Issue 45

April - June 2019

High Court rules that Section 162 (a) (c) of the Penal Code on
unnatural offences and section 165 of the Penal Code on indecent
practices between males were constitutionally compliant and in
conformity with the principles of legality

Land acquired through compulsory acquisition does not revert back to its original owners if unutilized Pg 15

The Chief Justice Practice Directions cannot take away the High Court’s unlimited original jurisdiction
in criminal and civil matters. Pg 45
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 CONTENTS

Advocates working in Public Service are

The threshold for determining unexplained entitled to a non-practising allowance or
assets in corruption cases Pg 27 prosecutorial allowance Pg 47

EDITORIAL TEAM 1. Editors Note 1

Editor /CEO 2. CJ’s Message 2
| Long’et Terer | 3. What they Said 5
Senior Assistant Editor/DCEO 4. Feature Case 7
| Janet Munywoki |
5. Cases 15
Editorial Assistant
| Linda Awuor | 6. Restating the Law 51
Contributors 7. Caseback 52
| Njeri Githan’ga | Andrew Halonyere |Wambui Kamau | 8. Legislative Updates 53
| Nelson Tunoi | Emma Kinya | Teddy Musiga |
| Beryl Ikamari | Christian Ateka| Robai Nasike |
| John Ribia | Eunice Chelimo | Faith Wanjiku |
9. Legal Supplements 55
| Kevin Kakai | Christine Thiong’o |
| Patricia Nasumba |Musa Okumu| Lisper Njeru | 10. International Jurisprudence 61
Design and Layout 11. Law Reform Compilation 74
|Catherine Moni | Josephine Mutie | Cicilian Mburunga |
12. Pictorial 82
| Robert Basweti |

Proofreaders
| Phoebe Juma | Innocent Ngulu | Thomas Muchoki |
Humphrey Khamala |

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.
 Members of the Council
for Kenya Law

The Hon. Mr Justice David K. Maraga, EGH

Chief Justice and President, Supreme Court of Kenya
Chairman
The Hon Lady Justice Fatuma Sichale Mr Mwenda Njoka
Judge of the Court of Appeal of Kenya Government Printer (Ag), Government Press
(Represented by Ms Eva Kimeiywo, Principal
The Hon Justice Anthony Ndung’u Printer)
Judge of the High Court of Kenya
Ms Janet Kimeu
The Hon. Justice (Rtd) Paul Kihara Kariuki
Advocate, Law Society of Kenya
Attorney General
Alt - Ms Linda Murila, Chief State Counsel
Mr Michael Muchemi
Prof Kiarie Mwaura Advocate, Law Society of Kenya
Dean, School of Law, University of Nairobi
Mr Long’et Terer
Ms Jennifer Gitiri
Editor/CEO
Advocate & Public Officer,
Office of the Attorney General & DoJ

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

Ms Anne Amadi Mr Michael Sialai, EBS

Chief Registrar, The Judiciary Clerk of the Kenya National Assembly
Represented by Samuel Njoroge, Dep. Director,
Legislative and Procedural Services
Amb Ukur Yatani Kanacho
Cabinet Secretary (Ag), National Treasury Ms Caroline Kigen
(Represented by Mr Jona Wala, Financial Expert, The Judiciary
Director, Accounting Services)

vi
 BB Issue 45, April - June 2019

Editor’s Note
Long’et Terer
CEO/Editor

2
019 has been a great year so far at Kenya Law. This year, Kenya Law
scooped the “Public Sector Legal Department of the Year Award” at the
2019 Nairobi Legal Awards by the LSK, Nairobi Branch. The awards
sought to recognize excellence in legal practice and were meant to
promote bench-marking of best practice standards in the Kenyan legal
profession. Kenya Law was recognized for outstanding standards of practice
and legal service delivery in an effort towards encouraging excellence in
practice. This was no mean feat as Kenya Law beat other legal departments
in the public sector to become the first ever recipient of the award. We do
not take it for granted and as we seek to scale the heights of provision of
information, we promise you a diverse range of products and services that
will keep you legally informed.

As is the norm, this edition of the Bulletin delivers legal information on a

wide range of topics. One issue that has been gaining traction globally is the
criminalization of same-sex relations. In this edition, we highlight two cases
on criminalization of same-sex relations at different points of the spectrum
from Kenya and Botswana. The feature case in this issue is a decision where
the High Court of Kenya ruled that section 162 (a) (c) of the Penal Code on
unnatural offences and section 165 on indecent practices between males were
constitutionally compliant and in conformity with the principles of legality.
Further afield, within a span of a month, Botswana’s High Court while dealing
with a similar issue held that sections 164(a), (c) and 165 of the Botswana
Penal Code criminalizing homosexual acts between two adults in private were
unconstitutional as they violated the right to liberty, privacy, dignity and non-
discrimination; the reasoning of the judges in both decisions is captured in the
Bulletin for your information.

As always, Kenya Law stays true to its commitment to engage with its readers
and deliver a bulletin that continuously updates you on recent judicial and
legislative developments. Enjoy the read!

Long’et Terer
Long’et Terer

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 BB Issue 45, April - June 2019

CJ’s Message
The Hon. Mr. Justice David K. Maraga, EGH
Chief Justice and President, Supreme Court of Kenya

Speech By Hon. David K. Maraga, Chief Justice and President of The

Supreme Court of Kenya During The Official Launch of the Third Cycle
Performance Management and Measurement Understandings Evaluation
Report On 17th May, 2019
I am delighted to welcome you all for the launch of the 3rd cycle Judiciary Performance
Management and Measurement Evaluation Report. This is an important occasion when we
in the Judiciary showcase our achievements at an institutional and individual level as we
strive to improve the delivery of services to the people of Kenya. Performance Management
was introduced in the Judiciary in 2015 with the aim of enhancing access to Justice;
improving Court User satisfaction; increasing public confidence in the Judiciary and, equally
important, increasing employee productivity and satisfaction. This is in line with my blue
print, “Sustaining Judiciary Transformation: A service Delivery Agenda” which shifted focus
away from institutional building and capacity enhancement to upscaling service delivery.
We have come a long way in the institutionalization of performance management in the
Judiciary and through the system, individual courts and administrative units now set clear
targets and commitments each financial year which are implemented and evaluated at the
end of each year.
This therefore is more than just a ceremony to receive a report; it is an opportunity to
evaluate and account to the Kenyan people about how we have fared in the execution of our
core mandate, using a number of variables that are key to the delivery of justice. For example,
one of the agreed targets to be achieved in Performance Understanding is Trial and Delivery
Date Certainty. According to the Report on Institutionalizing Performance Management in
the Judiciary, this indicator measures “… the certainty with which mentions, hearings and
delivery of judgments are held and scheduled”.
For there to be enhanced public confidence in judicial services, certainty that matters will
proceed on the date fixed for hearing is an absolute imperative. Equally important is the
date of delivery of judgments. Once a case is heard, a judgment must be delivered. Without
a judgment, the case remains unresolved, and continues to be a cause of the backlog. It also
becomes what is now commonly referred to as a “delayed judgment”, a phenomenon that as a
Judiciary we cannot condone.
Although there was a slight improvement in Trial and Delivery Date Certainty in the financial
year 2017/2018, I urge all judges, magistrates and judicial officers to strive for a higher score
as this remains a key concern for litigants and others who have to wait for an inordinately
long time for conclusion of their matters. We are all familiar with the old adage, Justice
delayed is Justice Denied.
The Sustaining Judiciary Transformation (SJT) blue print identified elimination of case
backlog as one of the key targets for the Judiciary. In January 2017, I gave a commitment that
the Judiciary would clear all cases that were five years and above by end of December 2018.
At that time, there were 170,186 cases which were more than five years old. By end of March
this year, a total of 154,184 cases, or 91 per cent of the back log, had already been resolved,

2
 BB Issue 45, April - June 2019

along with the hearing of other cases. Within the same time, some 45,000 cases transited
into the 5-year band, meaning that about 1,667 cases were transiting into 5 years backlog
every month. It took a lot of effort to achieve this - prioritizing cases over 5 years old in
cause listing, conducting service weeks; adhering to pre-trial rules and use of other dispute
resolution mechanisms. I thank you profoundly for a job well done.
Over the same period the results show that on average, the productivity of High Court judges
increased from 311 cases per judge to 446 cases, while in magistrates’ courts, productivity
increased from 646 cases to 745 cases per magistrate. Across the courts, resolved cases
increased from 304,166 in 2016/2017 to 370,449 cases in 2017/2018. This is an indication
that the performance of the Judiciary in the dispensation of justice is improving consistently
and soon we shall be seeing a situation where cases are resolved in real time.
These results provide a basis that can help us reflect on where we are, what challenges we
are facing, and what areas to improve or focus on. The main questions to ask at this point
are: is this the best we could do; the best service we could offer? How do our customers rate
us? Could we have done better? And what is holding us back? What resources do we need
and how will they be deployed effectively in order to drive our justice delivery indicators to
world-class levels?
In as far as infrastructure is concerned, we are continuing with our aggressive court
construction programme as a way of enhancing access to justice. We are constructing new
courts, renovating old ones and installing important facilities such as boreholes while also
upgrading the furniture as necessary. In this respect, there are more than 70 courts currently
under construction in various parts of the country, and we continue to launch new ones as
we have recently done in Ruiru and Msambweni. The construction and establishment of
these courts will ensure that justice is taken as close to the people as possible.
We, however, very well understand that the buildings on their own, no matter how magnificent
they might be, will not translate into effective delivery of services unless we put in place
mechanisms that make us more efficient, more people focused and more dedicated to the
ideals that our Judiciary stands for.
I am happy to note that our efforts to entrench performance management have been widely
recognized by other judiciaries and public institutions in many places. In November last year,
we received a delegation of a neighbouring country headed by the Deputy Chief Justice who
visited us to learn about our performance management system with the aim of introducing
a similar system in their country. This is a positive gesture and I am optimistic that if we
sustain this momentum we will soon be a point of reference globally.
Despite these achievements, we must continue improving in all aspects of our work. Through
the feedback we regularly receive from our stakeholders, we want to continually build and
sustain a robust performance management architecture, which provides a standardized
platform for assessing the performance of all courts and administrative units.
The Judiciary is facing various challenges despite the high performance being witnessed today
as highlighted in this report. Some of these challenges include inadequate infrastructure,
shortage of judges, magistrates and judicial staff, inadequate resources and inadequate
equipment and vehicles. We will continue to find solutions to these challenges.
Indeed, we are in the process of recruiting more judges, magistrates, other judicial officers
and staff in areas of critical shortfalls. To enhance productivity, there will be continuous
improvements in the working environment, tools and equipment in the courts. We still
emphasize the urgency in upgrading our uptake and deployment of ICT solutions in case
management to speed up case processing.
As I have already stated, today’s event is not merely about the launch of the 2017/18
performance evaluation report and recognition of best performing courts. It provides us

3
 BB Issue 45, April - June 2019

with the opportunity to re-affirm our commitment towards ensuring high performance
among all courts and administrative units. We need to demonstrate results daily so as to
reach high performance levels whereby any one can tell what a well performing court looks
like in practice even without going through the various metrics. In the wise words of William
Faulkner “…do not bother to be better than your contemporaries or predecessors. Try to be
better than yourself”.
With that, I appreciate the crucial role the judges, magistrates, other judicial officers and
staff are playing in the delivery of justice, sometimes under immense pressure and extremely
difficult circumstances. They are not always appreciated for the excellent work that they do.
But they must continue to selflessly serve our people and to deliver justice to all without
fear or favour. At this point I would like to thank all the stakeholders - the courts and the
administrative - units for their role in making this event a success. We must continue working
together to improve the services we offer to the public.
Allow me also to appreciate the Performance Management and Measurement Steering
Committee for successfully steering the process of institutionalization of performance
management in the judicially with the technical support of the Directorate of Planning and
Organizational Performance.
With those few remarks, I hereby officially launch the Third Cycle Performance Evaluation
Report, 2017/2018. Thank you.

Hon. David K. Maraga, EGH,

Chief Justice and President of the Supreme Court of Kenya

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 BB Issue 45, April - June 2019

What they said

Supreme Court Judges - D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Njoki & I Lenaola, SCJJ in Town Council
of Awendo v Nelson O Onyango and 192 others - Petition 37 of 2014

“
Un-utilized portions of compulsorily acquired land may be used for a different public
purpose, or in furtherance of a different public interest, including the allocation of
such portions to private individuals or entities, at the market price, in furtherance of
such public interest.”

Court of Appeal Judges – P N Waki, S G Kairu & J Otieno-Odek JJA in Stanley Mombo Amuti v Kenya Anti-Corruption
Commission - Civil Appeal 184 of 2018

“
Sections 26 and 55 (2) of the Anti-Corruption and Economic Crimes Act do not violate
the right to property as enshrined in Article 40 of the Constitution. In any event,
constitutional protection of property does not extend to property that has unlawfully
been acquired.”

Court of Appeal Judges – P N Waki, M K Koome, R N Nambuye, D K Musinga & M S Asike Makhandia, JJA in Non-
Governmental Organizations Co-Ordination Board v EG & 5 others - Civil Appeal 145 of 2015

Per P N Waki, JA Per M K Koome JA, (concurring with the Majority)

“
Like everyone else, LBGTIQ persons are subject to the law and will be subjected to
its sanctions if they contravene it. Convicting such persons before they contravene
the law would, in my humble view, be retrogressive. As it is, according to their stated
objectives, they intended to register the NGO to, among other things, conduct accurate
fact finding, urgent action, research and documentation, impartial reporting, effective
use of the media, strategic litigation and targeted advocacy in partnership with local human
rights groups on human rights issues relevant to the gay and lesbian communities living in
Kenya. On the face of it, there is nothing unlawful or criminal about such objectives.”

High Court Judge – M Thande, J in Shakeel Ahmed Khan & another v Republic & 4 others - Miscellaneous Criminal
Application 56 of 2019

“
The Chief Justice as head of the Judiciary has power under Section 16 of the High
Court (Organization and Administration) Act to establish sub-registries of the ACEC
Division and indeed full ACEC divisions outside Nairobi. The failure to do so has in
my view the net effect of stripping the High Court in stations outside Nairobi of the
jurisdiction conferred upon it by the Constitution.”

5
Per A Makhandia JA, (concurring with the majority decision )

“
Article 36 of the constitution extends to every person’s right to form an association
of any kind. This right can only be limited in terms of law to the extent that the
limitation is reasonable and justifiable in an open and democratic society as provided
for in Article 24(1) of the Constitution. Subject to the limitations, a person’s rights
under Article 36 extends to all human beings without discrimination, whatever their
ethnicity, religion, sex, place of origin or any other status such as age, disability, health
status, sexual orientation or gender identity. I agree with the High Court’s finding that
Article 36 extends to all individuals and juristic persons and that sexual orientation does not
in any way bar an individual from exercising his right under Article 36 of the constitution.”

Per M K Koome JA, (concurring with the Majority)

“
The issue of persons in the society who answer to the description lesbian, bisexual,
gay, transsexual, intersex and queer (LBGTIQ) is rarely discussed in public. The
reasons for such coyness vary. But it cannot be doubted that it is an emotive issue.
The extensive and passionate submissions made in this matter before the High Court,
and before us, is testimony to the deep rooted emotions that the issue can easily arouse.
It is possible for the country to close its eyes and hearts and pretend that it has no significant
share of the people described as LGBTIQ. But that would be living in denial. We are no
longer a closed society, but fast moving towards the ‘open and democratic society based on
human dignity, equality, equity, and freedom’ which the Constitution envisages. We must
therefore, as a nation, look at ourselves in the mirror. It will then become apparent that
the time has come for the peoples’ representatives in Parliament, the Executive, County
Assemblies, Religious Organizations, the media, and the general populace, to engage in
honest and open discussions over these human beings. In the meantime, I will not “.. be the
first to throw a stone at her [LGBTIQ]”.

High Court Judge – B Ongaya, J in Erastus K Gitonga & 4 others v National Environmental Management Authority
& another - Cause 547 of 2018

“
The Court considers that the circular of 09.10.2012 appears to apply to all lawyers
in the public service and for so long as the claimants established that they were in
public service with similar professional legal duties, it is the Court’s opinion that they
would be entitled to the allowance even without their being gazetted as prosecutors.
The Court has carefully revisited the circular and the wide ranging categories of the
officers it applies to and returns that use of “prosecutorial allowance” was meant to simply
designate the allowance and not to have it paid exclusively to those involved in criminal
prosecutions.”
 BB Issue 45, April - June 2019

Feature Case
Section 162 (a) (c) of the Penal Code on unnatural offences and section
165 of the Penal Code on indecent practices between males was
constitutionally compliant and in conformity with the principles of
legality
EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute &
another (Amicus Curiae)
Petition 150 & 234 of 2016
High Court at Nairobi
R Aburili, E C Mwita & J M Mativo, JJ
May 24, 2019
Reported by Long’et Terer
The consolidated petitions challenged the following rights of the petitioners:
constitutionality of sections 162(a) (c) and a. right to equality and freedom
165 of the Penal Code. Additionally, petition from discrimination under article
150 of 2016 attacked the said provisions 27
on grounds of vagueness and uncertainty. b. right to the highest attainable
Petition 234 of 2016 sought a declaration that standards of health under article
sexual and gender minorities were entitled to 43 of the Constitution.
the right to the highest attainable standards c. right to a fair trial under article
including the right to health care services as 50 of the Constitution.
guaranteed in article 43 of the Constitution. d. right to freedom and security of
the person protected under article
The petitioners also sought an order
29 of the Constitution
directing the State to develop policies and
e. right to freedom of conscience,
adopt practices prohibiting discrimination
religion, belief and opinion under
on grounds of sexual orientation and gender article 32 of the Constitution.
identity or expression in the health sector. f. right to human dignity and
In determining the matter, the court dealt privacy protected by articles 28
with, inter alia, the following issues: and 31 of the Constitution.
i. Whether failure by section 162 (a) In its ruling, the court reiterated that the
(c) of the penal to define the phrases, guiding principles in interpretation of the
“unnatural offences,” and “against Constitution and the social and historical
the order of nature” rendered the background of legislation ought to be
section vague, ambiguous, and thus considered during interpretation. It stated
unconstitutional. that the Constitution gave prominence to
ii. Whether the phrases “indecency national values and principles of governance
with another male person” and “any which included human dignity, equity,
act of gross indecency with another social justice, inclusiveness, equality,
male person” in section 165 of the human rights and rule of law, leadership
Penal Code was unclear, vague, and integrity, values and principles of
and ambiguous hence rendered the public service, entrenchment of exercise of
section unconstitutional. judicial authority in the Constitution and
iii. Whether differential treatment would
independence of the Judiciary and conferred
amount to unfair discrimination.
sovereignty to the people of Kenya to be
iv. Whether sections 162(a) and(c)
exercised on their behalf by State organs to
and 165 of the Penal Code were
unconstitutional for infringing the perform their functions in accordance with

7
 BB Issue 45, April - June 2019

the Constitution. meant that the Constitution had to be

interpreted in context. The court held
Article 259(1), the Court noted, obligated that this would be the contextual analysis
courts to promote the spirit, purposes, values of a constitutional provision, reading it
and principles of the Constitution, advance alongside and against other provisions, so as
the rule of law, and the human rights and to maintain a rational explication of what the
fundamental freedoms in the Bill of Rights, Constitution must be taken to mean in light
permit the development of the law and of its history, of the issues in dispute, and of
contribute to good governance. The court the prevailing circumstances. Such scheme
had a duty to adopt an interpretation that of interpretation, the court explained, did
conformed to article 259. Constitutional not mean an unbridled extrapolation of
provisions had to be construed purposively discrete constitutional provisions into each
and in a contextual manner. Accordingly, other, so as to arrive at a desired result. It
courts were constrained by the language was an elementary rule of constitutional
used. Courts might not impose a meaning construction that no one provision of the
that the text was not reasonably capable of Constitution was to be segregated from the
bearing. In other words, the interpretation others and to be considered alone, but that
should not be unduly strained but should all the provisions bearing upon a particular
avoid excessive peering at the language to subject were to be brought into view and be
be interpreted without sufficient attention interpreted so as to effectuate the greater
to the historical contextual scene, which purpose of the instrument.
included the political and constitutional
history leading up to the enactment of a According to the court, it was the duty of a
particular provision. court of law to try to determine how a statute
should be enforced. The court noted that
Further, it was noted that the enforcement there were numerous rules of interpreting
of penal statutes had an impact on a statute, but, and without demeaning the
constitutionally guaranteed rights. The others, the most important rule was the
litmus test was whether such limitation plain meaning rule. The starting point of
would pass constitutional muster. Penal interpreting a statute was the language itself.
statutes had to be understood purposively In the absence of an expressed legislative
because the Penal Code had to be umbilically intention to the contrary, the language had
linked to the Constitution. The court had to be ordinarily taken as conclusive. It was
to seek to promote the spirit, purpose and not the duty of the court either to enlarge
objects of the Constitution. It had to prefer the scope of the legislation or the intention
a generous construction over a merely of the legislature when the language of the
textual or legalistic one in order to afford provision was plain and unambiguous. In
the fullest possible constitutional meanings view of this, the Court noted that a court
and guarantees. In searching for the purpose, could not rewrite, recast or reframe the
it was legitimate for the court to seek to legislation for the very good reason that it
identify the mischief sought to be remedied. had no power to legislate. The court might
In part, that was why it was helpful, where not add words into a statute. Courts decided
appropriate, to pay due attention to the social what the law was and not what it should be.
and historical background of the legislation. The court of course adopted a construction
The court had to understand the provision which would carry out the obvious intention
within the context of the grid, if any, of of the legislature.
related provisions and of the Constitution
as a whole, including its underlying values. In interpreting the provisions of a statute,
Although the text was often the starting point the court provided that courts should apply
of any statutory construction, the meaning it the golden rule of construction. The plain
bore had to pay due regard to context. That meaning of the language in a statute was
was so even when the ordinary meaning of the safest guide to follow in construing the
the provision to be construed was clear and statute. According to the golden or general
unambiguous. rule of construction the words of a statute
had to be given their ordinary, literal and
A holistic interpretation of the Constitution grammatical meaning and if by so doing it

