Bench Bulletin - Issue 17 - Kenya Law Reports

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Kenya Law Reports
Bench Bulletin
NCLR Board Members
The Hon. Justice (Dr.) W.M. Mutunga, S.C. ,Chief Justice, President of the Supreme Court &
Chairman, National Council for Law Reporting.
THE NATIONAL COUNCIL FOR LAW REPORTING
THE BOARD OF THE COUNCIL
The Hon. Dr. Justice W.M. Mutunga,S.C.
Chief Justice, President of the Supreme Court &
Chairman, National Council for Law Reporting.
The Hon Mr Justice P. K. Tunoi
Judge of the Supreme Court
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
Ms Florence Muoti Mwangangi
Law Society of Kenya
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.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
Issue15: April-June 2011
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Kenya Law Reports
Bench Bulletin
The Bench Bulletin
Table of Contents
EDITOR
Michael Murungi
EDITORIAL ASSISTANT
Monica Achode
CONTRIBUTORS
Michael Murungi
Esther Nyaiyaki
Anne Asugah
Monica Achode
Andrew Halonyere
Njeri Githang’a Kamau
Petronella Mukaindo
Emma Kinya
Wambui Kamau
Christian B. Ateka
Nelson K. Tunoi
Wanjala Sikuta
Stanley Mutuma
Oscar Muriithi
Michael Mayaka
Yvonne Kirina
DESIGN AND LAYOUT
Catherine Moni
John Muriuki
Geoffrey Andare
PROOFREADERS
Phoebe Ayaya
Innocent Ngulu
Contacts
National Council for Law Reporting, Milimani
Commercial Courts, Ground Floor,
4 th Upper Hill Close, Ngong Road
Email: info@kenyalaw.org,
Tel: (+254) (020) 271 27 67, 271 92 31
Fax: (+254) (020) 2712694, Nairobi, Kenya,
www.kenyalaw.org
Facebook: Kenya Law Reports,
Issue17: October - December 2011
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NCLR Board members
Transition
Citizen Jane
What
they Said
Tribute to the Late Mr. Justice M. M.
Ole Keiwua
Progress Report on the
Transformation of the
Judiciary
Remarks on the Inaugural Sitting of
the Supreme Court
NCLR Launches Law Blog and
discussion Forum
Introducing the KLR Case back
Service
NCLR upgrades It’s Organizational
Structure while establishing a
Medical and Pension Scheme
Editorial Department
Information
Communication
Technology (ICT)
Department
Laws of Kenya
Department
Feature Case
Supreme Court of Kenya
Court of Appeal Cases
High Court Cases
Supreme Court of the
UnitedKingdom
Year in Review – 2011
Notes

Kenya Law Reports
Bench Bulletin
Transition
Once again, with a heavy heart, I dedicate this column to another colleague and friend, a member of our
staff, Mr. Wilson Riungu, whose death occurred on December 4, 2011. Wilson joined us in September
this year and was serving as a Front Office Assistant. On Saturday December 3, 2011, he was taken
ill and was admitted at a hospital in Nairobi, where he died on the following day.
Mr.Wilson Riungu
Office Assistant, NCLR
Sunrise: April 15, 1986
Sunset: December 4, 2011
Wilson’s passing came at a time when we had only just began to come to terms with the death of Mr.
Justin Muthee, a Sales and Marketing Officer, which had occurred on October 9, 2011.
Please spare a prayer, a kind thought or a moment of silence for the memory of Wilson, for the comfort
of his family and friends and for the strength of his colleagues at the Kenya Law Reports who not having
suffered the misfortune of losing a serving member of staff, now have to deal with two bereavements in a
space of less than two months.
May Wilson’s soul rest in peace.
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What They Said
“[T]he Judiciary will not change until those who serve in it and the public change their attitude
and behaviour. When we say that judicial authority is derived from the people the implication
is that the people should be law abiding – make use of other fora of justice such as family,
churches and mosques and other alternative dispute resolution mechanisms because court
actions are, in their very nature, adversarial. Kenyans must see themselves as the change
they wish to see in the Judiciary”. The Hon. Justice (Dr.) W.M. Mutunga, Chief Justice,
President of the Supreme Court and Chairman of the National Council for Law
Reporting, in his Progress Report on the Transformation of the Judiciary: The First
120 Days address on November 19, 2011.
The Hon. Justice (Dr.)
W.M. Mutunga,
S.C. ,Chief Justice,
President of the
Supreme Court
The Hon. Lady Justice
Mumbi Ngugi, j.
“This process [of vetting of Judges] will help to underpin these values with respect to the
judiciary and restore the judiciary to its respected place as the arbiter of justice in Kenya. We
believe that rather than undermining judicial independence, the process, which is limited in
time, will enable the judiciary operate with confidence in its central role of upholding the rule
of law in Kenya, free from the shackles that have reduced it to a timid player in government
due to the widespread perceptions of incompetence and corruption” – High Court Judges
Mumbi Ngugi, DS Majanja & GV Odunga dismissing an application by an advocate
seeking to halt the vetting of judges in Dennis Mogambi Mong’are v Attorney General
& 3 others [2011] eKLR, November 18, 2011.
“We have no doubt the Court of Appeal sitting as the Supreme Court were able and could have
delivered their considered decisions/ruling. However, before they could do that, this court
was established. We see no fault whatsoever in the exercise of the said discretion considering
all circumstances and the sensitive, weighty and serious issues of great national importance
and interest that the Application for Advisory Opinion entailed. It is our view that it would
be totally improper, irregular and unfair for this 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”. Supreme Court Judges M.K. Ibrahim & Smokin Wanjala in In
Re the matter of Commission for Implementation of the Constitution [2011] eKLR,
November 2011, the historic first decision of the new Supreme Court of Kenya, in
which the Court took over and continued a constitutional application previously filed
and part-heard by the Court of Appeal sitting as the Supreme Court.
The Hon. Mr. Justice M. Ibrahim
& The Hon. Justice
(Dr.) S. Wanjala (SCJJ)
“...[E]ntrapment is a complete defence and it does not matter that the evidence against the
person is overwhelming or that his guilt was undisputed. The court must refuse to convict
an entrapped person not because his conduct falls outside the proscription of the statute but
because even if his guilt is admitted, the methods and manner employed on behalf of the
State to bring about the evidence cannot be countenanced.”
High Court Judge M. Warsame in Mohamed Koriow Nur v The Attorney General
[2011] eKLR, September 30, 2011, declaring that certain evidence obtained through
entrapment was obtained in violation of the Bill of Rights and was inadmissible.
“If the prosecution was forced to close its case, without calling the 2 witnesses, that would
seriously prejudice the public interest in having all evidence laid before the court, so as
to enable the court arrive at the just decision…. In the result, I find that the decision to
exclude video conferencing as the medium for receiving the testimony of the 2 witnesses was
improper” High Court Judge Fred. A. Ochieng in Livingstone Maina Ngare v Republic
[2011] eKLR, July 28, 2011, in which the High Court allowed the taking of oral
witness evidence by video-link via two video-confefrencing terminals, Nairobi and
Washington DC.
The Hon. Mr. Justice
F.A. Ochieng, j.
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Tribute to THE LATE MR. JUSTICE M.M. OLE KEIWUA
I
wish, with profound sense of grief
and sorrow to pay homage to the
late Justice Ole Keiwua, a former
illustrious Judge of the Kenya Judiciary
who adorned the Bench of the Court
of Appeal from 23rd December, 1999,
until his demise on 8th October, 2011
when he left for his heavenly abode,
having lived and fulfilled his life spread
over 65 years.
He joined the Government of Kenya on
12th March, 1973 with the Attorney
General’s Chambers as a Trainee State
Counsel. He was appointed a Puisne
Judge of the High Court in 1993. On
23rd December, 1999, he was elevated
to the Court of Appeal as an Appellate
Judge a position he held until his demise
on the 8th October, 2011.
The late Mr. Justice M.M. Ole Keiwua.
In 2001, the late Mr. Justice Ole Keiwua
was appointed as a Judge and founder
President of the East African Court of
Justice based at Arusha. The late Judge
had the confidence of the East African
Heads of State and he served his full
term as President of the East African
Court of Justice from 2001 up to 2006
when he formerly retired.
As a Judge of the Court of Appeal, and
the President of the East African Court
of Justice, Justice Ole Keiwua rendered a
number of landmark judgments having
far reaching implications in Kenya
and in the wider East African Region.
He was well known for his sound
knowledge of law and legal acumen
which he possessed in abundance.
He was courageous, fearless, candid,
uncompromising, firm and unbending
when it came to upholding the rule of
law and independence of the Judiciary.
His firmness and disregard of all
considerations except his principles
and convictions were displayed in many
cases. Justice Ole Keiwua belonged to
that group of men who having downed
the judicial mantle maintained highest
standards in their judicial career. Hard
working and painstaking, he was a
highly capable Judge who was quite
at home in almost all the branches of
the law. He never hesitated in taking
an unpopular stand, if his conscience
so dictated. Invincible independence,
originality of thought, a firm belief in
ideals and uniqueness expressed were
a hallmark of his personality as a judge.
He maintained the highest standards
of judicial conduct and behaviour. He
was one of those judges who displayed
admiration, courage and independence
when the Kenyan Judiciary was going
through the difficult period during the
so called radical surgery in 2003.
His suspension from the Judiciary
in the year 2003 came as a shock to
many, particularly those who knew
him as a person of integrity, justice
and fairness. Nonetheless, Justice Ole
Keiwua challenged the suspension
and being the tenacious warrior he
was, in 2010, he was vindicated in a
landmark judgment which declared his
suspension unconstitutional, illegal,
unfair and without merit. In May, 2010,
the late Judge resumed his duties at
the Court of Appeal and indeed the
outcome of this judgment became the
precedent at Law Courts, Law Schools,
and it is cited on matters pertaining
to Constitutional Law, Judicial Review,
Presidential Elections, Treatment of
Judges, Tribunal procedures and much
more. The Kenya Law Report bears
testimony to his judicial acumen and
versatility, his diligence and his fine
understanding and exposition of legal
principles.
The late Mr. Justice Ole Keiwua was
patient and dignified. He never lost
his cool even in the face of unjustified
provocation. He had a very pleasing
personality and use of harsh words
was unknown to him, always patient
and courteous, the lawyers appearing
before him felt at home and came out
of Court with their best in the course
of arguments. All those who had an
opportunity of coming into close contact
placed him in high esteem and regard
because of simplicity, modesty and
integrity.
He was loved by the members of the
Bar and the Judges alike as one of the
finest Judges of the Court of Appeal. He
was a perfect Judge in the Court and
a perfect gentleman inside as well as
outside the Court. Those who had the
privilege of sharing either the Bench
with him or appearing before him at
the Bar, acknowledge the great impact
which he created as a Judge of the Court
of Appeal. He was a rare combination
of patience, a Judge with gentleness,
modesty, dignity, firmness and kindness.
In the passing away of Justice Keiwua,
we have lost one of the ablest Judges
of this Court and a Jurist per excellence.
Known for his unimpeccable integrity
and sterling character, Justice Keiwua
will be remembered for all times to come
for the services rendered by him to the
cause of justice and the independence
of the Judiciary in this Country.
“Nothing can cover his high
fame but heaven;
No pyramids set off his
memories
But the eternal substance of his
greatness;
To which I leave him.”
The late Mr. Justice Ole Keiwua is
survived by four children (two boys and
two girls), and his wife Peggy Keiwua.
His Brother Judges of the Court of
Appeal and the entire Judiciary wish to
convey our deepest condolences to the
bereaved family and pray to the Almighty
God to give them strength in this period
and to bear the irreparable loss with
fortitude.
May the Almighty God rest his Eternal
Soul in Peace. AMEN.
M. K. K. SEREM
SENIOR PRINCIPAL DEPUTY REGISTRAR.
By Moses K. Serem, Snr. Dpty. Registrar, Court
of Appeal, for and on behalf of Court of
Appeal
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Kenya Law Reports
Bench Bulletin
Progress Report on the TRANSFORMATION OF THE
JUDICIARY By Dr Willy Mutunga, S.C., Chief Justice and President of the Supreme Court of Kenya.
THE FIRST HUNDRED AND TWENTY
DAYS
19TH OCTOBER, 2011
Fellow country women, men
and friends:
It is with great pleasure that I
submit the Progress Report on the
Transformation of the Judiciary in
Kenya.
The struggle to reform the Judiciary
predates my rise to the Office of the
Chief Justice. However, my assumption
of office on June 20, 2011, following
a rigorous vetting process where the
institutions of the Executive, Legislature
and the Judiciary, as well as the general
public played significant roles, marked
an important turning point. I want to
thank all of them, and, in particular,
the Judicial Service Commission (JSC)
which, in many respects, has set the
golden standard in the vetting of public
officials.
In making this Report, I have elected
to issue it on the eve of Mashujaa Day,
a day so emblematic of our struggle
for justice and freedom that it should
remind us how an oppressive system
of government can easily use courts
to perpetuate a miscarriage of justice.
The existence of courts alone provides
no guarantee of justice. Rather, it is
the values and quality of the people
who lead it; the aspirations and design
of the Constitution that creates it; and
the vigilance and civic consciousness of
the people who continuously demand
better. In sad moments in our history,
courts have failed to uphold the rule
of law and to defend the rights of man
and woman.
This is why Kenyans fought for a
new Constitution. It is the reason we
are reforming the Judiciary. It is the
reason we must succeed in creating an
institution of justice that can secure our
democracy and fulfil its rich promise.
Today marks the 120th day since
assuming the office of Chief Justice. I
think it is opportune to give a review
of our accomplishments so far, and,
similarly, provide strategic direction
for the future. My vision, as we move
forward, is to transform the Judiciary to
ensure equitable access to, and efficient
and effective delivery of, justice. In
leading this transformation agenda, I am
guided by the constitutional principle
that the people are the source of judicial
authority. Those of us to whom this
authority is delegated must exercise
it only in their interest and for their
benefit. This is the article of faith that
I uphold as I execute my duties as the
Chief Justice of the Republic of Kenya.
For the past 20 years, no less than
four internal reports on the Judiciary
have been published. These fairly
robust and honest self assessments
identified long standing problems that
plague our system of justice, and in
their pages are some very progressive
recommendations. Most of these have
remained unimplemented. There was
lack of will and support to implement
the recommendations. What is new is
that we have the collective will of the
Kenyan people, and the leadership in the
judiciary to implement these reforms. In
designing my reform agenda, We have
borrowed heavily from these reports,
while reviewing and updating them to
reflect the context and demands of the
Constitution.
Before I outline to the country the
measures that we have taken and the
strategic direction for the future, I think
that it is important to briefly describe
the Judiciary we found.
We found an institution so frail in its
structures; so thin on resources; so
low on its confidence; so deficient in
integrity; so weak in its public support
that to have expected it to deliver justice
was to be wildly optimistic.
We found a Judiciary that was designed
to fail. The institutional structure
was such that the Office of the Chief
Justice operated as a judicial monarch
supported by the Registrar of the High
Court. Power and authority were highly
centralised. Accountability mechanisms
were weak and reporting requirements
absent. When we put people on a
pedestal it is based on negative power
and authority. That is the old order. The
new order for the 21st Century demands
we move to equality and work from
the basis it is not about the individual’s
achievement but what a group of
people, indeed, a collective has the
potential to accomplish.
We are glad that the new Constitution
has radically altered this ugly structure.
We now have a decentralised Judiciary
with the Supreme Court and the Court of
Appeal having their own Presidents and
the High Court having a Principal Judge
at their respective helms. We must not
take this dispersal of power for granted
for the intoxicating nature of power can
be true of the Judiciary as it is of the
Executive.
In order to strengthen this collective and
accountable use of the power envisaged
in our constitutional architecture, I
have taken additional administrative
decisions to give effect to the intentions
of the Constitution. I have set up a
Leadership Committee which will act
as a management team for the entire
Judiciary. Its composition – from the
Chief Justice as Chair, DCJ, President of
Court of Appeal, Principal Judge of the
High Court, as well as representatives
from the magistracy and the paralegal
fraternity – permits all the voices of the
Judiciary to be heard in the management
of this important institution. The
operationalisation of this committee
will take effect once the vetting process
is completed, new judges are on board,
and elections held for each level of
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Kenya Law Reports
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representation.
The new team at the helm of the
Judiciary brings with it the necessary
political will to implement reforms
that many had long identified. Some
of these include excessive bureaucracy
and silo mentality among organisational
units and the court system; backlog of
cases; endemic corruption; inefficient
and ineffective case flow management;
poor terms and conditions of service
for judicial and administrative staff;
poor infrastructure; absence of a clear
transfer policy; understaffing; artificial
workloads occasioned by unfilled
approved vacant positions; remuneration
imbalances due to haphazard salary
grading and compensation structures
where, for example, magistrates are
poorly remunerated relative to other
court officers; weak institutional
and staff performance management
systems; blatant disregard for
performance and financial audits;
fragmented reform interventions; and
inadequate implementation capacity of
recommended institutional reforms by
the various task forces.
Our transformation agenda seeks to
address all these composite defects.
Since coming into office four months
ago, I have listened keenly to the
voice of the Kenyan people: unceasing
and unequivocal in its invocation to
the Judiciary: Clean Up, Now! This
call is driven by the recognition that
the transformation of the Judiciary
constitutes the next most important
stage in our democratic transition — a
recognition that a Judiciary that upholds
the rule of law, dispenses justice fairly
and efficiently, validates and protects
rights is not just good for our stability
but also our economy. These are basic
settled facts that are not just evidenced
in literature but also in the experience
of societies that have matured in their
governance. As leaders and as a people,
we must embrace them.
The ends of justice cannot be met when
the Judiciary not only suffers an integrity
deficit but is also perceived as the
playground of the corrupt and the refuge
of the inept. Corruption corrodes our
humanity, undermines our institutions
and sabotages our economy.
In my inaugural address as Chief Justice,
I pledged that never again should it be
possible to speak about corruption and
the Judiciary in the same breath. I meant
it. One of the first actions I undertook
was to appoint an Ombudsperson to
receive and respond to complaints
by staff and the public. In just three
months, the office has received over
700 complaints of various categories!
Of these, 229 have been finalized while
another 275 are presently actively being
processed. I invite the public to make use
of this office which we shall strengthen
so that it can effectively serve the public.
Whereas I hasten to reassure my
colleagues in the Judiciary that the
Ombudsperson will not be used to
conduct witch hunts, I appeal to
the public not to hesitate to file any
complaint against any judicial officer to
this office.
Even where no complaints are raised, I
give you my pledge that we shall hold
ourselves up to the highest ethical
standards in the conduct of our affairs.
So far, the JSC has released a Code of
Ethics and Conduct for judicial officers,
and established a standing committee
to handle enforcement and discipline.
Corruption in the Judiciary will, however,
not be eliminated if we do not change
the environment that incentivises it. Four
months ago, when we took office, we
found a Judiciary in which junior officers
entrusted with paperwork in matters
concerning billions of shillings lived lives
that exposed them to influence-peddling
and bribery. Many of the clerical staff,
who ensure that the courts system
works – or does not work – , and who
are very critical in the administration of
justice, earned an average of Ksh. 20,000
only. Staff morale was slow and career
stagnation rampant. Many officers had
been in one position for over 10 years.
The disparities in pay between judges
and magistrates, on one hand, and
judicial officers and administrative staff,
on the other, were acute.
The JSC has reviewed the terms and
conditions of judicial officers and its
proposals are awaiting the approval
of the Salaries and Remuneration
Commission. The JSC approved the
creation of additional posts in the
magistracy and Kadhis establishment
and now has before it a recommendation
from my office to immediately promote
278 magistrates and 12 Kadhis. We
have assented to the formation of an
association to represent the interests
of paralegal staff, and hope to have
structured engagement with them.
The Judiciary must be a place where
the dignity of workers is respected and
upheld. It is a place that must care for
the welfare of its staff to take away any
excuse to convert public goods and
services into private gain.
The Kenyan public has expressed its
frustrations with the inefficiencies
in the Judiciary’s case management
system, which has contributed to huge
backlogs. When judicial officers report to
work late, sit for very short periods and
casually adjourn cases, it is not surprising
that the Judiciary would be swamped by
close to one million case backlog.
An initial analysis of the case backlog
lays bare the anatomy of the problem:
close to two thirds of the cases are
traffic-related. As an immediate
response, I have appointed a Chief
Magistrate to specifically deal with this
issue in a comprehensive and speedy
manner. Further, I will be writing to the
Commissioner of Police asking him to
indicate to us those cases he thinks his
officers can no longer sustain so that we
clear them out of our system.
At the High Court alone, we found 2,015
pending criminal appeal cases. Some
have been not been heard for as long as
20 years because their files are missing
or the records are incomplete. It is a
mockery of the oft-quoted legal adage
that justice delayed is justice denied, and
we have taken decisive steps to right the
situation. Civil cases in the courts hold up
a great amount of resources needed for
economic growth. Clearing the backlog
will not only serve the ends of justice
but also free resources into the economy
and deepen investor confidence.
First, I am happy to report that the
Judiciary has now completed digitising
60 million pages of cases for the High
Court across Kenya. The Court of Appeal
has digitised 10,000 records covering
the years 1999 to 2010. Some 1,042
cases that should be progressing in the
High Court are waiting arguments at the
Court of Appeal while some 942 main
appeals are yet to be heard. We have
asked parties in the oldest cases, filed
as far back as 2004, to take dates within
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the month so that their matters can be
disposed of. Within six months, I expect
the Court of Appeal to be handling only
fresh applications. I intend to reduce
the waiting period for appeal cases from
the current average of six years to less
than a year.
Further, my office and the ICT department
are in the process of creating an
electronic-based system for monitoring
and tracking overdue judgments and
rulings with a view to taking remedial
action. It is the policy of the Judiciary
that once proceedings begin, cases will
be heard back-to-back on a first filed,
first heard basis. Queuing of cases will
take away the incentive for corruption.
In the days to come, the public will
be able to access case information by
short text messages (SMS). We are also
embarking on a major computerisation
of the Judiciary that will ensure that
proceedings are recorded electronically.
As part of this programme, the Supreme
Court will be established as a paperless
Court. It is our intention to establish
a modern e-library that can serve the
interest of justice.
Judges of the High Court and the Court
of Appeal shall, from now henceforth,
be empanelled automatically using
computer software that removes the
human hand from the choice of those
who hear cases. In future, cause lists
will not contain the name of the judge,
to shield judges from undue influence or
being hunted down by litigants.
Kenyans have suggested extending
the sitting time, having night courts. It
is a proposal we are keen to consider
operationalising as staff numbers in the
Judiciary rise.
I have also redeployed three other
experienced Chief Magistrates to clear
the backlog of cases in civil, criminal
and commercial appeals courts. These
magistrates will report to the judges who
head their respective divisions on their
specific mandate.
Case backlogs also result from
understaffing. In order to address
this shortcoming, we have embarked
on a major recruitment drive for the
Judiciary. In the past 120 days, the
Judiciary has hired 28 new High Court
Judges, bringing the total number of to
80. We have advertised for 7 additional
Court of Appeal Judges and another
160 magistrates. An amendment to the
Judicature Act makes the High Court
judges not to be less than 120 and the
Court of Appeal not to have less than
30 judges.
In order to free judges to do what
they are primarily mandated to do
– hearing and deciding cases — we
have completely separated the judicial
function from the administrative. Judges
will not be sitting on administrative
committees for procurement and
tendering; just as magistrates will no
longer act as registrars in addition to
hearing cases. We will have a policy
that ensures judges and magistrates
are in stations for specific periods. As
work on a comprehensive transfer
policy continues, we have ensured that
judges and magistrates do not criss-cross
stations to eliminate the problem of
part-heard cases.
Once we lay down the burden of the
case backlog, the Judiciary is determined
to prevent a recurrence of this
phenomenon.
I am instituting performance contracting
in the Judiciary. Performance based
management will be applied to both
judicial and administrative staff. A fully
fledged directorate of performance
management is to be established and
an advertisement has already gone out
for the recruitment of its head.
I intend to strictly enforce deadlines on
writing of judgments and the hearing
of cases. In the days to come, I intend
to review the rules on deadlines with a
view to further shortening this period
as more staff more joins the Judiciary.
The hiring of 129 researchers, whose
positions have only recently been
advertised, will ensure that each and
every judge has a research assistant.
We shall spare no effort or resource
to ensure that judicial officers deliver
quality justice in an efficient and timely
manner.
In order to promote sound management
practices, we have also established
the Judiciary Transformation Steering
Committee chaired by the Deputy Chief
Justice and where all stakeholders in
the judicial system are represented.
The Steering Committee, under the
strong and able leadership of the Deputy
Chief Justice Hon. Nancy Baraza, has
developed an Integrated Comprehensive
and Institutional Transformation
Framework. The Judicial Transformation
Comprehensive Strategic Plan whose 10
clusters will be given to all of you today
is a product of this Steering Committee.
Further, I have moved to strengthen
the office of the Chief Justice. Under
the new Constitution, the canvass of
responsibility for the Office of the Chief
Justice has expanded considerably
– judicially, administratively and in
terms of policy making. The CJ is a
judge of the Supreme Court, and is
expected to sit in court, hear cases
and write judgements. He is also the
president of that Court, which bestows
managerial responsibilities. He is the
head of the entire Judiciary, which has
enormous administrative implications.
He is the Chair of the Judicial Service
Commission and the National Council
for Administration of Justice. He also
plays ceremonial duties and functions
such as swearing in of Constitutional
office holders and advocates. To deliver
on this broad mandate the office needs
executive competence. The office of
the Chief Justice cannot operate as it
does now with two secretaries and
six bodyguards and still discharge
its functions effectively as well as
hold the other arms of government to
account. This state of affairs imperil
our democracy as the imperative of
checks and balances effectively becomes
inoperative when the balance of power
is heavily tilted in disfavour of the
judicial arm, as it is now. To remedy
this problem, I have appointed a Chief
of Staff to oversee the establishment of
the Executive Office of the Chief Justice.
Both the President of the Court of
Appeal and the Principal Judge will also
have to establish nimble but efficient
executive offices to be able to perform
their functions. We must modernise our
Judiciary informed by known models and
practices of 21stcentury management
science.
The reform of the administrative limb
of the Judiciary is one that rarely
receives sufficient public attention.
The work that judicial officers do is
determined to a large extent by the
quality and efficiency of the support
system that they have. However, this
part of our human resource needs
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Kenya Law Reports
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immediate attention. We have launched
an accelerated professionalization
programme of the administrative staff
of the Judiciary. We have advertised for
six positions of Directors for Finance, ICT,
Procurement, Administration and Chief
Accounts Controller and five Registrars,
each to serve the Supreme Court, the
Court of Appeal, the High Court, the
subordinate courts and the Judicial
Service Commission. I appeal to Kenyan
professionals to make applications for
these jobs as the cause of justice would
only be better served if our country’s
best and brightest offer to serve in its
bastions. We have also launched the
Sexual Harassment Policy to protect
our own staff from predatory social
behaviour that not only undermines our
professionalism, violates staff rights but
also creates artificial barriers to career
growth and development.
As part of efforts to reorganise the
Judiciary and to optimise efficiency,
the Supreme Court is now operational
following the establishment of its
registry and publication of its interim
rules of procedure. Its courtroom is
being restructured to make it modern
with a view to launching it before the
end of January. The Court of Appeal is
to be decentralised to Garissa, Nyeri,
Eldoret, Kisumu and Mombasa. The
construction of some of these Courts
are at an advanced stage.
I have reorganised and reconstituted
the divisions of the High Court in an
attempt to honour and respect the spirit
of the Constitution and the popular
aspirations of our people as expressed
through their sovereign will in the
referendum. There are now divisions
for Land and Environment, Judicial
Review, Commercial and Admiralty,
and Constitution and Human Rights.
The Commercial and Admiralty division
will accelerate the adjudication of
commercial disputes and reduce the
transaction costs of justice for the
private sector.
The Constitution and Human Rights
division will be the court of first instance
in constitutional cases; and will play
a leading role in addressing the many
issues around the interpretation and
enforcement of our expanded Bill of
Rights. The Land and Environment
division will deal with the critical issues of
sustainable development and equitable
distribution of resources. We intend to
reinforce these divisions as the Judiciary
recruits more staff.
In the meantime, we are considering
the modalities for fast-tracking certain
matters relating to children, victims of
sexual offences and older persons. We
also recognise the need to fast track and
conclude cases that have been in court
for over three decades.
In pursuing the important objective of
bringing justice closer to the people, we
are establishing 14 new courts in places
where the Judiciary has never before
had a footprint. Additionally, 8 mobiles
courts have been set up and 38 new
vehicles released to serve court stations
in historically marginalised areas. For
the first time in Kenya’s history, a judge
of the High Court of Kenya has been
posted to Garissa. More court stations
will be subsequently established in
Lodwar, Isiolo and other marginal
districts including Archer’s Post, Wamba,
Kakuma, Lokitaung, Lokichoggio and
Loitoktok, as a way to reduce the cost
of justice for litigants.
We wholeheartedly embrace the
culture of continuous learning, vigorous
debate and peer review. Until now,
there has been no organised training
for judicial officers. A curriculum is
under development for the Judicial
Training Institute and a full time Director
has been appointed. Justice Paul
Kariuki we have a well respected and
innovative Director. The JTI will provide
the intellectual anchor in making our
Courts the home and hearth of a robust
jurisprudence. It is pivotal to a successful
Judiciary. It was never facilitated to
meet the training needs of the courts.
Going forward, the Institute will have
its own conference and residential
facilities and staff as it moves towards
awarding degrees. The JTI must become
our judicial think tank, an institute of
excellence, the nerve centre of robust
and rich intellectual exchange, where
the interface between the judiciary
and contemporary developments in
society occurs. I see the institute hosting
conferences on critical issues, attended
by judges, magistrates, and paralegals
where our collective intelligence can be
harnessed for the benefit the country.
An important component of the reform
of the Judiciary is the vetting of judges
and magistrates as called for in the
Constitution, and further provided for
in the Vetting of Judges and Magistrates
Act. Given the enormity of public interest
in this matter and its direct bearing on
the confidence of my judicial officers,
I directed that the constitutional case
filed on this matter be fast-tracked and
a quick and fair determination made on
it. A ruling on this matter is expected
in November. When it does take place,
the position of the Chief Justice and
the JSC is that it should not be on the
basis of witch hunt but must be fair
and transparent and concluded in the
most reasonable time possible. Should
this process not be concluded within a
reasonable time, the case backlog will
become a Sisyphean boulder we keep
pushing uphill only for it to roll back.
I also urge the Executive to expedite
the process of appointment of foreign
members to the Vetting Board and do
so in a consultative manner.
Throughout what appear like tumultuous
changes, I pay special tribute to the
Judicial Service Commission that
enjoys an expanded role under the
new Constitution. It has stuck to the
law and ensured that the hiring of
officers of the Judiciary benefits from
public participation. I look forward
to its support as we execute our
transformation programme.
In conclusion, I would like to point out
that the Judiciary will not change until
those who serve in it and the public
change their attitude and behaviour.
When we say that judicial authority is
derived from the people the implication
is that the people should be law abiding
– make use of other fora of justice such
as family, churches and mosques and
other alternative dispute resolution
mechanisms because court actions are,
in their very nature, adversarial. Kenyans
must see themselves as the change they
wish to see in the Judiciary.
Dear Kenyans, this is the judicial
transformation journey I have embarked
on. It is my hope that through this I have
brought a future to the present. Please
walk with me.
Thank you.
Hon. Dr. Willy Mutunga, SC
Chief Justice/President of Supreme
Court Republic of Kenya
10
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Remarks on THE INAUGURAL SITTING OF THE SUPREME
COURT By Dr Willy Mutunga, S.C., Chief Justice and President of the Supreme Court of Kenya.
Thank you to everyone and welcome
to the Supreme Court of the Republic
of Kenya. The Hon. Minister, the Hon.
Attorney General, the Chair of the
Law Society of Kenya, Senior Counsel,
Counsel, litigants, Court Staff and the
general public:
We are gathered here for a
moment whose significance
should not be lost on us. It
is the first sitting of the Supreme Court
of this great Republic, and an important
step towards further realization of the
hopes and ideals of our Constitution.
This sitting therefore is progress on the
road to a better Kenya of and in itself.
This inaugural session is not the official
launch of the Supreme Court. Rather
it is a ceremonial event being hosted
to symbolize the commencement of
the operations of the Supreme Court,
which has two matters before it. It is
however truly a historic event in our
nation’s history. A complete and formal
launch of the Court will be held once
we complete the construction of that
Court and where all the three arms of
government will be invited.
Since its being sworn- in, and
subsequent assumption of office, the
Supreme Court has been as eager as the
rest of the Kenyan public to commence
operations. It is fitting to mention that
the sitting here today was prefaced by
the publication of the interim Supreme
Court Rules, which will guide the
operations of this Court in the execution
of its mandate. In this public eagerness
we detect an abiding hope and faith
that the Supreme Court will not waver
or favour in the pursuit of justice. These
are aspirations firmly secured in our
Constitution and solemnized by our
Oath of office.
Further, we also have an opportunity
not only for the Judiciary but all of legal
professionals to reflect on the functions
and role of this Supreme Court. This
Court must first be seen as an integral
part of our Court system – but it is more.
In particular, I think it is opportune at
this inaugural sitting of the Supreme
Court, for legal professionals specifically
to reflect on the way justice is delivered
in our country and the reasons for
which the people deemed it necessary
to firstly create a new court in its apex
and, secondly, for the assertion in the
Constitution that “Judicial Authority is
derived from the people.”
My answer is the obvious one that
the people of Kenya realized that the
courts had been less than perfect in
living up to their responsibilities. Yet,
they also understood that ultimately
the Judiciary must remain the bastion of
justice and the rule of law. We need to
understand that the Supreme Court is an
additional constitutional device deemed
necessary by the framers to protect our
Constitution and secure our democracy.
As Justices of this Bench, for now and in
the future, we have an abiding obligation
to build an institution that should and
shall become an iconic monument to
the rule of law.
Thirdly, going by the responsibilities
prescribed by the Constitution to this
Court, I as its President, the Deputy
President who is currently away on
official duty and our colleagues, its
associate Justices, are not numb to
the expectations and seriousness of
the matters that are prescribed in our
jurisdiction. We appreciate that these
will be issues of grave significance
for the country’s social, political and
economic concerns. For these historic
and important roles, we pledge our
intellectual preparation as Judges of the
Supreme Court.
In deliberating upon the cases and
causes that will come before us, we
shall be steadfast to the responsibility
that Judges are servants of the law and
not the converse. In accordance with
our oath of office, we will treat every
case with objectivity and undertake
fair analysis of the legal arguments. We
will be open to the considered views
of each other on the bench and render
our judgments and decisions based
upon the evidence subject to the rule
of law, without fear of any authority or
favor of anyone or anything, devoid of
ill-will towards any persons or affection
towards any cause. This Court is ready to
perform its role in providing leadership
in legal interpretation; development of
solid jurisprudence in view of our new
Constitution; and stabilize precedents.
