, 132 (2) 

Held: 

1. In applying Article 129, 131, 132 (2), 2, 3, 10 ,20 , the 47 County Commissioners appointed by the 

President in which only 10 out of 47 were women did not meet the constitutional requirements at Article 27 

(8) and violated the non-discrimination provisions of Article 27. 

2. In referring to the principle of progressive realization the interpretation in the case of Milka Adhiambo Otieno 

& Another -v- The Attorney General & Others Kisumu High Court Petition No. 44 of 2011 was upheld. It 

went further with the view that the phrase ‘progressive realisation’ is applied to those circumstances where 

an allocation of limited resources is required. 

3. The appointments failed the test of constitutionality by disregarding the national values and principles set 

out at Article 10(b) and the principle contained in Article 27(8) of the Constitution. 

4. With regard to public appointments, it is critical to have public participation and consultation. The publication 

of the Gazette Notices presented a fait accompli to the country and thus did not respect the values and 

principles of the Constitution. 

5. Section 23 and 24 of the former Constitution, were not saved by the Transitional Provisions contained in 

Schedule 6 of the Constitution. Consequently, the President could not make any appointments under the 

former constitution. 

Can a suit be commenced or continued in the name of a company that is under liquidation without 

leave of the court? And what is the position of a counterclaim in such a suit? 

Trade Bank Ltd (in liquidation & another v Elysium Ltd & 2 others [2012] eKLR 

High Court at Nairobi (Milimani Commercial & Admiralty Division) 

Justice EKO Ogola 

June 18 2012 

Company law – liquidation – commencement of a suit in the name of a company that is under liquidation - leave to 

be sought in the cause in which the liquidator was appointed-where there is a counterclaim-whether the counterclaim 

is to be regarded as a suit 

Held: 

1. A liquidator who had not secured the leave of the court in commencing or continuing proceedings in the 

name of the company under liquidation lacked the capacity to bring the suit. The suit was bad in law and 



the acts of the liquidator were in vain, null and void – Companies Act sections 228, 241 

2. The counterclaim was a suit on its own. Sections 228 and 241 of the Companies Act would apply to the 

counterclaim. The defendant had to seek the leave of the court to sue or continue any proceedings involving 

a company under liquidation. 

3. The leave which the party bringing the suit ought to seek is to be sought in the cause of the company 

proceedings which appointed the liquidator. 

Does the Registrar of Titles have the power to revoke titles issued under the Registration of Titles Act by 

way of a Kenya Gazette notice 

Power Technics Ltd v Attorney General & 2 others [2012]eKLR 

High Court at Nairobi - Constitutional & Human Rights Division 

DS Majanja J. 

June 15, 2012 

Land law – title to land – cancellation of title – whether the Registrar of Titles has the power to revoke titles issued 

under the Registration of Titles Act by way of a Kenya Gazette notice and whether such action constitutes a breach 

of fundamental rights and freedoms. 

Held: 

1. The Registration of Titles Act section 60 showed that the powers of the Registrar are limited to correcting errors 

and misdescription of land or boundaries or where entries or endorsements to any grant or certificate of title 

are made in error or are fraudulent. This is a limited jurisdiction that does not include cancellation of titles. 

2. Even where property is acquired unlawfully, the finding of “unlawful acquisition” contemplated in Article 

40(6) of the Constitution must be through a legally established process and not by whim or revocation by 

Gazette Notice. 

3. "Obiter, Per DS Majanja J" The action of the Registrar to continue to revoke titles by Gazette Notices even 

after the High Court had declared that it was illegal to do was clearly contemptuous of the decisions of the 

court. The court, particularly the High Court, is given responsibility by the Constitution under Article 165 

to interpret the Constitution and declare what the law is and in addition to enforce fundamental rights and 

freedoms. It is expected that in this dispensation that values the rule of law, public officers and their legal 

advisers, that is the Office of the Attorney General, will ensure that all State and public officers not only 

acquaint themselves with the directions and decisions of this court but also follow then to the letter. I must 

warn State officers and public officers that this is the kind of conduct that may invite the court to invoke 

the provisions Chapter 6 [on leadership and integrity in the public service] of the Constitution and making 

appropriate declarations." 

Award of damages for unlawful arrest and detention 

Otieno Mak’onyango v Attorney General and Another 

Civil Case No 845of 2003 

High Court of Kenya at Milimani Law Courts 

K. H. Rawal 

June 15, 2012 

Constitutional Law – fundamental rights and freedoms – violation of constitutional right - unlawful arrest and detention 

– allegation by the petitioner that his constitutional rights were violated and contravened – claim for damages for 

unlawful arrest and detention-whether the petitioner had proved that his rights had been violated 

Held: 

1. A sum of Kshs. 20,000,000/- (Kshs. Twenty Million) awarded as fair and reasonable award to the plaintiff 

for violation of his fundamental rights. 

Accused persons entitlement to evidence 

Morris Kinyalili Liema V Republic 

Criminal Appeal No. 58 Of 2010 

High Court of Kenya at Machakos 

J.M. Ngugi & Asike-Makhandia 

June 15, 2012 


117


Constitutional law – right to a fair hearing – evidence – exonerating evidence – right of an accused person to all 

evidence including evidence that would tend to exculpate the accused person – where the prosecution in the lower 

court had withheld evidence that would have exonerated the accused – whether the appeal could be allowed 

Held: 

1. Every accused person is entitled to all evidence including evidence that would tend to exculpate the accused 

person. That is not a discretionary rule that the prosecution might choose to obey or not; it is a peremptory 

rule straight from the Constitution and the Police and Prosecutors should take heed. 

Can a would be beneficiary from the estate of a deceased intestate sue for benefit from the deceased’s 

estate without proper legal status? 

Christine Achieng Ogesa & another v British American Asset 

Managers limited 

High Court, at Nairobi (Milimani). 

Succession Cause No.2511 of 2011 

G.B.M. Kariuki, SC J. 

June 14, 2012. 

Succession – Succession – intestate succession – whether a would be beneficiary from the estate of a deceased 

intestate can sue for a benefit from the deceased’s estate without proper legal status. 

Held: 

1. Without a grant of representation or a special limited grant ad colligenda bona, the Applicants had no legal 

capacity to sue the Respondent as yet for payment to them of the money the deceased’s estate was entitled to. 

Does the High Court have jurisdiction to transfer a suit not filed in a court of competent jurisdiction? 

Joseph Mururi v Godfrey Gikundi Anjuri 

Misc. Application No. 39 of 2012 

High Court at Meru 

J.A.Makau, J. 

June 14, 2012 

Transfer of suits – supervisory jurisdiction of the High Court – application for transfer of suit from subordinate court 

to the High Court – subject matter of the suit being use, occupation of and title to land – where the suit had been 

filed in a subordinate court – the Chief Justice having given Practice Directions that High Court had jurisdiction in 

land matters pending the establishment of the Environment and Land Court – whether the High Court has jurisdiction 

to transfer a suit not filed in a court of competent jurisdiction. 

Held: 

1. The suit filed at the subordinate court related to the use, occupation of and title to land which ought to have 

been filed at the High Court to facilitate case movement of the proceedings to the Environment and Land 

Court once established as per the Practice Note issued by the Chief Justice. 

Can extreme provocation justify an assault? Can the State appeal a finding of fact by a lower court? 

Republic v Simon Muli Ngumu 

Criminal Appeal no. 208’b’of 2008 

High Court, at Machakos 

Dulu J. 

June 13, 2012 

Criminal Law – provocation – whether extreme provocation can justify an assault 

Criminal Practice and Procedure – appeal – whether the State can appeal a finding of fact by a lower court 

Held: 

1. Provocation can vitiate and mitigate a criminal offence. 

2. The finding that there was provocation was a finding of fact, not subject to appeal by the State. 



What is the standard of proof required when relying on affidavit evidence in an application for committal 

to civil jail for contempt of court? 

Godfrey Kamau Kimani v Thomas Wambura. 

High Court Mombasa 

Mwongo J. 

June 13, 2012 

Civil practice and procedure – contempt of court – application for committal to civil jail - level of proof of contempt 

of court – duty of applicant relying on affidavit evidence to ascertain and confirm the particulars of contempt – 

whether proof of contempt was above balance of probabilities – Supreme Court Rules, order 52 rules 2, 3 - High 

Court Practice and Procedure Rules, rules 2,3 – Judicature Act section 5 – Civil Procedure Act 3A. 

Held: 

1. Ambiguity in affidavit evidence that does not amplify, clarify or ascertain and confirm the particulars of 

contempt so that the court has to go through a lengthy, or circumlocutous reasoning process to satisfy itself 

as to the alleged breach, amounts to negation of the standard of proof required for committal. 

Can age of a person in a criminal trial be a subject of estimation? 

Simeon Wanjala v Republic 

Criminal Appeal No. 59 of 2011 

High Court, at Machakos 

June 12, 2012. 

Criminal Law – age-determination of age of a complainant – whether the age of a person can be a subject of 

estimation 

Held: 

1. Where the age is an essential ingredient of the offence, the prosecution has a burden to prove the age of 

the complainant to the standard required in criminal law that is beyond reasonable doubt. There is need 

therefore to have either documentary evidence on the age from the family witnesses, or the doctor has to 

testify regarding what tests he did, and the basis of arriving at the age that he assessed. A mere statement 

that “molar not erupted”, to imply that one is below the age of 18 is not adequate. Courts will not determine 

technical issues like age on conjecture and suspicion. 

2. The prosecution, by failing to establish from the doctor the scientific basis of the age assessment of the 

complainant, failed to prove an essential element of the offence. 

Sentencing-where a sentence inconsistent with a probation officer’s recommendation is given 

David Kimani Wanjiku v Republic [2012]eKLR 


Justice FA Ochieng. 

June 11, 2012 

Criminal Practice and Procedure – sentencing – probation officer’s report – sentence inconsistent with the probation 

officer’s recommendation – duty of a sentencing court to explain its decision in giving a sentence inconsistent with 

the recommendation of a probation officer 

Held: 

1. Whereas the report of a probation officer is not binding on the court, it is necessary for the court that 

decides to hand down a sentence that was inconsistent with the recommendation of the probation officer, 

to explain the decision made. 

Jurisdiction of the Land Disputes Appeals Committee in relation to issues of succession 

R v Nyeri Provincial Appeals Committee & Others 

High Court at Nakuru 

JR Appl. No. 111 of 2011 

Anyara Emukule J. 

June 8, 2012 


119


Judicial Review – certiorari – application for an order of certiorari to issue and remove to the court the proceedings 

and award of the provincial Appeals Committee for purposes of being quashed – claim by the applicant that the 

respondent had no jurisdiction of the matter since it dealt with ownership of the property – whether the application 

could have been allowed in the circumstances. 

Jurisdiction – jurisdiction – jurisdiction of a tribunal to hear a matter on ownership of land – claim that the land 

Disputes Tribunal and the Appeals Committee had no jurisdiction over the matter – here tribunal should have directed 

parties to the High Court as prescribed under section 159 of the Registered Land Act – whether the Land Disputes 

Tribunal and the Appeals Committee had jurisdiction to determine issues concerning ownership of land. 

Held: 

1. The Land Dispute Appeal Committee had no jurisdiction to deal with a succession matter. If the interested 

party had a claim to the land, he should have sued the first applicant through the normal civil court process. 

Adverse Possession-What amounts to interruption of possession and occupation? 

Kipketer Togom v Isaac Cipriano Shingore 

High Court at Eldoret 

Mshila J 

June 8, 2012 

Land Law – adverse possession – application for a declaration of adverse possession – what amounts to interruption 

of possession and occupation in a claim for adverse possession – whether claim had been proved – Limitations of 

Actions Act (Cap 22) section 38 – Civil Procedure Rules, order 37, rules 3D,7. 

Held: 

1. The respondent must assert his right to title by physically entering onto the property and evicting and ejecting 

the trespasser from the suit property. Alternatively the respondent should have proceeded to institute legal 

proceedings in a court of law against the trespasser asserting his rights against the trespasser with prayers 

for his eviction and ejection from the property. Then only is there interruption to occupation and possession 

and then only does time stop running. 

Does an imperfect gift in land gives rise to a trust in the land? 

Jerad Alvan v James N. Mbugua & another [2012] eKLR 


F.Tuiyott J 

June 4, 2012 

Trust - presumption of trust- whether an imperfect gift can give rise to a trust in land 

1. In the circumstances of this case, an inference could not be drawn that that an imperfect gift gave rise to 

a Trust. The gift in question was not perfected. The gift had failed and the intended beneficiary became a 

tenant and not the owner of the premises. 

Interpretation of section 123 of the Income Tax Act 

Republic v. Kenya Revenue Authority ex parte Sanjay Shah & 3 others 

Misc. Application No. 845 & 873 of 1999 


D. S. Majanja, J. 

May 30, 2012 

Tax law - amnesty - where the Minister of Finance through a Gazette Notice directed the Commissioner of Income 

Tax to refrain from assessing or recovering tax during a stated period-whether the directions implied suspension of 

all the provisions of the Income Tax Act (cap 470) during the stated period and as far as it related to undisclosed tax 

liability prior to that period-interpretation of section 123 of the Income Tax Act-whether the actions by the Commissioner 

of Income Tax in assessing, demanding and collecting taxes from the applicants were ultra vires, illegal, irrational 

and procedurally untenable 



Issues: 

i) Interpretation of section 123 of the Income Tax Act (cap 470) and the direction through Gazette Notice issued 

by the Minister of Finance. 

ii) Whether the actions by the Commissioner of Income Tax of assessing, demanding and collecting taxes from the 

applicants were ultra vires, illegal, irrational and procedurally untenable? 

Held: 

1. Section 123 of the Income Tax Act contains two separate provisions and is fortified by section 123 (3) 

which requires that when the Commissioner exercises his power under section 123 (1), he must report to 

the Minister at the end of the financial year. The Commissioner’s power under section 123 (1) is not subject 

to the Minister’s direction. 

2. The Minister is entitled under section 123 (2) (a) of the Act to direct the Commissioner to take action as the 

Minister deems fit, which terms and conditions were in the direction published in Gazette Notice No. 2985. 

3. The decision of Music Mines Limited v Matimu Kinywa was inconsistent with the plain and obvious reading 

of the provisions of the Statute. The findings in that case would only apply to the exercise by the Commissioner 

of his power under section 123 (1) of the Act. 

Computation of time in filing applications under Article 89 (11) of the Constitution 

Clr Elliot Lidubwi Kihusa v Independent Electoral & Boundaries Commission 

JR. NO. 94 of 2012 


Warsame, Sitati, Omondi, Nyamweya & Majanja J. 

May 30, 2012 

Constitutional Law – computation of time – delimitations of electoral units under the Constitution - period within 

which the judicial review matters should have been filed under – claim that no party should have been allowed to 

file an application for review outside the period specified under the Constitution – claim by the respondent that no 

party was allowed to file an application for review outside the period specified under the Constitution - whether the 

court could have allowed the applications for extension of time in the circumstances. 

Constitutional Law – jurisdiction – jurisdiction of the High Court to extend time for filing an application for review 

– claim by the respondent that authority to extend time must have been provided under the Constitution and not 

statute – where the Constitution was clear that the applications for review must have been filed within 30 days and 

any other applications beyond this was time barred – whether the High Court had jurisdiction to hear the applications 

for extension of time in the circumstances. 

Held: 

1. The time for filing an application for an order of Judicial Review under Article 89 (11) of the Constitution was 

to have been calculated from the date the chamber summons had sought leave to commence the proceedings 

was filed. The date the order was made was irrelevant because it was only upon publication that the citizen 

had become aware of the decision subject of review under the Constitution. 

2. Article 89 (11) was intended to have been time limited. Such an exercise could not have been open ended 

as it had an effect on other activities that had led to the conduct of a free and fair election. 

3. The context of Article 89 had not envisaged jurisdiction to extend time for filing an application for review. 

The intention behind the limitation could not have been questioned and if it was the intention of Kenyans to 

have made such provisions nothing would have stopped them. 

Does publishing of articles in anticipatory of a judgment amount to contempt of court 

Kenya Youth Parliament & 2 Others V Attorney General & Another 

Constitutional Petition 101 of 2011 

High Court at Nairobi (Nairobi Law Courts) 

J.W. Mwera, M. Warsame & P.M. Mwilu JJ. 

May 25, 2012 

Civil Practice and Procedure – contempt of court – attempt to influence the court in an ongoing matter-whether 

the publishing of articles in anticipatory of a judgment and/or attempting/seeking to influence the court to decide 

a case in a particular way amounted to contempt of court 

Held: 

1. To publish articles anticipatory of a judgment and/or attempting/seeking to influence the court to decide a 


121


case in a particular way is to cross the boundary and wade into the realm of contempt. No one, whatever 

their standing in society has the right to undermine the administration of justice and the authority of the law 

and of the courts by acting contemptuously of the court. 

Does the High Court have jurisdiction to transfer a suit from one subordinate court to another or from one 

subordinate court to any other dispute resolution institution as by law established? 

Gipson Kiplangat Langat v. Kenya Kazi Services Limited 

Misc. Application No. 6 of 2011 


J. M. Mutava, J. 

May 24, 2012 

Civil practice and procedure – suits – transfer of suits – whether the High Court has jurisdiction to transfer a suit 

from one subordinate court to another or from one subordinate court to any other dispute resolution institution as by law 

established-Civil Procedure Act (cap 21) section 18 

Held: 

1. Section 18 of the Civil Procedure Act provides a window through which proceedings instituted in the 

subordinate courts and which subsequently become untenable in such courts due to emergent developments 

dethroning the jurisdiction of the subordinate courts can be transferred to the High Court for trial and disposal. 

However, the above procedure does not apply as to give the High Court jurisdiction to transfer suits from 

one subordinate court to another or from a subordinate court to any other dispute resolution institution as 

by law established. 

2. Given that the Industrial Court as presently constituted is a court that is subordinate to the High Court, the 

high court is not bestowed with any jurisdiction under Section 18 of the Civil Procedure Act to order matters 

filed in the Chief Magistrates Court to be transferred to the Industrial Court for disposal notwithstanding 

Section 87 of the Employment Act. This would be possible once the employment and labour relations are 

finally established under Article 162(2) (a) of the Constitution of Kenya 2010. 

Interpretation of section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control ) Act No. 4 

of 1994. 

Antonu Mbithi Kasyula v Republic 

High Court Mombasa, 

G.L Nzioka J 

May 18, 2012. 