8
 BB Issue 45, April - June 2019

was ascertained that the words were clear arbitrary prosecutions. The doctrine of void
and unambiguous, then effect should be for vagueness established specific criteria
given to their ordinary meaning unless it that all laws or any legislation had to meet,
was apparent that such a literal construction to qualify as constitutional; the Law had to
fell within one of those exceptional cases in state explicitly what it mandated, and what
which it would be permissible for a court of was enforceable and provide definitions of
law to depart from such a literal construction; potentially vague terms. Vagueness was the
such as where it led to a manifest absurdity, imprecise or unclear use of language, which
inconsistency, hardship or a result contrary contrasted with clarity and specificity.
to the legislative intent.
According to the Court, the impugned phrases
The Court further held that courts generally were clearly defined in law dictionaries and in
assumed that the words of a statute meant a catena of judicial pronouncements; lack of
what an ordinary or reasonable person would definitions in the statute per se did not render
understand them to mean. If the words of a the impugned provisions vague, ambiguous
statute were clear and unambiguous, the or uncertain. The impugned provisions could
court need not inquire any further into not be declared unconstitutional on grounds
the meaning of the statute. Parliament of vagueness, uncertainty, ambiguity and
intended its legislation to be interpreted in a over broadness because:
meaningful and purposive way giving effect i the phrases used in the sections under
to the basic objectives of the legislation. challenge were clear as defined above;
The court, as an independent arbiter of ii the provisions disclose offences
disputes, had fidelity to the Constitution and known in law;
had to be guided by the letter and spirit of iii a person accused under the impugned
the Constitution. Similarly, in interpreting provisions would be informed of the
a statute, the court should give life to the nature, particulars and facts of the
intention of the lawmaker instead of stifling offence;
it. iv there was a real danger that in reading
down an overbroad statute, the High
The phrase “against the order of nature”, Court would simply substitute the
the court explained, had been judicially vice broadness with the equally fatal
defined as sexual intercourse. There had to infirmity of vagueness.
be penetration, however slight, and emission
The Court noted that indisputably,
of semen was not necessary. With particular
there existed a presumption as regards
reference to the offence of sodomy,
constitutionality of a statute. The rule of
penetration per se had to be proved. The
presumption in favour of constitutionality,
other party involved in the intercourse might
however, only shifted the burden of proof
be a man or a woman. It was the penetration
and rested it on the shoulders of the person
through the anus that made the intercourse
who attacked it. It was for that person to
“against the order of nature” and therefore
demonstrate that there had been a clear
provided the other element of the offence.
transgression of constitutional principles.
While dealing with the issue of vagueness, However, that rule was subject to the
the Court held that a statute was void for limitation that it was operative only until the
vagueness and unenforceable if it was too time it became clear and beyond reasonable
vague for the average citizen to understand. doubt that the legislature had crossed its
There were several reasons a statute might bounds. The guiding principles in a case
be considered vague. In general, a statute of such nature were that the court had to
might be called void for vagueness when establish;
an average citizen could not generally i whether the law differentiated
determine what persons were regulated, between different persons;
what conduct was prohibited, or what ii whether the differentiation amounted
punishment might be imposed. A statute to discrimination; and,
was also void for vagueness if a legislature’s iii whether the discrimination was
delegation of authority to administrators unfair.
was so extensive that it would lead to Discrimination meant treating differently,

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 BB Issue 45, April - June 2019

without any objective and reasonable A natural and literal construction of those
justification, persons in similar situations. words left no doubt that the section did
When determining whether a claim based not target any particular group of persons.
on unfair discrimination should succeed, the Similarly, section 165 used the words “any
stages of inquiry were; male person.” A plain reading of the section
i Whether the provision differentiated revealed that it targeted male persons and
between people or categories of people. not a particular group with a particular
If so, whether the differentiation bore sexual orientation. The wording of that
a rational connection to a legitimate section left no doubt that in enacting that
purpose. If it did not, then there was provision, Parliament appreciated that the
a violation of the constitution. Even offence under the said section could only be
if it did bear a rational connection, committed by a male person. In fact, the short
it might nevertheless amount to title to the section read “indecent practices
discrimination. between males.” The operative words therein
ii Whether the differentiation
were “any male person” which clearly did not
amounted to unfair discrimination;
target male persons of a particular sexual
iii If it was on a specified ground, then
orientation.
discrimination had been established.
If it was not on a specified ground, The Court held that a party pleading
then whether or not there was violation of constitutional rights was at the
discrimination would depend upon very least expected to give credible evidence
whether, objectively, the ground was of the said violation and it was not enough
based on attributes and characteristics
to merely plead and particularize a violation.
which had the potential to impair
Even where a party cited articles of the
the fundamental human dignity of
Constitution alleging that they had been
persons as human beings or to affect
them adversely in a comparably violated, he or she was duty bound to adduce
serious manner. convincing evidence to prove the alleged
iv If it was found to have been on a violations. In the instant case, save for the
specified ground, then the unfairness allegations made in the petition and the
would be presumed. If on an affidavits, no tangible evidence was given to
unspecified ground, unfairness support the allegations. No iota of evidence
would have had to be established was tendered to establish any of the cited
by the complainant. The test of acts of discrimination. There was no basis
unfairness focused primarily on the at all upon which the court could uphold
impact of the discrimination on the any of the alleged violations. In the end, the
complainant and others in his or her petitioners had failed to establish that the
situation. If, at the end of that stage of impugned provisions were discriminatory.
the enquiry, the differentiation was
found not to be unfair, then there In the court’s view, constitutional analysis
would be no violation. under the Bill of Rights took place in two
v If the discrimination was found to be stages. First, the applicant was required to
unfair then a determination would demonstrate his or her ability to exercise a
have to be made as to whether the fundamental right had been infringed. If the
provision could be justified under the court found that the law, measure, conduct
limitations clause. or omission in question infringed the
vi Mere discrimination, in the sense of exercise of the fundamental right, or a right
unequal treatment or protection by guaranteed in the Bill of Rights, the analysis
the law in the absence of a legitimate might move to the second stage. In the
reason was a most reprehensible second phase, the party seeking to uphold
phenomenon. But where there was a the restriction or conduct would be required
legitimate reason, then, the conduct to demonstrate the infringement or conduct
or the law complained of could not was justifiable in a modern democratic state
amount to discrimination. and satisfied the article 24 test. Cases were
The Court noted that the language of section decided on the legal burden of proof being
162 was clear. It used the words “any person.” discharged (or not). The legal burden of
proof was consciously or unconsciously the
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 BB Issue 45, April - June 2019

acid test applied when coming to a decision or persons on whose behalf the instant
in any particular case. The court’s decision petition was brought, had demonstrated that
in every case would depend on whether the they had been charged under the impugned
party concerned had satisfied the particular provisions before any court or had a pending
burden and standard of proof imposed on complaint against them before a police
them. station to warrant the invocation of article
50(2). Accordingly, the petitioners’ argument
Based on this, the Court found that no that their right to a fair trial had been denied,
evidence was placed before it to support violated, infringed or was threatened failed.
the allegations that the petitioners’ right to
health as stipulated in article 43(1) had been The Court held that article 29 combined
violated. None of the petitioners tendered the right to freedom and security of the
evidence to prove that they had been denied person with the right to be free from bodily
medical attention in any health facility in the and psychological harm. It was essentially
country, or were subjected to mistreatment intended to protect the physical integrity and
in the course of seeking medical attention. dignity of an individual. The right not to be
They merely made generalized statements subjected to torture in any manner or not to
without proof. Based on the analysis of the be treated or punished in a cruel or degrading
material placed before court, and the instant manner were components of the right to
matter being a constitutional petition, the freedom and security of the person. Those
impugned provisions did not infringe on the components were inviolable under article
petitioners’ right to the highest attainable 25(a) of the Constitution, and therefore, no
standards of health. Evidence obtained in law could stand if it sought to limit such
a manner that violated any right in the Bill right or freedom. Weighing the petitioners’
of Rights had to be excluded if its admission alleged infringements, violations and threat
would render the trial unfair or otherwise vis-à-vis article 29, the impugned provisions
detrimental to the administration of justice. did not apply exclusively to the petitioners.
None of the petitioners tendered evidence The petitioners in petition 234 of 2016 cited
to suggest that evidence had been illegally violation of article 32 which guaranteed the
procured from them and used against them right to freedom of conscience, religion,
in violation of their rights guaranteed in thought, belief and opinion. However, no
the Constitution. In any event, such a claim evidence was led or submission made in
would constitute a distinct cause of action. support of that allegation.
On the issue of the right to a fair trial, it was The Court noted that article 28 provided
held to be absolute, and under article 50 (2), for the right to inherent dignity and the
no one should be charged with an offence, right to have that dignity respected and
which was not an offence at the time of protected. The article did not define the
its commission. However, the offences in word “dignity.” The importance of dignity
question were provided for in the law. In as a founding value of the constitution
addition, no evidence was adduced to show could not be overemphasized. Recognizing
that any of the petitioners was charged with a right to dignity was an acknowledgment
an offence that was not in existence at the time of the intrinsic worth of human beings:
they were charged. Article 50 (2) guaranteed human beings were entitled to be treated
every accused person the right to fair trial, as worthy of respect and concern. The
a right that was non-derogable. However, right was therefore the foundation of many
in any criminal justice system, there was of the other rights that were specifically
a tension between public interest to bring entrenched in Chapter 4. Human dignity
criminals to justice on the one hand, and, the informed constitutional adjudication and
equally greater public interest in ensuring interpretation at a range of levels. It was
that justice was manifestly done to all. What a value that informed the interpretation
the Constitution demanded was that an of many, possibly all, other rights. Human
accused be given a fair trial. In that regard, dignity was also a constitutional value that
article 50(2) applied to accused persons was of central significance in the limitations
facing trial. None of the petitioners or the analysis. Dignity was not only a value
interested parties supporting the petition, fundamental to the Constitution; it was a

11
 BB Issue 45, April - June 2019

justiciable and enforceable right that had to because it showed how courts in other
be respected and protected. In many cases, jurisdictions have dealt with the issues
however where the value of human dignity before the court. However, the court opined
was offended, the primary constitutional that when developing local jurisprudence in
breach occasioned might be of a more matters that involved constitutional rights,
specific right such as the right to bodily the court should exercise caution in referring
integrity, the right to equality or the right not to foreign jurisprudence and develop its
to be subjected to slavery, servitude or forced common law in a manner that promotes
labour. So important was the right not to be the values and principles enshrined in the
subjected to cruel, inhuman or degrading Constitution. The court was of the view that
treatment or punishment that under article whereas citation and reliance on persuasive
25 of the Constitution, it was one of the non- foreign jurisprudence was valuable, foreign
derogable rights. experiences and aspirations of other countries
Article 31 on its part, the court explained, should rarely be invoked in interpreting the
guaranteed the right to privacy of the Kenya Constitution. The progressive needs
person, home or property not to be searched. of the Kenyan Constitution were different
It had been settled, insofar as privacy from those of other countries.
was concerned, that that right became In the instant matter the question was
more powerful and deserving of greater whether criminalization of sodomy between
protection, the more the intrusion it was into adults in private infringed the right to privacy
one’s intimate life. There was a connection and dignity. The court provided that section
between an individual’s right to privacy and 162 and 165 of the Penal Code prohibited
the right to dignity. Privacy fostered human unnatural offences in the form of carnal
dignity insofar as it protected an individual’s knowledge against the order of nature and
entitlement to a sphere of private intimacy indecent practices between males, whether
and autonomy. The right to equality and in public or in private. The petitioners’
dignity were closely related, as were the case was hinged on the interpretation of
rights of dignity and privacy. In that regard, articles 28 and 31 of the Constitution. The
the Constitution placed human dignity and court provided that Article 259(1) required
equality as the central theme to Kenya’s the courts to interpret the Constitution
constitutional order. The determination in a manner that promoted its purposes,
of whether an invasion of the common law values and principles; advances the rule of
right to privacy had taken place was a single law and the human rights and fundamental
enquiry. It essentially involved an assessment freedoms in the Bill of Rights; permitted the
as to whether the invasion was unlawful. development of the law; and contributed to
According to the Court, when it was good governance. The rights under articles
confronted with a claim of violation of a 28 and 31 were not absolute. Article 24(1) of
fundamental right, and a contention was the Constitution permitted limitation by law;
made that there was no violation or that the limitation should however be reasonable
the right was limited, it was important to and justifiable in an open and democratic
determine whether indeed there was an society. It was undeniable that the limitation
infringement, or a limitation, which was was by law. The question was whether the
justifiable under article 24. That was because limitation was reasonable and justifiable.
under article 165(3)(b)(d) as read with article The Court noted that the values and
23, the mandate of the court was to determine principles articulated in the preamble to the
the question whether a right or fundamental Constitution, article 10, 159 and 259 reflected
freedom in the Bill of Rights had been the historical, economic, social, cultural and
denied, violated, infringed or threatened, or, political realities and aspirations that were
whether any law was inconsistent with or in critical in building a robust, patriotic and
contravention of the Constitution. indigenous jurisprudence for Kenya. The
On the issue of foreign jurisprudence Constitution was the point of reference in
placed before the court, it was noted that any determination. The preamble to the
such jurisprudence was of persuasive value Constitution acknowledged ethnic, cultural
and religious diversity, the nurturing and
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 BB Issue 45, April - June 2019

protecting the wellbeing of the individual, attention to the historical contextual

the family, communities and the nation, a scene, which included the political and
government based on the essential values of constitutional history leading up to the
human rights, equality, freedom, democracy, enactment of a particular provision.
social justice and the rule of law. Article 4(2)
provided that the Republic of Kenya was a The petitioners advanced the argument that
multi-party state founded on the national sexual orientation was innate, that they were
values and principles of governance in born that way and that was the way they
article 10. Accordingly, the court stated expressed themselves and therefore they
that this affirmed that the progress of the should be allowed to express themselves
Kenyan nation and the realization of the the way they knew best. However, it was
aspirations of its citizens were predicated the court’s view that the expert evidence
on the institutionalization and infusion of tendered by both sides was unanimous that
these values into all segments of the Kenyan there was no conclusive scientific proof that
society. In that regard, article 11 further LGBTIQ people were born that way. If the
recognized culture as the foundation of the petitioners were born that way, they had
nation and as the cumulative civilization of rights like everyone else.
the Kenyan people and the nation. Article On the issue of violation of the Constitution,
19 appreciated that the Bill of Rights was an the Court found that the impugned provisions
integral part of Kenya’s democratic state and had not violated the Constitution or the
was the framework of social, economic and petitioner’s rights to dignity and privacy. The
social policies. court held that if it was persuaded that the
The Court further noted that any petitioners’ rights were violated or threatened
interpretation regarding the petitioners’ on grounds of sexual orientation, it would be
rights would not exclude other values difficult to rationalize that argument with
recognized in the Constitution. A holistic the spirit, purpose and intention of article
reading of the Constitution, the Final 45(2) of Constitution. Article 45(2) only
Constitution of Kenya Review Commission recognized marriage between adult persons
(CKRC) and Committee of Experts (CoE) of the opposite sex. Based on this, the court
Reports left no doubt that those values and held that decriminalizing same sex on
principles informed the constitution making grounds that it was consensual and was done
process and ultimately the Constitution in private between adults, would contradict
which was endorsed by Kenyans in the the express provisions of article 45(2). In
referendum. It was common ground that the court’s view, the petitioners’ argument
during the Constitution making process, that they were not seeking to be allowed to
the issue of same sex marriage was one enter into same sex marriage was immaterial
of the issues that arose, discussed, and a given that if allowed, it would lead to same
recommendation was made outlawing sex persons living together as couples. Such
same sex marriage. The Final CKRC Report relationships, whether in private or not,
recommended the recognition of marriage formal or not would be in violation of the
only between individuals of the opposite sex tenor and spirit of the Constitution.
and the outlawing of same sex unions. Section 3(1) of the Marriage Act defined
It was the court’s view that deliberations marriage as the voluntary union of a man and
culminated in article 45 which provided that a woman. Even where there was no formal
the family was the natural and fundamental marriage, the Act recognized cohabitation
unit of society and the necessary basis for as an arrangement in which an unmarried
social order, and should enjoy the recognition couple lived together in a long-term
and protection of the State; and, that every relationship that resembled a marriage. The
adult had a right to marry a person of the constitutionality of that section had never
opposite sex, based on the free consent of the been challenged. Therefore, the court held,
parties. In interpreting the Constitution, the decriminalizing the impugned provisions
article should not be unduly strained and the would indirectly open the door for unions
court should avoid excessive peering at the among persons of the same sex. If that were
language to be interpreted without sufficient to be allowed, it would be in direct conflict

13
 BB Issue 45, April - June 2019

with article 45(2). Numerous decisions reflected in the Constitution. The views
from different foreign jurisdictions had of Kenyans could not be ignored given the
decriminalized provisions similar to Kenya’s. clear and unambiguous provisions in article
However persuasive those decisions could 45 (2). While courts could not be dictated
be, the court reiterated that they were not to by public opinion, they would still be
binding to the High Court. Courts across the loath to fly in the face of such opinion.
world were divided on the issue. Even where Where the will of the people was expressed
it had been allowed, the court noted, it had in the Constitution, it represented societal
not been unanimous. The court provided values, which had to always be a factor in
that a country that had a provision the considering constitutional validity of a
equivalent of Kenya’s article 45(2) and had particular enactment where such legislation
decriminalized similar provisions was not sought to regulate conduct, private or public.
found. In Kenya, those views were clearly expressed
in article 45(2).
All laws in existence as at August 27, 2010 had
to be construed with alterations, adaptations, The Court therefore ruled that looking at
qualifications and exceptions necessary so as the impugned provisions vis-à-vis article
to conform to the Constitution. Nonetheless, 45(2), the provisions had not offended the
the court held that the issue before it right to privacy and dignity espoused in
was alive during the constitution making articles 28 and 31 of the Constitution. The
process, and, therefore, if Kenyans desired court held that Articles 28 and 31 could not
to recognize and protect the right to same be read in isolation from article 45(2). Unless
sex relationships, nothing prevented them article 45(2) was amended to recognize same
from expressly doing so without offending sex unions, it was difficult to agree with the
the spirit of article 45. The Court also held petitioners’ argument, that, there could be
that inasmuch as the Court of Appeal in the safe nullification of the impugned provisions,
Non-Governmental Organizations Coordination whose effect would be to open the door
Board v EG & 5 others (2019) eKLR for same sex unions and without further
agreed with the High Court that sexual violating article 159 (2)(e) which enjoined the
orientation could be read into article 27(4) court to protect and promote the purpose
of the Constitution as one of the prohibited and principles of the Constitution.
grounds for discrimination, the Court was
emphatic that the reading in would depend In conclusion, the Court held that the
on the circumstances of each case. According petitioners’ attack on the constitutional
to the court, he circumstances of the instant validity of sections 162 and 165 of the
case did not permit the reading in because to Penal Code was not sustainable and that the
do so would defeat the purpose and spirit of impugned sections were not unconstitutional.
article 45(2) of the Constitution. Accordingly, the consolidated petitions had
no merit.
The Court held that the desire of Kenyans,
whether majoritarian or otherwise were Petition dismissed and each party to bear their
own costs.
Africans must reach out to its people and empower them to build the nation ― Lailah
Gifty Akita

Some rights reserved by Bernard DUPONT

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 BB Issue 45, April - June 2019

Supreme Court
Land acquired through compulsory acquisition does not revert back to its
original owners if unutilized
Town Council of Awendo v Nelson O Onyango and 192 others[2019] KLR - SCK
Supreme Court of Kenya
Petition 37 of 2014
D K Maraga, CJ & P; M K Ibrahim, S C Wanjala, N Ndung’u & I Lenaola, SCJJ
April 30, 2019
Reported by Ian Kiptoo

Land law - compulsory acquisition- rights of having extinguished upon completion of the
reversion- radicle title vis-à-vis fee simple title - process of compulsory acquisition by the
where the Government utilized a certain portion government; that the impugned judgment
of the land it compulsorily acquired-claim by by the 1st Appellate Court had the effect of
the original owners that they had reversionary divesting the third party allottees (interested
interests to the un-utilized portions – whether parties) of their property, including schools,
a proprietor whose land had been compulsorily hospitals, churches and financial institutions,
acquired retained some reversionary interest in breach of articles 40, 48 and 50 (2) of the
in or, pre-emptive rights over the un-utilized Constitution of Kenya, 2010 (Constitution)
portions - Constitution of Kenya, 2010, articles
Issues
40 and 68 (c) (ii); Constitution of Kenya, 1963
(Repealed), section 75; Land Acquisition Act i. Whether a proprietor whose land had
(repealed), sections, 6 and 19 (1) been compulsorily acquired retained
some reversionary interest in or, pre-
Land law - compulsory acquisition- public emptive rights over the unutilized
purpose – where compulsorily acquired land portions.
remained un-utilized – where the repealed ii. What amounted to unutilized land
Constitution and Land Acquisition Act (repealed) that had been compulsorily acquired?
remained silent on use of un-utilized compulsorily iii. How could land that had been
acquired land – guiding principles applicable compulsorily acquired but remained
to compulsorily acquired land -what amounted unutilized be used?
to un-utilized land that had been compulsorily iv. What was the distinction between
acquired - how could land that had been pre-emptive rights and reversionary
compulsorily acquired but remained unutilized be interest in regards to compulsorily
used - what were the guiding principles applicable acquired land?
to land compulsory acquired v. What were the guiding principles
Land law - compulsory acquisition - pre-emptive applicable to land compulsorily
rights vis-à-vis reversionary interests - where acquired?
compulsorily acquired land remained unutilized Relevant Provisions of the Law
- what was the distinction between pre-emptive
Constitution of Kenya, 1963 (Repealed)
rights and reversionary interest in regards to
compulsorily acquired land – Land Act, section Section 75
110 (2) (1) “No property of any description shall be
Brief facts compulsorily taken possession of, and no interest
in or right over property of any description
The instant matter was an appeal where
shall be compulsorily acquired, except where the
the appellants urged that the Court of
following conditions are satisfied:
Appeal erred in fact in finding that the suit
land was not acquired for purposes of the (a) the taking of possession or acquisition
expansion of the appellant; that it erred by is necessary in the interest of defence,
reasserting the 1st to 13th respondents’ titles public safety, public order, public
over the suit land, despite the said titles morality, public health, town and
county planning or the development or
15
 BB Issue 45, April - June 2019

utilization of property so as to promote authority the full amount paid as compensation.”

the public benefits; and
Land Acquisition Act (repealed)
(b) the necessity thereof is such as to
Section 19
afford reasonable justification for the
causing of hardship that may result to (1) “After the award has been made, the
any person having an interest or right Commissioner shall take possession of the land
over the property; and by serving on every person in the land notice
that on a specified day which shall not be later
(c) provision is made by a law applicable
than sixty days after the award has been made,
to that taking of possession or acquisition
possession of the land and title the land will vest
for the prompt payment of full
in the Government.”
compensation…”
(4) “Upon taking possession, the land shall
Constitution of Kenya, 2010
vest in the Government absolutely free from
Article 40 encumbrances.”
(3)“The State shall not deprive a person of Held
property of any description, or of any interest in,
1. The suit land was compulsorily acquired
or right over, property of any description, unless
by the Government of Kenya, pursuant
the deprivation-
to the provisions of section 75 of the
(a) results from an acquisition of land Constitution of Kenya, 1963 (repealed)
or an interest in land or a conversion and section 6 (2) of the Land Acquisition
of an interest in land, or title to land, in Act 1968, (repealed). Further, the
accordance with Chapter Five; or proprietors of the land, including the
1st to the 13th respondents, were fully
(b) is for a public purpose or in the public
compensated in accordance with
interest and is carried out in accordance
the applicable law. The compulsory
with this Constitution and any Act of
acquisition was actualized vide the two
Parliament that:
Gazette Notices No. 2996 of October
i. requires prompt payment in 8, 1976 and No. 3737 of December 24,
full, of just compensation to the 1976. However, while it was clear that
person; and the parcels of land were acquired for
ii. allows any person who has a public purpose, what remained in
an interest in, or right over, that contention was the specific nature of the
property a right of access to a purpose for which some of the parcels
court of law. were acquired.