To our colleagues at the Bar, we urge
you to apply your knowledge and the
processes of this Court and the Judiciary
generally to advance substantive justice
and the rule of law. We look forward to
hearing from you refined presentations,
well-researched arguments and, not
least, fair actions in dealing with this
Court and with all parties before this
and all the Courts of Kenya. It is through
thorough research and precise legal
arguments that the Court will derive
its ability to articulate and settle legal
questions clearly. Good judicial decisions
are watered by good and incisive
arguments.
To the other coordinate arms of
government, my message is that
the Supreme Court will observe and
honor the doctrine of separation of
powers even as it secures, protects and
proclaims its independence. We shall
not use our independence or interpret
the doctrine of separation of powers in
a manner that transgresses the domain
of the Executive or the Legislature. But
neither shall the Supreme Court flinch
nor blink in defending its independence
and in executing its judicial mandate
with respect to inter-branch relations as
proclaimed in the Constitution.
To the litigants and citizens of the
country, we assure you that this Court
understands that as final arbiter, the
impact of its decisions will extend
beyond the parties in any case, and
will shape society and affect daily
lives. This is not an obligation that we
shall approach lightly. It is not lost on
this Supreme Court that justice is the
tolerable accommodation of conflicting
interests in society; we can only assure
you that this is a people’s Court and
that the public can count on the fidelity
of its decisions to justice and the rule
of law. All persons, authorities and
figures must undertake to live by the
rule of law and therefore abide by the
decisions and judgments of this Court.
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It is only when people and authorities
respect the law as and when enacted;
and respect court decisions as and when
delivered, that the rule of law thrives. It
is indeed my hope that the public will
explore alternative dispute resolution
mechanisms so that all matters are not
litigated through an adversarial system.
There is no doubt that for this to happen,
these alternative sites of justice must
build and earn the public respect and
confidence.
But the realization of the rule of law must
be assisted. It is for this reason that we
shall have an open Supreme Court where
members of the public will be invited to
be witnesses in the manner in which the
wheels of justice turn. The design of the
Supreme Court will be one that fortifies
the doctrine of equality before the law;
one that eschews artificial hierarchy so
that the juices of justice can flow freely.
We want a Supreme Court that is easy
on its disposition and mien but rigorous
in its jurisprudence – a Court that earns
respect not from its intimidating rituals
and architectural poise but rather from
the solidity and quality of its judgments.
To enrich its jurisprudence, the Supreme
Court must develop a natural affinity to
academia. We will evolve a symbiotic
relationship between the Court and
the academy so that judgments of
the Court are cited in lecture theatres
and writings of eminent jurists inform
Court judgments. The Supreme Court
is going to develop a robust Clerkship
system which will form an important
limb between the Court and the young
academy. There is no doubt that for
the development of the law to occur
the classroom should find space in the
courtroom and vice versa.
Thank You.
Hon. Dr. Willy Mutunga, S.C.
Chief Justice, Republic of Kenya
President, Supreme Court of Kenya
26th October 2011
From bottom left to right, the Judges of the Supreme Court of Kenya: The Hon. Justice (Prof.) Jackton Boma
Ojwang', The Hon. Mr. Justice Philip Kiptoo Tunoi, The Hon. Justice Dr. Willy M. Mutunga, Chief Justice & President,
Supreme Court of Kenya, The Hon. Lady Justice Susanna Njoki Ndung'u, the Hon. Mr. Justice Mohamed Khadhar
Ibrahim and the Hon. (Dr.) Justice Smokin Wanjala at the inauguration of the Supreme Court of Kenya at the High
Court, Nairobi. Absent from the photograph was the Hon. Lady Justice Nancy Makokha Baraza, Deputy Chief
Justice, Supreme Court of Kenya.
12
Issue17: October - December 2011
“Transforming Legal Information into Public Knowledge.”

Kenya Law Reports
Bench Bulletin
NCLR Launches LAW BLOG AND DISCUSSION FORUM
By Michael M. Murungi / Editor, C.E.O
‘Wakilishare’ – start getting used to that
name because it is the biggest news
now for the legal fraternity. WakiliShare
is a forum and blog established by the
National Council for Law Reporting. The
name ‘WakiliShare’ is a conjoined term
involving three words: Wakili – which
is Swahili for ‘lawyer’ or ‘attorney’,
‘wakilisha’, which is Swahili for ‘to
represent’, and ‘share’, an English term
meaning to ‘jointly use, participate in,
enjoy or receive’.
WakiliShare is the sum total of
its constituent terms: it is a
space where a member of
the legal fraternity interacts with not
only fellow members but also persons
outside of the fraternity in jointly
sharing his or her thoughts and ideas
(representing oneself) on one aspect or
other of Kenya’s legal system and jointly
participating in seeking and providing
solutions and answers to questions,
concerns and inquiries posted by other
persons.
WakiliShare is the leading online space
for decent, fair, honest and meaningful
commentary and discussions about
Kenya’s legal system. The space is as
open to persons in the legal profession
as it is to persons from other disciplines
or indeed any other persons.
support forum for users of the National
Council for Law Reporting’s products
and services.
KenyaLaw Blog
A blog – a term formed from a fusion of the words ‘web’ and ‘log’ – is a website
or part of a website that is usually updated with new content from time to time.
Blogs are usually maintained by an individual or an institution with regular entries
of commentary, descriptions of events, or other material such as graphics or video –
Wikipedia. The KenyaLaw blog is a special web page on the www.kenyalaw.org portal
featuring regularly updated postings of news and events from the legal fraternity in
Kenya. KenyaLaw blog is interactive and enables users to post moderated comments
about any particular subject.
Wakilisha - Lawyers discussion
legal profession in Kenya and even more
importantly, post questions about and
collaborate with learned or learning
friends in finding solutions to emerging
legal issues.
Jumuika - Public discussion
Blog Discussion Forums
Wakilishare features the Kenya Law
blog and four distinct discussion forums
uniquely tailored for differring user
and subject matter profiles: Wakilsha,
a lawyers’ discussion forum; Jumuika,
an open citizen forum; Bambika a jobs,
training, professional development and
careers forum and Saidia, a technical
Have your day in open court. For
lawyers, law students and persons
with specialized knowledge about the
law, the legal system or a particular
subject of legal practice in Kenya. Make
commentary about the topical legal
issue/development of the day; discuss
general and particular issues about the
Join the conversation. For the discerning
civic-spirited individual. Share your
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
thoughts and ideas about any aspect of
the Kenyan legal system. Make general
and particular commentary about the
legal system or an aspect of it; post
questions about and collaborate with
other people in finding solutions to legal
issues of public interest; e.t.c. citizen
Bambika - Careers Discussion
Engage with the world. The connection
for people on the supply and demand side
of employment, career development,
education and training opportunities in
the legal sector in Kenya.
Saidia – NCLR Support Discussion
Be the solution. Share ideas, solutions,
queries and compliments with fellow
consumers and the National Council for
Law Reporting on any of its products
and services.
The following rules form part of our
terms of use for the forum and blog
• Children/Minors - For the
protection and welfare of
minors, WakiliShare is not open
to persons under the age of 18
years.
• Disclaimer: Legal advise -
Disclaimer - Postings made
by forum users are personal
opinions and not those of
the National Council for Law
Reporting. Such opinions
should not be taken to be
necessarily true, factual,
authoritative, legally binding or
constituting proper legal advise.
The National Council for law
reporting is NOT responsible for
the content or accuracy of any
of the information contained
in forum postings or any loss
that may be suffered by relying
on an opinion or suggestion
posted on Wakilishare. Users
are advised to carefully consider
any advice they give or receive
on Wakilishare and to consult a
lawyer or other professional for
legal or any other professional
advise.
• Use the right forum – There are
four different discussion forums
on Wakilishare: Wakilisha;
Jumuika; Bambika and Saidia.
Each forum is tailored for a
unique theme of discussions.
Users are asked to familiarize
themselves with the four
discussions forums and to
post their comments in the
appropriate forum. Make sure
that you use the right forum
for your question or comment.
If you post an appropriate
message on an inappropriate
forum, the Forum Moderator
may move it to the appropriate
forum.
• Stick to the subject -
‘WakiliShare’ is a forum for
discussion and debate about
Kenya’s legal system. All
postings should be appropriate,
decent and relevant. Postings
that deviate from the subject,
or stray significantly from
the original question may be
locked or hidden by the Forum
Moderator.
• Be fair and accurate - Postings
must be accurate (where
they state facts), and where
they represent opinions, such
opinions must be genuinely
held and fairly expressed.
• Be Decenct - Users are required
to be respectful towards other
forum users, the Moderator
and the staff of the Council. A
user must not antagonize other
users or post any information
that could be considered
defamatory, obscene, abusive,
offensive, inflammatory,
unlawful or creates a risk to
a person’s safety, wellbeing
or health. A user must not
engage in bullying, stalking,
aggressive, discriminatory or
nuisance behaviour or any other
behaviour that is contrary to
decency or violates the law.
• Don’t get personal - Users
may not use Wakilshare to
post personalised attacks
against individuals, groups
or institutions. Any criticisms
should be positive and
expressed in a fair, decent and
balanced manner.
• Creative ideas and suggestions -
Users understand that any ideas
or suggestions included in the
postings made on Wakilishare
(including private messages)
are made on a public domain
and the National Council for
Law Reporting and indeed any
other person may take the
idea and use it, whether for
commercial purposes or not,
without necessarily referring
to the user and without owing
any such user any legal right
or obligation. Users who have
ideas or suggestions which
they intend to protect as
their intellectual property are
urged not to share them on
Wakilishare.
• Respect copyright - WakiliShare
shouldn’t be used to post,
exchange or download material
protected by copyright law,
unless the user has the
permission of the copyright
owner. A user must fully
reference any extracts from
copyrighted material. A user
who breaches copyright laws
or any other laws while on the
forum agrees to indemnify
the National Council for Law
Reporting for any loss that
it may suffer as a result. The
Council reserves the right to
remove any unreferenced
copyrighted material.
• Sub-Judice - Discussion of
pending legal proceedings is
prohibited on Wakilishare.
14
Issue17: October - December 2011
“Transforming Legal Information into Public Knowledge.”

Kenya Law Reports
Bench Bulletin
• Appropriate use - The use
of WakiliShare for any of the
following or related purposes
is strictly prohibited:
• posting spam, surveys, contests
or chain letters
• organizing, carrying out or coordinating
any actions that are
contrary to the Laws of Kenya
• inciting hatred or disaffection
against an individual, a group
or an institution
Persons who post any content that
violates these rules will be blacklisted
and their accounts will be suspended
or terminated.
• The Moderator is king – Users
are required to respect these
rules and the decisions of the
Forum Moderator, who may
edit your postings in order to
make them clearer or to bring
them in conformity with these
rules.
• Have fun – Take pleasure in
indulging your imagination and
your need to share with others
on Wakilishare.
WakiliShare FAQs
What is WakiliShare?
‘WakiliSharE’ is a forum and blog
established by the National Council for
Law Reporting (Kenya).
Is WakiliShare free to use?
Yes. WakiliShare are a free service, open
to everyone.
How do I participate on WakiliShare?
You can fully participate on WakiliShare
if you are a registered member. If you are
new to WakiliShare, you need to register
by clicking on the ‘Create an account’
link and follow ingthe instructions. If you
already have an account on WakiliShare,
enter your username and password in
the dialogue boxes labeled ‘user name’
and ‘password’ and click on the ‘login’
button. Once you are logged in, you can
post a topic or add your comment to an
existing topic.
How do I start a topic?
Starting a topic is easy. Go to a forum –
at the top of the page you’ll see a new
topic button. Simply click on this to start
your topic.
How do I reply to a topic?
Replying to a topic is easy. When you’re
in a topic you’ll see a post reply button
at the top of the page. Simply click on
this and type your reply in the dialogue
box that appears.
Can I change my screen name?
Yes. Please email editor@kenyalaw.org
and let them know what you want to
change it to (try to think of something
that isn't already in use).
What if I forget my password or
username?
Click on the Forgot your password? Or
Forgot your user name? link and follow
the instructions that you will be given.
What do I do if I'm registered but have
forgotten my email address or no longer
have access to it?
Please email editor@kenyalaw.org
How do I search for a specific topic?
Click on the Search tab at the top of the
page. You can search all the WakiliShare
posts by topic, username or keyword.
Do the WakiliShare have a 'quote'
facility?
Yes. Simply click on the Quote button
when you're in a topic.
Will other forum users see my email
address?
No. Your email address isn't visible to
other users. To contact another user
outside of WakiliShare, you'll need to
send them a private message.
What's private messaging?
Private messaging (PM) lets you send
messages to other users, all within the
security of WakiliShare. It's safer than
sending an email as you're not revealing
your email address to anyone. You'll have
your own PM inbox within WakiliShare,
and you'll be alerted by email when
you receive a new message (you can
unsubscribe from this on your profile
page).
Can I upload an avatar?
Yes, just click on the Avatar tag at the top
of your forum profile page and follow the
instructions.
Are WakiliShare users anonymous,
or will I be able to tell who the other
users are?
WakiliShare users will be anonymous.
What's a profile page?
A page dedicated to you! Here you
have the option to add extra details
about yourself, such as your real name,
occupation or location. Your profile page
also shows your last 10 postings.
Can I add attachments to forum posts?
No. You won't be able to attach
documents to your posts.
Can I have more than one screen name
for WakiliShare?
No. Our forum rules don't allow you to
have more than one login.
Are there any exceptions to the 'one
login' rule?
Yes. Moderators are allowed to have
more than one login.
Will there be a spellchecker on the new
WakiliShare, and can I edit my post after
I've submitted it?
There is a spellchecker on the forum but
once you've submitted your post you
won't be able to go back to edit it.
Can I put links into my forum postings?
Yes, as long as they're relevant and not
pointing to indecent, shocking or other
inappropriate content and are not
promoting any commercial activity.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
Introducing THE KLR CASEBACK SERVICE
By Michael M. Murungi / Editor, C.E.O
The KLR CaseBack Service is a service
provided by the National Council
for Law Reporting to Judicial
Officers (Judges and Magistrates).
CaseBack alerts a judicial officer when
his or her decision has been considered
by a court of higher jurisdiction. A
judicial officer whose decision has been
considered receives an email alert along
with the decision of the higher court
immediately that decision is received
by the Council.
The CaseBack service aims to contribute
to the rule of law and the development
of jurisprudence by providing an
information loop in which judicial officers
continually develop and improve upon
their understanding and application of
the principles of law.
If you are a Judicial Officer and would like
to know more about the service, please
contact Ms. Monica Achode or Mr.
Cornelius Lupao on Tel: 020-2712 767
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Bench Bulletin
Strategic Planning Quality Assurance And Performance Department
NCLR UP GRADES ITS ORGANIZATIONAL STRUCTURE WHILE
ESTABLISHING A MEDICAL AND PENSION SCHEME
By Esther Nyaiyaki Onchana, Snr. Assistant Editor, Strategic Planning Quality Assurance and Performance Department.
Organizations require structure
to achieve stated goals. The
structure of an organization
determines the method by which
it performs business operations. To
operate efficiently and systematically,
the National Council for Law Reporting
has upgraded its organizational
structure. An organizational structure is
defined as “the way that an organization
arranges people and jobs so that its work
can be performed and its goals can be
met.” An efficient company structure
can benefit the organization in several
ways, including making it easier to
delegate responsibility and effect change
throughout the organization.
One of the Council’s organizational
objectives is to ‘To create an organizational
framework that ensures the recruitment,
selection, management, remuneration,
development and rewarding of our
human resources and an organizational
culture that optimizes productivity and
efficiency, encourages innovativeness
and creativity and fosters positive
inter-personal relations and social
responsibility.’
It is on this basis that Board of the Council
resolved to approve the implementation
of a new organizational structure for
National Council for Law Reporting on
October 28 2011. The implementation
of the new structure is through a process
implementation rationalization and
upgrading of current members of the
Council’s staff. The Board’s decision
followed recommendations of the
Board’s Human Resources Committee,
comprised of three members of the
Board, namely, Prof. Otieno-Odek (Dean
University of Nairobi and Chairperson
of the Committee), Mrs. Flora Mutua
(Ministry of State for Public Affairs), and
Mr. Christopher Ombega (Inspectorate
of State Corporations). The committee
consulted with the management of
the Council for two months. The
Council’s management had prior to this
involved employees from all levels of
the organization to gain deeper insight
into how to review the organizational
structure.
The decision to upgrade the structure
was based on various reasons.
Firstly the Council did not previously
have an organization structure that
properly defined the full or optimum
staff establishment and the reporting
relationships for the Council. Secondly,
in view of the adoption of a strategic plan
by the Council in 2010 and the projected
growth in the mandate and staffing of
the Council there was need to come up
with an optimal organizational structure
of the Council. Thirdly there was need to
do away with ambiguity and confusion
caused by unclear reporting relationships
in the Council, it was recommended that
clear structures be established in the
organizational chart. Further there was
need for a more beneficial scheme of
services to be prepared for the positions
of driver, receptionist, office assistants,
collection agents and data processors at
the Council.
Under the upgraded organizational
structure the total composition of
members of staff is lean in order to
enhance the Council’s efficiency and
flexibility. The organizational structure
shows the hierarchical levels of NCLR’s
management as being the Board
of Directors (the apex of the NCLR
organizational structure), the Editor (at
level 1), the Snr Assistant Editor and
the Secretary (at level 2) and the eight
departmental management offices
(at level 3). The eight departmental
offices were comprised of the following
departments: Editorial; Laws of Kenya;
Research and Development; Strategy,
Quality Assurance and Performance
Evaluation; Finance; Human Resources
and Administration; Sales, Marketing
and Customer Care.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
17

Kenya Law Reports
Bench Bulletin
Strategic Planning Quality Assurance And Performance Department
NCLR ORGANIZATIONAL STRUCTURE
NCLR BOARD OF DIRECTORS
KLR
1
EDITOR / CEO (1)
KLR
2
SENIOR ASST EDITOR
(1)
SECRETATY (1)
KLR
3
ASST. EDITOR,
EDITORIAL DEPT
(1)
ASST. EDITOR,
LOK DEPT (1)
ASST. EDITOR,
R&D DEPT (1)
MANAGER
STRATEGY &
QUALITY (1)
MANAGER
FINANCE DEPT
(1)
MANAGER, HR &
ADMIN DEPT (1)
MANAGER, ICT
DEPT (1)
MANAGER, SALES
MARKETING &
CUSTOMER
SERVICE (1)
KLR
4
Senior Law
Repoter I
(1)
Publishing
Officer (1)
Senior Law
Repoter (1)
Publishing
Officer (1)
Senior Law
Reporter
I (1)
Librarian
(1)
Corporate
Affairs
Officer
(1)
Program
Officer (1)
Accounts
Officer I (1)
Procurement
Officer (1)
HR and
Admin Officer
I (1)
Systems
Analyst (1)
Sales, Marketing &
Customer
Care Officer (1)
The Council establishes a Medical Scheme and Pension Scheme
In bid to improve the terms and conditions for its employees the Council has established a medical scheme. Since July 2006,
the employees of the National Council for Law Reporting were covered under the Judiciary Medical Scheme. The Judiciary
medical scheme was extended to the Council due to the Council’s budgetary constraints. The scheme will give the Council’s
employees access to affordable and comprehensive healthcare facilities.
The Council will also establish a staff pension scheme based on a defined contribution plan.
In the past employees on contractual terms were only eligible to gratuity payment at the end of the contractual period. The
scheme will provide the Council’s employees with a retirement income arrangement at the end of their career.
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Bench Bulletin
INSTITUTE By Andrew Halonyere, Asst. Law Reporter, Editorial Department.
if the Judiciary is to enhance its capacity
in service delivery. It goes on to note that
the Judiciary has now embraced the role
of training and continuous professional
development of judicial officers and staff
seriously.
Judicial training is integral to the
improvement of performance in the
institution. In many jurisdictions,
judiciaries have over time embraced
the culture of quality service and
efficiency in order to meet increasing
workload and expectations of the
consumers of their services. In this
regard, the Judiciary established
the Judicial Training Institute (JTI) in
September 2008. The mandate of the
JTI is to provide induction courses and
continuous professional development
for judicial officers and other staff.
To this end the JTI has developed
training modules and courses which are
structured by way of content, duration
and method of delivery.
In the Final Report of the Task Force
on Judicial Reforms presented in July
by the chairman, the Hon. Mr. Justice
William Ouko it is noted that continuous
professional development of staff is vital
Editorial Department
Training of MAGISTRATES AT THE JUDICIAL TRAINING
In November 2011 the National
Council for law reporting pursuant to
an invitation by the Judicial Training
Institute took part in the Training of
Newly appointed Magistrates. The
training was conducted at the Institute
by Esther Nyaiyaki Deputy CEO, Ann
Asugah Assistant Editor and Andrew
Halonyere Assistant Reporter.
The training brought together about
twenty six magistrates from various
court stations throughout the country.
The Council under the leadership of
Esther Nyaiyaki gave a presentation
on the Role of the National Council for
Law Reporting in the Administration of
Justice.
During the training the magistrates
were informed about the council’s
latest products being the 1992, 1993,
1994, 2006(2), 2007(2), 2008 and 2009
Kenya Law Reports Volumes as well
as three new volumes of the Election
Petition Law Reports. The magistrates
were also informed about the Grey Book
Laws of Kenya Volume which contains
a compilation of Acts of Parliament
governing the substantive and procedural
matters commonly arising in criminal
and civil litigation in Kenya, The recently
published land laws of Kenya Volume
which comprises of twenty six selected
statutes governing land in Kenya , the
commercial Laws of Kenya volumes
& 2, a selection of several statutes
governing commercial transactions
in Kenya, the public finance laws of
Kenya, a volume containing statutes
that currently regulate management
of public finance and finally the Family
and Gender Laws of Kenya volume – a
compilation of legislation governing
family law and property.
The magistrates were also trained on
how to carry out research by using the
newly revamped website. The website
has been redesigned to bring it up to
date to the existing technology and it has
incorporated social networking features
such as twitter, facebook and U Tube.
To enable the Council to serve them
better, the Magistrates were requested
to timely send their cause list and also
contribute articles to be published in the
Kenya Law Review Journal.
The National Council for Law Reporting
supported the training by donating
to the magistrates some its related
publications i.e the Bench Bulletin, Two
editions of the Kenya Law Monthly and
two CD,s of the Grey Book Laws of Kenya
and the Land Laws of Kenya.
NATIONAL COUNCIL FOR LAW REPORTING
HOME CASE SEARCH LAWS OF KENYA KENYA GAZETTE CAUSE LIST PRACTICE NOTES BENCH BULLETIN NEWSLETTER KLR JOURNAL ADVOCATES CLE
where legal information becomes public knowledge
P.O. Box 10443 - GPO 00100, Nairobi,Kenya , Tel: (+254 020) 2712767 2719231,
Fax: (+254 020) 2712694, info@kenyalaw.org
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
19

Kenya Law Reports
Bench Bulletin
Information Communication Technology (Ict) Department
NCLR leaps towards CYBER SECURITY
By Michael Mayaka, Team Leader, ICT Department.
With the advent of APT
(Advance Persistent Attacks),
virtually all organisations are
moving to a “Security World”. First, let
us get a glimpse of what “APT” actually
means:
Advanced persistent threat (APT)
usually refers to a group, such as a
foreign government, with both the
capability and the intent to persistently
and effectively target a specific entity.
The term is commonly used to refer
to cyber threats, in particular that
of Internet-enabled espionage, but
applies equally to other threats such as
that of traditional espionage or attack.
[1]Other recognised attack vectors
include infected media, supply chain
compromise, and social engineering.
Individuals, such as an individual hacker,
are not usually referred to as an APT as
they rarely have the resources to be
both advanced and persistent even if
they are intent on gaining access to, or
attacking, a specific target.[2]
The security world is abuzz over
Stuxnet, perhaps the most sophisticated
malware attack ever. It appears to
have targeted certain facilities in Iran,
particularly nuclear facilities, and
infiltrated networks one would think
to be proactively secured. Stuxnet
used many new and innovative tools
to perform this infiltration, and one of
them was to use binaries digitally signed
with the code signing certificates of two
legitimate companies.
Definitions of precisely what an APT is
can vary, but can be summarized by their
named requirements below:[3][4][5]
• Advanced – Operators behind
the threat have a full spectrum
of intelligence-gathering
techniques at their disposal.
These may include computer
intrusion technologies and
techniques, but also extend
to conventional intelligencegathering
techniques such
as telephone-interception
technologies and satellite
imaging. While individual
components of the attack may
not be classed as particularly
“advanced” (e.g. malware
components generated from
commonly available do-ityourself
malware construction
kits, or the use of easily
procured exploit materials),
their operators can typically
access and develop more
advanced tools as required.
They often combine multiple
targeting methods, tools, and
techniques in order to reach and
compromise their target and
maintain access to it. Operators
may also demonstrate a
deliberate focus on operational
security that differentiates them
from "less advanced" threats.
• Persistent – Operators give
priority to a specific task, rather
than opportunistically seeking
information for financial or
other gain. This distinction
implies that the attackers are
guided by external entities. The
targeting is conducted through
continuous monitoring and
interaction in order to achieve
the defined objectives. It does
not mean a barrage of constant
attacks and malware updates. In
fact, a “low-and-slow” approach
is usually more successful. If
the operator loses access to
their target they usually will
reattempt access, and most
often, successfully. One of the
operator's goals is to maintain
long-term access to the target,
in contrast to threats who
only need access to execute a
specific task.
• Threat – APTs are a threat
because they have both
capability and intent. APT attacks
are executed by coordinated
human actions, rather than
by mindless and automated
pieces of code. The operators
have a specific objective and are
skilled, motivated, organized
and well funded.
Well, this said and done, NCLR ICT Team
has aggressively dwelt on unleashing
tighter measures to secure all the
internally coded systems that have been
deployed. This also include systems
collaboratively deployed in other
Government Organisations (Kenya ICT
Board, Kenya National Assembly, The
Judiciary).
The First and most important step
has been to implement Code Signing.
This is a process that uses Public Key
Infrastructure (PKI) technology to create
a digital signature based on a private
key and the contents of a program file,
and packages that signature either with
the file or in an associated catalog file.
Users combine the file, the certificate
and its associated public key to verify
the identity of the file signer and the
integrity of the file.
This is being achieved mainly by using a
blend of tools:
The JDK (Java Development Kit) which
comes with a suite of command line
tools. With Java, once the certificate
is installed into the Java keystore, the
jarsigner tool is run, specifying the JAR
file to sign and the certificate to use. The
signature is added to the JAR file.
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Information Communication Technology (Ict) Department
Apple’s code signing tools are part
graphical tool, part command line.
There are graphical tools for generating
certificates, but the code signing utility
is a classic UNIX-style command line
tool that performs signing as well as
verification of files.
Once the PKI framework is fully
implemented in Kenya, security of NCLR
systems will be further enhanced to
ensure accurate delivery of Public Legal
Information.
References:
1. http://www.commandfive.
com/apt.html: "Are you being
targeted by an Advanced
Persistent Threat?". Command
Five Pty Ltd.
2. http://www.commandfive.
com/threats.html: "The
changing threat environment...".
Command Five Pty Ltd.
3. http://www.damballa.com/
solutions/advanced-persistentthreats.php:
"What's an APT?
A Brief Definition". Damballa.
January 20, 2010.
4. http://www.commandfive.
com/apt.html: "Are you being
targeted by an Advanced
Persistent Threat?". Command
Five Pty Ltd.
5. http://www.commandfive.
com/threats.html: "The
changing threat environment...".
Command Five Pty Ltd.
National Computer Incident Response
Teams (CIRT)
“The Secure World” – NCLR as part of
the KE-CIRT Team
NCLR ICT Team took part in a recent
two-day capacity-building workshop on
National Computer Incident Response
Teams (CIRT) opened in Nairobi hosted
by CCK in collaboration with the Ministry
of Information and Communications and
the George Mason University, USA.
The workshop discussed among others
cyber risk and defense, national cyber
security framework, the role of national
and sector CIRTs, regional collaboration,
cyber security awareness and public
key infrastructure. Country experiences
in relation to cyber security efforts
were also shared during the workshop.
Regional participants included Rwanda,
Burundi, Ugand and Tanzania.
Attended by various stakeholders in
both government and the private sector,
the workshop drew speakers from
law enforcement, the Directorate of
e-Government, the Telecommunications
Service Providers Association of Kenya
(TESPOK), KENIC, academia, the local
ISACA chapter, information security
professionals, the banking sector, the
other East Africa ICT regulators and
representatives from the International
Cyber Centre at George Mason University
(USA).
The NCLR, represented by the Editor/
CEO, moderated a lively session on
the second day of the workshop. The
session focused on Cybersecurity and
Law (Model laws, Conventions and
other legal collaboration frameworks).
The presenters in this session included:
• Communications Commission of
Kenya
• National Police Service, Kenya
• Head of Group Forensics
Services, Kenya Commercial
Bank
Delivering the keynote speech on
behalf of the Minister for Information
and Communications, Information and
Communications Permanent Secretary
Dr. Bitange Ndemo said there was urgent
need to establish a frontline defense
to reduce current vulnerabilities and
prevent intrusions as well as shape
the future environment by enhancing
research, development and investing in
relevant advanced technologies.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
Mitigating RISKS IN LEGAL PUBLISHING
By Anne Asugah, Team Leader, Laws of Kenya Department.
Every facet of business or
enterprise presents its own
unique challenges with regards to
liability and legal complexity. The nexus
between rights and duty, obligation
and liability in legal publishing is even
more complex. In this era of freedom
of information and access to large
amounts of information, the claim to
proprietary rights to the information
becomes dilute as more people publish
modified forms of information.
To manage risks related to the
publication of legal information, a
publisher in such an area may take
several steps to ensure that liability is
minimized. The National Council for
Law Reporting being a core institution
in the business of legal publishing is
developing a risk management policy
to ensure that information provided
through its portal www.kenyalaw.org
though accurate does not give rise to
liability. Below is a short description
of what business enterprises can do to
minimize risks when publishing legal
information.
Disclaimers
A disclaimer according to Wikipedia
is generally any statement intended
to specify or delimit the scope of
rights and obligations that may be
exercised and enforced by parties in
a legally recognized relationship. It’s
like a waiver. Although necessary, a
disclaimer may sometimes water down
the credibility of the information so
published.
Imparting knowledge on copyright law
There is need to train employees of
all business enterprises dealing with
goods and services (legal information
is a service) of copyright law. In Kenya,
the Copyright Act makes provision
for copyright in literary, musical and
artistic works, audio-visual works,
sound recordings and broadcasts. It
enumerates instances when copyright is
considered as having been infringed and
provides for remedies that a court may
grant resulting from the infringement.
Training on the law relating to libelous
and defamatory material
The torts of libel and defamation are
alive and well. The Penal Code Chapter
63 of the Laws of Kenya defines libel at
s. 194 as follows;
Any person who, by print, writing, painting
or effigy, or by any means otherwise than
solely by gestures, spoken words or
other sounds, unlawfully publishes any
defamatory matter concerning another
person, with intent to defame that other
person, is guilty of the misdemeanour
termed libel.
The Act has extensive provisions on
exceptions where published material
is absolutely privileged or qualified
privilege and therefore not libelous.
Defamation on the other hand is defined
in the Penal Code under section 195 as:
Defamatory matter is matter likely to
injure the reputation of any person by
exposing him to hatred, contempt or
ridicule, or likely to damage any person
in his profession or trade by an injury
to his reputation; and it is immaterial
whether at the time of the publication
of the defamatory matter the person
concerning whom the matter is published
is living or dead.
These provisions and the defenses
available should be made in a handbook
for all employees of an organization
dealing with publishing to familiarize
themselves with in order to mitigate
risks. Even in institutions that have legal
advisors, a small lapse may cause serious
damage.
Strengthening Editorial processes
Strengthening editorial processes in
any publishing institution is a must.
This includes anonymising private
information that would defame persons
or as required by law e.g. children under
the Children Act. This includes a clear
understanding of editorial workflows
Scope
An institution may consider to publish
what is within its scope either as
mandated by statute or license. For
instance, the National Council for Law
Reporting is governed by an Act of
Parliament with clear mandate to publish
judicial opinions of the superior courts of
record and a delegated mandate of law
revision from the Attorney General. It
also has a further mandated to publish
any other related legal information.
This would ward off any unwarranted
criticism/suits by publishing material
that is outside the mandate of the
organization
Professional indemnity
An institution may consider taking out
professional indemnity insurance to
cover liability related to publication of
material that may give rise to causes of
actions and consequently protracted
legal battles which may drain the
organization financially and weakening
its standing against its competitors.
Getting necessary authority to publish
information
An Institution ought to obtain necessary
permissions to publish any information,
which is otherwise not within its scope
of publications.
Clarity of services offered by having
service charters
The reason for existence of an
organization must be succinct. Its menu
of services must be crystal clear. This can
be drawn from the mission and vision of
the organization. Hand in hand, there is
need for a deliberate strategy of having
the core values of the organization
placed at strategic locations to remind
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Kenya Law Reports
Bench Bulletin
all of what values drive the organization
in rendering of its services.
Privacy:
The right to privacy is guaranteed by
the Constitution of Kenya at Article 31,
which states:
Every person has the right to privacy,
which includes the right not to have—
Laws Of Kenya Department
(a) their person, home or property
searched;
(b) their possessions seized;
(c) information relating to
their family or private affairs
unnecessarily required or
revealed; or (emphasis mine)
(d) the privacy of their
communications infringed.
Institutions therefore ought to respect
the privacy of persons as enshrined
in the Constitution to avoid violating
rights of both individuals and corporate
persons.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
Frequently regarded as the most
unequivocal evidence of guilt, a
confession relieves doubts in the
minds of judges and jurors more than
any other evidence. In criminal law, the
confession evidence is considered to be
the most damaging form of evidence
produced at a trial and a prosecutor’s
most potent weapon-so potent that,
in the words of one legal scholar, “the
introduction of a confession makes
the other aspects of a trial in court
superfluous, and the real trial, for all
practical purposes, occurs when the
confession is obtained.” 1
For law enforcement officials, the
purpose of interrogation is twofold: to
obtain a full or partial confession and
to elicit information on other evidence
that is relevant to a case.” 2
Confession defined
Black’s Law Dictionary 3 , defines a
confession as ‘A criminal suspects’s
oral or written acknowledgement of
guilt, often including details about the
crime’ While according to Wigmore,
a confession is ‘an acknowledgement
in express words, by the accused in a
criminal case, of the truth of the main
fact charged or of some essential part
of it.’ 4
According to the Evidence Act, a
confession comprises words or conduct,
or a combination of words and conduct,
Laws Of Kenya Department
Development of the LAW RELATING TO ‘CRIMINAL
CONFESSIONS' IN KENYA & THE TEST IN CRIMINAL BEGUILEMENT
By Petronella Mukaindo, Asst. Law Reporter, Laws of Kenya Department
from which, whether taken alone or in
conjunction with other facts proved, an
inference may reasonably be drawn that
the person making it has committed an
offence. 5
Confession vis a vis an Admission
A confession is not to be confused
with an admission. An admission is a
statement, oral or documentary, which
suggests any inference as to a fact in
issue or relevant fact, and which is made
by any of the persons and in [certain]
circumstances…. 6
The essential distinction between a
confession and an admission is that,
while a confession represents an
acknowledgement of guilt, an admission
does not refer to the whole offence but
to a single fact or facts each of which
the prosecution would otherwise be
required to prove. Simply put admissions
are not conclusive proof of the matters
admitted, though they may operate as
estoppels. 7
Privilege against self incrimination
It is a common law principle that no
one should be compelled to give self
incriminating evidence-the maxim
‘nemo tenetur prodere seipsum’ in latin.