Criminal practice and procedure - sentencing – sentencing in offences under the Narcotic Drugs and Psychotropic 

Substances (Control ) Act -appeal against conviction and sentence to 7 years imprisonment and a fine of 1 million 

ksh – sentencing in default of payment of fine – whether failure to give a default sentence rendered the sentence 

illegal, irregular or improper 

Held: 

1. The fine would have been recoverable if the appellant did not pay it. It could have been recoverable under 

section 28 (2) of the Penal Code (Cap 63), which provided that the fine becomes recoverable by the court 

issuing a warrant for distress and or sale of convicts moveable and immoveable property to satisfy the fine. 

2. Failure to have given a default sentence was not irregular or improper. Default sentence was not envisaged 

under Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The 

life imprisonment was mandatory and was in addition to the fine. 

Sentence enhanced to life imprisonment 

Can an investigating officer’s opinion bar an accident victim from pursuing a claim for damages in a 

civil suit? 

David Kajogi M’mugaa (Suing As The Legal Representative and Administrator Of The Estate Of The Deceased) 

Peterson Muthaura Kajogi V Francis Muthomi 

J.A. Makau J 

May 8, 2012 



Tort - negligence - claim for damages under Law Reform Act-where the lower court dismissed the claim on the grounds 

that the investigating officer did not find the respondent to blame for the accident- whether where the investigating 

officer doesn’t find the respondent in a running down matter not to blame for the accident bars the victim from 

pursuing a claim for damages in a civil suit-validity of the appeal 

Held: 

1. The evidence of an investigating officer alone cannot be conclusive as to who was to blame for the accident 

nor can it be said to be binding on the court. Such evidence was a mere opinion to the court, which court 

can accept or reject for various reasons. 

Procedure in an application to set aside an arbitral award 

Kenya Airports Authority V Nairobi Flying Services Limited [2012] Eklr 

Miscellaneous Civil Application 914 of 2011 


G.V. Odunga 

May 03, 2012 

Arbitration - arbitral award-review of arbitral award-procedure to bring such an application to court-need to file the 

award seeking to set aside- whether the court had jurisdiction in a matter where the arbitral award had not been 

filed-Arbitration Rules, rules 4 and 5 

Held: 

1. In an application to set aside an arbitral award, the applicant should file the award, obtain a serial number 

for the award and then proceeded to make the application. It is the award that that gives the court jurisdiction. 

That omission is not a technicality but is a rule of substantive procedure that cannot be wished away ignobly. 

When is a mandatory injunction granted at an interlocutory stage? When do the rights of children of a 

land owner accrue in the property? 

Peter Nganga Mbugua v Loise Mugure Kiarie & another 

High Court, at Nakuru. 

Civil Case No.171 of 2011 

May 2,2012. 

W.Ouko J. 

Civil Practice and Procedure - injunction - when is a mandatory injunction granted at an interlocutory stage 

Land - right of children to parent’s land - When do the rights of children of a land owner accrue in the property 

Held: 

1. A mandatory injunction can only be granted at an interlocutory stage in very exceptional circumstances 

and only where the matter is clear beyond doubt and unusually strong. 

2. The rights of children of a land owner accrue only upon the death of the landowner. Before the land owner’s 

death, the children’s rights in the property remain inchoate and are not legally enforceable in any court of law. 

Presumption of a trust 

Samuel Njuguna Kimemia v Rose Mgeni Mtwana [2012] eKLR 


Justice RW Mwongo 

April 30, 2012 

Trust - presumption of trust- reluctance of a court to presume a trust except in very clear cases- whether a s mere 

allegation of the existence of a trust can create one 

Held: 

1. A trust arises when a donor or grantor reposes a confidence in a person, who is termed a trustee, for the 

benefit of another who is called a cestui que trust, respecting property which is held by the trustee for the 

benefit of the cestui que trust. 

2. A mere allegation of the existence of a trust cannot create one. The courts will not imply a trust save in order 

to give effect to the intentions of the parties and such intention must be clearly determined beforehand. The 


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law never implies and the court never presumes a trust, but in the case of absolute necessity. 

Enforcement of Consumer Rights 

Wilfred Irungu Ndirangu v C.M.C Motors Ltd 


M.G Mugo J 

April 23, 2012 

Contract – contract of sale of motor vehicle – alleged fraudulent sale of motor vehicle – implied warranty that 

objects sold shall be of merchantable quality - consumer rights to be uniformly enforced irrespective of the market 

– duty of plaintiff to specifically plead and strictly prove special damages – whether the circumstances warranted 

compensation. 

Held: 

1. In every contract for sale of goods, the law presumed an implied warranty that the object sold had to be 

of merchantable quality. 

2. In the era of globalization consumer rights had to be enforced uniformly irrespective of the market. The 

warranty given by Land Rover to the plaintiff being similar in all material respects to the ones given to its U.K. 

customers, the plaintiff ought to have been accorded equal treatment by the defendants as the marketers of 

Land Rover as was done in the case of Rogers & another -vs- Parish (Scarborough) Ltd & Others (1987) 2 

ALL ER 232, and Dick Bentley Productions Ltd & another - vs - Harold Smith (Motors) Ltd (1965) 2 ALL ER 65. 

Is an unregistered foreign company capable of entering into a lease agreement? 

PNTC Worldwide PVT Ltd v Sun Palm Management Ltd & another [2012] eKLR 


JW Mwera J 

March 23, 2012 

Company law – foreign company – Interpretation of section 366 of the Companies Act – execution of a lease 

agreement by a foreign company – where the foreign company had not filed its registration documents with the 

Registrar of Companies in compliance with section 366 of the Companies Act – effect of 

Held: 

1. The execution of the lease agreement by a foreign company at the offices of its local agent where the foreign 

company had not filed its registration documents with the Registrar of Companies in compliance with section 

366 of the Companies Act (Cap. 486) was a lawful and valid act. The issue of non-compliance with the 

Act was one to which the company’s officers and agents were liable to pay a fine, which was a matter for 

the Registrar of Companies to pursue though the criminal justice system. 

Enforcement of Article 81 of the Constitution on the one third gender rule. 

Milka Adhiambo Otieno & another v Attorney General & 2 others 

High Court at Kisumu, 

Civil Petition no. 33 of 2011 

Ali-Aroni, S.J. Chitembwe & H.K Chemitei JJ. 

February 28, 2012. 

Issue: 

Constitutional Law – representation in public offices – requirement to adhere to one third rule of representation by 

either gender in all public offices – need for public officers to deliberately bring into fruition the spirit and the letter of the 

constitutional provisions by taking such steps as affirmative action programmes and direct state polices to ensure that the 

aspiration of women and other vulnerable groups are well represented in public offices. 

Held: 

1. The state and public officers have a duty to deliberately bring into fruition the spirit and the letter of the 

constitutional provisions by taking such steps so as affirmative action, programmes and direct state polices 

to ensure that the aspiration of women and other vulnerable groups are well taken care of, in particular 

complying with the one third rule in all areas of representation, and not just in legislative elections. 



2. Though injunction not issued to stop the composition of the Kenya Sugar Board, the court nevertheless 

decreed that when the Board is finally constituted, it must adhere to the third gender representation rule. 

Can a successful party after an out of court settlement be awarded compensatory damages? 

Mwania Munywa V Kioko Munywa and 2 Others 

Civil Appeal No. 96 Of 2003 


J.M. Ngugi 

February 27, 2012 

Damages – damages after out of court settlement – Award of Compensatory damages after out of court settlement 

Held: 

1. It is not proper to award compensatory damages in circumstances where the out of court settlement was 

not done pursuant to a court order. Costs for pursuing litigation can only be awarded by a court when the 

litigation itself was done in Court or under the Court’s supervision or pursuant to an express agreement of 

the parties. While Kenya follows the “English Rule” of loser pays in litigation, it does not necessarily apply 

to efforts to settle disputes out of Court. 

Can an ordinary statute law limit the jurisdiction of the High Court to hear and determine a suit? 

Multiserve Oasis Company Ltd Vs the Kenya Ports Authority and Another 


High Court of Kenya at Mombasa 

J.B. Ojwang 


Civil Practice and Procedure – jurisdiction – court’s jurisdiction in claims under s.12 (1)(e) of the Kenya Ports 

Authority Act – where section 62 of the Kenya Ports Authority Act provided for arbitration – whether an ordinary 

statute could limit the jurisdiction of the High Court granted by the Constitution – Constitution of Kenya, 2010, Article 

10, Article 159(1)); (Article 159 (2)(d)) – Kenya Ports Authority Act (Cap.391) section 12 (1)(e) and 62 

Held: 

1. It is clear that the new Constitution is today, the basis of the jurisdiction of the High Court; and it is not 

permissible to limit this jurisdiction on the basis of ordinary Statutes not provided for within the terms of the 

Constitution 

2. The Constitution of Kenya, 2010, in its deliberate purpose of setting up a basis of good governance under 

Article 10, has instituted a setting of separation of powers under Article 1; donated the judicial authority 

to “the courts and tribunals established by or under this Constitution” (Article 159(1)); and specified that 

“justice shall be administered without undue regard to procedural technicalities” (Article 159 (2)(d)). 

Similarly in; 

Threeways Shipping Services (K) Limited v. Kenya Ports Authority 

Commercial Suit No. 28 of 2010 


J. B. Ojwang, J. (as he then was) 


Jurisdiction – court’s jurisdiction in claims under s.12 (1)(e) of the Kenya Ports Authority Act – where section 62 

of the Kenya Ports Authority Act provided for arbitration – whether an ordinary statute could limit the jurisdiction of 

the High Court granted by the Constitution – Kenya Ports Authority Act (Cap.391) section 12 (1)(e) and 62 

Held: 

1. Courts must adopt strict interpretation of any ordinary statutory dispensation tending to confer differential 

favours – such as section 62 of the KPA Act (cap 391) is clearly doing. By Article 159 (2) (a) of the 

Constitution, the court, in exercising judicial authority, is required to ensure that “justice shall be done to 

all, irrespective of status.” 


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2. The gravamen raised is to be resolved in the context of section 22, rather than section 62 of the Act (cap 

391), and that the alleged loss is a proper subject for the jurisdiction of the High Court. 

3. The High Court has unlimited jurisdiction in all causes, save in matters reserved by the Constitution itself to 

the Supreme Court, or to certain specialized Courts. Therefore, the contention that section 62 of the KPA 

Act has ousted the High Court’s jurisdiction is not tenable. 

Security for cost in an adverse possession claim 

Ngugi Mutura v Vros Produce Limited 



J.B.Ojwang, J. 



Civil Practice and Procedure – security for costs-security for cost in an adverse possession claim – application 

for-whether it was proper to constrain a party to lodge security for costs in favour of the other party in adverse 

possession claim 

Held: 

1. A claim in adverse possession has the unique character of standing in diametric opposition to the claims of a 

party who attributes his own ownership to the issuance of certain letters or documents by the lands registry; 

and on this account an adverse-possession claim should not, in general, be constrained by the defendant’s 

conveniences, or apprehensions such as those in respect of his likely costs. A claim in adverse possession is 

in nature a peculiar claim, in which each party stakes all, and each party trusts the judicial process to run 

its full course and to make a determination according to law. It is inappropriate to constrain the plaintiff, in 

such circumstances, by requiring him to lodge a security for costs in favour of the defendant. 

Can wrong invocation of the law lead to dismissal of a suit? 

Nancy Nyamira & another v Archer Dramond Morgan Ltd 

High Court, at Machakos, 


Ngugi J. 


Civil Practice and Procedure – wrong invocation of a relevant law in civil proceedings – whether wrong invocation 

of the law in civil proceedings can lead to dismissal of a suit? 

Arbitration-arbitration proceedings – whether Civil Procedure Rules can be imported in determination of Arbitration 

Proceedings? 

Held: 

1. As long as a party’s invocation of the wrong provision of law is not in bad faith, meant to mislead or otherwise 

cause injury or prejudice to the other side, the Court will not dismiss an application solely on account of 

wrong invocation of a provision of the law on which the application is grounded. 

2. The Arbitration Act is treated as a self-contained code. The Court would only import the Civil Procedure 

Rules with great circumspection. It would certainly not do so if the effect would be to defeat the purpose 

of the Arbitration Act. 

Can a plaintiff in the lower court limit the amount of general damages claimed in order to comply with 

the pecuniary jurisdiction of the court? 

Ruth Nduni Mwithui v Mombasa Liner and Another 

Civil Appeal No. 56 Of 2007 


J.M. Ngugi 


Jurisdiction – pecuniary jurisdiction of the lower courts – the appellant general damages in the lower court having 

exceeded the pecuniary jurisdiction of the magistrate’s court-where the appellant, plaintiff in the lower court had limited 



the amount of general damages she would like to claim in order to bring herself within the pecuniary jurisdiction of 

the court – suit dismissed for lack of jurisdiction – validity of appeal 

Held: 

1. When a suit has been filed in a court without jurisdiction, nothing with legal impact can come out of such 

a suit; it is a nullity. However, it does not apply to cases of general damages where it is the Plaintiff who 

appoints, through their own assessment, what the amount of damages she would claim. A Plaintiff is permitted 

to limit the amount of general damages she would like to claim in order to bring herself within the pecuniary 

jurisdiction of a particular court. 

What constitutes intermeddling with deceased’s property? 

Re Estate of David Julius Nturibi M’ithinji (Deceased) 


Succession Cause No 11 of 2009 

J.A Makau J. 


Succession Law – probate and administration – application to committal to jail /payment of fine for intermeddling 

with the deceased property – what constitutes intermeddling – whether the respondent was guilty of intermeddling 

Held: 

1. Intermeddling with the deceased property is any act that purports to dispossess or result into wastage of 

deceased estate or causes loss or damage or makes it impossible for administrator to administer the deceased 

estate by a person who is not authorized by The Law of Succession Act or by any written law or by a grant 

of representation under the said Act is an act of intermeddling with free property of a deceased person. 

The respondent fined 7,000 in default to serve 3 Months imprisonment. 

Is an employer bound to give reasons for termination of contract of employment? 

Joseph Muthama Ndambuki & 3 others v Delomente (K) Ltd 

High Court at Machakos 

Justice JM Ngugi 

January 23, 2012 

Employment law – termination of employment contract – employer is not bound to give reasons for termination, save 

that where reasons are stated; the reasons must be in accordance with public policy 

Held: 

1. The Court of Appeal in Kenya Revenue Authority v Menginya Salim Murganyi [2010] eKLR categorically 

says the employer does not have to give any reason for termination of the employment contract as long as 

they abide by the contractual terms to pay salary in lieu of notice. 

2. (Obiter, Per JM Ngugi, J) I would venture to suggest that the only limitation to that general legal principle 

established in our jurisprudence is that where the employer actually states a reason for termination or 

dismissal, the reasons must be in accordance with public policy. I would suggest, for example, that an 

employer could not dismiss an employee because she comes from a particular ethnic group. This would 

violate clear public policy. 

Injunctions – beyond the principles in Giella v Cassman Brown 

Act of state doctrine 

Symon Gatutu Kimamo & 587 others v East African Portland Cement Company Ltd 

High Court at Machakos 

Justice JM Ngugi 

December 16, 2011 

Injunction – temporary injunction – principles guiding the grant of temporary injunctions- principles established in 

Giella v Cassman Brown [1973] 1EA 358 

Where a company owns land, and that company is one in which the government has shares but is registered under 

the Companies Act, is that land to be considered ‘government land’ and therefore protected by section 41(a)(1) of 


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the Limitation of Actions Act as ‘land which is otherwise enjoyed by the Government”? 

Held: 

1. It is now well established in Kenya that there are three main factors to be considered in determining whether 

to grant a preliminary injunction (See Giella v. Cassman Brown). To those three factors, one might add 

another factor which a court is, at least, entitled to take into account after the first three: public interest. A 

temporary injunction will not normally issue if there will be harm to the public interest resulting from its issuance. 

2. [Citing Musinga J in - Satrose Ayuma & 11 Others v The Registered Trustees of the Kenya Railways Staff 

Retirement Benefits Scheme & 2 Others [2011] eKLR] - while the three-prong test in Giella Case is the 

fulcrum in our jurisprudence on interlocutory injunctions, the Giella Principles acquire a different hue when 

fundamental rights are involved. 

3. In an application for an interlocutory injunction to restrain breach of a fundamental right, the court may have 

to go beyond the ordinary tests as stated in Giella v Cassman Brown Co. Ltd. While the applicants must 

demonstrate that there has been breach or threatened reach of their Constitutional rights and thereby show 

that they have a prima facie case with a likelihood of success, the court has a duty to consider whether grant 

or denial of the conservatory relief will enhance the Constitutional values and objects of the specific right 

or freedom in the Bill of Rights. The court is enjoined to give an interpretation that promotes the values of a 

democratic society based on human dignity, equality, equity and freedom. Dignity of the people ought to 

be a core value in our Constitutional interpretation. 

4. In international law, for purposes of act of state doctrine, the formal nature of the company is not determinative 

of the question whether the acts of the company are attributable to the state or not. Instead, most courts have 

come up with “functional” tests aimed at distinguishing when an entity claiming the protections normally 

available to sovereign states was acting primarily in its public or governmental capacity or whether it was 

acting predominantly as a commercial actor. For example, in the United States, under the restrictive theory 

of sovereign immunity, many courts consider the following five factors in making that determination: 

i) Was the entity in question created for a national purpose? 

ii) Does the sovereign state supervise the entity? 

iii) Does the state requires the hiring of public employees and pays their salaries? 

iv) Does the entity hold exclusive rights to some right in the country? And, 

v) How the entity in question is treated under the state law? 

See, for example, Ocean Line Holdings Ltd. v. China Nat’l Chartering Corp., 578 F. Supp. 2d 621, 

624 (S.D.N.Y. 2008) and Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004)). 

If we consider these factors as indicative of the kind of questions we need to ask to determine the issue at hand, 

Respondent has not put enough materials on the record to warrant a conclusion that it should be treated as sufficiently 

a governmental entity for its lands to be entitled to the protections afforded to public land under section 41(a) (i) of 

the Statute of Limitations 

Security for payment of taxes in dispute 

Bidco Oil Refineries LTD v Attorney General & 3 others eKLR 


DS Majanja J 

June 15, 2012 

Tax Law - income tax-payment of taxes-taxes in dispute-applicant seeking not to pay security of taxes until matter 

was determined and heard-whether application was valid 

Held: 

1. The Court had jurisdiction to impose such terms and conditions that were necessary to secure interim or 

conservatory relief under the provisions of Article 23(3). The Petitioner to furnish the respondent with the 

security required pending outcome of the dispute. 