(4) Provision may be made for compensation 2. Both purposes for which the various
to be paid to occupants in good faith of land land parcels were acquired fell within
acquired under clause (3) who may not hold title the rubric of public purpose, within the
to the land.” meaning of section 75 (1) of the repealed
Constitution. Section 6 of the Land
Land Act Acquisition Act (repealed) replicated
Section 110 the above provisions of the repealed
Constitution. Therefore, on the face of
(1) “Land may be acquired compulsorily under
the two Gazette Notices, the suit lands
this Part if the Commission certifies, in writing,
in question were acquired, on the one
that the land is required for public purposes or in
hand for town and county planning and
the public interest as related to and necessary for
on the other hand, for the development
the fulfillment of the stated public purpose.”
of, or utilization of the said lands so as to
(2) “If, after land has been compulsorily promote the public benefit.
acquired, the public purpose or interest justifying
3. The proper basis for determining
the compulsory acquisition fails or ceases, the
the specific nature of the purpose for
Commission may offer the original owners or
which the suit lands were acquired, was
their successors in title pre-emptive rights to re-
the language used in the two Gazette
acquire the land, upon restitution to the acquiring
Notices. Towards that end, Gazette

16
 BB Issue 45, April - June 2019

Notice No. 2996 stated that the specified mean that there was another purpose
parcels of land were to be acquired for other than, but related to, the actual
the South Nyanza Sugar Scheme while establishment of the South Nyanza
Gazette Notice No. 3737 stated that the Sugar Scheme. That other purpose was
specified parcels were to be acquired the expansion of the Awendo Township.
for the South Nyanza Sugar Scheme The establishment of the South Nyanza
(Awendo Township Expansion) in South Sugar Scheme within the vicinity of
Nyanza District. Awendo Township meant that the latter,
had to be expanded to accommodate the
4. The Gazette Notices were distinct and
functionality of the former. The need
referred to different parcels of land. Land
to expand the Township necessitated
title no. North Sakwa/Kamasonga/1193
the further acquisition of extra land, for
(Plot No. 1193) in respect of the 7th
that purpose, as was clearly stated in the
respondent was not on the list of parcels
brackets. The words Awendo Township
of land acquired by the two Gazette
Expansion had to surely be taken to
Notices. The tentative conclusion
mean something; otherwise they would
regarding the said title therefore was
not have been included in Gazette Notice
that it was never compulsorily acquired.
No. 3737.
In addition, land title No. North Sakwa/
Kamasonga/ 46 (Plot No. 46) in respect 7. The purpose for which all that land,
of the 1st respondent and Land Title No. comprised in Gazette Notice No. 2996,
North Sakwa/ Kamasonga /168 (Plot No. i.e., the establishment of South Nyanza
168) in respect of the 13th respondent Sugar Scheme in South Nyanza, had
were acquired vide Gazette Notice No. been fully accomplished by the time of
2996. A perusal of the record revealed the filing Civil Case No. 133 of 2005 at the
fact that some of the respondents, to wit, High Court. That being the case, there
the 3rd, 9th, 10th, 11th and 12th were not were no unutilized portions of land
the original proprietors of the parcels in the block to which the said Gazette
in question. However, they referred to Notice applied.
themselves in their supporting affidavits
8. A reversion was that interest in land
as beneficial owners.
that survived the expiry or extinction of
5. A plain reading of Gazette Notice No. an estate in the said land. It was called
2996 clearly indicated that the intention a reversion because upon the extinction
of acquiring the land parcels was for of the estate, that interest reverted to the
establishing the South Nyanza Sugar person or entity from whose superior
Scheme. That had to be taken to refer title the estate was originally created.
to all that it entailed to establish such An estate on the other hand, was a time
a scheme, including the factory, sugar bound bundle of rights over land or
plantations, offices, plant and machinery stated at common law, an estate was a
and all necessary infrastructure. time in the land or a land for a time. Thus
Towards that end, there was no dispute a holder of a fee simple estate retained
regarding the establishment of South interest in that land for as a long as there
Nyanza Sugar Scheme. As for Gazette would be an heir to inherit the same.
Notice No. 3737, it was stated that the Where no heir remained to inherit the
listed parcels were to be acquired for the estate, then the land reverted to the State.
South Nyanza Sugar Scheme (Awendo
9. The State held a superior title to the land
Township Expansion) in South Nyanza
called the radical title. The fee simple
District. The operative words were the
estate also became extinguished upon
bracketed ones.
a compulsory acquisition by the State
6. The two Gazette Notices, although in exercise of its powers of eminent
linked in material particulars, could domain. By the same token, in a landlord
not have been referring to the same and tenant relationship, the tenant held
purpose for the compulsory acquisition. the leasehold estate while the landlord
The inclusion of the words Awendo retained the reversion which, upon the
Township Expansion had to be taken to expiry of the leasehold, was surrendered

17
 BB Issue 45, April - June 2019

back to the landlord, since the latter held handmaidens of justice and fairness. But
a superior title from which the lease was even equity, in all its splendor, followed
created. the law, lest it be deformed, by judicial
caprice or whim. Therefore, in the
10. The respondents did not retain
face of clear constitutional and legal
any interests in the land, capable of
provisions, that extinguished private
protection or resuscitation by the law
title to compulsorily acquired land, not
as provided for in section 19 (1) of the
even equity could resuscitate such title
Land Acquisition Act (repealed). The
to unutilized portions thereof.
respondents did not have any reversion
in the acquired lands since whatever 14. The public purpose, for which the land
reversion that had existed, could only was compulsorily acquired, could have
have been a reversion in favour of the been spent, but the unutilized portions
State, and not vice versa. The suit lands thereof remained public land. Therefore,
all became vested in the Government of such land as remained unutilized could
Kenya. only be applied to a public purpose,
or be utilized to promote the public
11. For purposes of the Appeal, unutilized
interest, even if the said interest was not
land referred to any residual portion
such as had been originally envisaged.
of land which had been compulsorily
Unutilized portions of land, could in
acquired, but which remained unused
the instant case, be allocated to private
after the realization of the public purpose
entities, including those from whom the
for which it had been acquired. Neither
land was acquired, at a price, provided
the repealed Constitution, nor the Land
that, the land was to be put to such use as
Acquisition Act, provided any direction
would promote the public interest.
as to what should happen to land that
remained unutilized after the public 15. The provisions relating to the doctrine
purpose for which it was compulsorily of eminent domain as were enshrined
acquired became spent. in article 40 of the Constitution of
Kenya, 2010 (Constitution), and Part
12. Land which had been compulsorily
VIII, of the Land Act (sections 107 to
acquired had to be used for the purpose
133), mirrored those of section 75 of
for which it was acquired. If for example,
the repealed Constitution, and section
after compulsorily acquiring land, the
6 of the Land Acquisition Act (repealed)
Government or any of its agencies
with a few modifications. Article 68 (c)
proceeded to allocate the said land, to
(ii) of the Constitution provided that
individuals or other entities, for their
Parliament would enact legislation to
own private benefit, in total disregard of
regulate the manner in which any land
the public purpose, such allocation would
could be converted from one category to
not confer good title to the allottees.
the other.
13. Under the law as it then stood, the
16. Section 110 (2) of the Land Act introduced
original owners of compulsorily
the concept of pre-emptive rights over
acquired land had no reversionary
compulsorily acquired land. Where
rights in that land. In Niaz Mohammed
the purpose justifying the compulsory
v Commissioner for Lands & 4 Others
acquisition failed or ceased, then the
(1996) eKLR, it appeared to suggest
original owners or their successors in
that such land would legally revert to
title had the pre-emptive rights to re-
the original owners through equity.
acquire the land upon payment of the
The fallback to equity was compelling,
full amount received as compensation.
given that what was involved was land,
However, a pre-emptive right was not
a subject that unendingly continued to
the same as a reversionary interest.
generate emotive disputes among all
The former arose, consequent upon
and sundry. Indeed, equity grew out of
the failure or cessation of the purpose
the interstices of common law rigidity.
justifying the compulsory acquisition;
The doctrines that had catapulted it
while the latter reposed in the holder of
into the cosmos of law were themselves
a superior title and became exercisable

18
 BB Issue 45, April - June 2019

upon the expiry of an estate. legal provisions did not retain any
reversionary interest in the said land;
17. It could not be said that the land over
and
which the pre-emptive right of re-
d. unutilized portions of compulsorily
acquisition arose upon failure or
acquired land could be used for
cessation of the public purpose, was the
a different public purpose, or in
same as unutilized land or portion of land
furtherance of a different public
that remained once the public purpose
interest, including the allocation of
became spent. In the former case, there
such portions to private individuals
was a total failure of the public purpose,
or entities, at the market price, in
meaning that the acquired land could
furtherance of such public interest.
not be used as earlier envisaged. The
wording of section 110 (2) of the Land 20. Consequently, flowing from the analysis
Act was permissive (the Commission and guiding principles:
may offer) in the sense that the acquiring a. through the instrumentality of
authority, was not necessarily barred Gazette Notices Nos. 2996 and 3737
from applying the land to another public of 1976, all parcels of land whose land
purpose. However, should it decide to titles were listed respectively, were
abandon the land to private purchase, compulsorily acquired and vested in
then the original owners had the pre- the Government of Kenya;
emptive rights to re-acquire the land b. the appellant (or its successor in title)
upon restitution of the full sum that was held that land in trust for the residents
paid in compensation. of the area, and as the Implementing
Agency of the public purpose for
18. The land to be re-acquired in the instant
which the land was compulsorily
case was the whole as opposed to a
acquired;
portion thereof. That explained why
c. The letter written by the Land
the sum of money to be restituted by
Registrar, directing the appellant to
the original owners was the full amount
re-survey the land and allocate the
paid in compensation. In the latter case,
same to the original owners or their
the public purpose had been realized, but
successors in title had no legal basis;
the acquired land had not been utilized
d. the 1st and 13th respondents had no
in full, leaving a portion thereof. In that
reversionary interest in the parcels of
instance, neither the original owners,
land listed in the two Gazette Notices,
nor their successors in title had pre-
since titles thereto were extinguished
emptive rights to re-acquire the un-
through the compulsory acquisition
utilized portions.
of the same;
19. On the basis of the analysis, the following e. the purpose for the acquisition of all
guiding principles were issued: those lands listed in Gazette Notice
a. where the Government, pursuant to No. 3737 of 1976 (the suit land)
the relevant constitutional and legal was for the expansion of Awendo
provisions, compulsorily acquires Township in South Nyanza District.
land, such land, would only be used Such expansion was necessitated by
for the purpose for which it was the establishment of South Nyanza
compulsorily acquired; Sugar Scheme, through Gazette
b. the allocation of compulsorily Notice No. 2996;
acquired land, to private individuals f. the land comprised in Gazette Notice
or entities, for their private benefit, No. 3737 was not unutilized land
in total disregard of the public given the fact that the expansion of
purpose or interest for which it was Awendo Township was an on-going
compulsorily acquired, would be process;
incapable of conferring title to that g. the allocation of various parcels of
land in favour of the allottees; land comprised within Gazette Notice
c. a person whose land had been No. 3737, at a price, to the interested
compulsorily acquired in accordance parties, for the establishment of
with the relevant constitutional and residential, commercial and other

19
 BB Issue 45, April - June 2019

amenities such as churches, etc., was latter acquired valid title which could
in furtherance of the expansion of not be defeated by the claims of the
Awendo Township; and respondents.
h. by purchasing the said plots, and using Petition of appeal allowed with no orders as to
them for residential, commercial costs.
and other purposes in consonance
with the public interest, and in the The 7th respondent would be fully compensated by
absence of any proof of fraud on the Government of Kenya for the loss of his Land
the part of the interested parties, the Title No. North Sakwa/Kamasonga/1193.

Supreme Court overturns the acquittal of two Iranian nationals convicted

of terrorism related offences.
Republic v Ahmad Abolfathi Mohammed & another[2019] KLR - SCK
Petition 39 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S C Wanjala, W N Ndungu & I Lenaola,
SCJJ
March 15, 2019
Reported by Mathenge Mukundi

Evidence Law-confession and admission- five days, where they visited various places
difference between an admission and a confession- at the coast, they later travelled to Nairobi
information obtained from an accused person and spent a few days. While on their way
during police interrogations-discovery of exhibits back to Iran, they were arrested by the Anti-
and further evidence from information offered Terrorist Police Unit on allegations of being
to the police by an accused person-whether that in the country on a terrorism mission.
information was either a confession or admission,
The respondents were later charged before
which had to be taken in accordance with the law
the Chief Magistrate’s Court, at Nairobi
for it to be admissible-Evidence Act (Cap 80),
with the following offences: committing
sections 17 & 25.
an act intended to cause grievous harm
Evidence Law-production and effect of evidence- contrary to section 231(f) of the Penal
burden of proof-burden of proving circumstances Code, preparation to commit a felony
which, included facts especially within the contrary to section 308 (1) of the Penal
knowledge of an accused person, that entailed an Code and being in possession of explosives
exception, exemption or qualification in relation namely Cyclotrimethylenetrinitramine (RDX)
to an offence-whether the burden of proving such contrary to section 29 of the Explosives Act.
circumstances was different or similar to the The respondents pleaded not guilty to all the
making of a confession or an admission-Evidence charges but upon trial, they were convicted as
Act (Cap 80), sections 17, 25A & 111(1). charged and sentenced to life imprisonment
on the first offence, 10 and 15 years to the
Evidence Law-circumstantial evidence-
second and third offences respectively. The
probative value of circumstantial evidence-claim
sentences were ordered to run concurrently.
that the finding of explosives in an open golf
course, in which the accused persons were spotted, Aggrieved by that conviction and the sentence
included an co-existing circumstances wherein imposed upon them by the Magistrate’s
any other person could have accessed the golf Court, the respondents appealed to the High
course and placed the explosives there-whether Court, as the first appellate court. Upon
circumstantial evidence showed a complete chain re-evaluation of the evidence on record,
of events which pointed to the guilt of the accused the High Court upheld the findings of the
persons. trial Court on the respondents’ conviction.
It, however, allowed their appeal against
Brief Facts:
sentence holding that the respondents,
The respondents were Iranian nationals having been charged with what essentially
who came to Kenya on June 12, 2012 on a constituted inchoate offences in that their
tourist/business survey visa. During the intentions were nipped in the bud, the
tour they stayed in a hotel in Mombasa for sentence of life imprisonment was excessive.

20
 BB Issue 45, April - June 2019

Consequently, the Judge set aside that facts proved, an inference may reasonably be
sentence and substituted it with a composite drawn that the person making it has committed
term of fifteen years’ imprisonment. an offence.
The respondents were still aggrieved by Section 25A;
the High Court’s findings and moved to the
Confessions generally inadmissible
Court of Appeal on a second appeal. Before
that Court, they raised 19 grounds of appeal (1) A confession or any admission of a fact tending
which their counsel condensed into six to the proof of guilt made by an accused person is
broad grounds, the Court of Appeal allowed not admissible and shall not be proved as against
their appeal, quashed their conviction and such person unless it is made in court before a
set aside the sentence. It was that decision judge, a magistrate or before a police officer (other
which provoked the Supreme Court appeal than the investigating officer), being an officer not
by the State. below the rank of Inspector of Police, and a third
party of the person’s choice.
Issues:
i. Whether the information given to the (2) The Attorney-General shall in consultation
police by an accused person that led with the Law Society of Kenya, Kenya National
to the recovery of the RDX explosives Commission on Human Rights and other suitable
was admissible only under section 25A bodies make rules governing the making of a
or also under the provisions of section confession in all instances where the confession is
111(1) of the Evidence Act; not made in court.
ii. Whether evidence emanating from a Section 111(1);
suspect leading to discovery of further
Burden on accused in certain cases
evidence should be equated with a
confession under section 25A of the When a person is accused of any offence, the
Evidence Act. burden of proving the existence of circumstances
iii. Whether there was an apparent bringing the case within any exception or
conflict between sections 25A and exemption from, or qualification to, the operation
111(1) of the Evidence Act, with of the law creating the offence with which he
respect to evidence obtained by the is charged and the burden of proving any fact
police from an accused person; and especially within the knowledge of such person is
iv. Whether the fact that any person other upon him:
than the accused persons had access Provided that such burden shall be deemed to be
to a crime scene where explosives discharged if the court is satisfied by evidence given
were placed, broke the chain of the by the prosecution, whether in cross-examination
circumstantial evidence on record or otherwise, that such circumstances or facts
and meant that anyone else could have exist:
committed the crime.
Provided further that the person accused shall
Relevant Provisions of the Law:
be entitled to be acquitted of the offence with
Evidence Act (Cap 80) which he is charged if the court is satisfied that
Section 17; the evidence given by either the prosecution or the
defense creates a reasonable doubt as to the guilt
Admissions defined generally of the accused person in respect of that offence.
An admission is a statement, oral or documentary, Held:
which suggests any inference as to a fact in issue
or relevant fact, and which is made by any of 1. It was a common practice and standard
the persons and in the circumstances hereinafter operating procedure in the criminal
mentioned. investigations for the police to confront
the suspects with any report they
Section 25; received about the suspects’ commission
Confession defined or involvement in the commission of a
crime and demand an explanation. If the
A confession comprises words or conduct, or a
explanation the suspect gave led to the
combination of words and conduct, from which,
discovery of further evidence or exhibits,
whether taken alone or in conjunction with other

21
 BB Issue 45, April - June 2019

the evidence should be admitted though 5. Circumstantial evidence was like any
with corroboration for a conviction to be other evidence. Though, its probative
sustained. Hence, the information that value should be reasonable, and not
was volunteered by the 1st respondent speculative, inferences ought to be
that led the police to the recovery of the drawn from the facts of a case. In
RDX explosive was generally admissible contrast to direct testimonial evidence,
without invoking section 25A or section it was conceptualized in circumstances
111(1) of the Evidence Act. surrounding the disputed questions of
fact. Circumstantial evidence should
2. Where there was a confession an
never be given a derogatory tag. For
accused person would acknowledge
a conviction to be sustained on the
the commission of an offence and
basis of circumstantial evidence, the
could be convicted on the basis of that
chain of events had to be so complete
acknowledgement alone but in the case
that it established the culpability of the
of an admission the accused person
respondents, and no one else, without
would acknowledge a fact from which
any reasonable doubt.
guilt could be inferred but additional
evidence would be needed to prove the 6. There had to be no other co-existing
commission of an offence. circumstances weakening the chain
of circumstances relied on and the
3. The Court of Appeal noted, quite aptly,
circumstances from which the guilt
that it was never the appellant’s case
inference was drawn had to be of
that the respondents had confessed to
definite tendency and to precisely point
committing the offences that they were
toward the guilt of the respondents. The
charged with. The Appellate Court
appellant proved that the respondents
therefore, could not rely on section
visited the country on a tourist/business
25A of the Evidence Act because the
survey visa and upon their short stay
respondents did not make a confession
in the country they neither visited any
in terms of sections 25 and 25A of the
tourist destination nor met with any
Evidence Act. Hence, the Court of
investor. The only place they visited
Appeal erred in equating the information
thrice was where the RDX explosives
given by the 1st respondent that led
were recovered in a freshly dug hole, at
to discovery of RDX explosives to a
which, they had been seen at dusk by
confession in terms of sections 25 and
golfers at a spot where it was rare to
25A of the Evidence Act.
find members of the public at that time.
4. There was no apparent conflict between Upon being asked by the golfers what
sections 25A (1) and 111(1) of the they were doing there at that time, they
Evidence Act. The two sections related casually stated that they were “looking”.
to different scenarios and would result The golfers left them there at around
in different effects. Section 25A (1) of 6:30pm in the evening.
the Evidence Act was applicable only
7. Although the golf course was not fenced
to the information obtained by the
or guarded and it was possible for any
prosecution during the interview and
member of the public to have entered
interrogations of the suspects during
it and to place the RDX where it was
criminal investigations, whereas, section
found, that did not break the chain of
111 (1) of the Evidence Act dealt with
events. The respondents did not offer
the burden of proof and only came into
any plausible explanation for their
play in the trial when the prosecution
three visits at the spot where the RDX
had proved, to the required standard
explosives were recovered or on how the
of beyond reasonable doubt, that the
1st respondent obtained the information
accused person had committed an
that he volunteered to the police and led
offence and part of the prosecution case
to the recovery of the explosives.
comprised of a situation only “within
the knowledge” of the accused person so 8. The respondents vehemently dismissed
that if he did not offer an explanation, he the alleged admission as a fairy tale
risked conviction. concocted by the police to incriminate

22
 BB Issue 45, April - June 2019

them. However, upon consideration material fact which, coupled with the
of the record, and particularly the circumstantial evidence on record
trial Court’s finding that there was sealed the respondents’ guilt. In the
no evidence on record to support the circumstances the appeal had merits.
accused’s claim that after his arrest he
Per M K Ibrahim, SCJ (dissenting)
was drugged and that he only came to
his senses while in Court, as well as the 1. It was imperative that the rationale for
statement by the 2nd respondent that the enactment of section 25A of the
the police treated them well, the trial Evidence Act was not lost. The reason
Court and the first appellate court’s behind its enactment showed why it
finding that the 1st respondent indeed was not in conflict with section 111 of
led the police to the discovery of the the Evidence Act. The enactment was
RDX explosives, was correct. The act of clearly prompted by the raging debate
the 1st respondent that led the police to at the time of enactment which brought
where the RDX explosive was discovered serious concerns as to the capability of
was an admission of the respondents’ the police to extract confessions without
possession of that explosive. The police resorting to means that led to gross
did not know the respondents. The miscarriage of justice and grave human
police said that they acted on intelligence rights violations. Generally, confessions
information. The use of intelligence or made by the accused person were not
informers’ reports was standard and admitted in evidence unless they were
common practice and the police were made strictly in accordance with the law.
not obliged to disclose their informers 2. The 1st respondent had special knowledge
as that would hamper crime detection in of where the substance was buried. The
the country. substance was buried in a hidden place.
9. All the aspects of the evidence on record The only inference that the court could
corroborated the appellant’s case that draw from the evidence adduced by the
the 1st respondent led the police to appellant was that it was the respondents
the scene where the RDX explosives who had buried the said substance in
were dug out. That considered alone the place where it was found. That
precisely pointed to the respondents was circumstantial evidence. The law
as the people who planted the RDX regarding circumstantial evidence was
explosives at the scene where they that the Court had to consider whether
were found. There was no evidence of the exculpatory evidence adduced by the
anyone else having previously planted prosecution was inconsistent with the
anything in the Mombasa Golf Course innocence of the accused and pointed to
and more specifically in the vicinity of no one else other than the accused as the
Hole No. 9 where the RDX explosive was persons who committed the offence. The
discovered. The respondents visited that appellant established that it was the 1st
spot at least thrice, the last visit having respondent who escorted the police to
been a day before the recovery of the the specific spot at the golf course where
RDX explosive. Had the Court of Appeal the explosive substance was recovered.
considered all these factors, it would 3. In reaching at its decision, the High
have come to a different conclusion. Court drew conclusions from the
10. The Court of Appeal erred in holding circumstantial evidence adduced by
that any admission made outside the prosecution and not the accused’s
section 25A of the Evidence Act was confession, for no confession was on
inadmissible. It also erred in holding record. The High Court concluded that
that the conviction in the case was based both direct and circumstantial evidence
solely on circumstantial evidence. The placed the respondent within the
1st respondent’s act of leading the police proximity of the area where the RDX
to Hole No. 9 on the Mombasa Golf was buried and later recovered.
Club course where the RDX explosive 4. The Court noted that the evidence of the
was dug out, was an admission of a appellants’ possession of the RDX was