Originally, at common law, evidence
obtained by whatever means including
torture was admissible. In the eighteenth
century, common law in England
provided that coerced confessions were
inadmissible.
No person is bound to answer any
question in civil or criminal proceedings
if the answer thereto would in the
opinion of the judge have a tendency
to expose him to any criminal charge,
penalty or forfeiture which the judge
regards as reasonably likely to be
preferred or sued for. 8
Under Article 50(2) of the Constitution
of Kenya, an accused person not only
has a right to remain silent but also the
right ‘to refuse to give self-incriminating
evidence.’
Furthermore, under the Criminal
Procedure Code, 9 chapter 75 of the
laws of Kenya, some of the rights of
an accused person include the right
‘not being compelled to give selfincriminating
evidence.’
Crossing borders to the United States,
the self -incrimination clause of the
Fifth amendment to the United States
constitution provides that , "no person
shall be compelled in any criminal case
to be a witness against himself".
In India, Article 20(3) of the Constitution
guards the right to silence while in
Canada, section 11(c) of the Canadian
Charter of Rights and Freedoms provides
that any person charged with an offence
has a right not to be compelled to be a
witness in proceedings against him in
respect of an offence.
Kenyan Law relating to confessions
Prior to 2003, the law provided that
confessions made by a person whilst
in the custody of a police officer
were inadmissible unless made in the
immediate presence of a magistrate or
a police officer of or above the rank of
an inspector.
The year 2003 saw a number of key
amendments to various aspects of the
criminal justice system. It is not only the
year that saw corporal punishment as a
form of sentence lifted from the Penal
Code, it is also the time when committal
proceedings were done away with.
Raging debate on the capability of the
police to extract confessions without
resulting to means which would lead to
gross miscarriage of justice and grave
human rights violations prompted
1. Richard P. Conti, The Psychology of False Confessions The Journal of Credibility Assessment and Witness Psychology 1999, Vol. 2, No. 1.
2.Brandon, R., & Davies, C. (1973). Wrongful imprisonment. London, England: Allen and Unwin
Brothers Ltd. As quoted by Richard P. Conti ibid
3.Black’s Law Dictionary, 8th edition, p 317.
4.John H. Wigmore, Evidence in Trials at common Law at 308.
5. Evidence Act (chapter 80) Laws of Kenya, s 25.
6. See Evidence Act (chapter 80) Laws of Kenya, s 17.
7. See Evidence Act (chapter 80) Laws of Kenya, s 24.
8 Goddard L.J. in Blunt v. Park Lane Hotel [1942] 2 K.B.
9 See Criminal Procedure Code (Chapter 75) Laws of Kenya, s. 137F(1).
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amendments to the law. Through
Criminal Law (Amendment) Act (No.5
of 2003), section 28 of the Evidence Act
was repealed and a new section 25A
introduced which provided as follows:
“A confession or any admission of a
fact tending to the proof of guilt made
by an accused person is not admissible
and shall not be proved as against such
person unless it is made in court.”
However, this provision tended to
disregard extra-judicial confessions
made in police stations where majority
of confessions took place. It was also
felt that restricting confessions to
the courtroom reduced the judges to
investigators as well. Furthermore, the
word ‘court’ was not definitive.
Courts were later to define the
parameters of courts’ involvement in
recording of confessions. It has been
ruled that the court can only take judicial
confessions (or confessions made in
the due course of judicial proceedings).
In the case of R vs Maalim Komora
Godana & Another[2006]eKLR, the court
stated as follows: “…where the court is
authorized by law to record statements
of admission from accused persons, it is
inconceivable for judges or magistrates
to be involved in receiving extra-judicial
confessions made otherwise than in
proceedings before them. The court
cannot abandon its constitutional
mandate of an independent and impartial
arbiter to descend in an arena where
that independence and impartiality may
be blurred. To ask magistrates to record
confessions of suspects in matters yet
to be taken to Court is to ask them to be
part of the police investigation team. The
inevitable consequence would not only
create a clear conflict of roles but also
be against public policy. ’
In the year 2007 through Statute Law
(Miscellaneous Amendments) Act 10
the section 25A was amended to allow
for confessions made before a judge, a
magistrate or before a police officer of
a specified rank. The new section partly
Laws Of Kenya Department
reads as follows:
“A confession or any admission of
a fact tending to the proof of guilt
made by an accused person is not
admissible and shall not be proved as
against such person unless it is made
in court before a judge, a magistrate or
before a police officer (other than the
investigating officer), being an officer
not below the rank of Chief Inspector of
Police, and a third party of the person’s
choice.”[Emphasis added]
The same amendment also saw the
introduction of a subsection 2 which
mandated the Attorney General to
develop rules to govern out of court
confessions. 11
Two years later, through legal notice
number 41 of 2009, the Attorney
General made Evidence (Out of Court
Confessions) Rules, 2009, which afforded
various rights to accused persons. Under
the rules, the recording officer (a police
officer other than the investigating
officer who is not below the rank of
Chief Inspector of Police) is required
to caution the accused person. Where
the confession session is prolonged,
the session should include rest and
relaxation periods. Rule 4 of these
rules enumerates several rights of the
accused person including the right not
be subjected to any form of coercion,
threat, torture or any other form of
cruel, inhuman or degrading treatment,
the right to have legal representation,
and the right not to be deprived of food,
water or sleep.
Where the recording officer intends to
record the confession of an accused
person on an electronic recording media,
he is required to notify the accused
person of such recording and of his right
to object. Such recording must also be
in the open. 12
Conflicting provisions
It is notable however, that sections 25A
as amended and 29 of the Evidence Act
are antithetical to each other. The latter
section provides as follows:-
“No confession made to a police officer
shall be proved against a person accused
of any offence unless such police officer
is–
(a) of or above the rank of, or a
rank equivalent to, inspector; or
(b) an administrative officer
holding first or second class
magisterial powers and acting in
the capacity of a police officer.”
There is a need to amend the section to
harmonize with other provisions of the
Act and the Rules.
Admissibility of Confessions
The admissibility of confession evidence
is prefaced by the requirement that
the confession be proved voluntary.
The confession must be given freely
and knowingly without physical or
psychological coercion.
“It has long been established as a
positive rule of English criminal law that
no statement by an accused is admissible
in evidence against him unless it is
shown by the prosecution to have been
a voluntary statement in the sense that
it has not been obtained from him either
by fear of prejudice or hope of advantage
exercised or held out by a person in
authority or by oppression.” 13
Originally, at common law, even a
confession obtained by torture was
admissible. In the eighteenth century,
common law in England provided that
coerced confessions were inadmissible.
Under the Kenyan Evidence Act 14 ,
a confession is not admissible in a
criminal proceedings if the making of
the confession appears to the court to
have been caused by any inducement,
threat or promise proceeding from a
person in authority and sufficient to
give the accused person grounds which
would appear to him reasonable for
supposing that by making it he would
10. Act No. 7 of 2007.
11. The subsection authorized the Attorney-General to make the rules in consultation with the Law Society of Kenya and the Kenya National Commission on
Human Rights.
12. see Rule 6(2).
13. Phipson on Evidence, 15th edition at p 748.
14. Evidence Act (Chapter 80), Laws of Kenya, s 26.
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Kenya Law Reports
Bench Bulletin
gain any advantage or avoid any evil of
a temporal nature in reference to the
proceedings against him.
Laws Of Kenya Department
trying the question separately from the
main trial of whether the statement is
made voluntary or not.”
after considering all the material points
and surrounding circumstances that the
confession cannot be true.”
While a confession has been described
as the most attractive way of solving
crimes, courts across the various
jurisdictions across the globe have
had to grapple with the menace of
increased false confessions and hence
the increased need for determination
as to their authenticity, legitimacy and
reliability.
In the United States for instance, the
case of Brown v. Mississippi 15 was
a landmark decision on the issue of
confessions. The Supreme Court in this
case set a precedent that “a state court
conviction resting upon a confession
extorted by brutality and violence
violated the accused’s general right
to due process guaranteed by the
Fourteenth Amendment.” The Court
ruled that evidence procured through
physical torture and brutality must thus
be excluded from trials.
Three decades after the Brown case
was the landmark case of Miranda vs
Arizona 16 whereby the Supreme Court
held that a confession obtained from
a suspect in custody during police
interrogation, was admissible only if it
was made voluntarily, not coercively,
and only if the police had taken the
appropriate steps to ensure protection
of the rights of the accused under the
self-incrimination clause of the Fifth
Amendment. 17
The voluntariness of a confession is to
be determined in a trial within a trial
or voir dire. In the case of Hunja vs
Republic (Crim Appeal 359 of 1990),
the purpose of voir dire was clearly
set out thus: “There is a proper time
at which a magistrate may look at the
detail provided in the statement to
see whether it is such that it must be
true…but it is quite clear that this is not
the thing to do during a trial within a
trial… The trial within a trial procedure
is established for the very purpose of
In determining the admissibility of
confession evidence, the courts have
considered other factors that are short
of physical violence such as mental
abuse in addition to physical force and
threats. Courts have for instance held
that prolonged questioning or ‘wear
down’ technique was likely to elicit false
confessions. In the case of Chambers v.
Florida ( 309 U.S 227 (1940)the Supreme
Court ruled that prolonged questioning
and other factors that fell just short of
physical violence elicited concerns that
the confessions given by the defendants
were in danger of being false. The
defendants in this case were held for a
period of about a week without being
able to see a lawyer and were subject
to questioning on a random basis, often
alone in a room with up to ten police
officers.
An investigation into the totality of
the circumstances surrounding the
confessions was thus crucial.
Retracted confessions
Courts have reiterated the need for
caution in deciding whether to admit
evidence based on retracted confessions.
In the case of Charles Muthee Kariuki
vs. R [2006] eKLR the Court upheld the
earlier holding in Tuwamoi Vs Uganda
(1967) E.A. 84 in which it was stated
thus: .... a trial court should accept any
confession which has been retracted
or repudiated or both retracted and
repudiated with caution, and must
before founding a conviction on such
a confession be fully satisfied in all
circumstances of the case that the
confession is true. The same standard of
proof is required in all cases and usually
a court will only act on the confession if
corroborated in some material particular
by independent evidence accepted
by the court. But corroboration is not
necessary in law and the court may act
on a confession alone if it is fully satisfied
Confession incriminating a co-accused
"The fact that someone else has
confessed to the offence is logically
relevant to the issue of whether the
defendant committed it or not: this is
so whether the other person is a codefendant
who gives evidence, a codefendant
who exercises his right not
to give evidence, a co-defendant who is
tried separately, or a person who is never
caught or never prosecuted." 18
Is it permissible for a defendant to
adduce confession evidence against a
co-defendant when the prosecution
has not adduced that evidence? Would
admission of such third party evidence
offend the hearsay rule? Put another
way, in a joint trial of two defendants A
and B, is an out of court confession by A
which exculpates B but which is ruled,
or is conceded to be, inadmissible as
evidence nevertheless admissible at
the instigation of B in support of B's
defence, or does such a confession
in all circumstances offend the rule
against hearsay? What about Cross -
examination by a co-accused?
In Kenya, the law provides that evidence
of an accused person incriminating a coaccused
may be taken into consideration
as against that other person as well. 19
Similarly, in the UK, the Police and
Criminal Evidence Act 1984 provides
for admissibility of such evidence.
Section 76A(1) provides thus: “In any
proceedings a confession made by an
accused person may be given in evidence
for another person charged in the same
proceedings (a co-accused) in so far as it
is relevant to any matter in issue in the
proceedings and is not excluded by the
court in pursuance of this section.”
Cases across various jurisdictions
have however tended to apply special
safeguards and tests when it comes to
15 297 U.S. 278, (1936).
16 384 U.S. 436 (1966).
17 Amendment V to the United States Constitution commonly referred to as the Fifth Amendment forms part of the Bill of Rights. The invocation of this
privilege is colloquially referred to as "pleading the Fifth," "taking the Fifth," or "demanding the Fifth."
18 Evidence in Criminal Proceedings: Hearsay and Related Topics, UK, Law Commission consultation paper (1995), No.138, at para. 7.44
19 See Evidence Act(Chapter 80) Laws of Kenya, s. 32
20 [1996] 2 Cr.App.R. 335
26
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admissibility of such evidence. In R v.
Myers 20 , the Court of appeal embraced
an earlier decision in Reg. v. Campbell
and Williams [1993] Crim. L.R. 448 and
stated as follows: “… A defendant is
therefore entitled to lead admissible
evidence which is relevant to the proof
of the case against the co-defendant if
in so doing the defendant is advancing
his own case… [To say] that the proof
against one defendant that he has
confessed to the crime with which a codefendant
is also charged is not relevant
to the case of the co-defendant in the
same trial, that would, in our judgment,
be contrary … to common sense…” In
this case, one of three defendants ("A")
had recorded a conversation which
clearly implicated him and another
defendant ("B") but which supported
the defence of a third defendant ("C").
On appeal, the then House of Lords 21 ,
dismissed the appeal, holding in part that:
“A confession may be relevant both as
to credibility and as to the facts in issue
and it does not cease to be admissible
because it does so. Indeed so long as
it is relevant to establish his defence
or to undermine the prosecution case
against him, a defendant should in my
view be allowed to cross-examine a
co-defendant as to his confession which
goes to the facts in issue rather than
only to the credibility of the maker of
the statement. He should not less be
allowed to cross-examine the person
to whom a statement is made as to the
terms of the confession even though,
since the defendant has not given
evidence, the question of credibility
has not arisen.”
In Reg. v. Reid [1989] Crim.L.R. 719 it
was held that it was proper for one
co-defendant to seek to undermine
the appellant's defence insofar as that
consisted in blaming the co-defendant.
In Lui Mei Lin v. The Queen [1989] 1
A.C. 288, a defendant was not allowed
Laws Of Kenya Department
to cross-examine a co-defendant on a
statement incriminating the defendant
which the judge had ruled inadmissible
as part of the prosecution case because
it was not made voluntarily. In this case,
the Privy Council opined, "The only limit
on the right of a co-accused to crossexamine
another co-accused in these
circumstances is, in their Lordships'
opinion, relevancy. If one co-accused has
given evidence incriminating another
it must be relevant for the latter to
show, if he can, that the former has on
some other occasion given inconsistent
evidence and thus is unworthy of belief."
Lord Roskill further went on to state that
the judge must warn the jury that ‘they
must not use the statement in any way as
evidence in support of the prosecution's
case and that its only relevance is to
test the credibility of the evidence which
the maker of the statement has given
against his co-accused.’
Lord Bridge in Reg. v. Blastland [1986]
A.C. 41, 53 opined that a statement
by a third party not called as a witness
could not be admitted. Lord Bridge was
worried that if confessions by third
parties were admitted it would only be
too easy for fabricated confessions to
produce unjustified acquittals. However,
in Perrie v. H.M. Advocate 1992 S.L.T. 651
the Court of Session in the opinion given
by the Lord Justice (Ross) Clerk accepted
the view of Lord Bridge but considered
that an exception to the hearsay rule
existed for statements by an accused
person, at p. 654:
"This exception is allowed because an
accused is a party to the proceedings
and an admission is a statement against
interest, and is thus more likely to be
true than false . . . An accused is a party
to proceedings in a way in which an
incriminee is not; he is entitled to the
full protection which the law gives to
accused persons."
In Reg. v. Bracewell (1978) 68 Cr.App.R.
44 Ormrod L.J. enunciated this principle:
"The problem generally arises in
connection with evidence tendered by
the Crown, so that marginal cases can be
dealt with by the exercise of discretion.
'When in doubt, ‘exclude,' is a good
working rule in such cases. But when the
evidence is tendered by a co-accused,
the test of relevance must be applied,
and applied strictly, for if irrelevant,
and therefore inadmissible evidence is
admitted, the other accused is likely to be
seriously prejudiced, and grave injustice
may result."[Emphasis added]
The Privy Council in Lobban vs. The
Queen [1995] 1 W.L.R. 877, at p. 889
stated as follows:
"The principled objection to the
discretion envisaged by counsel" [i.e.
of the judge at the request of one
defendant to exclude evidence tending
to support the defence of another
defendant] "is that it conflicts with a
defendant's absolute right, subject to
considerations of relevance, to deploy
his case asserting his evidence as he
thinks fit."
However some jurisdictions have
recently found it necessary to define
the extent and weight to be attached to
a co-accused’s confessions. The Supreme
court of India most recently held that
Confessions of a co-accused cannot
be the substantive piece of evidence
and can only be used to confirm the
conclusion drawn from other evidences
in a criminal trial. It stated as follows:
“In dealing with a case against an
accused, the court cannot start with
the confession of a co-accused; it must
begin with other evidence adduced by
the prosecution and after it has formed
its opinion with regard to the quality
and effect of the said evidence, then it
is permissible to turn to the confession
in order to receive assurance to the
conclusion of guilt which the judicial
21. [1997] 3 W.L.R. 552
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Kenya Law Reports
Bench Bulletin
mind is about to reach on the said other
evidence.”
“The Government Beguiled Me”
Closely related to the issue of
confessions is entrapment. Entrapment
can be defined as the act of government
agents or officials that induces a person
to commit a crime he or she is not
previously disposed to commit.
It is worth noting that the defence of
entrapment does not apply to ‘private
entrapment’ where private persons lure
fellow citizens to commit an offence.
The law in such case would deem the
inducers as accomplices to the crime
and indeed, as principal offenders 22 .
The qualifier for an action to be called
entrapment therefore has been the
involvement of state officials. Therefore,
legally speaking private citizens cannot
‘entrap’ a person. Over the years, this
has been subject of interesting debate
across various jurisdictions with authors
interrogating the rationale for the
distinction between the two. But let’s
shelve the debate for another day.
In the very first case in which a U.S. court
considered and rejected the entrapment
defence in 1864, the court applied a
rather interesting reasoning in reaching
its findings. A New York court in the case
of Board of Commissioners v. Backus 23
rejected entrapment as a defense on
the grounds that ‘God refused to excuse
Eve when she opined, “The serpent
beguiled me, and I did eat.” If the excuse
of “beguilement” wasn’t good enough
for God, why should it be good enough
for the court?’
In offering this justification for its action,
the court chose to interpret the defense
as claiming, generally, that “beguiled”
defendants are not guilty, a claim it took
to be false. 24
Jurisprudence has however developed
across many jurisdictions around the
Laws Of Kenya Department
world with entrapment now being
considered a complete defence in many
jurisdictions so long as it passes the test
of admissibility:
a). the subjective test of entrapment:
the suspect’s predisposition
Courts have held that entrapment
does not include situations where law
enforcement officials merely provided
the opportunity for someone to commit
a crime if the person was someone who
was likely to commit the crime, with or
without the help of law enforcement.
The entrapment defense will thus fail
if it can be shown that the defendant
was ‘predisposed’ to commit the
crime; that even in the absence of
the law enforcement intervention, the
crime would nevertheless have been
committed.
Distinction has been drawn between
what is ‘predisposition’ and ‘disposition’.
The latter has to do with one’s character
because as some authors and rulings
have explained, a person who commits
a certain offence because of inducement
generally speaking has in his nature/
moral character the inclination to
commit the offence anyway.
The subjective test has been illustrated 25
thus:
‘We can think of the subjective test for
entrapment, then, as offering an account
of predisposition. According to the test,
a defendant is predisposed just in case,
when we subtract consideration of the
government’s actions, we find that the
agent still would have either performed,
or attempted to perform, an act of the
sort for which he is being tried.’
In United States v. Woo Wai (223 F.
412 (1915 U. S. App.), the defendant
was given an opportunity by actual
Immigration and Naturalisation Services
(INS) agents, whom he knew to be INS
agents and who led him to believe they
were corrupt, to smuggle illegal Chinese
immigrants into the country. The agents
assured him that he would not be caught
and convinced him of this by noting
that he would have the assistance of
INS agents interested in concealing
the crime. Since it is unlikely that
Woo Wai would have, in the ordinary
course of things, encountered corrupt
government agents in position to aid in
both the smuggling of immigrants and
the concealing of the crime, it was ruled
that there was insufficient evidence to
support the claim that the defendant
had the predisposition to commit the
crime.
b). the objective test –the conduct of
law enforcers
In this test, the defendant will
successfully claim this defence if he can
show that the state agents overstepped
their bounds in providing him with a
temptation to commit a crime. This
test lays more emphasis on the nature
of the impropriety of the conduct of
government officials.
Some authors have however still argued
that even for the objective test to
be plausible, it must focus on the
defendant’s predisposition or lack
thereof as well (the subjective test). 26
The conduct should be such that it
creates a risk of ensnaring someone
who was not predisposed to commit the
crime in question. 27
Some authors have also argued that
the entrapment defence should only
be granted if the temptor has offered
‘higher than market-level ‘inducements
to commit the crime. 28 The amount
of pressure, persuasion and threats
employed in the particular circumstances
would thus be important determinants,
and it would be up to the arbiter
to determine what falls within the
22. See section 20 of the Penal Code (Chapter 63) Laws of Kenya, on parties to offences.
23. 29 How. Pr. 33, 42 (1864),
24. Gideon Yaffe, ‘The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment.’(2005)
25. Ibid.
26. See Christopher D. Moore, ‘The Elusive Foundation of the Entrapment Defense.” 89 Nw. UL. Rev. 1151
27 Gideon Yaffe, ‘The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment.’(2005) p.16
28. Allen, Luttrell and Kreeger, ‘Clarifying Entrapment’ 89J. Crim. L. & Criminology 407 (1999).
28
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precincts of normal police investigatory
techniques (‘the market-level’) and what
is overboard(the higher than marketlevel).
In the recent Kenyan case of Mohamed
Koriow Nur vs the Attorney General
[2011] eKLR, the High Court termed
entrapment as ‘a type of lawlessness by
law enforcement officer, a substitute for
skilful and scientific investigations and a
short cut which made State agents lazy
and un-enterprising.’
The court drew the line between
what were acceptable investigatory
techniques for an undercover agent and
what amounted to incitement of persons
to commit offence and ruled that it was
Laws Of Kenya Department
improper for a police officer to induce
a person to commit an offence in order
that an offence may be detected by the
same officer. This was a misuse of state
power, and an abuse of the process of
the Courts.
The court seemed to largely apply the
objective test-that is, the conduct of the
State agent rather than the defendant’s
character or intent. Hence, the amount
of pressure or persuasion applied by the
law enforcement agent to the suspect
will be critical in such instances.
The Court stated that unless the
prosecution could prove that the
applicant in this case would have
committed the crime anyway without the
intervention of KACC officials, then such
evidence could not be countenanced by
a court of law.
Conclusion
Although the law regarding confessions in
Kenya is articulated in the statute books,
it needs to be well harmonized and
firmed up especially the contradictory
provisions of the Evidence Act earlier
mentioned. Moreover, since matters
of entrapment are now here with us
(at least ‘prominently’, stemming from
the recent High Court ruling), we may
as well consider establishing a solid
platform in form of statute law on which
such matters will be easily put to rest
as entrapment promises to form and
remain an interesting facet in criminal
defence in the years to come.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
29

By Petronella Mukaindo, Asst. Law Reporter, Laws of Kenya Department
Kenya Law Reports
Bench Bulletin
Reforming State Corporations: A REPORT OF STAKEHOLDERS'
CONSULTATIVE WORKSHOP TO REVIEW THE LAW RELATING
TO APPOINTMENTS TO BOARDS OF STATE CORPORATIONS
By Petronella Mukaindo Asst. Law Reporter, Laws of Kenya Department.
Background
"
State-Owned Enterprises (SOE) still
represent a substantial part of
Gross Domestic Product (GDP),
employment and market capitalisation.
Moreover, State-Owned Enterprises
are often prevalent in utilities and
infrastructure industries, such as energy,
transport and telecommunication,
whose performance is of great
importance to broad segments of the
population and to other parts of the
business sector. Consequently, the
governance of SOEs will be critical to
ensure their positive contribution to a
country’s overall economic efficiency
and competitiveness.” 1
State Corporations, also known as
State Owned Enterprises (SOE’s) and
sometimes referred to as Parastatals
contribute a significant share of the
economy. In Kenya, we have over a
hundred and eighty state corporations
straddled in virtually all sectors of
the economy from energy, to health,
finance, education and many other
key sectors.
Many countries across the globe have
recognized the great role that SOE’s
play in a country’s economy and have
taken conscious measures geared
towards entrenching good corporate
governance in these institutions.
The balance to be struck between
a State's responsibility to actively
exercise its ownership functions while
at the same time refraining from
imposing undue political interference
in the management of the company has
been a perennial challenge for many
democracies the world over. Central to
this debate has been the thorny issue of
appointments to the heads and Boards
of these public institutions.
Laws Of Kenya Department
In Kenya, state corporations are primarily
governed by the State Corporations Act,
chapter 446 of the laws of Kenya. There
is however a plethora of other statutes
that establish and seek to regulate
the respective state corporations. As
we shall see later, this has posed a
major challenge in the governance,
management and regulation of state
corporations in Kenya where we
have parallel provisions between the
legislative regimes.
The State Corporations Act defines a
state corporation as a state corporation
established under section 3 of the Act,
a bank or a financial institution whose
shares or stocks are wholly or majorly
controlled/owned by the Government,
a subsidiary of a state corporation and
a body corporate by or under an Act of
Parliament or other written law.
It is worth noting that local authorities,
co-operative societies, building societies,
the Central Bank and companies
incorporated under the Companies
Act which are not wholly owned or
controlled by the Government do not
however qualify as state corporations. 2
Section 3 of the State Corporations Act
gives the President power to establish
state corporations. The section provides
thus, ‘(1) The President may, by order,
establish a state corporation as a body
corporate to perform the functions
specified in the order.’
Under the Act the Board is key as it
performs management functions for the
corporations:
“A Board shall be responsible for the
proper management of affairs of a state
corporation and shall be accountable for
the moneys, the financial business and
the management of a state corporation.” 3
One of the key principles of good
corporate governance of SOE’s according
to the Organization for Economic Co-
Operation and Development (OECD) 4
Guidelines is that of integrity and
competence:
“The boards of state-owned enterprises
should have the necessary authority,
competencies and objectivity to carry
out their function of strategic guidance
and monitoring of management. They
should act with integrity and be held
accountable for their actions.”
The Constitution and State Officers
Chapter Six of the Constitution of
Kenya, 2010 clearly states that authority
bestowed upon a State officer is a
public trust to be exercised in a manner
that among other things promotes
public confidence in the integrity of the
office. Some of the guiding principles
of leadership and integrity include
selection on the basis of personal
integrity, competence and suitability,
or election in free and fair elections. 5
Under Article 73, the authority vests
in the State officer the responsibility to
serve the people, rather than the power
to rule them. 6
Article 232 of the Constitution
enunciates principles and values of the
public service. Among the principles is
fair competition and merit as the basis
of appointments and promotions and
accountability for administrative acts.
In Kenya, a number of controversies
and ‘board room wrangles’ witnessed
in various corporations can and have
been attributed to Board appointments
to those corporations. The weekly Kenya
1. OECD Guidelines on Corporate Governance of State-Owned Enterprises (OECD, 2005) p9.
2. S. 2 State Corporations Act (Chapter 446) Laws of Kenya.
3 See s.15 State Corporations Act.
4 OECD is a forum where the governments of about 30 democracies that work together to address the economic, social and environmental challenges of
globalization. 4 Allen, Luttrell and Kreeger, ‘Clarifying Entrapment’ 89J. Crim. L. & Criminology 407 (1999).
5 See Article 73(2) of Constitution of Kenya, 2010.
6 Article 73(1) of Constitution of Kenya,2010.
30
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Gazette is a number of times awash
with notices of appointments and
reappointments of heads and Board
members to key state corporations.
The criteria and processes leading to
the appointments however remains a
mystery to the larger populace.
The committee on delegated legislation
The Committee on Delegated Legislation
is a parliamentary Select committee
established by Standing Order 197 of
the Standing Orders of the National
Assembly. The Committee was
established in the year 2007 and is
charged with the mandate of ensuring
that statutory instruments are laid
before the House as may be provided
under any written law and to scrutinize
such instruments to ensure that they are
consistent with parent statutes. 7 The
committee is currently chaired by Hon.
Amina Abdalla.
Early this year, the committee and
other stakeholders (including NCLR)
concluded a consultative workshop that
saw stakeholders’ recommendations
on scrutiny of statutory instruments
culminate into a draft Statutory
Instruments Bill. The Bill was published
mid October 2011 8 . The Bill seeks
to streamline the process in which
statutory instruments are made, the
publication, operation and scrutiny of
statutory instruments so as to foster
transparency, accountability and public
participation in the process.
Closely related to this mandate is the
exercise of power of appointments to
key public institutions delegated to
the executive (either Ministers or the
President) by the various enabling Acts
of Parliament. It was noted that in order
to check the exercise of this power and
enhance transparency in the process,
there was a need for a re-examination
of the current law and practice of
appointments to Board members of
state corporations.
Laws Of Kenya Department
Stakeholders’ workshop
It is against this backdrop that the
Committee convened a workshop for
stakeholders to discuss and interrogate
the current practices and problems
in board appointments, compare the
practice with other jurisdictions on
Board appointments and chart the way
forward in streamlining the process.
The workshop was scheduled between
the 3rd to the 5th November, 2011
at Hotel La Mada Nairobi. The forum
brought together representatives
from the State Corporations Advisory
Committee (SCAC) 9 , Law Reform
Commission, Law Society of Kenya,
National Council for Law Reporting
(NCLR), Kenya National Assembly
and members of the Committee on
Delegated Legislation. Members of the
committee present included the Hon.
Ababu Namwamba (Vice-Chairperson
to the Committee), Hon. Njoroge Baiya,
Hon. Kiema Kilonzo and Hon. John
Mututho. NCLR was represented by Ms
Petronella Mukaindo at the forum.
The Hon. Ababu Namwamba welcomed
participants to the forum. The aim of the
workshop was threefold namely:
(i) to review the Statutory
Instruments Bill, 2011;
(ii) to review and examine the
loopholes or the weakness
existing in the present system
of appointment of Heads and
Boards of State Corporations ;
and
(iii)to Propose amendments to the
State Corporations Act and to
the law generally in view of the
inherent challenges
Current state of State Corporation
Appointments in Kenya
Many of the challenges facing our state
corporations today are not new and
can be traced way back to the 1960S
and 70s. Soon after independence,
through Sessional paper number 10
of 1965, the government sought to reengineer
Parastatals into vehicles for
the indigenization of the economy. The
years 1965 to the late 1970s, saw rapid
mushrooming of State Corporations
with little or no Government regulation.
However, in the year 1979, a Presidential
Committee chaired by Philip Ndegwa
was established to review Statutory
Boards and chart a reform agenda
towards reforming these institutions.
The findings of the Committee revealed
several problems, some of which have
persisted to date. These included, lack
of clear guidelines on establishment of
SOE’s leading to functional overlaps,
inefficiency, poor management due to
poor selection of directors and senior
staff, unclear reporting procedures for
the various Parastatals that operated
under one ministry, absence of a
coordinating authority, appointment
procedures and terms and conditions
of service amongst other challenges.
Some of the recommendations made
by the Ndegwa committee included
the establishment of various regulatory
agencies; that is, the Department of
Government Investments and Public
Enterprises (DGIPE) and Parastatal
Advisory Committee (PAC) the precursor
to SCAC.
The Ndegwa committee also
recommended the strengthening of the
role of the Inspectorate of Statutory
Boards as established in 1966. 10 On
Governance, the committee made
several recommendations including
that chairmen be non-executive and
be appointed by the President, that
relevant ministers be responsible for
appointment of directors in consultation
with the Parastatal Advisory Committee,
that no person should be appointed
to more than one Board and that
Board members must be competent
to participate effectively in the Board
business. The committee further
recommended that Chief Executive
Officers should be appointed by the
7 See Standing Orders of the National Assembly, Order No. 197(2).
8 Kenya Gazette Supplement No. 134, Bill No 54
9 SCAC falls under the Office of the President and is established under section 26 of the State Corporations Act. It consists of a chairman, permanent secretary
to the treasury, Director of personnel management, Inspector-General (Corporations) and eight other members appointed by the President. The Committee’s
mandate includes advising on the matters and performing any functions it is required to perform under the Act including to review and investigate the affairs of
state corporations and make such recommendations to the President as it may deem necessary, to advice the President on the establishment, reorganization
or dissolution of state corporations amongst other functions.
10 This is the precursor to the current Inspectorate of State Corporations.
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relevant minister in consultation with
the Parastatal Advisory Committee.
Later in 1982, the Government
appointed a working group to review
Parastatals. The review revealed that
many of the causes of inefficiencies in
Parastatals could be traced directly to
their relationship and responsibilities to
the Government. Specifically, the review
revealed the following:
i. Political considerations
occasionally overrode merit,
suitability and experience in the
appointment of Board members
and chief executives.
ii. “Parastatals” often received
instructions from various
sources within Government,
including parent ministries,
Inspectorate of Statutory
Boards (now Inspectorate of
State Corporations), Parastatal
Advisory Committee (now
State Corporations Advisory
Committee), and the Treasury
which hampered effective
management and efficient
operations.
Both the 1979 and 1982 reviews
recommended enactment of a law
for regulating the management of
Parastatals. In 1986, the State
Corporations Act was enacted for the
purpose of controlling and regulating
state corporations.
During the stakeholders workshop, the
following were highlighted as some of
the key problems facing management
of State Corporations today:
i) Lack of Transparency and
accountability
“The State should act as an informed and
active owner and establish a clear and
consistent ownership policy, ensuring
that the governance of state-owned
enterprises is carried out in a transparent
Laws Of Kenya Department
and accountable manner, with the
necessary degree of professionalism and
effectiveness.” 11
In Kenya, little is known about the
management and appointment
processes that are followed in relation
to public sector Boards. Little or no
information is provided to the public
on the processes that are followed
to fill positions on public boardsfrom
identifying vacancies through to
choosing suitable candidates. This has
left the public appointments as avenues
for cronyism at the expense of meritbased
appointments.