Determination of load limits of cargo vehicles 

Republic v Minister of Roads and Public Works & another Exparte Kyevaluki Services Ltd High Court at Nairobi 

Githua CW J May 29, 2012 

Judicial Review – certiorari – application for orders of certiorari to quash decisions by the defendants to adopt the 

use of the system and determine load limits of cargo vehicles 

Judicial Review - mandamus- to compel the respondents to apply the method of using gross weight shown by 



manufactures on chassis of the vehicle to determine maximum weight permitted by cargo vehicles 

Judicial review – prohibition – application seeking to prohibit the statutory body from executing it statutory functions 

as provided for in section 26 of the Traffic Act 

Held: 

1. An order of mandamus was not available to the applicant as prayed because the applicant failed to show 

or tender evidence that the respondents had failed or refused to perform their statutory duties. 

2. The court could not issue orders of prohibition to stop a statutory body from executing it statutory functions 

unless it was established that the said body planned to violate the rules of natural justice or act contrary to 

the law when performing its statutory obligations and functions. 

Are party and party costs subject to taxation? 

Ndolo v Mwangi & 2 others 

Election Petition No 11 of 2008 


GV Odunga J 

May 24 2012 

Civil Practice and Procedure - decree & certificate of costs for the purposes of order 22 rule 18 of the Civil 

Procedure Rules -commissions assets immunity from execution – whether party and party costs are subject to taxation 

Held: 

1. An order relating to costs was part of the decree, hence the decretal term constitutes the principal sum 

together with costs where such awards are made and were contained in one document. A certificate of 

costs on the other hand was an expression of the quantum of the said costs but did not constitute a separate 

decree or order. 

2. The Government cannot subject the Government to the process of enforcement. It is similarly followed that 

the Commission could not be subjected to the process of execution or attachment for enforcing payment by 

the Commission of any money or costs. 

3. Even if it was to be assumed that party and party costs was subject to taxation, one would have to determine 

what amount, in the said costs, constitute fees and what constitutes disbursements. 

Can a court of law set aside a WAKF property which has been unlawfully alienated? 

Ali v Bashir & 2 others 

Civil Case No 295 of 2008 

High court of Kenya at Mombasa 

M Kasango J 

April 25, 2012 

Civil Practice and Procedure - Muslim Law- definition of a wakf- whether a wakf can be distinguished-whether a 

court of law can set aside a wakf property which has been unlawfully alienated. 

Held: 

1. A Wakf can only be extinguished if the goods of the wakf are destroyed or damaged. This would 

be like in a case where the goods are no longer used in the manner intended by the founder. The 

remains of the goods are to be reverted to the founder or his/her heirs. 

2. A wakf could be declared null and void by the Kadhi, or religious judge, if its formation included 

committing acts otherwise illegal in Islam, or it did not satisfy the conditions of validity, or if it was 

against the notion of philanthropy. Since wakf is an Islamic Institution it became void if the founder 

converted to another religion. 

Can the documentary report of a government chemist be accepted in evidence where the maker, i.e. 

the Government Chemist, was not called to testify? 

Bakari Said Lao v Republic [2012] eKLR 


Justice M. Odero 

June 26, 2012 


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Judgment 


1. Evidence – expert evidence – documentary evidence contained in the report of a Government 

Chemist – whether such evidence may be admitted without calling the person who made the 

document – interpretation of the Evidence Act (Cap. 80) section 77(1), (2), (3) 

Held: 

1. The Evidence Act (Cap. 80) section 77 sets out the rules governing the admissibility of expert evidence. 

Notwithstanding the failure to call the Government Analyst, the reports were admissible and were deemed 

to have been prepared by the Analyst. 

2. The section provides that a court ‘may’ summon the analyst to testify if it thinks fit. The use of the word ‘may’ 

implies that the decision whether to summon the analyst or not lies solely at the court’s discretion. 

3. The trial magistrate did not deem it necessary to exercise that discretion in this case and the appellant had 

not raised any objection to the production of the reports of the Government Analyst and he did not make 

any request for the Analyst to be summoned. The Government Analyst’s reports were therefore properly 

produced and accepted in evidence. 

Right to fair administrative action- 

Grace A. Omolo V Attorney General and 3 Others 

Petition No. 252 Of 2011 


Constitutional & Human Rights Division 

D.S. Majanja 

May 4, 2012 

Constitutional Law - constitutional rights and fundamental freedoms – right to administrative action – right to fair 

administrative action- right to expeditious and fair disciplinary proceedings- delay by Public Service Commission to 

commence disciplinary proceedings against the petitioner- whether a year of inaction on the disciplinary process 

was an inordinate delay and infringed on the petitioner rights protected under Article 47 -whether the failure was a 

breach of the petitioner’s right to administration action - Constitution of Kenya, 2010 Article 47 

Held: 

1. The Public Service Commission has the constitutional responsibility of ensuring expeditious and fair 

proceedings in a manner consistent with Article 47 and the values set out in Article 10 and ensuring that 

public servants are protected as required by Article 236. Where the public servants rights are threatened 

the Court will not hesitate to intervene. 

2. A year of inaction on the disciplinary process was an inordinate delay and infringed on the petitioner rights 

protected under Article 47.The petitioner had been under interdiction for over a year without knowing 

her fate. Based on regulation G33(13) of the Code of Regulation Governing the Civil Service she had a 

legitimate expectation that disciplinary proceedings would be completed within six months or at any rate 

within a reasonable time. 

3. To prohibit disciplinary proceedings would amount to granting immunity to the petitioner from the disciplinary 

process where serious allegation have been leveled against her. 

Petitioner awarded Ksh. 300,000/00 general damages, disciplinary proceedings to commence in 30 days 

Award of exemplary damages for unconstitutional actions 

Koigi wa Wamwere v Attorney General 


JR Petitioner No. 737 of 2009 

M. Ngigi J. 

March 28, 2012 

Constitutional Law – fundamental rights and freedoms – violation of constitutional right – allegation by the petitioner 

that his constitutional rights were violated and contravened by the government during his detention without trials 

and torture in the Nyayo house torture chambers – claim by the petitioner that he was denied food, water and kept 

naked at the Nyayo House torture chambers – petition opposed – claim that the petitioner had not proved any case 

with a probability of success because the petition lacked clarity and precision in setting out the alleged violations 

and further that there was no proof that the alleged violations had been committed by the officers of the government 



– whether the claim was valid – whether the petitioner had a remedy under the former constitution . 

Damages – general and exemplary damages – damages arising out of breach of constitutional provisions – 

where the petitioner claimed for both general and exemplary damages for the violation of his constitutional rights 

– instances where both general and exemplary damages could have been awarded – whether exemplary damages 

could have been awarded in the circumstances. 


The petitioner sought for the violation of his rights by state agents. 

Held: 

1. Though there was a divergence of opinion in the courts on whether or not exemplary damages should be 

awarded in addition to general damages for unconstitutional actions, it was unnecessary to consider the 

element of unconstitutional action when the relief had been awarded for unconstitutional conduct. It was 

also clear that the principle in Obongo v Kisumu Municipal Council [1971] EA 91 was a case in tort so 

that the issue of unconstitutional action was an additional factor and the court would have considered in 

awarding exemplary damages. 

A global sum of kshs. 2, 500, 000 awarded for the violation of the petitioner’s rights under section 74 of the former 

Constitution 

Authority to issue circulars under the Co-operative Societies Act 

R v Commissioner for Co-operative Development & Others 


Constitutional and Human Rights Division 

JR Miscellaneous Application No. 93 of 2007 

Majanja J. 

April 27, 2012 

Judicial Review – certiorari – application to quash a circular that purported to guide or direct 

coffee co-operative societies that the appointment of coffee millers and marketing agents would 

be made by the members of the management committee of coffee co-operative societies – where 

the said appointments were to be made through management committees rather than through the 

members at general meetings – contention by the applicant that the respondent had no authority 

to issue that circular and had acted contrary to the provisions of the Co-operative Societies Act 

– whether the application was valid. 

Held: 

1. Not only was the circular intended to achieve an ulterior collateral purpose not sanctioned by the law, 

but also its implementation was to undercut the democratic nature of co-operative societies contrary to the 

Co-operative Societies Act, 2007 with the aim of coercing co-operative societies to mill and market their 

coffee through the KPCU to the detriment of the ex-parte applicants. That undermined the statutory objective 

expressed in section 7(1) of the Coffee Act which empowered the Coffee Board to promote competition in 

the coffee sector 

2. The continued existence of the 2006 Circular to the extent that it undermines the co-operative principles is 

an affront to the values of democracy, participation of the people, transparency, accountability and good 

governance enshrined in Article 10 of the Constitution. These values were applicable to the respondent and 

had to be adhered to in the discharge of its functions. 

3. While the Commissioner had wide powers to have regulated co-operative societies, he could not have removed 

the decision making powers of the society from the supreme and principal organ that was the membership 

and impose it on the management committee. Such an act would have undermined the democratic principles 

which had formed part of the bedrock principles of the co-operative movement. 


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1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 


A COMPILATION OF SUMMARIES OF SELECTED CASES ON 

THE INTEPRETATION OF THE NEW CONSTITUTION 

OF KENYA 

(Sept. 2010 – April 2012) 

May 2012 

Prepared by Njeri Githanga - Asst. Law Reporter 

Reviewed and Edited by Michael M. Murungi – Editor/CEO 

TABLE OF CONTENTS 

A SELECTION OF CASES ON THE INTEPRETATION OF THE NEW CONSTITUTION 

PARTIES ISSUE OF LAW PAGE NO. 

P.A.O & 2 others v Attorney General [2012] 

Isaac Gathungu Wanjohi & another v the Attorney 

General & 6 others [2012] Okenyo Omwansa George 

and Another v the Attorney General and two others 

[2012] 

Okenyo Omwansa George and Another v 

The Attorney General and two others [2012] 

Gilbert Mwangi Njuguna v Attorney General 

[2012] 

Community Advocacy and Awareness Trust 

& 8 others v National Gender and Equality 

Commission & 5 others [2012] 

Lucy Kemboi v Cleti Kurgat & 5 others [2012] 

Famy Care Ltd v Public Procurement 

Administrative Board & 5 others [2012] 

Protus Buliba Shikuku v Attorney General 

[2012] 

C. M.S Vs I.A.K Suing through Mother and 

Next Friend C.A. O. [2012] 

The Right to Life and Health 

Revocation of Land Titles 

By Way of Gazette Notices 

Unconstitutional 

Advertising By Advocates 

Reference For Constitution 

of A Three-Judge Bench 

President’s Discretion In 

Public Appointments 

Widows Right To Bury Their 

Husbands 

Right of Access To 

Information 

Sentencing In Attempted 

Capital Offences 

DNA Testing in relation to 

Children’s right 

132 Issue19 | April - June 2012 

134 

134 

135 

135 

136 

136 

137 

137 

138


10 

11. 

12. 

13. 

14. 

15. 

18 


John Harun Mwau & 3 others v Attorney 

General & 5 others [2012] 

In Re the Matter of the Interim Independent 

Electoral Commission [2011] 

In Re the Matter of Commissioner For The 

Implementation Of The Constitution [2011] 

Centre for Rights Education and Awareness 

& 7 others v Attorney General [2011] 

Satrose Ayuma & 11 others V Registered 

Trustees of the Kenya Railways Staff 

Retirement Benefits Scheme & 2 others [2011] 

International Commission of Jurists-Kenya v 

Attorney General & 2 others [2011] 

Monica Jesang Katam V Jackson 

Chepkwony & another [2011] 

Date Of The First General 

Elections Under The New 

Constitution 

Supreme Court’s Advisory 

Opinion On Election Date 

Supreme Court’s Maiden 

Ruling 

Appointments To 

Constitutional Office & 

Gender Balance 

Forceful Evictions And The 

Right To Adequate Housing 

Public Appointments 

Kenya’s Obligation To Issue 

An Arrest Warrant Against 

Sudan’s President 

16. Dennis Mogambi Mong’are V Attorney 

Constitutionality Of The 141 

General & 3 Others [2011] 

Vetting Of Judges And 

Magistrates Act, 2011 

17. Samson Kiogora Rukunga V Zipporah Gaiti Married Daughters’ Right To 142 

Rukunga [2011] 

Inherit 

Right Of Inheritance In 

Woman To Woman 

Marriage 

19. John Kabui Mwai and 3 Others V Kenya Form One Quota Not 142 

National Examination Council and 2 others 

[2011] 

Discriminatory 

20. Ladama Olekina v Attorney General & 

Public Participation In The 143 

Another [2011] 

Law Making Process 

21. Aboud Rogo Mohamed & another v Republic Courts’ Dilemma In Bail 143 

[2011] 

Applications For Serious 

Offences 

22. Republic v Enock Wekesa & another [2010] Writs for Nolle Prosequi to 

Have Proper Reasoning 

144 

23. Joseph Kimani Gathungu v The Attorney 

General & another[2010] 

Jurisdiction of the ICC 145 

24. In Re the Matter of Zipporah Wambui 

Committal To Civil Jail vis a 145 

Mathara [2010] 

vis Civil and Human Rights 

138 

139 

139 

140 

140 

141 

142 

133


INTRODUCTION 

Following the promulgation of the 

new Constitution on August 27, 2010 

that ushered in a new set of national 

values, bill of rights and system of 

governance among other things, the 

Kenyan courts have dealt with various 

Constitutional issues in which the 

courts have made landmark decisions. 

The landmark judicial opinions include 

those that touch on subjects such as 

fundamental rights and freedoms e.g. 

right to life and health, limitation of 

the right to information, advertising 

by advocates, evictions and right to 

adequate housing, appointments to 

constitutional offices etc. The following 

is a synopsis of some of the issues that 

have been determined by the courts 

since the promulgation of the new 

Constitution. 

1. Sections of the Anti-Counterfeit 

Act Violate the Right to Life and 

Health 

Sections 2, 32 and 34 of the Anti 

Counterfeit Act threatened to violate 

the right to life of the petitioners 

as protected by Article 26 (1), the 

right to human dignity guaranteed 

under Article 28 and the right to the 

highest attainable standard of health 

guaranteed under Article 43 (1) 

of the Constitution. In so far as the 

enforcement of the Act affected access 

to affordable and essential drugs and 

medication particularly generic drugs, 

it was in violation of the right to life, 

human dignity and health guaranteed 

under the Constitution 

P.A.O & 2 others v Attorney General 


Mumbi Ngugi J 

April 20, 2012 

The crux of the dispute before the court 

was whether, by enacting sections 2 

of the Anti Counterfeit Act (the Act) 

and by providing the enforcement 

provisions in section 32 and 34 of the 

same Act, the State was in violation 

of its duty to ensure conditions were 

in place under which its citizens can 

lead a healthy life. 

Section 2 (d) of the Act defines 

counterfeiting as “in relation to 

medicine, the deliberate and 

fraudulent mislabeling of medicine 

with respect to identity or source, 

whether or not such products have 

correct ingredients, wrong ingredients, 

have sufficient active ingredients or 

have fake packaging”. 

The question before the court was 

whether these provisions would deny 

the petitioners access to essential 

medicines and thereby violate their 

rights under Articles 26(1), 28, and 

43(1) of the Constitution. The Articles 

provide for the right to life, human 

dignity and health. According to the 

petitioners the government had failed 

to acknowledge and specifically 

exempt generic drugs and medicines 

from the definition of counterfeit goods 

in the Act. It had also failed to provide 

a clear definition of counterfeit goods 

in such a manner that would allow 

generic drugs to be included. Such 

a clear definition would effectively 

prohibit importation and manufacture 

of generic drugs and medicines in 

Kenya. 

It was noted that the danger in the 

possibility of the terms ‘generic’ 

and ‘counterfeit’ being used 

interchangeably was borne out by 

the fact that there had been instances, 

admittedly in other jurisdictions, 

in which generic medication has 

been seized while in transit on the 

basis that it is counterfeit. Such 

seizures have affected users of generic 

drugs in developing countries which, 

like Kenya, have large populations 

dependent on generic HIV medication 

for survival. 

The court stated that ‘in a legal 

regime that is focused on protection of 

intellectual property rights, the danger 

that such generic drugs can be seized 

under section 32 and 34 of the Act is 

therefore manifest.’ 

The court found that Sections 2, 32 

and 34 of the Anti Counterfeit Act 

threatened to violate the right to life of 

the petitioners as protected by Article 

26 (1), the right to human dignity 

guaranteed under Article 28 and the 

right to the highest attainable 

standard of health guaranteed under 

Article 43 (1) of the Constitution. 

The High Court declared that the 

enforcement of the Anti Counterfeit 

Act (the Act) in so far as it affects 

access to affordable and essential 

drugs and medication particularly 

generic drugs is in violation of the 

right to life, human dignity and health 

guaranteed under the Constitution. 

The court opined that “The right 

to life, dignity and health of the 

petitioners must take precedence 

over the intellectual property rights 

of patent holders…had the primary 

intention been to safeguard consumers 

from counterfeit medicine, and then 

the Act should have laid greater 

emphasis on standards and 

quality” 

2. Revocation of Land Titles 

By Way of Gazette Notices 

Unconstitutional And Ineffectual 

Whereas section Article 40(6) of the 

Constitution provides that the rights 

to property established in that article 

do not apply to property that has 

been ‘unlawfully acquired’, a finding 

that property has been unlawfully 

acquired had to be through a legally 

established process and not by whim 

or revocation of the Gazette Notice 

as the Commissioner of Lands had 

purported to do. 

Isaac Gathungu Wanjohi & another 

Vs the Attorney General & 6 others 

[2012] 

High Court, at Nairobi-Constitutional 

and Human Rights Division 

D.S. Majanja (J) 

30th March, 2012 

The suit arose from a disputed piece 

of land situated at the junction of 

Airport Road and the Mombasa- 

Nairobi Road and is part of land 

that was intended for construction of 

the Eastern Bypass. The suit property 

had been compulsorily acquired by 

the State.The High Court reiterated 

the legal position that revocation of 

land titles by way of gazette notices 

is unconstitutional and ineffectual. 

Holding that such land revocations 

must be through a legally established 

mechanism, the Constitutional Court 

stated that due process of the law 



had to be followed even in cases 

of compulsory acquisition of land. 

It is immaterial that such land titles 

may have been acquired irregularly 

because even such assertions 

were subject to be proved through 

a court process. It was likewise 

irrelevant whether the process leading 

to the revocation was based on 

recommendations arising from a 

consultative process such as a task 

force because according to the 

court, such recommendations had no 

force of law and hence cannot be a 

substitute to following the due process 

of the law. 

Similarly in Kuria Greens Limited v 

Registrar of Titles and Another [2011] 

eKLR the court held that the Registrar 

of Titles had no authority to cancel a 

land title by way of gazette notice and 

that only a court could do so when the 

title in question had been obtained 

through fraud and or mistake and only 

where it was not a first registration. 