23
 BB Issue 45, April - June 2019

purely circumstantial because no witness on the seriousness of an offence should

saw them in possession of the substance never be a factor in determining the guilt
or placing the same in the golf course. The of an accused or his acquittal. There was
evidence was emphatic that other than a paradox at the heart of all criminal
being at the golf course, the appellants procedure, in that the more serious the
were not in physical possession of any crime and the greater the public interest
luggage or parcel. There was no other in securing convictions of the guilty,
circumstantial evidence tying or linking the more important constitutional
the appellants to the RDX, the easy protections of the accused persons
accessibility, without let or hindrance, became.
of the golf course entailed strong co-
8. The presumption of innocence served not
existing circumstances that were capable
only to protect a particular individual on
of destroying the inference of guilt on
trial, but to maintain public confidence in
the part of the appellants.
the enduring integrity and security of the
5. The evidence was purely circumstantial legal system. Reference to the prevalence
and was not enough to prove the and severity of a certain crime therefore
case as against the respondents to the did not add anything new or special
required standard, which was proof to the balancing exercise. Although,
beyond reasonable doubt. It was also the public resented and abhorred the
imperative to note that while the police respondents’ acquittal by the Court of
evidence was that the 1st respondent Appeal, in determining the matter, the
was the one who led them to the spot at Court should only focus on issues that
Mombasa Golf Club where the RDX was were before the Court of Appeal and the
discovered, that evidence was used to law. The gravity of the offence and the
equally convict the 2nd respondent. That public sensitivity of the issue(s) ought not
aspect was not picked up by either of the to be given emphasis to the exclusion of
Superior Courts and was another reason very important constitutional provisions
militating against the case against the and fundamental rights and freedoms,
respondents. The prosecution evidence which the Constitution guaranteed to all
was never water-tight. persons, especially within the criminal
justice system.
6. With respect to public interest, it was a
fact that the country had been a victim to 9. The Court of Appeal correctly found
several terrorist attacks, with the recent that the chain of circumstantial evidence
one being the ‘Dussit Hotel Complex was broken and the evidence on record
Attack’. As a result, public interest was not watertight or conclusive
and awareness in matters concerning enough to sustain a conviction of the
terrorism had increased. Any alleged two respondents. The fact that the Golf
association of individuals with acts of Course was an open area, was not fenced
terrorism was a matter that the public and was accessible to any member of
really frowned upon. Hence as expected, the public created a reasonable doubt
the matter attracted a lot of public as to the guilt of the two respondents in
interest and media coverage. To the respect of the offence in question.
public, the fact that the respondents were
S C Wanjala, SCJ (dissenting)
Iranians charged with acts of terrorism
was enough to have them convicted and 10. The High Court and Court of Appeal
sentenced. interpreted sections 25A and 111(1) of
the Evidence Act, as if they dealt with
7. The Court was required to strike a
the same genre of evidence; confessions
balance between the public’s interest
and admissions. The superior courts
and expectations on one hand, and the
perceived a conflict between the two,
constitutional principles applicable
in terms of the admissibility of certain
within the criminal justice system on the
evidence obtained from a suspect
other, the most fundamental principles
during investigations. However, the two
being the presumption of innocence and
sections of the Evidence Act did not deal
the Rule of Law. The public’s perception

24
 BB Issue 45, April - June 2019

with the same family of evidence. In fact, or exemption from, the law creating that
they were so unrelated, that there could charge.
hardly be any conflict between them.
13. Information provided by a suspect, which
11. A correct reading of sections 25A and led to the discovery of material evidence
111 of the Evidence Act clearly showed did not fall within the provisions of
that the two did not address similar, or section 111 (1) of the Evidence Act. Such
even related evidentiary issues. Section information was of course relevant to the
25A of the Evidence Act dealt with the process of collecting evidence. However,
process of searching for, collecting and if the information had the character of
admissibility of evidence.The process an admission or confession, it had to fall
took place before a person was formally under the provisions of section 25A of
charged with a criminal offence, hence the Evidence Act, for the latter, regulated
the requirement that a confession or the admissibility of “a confession or any
admission should be made before a admission of a fact intending to the proof
judge, a magistrate or a police officer not of guilt…”
being an investigating officer of the rank
14. It was no longer in question that for
of Inspector. Once charged, then the
circumstantial evidence to justify the
question of whether his confession or
inference of guilt, it had to be watertight,
admission of fact was admissible arose.
in that the exculpatory facts had to be
Section 25A of the Evidence Act mainly
incompatible with the innocence of
regulated the investigative process.
the accused. The circumstances taken
Once a person was formally charged,
cumulatively, should form a chain so
he became an accused person, but the
complete that there was no escape from
information he could have given, or a
the conclusion that within all human
confession or admission he could have
probability, the crime was committed by
made during investigations, had to be
the accused and none else. The burden
subjected to the requirements of section
of proving the completeness of the chain
25A and any other related provisions of
always remained on the prosecution, it
the Evidence Act, dealing with questions
never shifted to the accused.
of admissibility of evidence, be it a
confession or an admission. 15. As the Court of Appeal observed, the
evidence on record indicated that the
12. Section 111 (1) of the Evidence Act, did
golf course was not fenced or guarded
not address the process of searching
and that it was possible for any member
for, collecting, or admissibility of
of the public to have entered it and
evidence. The section dealt with the
placed the RDX where it was found. In
question of burden of proof in certain
the absence of any other circumstantial
circumstances. The opening words
evidence tying or linking the appellants
of the section read “when a person is
to the RDX, the easy accessibility, without
accused of any offence, the burden of
let or hindrance, of the golf course was
proving….”. In other words, the section
strong co-existing circumstance that
placed the burden of proving that an
was capable of destroying the inference
accused person was exempted from, or
of guilt on the part of the appellants. All
fell within an exception to the offence
that the Court ought to have done was
with which he was charged on him.
to satisfy itself whether, the evidence
For example, an accused person could
on record supported the finding of
have pleaded the defence of diplomatic
guilt beyond any reasonable doubt. The
immunity, and consequently, that he was
evidence relied upon by the prosecution
exempted from the criminal charge. It
was not water-tight enough to prove the
had nothing to do with a confession or
guilt of the accused beyond reasonable
an admission of a fact, tending to the
doubt.
guilt of an accused. It was actually the
other way round, meaning facts that Appeal allowed, the respondents were to serve
would have brought an accused person the remainder of their imprisonment term after
within an exception, or qualification to, which they would be repatriated to their country

25
 BB Issue 45, April - June 2019

Court of Appeal
The threshold for determining unexplained assets in corruption cases
Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KLR - CAK
Civil Appeal 184 of 2018
Court of Appeal at Nairobi
P N Waki, S G Kairu & J Otieno-Odek JJA
May 10, 2019
Reported by Kakai Toili

Statutes - interpretation of statutes - Constitutional Law - rights and fundamental

interpretation of section 26 of the Anti- freedoms - right to property - nature of - where
Corruption and Economic Crimes Act - notice to a person was asked to explain the source of assets
furnish the Kenya Anti-Corruption Commission disproportionate to his/her legitimately known
with a statement of a suspect’s property - what sources of income - what was the nature of the
was the nature of the notice to furnish the Kenya right to property where a person was asked to
Anti-Corruption Commission with a statement of explain the source of assets disproportionate to
a suspect’s property - whether evidence recovered his/her legitimately known sources of income
pursuant to a notice to furnish the Kenya Anti- - Constitution of Kenya, 2010, article 40; Anti-
Corruption Commission with a statement of Corruption and Economic Crimes Act, 2003,
a suspect’s property could be used in criminal sections 26 & 55(2)
proceedings-Anti-Corruption and Economic
Brief Facts
Crimes Act, 2003, sections 26, 30 and 55
The respondent issued a notice under section
Jurisdiction – jurisdiction of the Court of Appeal
26 of the Anti-Corruption and Economic
– appellate jurisdiction - jurisdiction to interfere
Crimes Act, 2003 (ACECA) requiring the
with the exercise of a trial court’s discretion -
appellant to furnish a statement of his
what was the role of the Court of Appeal as a
property. The respondent in the said notice
first appellate court and when would the Court of
claimed that the appellant’s various assets
Appeal could interfere with a trial court’s exercise
were estimated at tens of millions of Kenya
of discretion
Shillings and were disproportionate to his
Evidence Law - burden and standard of proof salary. Considering that the appellant’s salary
- burden and standard of proof in determining from employment in the public service was
unexplained assets - where a person was alleged to his only source of income during the period
have assets disproportionate to his/her legitimate within which he acquired the said assets,
sources of income - who bore the burden of the respondent suspected the appellant
proof where a person was alleged to have assets of engaging in corruption and economic
disproportionate to his/her legitimate sources of crimes. The appellant was required to explain
income - what was the threshold for determining the source of cash deposits made to his
unexplained assets where a public servant had accounts. The notice required the appellant
assets disproportionate to his/her legitimately to explain his wealth for 16 years being the
known sources of income - Anti-Corruption and period 1992 to 2008. It was contended that
Economic Crimes Act, 2003, sections 2 & 55; the respondent unlawfully altered the period
Evidence Act, section 112 of investigation and inquiry to 10-months
namely from September 2007 to June 2008.
Evidence Law – witnesses - calling of material
witnesses to testify - failure of calling material The appellant complied with the notice
witnesses to testify - effect of - what was the effect and gave explanation for his wealth and
of failure to call a material witness to testify in a assets. Dissatisfied with the explanation, the
corruption case - Anti-Corruption and Economic respondent moved to the Trial Court seeking
Crimes Act, 2003, section 55; Evidence Act, orders for forfeiture of the unexplained assets.
section 112 The Trial Court held that the appellant was in
possession of unexplained assets valued Ksh.

26
 BB Issue 45, April - June 2019

41,208,000/=. A decree was issued that the require a person who, for reasons to be
appellant was liable to pay the Government stated in such notice, is reasonably suspected
of Kenya the sum of Ksh. 41,208,000/=. of corruption or economic crime to furnish,
Aggrieved by the Trial Court’s decision, the within a reasonable time specified in the
appellant lodged the instant appeal. notice, a written statement in relation to
any property specified by the Secretary and
Issues
with regard to such specified property:
i. What was the threshold for determining (a) enumerating the suspected person’s
unexplained assets where a public servant property and the times at which it was
had assets disproportionate to his/her acquired; and
legitimately known sources of income? (b) stating, in relation to any property that
ii. What was the nature of the notice to furnish was acquired at or about the time of the
the Kenya Anti-Corruption Commission suspected corruption or economic crime,
with a statement of a suspect’s property whether the property was acquired by
under section 26 of Anti-Corruption and purchase, gift, inheritance or in some
Economic Crimes Act? other manner, and what consideration,
iii. Whether evidence recovered pursuant if any, was given for the property.
to a notice to furnish the Kenya Anti- (2) A person who neglects or fails to comply with
Corruption Commission with a statement a requirement under this section is guilty of
of a suspect’s property could be used in an offence and is liable on conviction to a
criminal proceedings. fine not exceeding three hundred thousand
iv. What was the role of the Court of Appeal shillings or to imprisonment for a term not
as a first appellate court and when would exceeding three years, or to both.
the Court of Appeal interfere with a trial (3) The powers of the Commission under
court’s exercise of discretion? this section may be exercised only by the
v. What was the nature of the right to property Secretary.
where a person was asked to explain
Section 55
the source of assets disproportionate to
his/her legitimately known sources of (5) If after the Commission has adduced evidence
income? that the person has unexplained assets the court
vi. Who bore the burden of proof where is satisfied, on the balance of probabilities, and
a person was alleged to have assets in light of the evidence so far adduced, that the
disproportionate to his/her legitimate person concerned does have unexplained assets, it
sources of income? may require the person, by such testimony and
vii. What was the effect of failure to call a other evidence as the court deems sufficient, to
material witness to testify in a corruption satisfy the court that the assets were acquired
case? otherwise than as the result of corrupt conduct.
Relevant Provisions of the Law (6) If, after such explanation, the court is not
Anti-Corruption and Economic Crimes satisfied that all of the assets concerned were
Act acquired otherwise than as the result of corrupt
conduct, it may order the person to pay to the
Section 2 Government an amount equal to the value of the
unexplained asset” means assets of a person: unexplained assets that the Court is not satisfied
(a) acquired at or around the time the person were acquired otherwise than as the result of
was reasonably suspected of corruption or corrupt conduct.
economic crime; and Evidence Act (Cap 80 of the Laws of Kenya)
(b) whose value is disproportionate to his
Section 112
known sources of income at or around that
time and for which there is no satisfactory In civil proceedings when any fact is especially
explanation. within the knowledge of any party to those
Section 26 proceedings the burden of proving or disproving
(1) If, in the course of investigation into any that fact is upon him.
offence, the Secretary is satisfied that it
Held
could assist or expedite such investigation,
the Secretary may, by notice in writing, 1. The scourge of money laundering,

27
 BB Issue 45, April - June 2019

economic crimes and corruption year timeline of 1992 to June 2008 stated
was threatening the moral and social in the notice dated July 9, 2008. The
fabric of society. In Kenya, one of the notice required the appellant to furnish
legislative instruments designed to deal details of the enumerated property and
with the scourge was the ACECA. In its cash deposits for the 16-year period. The
preamble, ACECA sought to provide greater period included the lesser period
for prevention, investigation and and no fresh or new notice was required
punishment of corruption, economic for the 10-months between September
crimes and related offences. ACECA 2007 and June 2008. That lesser period
established the Kenya Anti-Corruption was already within the longer 16-year
Commission(respondent) as a body time-frame. Further, the originating
corporate whose Chief Executive Officer summons at paragraph 4 thereof and at
was the Secretary/Director to the paragraph 10 of its supporting affidavit
Commission. expressly identified and informed the
appellant the period under investigation
2. Entrenched in ACECA was the concept
was September 2007 to June 2008.
of unexplained assets which was a legal
innovation to combat the vice of doubtful 7. It was not the duty of the Trial Court
source of wealth, money laundering and to identify the period of investigation.
suspicious corrupt practices. Underlying Under section 26 of ACECA as read
the concept was the theme, you failed to with section 55 of the ACECA, it was
satisfactorily explain the lawful source of the duty of the respondent to identify
assets, you forfeited it. the period under investigation. The
evidence on record identified the period
3. A notice issued under section 26 of
of investigation to be September 2007
ACECA was a civil investigatory tool
to June 2008. Accordingly, the ground
aimed at collecting information and data
and submission that the Trial Court
from a person suspected of corruption
erred in failing to identify the period
or economic crime. By virtue of section
of investigation had no merit. Likewise,
55 (9) of ACECA, the provisions of
the contestation that the originating
section 55 ACECA were retroactive and
summons as filed was fatally defective
a section 26 notice could issue regardless
for being grounded on a 10-month
of when the property was acquired. The
period had no merit.
notice could issue in relation to property
acquired before ACECA came into force. 8. The appellant’s right to fair hearing
under article 50 of the Constitution
4. Evidence recovered pursuant to section
as well as his right to be accorded
26 of the ACECA on unexplained assets
reasonable opportunity to explain
was for civil recovery only. Pursuant
the source of the monies recovered as
to section 30 of ACECA, the material
required by section 55 (2) of the ACECA
received pursuant to the notice could not
were not violated. The appellant was
be used in criminal proceedings against
required to explain the source of cash
the respondent (except in certain limited
deposits in his various bank accounts
circumstances including prosecution for
for the period under investigation. It was
perjury, or on a prosecution for another
the appellant who identified the assets
offence where the respondent had
in explanation of sources of cash flows
provided inconsistent evidence).
in his bank accounts. The appellant had
5. The Court’s primary role as a first an opportunity to explain the source of
appellate court was namely: to re- those cash assets.
evaluate, re-assess and re-analyze
9. An appellate court should be very
the evidence on the record and then
hesitant to assume jurisdiction in cases
determine whether the conclusions
where a litigant was challenging the
reached by the trial court were to stand
exercise of discretion by another court.
or not and give reasons either way.
In the instant matter, under section
6. The 10-month period from September 55 (5) and (6) of the ACECA, the Trial
2007 to June 2008 was within the 16- Court had discretion to decide if the

28
 BB Issue 45, April - June 2019

respondent had tendered evidence on already been sold to another person; it

balance of probability establishing the was improbable that the appellant would
appellant had unexplained assets. knowingly sell the same property to two
different persons. In contract law, when
10. The Trial Court had discretion to let
there was total failure of consideration,
the appellant satisfactorily explain the
refund of any monies paid under the
source of his assets. Interfering with
contract was due and owing. In the
an exercise of discretion on the part of
instant matter, if at all the sale did not go
the trial court would be tantamount to
through, there was no evidence of refund
directing a court on how to exercise
by the appellant of the cash installments
its powers, in essence restraining its
paid as deposit. The two people who
liberty. An appellate court could only
wanted to purchase the suit property
interfere with exercise of discretion if
were not called to testify and throw light
the appellant could show that in exercise
on the nature of the cash transactions
of its discretion:
with the appellant. The appellant neither
a. the court acted on a whim or that; addressed nor contradicted the specific
b. its decision was unreasonable and reasons given by the Trial Court for
c. it was made in violation of any law finding that the sale agreement was
or that; suspect and not authentic. There was no
d. it was plainly wrong and had caused reason to interfere with the evaluation of
undue prejudice to one party. evidence and findings of the Trial Court
11. In the instant appeal, the appellant had in relation to the sale agreement with the
not demonstrated that the Trial Court two people who wanted to purchase the
in permitting the appellant to testify suit property.
exercised its discretion under section
14. Section 362A of the United Kingdom’s
55 (5) and (6) of ACECA unreasonably,
Proceeds of Crime Act 2002 (POCA) on
whimsically or injudiciously or that an
unexplained wealth order was in pari
injustice had occurred or violation of
materia to section 55 (2) of the ACECA
any law had taken place. Accordingly,
which lay emphasis on assets being
there was no reason to interfere with
disproportionate to an individual’s
the exercise of the discretion by the Trial
known legitimate sources of income.
Court.
Section 55 (2) embodied the concept
12. The threshold for determining of income requirement guaranteed
unexplained assets was provided for whereby an individual’s assets should
in sections 2 and 55 (2) of the ACECA. be proportionate to his/her legitimate
A reading of section 2 and 55 (2) known source of income.
established the threshold for existence
15. The protection of the right to property
of unexplained assets to be:
had socio-political, moral, ethical,
a. there had to be set time period for economic and legal underpinning. The
the investigation of a person; right protected the sweat of the brow;
b. the person had to be reasonably it did not protect property acquired
suspected of corruption or through larceny, money laundering
economic crime; or proceeds of crime or any illegal
c. the person had to have assets enterprise. There was no violation of
whose value was disproportionate the right to property if an individual was
to his known sources of income requested to explain the source of his
at or around the period of assets that was disproportionate to his
investigation, and legitimate source of income.
d. there was no satisfactory
explanation for the 16. In the instant matter, the provisions of
disproportionate asset. sections 26 and 55 (2) of the ACECA
did not violate the right to property as
13. The evidence on record revealed that
enshrined in article 40 of the Constitution.
another offer was made by the appellant
In any event, constitutional protection
to sell the suit property which had
of property did not extend to property

29
 BB Issue 45, April - June 2019

that had unlawfully been acquired. If it explain his innocence. The presumption
were to be held that the requirement to of innocence was a fundamental right
explain violated the right to property that could not be displaced through a
under article 40 of the Constitution, notice to explain how assets had been
enforcement of a notice issued under acquired.
section 26 and the requirement to
20. In the instant matter, the appellant
explain the source of disproportionate
was given reasonable opportunity to
assets would be rendered nugatory.
explain his disproportionate assets.
17. The concept of unexplained assets and He gave evidence on oath and tabled
its forfeiture under sections 26 and 55 documentary evidence, however he
(2) of ACECA was neither founded on did not discharge his evidential burden
criminal proceedings nor conviction for to offer satisfactory explanation as
a criminal offence or economic crime. required under section 55 (2) of the
Sections 26 and 55 were non-conviction ACECA. A person with lawful income
based civil forfeiture provisions. The had no trouble proving the legal origin
sections were activated as an action of his or her assets. The law protected
in rem against the property itself. The only the rights of those who acquired
sections required the respondent to property by licit means. Those who
prove on balance of probability that an acquired property unlawfully could not
individual had assets disproportionate claim protection provided by the legal
to his/her legitimately known sources of system. It was in that context that article
income. Section 55 (2) made provision 40 (6) of the Constitution provided that
for evidentiary burden which was cast protection of the right to property did
upon the person under investigation not extend to property that had been
to provide satisfactory explanation to unlawfully acquired.
establish the legitimate origin of his/her
21. Whereas the appellant was under no
assets. That evidentiary burden was a
obligation to call any witnesses to
dynamic burden of proof requiring one
testify on his behalf, there were three
who was better able to prove a fact to be
crucial individuals that he ought to have
the one to prove it. Section 55 (2) was in
called to testify. Those individuals were
sync with section 112 of the Evidence
crucial to corroborate the appellant’s
Act.
testimony that the named individual
18. Under section 55 (2) of ACECA, the lawfully gave him cash in form of
theme in evidentiary burden in relation to friendly loan or installment towards
unexplained assets was to prove it or lose purchase of plot/houses.In civil as
it. In other words, an individual had the in criminal proceedings, the plaintiff
evidentiary burden to offer satisfactory (prosecution) was solely responsible for
explanation for legitimate acquisition deciding how to present its case and
of the asset or forfeit such asset. The choosing which witnesses to call. In the
cornerstone for forfeiture proceedings instant case, the respondent alone bore
of unexplained assets was having assets the responsibility of deciding whether
disproportionate to known legitimate a person would be called as a witness
source of income. Tied to that was the in its case. A court could not ordinarily
inability of an individual to satisfactorily direct a party to call any witness. Save in
explain the disproportionate assets. exceptional circumstance, a trial court
could not call any witness. In the instant
19. A forfeiture order under ACECA
case, the appellant’s contestation that
was brought against unexplained
the respondent should have called the
assets which was tainted property; if
three individuals as witnesses had no
legitimate acquisition of such property
legal foundation. In law, the appellant
was not satisfactorily explained, such
could not compel the respondent to
tainted property risked categorization
call a witness to support or rebut the
as property that had been unlawfully
respondent’s case; all that the respondent
acquired. The requirement to explain
was obligated to do was call credible and
assets was not a requirement for one to

30
 BB Issue 45, April - June 2019

material witnesses to prove its case to had to have and could exercise the rights
the required standard. usually afforded to a defendant in civil
proceedings. In the instant matter, the
22. The failure to call a particular witness
appellant did have opportunity to cross-
or voluntarily to produce documents
examine the respondent’s witnesses.
or objects in one’s possession was
conduct evidence. In principle, failure 24. The appellant did not offer satisfactory
by a party to call a material witnesses explanation as to the source of admitted
could be interpreted as an indication of sum of Ksh. 15.5 million from the alleged
knowledge that his opponent’s evidence Sudanese National; the source of Ksh.
was true, or at least that the tenor of the 1,000,000/= allegedly for community
evidence withheld would be unfavorable electricity project; the source of Ksh.
to his cause. An inference would not be 10.9 million and the source of Ksh.
allowed if a party introduced evidence 9.5 million for sale of properties. The
explaining the reasons for his conduct contestation that the Trial Court erred
and reason for failure to call a witness in applying and interpreting sections
and if the evidence was truly unavailable 26 and 55 of ACECA had no merit. The
or shown to be immaterial. Trial Court did not err in holding that
the admitted cash monies received were
23. In the instant case, section 55 (4) of the
part of the appellant’s unexplained assets
ACECA stipulated that the person whose
that should be paid over to the Kenya
assets were in question had to be afforded
Government.
the opportunity to cross-examine any
witness called and to challenge any Appeal dismissed, no order as to costs.
evidence adduced by the respondent and,

Court of Appeal upholds High Court’s decision ordering the Non-

Governmental Organizations Co-ordination Board to Register Lesbian,
Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Community
Rights Group
Non-Governmental Organizations Co-Ordination Board v EG & 5 others [2019] KLR - CAK
Civil Appeal 145 of 2015
Court of Appeal at Nairobi
P N Waki, M K Koome, R N Nambuye, D K Musinga & M S Asike-Makhandia, JJA
March 22, 2019.
Reported by Kakai Toili