Since the authority of state officers is a
public trust bestowed upon the officers
by the public, 12 the constitutional
spirit of public participation calls for
greater transparency even in the way
appointments are made to these offices.
Transparency in the appointment
processes not only enhances
accountability and performance of those
entrusted to manage the corporations,
members of the public are likely to have
more confidence in the system as a
result of having information on relevant
aspects of appointment processes.
ii) Multiplicity of legislation regulating
state corporations
Although the principal statute governing
the process of appointment of Heads and
Boards members of State Corporations
is the State Corporations Act (Cap.
446), there exists a multitude of other
acts of parliament, orders, regulation,
circulars that pronounce the manner
of management and the process of
appointment of Heads and Boards
members of various State entities. This
has created loopholes which are easily
exploited by the appointing authorities
and sometimes even brought about
complexity in reporting procedures.
For instance, in some of the statutes,
appointments of Chief Executive Officers
are left to the responsible minister
thereby negating the power given to
the Board whereas under the State
Corporations Act, the chief executive is
appointed by the Board. 13
iii) Lack of Clear guidelines on
appointments
There lacks clear guidelines on
the qualifications, selection and
appointment processes of members to
these Boards. This ambiguity has created
field for possible abuses in appointments
based on political considerations at the
expense of merit.
iv) Lack of Independence: Under the
State Corporations Act , the President
has power to give directions of a general
or specific nature to members of the
Board. This is inconsistent with the
principle of independence. For instance,
section 7 of the Act provides thus:
“The President may give directions of
a general or specific nature to a Board
with regard to the better exercise and
performance of the functions of the
state corporation and the Board shall
give effect to those directions.”
What is the practice in other
Jurisdictions?
“All public appointments should be
governed by the overriding principle of
selection based on merit, by the wellinformed
choice of individuals who
through their abilities, experience and
qualities match the need of the public
body in question.” 14
In other jurisdictions around the world,
governments have recognized the
need to enhance public confidence in
the integrity of the political processes
around public sector appointments. They
have established transparent processes
with a high degree of independence, and
emphasis has been given to merit-based
appointments.
In Canada for instance, the selection
11 OECD Guidelines, 2005 at p 13
12 See Article 73 of the Constitution of Kenya, 2010.
13 See s 5(3) State Corporations Act.
14 Office of the Commissioner for Public Appointments, (UK) Code of Practice for Ministerial Appointments in Public Bodies, August 2005, p9.
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criteria for board positions and
CEOs is required to be made public
and opportunities are required to
be published in the Canada Gazette.
Additionally, there is a procedure in
the Standing Orders of the House of
Commons for Order in Council that
appointments be tabled in the House
and referred to the appropriate standing
committee for review.
In some Provinces for instance British
Columbia, appointments to boards of
public agencies go through a specialized
central agency which screens all
applicants according to skills-based
criteria determined in advance without
ministerial involvement.
The UK has a comprehensive
appointment process that is relatively
systematic and transparent, based
on a set of comprehensive principles
and a code of practice for public
sector appointments. These principles
include: openness and transparency,
proportionality, probity, merit and
independent scrutiny. 15 The system
requires appointments to be advertised
and a shortlist to be compiled by a panel
that is overseen by an independent
assessor. The Commissioner for Public
Appointments is required to conduct
regular annual audits on appointments
that are made by organizations that fall
within the remit of the Commission for
Public Appointments in order to assess
compliance with the Code of Practice.
Laws Of Kenya Department
There is also a Cabinet Appointments and
Honours Committee that is consulted on
the majority of appointments to public
sector boards. Ministerial involvement
in appointments is also set out such
that although ministers are involved in
agreeing to the appointment criteria
and the processes to be followed
and can nominate candidates at the
commencement of the process, they
must take no further part in the process
until the decision stage. They will be
limited to selecting from the candidates
put forward by the selection panel or
department who meet the criteria.
In Australia, there is express provision
against appointment of public servants
to state corporations Boards, except in
exceptional circumstances. This is also
the case in Korea, where the state has
no direct representatives on SOE boards.
The way forward?
• There was a consensus that the
multiplicity of laws regulating
state corporations hampered
seamless management and
running of these institutions
and that an omnibus legislation
to consolidate and harmonize
the laws that currently regulate
the multitude of corporations
was desirable.
• Need for a central regulatory
authority to oversee/regulate
the corporations was crucial.
• There is need to establish
and codify clear guidelines
on the establishment of state
corporations and appointment
of heads and boards of SOEs.
• Transparent processes with a
high degree of independence
that ensures merit-based
appointments. Establishing
well structured and transparent
board nomination processes in
fully or majority owned SOEs
was crucial.
• There was also need for greater
accountability in the running
and management of affairs of
state corporations including
exercise of ownership by state
corporations.
• Need for parliamentary
participation and/or
independent party involvement
in the selection and nomination
processes.
The forum proposed that a working group
led by SCAC and a ‘wider net’ of other
stakeholders from relevant disciplines
be set up to interrogate the possible
alternatives and champion the much
needed reforms in the establishment,
management and regulation of SOEs.
15 UK Code of Conduct
Participants keenly follow session during the stakeholders’ consultative workshop held between the 4th & 5th November, 2011
at Hotel La Mada, Nairobi.
The workshop convened by the Parliamentary Committee on delegated legislation sought to review current law and practice
in appointments to state corporation Boards in Kenya & gather recommendations on the way forward.
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Laws Of Kenya Department
Mr. Stephen Kirogo; Secretary to the State Corporations Advisory
Committee; makes his presentation.
Mr. Apollo Mboya; Secretary/CEO, Law Society of Kenya
making his presentation during the workshop.
Above: NCLR’s Ms Petronella Mukaindo presents a policy paper at the forum.
Above: Participants keenly follow discussions during the workshop.
There is a need to streamline the current legislative framework and practise surrounding governance and appointments to
SOEs.
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Introduction
The Kenya Human Rights
Commission, Nairobi together
with Equal Rights Trust (ERT)
which is based in the United Kingdom
organized a workshop for identified
groups of people on the key principles
of anti-discrimination law. The emphasis
was on how to promote these principles
under the Constitution of Kenya, 2010.
The Conference was conducted by one
Dr. Sarah Kinyanjui- the Co-ordinator of
the School of Law- University of Nairobi,
Mombasa and Dr. Declan O’Dempseyan
international expert in Equality.
The National Council for Law Reporting
was represented by Emma Kinya-
Editorial Department and Wambui
Kamau, Laws of Kenya department.
Laws Of Kenya Department
Report on THE EQUALITY AND NON-DISCRMINATION LAWS
WORKSHOP HELD ON 6TH AND 7TH OCTOBER, 2011 AT THE
LEISURE LODGE HOTEL, MOMBASA
By Wambui Kamau, Legal Researcher, Laws of Kenya Department.
The two day training was divided into
two sessions: the first session tackled
the domestic legislative and practical
framework while the second dealt with
the international framework.
Equality and Non-Discrimination:
The Legislative Framework
Introduction on equality and
discrimination was made with specific
reference to the Kenyan Constitution
as the main piece of legislation. This
is because several provisions of the
Constitution reflect a strong commitment
to the principles of equality and nondiscrimination
thereby representing a
significant step forward in the level of
protection from discrimination in Kenya.
The focus of the conference was to
examine these constitutional provisions
and analyse them on an international
and comparative perspective.
The main purpose of using the
Constitution as a case in point is
because of the principle of constitutional
supremacy where a principle of
subservient law being in conflict with
the superior law, then the superior law,
in this case being the Constitution, is
applied and the subservient law set
aside.
In the European jurisdiction, courts
disregard provisions of national law
which are inconsistent with the European
Union Law.
Chapter IV of the Constitution of Kenya,
2010 provides for the spinal provisions
on the Bill of Rights. In addition to this
chapter, Article 10 which provides for the
National Values and Principles acts as a
facilitating provision in the achievement
of the implementation of the Bill of
Rights. Hereunder, is a discussion on
how these constitutional provisions have
sought to entrench the principles of nondiscrimination
and equality.
The following provisions of the
Constitution were the main focus points
on matters non-discrimination and
equality.
Constitutional Provisions
Article 10 acts as the overriding provision
when it comes to constitutional
interpretation and application. This is
because it binds all State organs, State
Officers, Public Officers and all persons in
enacting or applying or interpreting any
law or making or implementing public
policy decisions.
One of the trainers, Declan O’Dempsey during one of the sessions, while standing from left, Wambui Kamau, Dr. Sarah Kinyajui,
Emma Kinya and Declan O’Dempsey
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Laws Of Kenya Department
Participants listen keenly in one of the sessions conducted by Dr. Sarah Kinyajui.
These values and principles are listed as
including equity, social justice, equality,
non- discrimination and protection of
the marginalized.
These values act as the guiding factor
in the application of any constitutional
provision. It therefore goes without
saying that any provision relating to nondiscrimination
and equality should factor
in these values and principles.
Emphasis was placed on the right to
equality and thus was defined as the
right of all human beings to be equal in
dignity, to be treated with respect and
consideration and to participate on an
equal basis with others in any area of
economic, social, political, cultural or
civil life.
The Free- Standing Rights
The rights to Equality and Right to Nondiscrimination
are considered as free
standing rights by the Declaration on the
Principles of Equality. 1 As much these
two rights are complementary and have
a strong and obvious correlation, the
right to equality goes beyond the right
to non- discrimination
The right to equality is the right of all
human beings to be equal in dignity, to be
treated with respect and consideration
and to participate on an equal basis with
others on any area of economic, social,
political, cultural or civil life. It is based
on the fact that all human beings are
equal before the law and have the right
to full and equal protection and benefit
of the law.
The right to non- discrimination is
subsumed in the right to equality.
How the Kenyan Constitution
underscores the principles of equality
and Non- discrimination
There are several provisions that
the Kenyan Constitution has on the
safeguarding of the right to equality
and Non- discrimination. In addition to
Article 10 discussed above, they include:
1 Article 232 (1) (i): Where the
Public Service is obligedto
afford adequate and equal
opportunities for appointment,
training and advancement, at all
levels of the public service of
men and women, members of
all ethnic groups and persons
with disabilities.
2 Article 27 serves as the main
provision for equality and
freedom from discrimination.
It comes out quite strongly on the
following issues:
a) Duty placed on the State and
persons not to discriminate
directly or indirectly.
b) Unlimited grounds of
discrimination due to the use of
the word ‘include’ in sub-article
(4). This has the implication
to mean that the grounds of
discrimination are not limited
to race, sex, pregnancy, marital
status, health status, ethnic
or social origin, colour, age,
disability, religion, conscience,
belief, culture, dress, language
or birth. This list is open-ended.
An interesting twist to the open ended
list is that discrimination laws have to
be certain and having an open ended
list leads to a possibility of additional
grounds of discrimination.
The Kenyan Legislative framework is
compared to the United Kingdom’s
Equality Act, 2010 in section 149 whereby
duty is placed on public authorities
where in the exercise of its functions,
should have due regard to the need to—
(a) eliminate discrimination,
harassment, victimisation
and any other conduct that is
prohibited by or under this Act;
(b) advance equality of
opportunity between persons
who share a relevant protected
characteristic and persons who
do not share it;
(c) foster good relations between
persons who share a relevant
protected characteristic and
persons who do not share it.
Direct and Indirect Discrimination
1 Adopted in London, 2008.
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Discrimination must at least cover acts
or omissions that have the purpose
or effect of nullifying or impairing
recognition or enjoyment or exercise of
various rights.
Discrimination may be direct or indirect.
The need to protect from discrimination
arises from the fact that discrimination
may be committed intentionally or
unintentionally and legislation must
provide for equal protection from
discrimination regardless of the
ground or combination of the grounds
concerned.
Direct discrimination occurs if a person,
on the basis of any of the protected
grounds, treats another person less
favourably than he treats or would
treat other persons whose relevant
circumstances are the same or not
materially different. To summarize this
definition, the following three factors
have to be present to indicate direct
discrimination:
a) Less favourable treatment
b) On a particular ground
c) Where comparators are the same
As for direct discrimination, the following
cannot be used as defenses:
a) the lack knowledge of the
discriminative ground (Simon v
Brimham Associates (1987) ICR
596; and
b) the absence of a discriminatory
motive (James v Eastleigh
Borough Council, UKHL)
On the other hand, indirect discrimination
occurs when a provision, criterion or
practice which is applied or would be
applied equally to all persons:
a) Puts or would put persons to
whom a particular protected
ground applies at a particular
disadvantage when compared
Laws Of Kenya Department
with other persons, and
b) Which cannot be shown to
be proportionate means of
achieving a legitimate aim.
The difference between direct and
indirect discrimination is that there is no
justification as to direct discrimination,
however one can justify indirect
discrimination. This justification arises
where there is a proportionate means
to achieving a legitimate aim.
Limitations to Article 27
Limitation may only be by law and it
must be reasonable and justifiable in
an open democratic society based on
human dignity, equality and freedom.
Further principles are that
a) Provisions limiting a right
after the Constitution must
specifically express the intention
to limit the right or freedom and
the nature and extent of the
limitation and
b) The limitation must not result in
the right or freedom derogating
from its core or essential
content.
Affirmative Action
Article 260 defines ‘affirmative action
to include any measure designed to
overcome or ameliorate and inequality
or the systemic denial or infringement of
a right or fundamental freedom. On this,
there are several guiding factors which
include that the particular affirmative
action:
a) should be clear, targeted and
specific;
b) time bound and subject to
periodic review to assess its
impact;
c) designed to address past
disadvantage and accelerate
progress towards equality;
d) should not disproportionately
disadvantage others, and
e) should be used to meet particular
needs of disadvantaged groups.
In Some of the constitutional provisions
on affirmative action include:
a) Article 27 (8) where no more
then two-thirds of members of
elective or appointive bodies
shall be of the same gender.
b) Article 100 where legislation
to promote representation of
marginalized groups.
Protected Groups
The Constitution offers specific
protection to particular groups, which
are children, Persons with Disabilities,
Youth, Minorities and marginalized
groups and older members of society.
In relation to engagement in economic
spheres, the youth, minority and
marginalized groups are to be provided
for equal opportunity in opportunities
for access to employment.
Conclusion
In a nutshell, it is important to note that
equality does not necessarily include
the absence of inequality but it also the
following principles:
a) The need to achieve equality in
practice
b) Positive action and balancing
acts of positive discrimination
c) Treating like situations alike and
unlike situations unlike.
d) Opening for reasonable
accommodations for disabled
persons.
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A). ACTS OF PARLIAMENT
INTRODUCTION
Legislative authority of the republic
of Kenya is derived from the
people and at the national level, is
vested in and exercised by Parliament.
This is according to Article 94 of the
Constitution of Kenya 2010 which
is the supreme law of the land. In
exercise of this function, Parliament
from mid- September, 2011 to mid-
November has enacted the several laws
in compliance with the 5th Schedule
of the Constitution. Below is a brief
summation of legislation enacted
by Parliament September to mid-
November 2011
PRICE CONTROL (ESSENTIAL GOODS)
ACT (NO. 26 OF 2011)
This Act was gazetted on the 23rd of
September 2011 to provide for the
regulation of the prices of essential
commodities in order to secure their
availability at reasonable prices.
Essential commodities are those goods
that may be declared from time to time
by order in the Gazette to be essential
for purposes of determining the
maximum prices off the commodities in
consultation with the industry. One precondition
that the Minister will have
to consider in making a declaration for
essential commodities is the relevant
treaty or convention.
The orders as to essential goods may
contain the maximum price taking
into account related costs of essential
commodities in any area in Kenya. The
commencement dates of any orders
made are on the day the order comes
into operation unless another date is
specified.
Offences created under the Act are as
follows:
a) Selling any commodity declared
as an essential good above the
maximum price.
b) Purchasing or offering to
purchase any essential good
Laws Of Kenya Department
Legislative update: ANALYSIS OF RECENT LEGISLATION
By Wambui Kamau, Legal Researcher, Laws of Kenya Department.
above the maximum price.
The penalty for contravening these
provisions is a fine not exceeding one
million shillings or to imprisonment for a
term not exceeding five years or to both.
THE NURSES (AMENDMENT) ACT (NO.
27 OF 2011)
The Nurses Act was enacted to make
provision for the training, registration,
enrolment and licensing of nurses. It
further regulates their conduct and to
ensure their maximum participation
in the health care of the community.
The (Nursing Amendment) Act seeks
to amend among other provisions the
provision relating to the composition
of the Nursing Council of Kenya by
making it more comprehensive. The
new members include the Director of
Education, the Attorney- General, one
person with a professional background
in human resource management and
the Chief Executive Officer of the Kenya
Medical Training College. Two additional
groups that will have representation in
the Council will be nominations from the
Kenya Progressive Nurses Association
and religious organizations providing
health services in Kenya.
Further amendments are with regard
to Council meetings to be held four
times a year as opposed to six times
where quorum for such meetings will be
seven members, of which four members
shall either be a registered midwife,
a registered community health nurse,
a psychiatric, one registered general
nurse, one nurse nominated by the
National Nurses Association of Kenya,
one nurse nominated by the Kenya
Progressive Nurses Association or one
person with a professional background
in human resource management.
This Act further seeks to diversify the
Committees that the Council will appoint
which will include additional ones of
human resources, licensing, research
and examination and the standards and
ethics committees.
For one to engage in private practice,
section 17 lays down the qualifications
to be met before the issue of a
private practice license. Among the
qualifications include the practice as a
nurse for a period of three years under
supervision of a senior nurse of not less
than seven years. The license issued is
at the discretion of the Council as to the
period of years and the renewal. There
is the presumption of private practice
where the nurse is entitled to receive
for his or her own financial benefit, the
entire amount or a share of all fees and
charges from the practice or from the
partnership. However, a rider to that is
that one is not presumed to be in private
practice where they are working for the
Government or where charges and fees
do not accrue to him or her.
Among the offences created are those
with regard to failure to register as a
nurse in private practice, which attracts
a fine of up to five hundred thousand
shillings or to a term not exceeding one
year, failure to apply for a practicing
certificate or its renewal which attracts
a fine not exceeding fifty thousand
shillings.
Part IIIA has been inserted by this
Amendment law to provide for
a displinary mechanism. It mainly
provides for the conduct that is deemed
professional misconduct by a nurse.
Among the issues termed as professional
misconduct include allowing any person
to practice in one’s name, unless such
person is a holder of a practicing
certificate and one is in partnership
with him or employed by him, solicits
clients or services by use of means which
contravenes the guidelines published by
the Council, failure to keep the funds of
a client in a separate banking account
or to use such funds for purposes not
intended and such other issues as
provided for in Section 18A. The Nurses
(Amendment) Act, is to commence on
such day as the Minister may, by notice
in the Gazette, appoint which date shall
not exceed ninety days from the date of
publication.
THE TOURISM ACT (NO. 28 OF 2011)
This Act of Parliament is enacted so
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as to provide for the development,
management, marketing and regulation
of sustainable tourism and tourismrelated
activities and services. It is yet to
come into force as the commencement
date has not been gazetted as of the time
of going to press
A quick glance at the provisions shows
that the Act is divided into eleven parts.
Part II deals with the National Tourism
Strategy which should be published
in the Gazette every five years by
the Minister responsible for matters
relating to Tourism. The strategy should
be developed, managed, marketed
and regulated in accordance with the
tourism sector.
Several bodies are established under
Part III. The first one is the Tourism
Regulatory Authority whose main
objective will be to regulate the tourism
sector by formulating guidelines and
prescribing measures for sustainable
tourism throughout the country among
many other functions set out in section
7. It shall be governed by a Board whose
chairperson will be appointed by the
President. The Board will be tasked with
the mandate of ensuring that there will
be proper and effective performance of
the functions of the Authority.
The second body is the Kenya Utalii
College which will undertake tourism
and hospitality training, capacity building
for the tourism sector. The College will
be managed and controlled by a Council
whose main function will be to manage,
control and administer the assets of the
College in such manner as it promotes
the purpose of which the College is
established. The Principal of the College
is to be appointed by the Minister in
consultation with the Council through
a competitive process and with prior
approval of the National Assembly.
The Tourism Protection Service is
established which will be a specialized
police service under the supervision
of the National Police Service and the
Command of the Inspector- General of
the National Police Service. The Kenya
Tourism Board will be responsible for
marketing Kenya as a tourist destination.
The Kenyatta International Convention
Centre is also established and its main
function will be to promote business of
Laws Of Kenya Department
meetings, conferences and exhibitions.
Part IV solely deals with the establishment
of Tourism Research Institute and
monitoring mechanism. This is through
the Tourism Research Institute whose
main objective will be to undertake
and co-ordinate tourism research and
analysis. This Institute will be governed
by a Board whose chairperson will be
appointed by the President. On the
monitoring mechanisms, the Board
may recommend to the Minister or
by his own motion, the Minister may
develop monitoring mechanism and
set indicators to determine sound
management of tourism products and
services and trends affecting Kenya’s
tourism sector.
Financial bodies are established in
Part V and they are the Tourism Fund
whish shall be vested in and operated
and managed by the Board of Trustees.
The chairperson, to be appointed by
the President, shall be a person with
competence in finance matters. The
object and purpose of the Fund will be
to finance the development of tourism
products and services.
The Tourism Finance Corporation is
also established and its main object
and purpose will be to provide financial
assistance to investors or entrepreneurs
in the tourism sector, provide for
investment opportunities and business
advisory services in the tourism sector.
The Tourism Tribunal is established
in Part VI whose membership shall
consist of a chairperson nominated by
the Judicial Service Commission, an
advocate of the High Court of Kenya
appointed by the Law Society of Kenya
and three other persons in the tourism
and hospitality sector appointed by the
Minister. The jurisdiction of the tribunal
will be to appeals, complaints, conflicts,
questions arising under any decision
under the Act. The awards of the tribunal
are damages, confirming or setting aside
any decision appealed against or an
order to maintain the status quo of any
complaint or question brought before
it. Appeals from this Tribunal lie in the
High Court.
Licensing, Levy and Tax Provisions are
widely provided for in Part VII. On
tourism activities and services such
as hotel, retreat lodges, restaurants
and others as specified in the Ninth
Schedule to this Act one must have a
license issued by the Authority. On the
tourism levy, the Minister may require its
payment by persons engaged in tourism
activities. On Government tax incentives,
the Minister may propose tax and other
fiscal incentives, disincentives or fees to
induce or promote the development of
sustainable tourism; this is despite the
provisions of any relevant revenue Act.
THE VETERINARY SURGEONS AND
VETERINARY PARA-PROFESSIONALS
ACT (NO. 29 OF 2011)
This Act was enacted so as to make
provision for the training, registration
and licensing of veterinary surgeons
and veterinary Para-professionals. It
seeks to repeal the Veterinary Surgeons
Act (Cap. 366) when it commences as
the commencement date is yet to be
published in the Kenya Gazette.
Part I of this Act mainly provides for
the interpretation section which mainly
deviates from the Veterinary Surgeons
Act (Cap. 366) as clarification as to
terms used in the veterinary field has
been done. These words include animal,
animal resource industry, annual license,
and the difference between veterinary
Para-professional, specialist and surgeon
among others.
The Kenya Veterinary Board which will
be a body corporate is established in Part
II. Its main function will be to exercise
general supervision and control over
the training, business, practice and
employment of veterinary surgeons
and Para-professionals in Kenya and
advise the Government in relation to
all aspects. On the supervisory role,
the Board is to work with training
institutions to ensure that the courses
of study are sufficient to guarantee that
all trained persons acquire the minimum
knowledge and skill necessary for the
efficient practice of veterinary surgery.
The membership is drawn from a diverse
criterion which will include the Principal
Secretary from the Ministry responsible
on matters relating to livestock and
finance. There will also be the Director
of Veterinary Services, the Dean of the
Faculty of Veterinary Medicine of a public
university in Kenya, the Chairperson
of the Kenya Veterinary Association
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amongst other members. The Board
may also establish standing or ad hoc
committees to perform its functions as
and when it deems necessary.
The Provisions relating to registration and
practice are set forth in Part III. This Part
mainly provides for the qualifications and
registration of veterinary surgeons and
Para-professionals. The main difference
is shown in the qualifications where a
veterinary surgeon is one who holds a
degree in veterinary medicine and has
served an internship of not less than
twelve months while a veterinary Paraprofessional
is one who has successfully
completed a post- secondary school
training course in animal health science
of two years has obtained a certificate
or diploma or degree and has served
internship of twelve months. A veterinary
Para-professional could also be one who
is qualified in animal husbandry, range
management or wildlife health and has
undergone a course if not less than
one year in animal health and served
internship of twelve months.
On registration, there shall be a separate
register each for veterinary surgeons,
veterinary Para-professionals, temporary
registration for foreign veterinary
surgeons, licensed veterinary surgeons
and Para-professionals; approved animal
health training institutions and such
other particulars as may be advised by
the Board.
The Financial provisions of the Act are
provided in Part V and this includes the
Funds of the Board which shall comprise
of monies as may be appropriated by
Parliament, levies from animal industry,
monies accrued or that vest in the board,
or monies donated or lent to the Board.
In addition, the annual estimates shall
be prepared by the Board at least four
months before the commencement of
each financial year.
Part VI bears provisions on inquiries
and discipline by the Board while
offences and penalties are provided
in the following Part. The offences
include employing a non-registered
veterinary surgeon or veterinary Paraprofessional,
fraudulently making a false
entry in the register, forging a document
purporting it to be a certificate, receipt,
approval, impersonating and other
offences stipulated therein. The penalty
is a conviction to a fine not exceeding
one hundred thousand shillings or
imprisonment to a term not exceeding
twelve months or to both.
THE NATIONAL POLICE SERVICE
COMMISSION ACT (NO. 30 OF 2011)
This Act provides for the functions and
powers of the National Police Service
Commission which is established by
Article 246 of the Constitution. Its main
functions are provided for in Sub-article
246(3) of the Constitution which will
be to recruit and appoint persons to
hold or act in offices in the service,
confirm appointment and determine
promotions and transfers within the
National Police Service. It is further
mandated to observe due processes,
exercise disciplinary control over and
remove persons holding or acting in
offices within the Service. Other duties as
conferred on it by the enactment of this
Act include review of all matters relating
to standards or qualifications required of
members of the Service, determine the
appropriate remuneration and benefits
of the Service with the advice of the
Salaries and Remuneration Commission.
It further will investigate and summon
witnesses to assist in investigations,
approve training curricula and oversee
its implementation, hear and determine
appeals from members of the Service
among other functions set forth in
section 10.
The membership of the Commission will
be nine members who shall serve on a
full-time basis. The Commission shall
also through an open, transparent and
competitive process appoint a Secretary
who shall be the Chief Executive Officer of
the Commission. For the better carrying
out of its functions, the Commission may
also establish committees.
THE KENYA CITIZENS AND FOREIGN
NATIONALS MANAGEMENT SERVICE
ACT (NO. 31 OF 2011)
This Act mainly seeks to provide for the
establishment of the Kenya Citizens and
Foreign Nationals Management Service
and for the creation and maintenance
of a national population register and
the administration of the laws relating
to births and deaths, identification and
registration of citizens, immigration and
refugees and the administration of the
laws relating to marriages.
Part II focuses on the Kenya Citizens and
Foreign Nationals Management Service.
Section 4 sets out the functions of the
Service which will be responsible for
the implementation of policies, laws
and matters relating to citizenship
and immigration, births and deaths,
marriages. Also the identification and
registration of persons, issuance of
identification and travel documents,
foreign nationals management and
the creation and maintenance of a
comprehensive national population
register.
The Service will be governed by a Board
of Service which shall be chaired by a
person to be appointed by the President
on recommendation by the Public Service
Commission. It will have its membership
drawn from Principal Secretaries to the
ministries of Immigration, Foreign Affairs
and Internal Security.
The Board will mainly be responsible for
formulation and review of policies of the
Service in accordance with constitutional
values and principles, monitoring the
performance of the Service. It will also
be responsible for the training, discipline
and removal of members of the staff of
the Service. The day to day operations
of the Service will be conducted by the
Director- General who will be the Chief
Executive Officer of the Service.
The Service will get its funds from
monies provided by parliament through
the national government appropriations
in aid or moneys as may be authorized
to accrue in the Service.
THE PROHIBITION OF FEMALE GENITAL
MUTILATION ACT (NO. 32 OF 2011)
This Act prohibits the practice of female
genital mutilation, to safeguard against
violation of a persons’ mental or physical
integrity through its practice.
For purposes of clarity, female genital
mutilation is defined in section 2 as
comprising all procedures involving
partial or total removal of the female
genitalia or other injury to the female
genital organs, or any harmful procedure
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to the female genitalia, for non- medical
reasons. It includes clitoridectomy,
excision and infibulations. However, it
does not include a sexual reassignment
procedure or a medical procedure that
has a genuine therapeutic purpose.
To fulfill the objective of the Act, the
Anti- Female Genital Mutilation Board is
established as a body corporate whose
management will be led by a chairperson
to be appointed by the President. The
membership will draw from Permanent
Secretaries to the Ministries responsible
for gender, finance, health, education
and youth affairs. There will also be
a Chief Executive Officer who will
be responsible for the day to day
management of the Board.
The functions of the Board include the
designing, supervision and co-ordination
of public awareness programmes
against the practice, advising the
Government, formulating policy on the
planning, financing and co-ordination
of all activities relating to female genital
mutilation among other duties as
stipulated in section 5.
Offences are created in Part IV. One is
deemed to have committed an offence
if he or she;
a) Undertakes or aids, abets or
procures a person to undertake
a course of training while
under supervision by a medical
practitioner or midwife with
a view to becoming a medical
practitioner or midwife who
performs female genital
mutilation. If in this process,
a person causes the death of
another, they on conviction shall
be liable to life imprisonment.
b) Aids, abets, counsels or procures
a person to perform female
genital mutilation;
c) Procures a person to perform
genital mutilation in another
country;
d) Allows the use of any premises
to perform female genital
mutilation;
e) Is found in possession of a tool
or equipment for a purpose
Laws Of Kenya Department
connected with the practice;
f) Fails to report the commission
of the practice to a law
enforcement officer;
g) Uses derogatory or abusive
language that is intended to
ridicule, embarrass or harm
a woman for having not
undergone the practice, or a
man for marrying or otherwise
not supporting a woman who
has not undergone female
genital mutilation. For this, one
would be liable on conviction
to imprisonment for a term not
less than six months, or to a
fine not less than fifty thousand
shillings or to both.
The penalty for offences, on
conviction, committed under this Act
is imprisonment for a term of not less
than three years or a fine of not less
than two hundred thousand shillings or
to both. A claw back provision is that,
an offence is not committed where the
surgical operation is for the purposes of
a person’s physical or mental health, or
in connection with any stage of labour.
PUBLIC APPOINTMENTS
(PARLIAMENTARY APPROVAL) ACT, NO.
33 OF 2011
This Act assented to on the 11th of
November, 2011 commenced on the
14th November 2011. It came into
force so as to provide for procedures for
parliamentary approval of constitutional
and statutory appointments.
In the interpretation section, for
purposes of clarity, the drafters were
careful to define the word ‘appointment’
so as to include re-appointments to the
same body, whether or not in the same
capacity.
The main purpose of enacting this statute
was to bring into law the procedure for
Parliament’s approval for constitutional
and statutory appointments.
The procedure kicks in by section
4 requiring that any advertisement
inviting applications for nomination
shall indicate that candidates nominated
shall be required to appear before a
committee of parliament for vetting.
This provision brings into life the
constitutional provision on the right to
access of information, that every citizen
has the right to access to information
that affects him.
This law provides the process of one
to be nominated to a constitutional or
statutory office to be quite a transparent
one. It kicks off when the appointing
authority notifies the relevant House of
Parliament through its Clerk.
Aspects of transparency are featured
in this procedure as notification of
nomination is deemed to have taken
place after the appointing authority has
notifies the Clerk in writing accompanied
by information concerning the nominee.
Among the issues forwarded to the
appointing authority include the
procedure used to arrive at the nominee
and the suitability of the nominee for
the appointment proposed vis- a- vis
the nominee’s abilities, experience and
qualities that meet the need of the body
to which the nomination is being made.
In addition, all the approval hearings
are to be open and transparent with
proceedings done in camera to be the
exception rather than the norm.
To ensure timely appointments, this law
provides for the Committee to forward
its approval report within 14 days from
the date of notification. Failure to submit
a report within this time deemed to have
been approved. However, in case of
rejection, then the appointing authority
goes back to the drawing board and the
process starts afresh.
INDUSTRIAL TRAINING (AMENDMENT)
ACT (NO. 34 OF 2011)
The Industrial Training Act (Cap. 237)
makes provision for the regulation of
the training of persons engaged in the
Industry Act. Thus, this Amendment Act
seeks to provide for the establishment,
powers, functions and the management
of the National Industrial Training
Authority. It further seeks to provide for
the control and regulation of industrial
training in Kenya.
Further, section 3 was repealed and
replaced by the establishment of the
National Industrial Training Authority.
This Authority which is a body corporate
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will be responsible for industrial training,
assessing and collecting industrial
training levy and fees. It will also be in
charge of regulating trainers, developing
industrial training curricula among other
functions as stipulated in section 3A.
Section 4 is amended by replacing the
National Industrial Training Council to
be the National Industrial Training Board.
The composition of the Board will be the
Principal Secretaries from the ministries
relating to Labour,finance science and
technology. Also representatives from
the Federation of Kenya Employers and
the Central Organization of Trade Union
will form part of the membership.
Another new provision includes the
provision on permission to train by an
employer. This will be possible through
section 7A as long as the employer
obtains written permission of the
Director General. Industrial attachment
has also been provided for as long as
the person has attained the age of
eighteen years or undergoes training in a
programme requiring industrial training.
Section 23 of the Act was also repealed
and replaced by a more comprehensive
section on the appointment of Inspectors.
In the new provision, Inspectors are to
be appointed from the employees of the
Authority by the Minister on the advice
of the Board. Any inspector appointed
will be issued with a certificate of
appointment signed by the Director-
General and surrender the certificate
once they cease to be an inspector.
B) A SYNOPSIS OF BILLS UNDERGOING
DEBATE IN PARLIAMENT
Article 109 of the Constitution provides
that Parliament shall exercise its
legislative power through Bill passed
by parliament and assented to by the
President. The same Article provides
that a Bill may be introduced by any
member or committee of the relevant
House of Parliament. According to
the Standing Orders of the National
Assembly, a Bill can either be public or
private. A Private Bill means a Bill, not
being a bill introduced by a Minister,
which is intended to affect or benefit
some particular person, association
or corporate body. While a public Bill
means a Bill whether introduced by
a Minister or other member which is
intended to affect the public generally
or a section of it.
These Bills have been tabulated in
Parliament as from the period between
mid- September to mid November, 2011.