While upholding the finding in the 

Kuria Greens Limited case, the court 

opined that ‘unlawful acquisition’ 

referred to in Article 40(6) of the 

Constitution had to be through a 

legally established process and not 

by whim or revocation of the Gazette 

Notice as the Commissioner of Lands 

had purported to do. Hence, such 

action was illegal, null and void in so 

far as it purported to revoke that title. 

3. Rule Banning Advertising by 

Advocates inconsistent with Article 

46(1) and 48 of the Constitution 

In so far as Rule 2 of the Advocates 

(Practice) Rules constituted a complete 

ban on advertising by advocates, it 

was inconsistent with Article 46(1) of 

the Constitution regarding consumers’ 

right to have access to information 

necessary for them to gain the full 

benefit of a product or ser vice. 

Okenyo Omwansa George and 

Another v The Attorney General and 

two others High Court, at Nairobi 

– Constitutional and Human Rights 

Division 

D.S Majanja J. 

March 29, 2012 


Advertising is a traditional mechanism 

in a free market economy for a 

supplier to inform a potential 

purchaser of the availability and terms 

of exchange. Until recently, there had 

been a complete ban of advertising 

by advocates under rule 2 of the 

Advocates (Practice) rules. 

The court found the rule to be 

unconstitutional and inconsistent with 

Articles 46(1) and 48 of the Constitution 

following a petition to the High Court 

to challenge the prohibition against 

advertising in the legal profession.The 

petitioners had submitted that rule 2 of 

the Advocates (Practice) rules which 

barred advertising was in conflict, 

inconsistent and contravened Article 

35(b) of the Constitution. Article 35(b) 

clearly stated that every citizen had 

the right to the correction or deletion 

of untrue or misleading information 

that affects the person. Further, it was 

submitted that the rule was in 

contravention of consumer rights 

under Article 46 of the Constitution. 

Consumers had the right to information 

to gain the full benefit of goods and 

services offered by either a public or a 

private person. They argued that legal 

services were included in the definition 

and by prohibiting advertising, rule 2 

essentially suffocated and constrained 

a consumer’s right to have access to 

information regarding where, when 

and from whom and how to get the 

services of an advocate or even what 

issues can be dealt with by an 

advocate. 

The court noted that it was 

becoming clear that the prohibition 

of advertising had come under 

considerable challenge both locally 

and internationally and in order to 

achieve a just society that met the 

expectations of Kenya, legal services 

offered by advocates had to be 

available and the people had to have 

the necessary information to access 

these services. A ban on advertising 

by advocates was hence inimical 

to these broad objectives of the 

Constitution. 

The court concluded that Rule 2 of 

the Advocates (Practice) Rules made 

under the Advocates Act in so far 

as to constitute a complete ban 

on advertising by advocates was 

inconsistent with Article 46(1) and 48 


4. Reference of a Constitutional 

matter to a three-Judge Bench of 

the High Court Discretionary 

Whereas Article 165(4) of the 

Constitution provides that any matter 

certified by the court as raising a 

substantial question of law on a 

constitutional issue shall be heard by 

an uneven number of judges, being 

not less than three, assigned by the 

Chief Justice, the court should consider 

each case on its merits and determine 

on its own discretion whether a 

particular matter ought to be referred 

to the Chief Justice for the constitution 

of a three judge bench to hear it. 

Gilbert Mwangi Njuguna v Attorney 




Mumbi Ngugi, J. 

March 16, 2012 

Although past judicial thinking alluded 

to the conventional wisdom that 

many heads are better than one, or 

to the fact that the subject matter was 

such as could not escape arousing 






that merits reference to a three-judgebench 

means.The petitioner had filed 

a petition alleging violation of his 

fundamental rights under sections 

71, 73, 74, 75, 77, 82 and 84 of 

the former Constitution that arose with 

regard to his removal from his position 

as a magistrate. Amongst the orders 

that the petitioner sought included 

an order that the file be referred 

to the Chief Justice for purposes of 

constituting a three-judge-bench to 

hear the petition. 

Ms. Mwangi representing the 

petitioner made reference to an article 

by former Chief Justice F. K. Apaloo 

carried in the Nairobi Law Monthly 

(January, 1995) on the circumstances 

in which the Chief Justice should 

135


appoint a three-judge-bench to hear a 

matter under section 84 of the 

former Constitution as being where 

complex issues of determinations 

of constitutional issues are raised. 

She further relied on the case of 

Samuel Kamau Macharia & another 

v. Attorney general & another [2000] 

eKLR in which the former Chief Justice 

Bernard Chunga while appointing a 

three-judge bench set out the matters 

to be considered in appointing a 

three-judge-bench, among them that 

the motion seeking the referral should 

not be frivolous and must raise matters 

of considerable complexity and 

gravity in relation to the interpretation 


The court made reference to the case 

of Community Advocacy Awareness 

Trust & others v Attorney General & 

others [2012] eKLR where the High 

Court (Majanja, J.) 

observed: 

“The Constitution of Kenya does not 

define, ‘substantial question of law.’ It 

is left to the individual judge to satisfy 

himself or herself that the matter is 

substantial to the extent that it warrants 

reference to the Chief Justice to 

appoint an uneven number of judges 

not being less than three to determine 

a matter.” 

The Court in the Community Advocacy 

Awareness Trust case further observed 

that in view of the fact that the new 

Constitution had an expanded Bill of 

Rights, “every question concerning 

the interpretation of the Constitution 

would be a substantial question of 

law as it is a matter of public interest, 

affects the rights of the parties, is fairly 

novel and has not been the subject of 

pronouncement by the highest court.” 

The court noted that the circumstances 

would defeat the objective of the 

expeditious justice as outlined under 

Article 159 (2) (b) of the Constitution, 

providing that justice shall not be 

delayed, and therefore the court 

should consider each case on its merits 

and determine whether a particular 

matter ought to be referred to the 

Chief Justice for constitution of a three 

judge bench to hear it. 

5. President’s Discretion in Public 

Appointments 

The President is under no obligation to 

appoint the person ranked first where 

names are forwarded to him by a 

particular selection panel for public 

appointment. The President’s 

discretion, authority and responsibility 

of independently taking into account 

the values that guide the making of 

public appointments should not be 

taken away. 

Community Advocacy and Awareness 

Trust & 8 others v National Gender 

and Equality Commission & 5 others 

High Court, at Nairobi (Constitutional 

and Human Rights Division) 

D.S. Majanja J 

March 14, 2012 

The President is under no obligation to 

appoint the person ranked first where 

names are forwarded to him by a 

particular selection panel for public 

appointment. The brief background 

facts of the petition were; pursuant to 

section 11(1) and (2) of the National 

Gender and Equality Commission Act, 

a selection panel was duly constituted 

to invite applications from the Kenyan 

public for short listing and interview 

for the position of the Chairperson as 

well as a commissioner of the National 

Gender and Equality Commission and 

thereafter make recommendations to 

the President and the Prime Minister 

to appoint a person to the office of 

the Chairperson and Member of the 

Commission. Various applicants were 

interviewed, amongst them, the 6th 

interested party in the petition, Ms 

Lichuma. 

According to the results of the 

interviewing panel, Ms Lichuma was 

ranked 4th. Nevertheless, her name 

as well as the names of the first 4 

applicants was forwarded to the 

President for subsequent appointment, 

after consultation with the Prime 

Minster. 

The President and the Prime Minster 

settled on Ms Lichuma, precipitating 

the petition. 

The petition was on the basis that 

Ms. Lichuma wasn’t the most suitable 

person due to 

her being ranked as the 4th most 

suitable candidate by the interviewing 

panel. 

While holding for the respondents, 

the court opined that the persons 

whose names were forwarded were 

all considered competent and the 

statutory mandate imposed on the 

selection panel to forward “at least 

three names” indicates that the 

President and Prime Minister had 

discretion in selecting the preferred 

candidate having regard to the various 

factors. According to the court, neither 

the Constitution nor the National 

Cohesion and Integration Act, 2008 

required the President in consultation 

with the Prime Minister to appoint the 

person ranked first. To insist that the 

President must appoint the person 

ranked first in the circumstances 

would be to take away the President’s 

discretion, authority and responsibility 

of independently taking into account 

the values that guide the making of 

public appointments. 

6. Widows have a Right to Bury 

their Husbands in their Established 

Homes "Boma" 

Article 27(3) and (4) of the Constitution 

gives both women and men the right 

to equal opportunities in cultural and 

social spheres and also provides that 

there should be no discrimination 

directly or indirectly against any 

person on any ground. 

Lucy Kemboi v Cleti Kurgat & 5 others 

(2012) eKLR 

A Mshila. J 

High Court Eldoret 

March 13, 2012. 

A widow has a right, just like that of 

her in-laws, to bury the remains of 

her husband. In a burial dispute, the 

High Court held that a widow's right 

to bury the remains of her husband 

were provided for and protected 

by Article 27 (3) and (4) of the 

Constitution, in that a widow should 

not be discriminated upon by cultural 

practices. 

Article 27(3) and (4) of the Constitution 

gives both women and men the right 

to equal opportunities in cultural and 



social spheres and also provides that 

there should be no discrimination 

directly or indirectly against any 

person on any ground. 

Lucy Kemboi brought a suit against her 

in-laws, seeking inter-alia authority to 

arrange for the collection, burial and 

interment of the body of her husband 

at their matrimonial home. The High 

Court after hearing rivalry submissions 

considered inter-alia, who should 

actually bury the deceased and where 

had the deceased established a home. 

It was the Court's view that though 

Keiyo customary law was applicable 

and that under the said customary law 

the clan together with the deceased 

brothers were responsible for the 

burial of the deceased, Lucy having 

been married to the deceased had a 

right derived from written law to bury 

the deceased. 

The Court was of the view that the 

rights of Lucy were provided for and 

protected by the Constitution, and 

Lucy should not be discriminated upon 

by cultural practices, that she had an 

equal right as her in-laws and the clan 

to bury her husband's remains. 

As to whether a wife of a deceased 

person had the first right and duty to 

decide on his husband’s burial, the 

courts seem to have diverged from 

the judicial reasoning in the S.M 

Otieno case. In Njoroge v Njoroge & 

Another (2004)1KLR, Justice Ojwang 

ruled that marital status was more 

relevant to burial and that ‘it was 

the marriage regime rather than the 

succession regime that should prevail 

in determining questions of burial.’ 

7. Right of Access to information is 

limited to Kenyan Citizens 

The right to access to information 

under Article 35(1) of the Constitution 

was limited by reference to ‘citizen’ 

and was not to be exercised by 

juridical persons. 

Famy Care Ltd v Public Procurement 

Administrative Board & 5 others 

High Court at Nairobi (Constitutional 

and Human Rights Division) 

Petition No 43 of 2012 

Majanja J. 


March 2, 2012 

The main issue for consideration was 

whether a company incorporated 

outside Kenya was a citizen for 

the purpose of Article 35(1) of 

the Constitution. Article 35 of the 

Constitution provides that every citizen 

has the right of access to information 

held by the State; and information 

held by another person and required 

for the exercise or protection of any 

right or fundamental freedom. 

The Court was of the view that the 

right protected under Article 35(1) 

has an implicit limitation, that is, 

it is only available to a Kenyan 

citizen. Other rights were available 

to “every person” or “a person” or 

“all persons” but this right is limited 

by reference to the scope of persons 

who can enjoy it as there has to be a 

distinction between the term “person” 

and “citizen” as applies in Article 35. 

The court noted that though under 

Article 260, a person includes a 

company association or other body 

of persons whether incorporated or 

unincorporated, citizenship was in 

reference to natural persons. Though 

the term “citizen” was not defined in 

Article 260, the same was dealt with 

under Chapter 3 of the Constitution, 

Articles 12 to 18 and the provisions 

were in reference to natural persons. 

The right to access to information 

under Article 35(1) was limited by 

reference to citizen and was not to 

be exercised by juridical persons. 

The court observed that the only other 

right which was limited by reference 

to citizen is to be found in Article 38 

which protected the political rights of 

citizens and which also negatives any 

intention by the people of Kenya to 

give juridical persons political rights. 

The Judge went on to emphasize 

and state that a corporation was not 

a real thing, it was legal fiction, an 

abstraction and a vehicle through 

which natural persons can engage 

as a collective to realize certain 

objectives set out in the founding 

instrument and also that a juridical 

person could not vote or make political 

choices or exercise the political rights 

protected by Article 38. 

8. Sentencing in Attempted 

Capital offences 

Section 297 (2) of the Penal Code 

(which prescribed a sentence of death 

for the offence of attempted robbery) 

contradicted section 389 of the Penal 

Code (which prescribed a maximum 

of seven years imprisonment for an 

attempt to commit a capital offence) 

and was against the general rules of 

international law which by virtue of 

Article 2 (5) of the Constitution are 

part of the law of Kenya. 

Protus Buliba Shikuku v Attorney 


Constitutional Reference No. 3 of 

2011 

High Court at Kisumu 

R N Nambuye, JA & A Aroni, J. 


The High Court sitting as the 

Constitutional Court invoked its 

mandate in Article 23 (3) as read 

with Article 165 (1) (2) (3) (a) (b) (d) 

(i) (ii) of the Constitution and declared 

that section 297 (2) of the Penal Code 

contradicted section 389 of the Penal 

Code as to the sentence of the offence 

of attempted robbery, noting that 

section 297 (2) of the Penal Code 

had no primacy over section 389 of 

the Penal Code. 

The petitioner’s final appeal against 

conviction and sentence before the 

Court of Appeal had been dismissed 

hence the petition before the 

Constitutional court on grounds, inter 

alia, that the petitioner’s constitutional 

rights had been breached by the 

respondent by convicting and 

sentencing him to serve an unlawful 

sentence, and that section 297 (2) 

of the Penal Code (which prescribed 

a sentence of death for attempted 

robbery) was in contradiction with 

section 389 of the Penal Code (which 

prescribed a maximum of seven years 

imprisonment for an attempt to commit 

a capital offence) as to the offence of 

attempted robbery and was against 

the letter and spirit of the Constitution 

enshrined in Article 26 (1) (2) and 

Article 50 (2), and the benefit of the 

contradiction should be accorded to 

him. It was the petitioner’s case that 

all the courts through which he was 

137


processed had failed to reconcile the 

contradictions in the provisions of 

section 297 (2), 388 and 389 of the 

Penal Code. He submitted that the 

Court of Appeal had appreciated the 

said contradictions and accorded the 

benefit to the respective appellants in 

Evanson Muiruri Gichane v Republic, 

CA No. 277 of 2002; Godfrey 

Ngotho Mutiso v Republic, CA No. 17 

of 2008; and Boniface Juma Khisa v 

Republic CA No. 268 of 2009, and it 

was on this basis that he approached 

the Constitutional Court to bestow a 

similar benefit on him as well. 

The court held that section 297 (2) 

contradicted section 389 of the 

Penal Code regarding the sentence 

of the offence of attempted robbery 

and was not only against the letter 

and spirit of section 389 of the Penal 

Code providing a general penalty 

for attempted felonies among them 

attempted robbery, but also against 

the provisions of the Constitution as 

well as international norms and best 

practices accessed through Article 2 

(5) of the Constitution. 

9. DNA testing to be Ordered 

where it is in the best interest of 

the Child 

The right of the child to parental care 

takes precedence particularly in light 

of the cardinal constitutional principle 

set out in Article 53(2) that in such 

matters, the paramount consideration 

is the best interests of the child. 

C. M.S Vs I.A.K Suing through Mother 

and Next Friend C.A. O. 

Constitutional Application No. 526 

of 2008 


Mumbi Ngugi J. 

January 20, 2012. 

Can a children's court, in a matter 

involving a child, order a party to 

undertake a DNA test where paternity 

is denied? And if so, would such 

an order amount to infringement 

of the party's constitutional right to 

freedom of conscience either under 

the new or the repealed constitution? 

An order compelling the petitioner 

to undertake a DNA test had been 

issued by the Children's Court after 

the petitioner had denied paternity 

of the respondent's child. It was the 

petitioner's case that the order was 

unconstitutional as it violated his 

freedom of conscience contrary to 

Article 32(1) of the New Constitution 

and also contrary to section 70(b) and 

78(1) of the repealed Constitution. 

According to the petitioner, the order 

infringed his rights as he had made it 

very clear to the subordinate court that 

he was not ready for such a DNA test 

and he would suffer mental anguish 

and trauma if he was subjected to a 

test that he was not ready for. 

However, it was the view of the 

court that in determining a paternity 

dispute, the court must of necessity 

weigh the competing rights of the 

child and the party who is alleged 

to be the biological father. The right 

of the child to parental care takes 

precedence particularly in light of the 

cardinal constitutional principle set out 

in Article 53(2) that in such matters, 

the paramount consideration is the 

best interests of the child. 

The principle was that an order for 

DNA testing should be made if it is 

in the interests of the child and if a 

prima facie case had been made to 

justify such an order. Such an order 

would not in the courts' view be in 

violation of any of the petitioner's 

constitutional rights and would be in 

the best interests of the child. In light 

of that, the petition was dismissed with 

costs to the respondent. 

10. Date of the first General 

Elections under the new 

Constitution 

The powers of the President in relation 

to determining the term of the National 

Assembly did not exist any more. The 

first general elections under the new 

Constitution could only be lawfully 

held in 2012 within sixty (60) 

days from the date of dissolution of 

the National Coalition by written 

agreement between the President and 

the Prime Minister in accordance with 

section 6 (b) of the National Accord 

and Reconciliation Act or within sixty 

(60) days from the expiry of the term 

of the National Assembly in January 

15, 2013 

John Harun Mwau & 3 others v 


eKLR Constitutional Petition No. 65 

of 2011 


Isaac Lenaola, Mumbi Ngugi & David 

Majanja, JJ. 

January 13, 2012 

The Key issues for determination in 

the petition was the date of the first 

general elections under the new 

Constitution and whether the High 

Court had jurisdiction to determine 

the matter. 

Submissions regarding the date of the 

first elections fell into three categories:- 

o Proponents for the second 

Tuesday of August, 2012 as 

stipulated in the 

Constitution 

o Proponents for a December 

date 

o Proponents for the March 

2013 date. 

Reference was made to various 

provisions of the law, schedules of the 

Constitution, and Legal Notice No. 

1 of 2008, and whether the issue of 

the date when the first elections could 

be lawfully held was integrated with 

the issue of whether the President 

could dissolve Parliament under the 

Constitution. There was also the issue 

whether the unexpired term of the 

National Assembly incorporated the 

terms and conditions of service for the 

National Assembly? 