Constitutional Law-interpretation of freedom of association-where a person sought to

constitutional provisions-interpretation of article register a non-governmental organization(NGO)-
36 of the Constitution-whether members of the where the Executive Director of the Non-
lesbians, gays, bisexuals, trans genders, intersex Governmental Organizations Co-ordination
and queer community were ‘persons’ as used in Board refused to approve the reservation of
article 36 of the Constitution on the freedom of the name of a proposed NGO-where the Non-
association-Constitution of Kenya, 2010, article Governmental Organizations Co-ordination
27(4), 36& 259 Board refused to register the said organization-
procedure to be followed an aggrieved party-
Civil Practice and Procedure-suits-institution whether an aggrieved party could appeal against
of suits-where the Constitution or an Act of a decision of the Executive Director of Non-
Parliament provided for a procedure of resolving Governmental Organizations Co-ordination
a dispute-whether one could file a suit in court Board to refuse to approve a proposed name of
where there was a procedure for redress presented an NGO to the Minister in charge-Constitution
by the Constitution or an Act of Parliament of Kenya, 2010, article 24,27(4), 36 & 259; Non-
before exhausting the procedure provided- Fair Governmental Organizations Co-ordination
Administrative Actions Act, section 9 (4) Act, section 10, 14 & 19; Non-Governmental
Constitutional Law-fundamental rights and Organizations Coordination Regulations,
freedoms- freedom of association –limitation of regulation 8 & 9

31
 BB Issue 45, April - June 2019

Constitutional Law-fundamental rights and where a person was aggrieved by the

freedoms-freedom of association–limitation of decision of the Non-Governmental
freedom of association-under what circumstances Organizations Co-ordination Board
could the right to form, join and participate in not to register a non-governmental
non-governmental organizations, associations organization?
or groups be limited-whether a person could be iii. Whether an aggrieved party could appeal
denied fundamental rights and freedoms based against a decision of the Executive
on his or her sexual orientation-Constitution of Director of Non-Governmental
Kenya, 2010, article 24,27(4), 36 & 259 Organizations Co-ordination Board to
refuse to approve a proposed name of a
Criminal Law–unnatural offences and indecent
non-governmental organization to the
practices between males-elements-whether it was
Minister in charge.
an offence for one to be a gay or a lesbian without
iv. Whether members of the Lesbians
more action- Penal Code, section 162 & 165
Gays Bisexuals Transgender Intersex
Constitutional Law-fundamental rights and Queer(LGBTIQ) community were
freedoms-human dignity-concept of dignity- ‘persons’ as used in article 36 of
what was the nature of the concept of dignity in the Constitution on the freedom of
human rights- Universal Declaration of Human association.
Rights, article 1 v. Whether it was an offence for one to be
Jurisdiction–jurisdiction of the Court of Appeal – a gay or a lesbian without more action as
jurisdiction to interfere with findings of fact made provided for in sections 162,163 and 165
by the High Court-what were the circumstances of the Penal Code.
in which the Court of Appeal could interfere with vi. Under what circumstances could the
the findings of fact by the High Court right to form, join and participate in non-
governmental organizations, associations
Brief Facts or groups be limited?
The 1st respondent floated three names vii. What was the nature of the concept of
under which he sought to register a non- dignity in human rights?
governmental organization (proposed NGO) viii. Whether a person could be denied
with the appellant, seeking to address human fundamental rights and freedoms based
rights abuses and violations suffered by the on his or her sexual orientation.
Lesbian, Gay, Bisexual, Transgender, Intersex ix. What were the circumstances in which
and Queer persons (LGBTIQ) in Kenya and the Court of Appeal could interfere with
which request was rejected by the appellant’s the findings of fact by the High Court?
Executive Director (Director) precipitating Held
the 1st respondent to file a petition at the
Per P N Waki, JA (concurring)
High Court on the ground that his right to
freedom of association, dignity, equality and 1. The instant matter was not about
right not to be discriminated against had been the family unit, marriage or morals,
violated among other grounds. The High legalization of same sex relationships, or
Court allowed the petition and held that the the constitutionality of sections 162, 163
right to equality before the law would not and 165 of the Penal Code. Indeed, the
be advanced if people were denied the right latter issue was pending determination
not to be discriminated against based on before the High Court, and the less said
their sexual orientation. The appellant was about it the better.
aggrieved by the High Court’s decision and 2. The Constitution had ring-fenced its
thus filed the instant appeal. purpose and the manner it ought to be
Issues construed. After declaring its supremacy
i. Whether one could file a suit in court in article 2, the Constitution proceeded
where there was a procedure for redress in article 10 to bind everyone who
presented by the Constitution or an Act applied and interpreted it or any other
of Parliament before exhausting the law or made public policy, to the national
procedure provided. values spelt out therein including:
ii. What was the procedure to be followed human dignity, equity, social justice,
inclusiveness, equality, human rights,

32
 BB Issue 45, April - June 2019

non-discrimination and protection of no vote at any meeting of the Board.

the marginalized. The Board could make decisions on
cancellation of registration certificates
3. The principles of the rule of law,
and on entry permits. On all the matters
participation of the people, equity,
under part III of the Non-Governmental
inclusiveness, equality, human rights,
Organizations Co-ordination Act (Act)
transparency and accountability were
on registration of non-governmental
binding. The Constitution opened up
organizations, where the Board made
further space for application of other
a decision, an appeal by the aggrieved
principles and values obtaining in the
organization went to the Minister under
general rules of international law and
section 19 of the Act on appeals.
the international instruments Kenya
had ratified, such as, the Universal 7. There was no application neither made
Declaration on Human Rights, the under part III of the Act on registration
International Covenant on Civil and of non-governmental organizations nor
Political Rights (ICCPR), and the was a decision made by the Board. The
International Covenant on Economic, Board as constituted under section 4
Social and Political Rights (ICESCR). of the Act never met, the application as
detailed in section 10 of the Act was never
4. The Constitution laid out an expansive
submitted. Consequently, one could
Bill of Rights for the purpose of
not talk about refusal of registration
recognizing and protecting human rights
under section 14 of the Act on refusal
and fundamental freedoms in order to
of registration which would attract the
preserve the dignity of individuals and
procedure of appeal under section 19 of
communities, promote social justice
the Act.
and the realization of the potential of
all human beings’. In articles 20 (3) and 8. All that happened in the instant matter
(4), it gave an edict to the courts as they was an administrative procedure that was
applied the Bill of Rights to develop provided for in the Non-Governmental
the law where it did not give effect to a Organizations Coordination
right; adopt the interpretation that most Regulations, 1992 (Regulations),
favoured the enforcement of a right which had to take place long before
or fundamental freedom and promote commencement of an application for
the values that underlay an open and registration under part III of the Act.
democratic society based on human The procedure was in regulation 8 of
dignity, equality, equity, freedom and the the Regulations and was referred to as
spirit, purport and objects of the Bill of approval of names. Without surmounting
Rights. that step, there would be no application
for registration under section 10 (2) of
5. In article 259, the Constitution
the Act, as provided for in regulation 9
commanded the manner in which it
on application for registration.
should be interpreted. It also demanded
that every provision of the Constitution 9. The application for approval of a name
be construed according to the doctrine was made to the Director and it was
of interpretation that the law was always the Director who made the decision to
speaking. The Constitution had to be reserve or not to reserve it. The Board
interpreted in a manner that eschewed had nothing to do with that process and
formalism, in favour of the purposive the rules did not provide for an appeal
approach and in a holistic manner within to the Board. The Board came in under
its context and in its spirit. part III of the Act which was covered in
regulation 9 of the Regulations. Without
6. Where there was a procedure for redress
a decision of the Board, there could be
of any particular grievance presented by
no appeal to the Minister.
the Constitution or an Act of Parliament,
that procedure should be exhausted 10. The decision in question was not the
before resort could be had to the courts. decision contemplated in section 19
The Director was ex officio and had of the Act, on which appeal lay to the

33
 BB Issue 45, April - June 2019

Minister. The intention of the law in contravened it. Convicting such persons
section 19 of the Act was for an appeal before they contravened the law would
to lie in respect of substantive decisions be retrogressive.
such as refusal of registration or
14. According to the proposed NGO’s
cancellation of registration. Section 19
objectives, the 1st respondent intended to
of the Act was clear that an appeal only
register the NGO to among other things
lay to the Minister when the Board had
conduct accurate fact finding, urgent
made a decision.
action, research and documentation,
11. As the Board did not make the decision impartial reporting, effective use of the
in terms of the Act, there was no media, strategic litigation and targeted
appeal provided for the 1st respondent. advocacy in partnership with local
Moreover, there was nothing in the human rights groups on human rights
Regulations that provided that an issues relevant to the gay and lesbian
aggrieved applicant could appeal a communities living in Kenya. On the
decision made in terms of the Regulations face of it, there was nothing unlawful or
to the Minister. As such, there was no criminal about such objectives. However,
statutory prescribed internal remedy, they never reached the stage of proper
which was prescribed or available to the consideration by the Board because the
1st respondent. The Court could not main gate to the boardroom was locked.
close its doors on the 1st respondent for
15. Article 36 of the Constitution granted
failure to exhaust an internal remedy that
every person the right to form
did not apply to his circumstances. The
an association of any kind. It also
grounds upon which the reservation of
provided that an application to form
name was rejected were top-heavy with
an association could only be refused on
constitutional questions which deserved
reasonable grounds and no person could
the interpretation of the High Court.
be compelled to join an association. That
12. The people in Kenya who answered to was the breadth of the right of freedom
any of the descriptions in the acronym of association as provided for in the
LBGTIQ, were persons. Article 36 of Constitution. It covered every person
the Constitution covered the persons in and any kind of association. It could only
that group. Like everyone else, they had be limited in terms of law and only to the
a right to freedom of association which extent that the limitation was reasonable
included the right to form an association and justifiable in an open and democratic
of any kind. That was the literal wording society based on human dignity, equality
of article 36 (1) which had no hidden and freedom. An individual human
meaning. Article 260 of the Constitution being, regardless of his or her gender or
provided further clarity to the definition sexual orientation, was a person for the
of person. Construing ‘person’ to refer purposes of the Constitution.
only to the sane and law abiding people
16. The Constitution extended the
would be unduly stretching the ordinary
definition of ‘person’ from only the
meaning of the words used in the
natural, biological human being to
Constitution.
include legal persons. Neither article 36
13. The Penal Code did not criminalize the of the Constitution nor the definition
persons answering to the description of “person” in article 260 of the
LBGTIQ qua such persons. What it Constitution created different classes
provided for were specific offences, of persons. There was nothing that
more specifically, unnatural offences, indicated that the Constitution, when
attempts to commit unnatural offences, referring to ‘person’, intended to create
and indecent practices between males. different classes of persons in terms of
Those were sections 162, 163 and article 36 based on sexual orientation.
165 of the Penal Code, respectively. Moreover, articles 20(3) and (4) of the
Like everyone else, LBGTIQ persons Constitution provided that a court adopt
were subject to the law and would the interpretation that most favoured the
be subjected to its sanctions if they enforcement of a right or fundamental

34
 BB Issue 45, April - June 2019

freedom and promoted the values that 19. Arguments on morality, religion, culture
underlay an open and democratic society were none issues in the instant matter as
based on human dignity, equality, equity they were based on assumptions that if
and freedom and the spirit, purport and the proposed NGO were to be registered,
objects of the Bill of Rights. it would run counter to religious,
cultural and moral values of Kenya. The
17. Article 20 (1) of the Constitution provided
Court did not wish to delve on matters
that the Bill of Rights applied to all
of morality because what formed the
persons. Article 259 of the Constitution
morality of Kenya was basically what
provided that the Constitution had to be
was spelt out in various articles of the
interpreted in a manner that advanced
Constitution especially article 10 of the
human rights and fundamental
Constitution.
freedoms. The term “every person” in
article 36 of the Constitution properly 20. The Act and the Regulations had not
construed did not exclude homosexual provided an internal appeal mechanism
person and the 1st respondent therefore for applicants to follow when a name
fell within the ambit of article 36 which was refused for reservation to register a
guaranteed to all persons the right to non-governmental organization(NGO).
freedom of association. The right to If certainly there existed a procedure,
freedom of association was also expressly the Board should have advised the 1st
recognised in international covenants to respondent to place an appeal before
which Kenya was a party. the Board or the Minister; since the
procedure provided was for refusal of a
18. [Obiter Dicta] The issue of persons in the
registration and not a name.
society who answer to the description
lesbian, bisexual, gay, transsexual, 21. The Board having made up its mind that
intersex and queer (LBGTIQ) is rarely the proposed NGO did not meet the
discussed in public. The reasons for such test, sending the 1st respondent back to
coyness vary. But it cannot be doubted exhaust an appeal where the procedure
that it is an emotive issue. The extensive was not even set up, where the Board
and passionate submissions made in had strongly expressed its prejudicial
this matter before the High Court, view against the proposed NGO would
and before us, is testimony to the deep be an exercise in futility. Courts were
rooted emotions that the issue can easily the ultimate bastion and custodian
arouse. It is possible for the country to of the Constitution. The matters of
close its eyes and hearts and pretend that LGBTIQ’s right to associate invoked
it has no significant share of the people the interpretation of the Constitution,
described as LGBTIQ. But that would for determination by court. The matters
be living in denial. We are no longer a raised transcended a mere administrative
closed society, but fast moving towards act and touched on constitutional
the ‘open and democratic society based interpretation by court.
on human dignity, equality, equity,
22. It was not an offence for one to be gay
and freedom’ which the Constitution
or lesbian. What was detestable and
envisages. We must therefore, as a
an offence was engaging in carnal
nation, look at ourselves in the mirror. It
knowledge against the order of nature.
will then become apparent that the time
In other words even if somebody stood
has come for the peoples’ representatives
on a high platform and declared that
in Parliament, the Executive, County
he or she was a gay or lesbian without
Assemblies, Religious Organizations,
more, they would not have committed
the media, and the general populace, to
an offence contrary to the provisions
engage in honest and open discussions
of section 162, 163 and 165 of the
over these human beings. In the
Penal Code which criminalised carnal
meantime, I will not “.. be the first to throw
knowledge against the order of nature.
a stone at her [LGBTIQ]”.
23. Anybody was capable of committing
Per Koome, JA (concurring)
unnatural offences; attempting to

35
 BB Issue 45, April - June 2019

commit unnatural offences and indecent who were heterosexuals and they did
practices between males under section not engage in sex of any kind out of
162, 163 and 165 of the Penal Code choice, it was also possible there were
respectively. They could be gays, lesbians homosexuals or LGBTIQ people who
(LGBTIQ) and even heterosexuals. did not engage in sex also out of choice.
Reported cases abound where persons
27. As a defender of the human rights of the
who were not LGBTIQ had been
gay and lesbian community in Kenya, the
charged and convicted of heinous
1st respondent had a right, as stated in
offences of rape, defilement and other
the UN Declaration on Human Rights
sexual offences including beastiality. It
defenders and in accordance with the
was not fair to generalize and stigmatize
Constitution to form, join and participate
LGBTIQ persons as the only ones who
in non- governmental organizations,
were prone or predisposed to commit
associations or groups.
the said offences. Every offender should
be dwelt with as an individual. 28. It was arbitrary to speculate and
categorize LGBTIQ as persons who
24. If a homosexual person committed an
had the propensity to destroy a society
offence, he would be arrested and dealt
by contravening the provisions of the
with according to the law, so was a
Constitution or the Penal Code, or as
heterosexual. Section 162, 163 and 165
a group bent on ruining the institution
of the Penal Code were neither enacted
of marriage or culture. Overturning the
to criminalize homosexuality nor the
impugned judgment would undermine
state of being homosexual otherwise it
the gains made over the years in
would have stated so. Those offences
promoting, protecting and building
in the Penal Code could be committed
a culture of respect and tolerance of
by anybody their sexual orientation
differences that abound in the society.
notwithstanding and to say it was only
gays and lesbians who committed them 29. Allowing the appeal would be stereotyping
was to subject them to differential people and expecting everybody to be
treatment. the same size fits all. Kenyans were made
from the same cloth but cut in different
25. Freedom of association where citizens
shapes and sizes. The Constitution was
were free to assemble and express their
the equalizer, it allowed everybody to be
opinions in politics, religion and art was
and if some people were sinners, God
universally accepted as vital for a pluralist
would deal with them, no one could
and open democratic society. The
judge for Him. The Constitution was the
Board did not present any evidence to
ultimate guide and liberator from the
demonstrate that the evil that abound in
shackles of all kinds of discrimination.
the society, from corruption, to murders,
Its bold provisions also domesticated the
rapes including within the families were
international human rights law which
brought about by LGBTIQ. Nor did the
could be called to aid in the event of a
Board provide evidence to show persons
gap within Kenya’s own indigenous and
who committed offences under sections
rich jurisprudence.
162, 163, and 165 of the Penal Code were
LGBTIQ. Per Asike-Makhandia, JA (concurring)
26. The institution of marriage could not 30. Article 1 of the Universal Declaration of
be threatened by an association of Human Rights (UDHR) was in the context
LGBTIQ; marriage was anchored in the of the instant case apt. It recognized that
Constitution and it was an institution all human beings were born free and
that one entered out of choice. Moreover equal in dignity. Thus, stripping someone
there were many people who entered of their dignity stripped off their essence
it and left it, not because they were of being a human being. Dignity since
LGBTIQ; others entered marriage and the beginning of the era of human rights
choose not to procreate and others had become the foundation of all other
did not enter marriage at all and they rights. It amounted to the recognition
were not LGBTIQ. There were people that the sole purpose for protecting,

36
 BB Issue 45, April - June 2019

promoting and fulfilling human rights basis with other associations through
was the acknowledgement that all human registration. The Minister did not have
beings had to be accorded respect. the power to enforce the Constitution
or interpret whether any conduct was
31. The concept of dignity for all men and
in violation of the Constitution. The
women involved the development of
respondent, in any event, was entitled
opportunities which allowed people
to seek remedy that was efficacious and
to realize full human potential within
pursuing an appeal to the Minister would
positive social relationships. It was the
not have afforded the 1st respondent
quest for dignity, equality and equal
such remedy. Therefore the petition was
recognition and protection before the
properly before the High Court.
law that made the 1st respondent to file
the petition. 36. The instant appeal was not about sexual
orientation and whether or not sexual
32. Pursuant to rule 29(1) of the Rules
orientation was innate or not. The
of the Court, an appeal to the Court
High Court did not get into that arena
from a trial by the High Court was by
of determining whether or not being
way of a retrial except that the Court
LGBTIQ was an innate attribute. The
had not had the opportunity of seeing
instant Court did not propose to get in
and hearing the witnesses. Just like
there as well.
in a retrial, the appellate court was
required to reconsider the evidence on 37. Article 36 of the Constitution
record, evaluate itself and draw its own guaranteed freedom of association,
independent conclusions. it extended to every person’s right to
form an association of any kind. That
33. The applicable provision was regulation
right could only be limited in terms of
8 of the Regulations on approval of names
law to the extent that the limitation was
as opposed to part III of the Act that
reasonable and justifiable in an open and
dealt with the process and requirements
democratic society as provided for in
for registration of NGOs. That was
article 24(1) of the Constitution. Subject
because the 1st respondent did not get
to the limitations, a person’s rights under
an opportunity to make an application
article 36 extended to all human beings
for registration of his proposed NGO
without discrimination, whatever their
to the Board. All he did was to apply to
ethnicity, religion, sex, place of origin or
reserve the name of his proposed NGO.
any other status such as age, disability,
34. The Board placed reliance on regulation health status, sexual orientation or
8(3)(b)(ii) of the Regulations and advised gender identity.
the 1st respondent that the names sought
38. Article 36 extended to all individuals and
to be reserved for the registration of the
juristic persons and sexual orientation
proposed NGO were not acceptable in
did not in any way bar an individual
the opinion of the Director. There was
from exercising his right under article
nothing in the Regulations that provided
36 of the Constitution. The State had
an aggrieved applicant a right to appeal a
an obligation to refrain from interfering
decision made in terms of regulation 8(3)
with the formation of associations
(b)(ii) for refusal of a name by which an
and there had to be mechanisms that
organization could be registered.
allowed citizens to join without State
35. Article 165 of the Constitution provided interference in associations to enable
that the High Court had the jurisdiction them attain various ends.
to interpret the Constitution and
39. By refusing to accept the names for
determine a claim for the enforcement
the proposed NGO, the appellant
of fundamental rights and freedoms.
violated the 1st respondent’s freedom of
The appellant’s officers advised the 1st
association. It did not matter the views
respondent to seek the guidance of the
of the appellant that the name of the
court on whether the appellant could
association was not desirable. In a society
allow LGBTIQ associations to enjoy
as diverse as Kenya, there was need for
Government recognition on an equal

37
 BB Issue 45, April - June 2019

tolerance. The preambular provisions 44. The Bill of Rights was not meant to
in the Constitution acknowledged the protect only the individuals that were
supremacy of the Almighty God of all liked and left unprotected those found
creation. morally objectionable or reprehensible.
In any case, article 10 of the Constitution
40. The Constitution recognized the
obliged the Court to protect the
right of persons to profess religious
marginalized.
beliefs and to articulate such beliefs
including the belief that homosexuality 45. The appellant had not been able to prove
was a taboo that violated the religious that the alleged objects of the proposed
teachings. However, the Constitution NGO were not in accordance with the
did not permit the people who held law. Accordingly, the 1st respondent’s
such beliefs to trod on those who did right to form an association could only be
not or subscribed to a different way limited within the parameters provided
of life. They too had the right not to for in article 24 of the Constitution. The
hold such religious beliefs. It could not provisions of section 162 and 165 of the
therefore be proper to limit the freedom Penal Code did not criminalize the state
of association on the basis of popular of being homosexual but sexual acts that
opinion based on certain religious beliefs were against the order of nature. Section
that the Board believed amounted to 162 and 165 of the Penal Code did not
moral and religious convictions of most prevent people to form an association
Kenyans. The Bible and Quran verses based on their sexual orientation.
as well as the studies on homosexuality
46. The appellants had misapprehended the
relied on by the appellant would not help
law in determining that sections 162
its case. Religious texts were neither a
and 165 of the Penal Code criminalised
source of law in Kenya nor formed the
gays and lesbians’ liaisons and therefore
basis for denying fundamental rights and
should not allow such persons to
obligations.
register an association. There was
41. The decision of the appellant to refuse to no connection between the activities
accept the proposed names of the NGO, prohibited by section 162 and 165 and
amounted more to a statement of dislike the request by the 1st respondent to
and disapproval of homosexuals rather register an LGBTIQ organization that
than a tool to further any substantial would promote the rights of people
public interest. A constitution was to who belonged to that community. There
some extent founded on morals and was no law that limited the freedom of
convictions of a people, however a association. Therefore there was no need
constitution was not founded on division to undertake an inquiry on the remaining
and exclusion. criteria established under article 24 of
the Constitution.
42. The instant case did not concern in any
way article 45 of the Constitution. It had 47. Article 27 (4) of the Constitution did not
to be understood that the 1st respondent include sexual orientation as a prohibited
only sought to exercise his freedom to ground of discrimination. The word
associate in an organization recognised ‘including’ in article 27(4) was not
by law. exhaustive of the grounds listed there.
Article 259(4) (b) of the Constitution
43. In any democratic society, there would
defined the word ‘including’ as meaning
always be a marginalized group incapable
included, but was not limited to. In the
of protecting their rights through the
circumstances, the High Court was not
democratic process. Once a society
guided by the South African Constitution
understood there were people, whose
that included sexual orientation as
sexual orientation was different from the
a prohibited ground. A purposive
norm and human rights belonged to all
interpretation of the grounds listed in
persons by virtue of them being human
article 27(4) was to the effect that they
beings, it would be easier to respect their
were not exhaustive. The Court would
fundamental rights and freedoms.
therefore have to determine on a case to