THE CONSTITUTION OF KENYA
(AMENDMENT) BILL, 2011
This Bill was introduced with the aim
of giving full effect to Articles 27(8) and
81(b), of the Constitution of Kenya,
which provides that not more than
two-thirds of the members of elective
public bodies shall be of the same
gender. The Bill further seeks to bring
clarity and certainty to the term of the
tenth Parliament while also removing
any doubts as to the date of the next
general elections under the Constitution
of Kenya 2010.The Bill therefore seeks
to give lasting solutions to the issues
of gender parity and equity in elective
positions and more specifically in the
National Assembly and the Senate.
The Bill proposes to amend the provision
on delimitation of constituencies
and wards in Article 89 (9) of the
Constitution. This is to clarify the date
on which the names and details of the
delimited boundaries come into effect.
It is proposed that the electoral units
shall come into effect for purposes of
the general election and not on the
dissolution of Parliament.
The Bill also proposes to amend Article
97 on the composition of the National
Assembly by inserting a new clause
(1)(ba) and clauses (1A) and (1B) to
provide for the realization of and
implementation of Articles 27(8) and
81(b) which specifically provide that the
State shall ensure that not more than
two-thirds of the members of elective
or appointive bodies shall be of the
same gender.
The Bill further proposes to amend
Article 98 on the composition of the
Senate by inserting a new clause (1)(ba)
and clauses (1A) and (1B) to provide for
the number of special seat members
necessary to ensure that not more than
two-thirds of the membership of the
Senate are of the same gender.
The Bill also proposes to amend Articles
101(1), 136(2)(a), 177(1)(a) and 180(1)
of the Constitution by amending the
date to clarify and settle all controversy
surrounding the date for future general
elections. It proposes the date of the
next general election to be the third
Monday in December and not the
second Tuesday in August.
The effect of the amendment is to ensure
that at all times not more than two thirds
of members of Parliament shall be of
the same gender. The amendments will
also put to rest all doubts regarding the
date of the next general elections as well
as the expiry of the term of the current
Parliament.
BOOKS AND NEWSPAPERS
(AMENDMENT) BILL, 2011
The Books and Newspapers Act (Cap.
111) makes provision for the registration
and deposit of books and newspapers,
for the printing of books and newspapers.
It further provides for the execution of
bonds by printers and publishers of
newspapers.
The memorandum of Objects and
reasons for this Bill provides that the
principal object of amending the Books
and Newspapers Act (Cap. 111) is to
require the deposit of published works
in the library of Parliament as many
Parliaments in the world also serve as
national libraries. The Bill seeks to have
a legal deposit system at Parliament to
act as a mirror wherein all the glory of a
nation’s literature is faithfully reflected
THE PYRETHRUM (AMENDMENT) BILL,
2011
The Pyrethrum Act (Cap. 340) provides
for the re-organization and regulation
of the pyrethrum industry and the
control of the growing, processing and
marketing of pyrethrum for scientific and
agronomic research.
The principal object of this Bill is to
remove the protectionist nature of the
Act by amending the Pyrethrum Act
by repealing section 16 which creates
monopoly in the pyrethrum sector
to allow for the liberalization of the
pyrethrum market. Section 16 that is
sought to be repealed currently provides
that no pyrethrum grower shall deliver
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pyrethrum or pyrethrum products to
any person other than the Pyrethrum
Board of Kenya . In addition, this section
provide sthat no person other than the
Board shall, without the permission
of the Board, take delivery of any
pyrethrum or pyrethrum products from
a pyrethrum grower or other person in
possession of pyrethrum or pyrethrum
products whether by import into East
Africa or otherwise. Therefore this Bill
seeks to repeal this section so as to
avoid the monopoly of the board in the
purchase and sale of pyrethrum.
THE BANKING (AMENDMENT) ACT,
2011
This is a Private Members Bill that’s seeks
to amend the Banking Act (Cap. 488) so
as to cap on the rate of interest charged
by banks and financial institutions
for loans or monetary advances. The
Bill also proposes to fix the minimum
rate of interest that banks or financial
institutions must pay on deposits held
in interest-earning accounts.
.
The proposed section 16B prohibits
banks and financial institutions from
charging interest at a rate exceeding four
percent of the rate set by the monetary
Policy Committee. Section 16C requires
banks and financial institutions to pay
interest on deposits at a rate of at least
seventy percent of the base rate set by
the Monetary Policy Committee.
THE CANCER PREVENTION AND
CONTROL BILL, 2011
This Bill is for an Act of Parliament to
provide for the prevention, treatment
and control of cancer. The main
objectives of the Bill as provided for in
clause 3 are:
a) the promotion of public
awareness about the causes,
consequences, means of
prevention and control of
cancer;
b) the protection of the human
rights and civil liberties of
persons with cancer;
c) the promotion of utmost safety
and universal precautions in
practices, procedures that relate
to the treatment of cancer; and
Laws Of Kenya Department
d) the eradication of conditions
that cause and aggravate the
spread cancer.
Part II of the Bill deals with Administration
and it establishes a body to be known
as the Cancer Prevention and Control
Institute, which will be a body corporate.
This Body will be tasked with the mandate
of ensuring that the objects of the Bill
are fulfilled. It will be administered by
a Board of Trustees whose membership
will be drawn from Ministry relating
to Health, Kenya Medical Association,
registered cancer and pharmaceutical
associations, registered nurses and
the Attorney General among other
members. The Chief Executive Officer
will be appointed by the Board who will
be responsible for the day to day running
of the Board.
Part III has particulars on the Cancer
Registry which the Cancer Prevention and
Control Institute is to keep and maintain.
The Register shall contain particulars
such as the institutions, associations that
provide care and treatment services for
persons with cancer and a notification
of the frequency, type and geographical
location of the cancer. This notification
has to be in the prescribed form and
will not disclose the name of the person
with cancer unless with the consent
of the person or guardian in case of a
minor. The Board is given the discretion
to correct the register in respect of any
incorrect or fraudulent entry.
Discriminatory Practices are stipulated
in Part IV. Discrimination against persons
with cancer as to the workplace, schools
and access to healthcare services in
any health institution is prohibited.
Elective positions in the public service
will not be denied against persons with
cancer. Clause 26 seeks to prohibit the
compulsion of any person to undergo
cancer screening or to disclose cancer
status for the purpose only of gaining
access to any credit or loan services,
medical, accident or life insurance.
However, sub-clause 2 allows an insurer
or health maintenance organization to
devise a reasonable limit of cover for
which a proposer shall not be required
to disclose his or her cancer status.
In regard to providing access to available
information the Government is tasked
with the mandate of promoting
public awareness about the causes,
consequences, and means of prevention
and control of cancer in Part V. It is
tasked with the training, sensitization
and awareness programmes for
employees of al national government
departments, private and informal
sectors’, community and social workers
and media professionals.
In furtherance to this objective the
Institute in liaison with the Government
is to ensure cancer prevention and
control should form part of:
a) the subjects taught in both
public and private schools;
b) healthcare services by
healthcare providers;
c) educational and information
campaigns by the county
governments.
Consent to undertake any cancer related
biomedical research is provided for in
Part VI. For one to carry out this research
on another person, written informed
consent of the person or guardian in case
of a minor is required. The person should
be informed on the aims, methods,
anticipated benefits and the potential
hazards and discomforts of the research.
Offences under this proposed law
include:
1. Contravening the provisions
of clause 21 which are with
respect to the notification to
the Institute;
2. Contravening the provisions
on the discriminatory
practices in Part IV;
4. Failure to comply with
provisions as to conducting
any cancer related human
biomedical research in clause
34;
5. These offences, upon
conviction, attracts a fine
not exceeding two hundred
thousand shillings or to
imprisonment for a term not
exceeding two years or to
both.
STATUTORY INSTRUMENTS BILL, 2011
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This Bill seeks to provide for a
comprehensive regime for the making,
scrutiny, publication and operation
of statutory instruments. It defines
a statutory instrument as any rule,
order, regulation, direction, form,
tariff of costs or fees, letters patent,
commission, warrant, proclamation,
by-law, resolution, guideline or other
statutory instrument issued, made
or established in the execution of a
power conferred by or under an Act of
Parliament under which that statutory
instrument or subsidiary legislation is
expressly authorized to be issued.
The main objectives of the Bill are in:
a) requiring regulation-making
authorities to undertake
appropriate consultation before
making statutory instruments;
b) requiring high standards
in the drafting of statutory
instruments to promote their
legal effectiveness, clarity and
intelligibility to anticipated
users;
c) improving public access to
statutory instruments;
d) establishing improved
mechanisms for parliamentary
scrutiny of statutory
instruments; and
e) establishing mechanisms
to ensure that statutory
instruments are periodically
reviewed and, if they no longer
have a continuing purpose,
repealed.
Part II of the Bill provides for the
consultations before making statutory
instruments. Clause 5 specifically
provides for instances where a regulation
making authority has to consult. These
instances are when the proposed law is
likely to have a direct, or a substantial
indirect effect on business or where
it will restrict competition. However,
consultation is unnecessary where the
statutory instrument is:
a) of a minor nature and that does not
substantially alter existing arrangements;
or
b) gives effect, in terms announced in the
government annual financial estimates,
to a decision—
i) to repeal, impose or adjust a tax,
fee or charge; or
ii) to confer, revoke or alter an
entitlement; or
iii) to impose, revoke or alter an
obligation; or
c) is required because of an issue
of national security; or
d) in relation to which appropriate
consultation has already been
undertaken by someone other
than the regulation making
authority; or
e) relates to the management of,
or to the service of members of,
the Kenya Defence Forces.
Regulatory Impact Statements are
provided for in Part III. They are to be
prepared where the proposed statutory
instrument is likely to impose significant
costs on the community or part of it.
On matters concerning the proposed
law, the contents of the statement will
include the objectives, effect, practicable
means of achieving the objectives,
assessment of the costs and benefits of
the legislation, reasons as to why other
means are not appropriate. Notification
of the statement is to be published in the
Gazette and in a newspaper likely to be
read by those affected.
Part IV seeks to facilitate the scrutiny
by Parliament of statutory instruments
by setting out the circumstances and
manner in which the proposed law may
be disallowed and the consequences
of the disallowance. This is through
the laying of the statutory instrument
before Parliament within seven days
after publication. A committee will then
be established to review it to ensure
that it is in harmony accord with the
Constitution, the Act pursuant to which
it is made, does not infringe fundamental
rights and freedoms and such other
conditions provided for in clause 14. In
its report to Parliament after scrutiny,
it shall state the overall objective of
the proposed legislation and identify
the manner in which it offends the
community. Parliament may either annul
or adopt the report. On revocation, the
regulation making body is to publish the
revocation within fourteen days.
Part V paves way for staged automatic
expiry of statutory Instruments. It
specifically provides that a statutory
instrument is revoked ten years after its
making unless:
a) it is sooner repealed or expires
or
b) a regulation is made exempting
it from expiry.
c) Its operation is extended
by the responsible Cabinet
Secretary in consultation with
the Committee.
However, only one extension is allowed.
On transition and saving, this proposed
law seeks to repeal sections 27 and
34 of the Interpretation and General
Provisions Act (Cap. 2) which deal with
the publication and commencement
of subsidiary legislation and the laying
of the rules and regulations before
Parliament.
44
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
2011 BILL TRACKER
By Christian Bernard Ateka, copy reader, Laws of Kenya Department.
A
Bill is a proposed law under
consideration by Parliament. It
does not become law (an Act of
Parliament/statute) until it is passed
through various Reading stages and
finally assented to by the President.
Parliament's Plenary Hansard of 2011.
Keep up to date with the progress of
current and draft Bills before Parliament
and read the full texts of enacted Acts
of Parliament from our website (www.
kenyalaw.org).
Below is the 2011 Bill Tracker that
enables you to check the status of
legislation in the current Parliament.
This Bill Tracker is up-to-date as at 17th
November, 2011 in accordance with the
KNA No. BILLS (2011)
SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette
Supplement
Number
1
The Vetting
of Judges and
Magistrates Bill,
2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
02.02.11 08.02.11/
09.02.11
16.02.11 Supp. No. 18
2
The Judicial Service
Bill, 2011
Minister for
Justice, National
Cohesion and
Constitutional
Affairs
02.02.11 09.02.11/
10.02.11/
15.02.11
23.02.11 Supp. No. 17
3
The National
Construction
Authority Bill, 2011
Minister for Public
Works
10.05.11 24.05.11/
25.05.11
13.10.11/
18.10.11
4
The Public
Appointments
(Parliamentary
Approval) Bill, 2011
Hon. Danson
Mungatana
31.03.11 19.07.11
20.07.11
13.10.11/
18.10.11
Supp. No. 145
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
45

Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011)
SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette
Supplement
Number
5
The Supplementary
Appropriation Bill,
2011
Deputy Prime
Minister and
Minister for
Finance
13.04.11
13.04.11
13.04.11
Supp. No. 29
6
The Independent
Electoral and
Bounderies
Commission Bill,
2011
Minister for
Justice, National
Cohesion and
Constitutional
Affairs
13.04.11
26.04.11
27.04.11
03.05.11
04.05.11
05.05.11
10.05.11
11.05.11
12.05.11
31.05.11
Supp. No. 58
7
The Unclaimed
Financial Assets Bill,
2011
Hon. Joseph
Lekuton
10.05.11
04.08.11
11.08.11/
18.08.11
03.11.11
8
The Salaries and
Remuneration
Commission Bill,
2011
Minister for
State for Public
Service
13.04.11 12.05.11/
17.05.11
31.05.11/
20.07.11
Supp. No. 69
9
The Vetting of Judges
and Magistrates
(Amendment) Bill,
2011
Minister for
Justice, National
Cohesion and
Constitutional
Affairs
04.05.11 05.05.11 11.05.11 Supp. No. 52
10
The Supreme Court
Bill, 2011
Minister for
Justice, National
Cohesion and
Constitutional
Affairs
25.05.11 02.06.11 07.06.11 Supp. No. 52
11
The Independent
Offices
(Appointment) Bill,
2011
Deputy Prime
Minister and
Minister for
Finance
09.06.11 15.06.11 16.06.11 Supp. No. 57
46
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading
Kenya Gazette
Supplement
Number
12
The Customs and
Excise (Amendment)
Bill, 2011
Hon. Julius Kones 27.07.11
13
The National Drug
Control Authority
Bill, 2011
Hon. Amina Abdalla 20.07.11
14
The Sugar
(Amendment) Bill,
2011
Hon. John Mututho 20.07.11
15
The Water
(Amendment) Bill,
2011
Hon. John Mbadi
Ngongo
16
The Finance Bill,
2011
Deputy Prime
Minister and
Minister for Finance
19.07.11 18.10.11
17
The Capital Markets
(Amendment) Bill,
2011
Deputy Prime
Minister and
Minister for Finance
19.07.11 18.10.11 09.11.11
18
The Central
Depositories
(Amendment) Bill,
2011
Deputy Prime
Minister and
Minister for
Finance
19.07.11 18.10.11 09.11.11
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
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KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette
Supplement
Number
19
The Alcoholic Drinks
Control
Hon. Fred Kapondi 19.07.11
20
The Public Service
Superannuation
Scheme Bill, 2011
Minister of State for
Public Service
27.07.11 11.10.11
21
The Engineers Bill,
2011
Minister for Roads 02.08.11 12.10.11
22
The Political Parties
Bill, 2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
20.07.11 02.08.11/
03.08.11
18.08.11/
23.08.11
Supp. No. 97
23
The Commission on
Administrative of
Justice Bill, 2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
20.07.11 24.08.11 25.08.11 Supp. No. 110
24
The Kenya National
Human Rights
Commission Bill,
2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
20.07.11 10.08.11 18.08.11 Supp. No. 100
25
The National
Gender and Equality
Commission Bill,
2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
20.07.11 11.08.11 17.08.11 Supp. No. 101
48
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading
Kenya Gazette
Supplement
Number
26
The Labour
Institutions
(Amendment) Bill,
2011
Hon. John Mututho 11.08.11
27
The Public
Procurement
and Disposal
(Amendment) Bill,
2011
Hon. Eugene
Wamalwa
16.08.11 17.11.11
28
The Ratification of
Treaties Bill, 2011
Hon. Millie
Odhiambo Mabona
12.10.11
29
The Energy and
Communications Law
(Amendment) Bill,
2011
Hon. Eng. James
Rege
11.10.11
30
The Kenya School
of Government Bill,
2011
Minister of State
for Public Service
11.10.11 26.10.11
09.11.11
31
The National Police
Service Bill, 2011
Minister of State
for Provincial
Administration and
Internal Security
18.08.11 23.08.11 25.08.11
32
The National Police
Service Commission
Bill, 2011
Minister of State
for Provincial
Administration and
Internal Security
18.08.11 01.09.11/
06.09.11
07.09.11 Supp. No. 127
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette
Supplement
Number
33
The Independent
Policing Oversight
Authority Bill, 2011
Minister of State
for Provincial
Administration and
Internal Security
18.08.11 11.10.11 18.10.11
34
The Elections Bill,
2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
23.08.11 24.08.11 25.08.11/
26.08.11
Supp. No. 111
35
The Power of Mercy
Bill, 2011
Attorney-General 23.08.11 24.08.11 25.08.11 Supp. No. 108
36
The Ethics and
Anti-Corruption
Commission Bill,
2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
23.08.11 23.08.11 25.08.11 Supp. No. 109
37
The Employment
and Labour Relations
Court Bill, 2011
Minister for Labour 23.08.11 24.08.11 25.08.11 Supp. No. 106
38
The Urban Areas and
Cities Bill, 2011
Deputy Prime
Minister and
Minister for Local
Government
24.08.11 24.08.11 25.08.11 Supp. No. 99
39
The Environment
and Land Court Bill,
2011
Minister for Lands 24.08.11 24.08.11 25.08.11 Supp. No. 105
50
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading
Kenya Gazette
Supplement
Number
40
The Kenya
Citizenship and
Immigration Bill
Minister of State
for Immigration
and Registration of
Persons
24.08.11 24.08.11 25.08.11 Supp. No. 98
41
The Kenya
Citizens and
Foreign Nationals
Management Service
Bill, 2011
Minister of State
for Immigration
and Registration of
Persons
24.08.11 25.08.11 07.09.11 Supp. No. 128
42
The Commission on
Revenue Allocation
Bill, 2011
Deputy Prime
Minister and
Minister for
Finance
25.08.11 25.08.11 26.08.11 Supp. No. 102
43
The National
Government Loans
Guarantee Bill, 2011
Deputy Prime
Minister and
Minister for Finance
25.08.11 25.08.11 26.08.11 Supp. No. 104
44
The Contingencies
Fund and County
Emergency Funds
Bill, 2011
Deputy Prime
Minister and
Minister for
Finance
25.08.11 25.08.11 26.08.11 Supp. No. 103
45
The National
Payment System Bill,
2011
Deputy Prime
Minister and
Minister for Finance
12.10.11 27.10.11 03.11.11
46
The Cancer
Prevention and
Control Bill, 2011
Hon. Robert Monda 12.10.11
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Kenya Gazette
Supplement
Number
47
The Appropriation
Bill, 2011
Deputy Prime
Minister and
Minister for Finance
08.09.11 08.09.11 08.09.11 Supp. No. 120
48
The Books and
Newspapers
(Amendment) Bill,
2011
Hon. Farah Maalim 12.10.11
49
The Pyrethrum
(Amendment) Bill,
2011
Hon. J.N. Kioni
50
The Consumer
Protection Bill, 2011
Hon. Jakoyo Midiwo 26.10.11
51
The Kenya Deposit
Insurance Bill, 2011
Deputy Prime
Minister and
Minister for
Finance
26.10.11
52
The Constitution of
Kenya (Amendment)
Bill, 2011
Minister for Justice,
National Cohesion
and Constitutional
Affairs
53
The Banking
(Amendment) Bill,
2011
Hon. Martin Ogindo 10.11.11
52
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Bench Bulletin
Laws Of Kenya Department
KNA No. BILLS (2011) SPONSOR 1st Reading 2nd Reading 3rd Reading Gazetted
Acts
54
The Statutory
Instruments Bill,
2011
Hon. Amina Abdalla
55
The Micro and Small
Enterprises Bill, 2011
Hon. F.T. Nyammo 02.11.11
NB: ‘Supp. No.’ denotes the Supplement Number in the Kenya Gazette of respective Bills that have been duly passed by
Parliament and subsequently gazetted. However, there are several Bills that have been passed by Parliament but still awaiting
Presidential assent. Consequently, such Bills have not yet been gazetted as Acts of Parliament.
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
53

Kenya Law Reports
Bench Bulletin
Laws Of Kenya Department
Legislative Supplements: A DIGEST OF SELECT LEGAL
NOTICES RECENTLY PUBLISHED IN THE KENYA GAZETTE
By Yvonne Kirina, copy reader, Laws of Kenya Department.
DATE OF
PUBLICATION IN
KENYA GAZETTE
KENYA GAZETTE
SUPPLEMENT
NUMBER
NAME OF
LEGISLATION
REMARKS
16th September,
2011.
No. 119.
The Muranga
University College
Order, 2011.
L.N. 129/2011.
The President made this order that
establishes the Murang’a University
College, a constituent college of the Jomo
Kenyatta University of Agriculture and
Technology.
The Murang’a University College, being
the successor of Murang’a Institute of
Technology assumes all rights, liabilities
and assets held by or by anybody on behalf
of Muranga Institute of Technology at the
commencement of this Order.
No. 119.
The Machakos
University College
Order.
L.N. 130/2011.
The Machakos University Order is a
constituent college of the Kenyatta
University. The University College shall
be the successor to Machakos Technical
Training Institute whereby all rights,
liabilities and assets held by it shall be
transferred to Machakos University College
on the commencement of this order.
7th October, 2011.
No. 130.
The Traffic
(Breathylser) Rules.
L.N. 138/2011.
These Rules are made under the Traffic
Act, Cap. 403. A Breathylser is a device, for
measuring the proportion of alcohol in a
person’s blood from a specimen of breath
provided by that person.
In these rules, where a police officer in
uniform has reasonable cause to suspect
that a person driving or attempting to drive
or who is in charge of a motor vehicle on a
road or other public place;
(a) has committed a traffic offence whilst
the vehicle was in motion; or
(b) appears to have consumed alcohol, or is
likely to have alcohol in his body, the police
officer may require the person to provide a
54
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DATE OF
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KENYA GAZETTE
KENYA GAZETTE
SUPPLEMENT
NUMBER
NAME OF
LEGISLATION
REMARKS
specimen of breath for a breath test.
Any person who drives or attempts to drive
a motor vehicle whilst under the influence
of drink or a drug to such an extent as
to be incapable of having proper control
of the vehicle is guilty of an offence and
liable to a fine not exceeding ten thousand
shillings or to imprisonment for a term not
exceeding eighteen months or to both.
No. 130.
The Traffic (Signs)
(Amendment) Rules,
2011.
L.N. 140/2011.
The Traffic (Signs) Rules contained in the
Traffic Act are amended by inserting rule
22A which seeks that all motor vehicles,
whether registered in Kenya or in another
country shall, when being driven in any
part of Kenya be equipped with two red
reflecting warning triangle signs.
28th October, 2011.
No. 131.
The Supreme Court
Rules.
The Supreme Court Rules are made the
Supreme Court Act (No. 7 of 2011).
L.N. 141/2011.
Under Article 163 (8) of the new
Constitution, The Supreme Court is
mandated to make rules for the exercise
of its jurisdiction. Part of its jurisdiction
is to manage cases, where all pleadings,
affidavits, reports or documents filed in the
court shall be in hard and electronic form.
With regards to Petitions relating to
Presidential Elections, a person may
petition the court for the determination of
a dispute relating to presidential elections
within seven days of the declaration of
results.
Following Article 58(5) of the Constitution,
the Supreme Court may decide on the
validity of a declaration of a state of
emergency and any extension of a
declaration of a state of emergency.
12th October, 2011. No. 132. The Laws of Kenya
Rectification Order.
L.N. 142/2011.
Section 34(9) of the Election Act 2011
(No. 24 of 2011), is rectified by deleting
the word 'not'. It should therefore read;
…. “The party list may contain a name of
any Presidential or Deputy Presidential
candidate nominated for an election under
this Act.”….
“Transforming Legal Information into Public Knowledge.” Issue17: October - December 2011
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Kenya Law Reports
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Laws Of Kenya Department
DATE OF
PUBLICATION IN
KENYA GAZETTE
KENYA GAZETTE
SUPPLEMENT
NUMBER
NAME OF
LEGISLATION
REMARKS
14th October, 2011.
No. 137.
The Capital Markets
(Corporate Governance)
(Market Intermediaries)
Regulations, 2011.
L.N. 144/2011.
The Capital Markets (Corporate
Governance)(Market Intermediaries)
Regulations seek to establish a corporate
governance framework that provides
strategic guidance of the market
intermediary so as to promote the
effective monitoring of the management
and accountability of the board.
Further in the Schedule, a code of Conduct
is established.
18th October, 2011.
No. 139.
The Registration of
Persons (Amendment)
Rules.
L.N. 154/2011.
These Rules amend the Registration of
Persons Rules, 2011 contained in the
Registration of Persons Act, by deleting
rule 3 and substituting a new rule. Under
the new rule, an identity card shall be
sealed in a plastic envelop as illustrated in
Form A or a plastic card as set out in Form
B of the Act.
No. 139.
The Advocates (Senior
Counsel Conferment and
Privileges) Rules.
L.N. 155/2011.
These Rules seek to provide for the
criteria for conferment of the rank of
Senior Counsel to advocates. Applicants
will be considered for conferment if they
satisfy the following requirements, among
others:
(a) meet the requirements specified under
section 17 (2) of the Advocates Act;
(b) are active legal practitioners and
undertake training of other members in
the legal profession;
(c) have argued at least five substantive
appeals before the Supreme Court or
the Court of Appeal and at least ten
substantive cases before the High Court
within a period of ten years preceding the
person’s application for conferment.
However, where an applicant does
not ordinarily undertake litigation, his
application will still be considered if he
has shown outstanding performance in a
specific area of practice.
Further, these Rules provide for duties and
privileges of advocates conferred with the
rank of Senior Counsel.
56
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DATE OF
PUBLICATION IN
KENYA GAZETTE
KENYA GAZETTE
SUPPLEMENT
NUMBER
NAME OF
LEGISLATION
REMARKS
No. 140.
The Taita Taveta
University College
Order.
The Taita Taveta University College is the
successor to the Taveta Campus of Jomo
Kenyatta University of Agriculture and
Technology (JKUAT).
L.N. 156/2011.
The University College automatically
assumes all rights, liabilities and assets
held by or behalf of the Campus at the
commencement of this Order.
28th October, 2011.
No. 142.
The Political Parties Act
(Commencement).
L.N. 160/2011.
The Political Parties Act, (No. 11 of 2011),
provides for the registration, regulation
and funding of Political Parties in Kenya.
The Minister for Justice, National Cohesion
and Constitutional Affairs appoints the 1st
November, 2011, as the date on which the
Act shall come into operation.
11th November,
2011.
No. 143.
The Co-operative
University College of
Kenya Order.
L.N. 161/2011.
The President made this Order that
establishes the Co-operative University
College of Kenya, a constituent college
of the Jomo Kenyatta University of
Agriculture and Technology.
All rights, liabilities and assets held by
or by any body on behalf of the Cooperative
College of Kenya, existing at
the commencement of the Order, were
to be automatically and fully transferred
to the University College upon the
commencement of the Order.
No. 144.
The Government
Financial Management
(Parliamentary
Mortgage Scheme
Fund) (Amendment)
Regulations.
L.N. 162/2011.
The Government Financial Management
(Parliamentary Mortgage Scheme Fund) is
amended in regulation 2 by inserting new
definitions thus:
a) Nairobi, which means the metropolis
of Nairobi as designated by the Ministry
for the time being responsible for
metropolitan development.
b) Property, a residential house purchased
under a loan from the Fund and includes
the land purchased under loan from
the Fund on which such house is to be
developed.
Further, these rules have amended
regulations 5, 8, 10, 12, 13, and 18.
In addition, the Schedule on the Maximum
Loan Entitlements for Members of Staff
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SUPPLEMENT
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of the National Assembly is amended and
substituted by a new Schedule.
According to the law of nature
it is only fair that no one should
become richer through damages
and injuries suffered by
another.
Marcus Tullius Cicero
58
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A Recap of EXECUTIVE APPOINTMENTS PUBLISHED IN THE
KENYA GAZETTE FOR THE PERIOD SEPTEMBER-NOVEMBER
2011 By Wanjala Sikuta copy reader and Oscar Muriithi, Legal Intern, Laws of Kenya Department.
CONSTITUENCIES DEVELOPMENT FUND
BOARD
The Kenya Gazette is the official way
of communication by the Government
of Kenya. The following is a recap of
notable appointments made under
the Kenya Gazette from September to
December 2011.
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.10866 Dated 1st
September 2011
LANDS SURVEYORS BOARD
The Minister for Lands appointed—
Alfred Mwangi Gathu
to be a member of the Lands Surveyor’s
Board for a period of two (2) years
effective 1st September, 2011.The
appointment was made in exercise of
powers conferred by section 7 (1) (c)
of the Survey Act.
Gazette Notice No.10867 Dated 30th
August 2011.
RURAL ELECTRIFICATION AUTHORITY
The Minister for Energy appointed—
Betty Chemutai Korir
to be a member of the Board of Directors
of the Rural Electrification Authority for
a period of three (3) years effective 2nd
September 2011.
The appointment was made in exercise
of powers conferred by section 68 (1) (d)
of the Energy Act.
Gazette Notice No.10868 Dated 30th
August 2011.
KENYA AGRICULTURAL RESEARCH
INSTITUTE
The Minister for Agriculture appointed—
Suleiman Warrakah Mwamlole (Dr.),
Phillip Okinda Owuor (Dr.)
As members of the Board of Management
of the Kenya Agricultural Research
Institute for a period of three (3) years
effective 29th August 2011.
The appointment was made in exercise
of powers conferred by section 15 (1) (f)
of the Science and Technology Act.
Gazette Notice No.11250 Dated 9th
September 2011.
In exercise of the powers conferred
by section 5 of the Constituencies
Development Fund (Amendment) Act,
2007, The Minister of State for Planning,
National Development and Vision 2030
appointed—
Under s.5 (3) (a)—
P.S. Ministry of State for Planning,
National Development and Vision 2030
Under s.5 (3) (b)—
P.S. Office of the Deputy Prime Minister
and Ministry of Finance
Under s.5 (3) (c)—
Clerk of the National Assembly
Under s.5 (3) (d)—
Attorney-General
Under s.5 (3) (e)—
Jennifer Naafula Barassa (Ms.),
Hillary Ntabo Nyaanga (Eng.),
Jane Nyawira Kabugi (Dr.),
Xavier Maina Nyamu,
Rosalia Shida Nyalle (Mrs.)
Major Rose Mbula Kioko,
Ahmed Ibrahim Abass,
Under section 5 (3) (f)—
Odongo Mark Okeyo,
John Ongenge Wamakonjio (Dr.),
David Tito Kiprono Koross,
as members of the Board of the
Constituencies Development Fund
effective 9th September, 2011 for a
period of three (3) years.
Gazette Notice No.11622 Dated 16th
September 2011.
NATIONAL ECONOMIC AND SOCIAL
COUNCIL
The President and Commander-in-Chief
of the Kenya Defence Forces appointed—
Under paragraph 1 (1) (c)—
Michael Chege (Prof),
Edward Akong’o Oyugi (Prof.),
Under paragraph 1 (1) (d)—
Salma Mazrui,
Wilfred Murungi (Eng.),
Jacqueline Wasonga Kitulu (Dr.),
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Samuel Muga K’olale,
Everett Maraka Standa (Prof.),
Michael Albert Allan Harries
Shaukat Ali Abdulrazak (Prof.),
Kanyenje K. Gakombe (Dr.),
Vimal Shah,
Stella Kilonzo
Under paragraph 1 (1) (e)—
Chung Kunmo (Dr.),
Hiroyuki Hino (Prof.),
Victor Koh (Dr.),
To be members of the National Economic
and Social Council, for a period of three
(3) years.
Gazette Notice No.11979 Dated 28th
September 2011
KENYA TOURIST DEVELOPMENT
CORPORATION
The Minister of State for Tourism in
exercise of powers conferred by section
5(1) (b) of the Kenya Tourist Development
Corporation Act appointed
Florah Nkaduda
Tejpal Bedi
As board members of the Kenya Tourist
Development Authority for a period of
three (3) years effective 25th August
2011.
Gazette Notice No.12303 Dated 28th
September 2011
KENYA TOURIST BOARD
The President and Commander-in-Chief
of the Kenya Defence Forces appointed-
Kitili Mbathi
as Chairman of the Kenya Tourist Board
for a period of three (3) years.
Gazette Notice No.12715 Dated 12th
October 2011
THE NEW KENYA CO-OPERATIVE
CREAMERIES
The Minister for Co-operative
Development and Marketing in exercise
of powers conferred by section 5(3) of
the State Corporations Act appointed—
Joseph Kiplagat Kogos
to be Director of New Kenya Co-operative
Creameries for a period of three (3) years
effective 17th October 2011.
Gazette Notice No.11934 Dated 16th
September, 2011
INSURANCE REGULATORY AUTHORITY
Notice is given to the policyholders and
the general public that the Commissioner
of Insurance appointed-
Eliud Muchoki Muriithi,
as Statutory Manager of Blue Shield
Insurance Company Limited, in
accordance with the provisions of
section 67C (2) (i) of the Insurance Act
effective 16th September, 2011.
Gazette Notice No. 13774 Dated 25th
October, 2011
COMMUNICATIONS COMMISSION OF
KENYA
The President and Commander-in-chief
of the Kenya Defence Forces appointed—
Philip O. Okundi (Eng)
to be the Chairman of the Commission
for a period of three (3) years.
Gazette Notice No. 13465 Dated 21st
October, 2011
Gazette Notice No. 13474 Dated 17th
October 2011
COAST DEVELOPMENT AUTHORITY
The Minister for Regional Development
Authority in exercise of the powers
conferred by section 4(i)(i) of the Coast
Development Authority Act, appointed—
Thomas Shedrack Duda
to be a Board member of the Coast
Development Authority for a period of
three (3) years effective 24th October,
2011. The appointment of Mohammed
Dhidha was revoked.
Gazette Notice No. 13775 Dated 25th
October 2011
CHEMILIL SUGAR COMPANY LIMITED
The President and Commander-in-chief
of the Kenya Defence Forces in exercise
of the powers conferred by section
6(i)(a) of the State Corporations Act,
appointed—
Margaret Kwengwa Chemengich (Mrs.)
To be the Chairman of the Board of
Chemilil Sugar Company Limited, for a
period of three (3) years effective 9th
September, 2011
Gazette Notice No.13778 Dated 25th
October 2011
KENYA PLANT HEALTH INSPECTORATE
SERVICE (KEPHIS)
The President and Commander-in-chief
of the Kenya Defence Forces appointed—
Daniel M. Mukunya(Prof.)
to be the Chairman of the Kenya Plant
Health Inspectorate Service (KEPHIS) for
a period of three(3) years effective 23rd
September, 2011. The appointment of
Julia Auma Ojiambo(Prof.) was revoked.