The court held that the first general 

elections under the Constitution 

promulgated in August 27, 2010 

could only be lawfully held in 2012 

within sixty (60) days from the date 

of dissolution of the National Coalition 

by written agreement between the 

President and the Prime Minister in 

accordance with section 6 (b) of the 

National Accord and Reconciliation 

Act or within sixty (60) days from 

the expiry of the term of the National 

Assembly in January 15, 2013. It was 

noted that the powers of the President 

in relation to determining the term of 

the National Assembly did not exist 

anymore and therefore the ‘term’ 

for purposes of the Sixth Schedule 

referred to the term of 5 years from the 



time the National Assembly first 

met which was stipulated by Legal 

Notice 1 of 2008 as January 15, 

2008, meaning that the term ought to 

expire in January 14, 2013. 

11. Supreme Court’s Advisory 

Opinion on Election date 

The constitutional petitions filed in the 

High Court raised justiciable questions, 

entailing issues constitutional 

interpretation under a jurisdiction 

properly vested in the High Court. 

The issues ought to be litigated and 

resolved in the High Court, and the 

High Court’s decision in that respect 

would be subject to the appellate 

procedure running through the Court 

of Appeal, to the Supreme Court. 

In Re the Matter of the Interim 

Independent Electoral Commission 

[2011] eKLR 

Constitutional Application 2 of 2011 

The Supreme Court of Kenya 

W.M. Mutunga, CJ; Nancy Baraza, 

DCJ & Tunoi, Ibrahim, Ojwang, 

Wanjala & Ndung’u, 

SCJJ. 

December 20, 2011. 

The applicant, the Interim Independent 

Electoral Commission, had moved the 

Supreme Court by a Constitutional 

Application dated April 28, 2011. 

It cited Articles 101(1), 136(2) 

(a), 177(1)(a) and 180(1) of the 

Constitution as providing that elections 

for Members of the National Assembly 

and the Senate, the President, 

Members of County Assemblies and 

Governors “shall be held on the 

second Tuesday in August in every 

fifth year”. It was also noted that 

clause 9(1) of the Sixth Schedule 

to the Constitution stated that: “The 

first elections for the President, the 

National Assembly, the Senate, county 

assemblies and county governors 

under this Constitution shall be held 

at the same time, within sixty days 

after the dissolution of the National 

Assembly at the end of its term.” 

The applicant hence sought the 

advisory opinion of the Court on 

the question what, in the light of 

the above provisions and the other 

provisions of the Constitution of Kenya 


and the other continuing applicable 

provisions of the former Constitution, 

was the date for the next election for 

the aforesaid offices of President, 

Members of the National Assembly 

and the Senate, Members of County 

Assemblies and Governors. 

A preliminary objection was raised 

on the ground, among others, that 

the originalgrievance in the High 

Court Petition of April 19, 2011 

was a justiciable question, entailing 

constitutional interpretation belonging 

first and foremost, to the jurisdiction of 

the High Court; and that such a matter 

ought to be litigated and resolved 

in the High Court which decision in 

that respect would be subject to the 



Court. The contention, in its essence, 

was that the Supreme Court lacked 

jurisdiction at that stage. 

The court noted that while the Advisory- 

Opinion jurisdiction was exclusively 

entrusted to the Supreme Court, the 

Constitution did not provide that the 

Court while rendering an opinion 

may not interpret the Constitution. 

It followed that the Supreme Court 

could, while rendering an Advisory 

Opinion under Article 163(6) of the 

Constitution, undertake any necessary 

interpretation of the Constitution. It was 

opined that the application amounted 

to a request for an interpretation of 

Articles 101(1), 136(2) (a), 177 (1)(a) 

and 180(1) of the Constitution, and 

clause 9 of the Sixth Schedule to the 

Constitution hence the question placed 

before the court was not a normal 

one within the Advisory-Opinion 

jurisdiction as envisaged under Article 

163(6) of the Constitution. 

In the light of the several petitions 

pending before the High Court, the 

court found that the application was 

inappropriate. The cases sought the 

interpretation of the Constitution, with 

the object of determining the date 

of the next general election. Those 

petitions raised substantive issues that 

required a full hearing of the parties; 

and those matters were properly 

lodged and the parties involved had 

filed their pleadings and made claims 

to be resolved by the High Court. To 

allow the application, in the opinion 

of the court would constitute 

interference with due process, and 

with the rights of parties to be heard 

before a Court duly vested with 

jurisdiction and also constitute an 

impediment to the prospect of any 

appeal from the High Court up to 

the Supreme Court. The Court had 

to protect the jurisdiction entrusted to 

the High Court hence it consequently 

upheld the preliminary objections and 

directed the High Court to proceed 

to hear and determine the several 

petitions pending before it. 

12. Supreme Court’s Maiden 

Ruling 

The Supreme Court had jurisdiction to 

adopt previous proceedings relating to 

an application for an advisory opinion 

filed in the Court of Appeal sitting in 

its special jurisdiction as a Supreme 

Court on the question of nomination 

of persons for constitutional offices 

under the Constitution of Kenya 2010. 

In Re the Matter of Commission For The 

Implementation Of The Constitution 

[2011] Advisory Opinions Application 

1 of 2011 


MK Ibrahim & S Wanjala 

November 2, 2011 

On November 2, 2011 history was 

made when the Supreme Court of 

Kenya delivered its first ruling. The 

Supreme Court was faced with the 

question whether it had jurisdiction to 

adopt previous proceedings relating 

to an advisory application filed by the 

Commission on the Implementation 

of the Constitution relating to the 

question of nomination of persons 

for constitutional offices under the 

Constitution of Kenya 2010. 

The proceedings in this case had 

been before the Court of Appeal 

sitting as a Supreme Court and were 

adjourned indefinitely following the 

establishment of the Supreme Court 

and appointment of the Supreme 

Court Judges. At the time, the Court 

of Appeal had established interim 

Supreme Court Rules to guide its 

proceedings. The Supreme Court 

ruled that it would indeed adopt 

the proceedings including all its 

139


pleadings. In making the ruling, 

the Court observed that due to the 

urgency of the motion and the issues 

which had been raised, time was 

of the essence and the questions 

which were of national importance 

and interest could not await the 

establishment of the Supreme Court. 

It was the court’s view that it would 

be totally improper, irregular and 

unfair for the court to set aside all 

proceedings and record and to order 

the applicant to file a fresh application 

so that they could comply with the 

new Supreme Court Rules. The court 

observed that it would be prejudicial, 

costly and oppressive to the applicant 

(Commission on the Implementation 

of the Constitution) and even the 

interested parties who had invested 

heavily in terms of expenses and 

precious time in reaching the stage of 

proceedings that had been recorded. 

13. Appointments to Constitutional 

office & Gender balance 

The national values and principles of 

governance stated under Article 10 of 

the Constitution and the spirit of the 

National Accord and Reconciliation 

Act ought to have been borne in 

mind in making nominations to 

constitutional offices. 

Centre for Rights Education and 

Awareness & 7 others v Attorney 

General [2011] 


Justice Daniel Musinga 


Prior to the adoption of the 

promulgation of the new Constitution, 

the appointment of persons to a 

constitutional office was solely the 

prerogative of the president. That 

position has since changed. In the 

case above, the court determined 

whether the nomination of the 

candidates to the offices of Chief 

Justice, Attorney General, Director 

of Public Prosecutions and Controller 

of Budget by the President had been 

done after consultation between the 

President and the Prime Minister in 

accordance with the National Accord 

and Reconciliation Act. The Court ruled 

that it would be unconstitutional for the 

State to carry on with the process of 

approving and eventual appointment 

of persons to those offices based 

on the nominations made by the 

President on January 28, 2011. The 

court observed that it appeared that 

there was some consultation between 

the two principals but there had been 

no consensus or agreement between 

them. The consensus or agreement, the 

Judge noted, was not a requirement 

under the Constitution. However, that 

notwithstanding, he stated that “the 

values and principles stated under 

Article 10 of the Constitution and 

the spirit of the National Accord 

and Reconciliation Act ought to have 

been borne in mind in making the 

nominations. 

Similarly in the case of Federation of 

Women Lawyers Kenya (FIDA-K) & 5 

others v Attorney General & Another 

[2011] eKLR - issue of gender balance 

was raised in the appointment of 

persons to a constitutional office. The 

gender composition of the persons 

recommended for the position of the 

Supreme Court Judges elicited a petition 

filed by (FIDA-K). It was alleged that 

the Judicial Service Commission did 

not meet the mandatory requirement 

and threshold set by the Constitution. 

It was contended that with two 

women and five men in the Supreme 

Court, it meant that the percentage 

composition of the female gender 

was 28.57% whereas the percentage 

composition of the male gender was 

71.43%, thereby breaching Article 

27 of the Constitution which provided 

that not more than two thirds of the 

members of elective or appointive 

bodies shall be of the same gender. 

The court recognized that persons 

to be appointed to any judicial 

office have to be learned persons 

who have gone through vigorous 

learning and experience and that the 

criteria for appointment of the judicial 

officers were clearly spelt out in the 

Constitution and the provisions of 

the Judicial Service Act particularly 

Articles 166, 172 and Regulation 13 

respectively. The court took the view 

that Article 27 as a whole or in part 

did not address or impose a duty upon 

the Judicial Service Commission in 

the performance of its constitutional, 

statutory and administrative functions. 

It opined that Article 27 could only 

be sustained against the Government 

with specific complaints and after 

it had failed to take legislative and 

other measures or after inadequate 

mechanisms by the State. 

However, the court emphasized that 

judicial appointments should be based 

on the concept of equal opportunity, 

non-discrimination and above all 

must reflect the diversity of the people 

of Kenya taking into consideration 

the values, beliefs and experience 

brought about by an individual 

appointed for a particular position. It 

stressed that women are just as likely 

as men to possess attributes of good 

judges and experience. 

14. Forceful evictions and the 

Right to adequate housing 

Kenya lacked appropriate legal 

guidelines on eviction and 

displacement of people from informal 

settlements and even formal ones, 

particularly in instances where low 

income earners have to be displaced 

from public or private land. Evictions 

should not result in individuals being 

rendered homeless or vulnerable to 

the violation of other human rights and 

where those affected are unable to 

provide for themselves, the State party 

had to take all reasonable measures to 

ensure that adequate alternative 

housing resettlement or access to 

productive land was available 

Satrose Ayuma & 11 others V 

Registered Trustees of the Kenya 

Railways Staff 

Retirement Benefits Scheme & 2 others 

[2011] eKLR 


D. Musinga 

Petition 65 of 2010 


The year 2011 was marked by a 

number of petitions with respect to 

land, forceful evictions and right 

to adequate housing. For instance 

In Satrose Ayuma & 11 Others v 

Registered Trustees of the Kenya 

Railways Staff Retirement Benefits 

Scheme & 2 Others [2011] eKLR the 

petitioners, residents of Muthurwa 

estate went to court seeking an 

Injunction against forceful removal from 



the respondent. The court considered 

the competing rights between the 

tenants and the owners of the estate. 

The court observed that Kenya lacked 

appropriate legal guidelines on 

eviction and displacement of people 

from informal settlements and even 

formal ones, particularly in instances 

where low income earners have to be 

displaced from public or private land. 

The court further stated that while 

it appreciated the first respondents 

good intentions of developing modern 

residential and commercial properties 

on the suit land, subject to compliance 

with all the necessary contents and/ 

or approvals it recognized that the 

developments could not be undertaken 

while the tenants of Muthurwa estate 

remained in occupation of the 

dilapidated houses, thus holding that 

it could not overlook the fundamental 

rights of the tenants and that even 

though at some particular point in time 

the tenants would have to move out of 

the estate , when the that time came, 

the court opined, it ought to be done 

in a humane manner. 

Similarly In the case of Susan Waithera 

& 4 Others v the Town Clerk, Nairobi 

City Council and 2 others [2011] 

eKLR the court considered whether 

twenty four hours notice was adequate 

notice to vacate the premises, in this 

case an informal settlement, where 

the applicants had lived for over 

forty years. The court held that such 

notice was unreasonable and indeed 

unconstitutional and further observed 

that “eviction should not result in 

individuals being rendered homeless 

or vulnerable to the violation of other 

human rights and that where those 

affected are unable to provide for 

themselves, the State party had to 

take all reasonable measures to the 

maximum of its available resources 

to ensure that adequate alternative 

housing resettlement or access to 

productive land as the case may be 

was available.” 

15. Kenya’s Obligation to issue 

An arrest warrant against Sudan’s 

President 

The High Court had jurisdiction not 

only to issue a warrant of arrest 

against any person, irrespective of 


his status, if he has committed a crime 

under the Rome Statute, under the 

principle of universal jurisdiction, but 

also to enforce the warrants should the 

Registrar of the International Criminal 

Court issue one. 

International Commission of Jurists- 

Kenya v Attorney General & 2 others 

[2011] 


N.R.O. Ombija J. 


A warrant of arrest was issued against 

President Al Bashir, the President 

of Sudan on November 28, 2011. 

This followed an application by the 

International Commission of Jurists 

(ICJ)-Kenya which sought orders to 

the effect that a provisional warrant of 

arrest against President Bashir be 

issued and a subsequent order against 

the Minister of State for Provincial 

Administration to effect the said 

warrant of arrest. The application by 

ICJ was based on grounds that the 

Constitution of Kenya under Article 2 

(5) applies all treaties and conventions 

that have been ratified by Kenya to be 

part of the Laws of Kenya; that Kenya 

ratified the Rome Statute on 15th 

March 2005 and followed up on that 

act by domesticating the Statute vide 

the International Crimes Act of 2008. 

It was argued that Article 3 the 

Constitution of Kenya, 2010 put an 

obligation on every person to respect, 

uphold and defend the Constitution. 

The application also stated that there 

were two outstanding warrants of 

arrest against President Al Bashir 

issued by the International Criminal 

Court on 4th March, 2009 and 12th 

July 2010 respectively and there were 

also two requests for co-operation in 

the arrest and surrender of President 

Al Bashir issued by the International 

Criminal Court on 6th March, 2009 

and 21st July, 2010 to States that 

were parties to the Rome Statute. 

The court, upon applying various 

International Law principles held 

that the High Court had jurisdiction 

not only to issue a warrant of arrest 

against any person, irrespective of 

his status, if he has committed a crime 

under the Rome Statute, under the 

principle of universal jurisdiction, but 

also to enforce the warrants should the 

Registrar of the International Criminal 

Court issue one. 

16. Constitutionality of the Vetting 

of Judges and Magistrates Act, 

2011 

The Vetting of Judges and Magistrates 

Act, 2011 was sanctioned by the new 

Constitution and its provisions had not 

violated the doctrines of separation of 

powers and the independence of the 

Judiciary. The Act did not threaten the 

constitutional rights of judges and 

magistrates. 

Dennis Mogambi Mong’are V Attorney 

General & 3 Others [2011] eKLR 

Petition 146 of 2011 


Mumbi Ngugi, DS Majanja & GV 

Odunga 


In Dennis Mogambi Mong’are v 


eKLR the court considered whether 

by permitting parliament to enact 

legislation for the removal of judges, 

the Sixth Schedule to the Constitution 

was unconstitutional. The court also 

considered whether both the Schedule 

and certain sections of the Vetting of 

Judges and Magistrates Act were null 

and void on the allegation that they 

violated the constitutional principles 

of separation of powers and the 

independence of the Judiciary. The 

court held that the Vetting of Judges 

and Magistrates Act, 2011 (VJM 

Act) was sanctioned by the new 

Constitution and its provisions had not 

violated the doctrines of separation 

of powers and the independence 

of the judiciary and that it had not 

threatened the constitutional rights 

of judges and magistrates. While 

admitting that the vetting process 

may have caused some anxiety, the 

Court observed that the process would 

have helped to underpin the values 

of accountability and integrity in the 

Judiciary and restore it to its respected 

place as the arbiter of justice in 

Kenya. 

141


17. Married Daughters’ Right to 

Inherit 

Article 60 (f) of the Constitution 

provides for the elimination of gender 

discrimination in respect of land. The 

marital status of a daughter is not a 

basis to deny her the right to inherit 

her father’s estate. 

Samson Kiogora Rukunga V Zipporah 

Gaiti Rukunga [2011] eKLR 

Succession Cause 308 of 1994 


Kasango J. 


Married daughters have a right to 

inherit their parents’ estate under 

Article 60 (f) of the current Constitution. 

The brief facts of the case were that 

the objector, Consolata Ntibuka had 

challenged her brother’s decision 

to evict her from a piece of land 

left behind by her late father on the 

ground that she was married. Justice 

Kasango in her ruling stated “... 

In my view, the law as it is now, it 

matters not, whether a daughter of 

the deceased is married or not when it 

comes to consideration of whether she 

is entitled to inherit her parent’s estate. 

Article 60 (f) of the Constitution of 

Kenya 2010 provides for elimination 

of gender discrimination in respect 

of land. Marital status of a daughter 

is not a basis to deny her the right to 

inherit her father’s estate…’’. 

18. Right of Inheritance in Woman 

to Woman Marriage 

Contemporary social systems in the 

shape of current practices in the 

domain of family among the Nandi 

were to be regarded as aspects of 

culture which would rightly claim 

protection under Article 11 (1) of the 

Constitution of Kenya 2010. 

Monica Jesang Katam V Jackson 

Chepkwony & another [2011] 

Succession Cause 212 of 2010 


J. B. Ojwang J. 

June 17, 2011 

In Monica Jesang Katam v 

Jackson Chepkwony & Another 

[2011] eKLR the High Court affirmed 

the right of Inheritance in woman to 

woman marriage. Monica Jesang had 

claimed the right of inheritance by 

affirming that she was a beneficiary 

of the estate of Cherotich Kimong’ony 

Kibserea (deceased) by virtue of 

having been married to the deceased 

in a woman to woman marriage 

under the Nandi tradition. The High 

Court at Mombasa in deciding 

the case upheld customary law by 

observing that contemporary social 

systems for instance, in the shape of 

current practices in the domain of 

family among the Nandi were to be 

regarded as aspects of culture which 

would rightly claim protection under 

Article 11 (1) of the Constitution of 

Kenya 2010. 

The Constitution under the Article 

recognized culture as the foundation 

of the nation and as the cumulative 

civilization of the Kenyan people and 

the nation. 

19. Form One Quota System 

Curbing Private Schools' 

Dominance in National Secondary 

Schools not Discriminatory 

Not all distinctions resulting in 

differential treatment could properly 

be said to violate equality rights as 

envisaged under the Constitution. The 

appropriateperspective from which to 

analyze a claim of discrimination had 

both a subjective and an objective 

component. 