38
 BB Issue 45, April - June 2019

case basis other grounds that could form therefore functions discharged under
part of article 27(4) whenever called section 5 of the Act on behalf of the
upon to. Board by the Director in his capacity as
the executive officer of the Board. They
Per Nambuye, JA (dissenting)
were therefore amenable to the section
1. The mandate of the Court was to re- 19(1) (2) & (3) of the Act procedures.
appraise; re-assess and re-analyze the
5. The words ‘any organization’ in section
evidence on record and arrive at its
19 of the Act referred to organizations
own conclusions on the matter and
that fell for registration under the Act
give reasons either way. The Court
namely NGOs. What was on record
should be slow in moving to interfere
was the 1st respondents request for the
with a finding of fact by a trial court
registration of an NGO, that therefore
unless it was satisfied that it was not
fell into the definition in section 2 of
based on evidence, or it was based on a
the Act. What were in contest were the
misapprehension of the evidence or the
names and objectives of the proposed
trial court had been shown demonstrably
NGO. There was therefore nothing
to have acted on a wrong principle in
constitutional in issue as at that point
reaching the finding it did.
in time. The constitutional issues
2. Jurisdiction was everything; without only arose in the petition after the 1st
jurisdiction, a court had no mandate to respondent’s request for the registration
proceed further with the determination of the proposed NGO was turned down
of any matter before it. Where the issue severally by the appellant.
of jurisdiction was raised, it had to be
6. The genesis of the 1st respondent’s
determined first and once a court came to
petition was a purely administrative
the conclusion that it had no jurisdiction,
action executed by the Director on behalf
it had to down its tools. Jurisdiction was
of the Board declining registration of
donated either by a charter, constitution
the 1st respondent’s proposed NGO
or legislation. Therefore, parties had
with no constitutional underpinnings
no mandate to confer jurisdiction on a
at that point in time. It was therefore
court where non-existed.
amenable to section 19 of the Act which
3. Section 14 of the Act was the procedures ought to have been invoked
substantive provision governing refusal and exhausted before seeking the
of registration of an NGO. It only talked court’s intervention, notwithstanding,
of three instances when the Board could the undisputed constitutional mandate
refuse registration. Regulation 8(3) of bestowed on the High Court. It was
the Regulations dealing with refusal of therefore tainted and had the High Court
registration of an NGO under the Act properly construed and applied the cited
was the one whose applicability was provisions, it would have downed its
interrogated by the Board. There was no tools on account of the petition being
other provision donating power to the premature, rerouted the 1st respondent
Director to act under section 14. to exhaust the procedures under section
4. Absence of a specific provision in 19 of the Act before seeking a judicial
the Act donating distinct functions pronouncement on the constitutional
to the Director as opposed to those issues raised in the petition.
mandated to the Board on the one hand, 7. The issue of the appellant’s failure to
and absence of regulation(s) under notify the 1st respondent of a right of
which the Board, could discharge its appeal upon rejection of his request for
functions under section 14 of the Act, registration of the proposed NGO did
independently of that donated to the not arise as none was provided for either
Director under regulation 8(3) of the in the Act or in the Regulations.
Regulations, the only plausible inference
8. The High Court bore in mind the
that could be drawn was that, the action
correct threshold in the interpretation
of the Director under regulation 8(3) fell
of the constitutional provisions they
under section 14 of the Act. They were

39
 BB Issue 45, April - June 2019

were called upon to interpret. Issues as proceeding both before the High Court
to whether being an LGBTIQ was innate and the Court.
or otherwise was never interrogated
12. Kenya as a society, if it were to recognize
by the High Court, therefore the Court
that LGBTIQ persons were human
steered clear of it. However, the meaning
beings. However, reprehensible the
to be ascribed to the word “person”
Board found their sexual orientation,
should be as defined in article 260 of
it would be obligated to accord them
the Constitution. All human beings,
human rights which were guaranteed by
subject to the Kenyan constitutional
the Constitution by virtue of their being
prescriptions were entitled to protection
human beings in order to protect their
of the constitutional guarantees
dignity. Such according of human rights
enshrined therein but subject to
had to be within the limits permitted
limitations provided for under the law.
for either by the Constitution itself for
9. Article 36 of the Constitution enshrined the law. Such a protection fell for rights
the right to freedom of association; the either crystalized or entrenched in the
same was guaranteed to every person. It Constitution or laws made thereunder.
was a right to form, join and participate
13. The right of association guaranteed to
in the activities of an association of
the 1st respondent under article 36 of
any kind whose registration could not
the Constitution was not absolute, it
constitutionally be refused, rejected or
could be limited. The test for limitation
withheld arbitrarily or unreasonably,
being;
save that such withdrawal or withholding
of registration was subject to the right of a. that the limitation was by law,
fair hearing. b. that such limitation though by law had
to be reasonable and justifiable in an
10. Articles 20 of the UDHR and 22 of the open and democratic society based on
ICCPR were properly applied to the human dignity, equality and freedom,
proceedings pursuant to the provision of c. that such limitations had to take into
article 2(5) and 2(6) of the Constitution consideration all the relevant factors
as Kenya had ratified both of them. The namely the nature of the right, purpose
construction and application of those of the limitation and the nature and
provisions as carried out by the High extent of the limitation,
Court was in order as those instruments d. the need to ensure that the enjoyment
also provided that they applied to all of rights and fundamental freedoms
persons. The word “person” used in the by an individual did not prejudice the
said instrument carried the meaning right and fundamental freedoms of
ascribed to it in article 260 of the others,
Constitution. The right to associate was e. the need to examine closely the
not selective and it applied to everyone, relation between the limitation and
save that the enjoyment of the same was its purpose, and whether there were
subject to the limitation provided for in less restrictive means of achieving that
the law of the land. purpose,
11. The duty of the Board was to act in f. in the case of the limitation by statute,
accordance with the constitutional there had to be an express intention
mandate bestowed upon it; what the to limit that right or fundamental
1st respondent sought to champion freedom and the nature and extent
through the proposed NGO was the of the limitation. There was also the
right to associate and not the right to need for the provision to be clear
champion criminal activities. The High and specific about the right and or
Court ought to have made a definitive freedom to be limited and the nature
determination as to whether the acts and extent of such limitation. Further
provided for in sections 162,163 and such limitation had to ensure that
165 of the Penal Code fell into the sexual there was no derogation from the core
orientation category or not because and essential content of the legislation.
that had been the borne throughout the There was also an obligation placed on

40
 BB Issue 45, April - June 2019

the party wishing to limit the right to were outlawed under the Penal Code.
sufficiently demonstrate to the court
17. The right of non-discrimination
or tribunal or some other authority
enshrined in article 27(4) of the
that the requirement of article 24 of
Constitution applied to everyone and
the Constitution had been complied
although sexual orientation was not
with.
explicitly indicated therein as a ground
14. Sexual orientation was not one of for non-discrimination, it could be read
the exceptions to limitation of rights into those other categories by applying
under article 27(4) of the Constitution. the word ‘includes’.
Although, the guiding principle on
interpretation was that it should 18. The word “includes”, in article 27(4) of
favour the enjoyment of the right, such the Constitution could be construed and
enjoyment had to be within the limits applied to include sexual orientation
permissible in law. That meant that non- as one of the categories for non-
discrimination on account of sexual discrimination; save that, that was
orientation could only be accorded and subject to the High Court making a
enjoyed on condition that what sexual definitive finding that sexual orientation,
orientation meant and what people who on the basis of which they had crystalized
believed in it, practiced, did not fall within the right of association in favour of the
the acts prohibited in sections 162, 163 LGBTIQ persons in Kenya, through a
and 165 of the Penal Code. Enjoyment judicial pronouncement as one of the
of the right of non-discrimination on elements for non-discrimination under
account of sexual orientation, would article 27(4) did not fall into the category
only be dependent on a clear definition of acts prohibited under sections 162,
as to whether sexual orientation fell 163 and 165 of the Penal Code, namely,
into the category of conduct against the conduct against the order of nature.
order of nature legislated against in the 19. Protection of a right or fundamental
aforesaid Penal Code provisions. freedom was dependent on either an
15. The High Court failed to distill the values entrenchment of such a right in the
of the freedom of religion guaranteed in Constitution or through legislation.
article 32 of the Constitution and how The Constitution itself had provided
those were either distinct or interfaced for methods for such an entrenchment.
with those enshrined in article 10 of the Articles 255 (2) of the Constitution
Constitution before discounting their made provision for an amendment to
application to the issues in controversy. the Constitution through a referendum,
article 256 of the Constitution through
16. The High Court laid basis that the legislation and article 257 of the
provision on the interpretation of Constitution through popular initiative.
the Constitution, advocated for an None of those covered a judicial
interpretation that favoured the pronouncement. The issue as to whether
enjoyment of the right or fundamental sexual orientation fell into the elements
freedom sought to be protected or for non-discrimination enshrined in
enforced. It was however, necessary for article 27(4) of the Constitution had to
the High Court to provide a basis for be put to the Kenyan people through
holding that the persons whose rights any of the stated methods with a view
the 1st respondent sought to champion to entrenching it in the Constitution
through the proposed NGO, fell into in order for it to crystalize the right
the category of the vulnerable within accorded to the 1st respondent by the
the context of the Kenyan society. In impugned judgment. Short of that, it
the absence of such demonstration, the only amounted to an aspirational right.
appellant could not be faulted for holding
the view that the LGBTIQ group did not Per D K Musinga, JA(dissenting)
fall into the category of the vulnerable in 20. The rejection of the proposed name
the context of the Kenyan society, but in was not purely administrative and was
the context of persons whose attributes a Board decision contemplated under

41
 BB Issue 45, April - June 2019

part III, section 19(1) of the Act, against 1st respondent stated that it was a legal
which an appeal lay to the Minister. Part officer, who suggested that he should
III of the Act dealt with registration seek guidance from the court on the
and licensing of NGOs. Part III of the issue of registration. But even if it was the
Regulations under which regulation Board that had so advised, such advice
8(3)(b) fell dealt with registration and could not contravene the provisions of
exemption from registration of NGOs. the Act or confer jurisdiction upon the
The first step towards registration of an High Court, until the prescribed internal
NGO was submission of its proposed dispute resolution mechanisms had been
name to the Director who was a member exhausted.
of the Board and by virtue of section 5(1)
24. In the matter that was before the High
of the Act was responsible for the day to
Court, the 1st respondent did not seek
day management of the business of the
any exemption from the requirement
Board. In rejecting the proposed name
to first exhaust the internal dispute
the Director did so for and on behalf of
resolution mechanism provided under
the Board. That was why the Board was
the Act. The High Court, without any
sued.
application, assumed jurisdiction on the
21. Section 10(2) of the Act, which fell under basis that the issues raised in the petition
part III, stipulated that applications were of significant public importance
for registration of proposed NGOs be requiring authoritative judicial guidance.
submitted to the Director, also known That could as well have been the case,
as the executive director of the Bureau, but it did not mean that the statutory
which was defined as the executive provisions for challenging the Board’s
directorate of the Board. Section 19(1) decision could be disregarded with
of the Act required any person aggrieved impunity.
by a Board decision under part III of
25. To the extent that the 1st respondent was
the Act, which was about registration
well aware of, but did not comply with the
and licensing of NGOs, to appeal to the
mandatory provisions of section 19(1) of
Minister. Part III of the Act had to be read
the Act which required him to appeal the
together with part III of the Regulations
Board’s decision to the Minister, whose
which also dealt with registration and
decision was then appealable to the High
exemption from registration of NGOs.
Court as stipulated under section 19(3)
22. Regulations and statutory rules, which of the Act, the High Court should have
were part of statutory instruments directed the applicant to first exhaust
as defined under section 2 of the the statutory remedy. In that regard,
Statutory Instruments Act, 2013, the High Court had no jurisdiction to
were the most common form of entertain the petition. A decision arrived
delegated legislation. Regulations at by a court that lacked jurisdiction
and/or statutory rules contained was a nullity, even if the court would
many administrative details that were have arrived at the same decision had it
necessary for operationalisation of an determined the dispute procedurally and
Act of Parliament. The Interpretation at the right time.
and General Provisions Act required all
26. Section 162 of the Penal Code addressed
statutory instruments to conform to the
itself to unnatural offences and
Act in regard to construction, application
prescribed lengthy custodial sentences
and interpretation. Therefore, the
to any person who committed such
High Court erred in holding that the
an offence. Section 163 of the Penal
1st respondent could not appeal to the
Code criminalized attempts to commit
Minister since the Regulations did not
unnatural offences while section 165
prescribe any internal remedy.
of the Penal Code prohibited indecent
23. There was no evidence that the Board practices between males. The appellant’s
ever advised the 1st respondent to rejection of the proposed names was for
move to court to challenge its decision, the reason that the proposed names were
instead of appealing to the Minister. The inconsistent with the written law. Unless

42
 BB Issue 45, April - June 2019

and until the said sections of the law lesbian liaisons, there were other sexual
were finally declared unconstitutional orientations that were not permitted by
they remained part of Kenya’s penal laws Kenya’s law, for example paedophilia,
and had to be observed accordingly. that was, sexual attraction towards
children.
27. For as long as sections of Kenya’s
penal law outlawed homosexuality and 32. The definition of sexual orientation
lesbianism, it would be unlawful to according to Yogyakarta principles
promote and give succor to any process was quite different and unacceptable
or registration of any organization in Kenya. The Yogyakarta principles,
that could undermine the law. The law a set of principles relating to sexual
granted discretionary power to the orientation and gender identity, defined
Director to accept or reject a proposed sexual orientation as being understood
name, it was not demonstrated that the to refer to each person‘s capacity for
Director exercised that jurisdiction in an profound emotional, affectional and
injudicious manner. sexual attraction to, and intimate and
sexual relations with, individuals of a
28. Whether sodomy and lesbianism should
different gender or the same gender or
be decriminalized or not was a very
more than one gender.
emotive issue that conjured deep seated
constitutional, moral and religious 33. Kenya’s law did not permit homosexual
ideologies. They were issues that at best, and lesbian sexual practices, just as it
ought to be left to the people to decide, outlawed sexual escapades between adults
either directly through a referendum and children. It would be unthinkable,
or through their elected representatives for example, for paedophiles to argue
in Parliament, which manifested the that they were entitled to freedom of
diversity of the nation and represented association without discrimination on
the will of the people and exercised their the basis of their sexual preferences and
sovereignty. therefore demand registration of, for
example a paedophiles human rights
29. The appellant did not discriminate
protection association. The appellant
against the gay and lesbian community in
would not be right if it were to permit
rejecting the proposed names. Freedom
registration of such NGO.
of association that was guaranteed under
article 36 of the Constitution was not 34. The freedom of association of gays
absolute. It could be limited in terms of and lesbians in Kenya could lawfully
article 24(1) of the Constitution. be limited by rejecting registration of a
proposed NGO, as long as Kenya’s laws
30. Sexual orientation simply referred
did not permit their sexual practices.
to a person’s sexual identity or self-
There were instances where the law
identification; in other words, the
permitted positive constitutional or
inclination of an individual with respect
statutory discrimination, for example,
to heterosexual, homosexual and bisexual
prohibition of child adoption by
behaviour. There was scientific literature
homosexual couples. Gender identity
that showed that sexual orientation, as
and sexual orientation were two different
opposed to a person’s gender, was not
concepts.
fixed but fluid. Sections 162, 163 and
165 of the Penal Code referred to acts or 35. Just like the freedom from discrimination
offences that were committed by persons and other constitutional rights, all
out of their preferred unnatural sexual rights or fundamental freedom,
orientation, and that was why they were including freedom of association, were
referred to as unnatural offences. subject to the extent authorized by the
Constitution or other written law. A
31. Article 27(4) of the Constitution
democratic society was governed by
prohibited discrimination on the basis
laws. Kenya’s laws were based on the
of a person’s sex (gender), not sexual
moral principles of Kenya’s society and
orientation. There was a reason for
had to be respected. It could not be right
the distinction. Other than gay and

43
 BB Issue 45, April - June 2019

that every person, including persons There was a danger in so doing. As a

whose practices were not permitted sovereign nation, the Constitution came
by Kenya’s laws, had unbridled right to after many years of agitating for it and
form an association of whatever nature. was subjected to a referendum. The
values and principles that it espoused
36. The words every person in article 36
had to be respected.
of the Constitution in their proper
context had to be taken to mean the 38. The Judiciary should act very
right of any sane, law-abiding adult to circumspectively whenever it was called
form, join or participate in the activities upon to pronounce itself on an issue that
of a lawful association that accorded was argued, debated and eventually voted
with Kenya’s Constitution and other upon by millions of Kenyans. One such
laws. The appellant was not obliged to issue was that of the family, which was
accept a name that it truly believed was covered by article 45 of the Constitution.
repugnant to or inconsistent with the The Constitution recognized the family
law. The proposed NGO had to have as the natural and fundamental unit of
objectives that were not illegal according society and the necessary basis for social
to any law. order. It was therefore recognized and
protected by the State. The Constitution
37. The Kenyan Constitution protected
further recognized the right to marry
family and Kenyan culture. There was
a person of the opposite sex. By
a lot of pressure exerted from within
implication, any association that did not
and without to disregard some of
promote family values went against the
Kenya’s constitutional, moral, religious
spirit of article 45 and it was appropriate
and cultural values and embrace
for the appellant to reject its registration.
practices that were seen as more trendy,
progressive and modern, all in the name Appeal dismissed, each party to bear own costs.
of protecting constitutional liberties.

A true leader is one who remains committed to a higher purpose that most others
do not yet see - Tony Elumelu

Some rights reserved by Bernard DUPONT

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 BB Issue 45, April - June 2019

High Court
The Chief Justice Practice Directions cannot take away the High Court’s
unlimited original jurisdiction in criminal and civil matters.
Shakeel Ahmed Khan & another v Republic & 4 others [2019] KLR - HCK
Miscellaneous Criminal Application 56 of 2019
High Court at Mombasa
M Thande, J
May 3, 2019

Reported by Beryl Ikamari & Mathenge Brief facts

Mukundi
The applicants filed the application
Constitutional Law- fundamental rights and seeking anticipatory bail/bond pending
freedoms-enforcement of fundamental rights arrest and/or charges in relation to any
and freedoms-rights to fair trial and access to allegations concerning the acquisition and/
justice-transfer of a suit from one station to or compensation in respect of a parcel of
another-claim that transport and accommodation land. The applicants also sought that the
expenses would be unbearable if the suit was to be respondents be restrained from arresting,
transferred from Mombasa to Nairobi-whether in detaining, harassing and intimidating them.
the transfer of the suit from Mombasa to Nairobi
there would be violations of the applicants’ rights The application for bail/bond was opposed
to a fair trial and access to justice-Constitution of by the respondents. Additionally, the 4th
Kenya, 2010, articles 25(c) & 48. respondent made an application seeking the
transfer of the suit to the Anti-Corruption
Constitutional Law-interpretation of and Economic Crimes Division (ACEC
constitutional provisions-interpretation of Division) established in the High Court
article 79 of the Constitution-establishment of Kenya at Nairobi. The application was
of an independent ethics and anti-corruption premised on the ground that the Chief Justice
commission-whether the word ‘independent’ made the Practice. According to the Practice
had to be part of the name of the commission Directions, it was in the interest of justice and
established under article 79 of the Constitution- consistency in the administration of justice
Constitution of Kenya 2010, article 79. and expediency that the application be heard
Statutes-subsidiary legislation-interpretation of and determined by the Anti-Corruption
direction 2 of the Chief Justice Practice Directions and Economic Crimes Division (ACEC) in
2016-where the subsidiary legislation was couched Nairobi.
in mandatory terms and required anti-corruption In support of their application for bail/
and economic crimes suits to be filed in Nairobi- bond, the applicants contended that the
whether subsidiary legislation could take away Ethics and Anti-Corruption Authority was
the High Court’s unlimited original jurisdiction not established as per the requirements of
in criminal and civil matters-Constitution of article 79 of the Constitution as the word
Kenya, 2010, article 165 (3), Chief Justice Practice ‘independent was missing in its name.
Directions, 2016, direction 2. According to the applicants the commission
Jurisdiction-jurisdiction of the High Court-bail as established could not exercise power or
and bond-anticipatory bail/bond-application for authority. The applicants stated that the
anticipatory bail/bond pending arrests-whether transfer of the suit to Nairobi would violate
the High Court could grant anticipatory bail/ their rights of access to justice and fair trial.
bond where the applicants were charged in a Issues
different (ACEC) division of the High Court in
i. Whether the Chief Justice Practice
Nairobi-Constitution of Kenya (Protection of
Directions took away the High Court’s
Rights and Fundamental Freedoms) Practice and
unlimited original jurisdiction in
Procedure Rules, 2013, rule 8.
criminal and civil matters by stating

45
 BB Issue 45, April - June 2019

in mandatory terms that Anti- It meant that the commission to be

Corruption and Economic Crimes established in the legislation to be enacted
suits should be filed in Nairobi. by Parliament did not necessarily have
ii. Whether the Ethics and Anti- to be named the Independent Ethics
Corruption Commission was and Anti-Corruption Commission. The
rendered inoperative by the legislative Commission did not also have to have the
amendment which removed the word word “independent” as part of its name.
“independent” from its name. Indeed, Parliament could have called
iii. Whether in enacting the Ethics and the commission “Tume ya Maadili na
Anti-Corruption Commission Act, kupambana na Ufisadi” or any other name
2011 Parliament failed to comply it deemed fit and still be in compliance
with article 79 of the Constitution with the requirement in article 79 of
which required Parliament to the Constitution. If article 79 of the
enact legislation to establish an Constitution had the definite article
Independent Ethics and Anti- “the” preceding the name, and provided
Corruption Commission. that Parliament should enact legislation
iv. Whether in the transfer of the suit to establish the Independent Ethics and
from Mombasa High Court to the Anti-Corruption Commission. Then
Anti-Corruption and Economic Parliament would have had no discretion
Crimes division in Nairobi the or option but to name it as such.
applicant’s rights of access to justice 3. Parliament clothed the Ethics and
and fair hearing would be violated. Anti-Corruption Commission with
Relevant provisions of the law independence from any person or
authority. Section 28 of the Ethics and
Constitution of Kenya 2010
Anti-Corruption Commission Act, 2011
Article 79; provided that the Commission should, in
79. Parliament shall enact legislation to establish the performance of its functions, not be
an independent ethics and anti-corruption subject to the direction or control of any
commission, which shall be and have the status person or authority except as provided
and powers of a commission under Chapter in the Constitution and the Act.
Fifteen, for purposes of ensuring compliance 4. Direction 6 of the 2016 Practice
with, and enforcement of, the provisions of this Directions listed the matters that should
Chapter. be heard by the ACEC Division. It
included cases relating to corruption
Held
and economic crimes filed under
1. The Chief Justice had no authority the Anti-Corruption and Economic
whatsoever to take away jurisdiction Crimes Act, 2011. The matter herein
from any court or to confer jurisdiction related to corruption and economic
to any court. The Chief Justice as crimes. Direction 2 of the 2016 Practice
head of the Judiciary had the powers Directions required that all cases such as
under section 16 of the High Court the instant which involved corruption
(Organization and Administration) and economic crimes should be filed in
Act to establish sub-registries of the Nairobi.
ACEC Division and indeed full ACEC 5. The 2016 Practice Directions were
Divisions outside Nairobi. The failure to amended vide Kenya Gazette Notice No.
do so had the net effect of stripping the 7262 of 2018 being the 2018 Practice
High Court in stations outside Nairobi Directions. Direction 3 thereof provided
of the jurisdiction conferred upon it by that the Chief Justice would establish
the Constitution. additional sub-registries outside
2. Article 79 of the Constitution required Nairobi. Regrettably, no sub-registry
the Parliament to enact legislation to was established in Mombasa.
establish an independent ethics and 6. Direction 4 of the Practice Directions
anti-corruption commission. It had to laid down the overriding objective of
be noted that the indefinite article “an” the Practice Directions which was the
preceded the commission referred to.
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 BB Issue 45, April - June 2019

just, expeditious, proportionate and increasing the costs of justice. The

accessible adjudication of disputes Practice Directions would also fly in the
related to corruption and economic face of the constitutional imperative that
crimes. To direct that the matter be justice should not be delayed.
transferred to the ACEC Division in 7. Allowing the application would militate
Nairobi would delay the hearing of against the overriding objective of
the same. The intention of the Practice the very Practice Directions of the
Directions to facilitate the efficient and just, expeditious, proportionate and
timely disposal of the matter would be accessible adjudication of disputes
defeated. As long as sub-registries or related to corruption and economic
divisions were not established outside crimes.
Nairobi, the Practice Directions would
Application for the transfer of the suit dismissed.
not enhance the overriding objective but
Costs would be in the cause.
would do the exact opposite including