Gazette Notice No. 13778 Dated 25th
October 2011
KENYA PORTS AUTHORITY
The President and Commander-in-chief
of the Kenya Defence Forces appointed—
Shukri Baramadi
To be the Chairman of the Kenya Ports
Authority for a period of three 3 years
effective 31st October 2011.
Gazette Notice No. 13795 Dated 23rd
June 2011
KENYA NATIONAL HOSPITAL BOARD
The Minister for Medical Services
appointed—
Richard Leresian Lesiyampe
to be the Director of the Kenyatta
National Hospital, for a period of three
(3) years effective 23rd June, 2011.
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Gazette Notice 13798 Dated 24th
October 2011
NATIONAL CRIME RESEARCH CENTRE
It was notified for the information of the
general public that the Chairperson of
the Governing Council of the National
Crime Research Centre was—
Githu Muigai (Dr)
Attorney General, effective 27th August,
2011. Gazette Notice No. 5390 of the
21st July, 2006 was amended accordingly.
Gazette Notice No. 14306 Dated 2Nd
November, 2011
KENYA ACCOUNTANTS AND SECRETARIES
NATIONAL EXAMINATIONS BOARD
(KASNEB)
The Deputy Prime Minister and Minister
for Finance appointed-
Wanyama Kilundu Bitonye (Prof.)
Margaret Kobia (Prof.)
to be the Chairman and Vice Chairman of
the Kenya Accountants and Secretaries
National Examinations Board(KASNEB)
B) MINISTRIES
MINISTRY OF REGIONAL DEVELOPMENT
Gazette Notice No. 13093 Dated 17th
October, 2010
The Minister for Regional Development
Authorities appointed—
Rashid Kassim Amin
to be the Managing Director of Ewaso
Ng’iro North Development Authority for
a period of three (3) years effective 18th
October, 2011
Gazette Notice No.13798 Dated 24th
October 2011
NATIONAL STEERING COMMITTEE ON
DEVOLVED GOVERNMENT
It was notified for the general information
of the public that the minister for Local
government had extended the period
of appointment of the National Steering
Laws Of Kenya Department
Committee on Devolved Government
contained in Gazette Notice Nos. 12875
and 15885 of 2010 and 1777 of 2011 for
a period of two months effective 13th
September 2011.
C) JUDICIAL APPOINTMENTS
Gazette Notice No.13095 Dated 17th
October, 2011
The Judicial Service Commission in
exercise of the powers conferred by
Article 16 (2)(c) of the Constitution
appointed—
Gladys Boss Shollei
to be the Chief Registrar of the Judiciary
effective 22th August 2011
THE POWER OF MERCY ADVISORY
COMMITTEE
Gazette Notice No. 13463 Dated 25th
October, 2011
The President and Commander-in-Chief
of the Kenya Defence Forces, in exercise
of the powers conferred by Article 133(2)
(c) of the constitution, and section
9(3) of the Power of Mercy Act, 2011,
appointed—
Florence Kajuju Gitonga
Regina Saira Boisabi
Ann Wanjiku N. Waibura
Charles F. Anabaka (Rev.)
Hemed Twahir (Dr.)
David Sawe (Rev. Canon)
Mohamed Omar Ahmed
to be members of the Advisory
Committee on the Power of Mercy.
Gazette Notice No. 13477 Dated 21st
October, 2011
The Chief Justice/President of the
Supreme Court in exercise of powers
conferred by section 3 of the Auctioneers
Act, appointed—
Lilian Renee Omondi (Ms.)
to be a member of te Auctioneers Board
with immediate effect. Appointment of
Solomon Wamwayi was revoked.
Gazette Notice No. 13478 Dated 26th
October, 2011
The Chief Justice/President of the
Supreme Court established Garissa High
Court, with supervisory jurisdiction over
Garissa, Mandera, Wajir, Hola, Kyuso and
Mwingi Magistrates’ Courts effective 1st
October 2011.
E) FINACIAL MATTERS
Gazette Notice 13799 Dated 24th
October 2011
CENTRAL BANK OF KENYA
Revocation of Forex Bureau Licence
Central Bank of Kenya revoked the
Licence of the following Bureaus;
Overseas Forex Bureau Limited with
effect from 30 th September, 2011,
Amazon Forex Bureau Limited with effect
from 17th October, 2011- Gazette Notice
No. 13800,
Alok Bureau De Change Limited with
effect from 17th October, 2011- Gazette
Notice No. 13800,
Blue Nile Forex Bureau De Change
Kenya with effect from 18th October,
2011-Gazette Notice No. 13800
F) TASK FORCES
MINISTRY OF STATE FOR IMMIGRATION
AND REGISTRATION OF PERSONS
Gazette Notice No.11624 Dated 19th
September 2011
Extension of the term of the Task Force
on Citizenship and Related Provisions
established vide Gazette Notice
No.16509 of 2010
It was notified for the general information
of the public that the Minister of State
for Immigration and Registration of
Persons has for the purposes of finalizing
the rules, regulations, orders, schedules
and forms on the enacted laws on
citizenship reconstituted and extended
the time of the above mentioned Task
Force.
The Task Force shall be headed by Mumo
Matemu as the chairperson:
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Joint Secretaries:
James Omondi Opundo
Nicholas Ongeri Maronda
Members:
Lucy Njihia
Stephen Kokonya
John Kinyumu
Omar Dhadho
Caroline Oduor
Paul Mwangemi
THE MINISTRY OF HIGHER EDUCATION,
SCIENCE AND TECHNOLOGY
Gazette Notice No.11626 Dated 14th
September 2011
Establishment of the Task Force on
Alignment of the Higher Education,
Science and Technology Sector with the
Constitution.
This Task Force is accountable to the
Minister for Higher Education, Science
and Technology and will present its final
report on conclusion of its appointed
task on expiry of its ninety (90) days term
or any other date as may be extended.
In achieving its mandate the Task Force
will have to analyze the implications
of the new constitution on university
education as well as auditing the
distribution of existing universities and
university colleges.
It will review literature on best
practices from countries with two-tier
governments and study all relevant
material as well as a comprehensively
review draft policies and structures of
the ministry with a view to fill gaps on
compliance with the constitution.
The Task Force will be headed by DAVID
SOME (PROF.) as the Chairperson
The Members are:
Timothy M. WaemA (Prof.)
Edward Mungai (Dr.)
Eric M. Aligula (Dr.)
Harry Kaane (Prof.)
Charles O. Nyangute
Lucy W. Irungu (Prof.)
Kevit Desai (Dr.)
Meloli Kashorda (Prof.)
Henry Thairu (Prof.)
Francis Aduol (Prof.)
Muga K’ Olale (Dr.)
Alice J. Yano
Madara Ogot (Prof.)
Mary Muthoka
Joint secretaries
Edith Nanini Torome
Michael Mwangi Kahiti
Josephine Waceke Muritu
MINISTRY OF INTERNAL SECURITY AND
ADMIN
Gazette Notice No. 14095 Dated 3rd
November 2011
The Task Force on the Resettlement of
Beneficiaries of the Chebyuk Phase III
Settlement Scheme in Mount Elgon.
It was notified for the general
information of the public that the
period of appointment of the Task Force
On Resettlement of beneficiaries of
Chebyuk Phase III contained in Gazette
Notice No. 11420 of 2009 had been
extended to 31th December 2011.
Gazette Notice No. 14103 Dated 2nd
November, 2011
D) COMMISIONS
Gazette Notice No. 14091 Dated 8th
November, 2011
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION
The President and Commander-inchief
of the Kenya Defence Forces in
consultation with the Prime Minister
appointed—
Ahmed Isaack Hassan
to be the Chairperson of the Independent
Electoral and Boundaries Commission.
Gazette Notice No. 14092 Dated 8th
November, 2011
COMMISSION ON ADMINISTRATIVE
JUSTICE
The President and Commander-inchief
of the Kenya Defence Forces in
consultation with the Prime Minister,
appointed—
Paul Otiende Amollo
to be the Chairperson of the Commission
on Administrative Justice.
Gazette Notice No. 14093 Dated 8th
November, 2011
COMMISSION ON ADMINISTRATIVE
JUSTICE
The President and Commander-inchief
of the Kenya Defence Forces in
consultation with the Prime Minister,
appointed—
Regina Gathoni Mwatha (Dr.)
Saadia Abdikadir Mohamed
to be members of the Commission on
Administrative Justice.
Gazette Notice No. 14094 Dated 8th
November, 2011
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION
The President and Commander-inchief
of the Kenya Defence Forces in
consultation with the Prime Minister
appointed—
Yusuf Abdulrahman Nzibo
Mohamed Alawi Hussun
Abdullahi M. Sharawe
Lilian Bokeeye Mahiri-Zaja
Thomas Letangule
Joyce Muthoni Wangai
Albert C. O. Bwire
Kule Galma Godana
to be members of the Independent
Electoral and Boundaries Commission.
NOTICE OF CANCELLATION OF LICENCES
Gazette Notice No. 13802 Dated 24th
October 2011
It was notified that in exercise of the
powers conferred by section 6(i) of the
African Christian Marriage and Divorce
Act, the following Ministers had their
Licences to celebrate marriages under
the provisions of the said Act;
Kenya Redeemed Church- Rev. Absalom
Ndungu
Akorino Church of God – Bishop Gerald
Mwangi Macharia
and Priest Joseph Gitonga Maina
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To publish means to make
information and literature
available to the public.
Book publishing involves the process of
producing and distributing information
so that the public can have access to it.
The applications used for publishing
include PageMaker, QuarkXPress,
Adobe In Design among others. For
purposes of universal access to the
general public and persons with visual
disability, publishers are now adopting
more user friendly applications and
embracing san serif fonts such as Arial
and Verdana families for publications.
In publishing, a number of stages are
involved. While the end consumer of
published material enjoys the final
product, a number of processes and
expertise are employed behind the
scenes to achieve the desired end
product. There are several steps involved
in the process of book publication. The
major ones include:-
• Acquisition of material
• Layout and copyediting
• Distribution.
Layout and copyediting
Layout involves using a desirable
publishing application to add display
copy such as headlines, standardized
headers and footers, photos and
captions whereas copyediting entails
correcting spelling, punctuation,
grammar, and terminology on the
already laid out copy.
Layout also refers to a general look of
a particular publisher’s in-house style.
Laws Of Kenya Department
Introduction to BOOK PUBLISHING: LAYOUT AND COPYEDITING
PROCESSES By Evelyn Emaase Anyokorit & Laila Mbevi, Copy editors, Laws of Kenya Department
Those vested with this responsibility
are expected to ensure that the content
adheres to the publisher’s style or
conforms to its editorial policy. These
roles do vary depending with the nature
of the publication. In most publishing
industries layout and copyediting
involves spell-checking, correcting usage
of grammar, singling out style errors
and making corrections. Layout people
sometimes rewrite copies to fit in the
style standard of the publication.
Copyeditors need not be experts on the
subject of the work; however they need
to have interest in learning to grasp what
is happening in the manuscript. Being
able to know what you are working on
is equally important as providing quality
information to the public.
The main aim of Layout and Copyediting
is to remove obstacles between the
reader and what the author wants to
convey. Though copy editor’s main
interest is editorial, the job involves
production considerations too. Copy
editors guide the book through the
complexities of the production process,
so it is expected that they have a good
judgment to be able to strike a balance
between quality and time.
Knowing the manuscript in detail and
being able to face the challenges involved
is what gives the job its fascination.
Those with good understanding of the
processes involved in their in-house
editorial are able to fulfill their roles
effectively.
Types of copyediting
There are different types of copyediting
depending with the nature of the
publication. The common types include:-
i) Substantive editing: I n
substantive editing, we look
into improving the look and
presentation of work. Content,
scope, length and organization
of work are the main focus.
This process entails rewriting
and rearranging material in
question.
ii) Detailed editing for sense: At this
stage the concern is bringing
out the intended meaning,
clearing out contradictions and
ambiguity. Sentence structure,
choice of words, punctuation,
abbreviations, comparison of
data in tables with relevant text
and captions are looked at, at
this level.
iii) Checking for consistency: This
is typically a mechanical task
which involves checking of
spellings, type of quotations, the
type of numbering, illustrations
in tables and cross referencing.
iv) Presentation: This is the overall
presentation of the manuscript
ready for publication. This stage
typically entails confirmation of
details.
Publishing in Legal sector
In legal publishing the nature of the
information calls for an intelligent,
tactful and sensitive critic, someone
who cares enough about perfection of
detail to carry out the layout and the
task of copyediting. While it is allowable
for copy editors in most publications
such as periodicals to shorten text so
to improve and or fit the length limits
of the particular editorial policy, this is
not the case in legal publishing as this
will tamper with legal information. The
substance of the text in the legal material
is to be preserved at all costs otherwise;
it would result to grave consequences.
Copyeditors thus have to be familiar with
legal terminology so as not to mistake it
for anomalies.
In as much as publishers require
grammarians for this job, in legal
publishing it is necessary for one to
have basic understanding of the law, for
instance when dealing with amending
terminologies like ‘revoke’, ‘repeal’,
‘substitute’ and so forth .
Layout and copyediting in the Laws of
Kenya department
The Laws of Kenya department believes
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in perfection in every stage of work. In
order to achieve this, the publishing
unit within the department carries out
various rigorous activities, which include
extraction of statutes, copy reading
of statutes at various stages, layout
and copy-editing and final proofs. The
department has always endeavored to
keep with the changing trends both
in content and technology so as to
be within its objective of “Revising,
updating, publishing and disseminating
the Laws of Kenya” and hence the
current changes.
Publishing applications used in Laws of
Kenya Department
The department applies a set of
well codified layout guidelines that
copyeditors adhere to in the process of
laying out. These guidelines reflect the
in-house styles. They are however, not
cast in stone and are often modified to
reflect best practices in publishing.
Previously all publications were laid out
in adobe in design (a software that is
best suited for publishing).
Copy editors create a template which
is designed using the in-house styles
conforming to the editorial policies, such
designs include; font style, font size,
body text, part heading, marginal notes,
various hanging index among others.
For purposes of universal accessibility
of the information to the general public
and persons with visual impairments,
the department found it necessary to
comply with the universally acceptable
standards of publishing. It has for
instance adopted Ms Word software as
a new publishing application.
Publishing Fonts
After intensive research and
consultations on universally accessible
fonts, the department found it necessary
to adopt the san serif family fonts such
as Arial (These fonts are seen as being
more universally accessible even to
persons with print disabilities).
Content layout
Layout of statutes is currently being
done in the new improved layout word
templates, comprising of various inhouse
styles to bring out high quality
materials accessible to all.
Layout and copyediting are valuable
skills which are key to any publishing
institution. The quality of output is
often at times, as good as its layout and
copyediting processes.
There is one kind of robber whom
the law does not strike at, and who
steals what is most precious to men:
time.
Napoleon Bonaparte
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Introduction
As it has come to be accepted, the world
of information technology is shaping and
continuing to shape the dynamics of our
world, as we know it. Since the onset of
the world wide web/internet, growth
and spread of information, knowledge
has grown in leaps and bounds. This
being the case, many countries,
companies, institutions and individuals
has taken the bold step to ensure that
they are aligned with the changing
times. It is now common occurrence
to see that most communication is
paperless, and most information about
a certain organization is to be found
online via their website. Therefore, it
is of paramount importance to ensure
that all sectors of the society are able
to access this information.
The case for persons with print disability
is that if such information is in a
particular format which is not friendly
to them, then it is as though it was not
there. Therefore, this brings to the fore,
the issue of accessibility.
Various governments are passing
legislation that will compel all entities to
ensure that the content that they display
for public consumption is publicly
accessible to all users who need it.
For instance in Australia, there is the
Disability Discrimination Act(DDA) of
1992 which sought to promote the
rights of people with disabilities in
certain areas such as housing, education
and provision of goods and services.
Complaints made under the DDA are
Laws Of Kenya Department
Making Information ACCESSIBLE TO PERSONS WITH PRINT
DISABILITY: WEB STYLES AND OTHER TEXT ACCESSIBILITY
FEATURES By Stanley Mutuma, Legal Intern, Laws of Kenya Department
made to the Australian Human Rights
Commission (previously known as the
Human Rights and Equal Opportunity
Commission, HREOC),
These provisions are not only displayed
in paper but have been enforced in
courts of law. In the Australian case
of Bruce Lindsay Maguire v. Sydney
Organising Committee for the Olympic
Games a blind man, Mr. Bruce Maguire,
filed a legal action in which he took the
Sidney Olympic organizing committee
of the commonwealth games(SOCOG)
to court for not making its web content
accessible for persons with visual
impairment. Justice William Carter
(Inquiry Commissioner) ruled that the
complainant on that account had been
unlawfully discriminated against in
breach of the Disability Discrimination
Act, 1992.
The court stated that the fact that the
applicant was blind did not in any way
suggest that he should have had lower
expectation than those of a sighted
person. In the court’s opinion, “…his
expectations of being able to access
information from the respondent's web
site were, not surprisingly, high; certainly
as high as that which a sighted person
with his skills could expect…”
The court also found the respondent’s
earlier responses to the Mr Maguire’s
complaints to enlist the aid of a sighted
person to assist him was wholly
inconsistent with his own expectations
and what he himself, unaided, had been
able to achieve, both at university level
and in business, in spite of his disability.
The commission was thus satisfied that
Mr Maguire’s limited access to the web
site caused him considerable feelings
of hurt, humiliation and rejection and
ordered the respondent to pay the
complainant by way of compensation
the sum of $20,000.
Following this ruling, it is now mandatory
in Australia to have such content follow
the laid down procedures.
The accessibility (W3C) guidelines
A web site known as the “world wide
consortium” i.e.www.w3c.org, has been
set up and it contains the guidelines
for web developers to follow in making
the contents of their information and
material accessible to persons with visual
impairment and other persons with print
disability e.g. learning disability. Some
of the basic guidelines would include
the following.
a) Using the acceptable web fonts
i.e. Arial, verdana and Helvetica
for Mac books
b) Having a great contrast between
the background and foreground,
this is for easier viewing for
persons with low vision
c) Having the websites have a
zoom in element in which a
person with low vision or a
learning disability can magnify
the print for easier viewing.
d) Reducing the number of images
that are not necessary in a
website, or having the images
illustrated in print format
in which a visually impaired
person can be able to read and
understand
e) Making the website have an
accessible html link in which
persons with visual impairment
can click to view similar content
to the one that containing
images and other pop ups
that screen readers software
programs cannot access.
The National Council for Law Reporting
has taken a bold and first move in
an endeavour to ensure that all its
information and material accessible
to the public is also accessible to this
category of persons. For instance, it
has taken steps to ensure that all the
laws of Kenya i.e. statutes are now in
easy to read fonts such as Arial,, which
is the most used and most recognized
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font style and is the most considered
accessible web font. NCLR, is also in the
fast lane of making other documents
such as those in PDF, accessible by
converting them into word documents,
html format or other type of PDF style
that is accessible to screen reader
programs.
NCLR is progressively incorporating the
guidelines stipulated by the World Wide
Web consortium [w3c] in an effort to
ensure that it does not discriminate
persons with disability on the rights to
equal access to information.
It is our hope and believe that other
institutions and entities will follow suit
in this noble and worthwhile endeavour,
to help make tomorrow-brighter today
for persons with print disability.
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Feature Case
VETTING OF JUDICIAL OFFICERS CHALLENGE THROWN OUT
Dennis Mogambi Mong’are v Aorney General & 3 others [2011] eKLR
Constuonal and Human Rights Division
High Court at Nairobi (Milimani Law Courts)
Mumbi Ngugi, D.S. Majanja & G.V. Odunga JJ
November 18, 2011
By Michael M. Murungi, Advocate
The Constuonal and Human Rights division of the High Court has dismissed a peon
challenging the veng of Judges and Magistrates. The Court found that the Veng of Judges and
Magistrates Act, 2011 (VJM Act) was sanconed by the new Constuon and its provisions did
not violate the doctrines of separaon of powers and the independence of the judiciary and that
it did not threaten the constuonal rights of judges and magistrates.
While adming that the veng process may cause some anxiety, the Court observed that the
process would help to underpin the values of accountability and integrity in the Judiciary and
restore it to its respected place as the arbiter of jusce in Kenya.
The peon was filed by lawyer Dennis Mong’are and joined by six interested pares: The Party
of Independent Candidates of Kenya (PICK); The Internaonal Commission of Jurists – Kenyan
Chapter (ICJ-K); Law Society of Kenya (LSK); Kenyans for Peace with Truth and Jusce (KPTJ);
African Centre for Open Governance (AfriCOG); and the Kenya Judges and Magistrates Associa-
on (KMJA).
The bench of three High Court judges described the peon as raising ‘crical quesons regarding
the Judiciary… and the constuonal and legislave provisions aimed at restoring public
confidence in [it].’
The Judges recalled that in the period leading to the new constuon, Kenya’s Judiciary had
been cricized for its perceived failure to uphold the rule of law and therefore, the constu-
onal provisions on the Judiciary must be understood in the light of public percepons of the
Judiciary during that period.
In the Constuon of Kenya, 2010 (promulgated on August 27, 2010 aer a naonal referendum),
Arcle 262 provided for the coming into effect of certain ‘transional and consequenal
provisions’ set out in the Sixth Schedule to the Constuon. Among these provisions was
secon 23 of the Schedule, which required that within one year aer the coming into force of
the Constuon, Parliament was to enact legislaon establishing mechanisms for veng the
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Feature Case
on to entertain the issues raised in the petition? Mr. Paul Muite representing the JSC
ommendations for approval suitability and eventual of all judges appointment and were magistrates done before who the petition were in office then to connue to serve in the
at June 17 2011, the appointment Judiciary. of the five judges had already been effected through
une 16 2011 by the President of the Republic of Kenya.
Later, in March 2011, the VJM Act came into force. The Act established the Judges and Magistrates
Veng Board which was to carry out the veng exercise. Secons 17-23 of the Act set out
re there was a conclusive procedure covering the treatment of a judge, the same could
the procedure for and the criteria to be applied in the veng exercise.
onstitutional Petition. He contended that the petition was against Articles 166, 167 and
h provided specific criteria for removing the five Judges already appointed through a
The peon, which was stated to filed in public interest, was against the Aorney General; The
what the petitioners were
Minister
attempting
for Jusce
the removal
and
of
Constuonal
the five appointed
Affairs;
and gazetted
the Judges and Magistrates Veng Board and the
tated that the JSC could Judicial not reverse Service its decision Commission and could not (the re-open respondents). the nomination The peoner argued that by perming parliament
High Court to enact had no legislaon jurisdiction in for the the matter. removal of judges, the Sixth Schedule to the Constuon was
ination. As a result the
unconstuonal and that both the Schedule and certain secons of the VJM Act were null and
e petitioners’ and the interested void as they parties’ violated position the that constuonal Article 165 of the principles Constitution of separaon of powers and the independence
ion to hear and determine of the matter. Judiciary. Mr. Ongoya representing the petitioners submitortant
constitutional issues which had not been fulfilled by JSC and the President in
al mandate - that is Article He asked 27(8) and the 74 which High dealt Court which to declare the issue of that gender the equality following constuonal rights of judges and magistrates
had been violated or threatened: the right to equality and freedom from discriminaon;
ficers respectively.
human dignity; freedom and security of the person; the right to a fair administrave acon; and
he court held that the jurisdiction the right of to the a fair court hearing. under Article He 165 also was asked completely for the differunder
Article 168 of the
compensaon of all judges and magistrates likely
to
Constitution.
be affected
It was
by the
clear
VJM
to the
Act
bench
and
that
for
the
an
Tribunal's
injuncon restraining the respondents from doing
anything prejudicial to the judges and magistrates pending the hearing of the peon.
there was an alleged misconduct on the part of a Judge or when he was unable to
office arising from mental or physical incapacity or breach of code of conduct or bankross
misconduct or misbehavior.
While PICK and the KMJA submied that the Veng Board was not the proper body to undertake
the
On
veng
the other
exercise,
hand the
the
court
other
opined
interested
that the question
pares opposed the peon, with at least one of
ess used to nominate and them appoint challenging the five Supreme the jurisdicon Court Judges. of Therefore the High it had Court the to hear it.
mine the process for nomination and appointment. The court further remarked that
ad been sworn in, it would The still findings have the of jurisdiction the High to Court entertain such an issue.
The following were the findings of the Court.
rpretation of Article 27(8) of the Constitution which stressed the principle of gender?
On jurisdicon: The High Court had jurisdicon to hear and determine the peon. The Constuon
of Kenya Arcle 165 (3)(b) vested in that Court jurisdicon to ‘determine the queson
nterpreting the Bill of Rights it must promote the values that underlie an open a
based on human dignity, equality and freedom. That such an interpretation should be
whether a right or fundamental freedom in the Bill of Rights has been denied, violated,
stainable to give individuals infringed the full or measure, threatened.’ the fundamental In addion, rights under and freedoms Arcle 165(3)(d), the Court had jurisdicon to hear
rt should take full cognizance any queson of the social respecng conditions, the experiences interpretaon and perception of the of Constuon, including the determinaon of
nya.
any queson whether any law is inconsistent with or in contravenon of the Constuon.
ther stated that the Constitution Was secon was a 23 flexible of the and Sixth adaptable Schedule instrument, to with the Constuon some in conflict with the substanve provisions
others no of more the Constuon than a broad outline. and therefore It took view null that and the void?
ns highly specific and
ad a consistent and not contingent meaning. It did not mean one thing at one time
ly different thing at another The time. Court observed that by vong in favour of the Constuon, the people of Kenya made a
sovereign decision that all the provisions of the Constuon would
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Feature Case
form the basis on which they would be governed. The transional provisions contained in the
Sixth Schedule were as much a part of the Constuon and as much an expression of the sovereign
will of the people as the main body of the Constuon.
Secon 23 of the Constuon fell under the Sixth Schedule which contained the Transional
Provisions of the Constuon and along with the other provisions of the Constuon, the
secon came into force on August 27, 2010. It was not open to the Court to queson the sovereign
will of the people and to decide that one part of their Constuon was null and void as compared
to another. The authority conferred on the Court by the people of Kenya was to give effect
to the whole Constuon.
Did the VJM Act violate the Principle of Separaon of Powers and the Independence of the
Judiciary?
The Court stated that the Act was enacted pursuant to Arcle 262 and secon 23 of the Sixth
Schedule to the Constuon. That secon required Parliament to enact legislaon for establishing
mechanisms and procedures for veng of judges and magistrates, and it was specifically
stated in the secon that such legislaon was to operate despite the provisions of the Constu-
on providing for the independence of the Judiciary and the tenure and the manner of removal
from office for judges - Arcle 160, 167 and 168. The secon was part of the Constuon and as
such, the veng procedures were a constuonally mandated derogaon from the provisions
regarding the independence of the judiciary. Therefore, the principle of separaon of powers
had to yield to the dictates of the Constuon.
Did the VJM Act violate the Bill of Rights, parcularly the right to equality and the freedom from
discriminaon?
There was nothing in the VJM Act that violated the right to equality and freedom from discriminaon.
Further, in so far as the veng process was constuonally ordained, it could not be
subjected to the test of discriminaon.
As the Court further observed, all judges and magistrates appointed prior to the coming into
force of the Constuon were treated equally and had the same rights under the Act. While
judges appointed under the former Constuon were required to undergo veng, judges and
magistrates appointed under the new Constuon must undergo a process that complies with
the dictates of Arcle 10 of the Constuon and ensures compliance of prospecve judicial
officers with the provisions of Chapter 6 of the Constuon. In fact the relevant consideraons
which the Board must take into account in determining the suitability of judges and magistrates
under secon 18 of the Act were the same consideraons applied by the Judicial Service Commission
in considering the suitability of nominees for judgeship under secon 13 of the First
Schedule to the Judicial Service Act, 2011
Did the veng process subject the judges and magistrates to inhuman and degrading treatment
and was their right to inherent dignity violated?
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In the Court’s words, the veng process provided in the Act, which was sanconed by the Constuon,
did not ‘even remotely’ approach the definion of torture, cruel, inhuman and degrading
treatment or amount to a violaon of Arcle 25 of the Constuon. The right to have the inherent
dignity of the judicial officers protected and respected under the Constuon was not
violated, infringed or threatened by applicaon of the Veng of Judges and Magistrates Act,
2011. The Act provided that the informaon gathered from interviews with judges or magistrates
shall be confidenal. The hearings were not to be conducted in public unless the judicial officers
choose to have a public hearing. Whether or not to parcipate in the veng process was a
maer of elecon by the individual judge or magistrate. Furthermore, the Act preserved the
right to terminal benefits for those who elected not to go through the veng proceedings and
those who are found unsuitable for service.
Was there a threat to the right to a fair hearing and the rules of natural jusce?
The Court found nothing in the Act that violated the right of judges and magistrates to a fair
hearing or derogated under Arcle 50(1) of the Constuon.
It was sasfied that the VJM Act met the threshold of what constutes a fair process. The
requirements for noce and for the complaints to be communicated to the judge or magistrate,
the opportunity to be heard, the rules of natural jusce - which include the right to legal representaon
- were intended to safeguard the rights of the judicial officers during the veng
exercise.
The Court found that neither the Act nor Secon 23 of the Sixth Schedule to the Constuon
prescribed a right of appeal from the decision of the Veng Board. The removal of a judge from
office by virtue of that secon was clearly stated not to be subject to queson in, or review by
any court. Since the Constuon itself clearly foreclosed on the possibility of appeal to a higher
court, the Court could not imply a right of appeal.
For these reasons the Court found that the peon lacked merit and it was dismissed with no
order as to costs.
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Supreme Court Of Kenya
SUPREME COURT OF KENYA ADOPTS ITS FIRST CASE
FROM THE COURT OF APPEAL
The Hon. Mr. Justice
M.K. Ibrahim, SCJ
History was made on 2nd
November 2011 when the
Supreme Court of the Republic
of Kenya gave a ruling on directions on
whether 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
new Constitution of Kenya 2010. The
proceedings 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 ruling heralds a new dawn in the
administration of justice in the country
which has had the Court of Appeal as
the highest court in the land since the
days of East African Community when
the Court of Appeal of Eastern African
used to preside over appeals from the
three countries.
On the 3rd March, 2011, the Commission
for the Implementation of the
Constitution (C.I.C) filed a Notice of
Motion dated 22nd March 2011 in the
Court of Appeal which was sitting as the
Supreme Court under the provisions of
Section 21 (2) of the Sixth Schedule of
the Constitution. The applicant, C.I.C.
sought Advisory Opinions of the Court
on several matters including:
1. Whether the appointing
authority in making an
appointment under Sections
24(2) and 29(2) of the Sixth
In The Supreme Court of Kenya At Nairobi
Advisory Opinions App. No. 1 of 2011
In The Matter of Advisory Opinions of The Court Under
Article 163 (6) Of The Constitution
The Commission For The Implementation of The
Constitution (Applicant)
M.K. Ibrahim & Smokin Wanjala (SCJJ)
Reported By Ann Asugah - Advocate
Schedule of the Constitution
must have regard to the other
provisions of the Constitution
regarding the appointment
of Constitutional Officers and
if so, the extent to which the
nominating or appointing
authority whose powers are
conferred by the Sixth Schedule
of Constitution is bound by
the other provisions of the
Constitution;
2. What is the nature and extent
of the consultation required
under the National Accord and
Reconciliation Act in making
nominations and appointments
to Constitutional Offices?
After hearing submissions from the
Applicant and all interested parties,
the Court of Appeal, still sitting as the
Supreme Court on 5th April, 2011 gave
the following directions, inter alia –
1. The motion shall be heard for
a period of three consecutive
days commencing on 11th April,
2010;
2. Due to the urgency of the matter
the motion shall be heard by
way of written submissions
which would be orally highlighted
at the hearing.
As a result of the said Directions, the
Motion was fixed for hearing for three
consecutive days, namely 11th, 12th
and 13th April, 2011. Various parties
applied to be enjoined in the Application
and be made “Interested parties”.
Parties were given leave to file written
submissions which would be orally
highlighted at the hearing. Subsequently
some proposed Interested Parties gave
notice directly and through their written
submissions that they would raise issues
of jurisdiction of the Court in respect of
the application.
Most of the Interested Parties raised
preliminary objections on points of law,
relating to the jurisdiction of the court
to hear and determine the application
whether as the Court of Appeal sitting
as the Supreme Court or the Supreme
Court generally. However, a few of the
Interested Parties supported the right
of C.I.C to be heard on the merits i.e.
they thought that that court in whatever
capacity had the jurisdiction to hear the
matter.
After the resting of submissions by
counsel for the applicant, various
Interested parties wished to file a
reply. However, due to constraints of
time, they were advised to file written
submissions within 14 days and the
matter was fixed for mention on 5th
May, 2011 for further orders. On the
5th May 2011, the court reserved its
Ruling for 3rd June, 2011. The ruling was
not delivered on the said date and was
deferred to the 8th July, 2011.
Before the delivery of the Ruling, the
Judges to the Supreme Court of Kenya
were appointed and gazetted on 16th
June 2011. The Court of Appeal sitting
as the Supreme Court then made the
following order;
“ORDER OF THE COURT
The Hon. Justice
(Dr.) S. Wanjala, SCJ
In view of the fact that there now
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Kenya Law Reports
Bench Bulletin
exists the Supreme Court of Kenya and
Judges thereto have been appointed
and gazetted, it is doubtful whether the
Court of Appeal sitting as the Supreme
Court is still seized of the Jurisdiction
to hear and determine this Application.
In the circumstances, this application is
stood over sine die.”
At the time of the establishment of the
Supreme Court and the appointment
and swearing of the Supreme Court
Judges, the above motion was still
pending. The Supreme Court placed
the matter for mention to find out the
position and views of counsel as to
the way forward and to give directions
accordingly.
Mr. Regeru for the C.I.C. together with
Mr. J. Thongori and Mr. Bryant confirmed
that they had instructions to prosecute
the notice of motion and that the matter
was still urgent. Mr. Regeru submitted
that there was nothing which stopped
the Supreme Court from directing that
the 5 Judge bench of the Court of Appeal,
which had heard the matter to proceed
to deliver their Ruling. In the alternative,
he suggested that the present Supreme
Court now duly established could adopt
Supreme Court Of Kenya
the record and proceedings and prepare
its ruling on the matter
Ms Muthoni Kimani together with Mr.
Ambwayo for the Attorney General
submitted that now that the Supreme
Court Rules, 2011 had been promulgated,
there was necessity that the court and
parties comply with the said Rules. She
proposed that the matter ought to start a
fresh and that the Applicant be directed
to file fresh pleadings. She said that new
issues could have arisen and there could
be confusion if the matter proceeded
from where the previous Bench had
stopped.