John Kabui Mwai and 3 Others V 

Kenya National Examination Council 

and 2 others 

(2011) 



J.Gacheche, G. M. Dulu, A. O. 

Muchelule 

September, 2011 

On January 6, 2011 the Permanent 

Secretary in the Ministry of Education 

issued guidelines for form one selection 

for the year 2011 which indicated that 

to determine the number of candidates 

to be placed in national schools from 

public or private institutions of a 

particular district a certain formula 

would be used. Using the formula, it 

was announced that out of the 

4,517 available spaces in national 

schools, 1,224 would be availed 

to private schools. The applicants 

were aggrieved by the directive 

and consequently filed a Petition on 

behalf of the Kenya Private Schools 

Association to challenge the 2nd 

respondent’s policy guidelines 

regarding the selection of candidates 

to national schools. The petition, 

brought under Articles 3, 19, 20, 

21, 22, 23, 27 and 43 (f) of the 

Constitution, sought to have the policy 

found to be discriminatory against 

candidates from private schools and 

therefore unconstitutional. 

While arriving at its decision, the 

court recognized that under Article 

10 (2) (b) of the Constitution there 

were national values and principles 

of governance that had to be borne 

in mind which included equality, 

human rights, non-discrimination 

and protection of the marginalized. 

Under Article 20(4) (a), the court 

was obligated, in interpreting the Bill 

of Rights, to promote the values that 

underlie an open and democratic 

society based on human dignity, 

equality, equity and freedom. Article 

21 (3) enjoined the court to address 

the needs of the vulnerable groups 

within the society, including children. 

In the courts view, the inclusion of 

economic, social and cultural rights in 

the Constitution aimed at advancing 

the socio-economic needs of the 

people of Kenya, including those 

who were poor, in order to uplift 

their human dignity. The protection 

of these rights was an indication 

of the fact that the Constitution’s 

transformative agenda looked beyond 

merely guaranteeing abstract equality. 

According to the court not all 

distinctions resulting in differential 

treatment could properly be said to 

violate equality rights as envisaged 

under the Constitution. The appropriate 

perspective from which to analyze a 

claim of discrimination had both a 

subjective and an objective 

component. 

A comparison between different 

groups was necessary to discern the 

differential effect of policy and to assist 

the court in properly characterizing 

and identifying the groups that were 



relevant to Article 27. Accordingly, 

it was only by examining the larger 

context that a court could determine 

whether differential treatment resulted 

in equality or whether, on the other 

hand, it would be identical treatment 

which would in the particular 

context result in inequality or foster 

disadvantage. 

The court referred to Willis –Vs- The 

United Kingdom, No. 36042/97, 

ECHR 2002 – IV and Okpisz –Vs- 

Germany, No. 59140/00, where 

the European Court of Human Rights 

observed that in certain circumstances 

a failure to attempt to correct inequality 

through different treatment may in 

itself give rise to a breach of Article 14 

(nondiscrimination) of the European 

Convention on Human Rights. 

The Court hence found the policy 

directive not discriminatory to the 

applicants. 

20. Public Participation in the Law 

making Process 

Ladama Olekina v Attorney General 

& Another [2011]eKLR 

High Court at Nairobi, 

M.A Ang’awa J. 

September 9, 2011. 

Article 118 of the Constitution provides 

that Parliament shall facilitate public 

participation and involvement in 

the legislative and other business of 

Parliament and its committees. 

The petition challenged the removal 

from office of the director of the Kenya 

Anticorruption Commission (KACC) 

together with his four deputies by 

virtue of the Ethics and Anti-Corruption 

Act, 2011. The petitioner invoked 

the right to public participation 

in parliamentary processes duly 

recognized under the new Constitution. 

The Ethics and Anti-corruption Bill 

was published on August 19 2011. 

Parliament had reduced the period of 

publication of the Bill from 14 days to 

4 days, thereby allegedly denying the 

petitioner the right to participate in the 

legislation making process. 

The amendment of the Ethics and 

Anti-Corruption Bill which touched on 

Section 34(1) forced the five KACC 

officers to leave statutory employment 


of the former commission. 

The petitioner argued that amendment 

of this provision by Parliament was not 

in line with the spirit of the original 

intention of the Anti-Corruption and 

Economic Crimes Act, 2003 and 

the Constitution of Kenya. He also 

submitted that Parliament had failed to 

respect the right of public participation 

in its proceedings. He questioned the 

removal of the five officers by way of 

enactment of the section 34(1) against 

the provisions of section 8 of the Anti- 

Corruption and Economic Crimes Act, 

2003 which dealt with the removal of 

the said officers - that is solely through 

a Tribunal. The petitioner sought ex 

parte injunctive orders pending the 

substantive hearing of the petition. 

The court was satisfied prima facie 

with the petitioner’s argument and 

held that the issues raised were of 

monumental, national and of public 

interest and granted orders ex parte 

staying the effect of the impugned 

amendment pending hearing inter 

partes. 

21. Courts’ Dilemma in Bail 

Applications for Serious Offences 

The new Constitution (Article 49(1)) 

does not exclude any class of suspects 

from the right to be released on bail. 

There seem to be emerging two 

different approaches by the courts on 

the issue of whether the seriousness 

of the crime with which a suspect is 

charged should be a consideration in 

an application for bail and if so, how 

much weight should be given to it. 

Aboud Rogo Mohamed & another v 

Republic [2011]eKLR 


Justice F.A. Ochieng 

February, 2011 

The High Court has reiterated that 

where a crime suspect seeks to be 

released on bail or bond pending 

his trial, the primary consideration 

is whether he would voluntarily and 

readily present himself to the trial court, 

and each case is to be determined in 

its own circumstances. However, in 

the context of the new Constitution, 

there seem to be emerging two 

different approaches by the courts 

on the issue whether the seriousness 

of the crime with which a suspect is 

charged should be a consideration 

and if so, how much weight should 

be given to it. 

Previously, a strong link had been 

established between the seriousness 

of the offence and the entitlement 

of the suspect to bail or bond. This 

connection was based on section 

72(5) of the repealed Constitution 

which expressly denied bail or bond 

to persons arrested in connection 

with offences punishable by death. 

Accordingly, section 123 of the 

Criminal Procedure Code went on to 

provide for the exclusion from bond 

and bail of persons charged with the 

offences of murder, treason, robbery 

with violence, attempted robbery with 

violence and curiously, ‘any drug 

related offence’, 

though the latter offences may not 

carry a death sentence. However, 

the new Constitution (Article 49(1)) 

does not exclude any class of suspects 

from the right to be released on bail. It 

gives all accused persons the right to 

the presumption of innocence and the 

right to be released on bond or bail 

pending trial with the court having the 

discretion to deny bail where there 

are ‘compelling reasons’. 

In interpreting the new Constitution, is 

Kenya’s criminal legal system to make 

a sharp departure from this historical 

link and what significance, if any, is to 

be given to the gravity of the offence 

charged in considering application 

for bail? Recent decisions of the 

High Court highlight two different 

approaches. 

In Aboud Rogo Mohamed & another v 

Republic [2011] eKLR, the High Court 

(Justice F. 

Ochieng) considered an application 

for bail pending trial filed by two 

persons charged with engaging in 

organized crime by being members of 

Al-Shabaab, an outlawed organized 

criminal group, contrary to section 

3(3) and 4(1) of the Prevention of 

Organized Crimes Act, 2010. The 

offence carries a maximum term of 

fifteen years imprisonment or a fine 

not exceeding Kshs. 5 million or 

both the fine and the imprisonment. 

143


However, if the commission of the 

offence results in the death of a 

person, a convicted person would be 

liable to life imprisonment. Reiterating 

the applicant's constitutional right to a 

fair trial which includes the right to be 

presumed innocent until the contrary is 

proved, the High Court refrained from 

making any conclusions about the 

guilt or innocence of the applicants. 

The only question that the High Court 

was concerned was whether there 

were compelling reasons not to 

release the applicants on bail. 

In considering this issue, the Court 

referred to its previous decisions. In 

Danson Mgunya & another v Republic 

[2011] eKLR (Justice M. Ibrahim), 

while releasing two murder suspects 

on bond, the Court had observed that 

the Constitution was to be interpreted 

in a manner that enhances rather than 

curtails the fundamental rights of the 

individual and that each case is to be 

decided on its own facts. 

Earlier in January 2010, before the 

promulgation of the new Constitution, 

in the case of Republic v Muneer 

Harron Ismail & 4 others [2010] eKLR 

which involved a charge of being in 

possession of a large cache of firearms, 

the Court (Justice M. Warsame) 

released the principal suspect on ‘strict 

and stringent conditions’ and noted 

that one paramount consideration 

would be whether the release of 

the suspect would endanger public 

security and public interest. 

The different approach is presented 

by Justice E. Emukule when in October 

2010 he declined an application for 

bail pending trial by a person charged 

with murder - Republic v Moses Kenu 

Ole Pemba [2010]eKLR. The Judge 

recalled that the repealed Constitution 

had ruled out bail for such offences 

and under section 123 of the Criminal 

Procedure Code, the courts were still 

prohibited from granting bond or 

bail in such cases. In fact, to these 

classes of offences, the Judge would 

add ‘persons charged with terrorism 

or offences of mass killings’ because 

the gravity of the offence was a 

compelling reason for not releasing 

the accused on bail. Except in cases 

involving child suspects who are 

exempted from the death penalty, the 

Judge observed that there were also 

subsidiary reasons for denying bail. 

In cases of murder, for instance, such 

reasons would include the 

consideration that ‘society does not 

condone the taking away of human 

life and the pleasure of mixing with the 

accused in the streets. Such a person 

may well become a victim of his own 

freedom and release may lead to 

serious breaches of the peace.’ 

22. Proper Reasoning needed in 

writs for Nolle Prosequi 

A subordinate court could properly 

make an inquiry under the Constitution 

so as to satisfy itself whether the 

exercise of the powers of entering a 

writ of nolle prosequi conferred on the 

Director of Public Prosecutions under 

Article 157 (4) (6) and (9) of the 

Constitution of Kenya were consonant 

to the provisions of the Constitution. 

Republic v Enock Wekesa & another 

[2010] eKLR 

High Court at Kitale 

M. Koome 

November 19, 2010 

Two accused persons had been 

charged before the Magistrate’s court 

with three counts of robbery with 

violence contrary to section 296 (2) of 

the Penal Code. At the commencement 

of the trial the state presented a writ 

of nolle prosequi to discontinue the 

criminal proceedings against the two 

accused persons. This writ was issued 

in exercise of the powers conferred on 

the Attorney General by Article 157 

(4) (6) and (9) of the Constitution of 

Kenya. The writ was dismissed by the 

magistrate prompting the application 

for revision. 

In his submissions Mr. Onderi stated 

that the Magistrate’s court had no 

powers under the Constitution to 

question the writ of nolle prosequi. He 

claimed that the Attorney General was 

authorized to enter nolle prosequi and 

was not bound to give any reasons 

to the trial court. In this regard 

counsel made reference to the case 

of Mwangi And Seven Others 

Vs Atornney General [2002]KLR 

where a three judge bench held, 

among others, that the High Court had 

specifically been given jurisdiction to 

hear the applications made by the 

Attorney General and therefore only 

the High Court could question the 

functions of the Attorney General. 

The High Court identified with the 

Magistrate’s court finding that under 

the new Constitution, the state had 

to submit reasons or the court’s 

consideration and that the Constitution 

superseded those of the Criminal 

Procedure Code. This was trite law 

and was basic as provided for by 

Article 2 of the Constitution of Kenya 

2010. 

The High Court was guided by Article 

157 (6) of the new Constitution 

which provides that the Director for 

Public Prosecutions may at any stage 

discontinue criminal proceedings but 

in doing so, he should have regard 

“...to the public interest, the interest of 

the administration of justice and the 

need to prevent and avoid abuse of 

the legal process.” 

The court noted the general principle 

of interpretation of statute was to give 

overarching objective which was 

meant by a particular legislation. 

The Constitution recognized as 

fundamental respect of human rights, 

equality before the law and other 

values. The protection of human rights 

in the High Court’s view included 

those of the accused person(s) and the 

complainant(s). This was in line with 

provisions of Article 159 (2) of the 

new Constitution which provided that 

in exercise of judicial authority, the 

courts and tribunals were to be guided 

by set principles. These principles in 

part were; that justice was to be done 

to all, irrespective of status, that justice 

would not be delayed, and that justice 

would be administered without undue 

regard to procedural technicalities. 

Although the trial magistrate was 

faulted for making a Constitutional 

interpretation and questioning the 

powers granted to the learned State 

Counsel to enter the writ of nolle 

Prosequi it was the High Court’s 

understanding that the Magistrate 

made an inquiry which could now 

be made under the Constitution so 



as to satisfy herself on whether the 

powers in the writ of nolle prosequi 

were consonant to the provisions of 

the constitution. The magistrate while 

exercising judicial powers had to 

adhere to the principles set out in the 

Constitution. 

23. Jurisdiction of the ICC 

An international tribunal such as the 

ICC was well recognized to have 

compétence de la compétence – an 

initial capacity to determine whether 

or not it had the jurisdiction to hear 

and determine a case coming up 

before it. 

Joseph Kimani Gathungu v The 

Attorney General & another eKLR 

High Court of Kenya at Mombasa 

J B Ojwang J 


The application was an indictment 

of the launched operations of the 

International Criminal Court (ICC) in 

Kenya, in the aftermath of an outbreak 

of violence and consequential 

destruction of human life, following 

the general elections of December, 

2007. 

The applicant was aggrieved by the 

involvement of the ICC and hence 

sought to challenge the legality of 

the ICC’s activities in the country. 

It was the applicant’s case that the 

involvement of the ICC in the affairs of 

Kenya in general, and in particular the 

investigations and possible 

prosecutions of the perpetrators of the 

post-2007 “generalelections violence” 

violated Articles 1,2,3,23,159-170 

(inclusive), 258 and 259 of the 

Constitution of Kenya. When the case 

came up for hearing, counsel for 2nd 

Interested Party raised a preliminary 

objection on the ground that the High 

Court had no jurisdiction to hear and 

determine the cause. The issue of the 

role of international law in the context 

of Kenya’s new Constitution was also 

raised. 

The court found that an international 

tribunal such as the ICC was well 

recognized to have compétence de 

la compétence – an initial capacity 


to determine whether or not it had the 

jurisdiction to hear and determine a 

case coming up before it. The ICC, 

acting within the terms of the Rome 

Statute, had already determined that 

it indeed had jurisdiction over the 

issue. The ICC had even gone further 

to determine the second jurisdictional 

question: whether the special facts 

of post-election violence in Kenya 

(2007-2008) rendered the matter 

justiciable before that Court. The ICC 

had determined that, on the facts, it 

had jurisdiction to investigate, hear 

and determine the cases 

arising from the post-election violence. 

The applicant’s challenge to the 

operations of the ICC had no legal 

foundation, apart from invoking a 

jurisdiction which was not available. 

The matter raised by the applicant was 

hence not justiciable. 

24. Committal to Civil Jail Goes 

against Civil and Human Rights 

There were several methods 

of enforcing a civil debt such as 

attachment of property. An order 

of committal to civil jail was meant 

to punish, humiliate and subject the 

debtor to shame and indignity due to 

failure to pay a civil debt. This was 

against the International Covenant on 

Civil and Political Rights 

In Re the Matter of Zipporah Wambui 

Mathara [2010] eKLR 

High court at Nairobi 

M. K. Koome J. 

September 24, 2010 

Imprisonment in civil jail goes against 

the International Covenant on civil 

and political rights that guarantee 

parties basic freedoms of movement 

and of pursuing economic social and 

cultural development. Lady Justice 

Martha Koome made the orders in 

an application for stay of execution of 

order of committal to civil jail pending 

bankruptcy proceedings by Zipporah 

Wambui Mathara. 

Mrs. Mathara’s advocate submitted 

that under Article 2(6) of the 

Constitution of Kenya 2010, any 

Treaty or Convention ratified by 

Kenya formed part of the Laws of 

Kenya under the Constitution. It was 

contended that that provision imported 

the Treaties and Conventions that 

Kenya ratified, especially the United 

Nations International Covenant on 

Civil and Political Rights which Kenya 

ratified on 1st May 1972. According 

to Article 

11 of that Convention, no one could 

be imprisoned merely on the ground 

of the inability to fulfill a contractual 

obligation. It was further submitted 

that due to the hierarchy of the 

laws, the Constitution was supreme 

therefore the Civil Procedure Act that 

provided for committal to civil jail as a 

means of forcing a debtor to satisfy a 

contractual obligation was against 

the spirit of the Constitution and, 

International Human Rights Law 

that protected and promoted basic 

freedoms. 

On the application of the International 

law, Mr. Maina’s counsel urged the 

court to consider the Civil Procedure 

Act which made the provisions for 

recovery of money and execution 

by way of committal of the judgment 

debtor to civil jail as one of the means 

of enforcing a judgment. 

The court concurred that by virtue 

of Section 2(6) of the Constitution of 

Kenya 2010, International Treaties, 

and Conventions that Kenya had 

ratified, were imported as part of 

the sources of the Kenyan Law. Thus 

the provision of Article 11 of the 

International Covenant on Civil and 

Political Rights which Kenya had 

ratified was part of the Kenyan law. 

The Court noted that the covenant 

made provisions for the promotion 

and protection of human rights 

and recognized that individuals 

were entitled to basic freedoms to 

seek ways and means of bettering 

themselves. It therefore meant that a 

party who was deprived of their basic 

freedom by way of enforcement of a 

civil debt through imprisonment, their 

ability to move and even seek ways 

and means of repaying the debt was 

also curtailed. 

The court noted that there were 

several methods of enforcing a civil 

145


debt such as attachment of property. 

An order of imprisonment in civil 

jail on the other hand was meant 

to punish, humiliate and subject the 

debtor to shame and indignity due to 

failure to pay a civil debt. The court 

opined that was indeed against the 

International Covenant on Civil and 

Political Rights that guaranteed parties 

basic freedoms of movement and of 

pursuing economic social and cultural 

development. 



Introduction 

This is an appeal by EMMANUEL 

MWAKISHA MJAWASI and 

748 others (“the Appellants”), 

represented by Mr. Mutembei 

of Gichuru & Co., Advocates, against 

the Ruling of the First Instance Division 

of the Court in Reference No.2 of 

2010. 

The Respondent is the REPUBLIC 

OF KENYA, represented by the 

Honourable Attorney General of the 

REPUBLIC OF KENYA. 