Advocates working in Public Service are entitled to a non-practising

allowance or prosecutorial allowance
Erastus K Gitonga & 4 others v National Environmental Management Authority & another
[2019] KLR - HCK
Cause 547 of 2018
Employment and Labour Relations Court at Nairobi
B Ongaya, J
April 10, 2019
Reported by Beryl Ikamari & Mathenge Mukundi

Employment Law-discrimination in service. After working for some time they

employment-what amounts to discrimination were appointed and gazetted as public
in employment-effect of pay of different wages prosecutors by the Director of Public
for equal work or work of equal value-whether Prosecutions for purposes of cases arising
the denial of the non-practising allowance under the Environmental Management and
and prosecutorial allowance by the respondent Co-ordination Act. The claimants were
amounted to discrimination and unfair labour claiming both non-practising allowances
practices-Employment Act, 2007, section 5. and prosecutorial allowances which they
Employment Law-contract of service- alleged to be entitled to after having worked
particulars of a contract of service-job description as legal officers and public prosecutors for
and remuneration-criterion to be used where an the respondent.
employee claimed an allowance and other benefits Issues:
that were not in the written contract of service- i. Whether advocates working in public
whether advocates working in Public Service service were entitled to non-practising
were entitled to a grading equivalent to those allowances and prosecutorial allowances.
working at State Law Agencies when computing ii. Whether an employer in public service
the non-practising allowances and prosecutorial was bound to comply with the law,
allowances- Employment Act, 2007, section 10. regulations, and policies issued or
Employment Law-contract of service-terms in a emanating from the Public Service
contract of service-claim that a contract of service Commission in the exercise of its
included a term that allowed for certain employees constitutional public service functions
to be paid non-practising allowances-party that and powers.
bore the burden of proving or disproving an iii. What was the criterion to be used where
alleged term of employment-Employment Act, an employee claimed an allowance and
2007, section 10 (7). other benefits that were not contained in
the written contract of service?
Brief Facts:
iv. Whether the advocates were entitled to
The claimants were advocates of the High a grading equivalent to those working
Court of Kenya employed by the respondent at State Law Agencies when computing
as legal officers on a full-time basis, and the non-practising allowances and
on permanent and pensionable terms of prosecutorial allowances.
47
 BB Issue 45, April - June 2019

v. Whether the denial of the non-practising service. It appeared to apply to all

allowances and prosecutorial allowances lawyers in the public service and for so
amounted to discrimination and unfair long as the claimants established that
labour practices. they were in public service with similar
Held: professional legal duties, they would be
entitled to the allowance even without
1. The respondent was not one of the being gazetted as prosecutors.
entities excluded from the Commission’s
5. From the circular, the use of prosecutorial
constitutional functions and powers.
allowance was meant to simply
Although, the respondent was a body
designate the allowance and not to have
corporate established under the
it paid exclusively to those involved
Environmental Management and Co-
in criminal prosecutions. The circular
ordination Act, in exercise of its statutory
was binding upon the respondent and
functions and powers particularly
if the respondent failed to specifically
recruiting, appointing, promoting,
provide for the terms of the circular in
disciplining, removing public officers
the claimants’ contracts of service, the
and any other human resource function,
Court had jurisdiction to correct the
it was strictly bound to comply with the
unjustified omission.
law, regulations and policies as would be
in force and as issued or promulgated by 6. Under section 10(1) of the Employment
the Commission. Act, 2007 particulars of a written
contract of service included job
2. The respondent’s exercise of human
description and remuneration. The
resource or employment functions
ranks, grades or job groups were clearly
and powers, as envisaged in section
part of the job description and applicable
16 and other provisions of the
remuneration like in the instant case
Environmental Management and Co-
where the allowances were pegged on
ordination Act, had to be construed
the grading by the circulars. Section
and brought to conformity with the
10 (7) of the Employment Act, 2007
constitutional functions and powers
provided that if in any legal proceedings
of the Public Service Commission
an employer failed to produce a written
as amplified in the provisions of the
contract or the written particulars
Public Service Commission Act, 2017.
prescribed in subsection (1) the burden
The respondent and other public
of proving or disproving an alleged
bodies or authorities falling under the
term of employment stipulated in the
Commission’s constitutional authority
contract should be on the employer.
were bound to undertake their human
The respondent failed to discharge
resource functions in accordance with
the statutory burden to disprove the
the provisions of the Public Service
equivalency of the job groups or ranks as
Commission Act, 2017 and the public
urged by the claimants. The allowances
service regulations and policies as would
as claimed applied to the claimants’
be put in place by the Commission from
contract of service and the respondent
time to time.
failed to include the equivalency of its
3. Where an employer in public service grading structure in consonance with the
experienced difficulties in implementing grading in the circulars so as to confer
general public service regulations, the claimants the two allowances in the
policies, decisions, and directives as issue. In absence of any other material
had been issued by the Commission, before the Court on the equivalency of
the employer should seek and obtain the grades, the claimants’ established
from the Commission, the variation that on a balance of probability, the
or clarifications and alterations being equivalency of grades as urged were
sought. applicable.
4. The circular on payment of non- 7. Every person had the right to fair
practising allowance to employees in labour practices as per article 41 (1) of
the legal subsector of the public service the Constitution. Article 41 (2) of the
applied to the claimants’ service because Constitution enumerated the rights of
it clearly applied to the entire public

48
 BB Issue 45, April - June 2019

every worker which included the right whether an unfair labour practice had
to fair remuneration. Articles 27(4) been committed. For example, the
and (5) of the Constitution prohibited payment of unequal pay for equal work
discrimination by the state or by any or work of equal value in the context of
person. Section 5 of the Employment unfair discrimination.
Act, 2007 provided that an employer 10. The respondent denied the claimants
should promote equal opportunity in the two allowances that were payable
employment and strive to eliminate to others in public service performing
discrimination in any employment similar work or work of equal value as
policy or practice. No employer should was performed by the claimants. The
discriminate directly or indirectly, denial of the two allowances amounted
against an employee or prospective to unequal treatment and therefore
employee or harass an employee or unfair discrimination that was founded
prospective employee. An employer had upon arbitrary or unreasonable grounds.
to pay his employees equal remuneration The respondent failed to show that the
for work of equal value. circulars were not intended to apply
8. The Public Service Commission Human to the claimants. The intention in the
Resource Policy, 2016 provided for circular was that the allowances applied
non-discrimination in employment and to all in the legal subsector towards
that the Government should promote harmonisation of their terms of service.
equality of opportunity in employment Application allowed.
and would not discriminate directly or
indirectly against an employee on any Orders:-
ground. Article 2 of the International i. The declaration that the respondent subjected
Labour Organisation Discrimination the claimants to unequal treatment amounted
(Employment and Occupation) to discrimination and unlawful labour
Convention, 1958 provided that each practice by denying them a non-practice
Member for which the Convention allowance and prosecutorial allowance.
undertook to declare and pursue a ii. The declaration that the respondent’s action
national policy designed to promote, of not paying the 1st to 5th claimants a non-
by methods appropriate to national practicing allowance and prosecutorial
conditions and practice, equality of allowance was unlawful, wrongful and
opportunity and treatment in respect unfair.
of employment and occupation, with a iii. The respondent to pay non-practising
view to eliminating any discrimination allowance accruing to the claimants from the
in respect thereof. date of filing the claim and for the duration
9. The failure to pay the claimants the of service of the claimants. The rate of the
two allowances amounted to adverse allowance should be as issued by applicable
or disadvantageous treatment that was government circulars or otherwise as would
not equal to the other public officers be set by a lawful competent authority.
holding similar offices. The respondent iv. The claimants should serve the judgment
had subjected them to unequal pay upon the Public Service Commission, within
by denying them the two allowances 7 days from the date of the judgment, towards
because persons holding similar the Commission’s consideration of issuing
positions in the public service continued the relevant Gazette Notice under section 98
to enjoy the allowances. The principle of the Public Service Commission Act, 2017
that equal work should receive equal pay to harmonize prevailing grading levels and to
in its true form would be extended to an provide for equivalency of job groups, grades,
analogous situation, namely, that work and ranks applicable in the public service or
of equal value should receive equal pay. bodies under its constitutional and statutory
Those premises had not been enshrined functions and powers, the Commission to
as principles of law in the unfair labour consider publishing the Gazette Notice not
practice definition. They were principles later than January 2, 2020.
of justice, equity, and logic which would v. The respondent to pay the claimants’ costs of
be taken into account in considering the suit.

49
 BB Issue 45, April - June 2019

50
 BB Issue 45, April - June 2019

Restating the Law

MAXIMS OF EQUITY
 Equity considers that done what ought to be done
 Equity will not suffer a wrong to be without a remedy
 Equity delights in equality/Equality is equity (Aequalitus est quasi equitas)
 One who seeks equity must do equity
 Equity aids the vigilant not the indolent
 Equity imputes an intent to fulfill an obligation
 Equity acts in personam (i.e. on persons rather than on objects)
 Equity abhors a forfeiture
 Equity does not require an idle gesture
 He who comes into equity must come with clean hands
 Equity delights to do justice and not by halves
 Equity will take jurisdiction to avoid a multiplicity of suits
 Equity follows the law
 Equity will not assist a volunteer
 Equity will not complete an imperfect gift
 Where equities are equal, the law will prevail
 Between equal equities the first in order of time shall prevail
 Equity will not allow a statute to be used as a cloak for fraud
 Equity will not allow a trust to fail for want of a trustee
 Equity regards the beneficiary as the true owner

51
 Feedback For Caseback Service
By Emma Mwobobia, Ruth Ndiko & Patricia Nasumba, Law Reporting Department

Well received, thanks.

Hon. Justice Fred A It is always a pleasure to know that you have been
Ochieng re-affirmed.
High Court of Kenya
But even when your decision is upset, it is important
at Nairobi
to know, so that you can make the necessary
adjustments.

Hon. Christopher
Thank you for the feedback.
Yalwala - DR
High Court of Kenya at
Bungoma

Hon. Barbara Ojoo -

PM Received with thanks.
Kibera law Courts

Hon. Justice Byram

Ongaya
High court of Kenya at Thank you for the information.
Nairobi
 BB Issue 45, April - June 2019

Legislative Updates
By Christine Thiong’o & Rachel Muriithi, Laws of Kenya Department

T
his article presents a summary of Legislative Supplements published in the Kenya
Gazette on matters of general public importance. The outline covers the period between
5th April, 2019 and 8th May, 2019.

DATE OF LEGISLATIVE CITATION PREFACE

PUBLICATION SUPPLEMENT
NUMBER
5th April, 2019 11 Engineers Rules, These Rules are made by the Engineers Board
2019 of Kenya, with the approval of the Cabi-
net Secretary for Transport, Infrastructure,
(L.N 18/2019) Housing, Urban Development and Public
Works, in exercise of the powers conferred by
section 58 of the Engineers Act, 2011.
The Rules provide for:
i. Registration of Engineers;
ii. Complaints and Discipline by
the Board;
iii. Training and Continuous Pro-
fessional Development; and
iv. General Provisions.
The Engineers Registration Regulations,
1971 (L.N. 196/1971) and Gazette Notices
5720/2004 and 5721/2004 are hereby re-
voked.

3rd May, 2019 17 Judiciary Fund The Chief Justice makes these Regulations in
Regulations, 2019 exercise of the powers conferred by section
14 of the Judiciary Fund Act, 2016 (No. 16 of
(L.N. 33/2019) 2016).
These Regulations shall apply to all matters
relating to the financial management of the
Fund. The administration of the Fund is
vested in the Chief Registrar.
The Regulations apply to a judicial officer or
Judiciary staff in exercise of any powers and
functions relating to the administration of
the Fund whether in exercise of delegated
authority or otherwise.
The Regulations address the following
matters:
i. Budget Preparation;
ii. Utilization of the Fund;
iii. Expenditure in Relation to
Human Resources;
iv. Imprest Management;
v. Accounts And Reporting;
vi. Internal Audit and Risk
Management; and
vii. Miscellaneous Provisions.

53
 BB Issue 45, April - June 2019

8th May, 2019 19 University of Embu This Charter is certified by the Cabinet
Charter, 2016 Secretary Ministry of Education, Science
and Technology in exercise of the powers
(L.N. 64/2019) conferred by section 19 of the Universities
Act 2012 (No. 42 of 2012).
The Charter establishes the University of
Embu, which shall be a body corporate with
perpetual succession and a common seal.
The University is the successor of Embu
University College constituted under the
Embu University College Order, 2011 (L.N.
No. 65 of 2011), which is now repealed.
The Charter also lays out the following:
i. Membership and Governance of
the University of Embu;
ii. Management of the University
of Embu;
iii. Financial Provisions; and
iv. Miscellaneous Provisions.
31st May, 2019 23 Description of This Notice is issued by the Central Bank of
New Issue of Fifty, Kenya in exercise of the power conferred by
One Hundred, Article 231 (2) of the Constitution of Kenya,
Two Hundred, Five 2010 and section 22 (2) of the Central Bank of
Hundred and One Kenya Act (Cap. 491).
Thousand Shillings It determines and notifies the denominations,
Kenya Currency inscriptions, forms, material and
Notes characteristics of the new fifty shillings, one
hundred shillings, two hundred shillings, five
(L.N. 72/2019) hundred shillings and one thousand shillings
currency notes to be issued by the Central
Bank of Kenya.
The front of all currency notes shall-
a. bear the image of Kenyatta
International Convention Centre,
a skyline image of Nairobi, a rising
sun, the Coat of Arms and a dove;
and
b. bear the signatures of the Governor
of the Central Bank of Kenya, and
of the Principal Secretary to the
National Treasury.
Further, this Legal Notice details the primary
themes, reverse images and note sizes of the
listed currency; including the main colours
and features of each currency.
The new banknotes shall circulate alongside
those previously issued and not withdrawn.

54
 BB Issue 45, April - June 2019

Legal Supplements
LEGISLATIVE UPDATE: SUMMARY OF LEGISLATION ENACTED BY PARLIAMENT
By Christine Thiong’o & Rachel Muriithi, Laws of Kenya Department

This is a synopsis of legislation in the form of Bills and Acts of Parliament that have been
enacted in the period between March-May, 2019.

A. ACTS OF PARLIAMENT

ACT PETROLEUM ACT, 2019

Act No. No. 2 of 2019
Commencement 28th March 2019
Objective This Act provides for a framework for the contracting, exploration, development
and production of petroleum; cessation of upstream petroleum operations: to give
effect to relevant articles of the Constitution in so far as they apply to upstream
petroleum operations, regulation of midstream and downstream petroleum opera-
tions.
The Act repeals the Petroleum (Exploration and Production) Act (Cap 308).

ACT URBAN AREAS AND CITIES (AMENDMENT) ACT, 2019

Act No. No. 3 of 2019
Commencement 28th March 2019
Objective The Act amends the Urban Areas and Cities Act, 2011 (No. 13 of 2011) in order to
review the criteria provided for classifying an area as a city, municipality, town or
market centre.

ACT ASSUMPTION OF THE OFFICE OF GOVERNOR ACT, 2019

Act No. No. 4 of 2019
Commencement 31st May, 2019
Objective This Act provides for the procedure and ceremony for the assumption of the Office
of Governor by the Governor-elect; and for connected purposes.
The Act further amends the:
i. County Governments Act (No. 17 of 2012); and
ii. Elections Act (No. 24 of 2011).

B. NATIONAL ASSEMBLY BILLS

NATIONAL ASSEMBLY NATIONAL COHESION AND INTEGRATION (AMENDMENT) BILL, 2019
BILL
Dated 13th March, 2019
Objective This Bill seeks to amend the National Cohesion and Integration Act, 2008 (No. 12
of 2008) in order to align it with the Constitution. It amends the procedure for
appointing Commissioners under the Act. This follows the judgment by the High
Court to the effect that section 17 of the Act is unconstitutional. There is, therefore,
need to amend the Act to align it with the Constitution.
The Bill also seeks to provide for matters incidental to the review of the Act includ-
ing providing certain clarifications relating to the qualification for appointment as
a member of the Commission and their term of office.
Sponsor Maina Kamanda, Member of Parliament, National Assembly.

55
 BB Issue 45, April - June 2019

NATIONAL ASSEMBLY PUBLIC ORDER (AMENDMENT) BILL, 2019

BILL
Dated 15th March, 2019
Objective The principal object for this Bill is to amend the Public Order Act (Cap. 56) to make
provision for organizers of public meetings or public procession leading to loss
of property, life or earnings to take responsibility for the loss and compensate the
affected persons.
Sponsor Simon King’ara, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY EMPLOYMENT (AMENDMENT) BILL, 2019.

BILL
Dated 15th March, 2019
Objective The Principal objective of this Bill to amend the Employment Act, 2007 (No. 11 of
2007) in order to afford pre-adoptive leave to parents who apply for the adoption
of children who are not their natural children born to them by birth.
Sponsor Martha Wangari, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY PUBLIC SERVICE (VALUES AND PRINCIPLES) (AMENDMENT) BILL, 2019
BILL
Dated 15th March, 2019
Objective The objective of this Bill is to amend the Public Service (Services and Principles)
Act (No. 1A of 2015) to require all state organs in the national and county govern-
ments and state corporations to submit annual reports on details of the human
resource in constitutional Commissions, independent offices and County Public
Service Boards and County Assembly Service Board. The reports should contain
details outlining the total number of employees and highlighting their gender, age,
county of birth and county of residence.
Sponsor Andrew Mwadime, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY KENYA INFORMATION AND COMMUNICATIONS (AMENDMENT) BILL,

BILL 2019
Dated 15th March, 2019
Objective The principal object of this Bill is to amend the Kenya Information and Commu-
nications Act (Cap. 411A) to enable persons operating a telecommunication sys-
tem or providing a telecommunication service to engage in any other business and
provide for the separation of such other businesses from the telecommunication
business. The amendments will provide for a regulation framework for such busi-
nesses as the proposed amendment provides for reporting by the Communications
Authority on compliance with the proposed provision and penalty for non-com-
pliance. The amendment will further aid in control of anti-competitive practices
by the large industries in the sector.
The Bill further seeks to amend provisions of the Kenya Information and Commu-
nications Act to make provision for quality of service to consumers making calls
by compelling licensees in the telecommunications industry to invest in infrastruc-
ture that will guarantee quality of service for consumers making calls.
Sponsor Elisha Odhiambo, Member of Parliament, National Assembly.

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NATIONAL ASSEMBLY STATUTE LAW (MISCELLANEOUS AMENDMENT) BILL, 2019

BILL
Dated 29th March, 2019
Objective The Statute Law (Amendment) Bill, 2019 seeks to make various amendments to the
following statutes:
(i) Districts and Provinces Act, 1992 (No. 5 of 1992)
(ii) Microfinance Act, 2006 (No. 19 of 2006)
(iii) Merchant Shipping Act, 2009 (No. 4 of 2009)
(iv) Alcoholic Drinks Control Act, 2010 (No. 4 of 2010)
(v) Tourism Act, 2011 (No. 28 of 2011)
(vi) Public Finance Management Act, 2012 (No. 18 of 2012)
(vii) Kenya School of Law Act, 2012 (No. 26 of 2012)
(viii) Legal Education Act, 2012 (No. 27 of 2012)
(ix) Prevention of Terrorism Act, 2012 (No. 30 of 2012)
(x) Kenya Law Reform Commission Act, 2013 (No. 19 of 2013)
(xi) Value Added Tax Act, 2013 (No. 35 of 2013)
(xii) Wildlife Conservation and Management Act, 2013 (No. 47 of 2013)
(xiii) Companies Act, 2015 (No. 17 of 2015)
(xiv) Insolvency Act, 2015 (No. 18 of 2015)
(xv) Court of Appeal (Organization and Administration) Act, 2015 (No. 28 of
2015)
Sponsor Aden Duale, Leader of Majority Party, National Assembly.

NATIONAL ASSEMBLY SECTIONAL PROPERTIES BILL, 2019

BILL
Dated 29th March, 2019
Objective The principal objective of this Bill is to provide for the division of buildings into
units to be owned by individual proprietors and common property to be owned by
proprietors of the units as tenants in common.
It also provides for the use and management of the units and common property
and addresses the contemporary challenges associated with ownership of property
in a sectional property environment.
The Bill proposes to repeal the Sectional Properties Act (No. 21 of 1987).
Sponsor Aden Duale, Leader of Majority, National Assembly.

NATIONAL ASSEMBLY INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMEND-

BILL MENT) BILL, 2019
Dated 29th March, 2019
Objective The principal object of this Bill is to amend the First Schedule to the Independent
Electoral and Boundaries Commission Act, 2011 (No. 9 of 2011) in order to pro-
vide for a mechanism of appointing members of the Independent Electoral and
Boundaries Commission.
Sponsor Jude Njomo, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY NATIONAL DROUGHT MANAGEMENT AUTHORITY (AMENDMENT) BILL,

BILL 2019
Dated 5th April, 2019
Objective The principal object of the Bill is to amend the National Drought Management Au-
thority Act, 2016 (No. 4 of 2016) by amending the sections providing for the estab-
lishment of the coordinating committees and establishment of the management of
the National Drought Emergency Fund in the Act in order to enable the enactment
of the National Drought Emergency Fund, Regulations under the Public Finance
Management Act, 2012 (No. 18 of 2012).

Sponsor Aden Duale, Leader of Majority, National Assembly.

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NATIONAL ASSEMBLY PUBLIC SERVICE COMMISSION (AMENDMENT) BILL, 2019

BILL
Dated 5th April, 2019
Objective This Bill seeks to amend the Public Service Commission Act, 2017 (No. 10 of 2017)
to prescribe the mandatory retirement age of sixty years in the Act, without any
exceptions. The amendments are meant to increase the job vacancies available to
Kenya Citizens below the age of sixty years.
The Bill also intends to address the issue of an officer acting in a position for more
than six months. The period of six months prescribed should provide adequate
time for an organisation to recruit and substantively fill the position. Failure to
comply with this provision will result in the officer not earning any acting allow-
ances.
Sponsor Benjamin Gathiru Mwangi, Member of Parliament, National Assembly.