Having considered all the submissions
by counsel for the parties, the Supreme
Court first started by addressing the
question of jurisdiction of the Court of
Appeal sitting as the Supreme Court. It
observed that it would not make any
finding on this matter since its’ current
task was to only filter and facilitate the
hearing of the application by a properly
constituted five-Judge Bench.
With regard to the question as to
whether the Supreme Court could now
adopt and/or take over the proceedings
and proceed to determine the issues in
question, the Court ruled that it would
indeed adopt the proceedings including
all its pleadings. In making this ruling,
the Court observed that the applicant,
due to the urgency of the motion and the
issues which had been raised, believed
that 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, therefore, 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
and even the interested parties, who had
invested heavily in terms of expenses
and precious time in reaching the stage
of proceedings that have been recorded.
For these reasons, the Supreme Court
directed that the application, together
with the pleadings filed by the Applicant
be adopted and admitted into the
Supreme Court proper and such to be
deemed as duly filed and on record.
At his best, man is the noblest of all
animals; separated from law and
justice he is the worst.
Aristotle
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Court Of Appeal Cases
COURTS OBLIGED TO ADMIT SINGLE WITNESS’
EVIDENCE OF VISUAL IDENTIFICATION WHERE NO
IDENTIFICATION PARADE CONDUCTED
The Hon. Mr. Justice
Waki , J.A
The Court of Appeal (Waki, Onyango
Otieno & Visram, JJ.A) has held
that the need for identification
parades to confirm witness’s evidence of
visual identification cannot be whittled
down at any time, save in circumstances
where the courts have accepted that the
appellant had refused to attend such
a parade, where the courts would be
obliged to accept a witness’s evidence
of visual identification particularly
when the conditions prevailing for such
identification were clear.
Thomas Morara Nyambega (appellant)
was charged with seven (7) counts of
robbery with violence contrary to section
296 (2) of the Penal Code and after a full
trial convicted on two (2) counts and
sentenced to death on the first count
while the sentence on the second
count was held in abeyance. Aggrieved
by the convictions and sentence, the
appellant filed an appeal in the High
Court (Azangalala & Odero, JJ.) but the
same was dismissed. In dismissing the
appeal, the superior court held that the
prosecution proved a watertight case
against the appellant, and observed
that there was evidence of positive
identification of the appellant at the
scene of crime and further evidence of
recent possession by the appellant of the
stolen foreign currency notes.
The appellant subsequently filed a
second appeal against his conviction and
sentence on grounds that there was no
Thomas Morara Nyambega v Republic [2011] eKLR
Criminal Appeal No. 226 of 2010
Court of Appeal at Mombasa
P N Waki, J W Onyango Otieno & A Visram, JJ A
October 6, 2011
Reported by Nelson K. Tunoi - Advocate
proper identification of the appellant as
one of the perpetrators of the subject
robbery and that the alleged evidence of
recent possession of the stolen foreign
currency notes could not be relied
upon to sustain a conviction against the
appellant.
During the hearing of the appeal, Mr Buti
representing the appellant submitted
that there was no proper identification
of the appellant at the scene of
crime as the only single identifying
witness who purported to identify
the appellant was inconsistent in his
evidence, and further that there was no
identification parade held for purposes
of identification. Regarding evidence on
recent possession, Mr Buti argued that
there was no evidence that the appellant
was found in possession of the stolen
foreign currency notes. He urged the
court to allow the appeal since the High
Court had failed to discharge its duty to
analyze the evidence adduced because it
was evident that the alleged serialization
of the foreign currency notes was done
on a paper dated 27th June 2007, which
was the date of the robbery.
In response, Mr Ondari, the Assistant
Director of Public Prosecutions submitted
that the single identifying witness had an
argument with the appellant for three
minutes and that was enough time for
identifying the appellant as the offence
took place in broad day light. Further,
as the appellant refused to attend an
identification parade, that evidence of
the single identifying witness ought to
be accepted and there was no need to
organize an identification parade for the
appellant. He further submitted that the
serialization of the stolen currencies
was done before they were recovered
and the appellant failed to explain how
he came in possession of the stolen
property. Therefore the evidence of
recent possession was rightly relied
upon by both the trial court and the first
appellate court to establish the doctrine
of recent possession, and urged the
court to dismiss the appeal.
The Court of Appeal observed that the
High Court complied with the legal
requirements enjoining it to analyse and
evaluate the evidence on record and
therefore discharged its duty accordingly.
Regarding identification evidence, the
court stated that the testimony of a
single witness on identification was
reliable upon exercising caution since no
identification parade was conducted and
the appellant had refused to attend any
such parade. The court further observed
that even if the identity of the appellant
was not established, the evidence on
record established that the appellant
was found in recent possession of the
stolen foreign currency note and he
failed to give any reasonable explanation
for that possession. The appeal was
consequently dismissed.
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Court Of Appeal Cases
A COURT HAS NO JURISDICTION TO EXTEND TIME TO
COMPLY WITH A CONSENT ORDER.
The Hon. Mr. Justice
R.S.C Omolo, J.A
The Court of Appeal has ruled
that a court which has entered a
consent judgment in which time
for taking certain actions or steps had
been stipulated, has no jurisdiction to
extend time on application by a party
to the consent judgment. Where the
consent order was clearly entered into
freely and there was no evidence as
to fraud or misrepresentation, then a
court cannot interfere with a consent
judgment as to time.
The brief facts to the case are that
in 1998, Aries Auto Spares sought to
recover an amount of money from
Gateway Insurance Company Limited.
This amount was for services rendered
and spares supplied to one Michael
Mugele who was insured by Gateway
Insurance Company Limited. Gateway
Insurance and Michael both filed
defences denying the claim and Gateway
specifically pleaded that the plaint did
not disclose a cause of action against
it. However, during the hearing, both
Gateway Insurance and Michael did not
present themselves in court for hearing.
This led to judgment being entered
in favour of Aries Auto Spares on 9th
April, 2001. This prompted Gateway
Insurance to file an application to set
aside the judgment. It relied on the
ground that the hearing date was taken
by an advocate who had no instructions
and that it was not aware of the hearing
date. This application was dismissed by
the subordinate court.
Gateway Insurance further appealed
against the dismissal of the application.
During the appeal, a consent order
between the parties was recorded. The
consent order had terms to the effect of
vacating the judgment and decree issued
by the subordinate court and to proceed
Reported by Wambui Kamau, Advocate
Gateway Insurance Company Ltd. V Aries Auto Sprays
[2011] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi
R.S.C Omolo, Githinji & Visram, JJA
October 14, 2011
Reported by Nelson K. Tunoi - Advocate
for trial before a different magistrate.
Secondly, Gateway Insurance was to
file and serve Aries Auto Sprays Limited
within fourteen days, a certified copy
of deposit slip for the sum deposited in
HFCK in the joint account of Gateway
and Aries Auto Spares. Further, in case
of default, Auto Aries was to be free to
enforce the judgment and that there will
be leave to apply.
Following the agreed terms of the
consent order, Gateway failed to file
and serve Auto Aries with a copy of
the deposit slip within fourteen days as
indicated in the consent order. This led to
Gateway Insurance filing an application
in the High Court seeking to enlarge
the time in which it was to serve Auto
Aries with the deposit slip. In support
of its application, the advocate for the
applicant, Gateway Insurance, stated
that the deposit slip was filed two days
later due to oversight. The High Court
dismissed the application and held that
the parties entered into the consent
which was clear that in case of default,
the consent would stand vacated and
Aries Auto would be free to enforce the
judgment. This, according to the High
Court, was evident that the parties did
not leave any room for the court to
exercise discretion for enlargement of
time.
Therefore, the issue for determination
before the Court of Appeal was whether
the High Court erred in its ruling that it
had no jurisdiction to extend the time
stipulated within a consent order.
Mr. Nyaga, the advocate for Gateway
Insurance argued that the High Court
erred in concluding that the court had no
jurisdiction to entertain the application
for extension of time. He argued that
the consent judgment provided for leave
to apply which he interpreted to mean
that a party can apply for the extension
of time. That a consent judgment was
an order of the court and a court has
power to extend time limited by it. He
reiterated that the application was for
extension of time and not setting aside
the consent judgment.
In upholding the High Court judgment,
Court of Appeal Judges, Visram and
Omolo concurred by stating that the
consent judgment was entered into
freely, and stated clearly the terms
as to what was to occur in case of
breach. In deciding this appeal, Justice
Visram relied on the case of Hirani vs.
Kassam[1952], 19 EACA 131 where
Windham J. stated that, “a court cannot
interfere with a consent judgment except
in such circumstances as would afford
good ground for varying or rescinding
a contract between the parties”. In this
case, there was no evidence as to fraud,
misrepresentation or collusion and no
possibility of mistake and there was no
specific statute or provision of law cited
to show that the consent judgment was
contrary to such law, or public policy. The
Court of Appeal stated that the consent
order was entered into freely, and was
clear in its terms. It further provided for
a default clause in event of any breach,
there would be enforcement of the
judgment.
However, on the other hand, Justice
Githinji held a contrary view. In
dissenting, he was guided, by section
95 of the Civil Procedure Act (Cap. 21)
which provides “Where any period is
fixed or granted by the court for doing of
any act prescribed or allowed by this Act,
the court may in its discretion from time
to time, enlarge such period even though
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the period originally fixed, or granted
may have expired”. Section 59 of the
Interpretation and General Provisions
Act (Cap. 2) further supports this view by
indicating that where the court is given
power by a written law to extend time
prescribed by such written law, the court
has power to extend such time.
He was of the opinion that a court
has jurisdiction and discretion under
the Civil Procedure Rules or under the
inherent jurisdiction to extend time so
long as it retains control over the case or
proceedings. In addition, Justice Githinji
stated that a court has jurisdiction to
extend time as long as it has not finally
and conclusively determined the matter.
He relied on the holding of an Indian case,
Periasami Asari Vs Illuppur Penchayat
Court Of Appeal Cases
Board AIR 1973 Mad 250, where it was
stated that, “the principle that when
the effect of the order granting time
(in the event of non-compliance) has
to operate automatically the court has
no power to extend time as it becomes
functus officio, will apply when the suit
is finally disposed of. If the order is not
final and the court retains control over
it and seized of the matter, it will have
power to extend time”
Justice Githinji stated that a consent or
compromise reached by parties is, when
recorded and signed by the court merged
or subsumed in the judgment or order
of the court and it becomes a judgment
of order of the court. Consequently,
the time stipulated in such a consent
order or judgment becomes the time
fixed or granted by the court and the
court would generally have discretion to
enlarge such time in furtherance of the
ends of justice. He relied on the words
of Justice Ringera (as he then was) in
the case of June Jebet Moi Vs Fuel Oil
Company Limited and two others- HCCC
No. 305 of 2000 “where the court has
power on plain wording of Order 49 rule
5 to extend such time. And even if such
power were not conferred by the rule,
it would be within the courts inherent
power for purposes of securing the
rights of justice to extend such time if
reasonable cause were shown.”
The Court of Appeal dismissed the
appeal with costs to the respondent.
An individual who breaks a law that
conscience tells him is unjust, and
who willingly accepts the penalty of
imprisonment in order to arouse the
conscience of the community over its
injustice, is in reality expressing the
highest respect for the law.
Martin Luther King, Jr.
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High Court Cases
EVIDENCE OBTAINED THROUGH ENTRAPMENT BY STATE AGENTS
IS ILLEGAL AND THUS INADMISSIBLE IN A CRIMINAL CASE
Mohamed Koriow Nur v The Attorney General [2011]
eKLR (www.kenyalaw.org)
Petition No. 181 of 2010
High Court, at Nairobi
M.Warsame J.
September 30, 2011
Reported by Christian Bernard Ateka - Advocate
“...entrapment is a complete defence
and it does not matter that the
evidence against the person is
overwhelming or that his guilt was
undisputed. The court must refuse
to convict an entrapped person not
because his conduct falls outside the
proscription of the statute but because
even if his guilt is admitted, the methods
and manner employed on behalf of the
State to bring about the evidence cannot
be countenanced.”
The High Court has ruled that
evidence sought to be relied
upon by the State and obtained
through the process of entrapment is
inadmissible. In making this ruling, Justice
Warsame observed that the criminal
justice system would be compromised
should the State be allowed to prosecute
and punish someone for committing a
crime which he only committed because
he had been instigated into committing
it by a State agent.
The facts of this petition are that around
mid March 2007, one Jeremiah Kaluma
Buchianga, an investigator at the Kenya
Anti-Corruption Commission (KACC)
and therefore a State agent, had been
assigned to investigate an alleged
grabbing of a piece of land LR. NO.
209/16441 by Mr. Mohamed Koriow
Nur, who is the petitioner herein. Mr.
Buchianga proceeded to arrange a
meeting with Mr. Nur on 14th March,
2007 and he equipped himself with
a tape recorder to assist him in his
investigation.
In the course of the meeting, it was
alleged that Mr. Nur asked Mr. Buchianga
to make a favourable investigation
report about the acquisition of the land
in question so that the land could not
be repossessed from him. In return
for such a report he promised to do
anything that he would be asked for.
Through a concealed recording, the
KACC agent engaged Mr. Nur in a mock
bribe-bargaining that led them to settle
on a bribe of 1 million shillings payable
in two installments of Kshs.500,000/=
each. It was further agreed that the
first installment would be paid the
following day.
On 15th March, 2007 together with five
other officers, Mr. Buchianga proceeded
to an agreed venue with a view to arrest
Mr. Nur if he bribed him as he had
promised the previous day. Mr. Nur
arrived at the scene and allegedly gave a
brown A4 size envelope which contained
Kshs.500,000/=. He was promptly
arrested and charged with three offences
relating to the contravention of the Anti-
Corruption and Economic Crimes Act,
No. 3 of 2003.
It is against these criminal charges
that Mr. Nur petitioned the High Court
to declare, among others, that the
evidence sought to be relied upon by
the Attorney General in the Criminal
Case was obtained by or through the
process of entrapment and is therefore
inadmissible.
It was contended by the petitioner that
the said KACC agent, having informed him
that he was carrying out an investigation
with respect to the land in question, he
had insisted that the petitioner must
meet him, otherwise he would write an
investigation report in such a manner as
to implicate the petitioner in the alleged
fraud and in acquisition of the land. As
a result, the petitioner met with Mr.
Buchianga who turned the conversation
in the direction of ‘performance and
reward’ by asking the petitioner what
he was willing to do for him should he
write a favourable report.
Mr. Macharia, the advocate for the
petitioner submitted that the conduct of
Mr. Buchianga as set out in the recorded
conversation was clearly unjustified,
illegal and amounted to a clear case of
entrapment. This contention was based
on the fact that at the time of engaging
in the conversation, Mr. Nur was not
under any investigation by KACC with
regard to the offence of corruption or
any other offence and therefore had no
reason to bribe or offer any inducement
to anyone. Further, Mr. Macharia
submitted that from the conversation,
the KACC agent repeatedly invited Mr.
Nur to do something he did not intend
to do by commencing the request for
a bribe and as a result, he planted an
intention to commit a crime in the mind
of Mr. Nur where such intention did not
exist before.
On the other hand, Mr. Mule, the
State counsel, contented that Mr.
Nur had indeed bribed Mr. Buchianga
and therefore, he had been properly
charged upon the sufficiency of the
evidence obtained by the KACC agent.
Further, he contended that there was
no entrapment of the petitioner by Mr.
Buchianga and the petition was a mere
attempt to delay the trial of the criminal
case.
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In determining the petition, the court
first sought to address the legality and
admissibility of evidence obtained
through entrapment in a Criminal Case.
Justice Warsame observed that in law,
entrapment is viewed as a type of
lawlessness by law enforcement officers
and is a tactic which is rationalized
under the theory that the end justifies
the employment of the illegal means.
In essence, entrapment is a State
created crime which is unacceptable
and improper. The court clearly stated
that judicial response to entrapment is
based on the need to uphold the rule of
law and therefore, it is not sufficient to
do justice by obtaining a proper result
where such a result acquired through
irregular and improper means. The
judge noted that essentially, entrapment
is a complete defence and it does not
matter that the evidence against the
person is overwhelming or that his guilt
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was undisputed. He further stated
that the court must refuse to convict
an entrapped person not because his
conduct falls outside the proscription
of the statute but because even if his
guilt is admitted, the methods and
manner employed on behalf of the State
to bring about the evidence cannot be
countenanced.
The court re-emphasized that it is wholly
wrong for a State agent to induce a
person to commit an offence in order
that an offence may be detected by the
same agent. In determining whether
entrapment occurred, the learned judge
observed that it is important to analyze
and scrutinize how much and what
manner of persuasion, pressure and
cajoling was brought to bear by the law
enforcement agent to induce persons to
commit a crime.
Having scrutinized the recorded
conversation between the petitioner
and Mr. Buchianga in detail in order to
understand and determine the issue in
dispute, Justice Warsame concluded
that Mr. Buchianga had actually lured
Mr. Nur into committing an act of
bribery for which the State was now
seeking to prosecute him. The court
further concluded that the actions and
conduct of Mr. Buchianga went beyond
those of an undercover agent because
he instigated the offence and there
was nothing to suggest that without
his intervention and participation,
the offence would have nevertheless
been committed. For this reason, the
learned judge ruled that the evidence
so obtained through entrapment by
the State agent was illegal and unlawful
and thus inadmissible in a Criminal Case
against the petitioner.
NOMINATED COUNCILORS LOSE BID TO STOP
REVOCATION OF THEIR NOMINATION
Paul Kiplagat Birgen and 25 Others V Interim Independent Electoral
Commission and 2 others (2011) eKLR www.kenyalaw.org
Miscellaneous Civil Application No.156 Of 2011
High Court of Kenya at Nairobi
M. Warsame J.
November 9, 2011
Reported by Njeri Githang’a Kamau - Advocate
“It is incumbent upon he who seeks
a legal remedy to come with a
clear road map so that the court
can hear, evaluate, interrogate and
determine the grievances suffered
or likely to be suffered by the person
seeking to benefit from the power of the
court. The court can only intervene on
clear factual and legal basis. There must
be a cause of action against an individual
before court clearly and correctly framed
in a proper manner.”
The High Court has declined to
issue orders restraining the Orange
Democratic Movement (ODM)
nominated councilors from being denominated.
The court dismissed claims
by the councilors that their rights were
breached, saying it was not clear who
had violated their rights under their
application.
The 28 applicants had been serving as
nominated councilors by the Orange
Democratic Movement (ODM) in various
Municipals and county councils within
the Republic of Kenya having been
nominated pursuant to sections 26(1)
(b), 39(1) (c) of the Local Government
Act and section 33 of the repealed
Constitution. It was contended that
through various letters ODM through
the Secretary General wrote to the
1st respondent (Interim Independent
Electoral Commission-IIEC chairman)
requesting for revocation and nomination
of new councilors in the positions of
those to be revoked or de-nominated.
All the letters were also copied to the
Deputy Prime Minister and Minister for
Local Governments.
After satisfying itself with all the
requirements for the nomination and
de-nomination of a councilor, the IIEC
Chairman wrote a letter dated 12th
July 2011 to the Minister for Local
Government enclosing a letter from
the ODM party containing the list of
councilors to be revoked and nominated.
Being aggrieved, the applicants filed a
notice of motion seeking an order of
certiorari to quash the decision of the
IIEC contained in the letter addressed to
the Deputy Prime Minister and Minister
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for Local Government requesting and/
or recommending the revocation of
nomination of the applicants. They
further sought an Order of Prohibition
to stop the Deputy Prime Minister and
Minister for Local Government from
acting on the recommendation by the
IIEC.
The application was argued by Mr.
Ongegu on behalf of the applicants.
It was submitted that the actions of
the IIEC Chairman amounted to a
blatant violation of the rules of natural
justice. He also submitted that the
decision to terminate the nomination
of the applicants was taken exparte as
they were never invited to any forum
where their conduct or suitability was
discussed. It was contended that
the decision to revoke the applicants’
nomination was reached at by a section
of ODM members without any regard
to the party’s constitution and the
universal rules of natural justice. He
further stated that the IIEC Chairman
had violated the mandatory provisions
of section 17 (7) of the Political Parties
Act which echoes the rules of natural
justice be observed before a member
can be expelled from a party. Lastly
it was the applicants’ view that the
2nd respondent was not seized of
jurisdiction to terminate the nomination
of councilors nominated under section
26 of Local Government Act.
Mr. Kilonzo advocate for the IIEC
Chairman submitted that the issue of
revocation had been dealt with by the
High Court and the Court of Appeal. He
further submitted that the commission
had limited responsibilities and was not
entitled to question a political party why
it sought the revocation of a councilor.
The application was opposed by Mr.
Kipkogei counsel for the 2nd and 3rd
respondents who stated that the process
of de-nomination starts with the party
concerned, then the party communicates
the decision to the Electoral commission.
The Commission had to then transmit
the names to the Minister who had
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powers vested in his office to exercise in
the manner he thought fit and just. He
therefore urged the court to dismiss the
application as it did not meet the criteria
for the grant of the orders sought.
The court started by analyzing the
scope and the efficacy of an order of
certiorari. Justice Warsame pointed
out that Certiorari and prohibition were
complementary remedies based upon
common principles and certiorari would
be issued to quash a decision which was
ultra vires. The concern of certiorari,
he stated, was about a decision or
determination whether or not made
under a legal power or a legal authority.
The judge was of the view that it
was not clear who had breached the
applicants’ rights and who was to accord
them a hearing before any decision
was taken against them. He pointed
out the fact that it was uncontested
that the IIEC Chairman was not the
appointing authority of the applicants.
Secondly the commission had a limited
statutory power and it had no power
and/or authority to question the party
or Minister on matters outside its
jurisdiction.
The question was hence whether the
letter dated 12th July 2011 addressed to
the Deputy Prime Minister and Minister
for Local Government amounted to a
decision and whether the IIEC chairman
committed acts prejudicial to the rights
and interests of applicants. The judge
referred to the Black’s Law Dictionary
6th Edition which defined a decision
as “A determination arrived at after
consideration of facts, and, in legal
context, law.” It was noted that the
catchwords used in the prayer No.1 of
the Notice of Motion were the words
‘requesting and/or recommending’.
From the definition of request and
recommendation it meant the chairman
of the IIEC Chairman was asking for
something to be granted or done which
had been requested by the political party
that nominated the applicants. The IIEC
Chairman was indeed incapable and had
no capacity or authority or power to
revoke or recommend the nomination
of the applicants. According to the court,
one could not challenge an exercise of
statutory duty or obligation from being
exercised by the IIEC Chairman.
With regard to the contention of the
applicants that they were not given
or accorded an opportunity as to why
the decision contained in the letter
dated 12th July 2011 was made, the
court affirmed that the understanding
of the law was that it was not the role
of the IIEC Chairman to assume the
responsibilities of the concerned party
that nominated the applicants. It was
hence opined that there was no decision
capable of being challenged and which
was amenable to judicial review that
was made by the IIEC Chairman against
the applicants.
On the issue of the prohibition order, it
was the court’s view that there was little
difference in principle between certiorari
and prohibition except that prohibition
could be involved at an earlier stage. If
the proceedings established that the
body complained of was exceeding its
jurisdiction by entertaining matters
which could result into its final decisions
being subject to being brought up and
quashed on certiorari, then prohibition
would lie to restrain from so exceeding
its jurisdiction.
However under the circumstances, the
court could not determine whether the
rules of natural justice were followed or
would be followed by the Minister when
there was no evidence or complaint
against his conduct or the exercise of
his statutory duty. The judge could not
also determine whether the decision to
revoke the applicants’ nomination was
unilaterally reached by a section of ODM
members without the presence of the
said party before the proceedings.
In conclusion, the court opined that there
was no cause of action established by the
applicants against the respondents and
the application was hence without merit
and was dismissed in its entirety.
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High Court Cases
COURT BARS CMC SHAREHOLDER FROM HOLDING
EXTRA-ORDINARY GENERAL MEETING
The Hon. Lady Justice
Mumbi Ngugi, j.
Andy Forwarders Services Limited v The Capital Markets Authority &
CMC Holdings Limited www.kenyalaw.org
Petition No. 216 of 2011
High Court of Kenya at Nairobi
Mumbi Ngugi J.
November 16, 2011
Reported by Emma Kinya - Advocate
Where a company has invited
the public to purchase its
shares and has therefore
come under the regulatory regime of the
Capital Markets Authority, the interests
of all shareholders and investors must
be protected, the court has held. The
petitioner, Andy Forwarders Services
Limited, sought an order to restrain
the respondent, the Capital Markets
Authority (CMA) which is the statutory
regulator of the Capital Market in
Kenya, from interfering with an Extra-
Ordinary General Meeting (EGM), which
the petitioner had requisitioned and
which had already been scheduled. The
purpose of the EGM had been to remove
certain directors of CMC Holdings and
replace them. The petitioner therefore
sought an order to declare that the
respondent’s decision purporting to bar
the CMC Board of Directors from holding
an Extra-ordinary General Meeting
(EGM) in direct breach of statutory duty
imposed upon CMC Directors by virtue of
shareholders interest under section 132
of the Companies Act was in violation
of Article 40 of the Constitution and
therefore invalid.
The petitioner had filed a chamber
summons application concurrently
with the petition in which it sought
among others, an injunction to restrain
the respondent from interfering with
the meeting of shareholders of CMC
to be held pursuant to the petitioners
requisition notice issued in accordance
with section 132(1) of the Companies
Act. CMC holdings thereafter applied to
be joined as an interested party when
the matter came up for hearing. The
Capital Markets Authority filed a crossapplication
seeking a conservatory order
maintaining the status quo regarding
CMC Holdings Company and the
composition of its Board of Directors
pending the hearing and determination
of the petition. CMA also sought an
order restraining the petitioner from
proceeding with the Extra-ordinary
General meeting. The two applications
were heard concurrently by Justice
Mumbi Ngugi.
Mr. Ojiambo appearing for the petitioner
submitted that in exercise of rights
granted under section 132 (1) of the
Companies Act, the petitioner had
requisitioned for an EGM upon failure
of the Directors of CMC to convene one.
He further submitted that the right of
shareholders under section 132 of the
Companies Act was a right that could
not have been abridged and a right
of property which could have been
exercised by the shareholders whatever
their motive for exercising that right was.
Counsel contended that the right under
section 132 was not just a statutory right
but had constitutional underpinnings
and was protected under Article 40 (2)
of the Constitution which prohibited
parliament from enacting any law that
permitted the deprivation of property.
He therefore stated that the right was
a fundamental right which could not
be limited except as had been provided
under Article 24 of the Constitution
and that CMA could not therefore as a
statutory body have interfered with the
petitioner’s right.
In addition, counsel submitted that
any limitation under Article 24 of the
Constitution should not have limited the
right so far as to derogate from its core
and essential content. In the petitioner’s
view, the core and essential content of
the rights of a shareholder under section
132 of the Companies Act was to call an
EGM and therefore, to limit the right
to call an EGM was to derogate from
that right’s core and essential content.
Counsel further averred that there was
no provision in the CMA Act permitting
the respondent to stop the shareholders
from holding an EGM. He went on
averred that while it was argued that the
respondent was carrying out its statutory
duty in seeking to stop the petitioner
from holding an EGM, no specific duty
had been drawn to the attention of the
court.
Mr. Alibhai who represented CMA stated
that the purpose of the EGM was to
remove the directors of a listed company
who had alleged that the petitioner
defrauded the company and that
should the petitioner have succeeded,
it would have amounted to removing the
directors who had made the allegations
against it and replaced them with its
nominees, thereby assuming full control
of CMC. He submitted that while the
respondent’s application was intended
to preserve the status quo, the petitioner
was seeking to change the status quo.
He therefore observed that should the
AGM have taken place, then the entire
purpose of the petition would have
been lost and the petition would have
been spent and therefore there would
have been no issue left for the court to
determine. The petition would thus have
been rendered nugatory.
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More over, argued that in such a matter,
the applicant seeking a conservatory
order ought to have shown a prima
facie case. He submitted that there
was nothing sacrosanct about the
right conferred by Section 132 of the
Companies Act and that the court was
entitled to have interfered where there
was an abuse of this right in the case
of an unlisted company. He therefore
submitted that in the circumstances, the
court should have been concerned with
the question of balancing of rights and
that CMA as a regulator must balance
the interests of one shareholder against
those of investors and the entire market.
CMC Holdings as the interested party
on its part associated itself with the
submissions of CMA.
The High Court after entertaining rivalry
submissions considered whether or not
to grant conservatory orders either to
the petitioner or the respondent.
In determining the matter the Court
relied on the case of Centre For Rights
Education and Awareness (CREAW) &
7 Others v Attorney General & Others
Petition No. 16 of 2011 and observed
that the court’s discretion to grant
conservatory orders required the
applicant to demonstrate that it had
a prima facie case with a likelihood
of success and that unless the court
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had granted the conservatory order,
there was a real danger that he would
have suffered prejudice as a result of
the violation of the Constitution. The
Court also considered the decision in
Muslims For Human Rights & Others v
The Attorney General & Others Petition
No. 7 of 2011 where it had been noted
that a conservatory Order was not an
injunction as was known in civil matters
but was an order that was intended to
preserve the subject matter in such a
way that the Constitutional proceedings
and cause of action was not rendered
nugatory. The Court upon the aforegoing
decisions observed that two conditions
had to be satisfied for a conservatory
order to issue. First, that the situation
required conservation so as to have
maintained the status quo pending the
hearing of the petition and if the order
was not issued, the petition would have
been rendered nugatory. Secondly the
court was to consider whether the
petitioner or other party seeking a
conservatory order had established a
prima facie case with a probability of
success.
To this end, the court had to weigh the
respective interests of other investors
and the market. A change in the status
quo in CMC would have radically altered
the situation and rendered the questions
for determination in the petition moot.
The judge therefore found that the
petitioner had not demonstrated that it
had an arguable case with a probability
of success and that it would have
suffered prejudice if conservatory
orders in its favour were not granted.
The judge further observed that if
the regulator was restrained and the
petitioner permitted to convene the
EGM, the critical questions that the
petition sought to answer relating to the
mandate of the respondent as regulator
with regard to the rights of shareholders
under the Companies Act would have
been rendered moot. She observed that
conversely, should the cross application
succeed, the status quo in the interested
party would have been maintained and
the issues raised by the petition would
have remained live for determination at
the hearing for the petition.
Accordingly, the court dismissed the
application and ordered that the
status quo as regards CMC Holdings
be maintained and further that the
petitioner be restrained from convening
an Extra-ordinary General Meeting
pending the hearing and determination
of the petition.
EVICTION OF PETITIONERS WAS IN VIOLATION OF
THE LAW
Musa Mohammed Dagane & 25 others v Attorney General &
3 others [2011] eKLR
Constitutional Petition No. 56 of 2009
High Court of Kenya at Embu
M Warsame, J.
November 16, 2011
Reported by Nelson K. Tunoi - Advocate
“Eviction results in individuals being
rendered homeless or vulnerable
to violation of other human rights
especially where the affected persons are
unable to provide for themselves and for
their families. In such circumstances the
State must take all appropriate measures
taking into consideration the available
resources to ensure that adequate
alternative housing, resettlement and/or
access to basic amenities are available.”
The High Court at Embu (Warsame,
J.) has held that the eviction
subjected to the petitioners was
in violation of the law and consequently
the petitioners suffered loss and
damages, which must be compensated.
The petitioners were the local and
historical indigenous habitants of Garissa
District although they had never been
issued with title documents to the
land they had occupied since time
immemorial. In 1981 they were evicted
by the provincial administration from
the land on which the NEP Technical
College currently stands. They alleged
that no compensation was offered in
spite of the historical claims by virtue of
being the local and historical habitants
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of the subject area hence laying claim to
customary interest in the subject land.
The petitioners were evicted in 1984
by the Provincial administration
from the land on which Umu Salama
Secondary school now stands, and no
compensation offered. Again in 1989,
the Provincial Administration invaded
the land occupied by the petitioners
in a move suspected to have been
intended to give the said land to a private
developer. There was no explanation
given by the Provincial Administration
as to why the petitioners were being
evicted.
In April 2003 the petitioners received
a notice from the Garissa District
Commissioner alleging to be issued
in line with Government policy of
repossessing public land taken over by
private individuals. The notice ordered
the petitioners to vacate the subject
land within fourteen (14) days. Despite
the protests by the petitioners regarding
the Government’s decision to evict the
petitioners, the District Commissioner
in the company of administration police
proceeded to evict them and demolished
their structures leaving them homeless,
and later resettled them at an empty
parcel of land six (6) kilometers away,
which had no access to the amenities
essential for basic life support. Those
actions by the respondents provoked the
instant petition where the petitioners
challenged the conduct and actions of
the respondents. The petitioners sought
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declaratory orders, inter alia, that the
eviction of the petitioners from the
subject lands without any adequate
compensation and resettlement
amounted to a violation of their right
to own property guaranteed under
section 75 of the Constitution (now
repealed), and that the eviction notices
issued were void and of no legal effect.
The petitioners also sought directions
that the petitioners adduce viva voce
evidence to prove their losses of property
incurred during the forcible evictions for
purposes of appropriate compensation.
The petition was not challenged by the
respondents.
During the determination of the petition,
the petitioners contended that they
were relocated to a place which had no
access to education facilities, health,
electricity, water, road network and
other trading facilities that were
essential for basic life support. Justice
Warsame observed that the petitioners
had demonstrated that their land was
taken away in a manner contrary to
the Constitution and International
Conventions against forceful eviction.
The judge stated that, “eviction results
in individuals being rendered homeless
or vulnerable to violation of other
human rights especially where the
affected persons are unable to provide
for themselves and for their families. In
such circumstances the State must take
all appropriate measures taking into
consideration the available resources
to ensure that adequate alternative
housing, resettlement and/or access to
basic amenities are available.” Thus, the
petitioners were subjected to inhuman
and degrading acts by the conduct of the
respondents, and further they lost their
land and property in a manner contrary
and in violation of the law.
Justice Warsame further held that “the
State has a constitutional obligation
to provide services to the petitioners
in a sustainable manner to promote
social and economic development
and encourage the growth and the
sustenance of basic rights, and that the
State must also respect, protect, promote
and fulfil the basic rights enshrined in
the Constitution to ensure that there
is no violation or encroachment on the
said rights on any entity or organ of the
State.” The judge noted that by evicting
the petitioners from their ancestral
home, the respondents engaged in
acts and in a manner that was broadly
at odds with the spirit and purpose of
constitutional obligations.
The judge granted the orders sought
in the petition and directed that the
court would hear oral evidence of the
petitioners regarding the loss of property
so as to ascertain the appropriate
compensation after balancing the
interests of the petitioners and that of
the respondents. The petitioners were
represented by Mr Elisha Ongoya.
EVICTEES AWARDED OVER 200 MILLION
SHILLINGS AS DAMAGES FOR VIOLATION OF
THEIR RIGHTS
Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial
Administration and Internal Security & 10 others [2011] eKLR
Constitutional Petition No. 2 of 2011
High Court at Embu
A O Muchelule, J.