I. Background to the Case 

The Appellants are Kenyan citizens 

and former employees of the defunct 

East African Community (EAC) that 

collapsed in 1977. 

Subsequent to the dissolution of 

the defunct EAC in 1977, the 

Partner States executed a Mediation 

Agreement on 14 May, 1984, for the 

division of the assets and liabilities of 

the defunct Community. Under that 

Mediation Agreement, each Partner 

State undertook the responsibility to 


IN THE EAST AFRICAN COURT OF JUSTICE 

APPELLATE DIVISION AT ARUSHA 

APPEAL NO.4 OF 2011 

[Coram: H. R. Nsekela P; P. K. Tunoi VP; 

E. R. Kayitesi, L. Nzosaba and J. M. Ogoola, JJA] 

pay out of its share of the defunct 

Community’s assets, the pensions and 

other terminal benefits of its respective 

nationals who had been employed 

by the EAC and its institutions prior 

to the division date of the assets. The 

division dates were different for each 

of the existing institutions as indicated 

in article 1 (i) of the Mediation 

Agreement. However, the latest such 

division date was 30 June 1977. 

Article 10.05 of the Mediation 

Agreement provided as follows: 

“Each State shall: 

BETWEEN 

EMMANUEL MWAKISHA MJAWASI AND 748 OTHERS……….APPELLANTS 

AND 

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA………. RESPONDENT 

[Appeal from the Ruling of the First Instance Division of 

the East African Court of Justice at Arusha by J. Busingye, 

PJ; M. S. Arach-Amoko, DPJ; and J. J. Mkwawa, J. dated 29th September, 

2011 in Reference No.2 of 201O] 

JUDGMENT OF THE COURT (27 April 2012) 

(a) Pay its nationals employed 

by Corporations or GFS and 

retired from active services by 

the division date the pensions 

and other benefits due to 

them on account of such 

employment. 

(b) Make provision for the 

pension rights and entitlement 

to other benefit accrued as of 

the division date in favour of 

its nationals in active service 

with such Corporations or 

GFS at that date.” 

Interestingly, the Kenyan Government 

devised a somewhat novel way of 

dealing with the situation which arose 

as the consequence of the Mediation 

Agreement. In this regard, the exemployees 

who were still in active 

service on the division date were 

given the option to take their EAC 

pension directly; or to join the Kenyan 

Public Service, including its Parastatals 

and State corporations. Through this 

latter option, many ex-employees 

of the defunct EAC were absorbed 

into the employ of the Kenyan Public 

Service. Conversely, those who took 

the option to retire were paid at once 

all their benefits, including additional 

pensions on the basis that their offices 

had been abolished in the EAC. 

It was the Appellants’ case before 

us and in the Court below that even 

though they were absorbed into the 

Kenyan Public Service and other 

State agencies and were eventually 

paid their terminal dues by those 

organizations, they have not, however, 

147


been paid their corresponding dues 

for the services they rendered to the 

East African Community; yet they lost 

their employment at the EAC pursuant 

to the abolition of their offices. 

The Appellants, therefore, averred 

that they are entitled to be paid by 

the Kenyan Government their EAC 

terminal benefits in accordance with 

their individual records for the services 

they rendered to the defunct East 

African Community before the division 

date -- including their pensions, 

additional pensions, provident fund, 

severance allowances, gratuity, 

redundancy, payment in lieu of notice, 

repatriation expenses, loss of office, 

benefits outstanding, accumulated 

leave, salary in lieu of notice, real 

value and compound interest until full 

payment. 

It is common knowledge that the 

Appellants instituted two suits in the 

High Court of Kenya, which were 

later consolidated. The Appellants 

later petitioned the Kenya National 

Assembly, but also, in vain. It is on 

the basis of this background that the 

Appellants filed the Reference No.2 

of 2010, before the First Instance 

Division of the East African Court of 

Justice (EACJ). 

II. The Reference 

It is to be recalled that in their 

Reference in the Court below, the 

Applicants (now Appellants) had 

prayed for declarations that the 

Respondent’s refusal, neglect and/or 

failure to pay the Applicants their EAC 

terminal benefits constitutes a breach 

of Article 6(d) and Article 7(2) of the 

EAC Treaty. 

They also prayed for an order to 

compel the Respondent to pay their 

EAC terminal benefits including, but 

not limited to, one month’s salary in 

lieu of notice, loss of office benefits, 

pension emoluments, outstanding/ 

accumulated leave, repatriation 

expenses, real value and 7% 

compound interest until payment in 

full. 

III. Respondent’s Response 

The Respondent opposed the 

Reference in the Court below. He 

raised the following objections which 

were agreed as issues by both parties 

during the Scheduling Conference, 

namely: 

(1)The Court lacks the jurisdiction 

to hear and determine the 

Reference; 

(2)The matter is res judicata; 

(3)The Reference is inadmissible 

in this Court since local 

remedies have not been 

exhausted. 

Subsequently, however, the 

Respondent unilaterally added the 

following issues in the Respondent's 

written submissions after the hearing: 

(1)The East African Community 

Treaty of 2000 cannot be 

applied retroactively; 

(2)The Claimants’ statements are 

mere allegations without any 

proof of how the Treaty or 

the various Conventions listed 

therein have been infringed 

by the Respondent or that the 

Respondent is a signatory to 

them; 

(3)The objectives of the Treaty 

under its Article 5 do not 

provide for the redress of 

previous injustices, if any, to 

entitle the Claimants to rely on 

Articles 6 and 7 of the EAC 

Treaty. 

IV. Ruling of the First Instance 

Division 

The First Instance Division considered 

all the above six preliminary 

objections, including those which 

had not been agreed upon by the 

Parties at the Scheduling Conference, 

and concluded with the decision that: 

(1)The Court has jurisdiction to 

hear the Reference; 

(2)The Reference is not barred 

by the doctrine of res judicata 

nor by the rule of exhaustion 

of local remedies; 

(3)The Court cannot entertain 

the Reference on account of 

no retrospective application 

of the Treaty; 

(4)The Reference is accordingly 

struck out with costs to the 

Respondent. 

V. The Grounds of Appeal 

Aggrieved by the above decision of the 

First Instance Division, the Appellants 

lodged an appeal to this Appellate 

Division based on 8 grounds; but at 

its Scheduling Conference held on 16 

March, 2012, this Appellate Division 

agreed with the Parties to reduce the 

grounds of appeal from eight to only 

three, namely: 

(1)Whether the learned Judges 

of the First Instance Division 

erred in law in finding that 

the East African Community 

did not have retroactive 

application in respect of the 

present case; 

(2)Whether the learned Judges 

of the First Instance Division 

erred in law when they made 

findings of fact with finality at 

the preliminary stage without 

a full trial; 

(3)Whether there was 

procedural irregularity in 

entertaining and determining 

the issue of retroactivity with 

finality without affording the 

Appellants notice for and an 

opportunity to present their 

submissions. 

Ground 1: Whether the EAC Treaty 

has retroactive application for 

the instant case? 

On this point, the Court below made 

the following finding: 

“it is clear that the Claimants became 

aware of the acts/omissions of the 

Respondent complained of by 1998, 

when they filed the suit in the Kenya 

High Court. That was well before the 

Treaty entered into force in 2000. 

There is no contrary intention from 



the reading of the Treaty that it was 

to apply retrospectively and none has 

been established by the Claimants.” 

That finding was contested by the 

Appellants with the argument that their 

case was within the scope of the EAC 

Treaty, since the time of their cause 

of action was not in the year 1998 

as the Court below found. Counsel 

for the Appellants contended that 

the issue of non retroactivity of the 

EAC Treaty was not relevant to the 

circumstances of this case. He added 

that the Court below did not give the 

reasons why it chose the year 1998 

as its reference point, in lieu of the 

years 2004 or 2009. He affirmed 

that the issue of non-payment of 

terminal benefits by the Respondent 

to the ex-employees for services they 

rendered to the defunct Community, 

was raised in Kenya's National 

Assembly on 5 August, 2009, and 

that the Respondent admitted to 

holding monies for payment to the 

Appellants and that non-payment was 

due to the fact that the beneficiaries 

could not be found or traced. 

Learned Counsel concluded that 

the admission of debt by Kenya, 

constituted an acknowledgement of 

the Applicants' debt and reactivated 

their cause of action in this matter. 

The Respondent contended the 

opposite position. He averred that the 

EAC Treaty 2000 was not applicable 

to the instant case by virtue of the 

principle of non retroactivity. He 

recalled the collapse of the former 

EAC (as it is briefly narrated in the 

background of this case). He stated 

that the employment of the Appellants 

ceased to exist on the division date of 

each institution and that no contrary 

intention by the founders of the 

new Community, has been shown 

by the Appellants. He concluded 

that, in the absence of any such 

contrary intention for its continuance, 

the current Treaty cannot operate 

retrospectively. Moreover, since this 

Court is a creation of the EAC Treaty 

of 2000, it cannot be seen to interpret 

and apply the EAC Treaty of 2000 to 

acts or facts that took place in 1977. 


The principle of non retroactivity is a 

well known doctrine. It is generally 

applied in the jurisprudence of Public 

International Law. It constitutes a 

limit on the scope of a Treaty ratione 

temporis [see” O. DORR and K 

SCHMALENHACK (eds)], Vienna 

Convention on the Law of Treaties, 

Springes – Verlag Berlin Heldelberg 

2012; A. BUYSE: “A Lifeline in Time- 

Non-retroactivity and Continuing 

Violations under the ECHR” In Nordic 

Journal of International Law, 75: 

63-88, 2006, Pr Dr J. WOUTERS, 

Dr D. COPPENS, D. GERAETS: 

“The Influence of General Principles 

of International Law” http://www. 

kuleuven.be . 

When a treaty is not retroactive, the 

consequence is that it cannot apply 

to any act or fact which took place 

or any situation which ceased to exist 

before the date of its entry into force. 

Retroactivity of a treaty may derive 

either explicitly from the provisions of 

the treaty itself, or it may implicitly be 

deduced from its interpretation. 

Upon closely and carefully reading 

the EAC Treaty, we did not find any 

provisions explicitly stating that the 

Treaty may be applied retroactively. 

We, then, turned to its interpretation 

in a bid to determine whether the 

framers of the Treaty had any intention 

to make the EAC Treaty retroactive. 

The performance of this Court’s duty 

in this regard, is guided by the Vienna 

Convention on the Law of Treaties. 

Article 2 (1) (a) of that Convention 

defines the instruments/treaties to 

which the Convention applies. The 

Article states as follows: 

“For the purposes of the present 

Convention: 

(a) ‘treaty’ means an international 

agreement concluded 

between States in written form 

and governed by international 

law, whether embodied in a 

single instrument or in two 

or more related instruments 

and whatever its particular 

designation;” 

On the specific issue of non 

retroactivity, Article 28 of the Vienna 

Convention provides as follows: 

“Unless a different intention appears 

from the treaty or is otherwise 

established, its provisions do not 

bind a party in relation to any act or 

fact which took place or, any situation 

which ceased to exist before the date 

of the entry into force of the treaty with 

respect to that party.” 

That Article helps in establishing the 

intention of the parties where this 

intention is not explicitly expressed in 

a particular Treaty. Such is the case 

with the EAC Treaty in the instant case. 

This Court, therefore, needed to 

interpret the Treaty in order to establish 

whether the EAC founders manifested 

any intention to make their Treaty 

retroactive. Moreover, further 

guidance in this lies in Article 31 

of the Vienna Convention which 

provides, inter alia, as follows: 

“1. A treaty shall be interpreted 

in good faith in accordance 

with the ordinary meaning 

to be given to the terms of 

the treaty in their context and 

in the light of its object and 

purpose. 

2. The context for the purpose of 

the interpretation of a treaty 

shall comprise, in addition to 

the text, including its preamble 

and annexes: 

(1)any agreement relating to 

the treaty which was made 

between all the parties in 

connection with the conclusion 

of the treaty; 

(2)any instrument which was 

made by one or more parties 

in connection with the 

conclusion of the treaty and 

accepted by other parties as 

an instrument related to the 

treaty…” 

Consistent with the above guidelines, 

this Court interpreted the provisions 

of the EAC Treaty: it placed them 

against the objectives and purposes 

149


of the Treaty. We find that the intention 

of the framers of the new EAC Treaty 

of 2000 was to turn the page of the 

past and to build a new project for 

the future. 

The context of the creation of the new 

EAC Community confirms that finding. 

The Preamble to the EAC Treaty 

leaves no doubt about the objective 

of putting a definite end to the defunct 

Community. The fourth paragraph of 

the Preamble clearly states that: 

“AND WHEREAS in 1977 the Treaty for 

East African Co-operation establishing 

the East African Community was 

officially dissolved,…“ [emphasis 

added] 

The fifth paragraph of the same 

Preamble likewise underscores the fact 

of that “dissolution”, thus: 

“AND WHEREAS upon the dissolution 

of the East African Community the said 

countries signed … the Community 

Mediation Agreement 1984 for the 

division of the assets and liabilities of 

the former East African Community.” 

[emphasis added] 

From the preambular paragraphs 

quoted above, it is patently clear that 

far from manifesting any intention to 

resurrect the old Community or its 

Treaty, the framers of the new Treaty 

made their intention abundantly 

obvious: namely, to officially dissolve 

the defunct Community and then, to 

divide and share out the assets and 

liabilities of the defunct Community 

among the three Partner States of 

the old Community. Accordingly, this 

Court agrees with the finding of the 

Court below that the EAC Treaty 2000 

cannot be applied retrospectively. This 

particular point is put beyond any 

shadow of a doubt by Article 15.00 

of the Mediation Agreement 1984, 

which stipulates that: 

“The Treaty for East African 

Co-operation, dated 6th June, 1967,is 

hereby abrogated.” 

The above finding leads the Court to 

examine yet another question: Was 

the application of non retroactivity 

relevant to the instant case? 

The conditions specified by O. DORR 

and K. SCHMALENHACK (supra) 

for fulfilling the test of “relevant 

application” of the principle of non 

retroactivity, are as follows: 

1. Existence of a Treaty to which 

the Respondent is a party. In 

the instant case, there exists 

the EAC Treaty. 

2. The absence of any intention 

of the parties to apply their 

Treaty retroactively. In the 

instant case such absence 

has been amply demonstrated 

in the above Court analysis 

concerning the EAC Treaty. 

3. An act or fact which took 

place, or a situation which 

ceased to exist, before the 

entry into force of the Treaty 

concerned. In the instant case, 

we have the alleged refusal 

by the Republic of Kenya 

to pay the terminal benefits 

of the former employees of 

the defunct Community in 

execution of the Mediation 

Agreement signed in 1984 

after the dissolution of the 

Community in 1977. 

4. The entry into force of the 

Treaty is posterior to the 

act; fact or situation which 

constitutes the cause of action 

against the Respondent. In the 

present case, the EAC Treaty 

entered into force for Kenya 

on 7July 2000, after the 

Appellants ‘claim which was 

already before the Kenyan 

High Court at Nairobi. 

5. The Claimant asks the Court 

for the application of the 

Treaty to the Party in respect of 

the act/fact which took place 

or situation which ceased to 

exist before the coming into 

force of the Treaty. In the 

instant case, the Appellants 

prayed this Court to apply the 

EAC Treaty to their case. 

From all the above, this Court finds that 

the instant case meets the necessary 

conditions for the principle of non 

retroactivity to be applied. In this 

regard, the Court considers the 

situation of the ex-employees of the 

defunct Community to have ceased to 

exist at the Community level from 14 

May, 1984. That date was obviously 

way before the entry into force of 

the EAC Treaty in July 2000. We, 

therefore, agree with the Court below 

that the principle of non retroactivity 

is relevant to the instant case. 

Consequently, the first ground of this 

appeal fails. 

Ground 2: Whether the First Instance 

Division made findings of fact with 

finality at the preliminary stage 

without a full trial? 

Learned Counsel for the Appellants 

contended that the question of non 

retroactivity was an issue of fact. From 

this stand point, he contended that 

the Court below could not, therefore, 

determine this point at the preliminary 

stage, without full trial. 

The Respondent postulated a totally 

opposite understanding of the issue 

of non retroactivity of a Treaty. He 

averred that non retroactivity is a 

pure point of law, intertwined with 

jurisdiction, which the Court can even 

consider on its own motion. 

We are of the view that the Court 

below applied the correct law. The 

objection of non retroactivity of a 

Treaty is a fundamental issue, one 

that goes to the root of the case. The 

court cannot avoid that question. It 

must determine it at the outset, before 

dealing with any other issues. True, 

it is not possible to deal with the 

objection of non retroactivity without 

considering the cause of action of 

the particular case. However, such 

consideration helps only to situate 

the objection in a certain period, and 

it does not transform the principle 

of non retroactivity into a matter of 

facts. We agree with the Respondent 

that objection of non retroactivity is 

interconnected with the question of 

jurisdiction. The Court must consider 

the question even where the Parties 



themselves fail to raise it. Indeed, it is 

incomprehensible that the Respondent 

omitted to bring it up at the Scheduling 

Conference in the Court below. 

Nonetheless, it is recognized, in our 

jurisprudence that for the attainment 

of substantive justice, a point of law 

can and should be raised at any time 

during the course of the proceedings, 

preferably at the earliest available 

opportunity. 

For these reasons, the second ground 

of appeal also fails. 

Ground 3: Whether there was 

procedural irregularity for the Court 

below to entertain and determine 

the issue of retroactivity without the 

Appellants' submissions? 

Under this ground the Appellants 

raised three distinct sub issues, which 

could be summarized as: 

(i)smuggling into the case the 

issue of non retroactivity, 

when the Parties had not 

agreed any such issue during 

the Scheduling Conference; 

(ii)denying the Appellants 

sufficient notice to respond 

to, and a fair opportunity to 

be heard on, the smuggled 

issue of non retroactivity (all 

in contravention of natural 

justice); 

(iii)raising non retroactivity as a 

preliminary point of objection, 

when it was not a point of 

pure law. 

Counsel for the Appellants contended 

that the issue of non retroactivity 

of the EAC Treaty was not among 

those which were agreed upon by 

the Parties during the Scheduling 

Conference. 

He averred that the point was 

introduced only subsequently in the 

Respondent’s written submissions after 

the hearing; but that, nonetheless, 

the Court proceeded to consider and 

determine that point with finality, 

without affording the Appellants 

effective notice to respond, or an 

opportunity to present their submissions 


thereon. He prayed this Court to find 

that all this amounted to a procedural 

irregularity; and to reinstate the case 

in order to enable the Appellants to 

present their submissions. 

He averred that in determining the 

point and making a finding on it 

without full trial, the Court below 

contravened the well established 

principle of natural justice. 