November, 16 2011
Reported by Nelson K. Tunoi - Advocate
“…the petitioners were entitled
to adequate information on the
reasons of the proposed evictions
and the alternative purpose the subject
land was to be used had to be indicated,
and the said information be given
in accordance with article 35, which
guarantees the right to information.
The evictions were then supposed to be
carried out in a manner that respected
human dignity, right to life and the
security of the affected…”
The High Court (Muchelule, J.) has
awarded a global sum of Kshs.
224,600,000/= to 1,123 ‘Medina
Evictees’ (petitioners) as damages
following their eviction from unalienated
public land within the jurisdiction of
the Municipal Council of Garissa (2nd
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respondent). The court also declared
that the petitioners’ fundamental
rights as outlined in their petition had
been violated by virtue of the eviction
from the alleged public land and the
consequential demolition of property
by the respondents.
The petitioners had occupied the
subject land since the 1940’s, initially
as grazing land but in the 1980’s they
put up permanent and semi-permanent
dwellings in which they were living prior
to eviction. Sometime in December
2010, the Garissa District Commissioner,
in the company of administration police
and some unidentified youth informed
the petitioners that they had come to
prepare the grounds for the construction
of a ring-road and warned that any
homestead that fell along the road
would be demolished. They proceeded
to mark the area where the purported
road would pass. There was no further
communication from the relevant
authorities and the petitioners’ attempts
to seek audience with them regarding
the scheduled eviction and demolition
became futile.
About three weeks later, a group of
armed administration police officers
in riot gear and unidentified youth
arrived in the area under the command
of the Garissa Central District Officer,
and proceeded to demolish some of
the houses and structures erected on
the purported Government Land. The
‘demolition squad’ returned a second
time under the authority of the Deputy
Mayor of the Municipal Council of
Garissa and continued with the exercise.
The petitioners’ attempt to resist the
eviction was violently crushed by the
police.
It was established in court that no written
notice was served on the petitioners, the
respondents had no court order and
they did not engage the petitioners in
any consultation or explanation. It was
submitted that too that a total of 149
houses and structures were demolished
and the petitioners were forced to live
in make-shift temporary structures,
exposing them to elements and vagaries
of nature, health risks, insecurity and lack
of basic human necessities such as food,
water and sanitation. Several children
dropped out of school as their parents
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had to seek alternative accommodation
elsewhere. The petitioners had sought
audience with the relevant authorities
following the eviction but all was in vain.
The petitioners consequently filed a
petition before the High Court seeking
several declarations and orders, among
them, that the forcible, violent and
brutal eviction through the demolition
of their homes without according them
alternative settlement was a violation
of their fundamental rights enshrined
under the Constitution and that the
respondents be permanently restrained
from evicting the petitioners without
provision of alternative shelter mutually
agreed upon with the petitioners. The
alleged violations of the fundamental
rights in the petition included the right
to life (Article 26), right to inherent
human dignity and security of the
person (Articles 28 & 29), right to access
to information (Article 35), economic,
social and specific rights (Articles 43 &
53 (1) (b) (c) (d)) and the right to fair
administrative action (Article 47). Those
rights were also enshrined in various
regional and international instruments:
the International Conventions such
as the African Charter on Human and
People’s Rights (ACHPR), International
Covenant on Economic, Social and
Cultural Rights (ICESCR-Articles 11, 13),
International Covenant on Civil and
Political Rights (ICCPR- Article 17) and
the Universal Declaration of Human
Rights. These instruments formed part of
the Laws of Kenya by virtue of Article 2
(5) & (6) of the Constitution. The petition
was not challenged by the respondents.
The court observed that the Constitution
provided that the Bill of Rights applied
to all and bound all State organs and
all persons (Article 20), and that it was
a fundamental duty of the State and
every State organ to observe, respect,
protect, promote and fulfill the rights
and fundamental freedoms in the Bill
of Rights (Article 21 (1)). Further, all
State organs and public officers had a
duty to address the needs of vulnerable
groups within the society i.e. women,
children and the elderly (Article 21 (3)).
The Court thus held that the purported
21 days’ notice by the respondents was
both unreasonable and insufficient in
the circumstances. It further stated that
petitioners were entitled to adequate
information on the reasons of the
proposed evictions and the alternative
purpose the subject land was to be
used had to be indicated, and the said
information be given in accordance with
Article 35, which guarantees the right
to information. The evictions were then
supposed to be carried out in a manner
that respected human dignity, right to
life and the security of the affected.
The court observed that there was
no written notice served upon the
petitioners and no adequate information
given concerning the usefulness of
the road vis-à-vis the petitioners’
occupation of the land, and there
was no indication that they would
be afforded alternative settlement.
Further, for the evictions to be justified
pursuant to the relevant provisions of
the international instruments ratified
by Kenya, they ought to be carried out
in the most exceptional circumstances
after all feasible alternatives to eviction
were explored in consultation with
the affected community and after
due process afforded to the individual
or group. The forced eviction was a
violation of the fundamental right
of the petitioners to accessible and
adequate housing as enshrined in article
43(1) (b) of the Constitution, and more
important, the eviction rendered the
petitioners vulnerable to other human
rights violations.
Regarding the remedies available to
the petitioners in the circumstances,
the court relied on the United Nations
General Assembly (Resolution 60/147
of 21/3/2005), which provided that a
proper remedy for forced evictions was
to return the victims as close as possible
to the status quo ante. The judge also
made reference to the persuasive South
African authority Tswelopele Non-Profit
Organization & Others v City of Tshwane
Metropolitan Municipality, 2007 SCA 70
(RSA), where the court considered forced
eviction as a violation of the right to have
access to adequate housing as enshrined
in Article 26 (1) of the South African
Constitution and held that the proper
remedy was the resolution of the status
quo ante and ordered the occupiers
to get their shelters back and further
ordered the respondents to jointly and
severally reconstruct them. Thus, the
court observed that the petitioners
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were entitled to the declarations sought
in the petition, and made an order
compelling the respondents to return
the petitioners to the subject land,
reconstruct reasonable residence and
alternative accommodation for them,
which would include all the amenities
and facilities subsisting at the time
of the eviction and demolitions. The
High Court Cases
court further ordered a permanent
injunction retraining the respondents
from future evictions and demolitions
unless the law was followed. Although
the petitioners did not disclose the
value of what was lost in the evictions
or any other expense, and considering
the fact that the petition was not
defended by the respondents, each of
the 1,123 petitioners was awarded a sum
of Ksh. 200,000/= in damages against
the respondents, jointly and severally,
including the costs of the petition.
The petitioners were represented by Mr
Mbugua Mureithi and the Amici Curia
represented by Mr Odindo Opiata.
COURT MAINTAINS
COMMISSIONER KIPLAGAT AS CHAIRMAN OF TJRC
The Hon. Mr. Justice
J. W. Mwera, JJ.
In Re Truth Justice & Reconciliation Commission & Another Ex-Parte Hon.
Augustine Njeru Kathangu & 9 Others Eklr [2011]
High Court at Nairobi
J. W. Mwera; H. M. Okwengu; D.K. Maraga (JJ)
November 28th 2011
Reported by Monica Achode – Advocate
The High Court has dismissed an
ex-parte judicial review application
seeking to have Mr. Bethwel
Kiplagat prohibited from running the
affairs of the Commission as Chairman
or participating in the activities of
the Commission and a further order
quashing the oath of office. The Court
found that the applicants had in fact
not challenged the decision making
process in the appointment of Mr.
Kiplagat but rather, they had challenged
his selection and nomination, being
of the view that he was not a suitable
candidate for nomination. It was the
Court’s observation that the remedy of
prohibition did not deal with the merit
of the decision but with the process.
The facts as stated by the ex-parte
applicants had been that the Truth
Justice & Reconciliation Act (TJRC Act)
had been violated by the selection
panel in forwarding the name of Mr.
Kiplagat for appointment as chairman
of the Commission. The applicants, a
lobby group known as “Kenyans against
Impunity” and former victims of state
violence, contended that, on account
of his past record, Mr. Kiplagat was
unfit to be appointed as a commissioner
and chairman of the Commission as
he was alleged to have been involved
in defending torture, abuse of judicial
process, and policies of dictatorship
in Kenya during the period he served
as Ambassador of Kenya in the United
Kingdom and Permanent Secretary in
the Ministry of Foreign Affairs.
The ex-parte applicants further contend
that the TJRC Act specifically excluded
holders of public office, both serving
and retired from membership of the
Commission. This was because the
actions of public officers were the subject
of the investigations being undertaken
by the Commission. The forwarding of
Mr. Kiplagat’s name for appointment to
the Commission was therefore against
the spirit and letter of the TJRC Act. In
addition, the oath of office taken by Mr.
Kiplagat was null and void as it had been
taken before publication of the notice of
his appointment in the Kenya gazette.
The gravamen of Mr. Kiplagats response
to this application was that the court
had no jurisdiction to grant the orders
sought in the application; the application
had not disclose any recognized grounds
for judicial review; and that the matters
raised in the application were nonjusticiable
and not amenable to judicial
review. He denied being aware of the
breaches of the TJRC Act alleged by the
applicants and maintained that he had
been properly gazetted as commissioner
and chairman of the commission. Mr.
Kiplagat further averred that he never
acted in excess of his jurisdiction nor had
any action or decision been disclosed
affecting any legally enforceable rights of
the applicants, such as would attract an
order of certiorari. He pointed out that
the appointment of the commissioners
or chairman of the Commission was
neither a judicial nor quasi-judicial act
amenable to judicial review.
In determining the matter the court
had contemplated under what
circumstances it would issue an order
of prohibition as requested by the
applicants. Also in consideration had
been the import of section 17 of the
TJRC Act in setting out the procedure for
removal of commissioners viz a vis the
judicial review procedures, and whether
orders of judicial review available
against the appointing authority. As
regards the order of certiorari the court
considered whether Mr. Kiplagat had
been sworn before the gazette notice
of his appointment was published and
if so what effect that had on his as the
chairman of the Commission.
The applicants had also raised substantive
issues of law such as whether the TJRC
Act was defective; whether the TJRC Act
was unconstitutional; or whether the
TJRC Act violates other statutes, human
rights and international law among
others and the court considered whether
these issues could be raised through
such a general prayer as adopted by the
applicants.
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The Courts findings:
Whether or not the TJRC Act was
defective or unconstitutional?
The Court’s understanding of the exparte
applicants complaint was that
it was against the TJRC Act, which
was in the applicants’ view defective,
unconstitutional, and its propriety
and legality vis a vis the Constitution
questionable. The Court felt that these
were substantive constitutional issues
which could not be casually sprung up
at the tail end of the proceedings during
submissions as the ex-parte applicants’
had done. One could not seek the
invalidation of an Act of Parliament
in one’s submissions without specific
pleadings.
No question had been raised in the exparte
applicants’ pleadings regarding
the validity of the TJRC Act, nor had the
ex-parte applicants’ specifically prayed
that the court declare the TJRC Act or
part thereof as null and void or ultra vires
the Constitution. Thus the application as
pleaded in the Notice of Motion did not
provide an appropriate forum for the
determination of those issues. The exparte
applicants failed to properly invoke
the Court’s mandate as a Constitutional
Court. In the circumstances the High
Court had no option but to decline
the ex-parte applicants’ plea in their
counsel’s submissions to declare the
TJRC Act defective or unconstitutional.
On the issue of the application for the
judicial review orders of certiorari and
prohibition:
High Court Cases
The High Court opined that it was
trite law that judicial review was a
special jurisdiction which was neither
civil nor criminal. It was concerned
with the decision making process, not
with the merits of the decision itself
therefore the Court would only be
concerned with the process leading
to the making of the decision and not
the merits of the impugned decisions.
The Court reiterated that even a purely
administrative act of a public officer
purporting to discharge his public duty,
would be amenable to judicial review,
thereby debunking submissions by Mr.
Kiplagat’s counsel that for an act to be
amenable to judicial review jurisdiction
it had to be judicial or quasi-judicial or
against the rules of natural justice.
The High Court went ahead t define what
an oath of office meant with regard to
the application to quash the oath of
office. The only issue raised by the exparte
applicants on it was that it had
been administered before Mr. Kiplagat’s
appointment, therefore in the Court’s
view the determining factor was the
date of appointment. There was nothing
wrong with the publication of the notice
of appointment after administering the
oath. Therefore the issue of putting the
cart before the horse as contended by
the ex-parte applicants has absolutely
no basis.
In considering the prayer for an order
of prohibition the Court felt that the
starting point was to consider the
scope of the order of prohibition itself,
what the order did and when it would
issue. The ex-parte applicants’ had
to establish that the Mr. Kiplagat was
running the affairs of the Commission
either without any jurisdiction, or in
excess of his jurisdiction as chairman
or commissioner, or in contravention
of the laws of the land, or against the
rules of natural justice. However, none of
these things formed part of the ex-parte
applicants’ complaint, their complaint
related to the actual appointment of
the 2nd respondent to the Commission.
They did not seek to quash Mr. Kiplagat’s
appointment therefore an order seeking
to prohibit him from running the affairs
of the commission would have no basis
as long as his appointment remained
in force.
Based on the fact that the ex-parte
applicants were not challenging
the decision making process in the
appointment of Mr. Kiplagat but
rather the merit of his selection and
nomination, being of the view that 2nd
respondent was not a suitable person for
nomination, the High Court held that the
remedy of prohibition was not available
to the ex-parte applicants.
It was from the foregoing that the Court
dismissed the ex-parte applicants’
application.
WHY COURT ISSUED A WARRANT OF ARREST
AGAINST AL BASHIR
Hon. Mr. Justice
N.R.O. Ombija, J.
International Commission of Jurists-Kenya v Attorney General & 2 others
High Court, at Nairobi
N.R.O. Ombija J
November 28, 2011.
Reported by Cornelius W. Lupao - Advocate.
“Applying International Law
principles to the facts of this case,
the High Court in Kenya clearly has
jurisdiction not only to issue 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……In respect of this
particular case, two warrants of arrest
were issued against President Omar
Ahmad Hassan Al Bashir [Omar Al
Bashir], the sitting President of the
sovereign Republic of Sudan on 4th
March 2009 with five counts of crime
against humanity and two of war crimes
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on 12th July, 2010 with three counts of
genocide for allegedly orchestrating
atrocities in the Western Province of
Dafur in Sudan. It is in evidence, that
subsequent to the issuance, the Registrar
of the International Criminal Court [ICC]
sent a supplementary request to ask
the State parties to the Rome Statute
to effect the arrest and surrender of
President Omar Ahmad Hassan Al Bashir
[Omar Al Bashir] should he come to
the respective territory. It is common
ground that Kenya is a State party to
the Rome Statute………State parties are
under a duty to execute or extradite the
perpetrators of International Crimes to
the ICC for prosecution. ’’
A
warrant of arrest was issued
against President Al Bashir, the
President of Sudan, due to an
obligation that Kenya has to arrest him
should he set foot in its territory, the court
has held. 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 is 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 predicated
upon the affidavit of, George Kegoro,
ICJ’s Executive Director , and was based
on grounds that the Constitution of
Kenya at 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
the 15th March 2005 and followed up
on that act by domesticating the Statute
vide the International Crimes Act of
2008; that the Constitution of Kenya,
2010 at Article 3 puts an obligation on
every person to respect, uphold and
defend the Constitution; that there
were two outstanding warrants of arrest
against President Al Bashir issued by
the International Criminal Court [ICC]
on 4th March, 2009 and 12th July 2010
respectively; that there were also two
requests for co-operation in the arrest
and surrender of President Al Bashir
issued by the International Criminal
Court [ICC] on 6th March, 2009 and 21st
July, 2010 to States that are parties to the
Rome Statute; that President Al Bashir
came to Kenya, on the 27th August,
2010, but despite the existence of the
High Court Cases
said warrants of arrest, the respondents
in utter disregard of their obligations,
under international law and the Laws
of Kenya, failed to enforce the said
warrants of arrest; that the applicant
was apprehensive that President Al
Bashir would again be coming into
Kenya to attend a meeting convened by
Kenya through the Intergovernmental
Authority on Development (IGAD);that
previously when President Al Bashir
came to Kenya on the 27th August 2010,
the respondents failed and refused
to effect arrest on him despite the
existence of the said warrants of arrest
against him which fact was within their
knowledge; that the applicant was
apprehensive that should President Al
Bashir come to Kenya, the respondents
in total disregard of the law would once
again fail to effect an arrest against him
as they previously did and that it was in
this premise, that the applicant sought
the application.
On behalf of the applicant, the court was
urged that the objectives of the applicant
were inter-alia, the development,
strengthening and protection of the rule
of law; and in particular to keep under
review all aspects of the rule of law and
human rights within the Republic of
Kenya and take such action as would be
of assistance in promoting or ensuring
the enjoyment of these rights.
It was stated further that the applicant
was aware of the existence of the
warrants of arrest against President Al
Bashir [Omar Al Bashir, the President
of the Sovereign Republic of Sudan, the
said warrants having been issued by the
Pre-Trial Chamber of the International
Criminal Court [ICC] respectively on 4th
March, 2009 with five counts of crime
against humanity and two of war crimes
and on 12th July, 2010 with three counts
of genocide for allegedly orchestrating
atrocities in the Western Province of
Dafur in Sudan. This was pursuant to
Article 91 as read together with Article
92 of the Rome Statute.
The applicant concluded its case by
stating that despite the Government
of Kenya being averse and/or aware
of its commitments and obligations
under international law and municipal
law, President Al Bashir was invited
and hosted by the Government of
Kenya on 27th August, 2010 during
the promulgation of the country’s new
Constitution and that the presence
of the said President in the Kenyan
territory was in violation of Kenya’s
obligations under the Rome Statute,
the International Crimes Act, 2008 and
the new Constitution of Kenya, 2010.
It went on that the failure, neglect or
refusal to arrest the said President
violated the basic tenets of International
law and that the hosting of the said
President in Kenya in violation of Kenya’s
obligations under the Rome Statute [ICC]
and the International Crimes Act, 2008,
and the Constitution of Kenya, 2010
raised serious concern over Kenya’s
commitment to combating impunity
for the most serious crimes against
humanity.
On the other hand, the 1st and 2nd
respondents urged that the request for
a provisional warrant can only be made
by the ICC. They urged that it was the
ICC to demonstrate the reasons and
the urgency. In this regard they placed
reliance on Article 92 of the Rome
Statute. They went ahead to state that
Section 32 and 33 of the International
Crimes Act, 2008 derive directly from
Article 92 of the Rome Statute. Hence,
according to them, section 32 and 33
of the International Crimes Act, 2008,
should be read together with Article 92
of the Rome Statute for their full tenor
and effect. Their view was that a reading
of the aforesaid Sections and the said
Article leaves no doubt that the request
can only be made by the ICC in urgent
cases. In the premises, the applicant
(ICJ-Kenya Chapter) therefore lacked
locus-standi as it had not stated its (ICJ-
Kenya Chapter)’s, interest in the case.
More so they argued that ordinarily,
in matters of mutual legal assistance
and extradition, foreign requests are
channeled to the Hon. the Attorney
General and that if the Attorney General
is satisfied as to the authenticity of the
request, he would then move the High
Court for issuance of a warrant and
conduct the proceedings on behalf of
the requesting party. They observed that
this process is not done by an individual
or any authority. Their view was that the
applicant envisaged under Section 29 of
the International Crimes Act, 2008 is the
Minister, in charge of Internal Security, of
the Sovereign Republic of Kenya. Thus,
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according to them, the applicant under
both sections should be the State as
opposed to the applicant herein or any
other legal person. They emphasized
that an application for a provisional
warrant of arrest under Section 32 of
International Crimes Act, 2008 can only
be made upon receipt of a request
from the ICC courtesy of Article 92 of
the Rome Statute and that since, there
was no evidence that such a request for
a provisional warrant had been made
to the Kenya Government by the ICC,
the High Court lacked jurisdiction to
hear, determine or give orders sought
in the application. Finally the 1st and
2nd respondents concluded that the
application was moot, moribund and
fruitless since the IGAD Summit meeting
which could provide an opportunity
for President Omar Al Bashir was held
in Addis Ababa in November 2010.
Hence, as far as they were concerned,
the argument that the said President
might come to Kenya was speculative
and could not be a basis upon which
the court could issue a warrant even if
the right procedure had been followed.
On behalf of the 3rd respondent, it
was urged that the Vienna Convection
on Diplomatic Relations Treaty was in
conflict with the International Crimes
Act, 2008.According to it, African Union’s
decision adopted in July, 2009 at a
Summit in Sirte Libya, under the auspices
of the Assembly of heads of States, the
AU’s highest decision making organ,
directed all AU member States to
withhold co-operation with the ICC in
respect of the arrest and surrender of
President Omar Hassan Ahmad Al Bashir.
It stressed that the African Union had
repeatedly called for the United Nations
Security Council to invoke Article 16
of the Rome Statute to suspend the
warrant of arrest against President
Omar Al Bashir and that Kenya being a
member of the African Union, decisions
and resolutions of the AU are binding
on Kenya and its people. To the 3rd
respondent, Kenya being a neighbor
to Sudan, declaration of the warrant of
arrest against Al Bashir would be an act
of aggression and its execution of would
jeopardize or risk the lives and property
of an estimated 500,000 Kenyans in the
Sudan and lead to a deterioration of
the relations between the two States. It
concluded that Kenya being a guarantor
High Court Cases
to the comprehensive peace agreement
that ended the civil war in Sudan should
not take action that would precipitate
instability in Sudan.
Upon consideration of issues at hand,
the Court began by acknowledging the
fact that Article 2(5) of the Constitution
of Kenya, 2010 provides that the general
rules of international law, the Rome
Statute being such, form part of the
law of Kenya hence the Constitution
incorporates it in the Courts of Kenya.
This, the Court stated that it is fortified
by the enactment of the International
Crimes Act, 2008 [Act No. 16 of 2008.
To this end, the court concluded that
Kenya’s constitution incorporates the
role of the International Institutions
such as the ICC hence the role of
the International Criminal Court [ICC]
operates within the frame-work of the
Rome-Statute in the framework of the
Kenyan Legal System.
Further, the court observed that in
the context of Kenya, the High Court
exercises any jurisdiction, original or
appellate, conferred on it by legislation.
In this regard the Constitution of Kenya,
2010 and the International Crimes Act
2008, it went on, confers jurisdiction
on the High Court to enforce the Rome
Statute. The Court in addition observed
that in the realm of International Law,
under the principle of universality, any
State is empowered to bring to trial
persons accused of international crimes
regardless of the place of the commission
of the crime, or the nationality of the
offender.
Similarly, the court observed that
the view that the duty to prosecute
international crimes has developed into
jus-cogens and customary international
law, thus delegating States to prosecute
perpetrators wherever they may be
found. The State parties to the ICC
according to the court are under a
duty to prosecute or extradite the
perpetrators to the ICC for prosecution.
The court, upon applying various
International Law principles to the facts
of this case, stated that the High Court
in Kenya clearly has 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. It
went on that in respect of this particular
case, two warrants of arrest were issued
against President Omar Ahmad Hassan
Al Bashir [Omar Al Bashir], the sitting
President of the sovereign Republic
of Sudan on 4th March 2009 with five
counts of crime against humanity and
two of war crimes on 12th July, 2010 with
three counts of genocide for allegedly
orchestrating atrocities in the Western
Province of Dafur in Sudan. It stated
that it was in evidence, that subsequent
to the issuance, the Registrar of the
International Criminal Court [ICC] sent a
supplementary request to ask the State
parties to the Rome Statute to effect
the arrest and surrender of President
Omar Ahmad Hassan Al Bashir [Omar Al
Bashir] should he come to the respective
territory.
As to who would implement the
instructions of the Pre-trial Chamber,
the court considered three aspects; first
, whether there were serious issues
raised by the applicant, second, whether
it had been established by evidence that
the applicant was directly affected by the
issue raised,in other words, whether it
was within the mandate of the applicant
and third, whether the applicant had a
genuine interest in the matter at hand.
In this regard, the court held that the
applicant had a genuine interest in
the development, strengthening and
protection of the rule of law and human
rights. It went on to obsere that there
was ample evidence that the Pre-Trial
chamber of the ICC had issued two
warrants on the 4th March 2009 with
five counts of Crimes against humanity
and two of war crimes on 12th July
2010 with three counts of orchestrating
atrocities in the Western Province of
Dafur in Sudan against President and
that a request for arrest and surrender
had been made to Kenya as a State party
to the Rome Statute pursuant to Article
91 as read together with Article 92 of
the said Statute.
Moreover, the court went on, that
subsequent to the issuance of the
second warrant of arrest, the Registrar
of the International Criminal Court
[ICC] sent a supplementary request on
21st July, 2010 for co-operation to all
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State Parties to the Rome Statute for
the arrest and surrender of President
Al Bashir should he set foot in Kenya
but that the Government of Kenya had
refused, neglected and/ or ignored to
comply with the ICC request even when
the said President was in Kenya on 27th
August, 2010O.
With the above, the court concluded
that the applicants had the necessary
High Court Cases
locus –standi to bring this application
and that the orders sought by the
applicant were justiciable and tenable
in law hence issued them accordingly
Message form The Hon. Mr. Justice
N.R.O. Ombija, Judge of the High Court:
"It has come to my attention that there
is in circulation on the internet and by
email a copy of a ruling in the case of
The Kenya Section of the International
Commission of Jurists v Attorney General
& 2 others – Misc Criminal Application
No. 685 of 2010 supposedly attributed
to me and which is not my decision or
the final official ruling of the court in this
case. I wish to clarify that the authentic
ruling in the case, which corresponds
with the one that has been delivered
and signed by me, is the one found on
the website of the National Council for
Law Reporting (www.kenyalaw.org)."
An unjust law is itself a species of
violence. Arrest for its breach is more
so.
Mohandas Gandhi
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Supreme Court Of The United Kingdom
PRESS SUMMARY
23 November 2011
Jude (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)
Hodgson (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)
Birnie (Respondent) v Her Majesty’s Advocate (Appellant) (Scotland)
[2011] UKSC 55
Appeals from the Appeal Court, High Court of Justiciary
JUSTICES: Lord Hope (Deputy President), Lord Brown, Lord Kerr, Lord Dyson, Lord Hamilton (Scotland)
BACKGROUND TO THE APPEALS
The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of
the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in
Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their
police interviews. In the course of their interviews, they each made statements which were later relied on by the
Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed,
and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The
Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during
their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention
on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no
power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his
admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at
common law.
The Crown’s objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to
the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the
Lord Advocate’s position before the Court was that the important point in these appeals was that raised in the
case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police
interview, having declined the opportunity to have access to a lawyer prior to and while making it. The
outstanding matters before the Court were therefore:
(i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies
to Jude’s appeal;
(ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement
following his police interview; and
(iii) Whether the reliance by the Crown upon the appellant’s admissions in these circumstances
deprived him of his right to a fair trial under Article 6(1) of the Convention.
JUDGMENT
The Supreme Court unanimously dismisses the Crown’s appeal on the question whether section 100(3B) of the
Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard
to the police interviews of Jude and Hodgson. By a majority of 4-1, it allows the appeal on the question
whether it was incompatible with Birnie’s right to a fair trial for the Crown to lead and rely on the evidence of
the statement which he made following his police interview and remits that matter for determination by the
High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment.
REASONS FOR THE JUDGMENT
(1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on
the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must
be brought before the end of the period of one year beginning with the date on which the act complained of
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
Published with the permission of the United Kingdom Supreme Court
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took place. The question is whether that section applies to proceedings brought by way of an appeal under the
1995 Act [6].
A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is
‘by virtue of’ the Scotland Act. The fact that the procedure under which the complaint is made is provided by
the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13].
The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human
Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention
rights ‘in any such proceedings’. The wording is not exactly the same in the two Acts, but the assumption is that
they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings
under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it
does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under
that section are proceedings that have been brought by someone other than the person who maintains that the
act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still
part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act
contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were
subject to two different time limits under two different Acts [18].
(2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked
whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26].
There is no absolute rule that the accused must have been given legal advice on the question whether or not he
should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator
Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule
requiring reasons for the accused’s decision to waive his right to legal assistance is to be found in the
jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an
inquiry amounted in itself to a breach of a Convention right.
It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the
common law in Scotland. The fact that the waiver was made without legal advice and without reasons being
requested may be taken into account in the assessment as to whether Birnie understood the right that was being
waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with
Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want
to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to
devise a more Convention-compliant system without itself imposing specific requirements on the State. The
Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29].
There is room for argument as to whether Birnie’s statement was truly voluntary and in any event whether,
taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for
the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a
matter for determination by the High Court of Justiciary [33].
For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that
the right to legal assistance has been waived [53]. On the available evidence, it has not been established that
there was an effective waiver by Birnie of his right to legal assistance [57].
References in square brackets are to paragraphs in the judgment
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
Published with the permission of the United Kingdom Supreme Court
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Kenya Law Reports
Bench Bulletin
YEAR IN REVIEW – 2011
By Michael M. Murungi - Advocate
FEBRUARY 2011
1. Designed and commissioned an Electronic Case Management
System (CMS) for the Eldoret Chief Magistrate’s Court, so far Kenya’s
most successful CMS deployment.
2. Justice J.E. Gicheru retires as Chief Justice, marking the end of his
tenure as the third Chairman of the Board of the National Council
for Law Reporting
2
MARCH 2011
1. Established partnership with African Braille Centre for universal
access to public legal information, especially for persons with visual
impairment.
1
APRIL 2011
1. In partnership with the Government Printer and Google Inc.,
launched the online archive of the Kenya Gazette at the Connected
Kenya Summit in Mombasa.
2. Partnered with the Judicial Service Commission in negotiating for
improved financial allocation to the Council by the Treasury.
3. Showcased at the LSK Annual Conference, Leisure Lodge, Mombasa.
3
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YEAR IN REVIEW – 2011
May 2011
1. Awarded the Technology in Government in Africa Award, 2010 in
Addis Ababa, Ethiopia.
3. Participated in the ICJ Uwazi Cup football tournament, in support
of the right to information.
5. Established a sales and marketing plan and designed and deployed
a customer care query management system.
June 2011
1. Participated at the Law via Internet Conference, Hong Kong
University, Hong Kong.
1
2. Dr. Willy Mutunga is sworn is as Chief Justice and President of
the Supreme Court of Kenya, marking the start of his tenure as
the fourth Chairman of the Board of the National Council for Law
Reporting. Nancy M. Braza is sworn in as Kenya’s first ever Deputy
Chief Justice and Vice President of the Supreme Court.
3. Participated in the LSK Annual Justice Cup, a football tournament,
in Nairobi.
2
4. Hosted Dr. W.M. Mutunga, the new Chief Justice and Chairman of
the Council’s Board, and The Hon. Justice Nancy Baraza, the new
Deputy Chief Justice, on their first tour of the Council.
5. Established a publishing partnership with the Nairobi Law Monthly.
6. Established a partnership with the American University’s School of
International Service for an international internship programme.
7. Open Gov. – presented the online archive of the Kenya Gazette and
the Hansard to H.E. President Mwai Kibaki at the Open Gov launch
at the KICC, Nairobi.
8. Partnered with Google Inc. in implementing the Google Sitemaps
Protocol for improved search engine discoverability of the Council’s
website.
7
9. Published six volumes of the Kenya Law Reports – 1992, 1993,
1994, 2006(2), 2008, 2009.
10. Published six volumes of selected chapters of the Laws of Kenya
– Public Finance and Administration Laws; Land Laws; Commercial
laws (two volumes); Family Laws and the Grey Book (procedural
laws).
9
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YEAR IN REVIEW – 2011
July 2011
1. Held a staff team building retreat at the Sarova Salt lick and Sarova
Taita Hills, in Taita
2. In partnership with the Clerk of the Kenya National Assembly
and Google Inc., launched the online archive of the Hansard
(Parliamentary Proceedings) 1960-2011.
1
August 2011
1. Held a farewell luncheon for Mr. Justice (Rtd.) J.E. Gicheru, the
immediate former Chief Justice and Chairman of the Council’s
Board.
2
2. Participated at the launch of the National Council on the
Administration of Justice.
4. Participated at the Annual Meeting of the Association of Reporters
of Judicial Decisions in Boston, USA.
6. Participated and showcased at the 2011 Annual Judges’ Colloquium
in Mombasa.
1
8. Supreme Court judges Philip Tunoi, Jackton Boma Ojwang',
Mohamed Ibrahim, Dr Smokin Wanjala and Njoki Ndung'u sworn
in.
10. Participated at the EAC Judicial Education Committee Seminar in
Nairobi.
September 2011
1. Sponsored and participated at the Annual Strathmore University
ICT Conference.
2. Implemented a new and improved automated payroll and HR
management system.
3. Showcased and participated at the LSK Annual Legal Awareness
Week at the Supreme Court compound, Nairobi
4. Hosted the Judiciary website and implemented an email system for
Judiciary Staff.
3
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Bench Bulletin
October 2011
YEAR IN REVIEW – 2011
1. Bereaved of Mr. Justin Muthee, Sales and Marketing Officer;
Judiciary bereaved of Mr. Justice Moijo Ole Keiwua, Judge of Appeal
2. Designed a web page for the office of Legal Counsel in the office
of the Clerk of the Kenya National Assembly.
3. Showcased at the Africa Parliamentary Legal Counsel Conference
in Nairobi.
4. Participated in the launch of the Judiciary Transformation
Programme.
1
5. Council’s Board resolves to establish a new organization structure,
a pension scheme and a medical scheme for Council staff.
6. Participated in the induction of newly appointed Judges of the
High Court .
7. Established a partnership with the Kenya Community Development
Founation for the benefit of socio-economically disadvantaged
girls of school-age.
3
8. Published the first series of the Kenya Law Reports (Elections
Petitions) in three volumes.
9. Entered into a partnership with Bookshare.
Bookshare is 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.
As a publisher, the National Council for Law Reporting is
Bookshare’s partner in a global initiative to make accessible
content available for persons with print disabilities.
The Council contributes to this initiative by submitting its
copyrighted publications in digital files to Bookshare with an open
licence to provide access to the publications to persons with print
disabilities.
November 2011
1. Participated in an induction course for newly appointed District
Magistrates at the Judiciary Training Institute, Nairobi.
Beneficient Technology Inc./Bookshare
www.bookshare.org
9
2. Entered into a publishing partnership with The Star national daily
newspaper. 2
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Notes
YEAR IN REVIEW – 2011
December 2011
1. Bereaved of Wilson K. Riungu, Office Assistant, National Council for
Law Reporting
2. Launched Wakilishare, Kenya’s first and leading online community
forum and blog for the legal fraternity.
3. Participated at the Impact Sourcing Conference 2011 in
Johannesburg, South Africa.
1
4. Due to hold the end of year staff retreat, during which the NCLR
Team Leader of the Year 2011 and NCLR Team Player of the Year
2011 will be announced and celebrated.
2
The clearest way to show what the
rule of law means to us in everyday
life is to recall what has happened
when there is no rule of law.
Dwight D. Eisenhower
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