On the third sub issue, Counsel 

contended that non retroactivity is an 

issue of fact, not of law, which should 

not have been entertained by the 

Court below by way of a preliminary 

objection. 

This Court considers that, even if it was 

not agreed upon during the hearing, 

the issue of non retroactivity was 

totally unavoidable. It fundamentally 

determines the applicability of the 

new Treaty to the Reference. Without 

prior determination of this point, the 

Court could not proceed even one step 

further. Nonetheless, the Court below 

should have afforded the Appellants 

the opportunity for effective notice to 

make their submissions on that point. 

The failure to do so constituted an 

irregularity. Nevertheless, the injustice 

occasioned has now been duly cured, 

in as much as the Appellants have 

been given the opportunity to submit 

on the point in this appeal. 

Given our finding that non retroactivity 

is a fundamental point of law, we 

need not delve into or tarry long on the 

Appellants’ sub issue of whether non 

retroactivity is a point of fact, which 

the Court below should not have 

entertained by way of a preliminary 

point of objection. It is evident from 

our analysis of the issue elsewhere 

in this judgment, that retroactivity is 

eminently a point of pure law, which 

this Court is not only entitled to raise 

on its own motion, but also to entertain 

as a point of objection that is capable 

of disposing of the entire case. 

Therefore, the third and last ground 

of this appeal also fails. 

VI. Effects of non Retroactivity to 

the Question of Jurisdiction 

While recognizing the jurisdiction 

of this Court over the interpretation 

and application of the EAC Treaty, 

as provided for by Article 27(1), the 

Respondent argued that the instant 

Reference does not deal with the 

interpretation nor the application of 

the Treaty. 

The Court below, considering the 

submissions of the parties, held that it 

had jurisdiction on the basis of Articles 

27(1) and 23 of the Treaty, but that 

the EAC Treaty was not applicable to 

this Reference on account of the non 

retroactive application of the Treaty to 

that particular Reference. 

Where then, one may ask, did the 

Court derive its jurisdiction, since 

the Treaty which normally confers 

the jurisdiction on the Court did not 

apply? Non retroactivity is a strong 

objection. When it is upheld, it 

disposes of the case there and then. 

As non retroactivity renders the Treaty 

inapplicable forthwith, what else can 

confer jurisdiction on the Court? Non 

retroactivity leads the Court to the lack 

of jurisdiction. 

This is the first time that this Court 

has been confronted with the issue of 

non retroactivity. The jurisprudence 

of other International Courts would 

help to illustrate the effects of 

non retroactivity; particularly so, 

concerning the consequential, but allcritical 

question of jurisdiction. In this 

connection, three cases come to mind: 

(1)The Ambatielos case 

(jurisdiction), judgement of 

July 1st 1952; I.C.J. reports 

1952, p.28; 

(2)Mavrommatis Palestine 

Concessions (Greece v U. 

K.), 1924, P.C.I.J., (SER. B) 

No.3 (Aug.30) Publications 

of the Permanent Court of 

International Justice Series 

A – No.2; collection of 

judgements A.W. Sfjthoff’n 

Publishing Company, Leyden, 

p. 194; and 

(3)W. T.O., Brazil – Measures 

Affecting Desiccated Coconut, 

151


AB 1996 – 4, Report of the 

Appellate Body, page 15. 

In all the three cases quoted above, 

the consequences of a finding of non 

retroactivity of a treaty, invariably led 

to a finding of lack of jurisdiction; and 

that was the end of the proceedings. 

This Court has repeatedly underlined 

the effect of lack of jurisdiction. 

Without it, “a Court cannot take even 

the proverbial first Chinese step in its 

judicial journey to hear and dispose 

of the case” – (see Appeal No.3 of 

2011: Attorney General of the United 

Republic of the Tanzania vs. African 

Network for Animal Welfare, EACJ, 

Appellate Division, Judgment of 15 

March, 2012, p.7). 

Having in mind the effect of non 

retroactivity of a Treaty, the point 

should have been determined before 

any other issues in order to avoid 

the ambiguity contained in the final 

conclusion of the Ruling of the Court 

below, which held as follows: 

“In conclusion, we rule that although 

the Court has the jurisdiction to 

hear the Reference and that it is 

not barred by the doctrine of res 

judicata or the rule of exhaustion of 

local remedies, nonetheless, it cannot 

entertain the Reference on account of 

the non retrospective application of 

the Treaty.” 

For the above reasons, this Court finds 

that the EAC Treaty is non retroactive. 

It is not applicable to the present 

Reference. Consequently, the East 

African Court of Justice is not clothed 

with the jurisdiction to entertain it. 

Before departing from this matter 

altogether, this Court is constrained to 

make the following observations. 

The framers of the new EAC Treaty 

of 2000 saw it fit--indeed desirable 

-- to interpose in the new Treaty the 

fact of the Mediation Agreement 

of 1984, which the three former 

Partner States of Kenya, Uganda and 

Tanzania had agreed a formula for 

dividing and sharing the assets and 

liabilities of the defunct Community, 

including the settling of terminal 

benefits and pensions of the former 

employees of the defunct Community. 

The interposition of all these factors 

into the new Treaty was, thus, a 

deliberate and express action on the 

part of the Partner States. In our view, 

beyond mere recording of history, the 

interposition was done for a reason 

and a purpose - namely, to “revisit” 

or to “keep alive” the nexus between 

the Old and the New order of the 

East African integration (paragraph 

2 of the Preamble); cooperation, 

former and future (paragraph 6 of 

the Preamble); and upgrading into a 

Treaty the Region’s Tripartite efforts 

of 1997-2000 (paragraph 9 of the 

Preamble); as well as breathing 

a fresh breath of oxygen into the 

important issue of the sharing and 

the management of the assets and 

liabilities -- including the welfare of 

the former employees of the defunct 

Community (paragraph 5 and 6 

of the Preamble). The interposition 

of these factors was, thus, a clear 

statement by the new Community 

expressing its profound interest in 

the continued management of the 

assets and liabilities of its predecessor 

Community, and the welfare of the 

former employees of that defunct 

Community. 

By analogy to municipal law, the 

Mediation Agreement on the sharing 

of assets and liabilities was the 

equivalent of drawing a Will and 

appointing Administrators/Executors 

to oversee and administer the Estate 

of the defunct Community. Conversely, 

the Mediation Agreement was the 

equivalent of the creation of a Trust 

and appointment of Trustees to oversee 

and manage the residue of the affairs 

of the defunct Community (see in 

particular Article 10 and Annex “F” 

of the Mediation Agreement). In either 

case, the Administrators/Executors or 

Trustees owe a duty of care to manage 

the Estate or Trust for the benefit of the 

beneficiaries (in this case the former 

Community employees), in accordance 

with the well known and generally 

accepted norms and standards that 

govern Administrators, Executors and 

Trustees. In the event of any “audit” 

queries concerning the exercise 

of their duty, the Administrators, 

Executors or Trustees of the Estate or 

Trust must be held responsible and 

accountable. 

From all this, Kenya’s former 

Community employees (who are the 

Applicants/Appellants before this 

Court), appear to have a genuine and 

legitimate basis for their grievance 

of injustice against the Kenyan 

State concerning the issue of their 

Community pensions. 

Nonetheless, notwithstanding 

our being a court of justice, the 

jurisdiction for interrogating the 

merits (or demerits) of Appellants’ 

grievance lies not in this Court, on 

account of the non retrospective 

application of the new EAC Treaty of 

2000.That jurisdiction properly lies 

with the national Courts and allied 

for a, in as much as the Mediation 

Agreement of 1984 effectively and 

definitively moved the management of 

the assets and liabilities of the defunct 

Community from the remit of the East 

African Community, to the realm of 

the various National States. 

Conclusion 

In the result, this Court dismisses all 

the grounds of the Appeal. Each 

Party shall bear their own costs of this 

appeal, and of the Reference in the 

Court below. 

It is so ordered. 

DATED, AT ARUSHA 

THIS 27TH DAY OF APRIL, 2012 

….…………………..…………….. 

Harold R. Nsekela 

PRESIDENT 

….…………………………………. 

Phillip K. Tunoi 

VICE PRESIDENT 

.…..……………………………. 

Emily R. Kayitesi 

Justice of Appeal 

….…..……………………………. 

Laurent Nzosaba 


….…..……………………………. 

James Ogoola, 




The following explanatory note 

is provided to assist the media 

in reporting this case and is not 

binding on the Constitutional 

Court or any member of the Court. 

On 13 June 2012, the Constitutional 

Court handed down judgment about 

the constitutionality of a law, which 

makes organizers of gatherings liable 

for damages caused by the gathering 

unless they took all reasonable steps 

to avoid the damage and they did 

not reasonably foresee that damage. 

The Supreme Court of Appeal upheld 

a decision of the Western Cape High 

Court saying that the law was valid. 

The South African Transport and 

Allied Workers Union (SATAWU) had 

organized a gathering of thousands 

of people through the City of Cape 

Town to register employment - related 

concerns. Some 50 people had lost 

their lives in the course of SATAWU’s 

protracted strike action before the 

gathering. During the gathering, much 


IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA 

South African Transport and 

Allied Workers Union 

and Another v Jacqueline 

Garvas and Others 

Case CCT 112/11 

[2012] ZACC 13 

Hearing Date: 09 February 2012 

Judgment Date: 13 June 2012 

property including private property 

was damaged. 

In response to a claim for damages 

made by people who claimed that 

they suffered loss as a result of the 

gathering, SATAWU challenged the 

constitutional validity of the law that 

imposed liability on organizers. The 

Union contended that the defence 

allowed by the law is non-existent and 

unjustifiably limits the right to freedom 

of assembly in the Constitution. 

In a majority judgment, Mogoeng 

CJ held that the law aims to afford 

victims’ effective recourse where a 

gathering becomes destructive and 

results in injury, loss of property or 

life. The majority held that the defence 

provided for by the law is viable 

and that the limitation on the right 

to freedom of assembly in section 

17 of the Constitution is reasonable 

and justifiable, because it serves an 

important purpose and reasonably 

balances the conflicting rights of 

organizers, potential participants and 

often vulnerable and helpless victims 

of a gathering or demonstration 

which degenerates into violence. 

Mogoeng CJ emphasized that the 

reasonable steps taken on the one 

hand and reasonable foreseeability 

on the other hand 2 were interrelated. 

Organizers are obliged at 

all times to take reasonable steps to 

prevent all reasonably foreseeable 

conduct that causes damage and 

the reasonable steps must be of the 

kind that render the conduct causing 

damage unforeseeable. For these 

reasons, the majority dismissed the 

appeal. 

In a concurring judgment, Jafta J 

reasoned that the appeal should be 

dismissed, on the basis that SATAWU 

had failed to prove that the law limits 

the right to freedom of assembly, 

or that the defence that it creates is 

irrational. 

153


BACKGROUND TO THE APPEALS 

This case concerns the scope for 

justifying indirect discrimination 

against men in the allocation of 

Child Tax Credit (“CTC”). CTC was 

introduced by the Tax Credits Act 

2002 and replaced the previous 

separate systems of tax credits and 

benefit supplements for people 

looking after children, separately 

administered by the tax and benefits 

authorities. CTC is a benefit payable 

in respect of each child irrespective of 

whether the applicant is employed. It 

is administered solely by HMRC. The 

amount of CTC payable depends on 

the income of the applicant. 

Under the Child Tax Credit Regulations 

2002 (SI 2002/2007), CTC in 

respect of each child is payable to 

only one person, even where the care 

of the child is shared between two or 

more persons. 

Entitlement to CTC depends on who 

is deemed responsible for the child. 

Regulation 3(1) creates a set of rules 

for determining this. Rule 1 provides 

that where the child lives with one 

person, that person is treated as 

responsible. Rule 2 provides that 

where a child lives with two or more 

persons in different households, the 

person having “main responsibility” 

for the child is treated as being 

responsible. 

The Appellant is a father of two 

children. Between January 2004 

PRESS SUMMARY 

Humphreys (FC) (Appellant) v The Commissioners for Her Majesty’s Revenue and Customs 

(Respondent) [2012] UKSC 18 

On appeal from the Court of Appeal [2010] EWCA Civ 56 

JUSTICES: Lord Walker, Lady Hale, Lord Clarke, Lord Wilson and Lord Reed. 

and December 2005 both children 

lived with their mother but retained 

substantial contact with the Appellant, 

spending most weekends and half 

of all school holidays with him. The 

Appellant applied for CTC which 

was considered under Rule 2, above. 

The Respondent determined that 

the mother had main responsibility 

for the children and the Appellant’s 

application was rejected. The CTC 

was paid solely to the mother. 

The Appellant appealed the refusal 

of CTC arguing that the legislative 

scheme breached article 14 read 

with article 1 of the First Protocol 

to the European Convention on 

Human Rights (“the ECHR”) in that 

it indirectly discriminates against 

men because, on the whole, fathers 

are more likely than mothers to 

have secondary, but nonetheless 

significant, responsibility for the care 

of their children. Entitlement to CTC 

falls within the scope of the right to 

protection of property under article 

1 of the First Protocol to the ECHR. 

Article 14 of the ECHR provides that 

the enjoyment of rights and freedoms 

under the ECHR shall be secured 

without discrimination on grounds of, 

amongst others, sex. 

The HMRC now accepts that 

the legislative scheme indirectly 

discriminates against men. The key 

issue was whether that discrimination 

was objectively justified. The appeal 

tribunal held that it was not and 

therefore that denying CTC to the 

Published with the permission of the United Kingdom Supreme Court 

16 May 2012 

father was a breach of article 14 of 

the ECHR read with article 1 of the 

First Protocol. The Upper Tribunal held 

that the discrimination was justified 

and that decision was upheld by the 

Court of Appeal. 

JUDGMENT 

The Supreme Court unanimously 

dismisses the appeal. Lady Hale gives 

the lead judgment with which Lord 

Walker, Lord Clarke, Lord Wilson and 

Lord Reed agree. 

REASONS FOR THE JUDGMENT 

References in square brackets are to 

paragraphs in the judgment 

The Appellant relied upon the Court 

of Appeal decision in Hockenjos v 

Secretary of State for Social Security 

[2004] EWCA Civ 1749, [2005] 

EuLR 385 in which it was held that 

the denial of child supplements to 

a father’s jobseeker’s allowance 

where he and the mother shared 

roughly equal care of the children 

was unjustified indirect discrimination 

[12]. The case was brought under 

European Union antidiscrimination 

law rather than the ECHR. Following 

that decision HMRC conducted a 

review of the “no-splitting” rule in 

CTC, the results of which helped 

persuade both the Upper Tribunal 

and the Court of Appeal that there 

were features of the instant case 

distinguishing it from Hockenjos. 

The Supreme Court of the United Kingdom 

Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk 



The specific test under the ECHR 

for justifying discrimination in the 

context of state benefits is set out in 

Stec v United Kingdom (2006) 43 

EHRR 1017, a decision of the Grand 

Chamber of the European Court of 

Human Rights [15]. The benefits 

in that case were for people who 

were required to stop work because 

of injury. Entitlement reduced upon 

reaching retirement age which had a 

discriminatory effect on women who 

reached that age five years before 

men. The Court repeated that “A 

difference in treatment is discriminatory 

if it has no objective and reasonable 

justification; in other words, if it does 

not pursue a legitimate aim or if there 

is not a reasonable relationship of 

proportionality between the means 

employed and the aim sought to be 

realised” (para 51). However, when 

it comes to general measures of 

economic and social strategy, a wide 

margin of appreciation is allowed to 

member states. 

“The Court will generally respect 

the legislature’s policy choice unless 

it is ‘manifestly without reasonable 

foundation’” [16]. Hence this 

particular measure was justified. 

The test in Stec has been applied in 

other direct discrimination cases. If it 

applies to direct discrimination cases, 

then it must also apply to indirect 

discrimination cases such as this. In 

the context of state benefits, under 

the ECHR “…the normally strict test 

for justification of sex discrimination 

…gives way to the ‘manifestly without 

reasonable foundation’ test” [19]. 


This does not mean however that the 

justifications put forward will escape 

careful scrutiny by the courts [22]. 

The Appellant’s main complaint is 

that the scheme leaves him with 

nothing to provide for the needs of his 

children when they stay with him [23]. 

Although the mother could choose to 

share the CTC, neither HMRC nor 

the courts can compel her to do so. 

Against this, HMRC points out that the 

aim of the scheme is to reduce child 

poverty. It is paid to the main carer 

on the expectation that that person 

incurs most of the expenditure in 

looking after the child [25]. Splitting 

the CTC between two carers of modest 

means could result in neither of them 

being able to provide for the child’s 

needs [25]. 

Furthermore, splitting CTC on the 

basis of means would introduce 

administrative complexities and 

increase costs [25]. Finally, the 

Appellant is asking for an exception 

to be made to an otherwise justifiable 

rule. It has been previously established 

that generally justifiable rules are not 

unreasonable or without foundation 

merely because they result in hardship 

in some cases [26]. 

The scheme in this case is geared 

towards reducing “child poverty”. The 

current definitions of child poverty rely 

upon household income, which means 

that targets will be easier to meet if 

support is given to single households 

rather than split [28]. However, 

the state is entitled to conclude that 

children will in fact be better off if 

CTC is distributed in this way rather 

than divided between two households 

with modest means [29]. That method 

is also simpler and less expensive 

to administer, thereby maximising 

the funds available for distribution 

[29]. It was an integral part of the 

move to combine tax allowances 

and social security benefits into a 

seamless tax credit system [30]. It 

is also reasonable for the state to 

regard the way in which it delivers 

support for children and families as a 

separate issue from the way in which 

children spend their time [31]. It is 

perhaps unfortunate that the courts 

making orders about where children 

are to live no longer have the power 

to make consequential orders about 

benefit sharing, where appropriate 

[32]. However, the no-splitting rule 

is a reasonable rule for the state to 

adopt and the indirect discrimination 

in this case is justified [33]. 

NOTE 

References in square brackets are to paragraphs in the judgment 

Published with the permission of the United Kingdom Supreme Court 

This summary is provided to assist in 

understanding the Court’s decision. 

It does not form part of the reasons 

for the decision. The full judgment 

of the Court is the only authoritative 

document. 

Judgments are public documents and 

are available at: 

www.supremecourt.gov.uk/decidedcases/index.html 

NOTE 

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for 

the decision. The full judgment of the Court is the only authoritative document. Judgments are public 

documents and are available at: 

www.supremecourt.gov.uk/decided-cases/index.html 

The Supreme Court of the United Kingdom 

Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk 

155

Notes 



Notes 

157

Notes 


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