Objective TRAFFIC (AMENDMENT) BILL, 2019

Dated 5th April, 2019
Objective The principal object of this Bill is to amend the Traffic Act (Cap 403) to make pro-
vision for the standardization of the use of all roads classified as superhighways.
Sponsor Jude Njomo, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY COUNTY GOVERNMENTS’ RETIREMENT SCHEME BILL, 2019

BILL
Dated 5th April, 2019
Objective The principal object of this Bill is to establish the County Governments’ Retire-
ment Scheme as a mandatory Scheme for all County Government Officers; pro-
vide for the establishment of the Scheme’s Board of Trustees and provide for the
Scheme’s management and administration. The Bill proposes to have the scheme
offer lump sum payments as provident, periodic payments as pensions and income
drawdowns. The proposed Scheme will provide one universal scheme for all the
forty seven county governments besides being open to other person approved by
the Board.
Sponsor Chachu Ganya, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (AMEND-

BILL MENT) (NO. 2) BILL, 2019
Dated 15th April, 2019
Objective This Bill seeks to amend the Independent Electoral and Boundaries Commission
Act (No. 9 of 2011) to address two issues. First, to address the lacuna in the law in
terms of the appointment of commissioners when a vacancy arises since paragraph
(2) of the First Schedule to the Independent Electoral and Boundaries Commission
Act does not provide for the subsequent appointment of commissioners. Secondly,
the Bill seeks to amend the Fifth Schedule that is already spent after the first review
relating to the delimitation of boundaries of constituencies and wards.
Sponsor Jeremiah Kioni, Chairperson, Constitutional Implementation Oversight Committee, Na-
tional Assembly.

NATIONAL ASSEMBLY KENYA FOOD AND DRUGS AUTHORITY BILL, 2019

BILL
Dated 15th April, 2019
Objective The objective of this Bill is to establish the Kenya Food and Drugs Authority within
National Government. The Bill provides for the regulation and management of
food, drugs, chemical substances, medical devices and other health technologies.
The Bill also proposes to repeal the Pharmacy and Poisons Board Act (Cap 244) and
the Food, Drugs and Scheduled Substances Act (Cap. 254).
Sponsor Robert Pukose, Member of Parliament, National Assembly.

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NATIONAL ASSEMBLY CROPS (AMENDMENT) (NO. 2) BILL, 2019

BILL
Dated 15th April, 2019
Objective This Bill seeks to amend the Crops Act, (No. 16 of 2013) to ensure that for the
purposes of a favorable balance of trade and balance of payment, coffee shall not be
exported from Kenya in its raw form.
Sponsor Moses Kuria, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY KENYA INSTITUTE OF CURRICULUM DEVELOPMENT (AMENDMENT)

BILL BILL, 2019
Dated 15th April, 2019
Objective This Bill aims to amend the Kenya Institute of Curriculum Development Act (No.
4 of 2013) to enhance disaster risk reduction (DRR) in learning institutions. This is
owing to the fact the school curricula do not provide the learners with education
on safety, particularly on how to conduct security drills, evacuation, first aid, how
to locate explosives, how to sense danger, among other safety-related things.
Sponsor Joyce Emanikor, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY ASSISTED REPRODUCTIVE TECHNOLOGY BILL, 2019

BILL
Dated 15th April, 2019
Objective This Bill seeks to regulate rights and obligations relating to assisted reproductive
technology. It aims to regulate the use of assisted reproductive technologies to aid
individuals or couples that have challenges conceiving due to factors associated
with infertility. Furthermore, the Bill aims to regulate the qualifications of health
practitioners who administer assisted reproductive technology in order to protect
recipients of the services.
The Bill contains provisions that define rights touching on, among others, issues
relating to consents preceding assisted reproduction; handling of embryos result-
ing from assisted reproductive technology; protection of the identity, status and
welfare of children borne out of assisted reproduction; and duties of persons who
undergo assisted reproduction and their legal status as parents.
The Bill establishes an Assisted Reproductive Technology Authority to regulate the
processes, licensing, standards, research and infrastructure relating to assisted re-
productive technology.
Sponsor Millie Odhiambo Mabona, Member of Parliament, National Assembly.

NATIONAL ASSEMBLY GAMING BILL, 2019

BILL
Dated 27th May, 2019
Objective The objective of this Bill is to establish an Act of Parliament to provide for the
control and licensing of betting, casinos and other forms of gaming; authorization
of prize competitions and public lotteries, for the establishment of the National
Lottery and the imposition of a tax on gaming.
Sponsor Victor Munyaka, Chairperson, Departmental Committee on Sports, Tourism and Culture,
National Assembly.

C. SENATE BILLS
SENATE BILL PUBLIC FINANCE MANAGEMENT (AMENDMENT) BILL, 2019
Dated 15th April, 2019
Objective The principal object of this Bill is to amend the Public Finance Management Act (No. 18 of
2012) to establish a collaborative framework for collection of revenues by the county gov-
ernments and the National Treasury together with the Kenya Revenue Authority.
Sponsor Agnes Zani, Senator.

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SENATE BILL CONTROL OF STRAY DOGS BILL, 2019

Dated 15th April, 2019
Objective The principal object of this Bill is to repeal and replace the Rabies Act (Cap. 365) in order
to effectively deal with stray dogs which pose serious human health, dog health and welfare
problems. The Bill also seeks to provide for the power to seize, detain or destroy stray dogs
or stray cats and regulations in case of outbreak or expected outbreak of disease.
The Rabies Act enacted in 1932 was last amended in 1962 and has become outdated. It is
has become necessary to overhaul the Act in order to, among other things, take into account
the provisions of the Fourth Schedule to the Constitution on the functions of county govern-
ments.
Sponsor Mary Seneta, Senator.

SENATE BILL COUNTY TOURISM BILL, 2019

Dated 15th April, 2019
Objective The objective of this Bill is to amend the Tourism Act (No. 28 of 2011) in order to make pro-
visions for local tourism and involve counties in the development, management, marketing
and regulation of local tourism. The Bill also provides for the development, management,
marketing, promotion and licensing of local tourism by county governments.
Sponsor Agnes P. Zani, Senator.

SENATE BILL COMMISSION ON ADMINISTRATIVE JUSTICE (AMENDMENT) BILL, 2019

Dated 15th April, 2019
Objective The principal object of this Bill is to amend the Commission on Administrative Justice Act
(No. 23 of 2011) to provide for the decentralization of the office of the Commission on Ad-
ministrative Justice.
The Bill seeks to ensure that the Commission establishes satellite offices in all counties to
bring its services closer to the people. Under the Bill, all the counties shall have a branch of
the office of the Commission on Administrative Justice which shall ensure that the members
of the counties have easy access to the offices to report their grievances.
The Bill also seeks to repeal the sunset clause on the possible merger of the Commission on
Administrative Justice and the Kenya National Commission on Human Rights as it there is
still need for a body that performs the functions of an Ombudsman in the public sector.
Sponsor Petronila W. Lokorio, Senator.

SENATE BILL NATIONAL MUSEUMS AND HERITAGE (AMENDMENT) BILL, 2019

Dated 15th April, 2019
Objective The principal objective of this Bill is to amend the National Museums and Heritage Act (No.
6 of 2006).
The Bill seeks to give effect to the Fourth Schedule of the Constitution on distribution of
functions between the National Government and the County Governments.
Sponsor Alice Milgo, Senator.

SENATE BILL COUNTY ALLOCATION OF REVENUE BILL, 2019

Dated 26th April, 2019
Objective The principal objective of this Bill is to provide for the equitable allocation of revenue raised
nationally among the county governments for the 2019/2020 financial year and the responsi-
bilities of national and county governments pursuant to such allocation.
Sponsor Mohamed M. Mahamud, Chairperson, Committee on Finance and Budget, Senate.

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International
Jurisprudence
East African Court of Justice declares several sections of the Tanzania Media
Services Act, 2016 to be in violation of the Treaty for the Establishment of the
East African Community for encroaching on the freedom of expression
Media Council of Tanzania & 2 others v the Attorney General of the United Republic of
Tanzania
Reference No 2 of 2017
East African Court of Justice at Arusha
M K Mugenyi, PJ; F Ntezilyayo, DPJ; F Jundu, A Ngiye, & C Nyachae, JJ
March 28, 2019
Reported by Moses Rotich & Faith Wanjiku

International Law – law of treaty–Treaty for Community – Treaty for the Establishment of the
the Establishment of the East African Community East African Community, articles 23(1), 27(1), 31
– admissibility of applications – conditions and 33(2).
for exhaustion of local remedies – whether the
applicants were required to exhaust available International Law – law of treaty – Treaty for
local remedies before filing the reference at the the Establishment of the East African Community
East African Court of Justice – Treaty for the – interpretation of treaties – what was the test to
Establishment of the East African Community, apply to determine whether or not a national law
articles 23(1), 27(1) and 31. contravened the provisions of a Treaty

International Law – law of treaty – Treaty for International Law – law of treaty – Treaty for
the Establishment of the East African Court of the Establishment of the East African Community
Justice – admissibility of applications – timeframe – fundamental rights and freedoms – where
within which to file a reference at the East African a national law is in conflict with a Treaty –
Court of Justice – whether the application should effect of – whether by enacting the East African
be declared inadmissible on the ground that it was Community Act, the United Republic of Tanzania
filed out of time – Treaty for the Establishment of conferred jurisdiction on its national courts
the East African Community, article 30(2) and thus limited the jurisdiction of the EACJ
-Treaty for the Establishment of the East African
International Law – law of treaty – Treaty for Community, articles 6(d), 7(2), 23(1), 27(1), 31
the Establishment of the East African Community and 33(2); East African Community Act, cap 411
– res judicata – judicial estoppel – bar against
bringing a suit in respect of which there were International Law – law of treaty – Treaty for
previous proceedings by similar parties regarding the Establishment of the East African Community
the same subject matter – whether an application – fundamental rights and freedoms – freedom
at the East African Court of Justice could be of expression – where a national law violated
declared res judicata for having been heard and fundamental rights and freedoms – whether
determined by the national courts of Partner States Media Services Act, 2016 of Tanzania violated
the provisions of the EAC Treaty for encroaching
International Law – law of treaty – Treaty for on the freedom of expression– Treaty for the
the Establishment of the East African Community Establishment of the East African Community,
– jurisdiction – jurisdiction of the East African articles 6(d),and 7(2); Media Services Act
Court of Justice vis-à-vis that of national courts of (Tanzania), sections 7(3)(a), (b), (c) (f), (g), (h), (i),
Partner States – whether the EACJ had exclusive and (U), 13, 14, 18, 19, 20, 21, 35, 36, 37, 38, 39,
jurisdiction to interpret and apply the EAC treaty 40, 50, 52, 53, 54, 58, and 59
– whether the national courts of Partner States
had jurisdiction to interpret the provisions of the International Law – law of treaty – Treaty for
Treaty for the Establishment of the East African the Establishment of the East African Community
– fundamental rights and freedoms – limitation
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of freedom of expression – whether imposing Issues

criminal sanctions on sedition, defamation, libel i. Whether by enacting the East African
and false news publication unduly restricted Community Act, cap 411, the United
the exercise of freedom of expression – General Republic of Tanzania conferred
Comment 34 of the United Nations Human jurisdiction on its national courts and
Rights Committee; Treaty for the Establishment thus limited the jurisdiction of the EACJ.
of the East African Community, articles 6(d), and ii. Whether article 33(2) of the EAC Treaty
7(2); Media Services Act (Tanzania), sections 35, conferred jurisdiction on national
36, 37, 38, 39, 40, 50, 51, 52, 53 and 54 courts of Partner States to interpret the
provisions of the EAC Treaty.
Brief facts iii. Whether under the EAC Treaty there was
The three applicants were non-governmental a requirement to exhaust available local
organizations registered and operating as such remedies before filing a reference at the
within the United Republic of Tanzania (the East African Court of Justice.
respondent). The reference was a challenge iv. Whether the matter was res judicata for
to the Media Services Act No 12 of 2016 (the having been heard and determined by the High
Act) enacted by the Parliament of the United Court of the United Republic of Tanzania.
Republic of Tanzania on November 5, 2016 v. Whether the reference was filed out of time
and received presidential assent on November and in violation of article 30(2) of the EAC
16, 2016. The applicants averred that the Treaty.
Act as it was, was an unjustified restriction vi. Whether sections 7(3)(a),(b),(c),(f),(g),(h),(i)
on the freedom of expression which was a and(j) of the Media Services Act, 2016 infringed
cornerstone of the principles of democracy, on freedom of expression by restricting type
rule of law, accountability, transparency and of news content that could be aired by media
good governance which the respondent State houses without justification hence violating
had committed to abide by, through the EAC articles 6(d) and 7(2) of the EAC Treaty.
Treaty and other international instruments. vii. Whether sections 13, 14, 19, 20 and 21 of the
Media Services Act, 2016 which established
Specifically, the applicants sought the East
and dealt with a system of accreditation of
African Court of Justice (EACJ) to declare that
journalists and media houses violated articles
sections 7(3)(a), (b), (c) (f), (g), (h), (i), and (j), 13,
6(d) and 7(2) of the EAC Treaty.
14, 18, 19, 20, 21, 35, 36, 37, 38, 39, 40, 50,
viii. Whether sections 35, 36, 37, 38, 39 and 40 of
52, 53, 54, 58, and 59 of the Media Services
the Act dealing with the offence of criminal
Act, No 12 of 2016 of the United Republic of
defamation limited the freedom of the press in
Tanzania violated articles 6(d), 7(2) and 8(1)
contravention of articles 6(d) and 7(2) of the
of the Treaty for the Establishment of the
EAC Treaty.
East African Community( the EAC Treaty).
ix. Whether sections 50 and 54 of the Act dealing
The respondent opposed the application with offences relating to media services were
citing court’s lack of jurisdiction, admissibility in contravention of articles 6(d) and 7(2) of
of the application, and that the Act did not the EAC Treaty.
violate the EAC Treaty in any way. The x. Whether the definition of ‘seditious intention’
respondent stated that the applicants had in section 52 and creation of seditious offences
failed to exhaust available local remedies in under section 53 of the Act violated articles
the national courts before seeking redress at 6(d) and 7(2) of the EAC Treaty.
the EACJ. They indicated that the matter was xi. Whether section 58 of the Act, which gave the
res judicata as the issues raised had been heard relevant cabinet minister absolute discretion
and determined by the High Court of Tanzania to prohibit importation of any publication
in Union of Tanzania Press Clubs and Hali Halisi where the minister was of the opinion that
Publishers Ltd v The Attorney General of the the importation of such publication would be
United Republic of Tanzania, Miscellaneous Civil contrary to public policy, violated articles 6(d)
Cause No 02 of 2017. Further, the respondent and 7(2) of the EAC Treaty.
averred that the application had been filed out of xii. Whether section 59, which gave the relevant
time and in violation of article 30(2) of the EAC cabinet minister power to prohibit or otherwise
Treaty. The respondent contended that the alleged sanction the publication of any content where
impugned sections of the Act were in line with the the minister was of the opinion that such
spirit and purport of the Act. content jeopardized national security or

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public safety, contravened articles 6(d) and ii) Lawful investigations being conducted
7(2) of the EAC Treaty. by a law enforcement agent;
Relevant Provisions of the Law (b)impede due process of law or endanger safety
Treaty for the Establishment of the East of life of any person;
African Community (c)does not constitute hate speech;
Article 6(d) (d)disclose the proceedings of the Cabinet;
“The fundamental principles that shall govern the (e)facilitate or encourage the commission of an
achievement of the objectives of the Community offence;
by the Partner States shall include: (f) Involve unwarranted invasion of the privacy
(a)…… of an individual;
(b)….... (g)infringe lawful commercial interests,
(c)….. including intellectual property rights of that
(d) good governance including adherence to information holder or a third party from whom
the principles of democracy, the rule of law, information was obtained;
accountability, transparency, social justice, (h)hinder or cause substantial harm to the
equal opportunities, gender equality, as well as Government to manage the economy;
the recognition, promotion and protection of (i) significantly undermines the information
human and people’s rights in accordance with the holder’s ability to give adequate and judicious
provisions of the African Charter on Human and consideration to a matter of which no final
Peoples’ Rights.” decision has been taken and which remains the
Article 7(2) subject of active consideration; or
“2. The Partner States undertake to abide by the (j) damage the information holder’s position in
principles of good governance, including adherence any actual or contemplated legal proceedings,
to the principles of democracy, the rule of law, or infringe professional privilege.”
social justice and the maintenance of universally Section 35
accepted standards of human rights.” (1)Any matter which, if published, is likely to
Article 8(1)(c) injure the reputation of any person by exposing
1. The Partner States shall: him to hatred, contempt or ridicule, or likely to
(a)….. damage any person in his profession or trade by an
(b)….. injury to his reputation, is a defamatory matter;
(c) abstain from any measures likely to jeopardise (2) The matter referred to under subsection (1)
the achievement of those objectives or the shall qualify to be a defamatory matter even when
implementation of the provisions of this Treaty.” it is published against a deceased person; and
Article 23(1) (3) The prosecution for the publication of
Role of the Court defamatory matter concerning a person who is
1. The Court shall be a judicial body which shall dead shall not be instituted without the written
ensure the adherence to law in the interpretation consent of the Director of Public Prosecutions.
and application of and compliance with this Section 50
Treaty. (1) Any person who makes use by any means of a
Article 27(1) media service for the purposes of publishing:
Jurisdiction of the Court (a)Information which is intentionally or
1. The Court shall initially have jurisdiction over recklessly falsified in a manner which:
the interpretation and application of this Treaty: i Threatens the interest of defence,
Provided that the Court’s jurisdiction to public safety, public order, the
interpret under this paragraph shall not include economic interests of the United
the application of any such interpretation to Republic, public morality or
jurisdiction conferred by the Treaty on organs of public health; or
Partner States. ii Is injurious to the reputation,
Media Services Act No 12 of 2016 (Tanzania) rights and freedom of other
Section 7(3) persons;
“A media House shall, in the execution of its (b)Information which is maliciously or
obligations, ensure that information issued does fraudulently fabricated;
not: (c)Any statement the content of which is:
(a)undermine: - i Threatening the interest of defence,
i) The national security of the United public safety, public order, the economic
Republic of Tanzania; or interests of the United Republic, public

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morality or public health; or consequences which would naturally follow from

ii Injurious to the reputation, rights and his conduct at the time and in the circumstances
freedom of other persons. in which he conducts himself.
(d)Statement knowingly to be false or Section 58
without reasonable grounds for believing Where the Minister is of the opinion that the
it to be true; importation of any publication would be contrary
(e)A statement with maliciously or to the public interest, he may, in his absolute
fraudulent intent representing the discretion and by order published in the Gazette,
statement as a true statement; or prohibit the importation of such publication.
(f) Prohibited information, commits an Section 59
offence and upon conviction, shall be The Minister shall have powers to prohibit or
liable to a fine of not less than five million otherwise sanction the publication of any content
shillings but not exceeding twenty million that jeopardizes national security or public safety.
shillings or to imprisonment for a period
not less than three years but not exceeding Held
five years or both.
1. The jurisdiction of the East African Court
(2)Any person who:-
of Justice (EACJ) was drawn from the EAC
(a)Operates media outlet without license;
Treaty and in particular articles 23(1) and
(b)Practices journalism without
27(1). Article 23 provided that the EACJ
accreditation; or disseminates false
was a judicial body mandated to ensure
information without justification.
adherence to law in the interpretation and
Section 52
application of, and compliance with the
(1) A “seditious intention” is an intention to: -
EAC Treaty. In enacting the East African
(a)Bring into hatred or contempt or to
Community Act, the respondent State
excite disaffection against the lawful
was fulfilling a specific obligation under
authority of the Government of the
article 8(2) of the EAC Treaty which
United Republic;
required each Partner State to, within
(b)excite any of the inhabitants of the
twelve months from the date of signing
United Republic to attempt to procure the
the treaty, secure enactment and effective
alteration, otherwise with than by lawful
implementation of such legislation as was
means, of any other matter in the United
necessary to give effect to the EAC Treaty.
Republic as by law established;
There was nothing in the clear wording
(c)Bring into hatred, contempt or to excite
of article 8(2) to suggest that the article
disaffection against the administration of
conferred jurisdiction to interpret and
justice in the United Republic;
apply the EAC Treaty on any state organ.
(d)raise discontent or disaffection amongst
people or section of people of the United 2. Article 34 of the EAC Treaty buttressed
Republic; or the position that the EACJ had exclusive
(e)promote feelings of ill-will and jurisdiction to interpret and apply the
hostility beaten different categories of the treaty. That was consistent with article
population of the United Republic. 33(2) which provided that decisions
(2) An act, speech or publication shall not be of the EACJ on the interpretation and
deemed as seditious by reason only that it intends application of the EAC Treaty had
to:- precedence over decisions of national
(a)Show that the Government has been courts on a similar matter. The purpose
misled or mistaken in any of its measures; of articles 34 and (33)(2) was to ensure
or uniform interpretation and to avoid
(b)Point out errors or defects in the possible conflicting decisions and
Government of the United Republic in uncertainty in the interpretation of
legislation or in administration of justice the same provision of the EAC Treaty.
with a view to remedying such errors or Article 33(2) appeared to envisage that in
defects. the course of determining a case before
(3)In determining whether the intention for it, a national court might interpret and
which the act was done, any work spoken or any apply a treaty provision. Such envisaged
document published, was or was not seditious, interpretation, however, could only be
every person shall be deemed to intend the incidental. The article neither provided

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for nor envisaged a litigant directly 5. For a matter to be res judicata, the matter
referring a question as to interpretation had to have been between the same
of a treaty provision to a national court. parties, in respect of the same subject
There was no other provision that matter, and determined on merits by
directly conferred on the national courts’ another court of competent jurisdiction.
jurisdiction to interpret the EAC Treaty. The litigant in the Tanzania High Court
case Union of Tanzania Press Clubs Case
3. In bringing the instant reference, the (supra) was different from the applicants
applicants were exercising the right in the instant case. Further, in the
granted to them as residents of a Partner Tanzania High Court, the matter at issue
State of the Community, by article 30(1) was whether the provision of the Act
of the EAC Treaty which provided that offended the Constitution of the United
subject to the provisions of article 27, any Republic of Tanzania. In the instant case,
person who was a resident in a Partner the question was whether the provisions
State could refer for determination by the impugned by the reference violated
EACJ, the legality of any Act, regulation, specific articles of the EAC Treaty. No
directive, decision or action of a Partner evidence was tendered on the question
State on the grounds that such Act, of whether or not the Union of Tanzania
regulation, directive, decision or action Press Clubs Case was actually concluded
was unlawful or was an infringement on merit. Without even delving into what
of the provisions of the EAC Treaty. transpired in the Tanzania High Court
Article 33 no doubt conferred on a proceedings, it was clear that the principle
litigant resident in any Partner State, of res judicata had no application to the
the right of direct access to the EACJ instant case.
for determination of the issues set out
therein. There was no requirement that 6. On the question of whether the
before bringing a reference under article application was filed out of time, article
30 of the EAC Treaty, a litigant had to 30(2) of the treaty provided that the
exhaust a local remedy. proceedings should be instituted within
two months of the enactment, publication,
4. Whereas the requirement for exhaustion directive, decision, or action complained
of domestic remedies rule was widely of, or in the absence thereof, of the day
upheld by international courts having in which it came to the knowledge of the
direct jurisdiction over individuals as complainant. The respondent appeared
a treaty requirement and as a rule of to have placed undue emphasis on the
customary international law, the EAC word ‘enactment’ in article 30(2). The
treaty recognized capacity of individuals respondent, in its submission, proceeded
to seek redress for a breach of their rights on the basis that in the legislative process,
enshrined therein against any Partner ‘enactment’ was equated to passing of a
State or an institution of the Community. Bill in parliament. Reading article 30(2)
Article 31 gave the locus standi to any of the treaty, it was clear that the law
person to have direct access to the EACJ known as Media Services Act, 2016,
and the EAC Treaty had not provided became law after firstly, being passed
the exhaustion of local remedies as by the Parliament of the respondent on
a condition for the admissibility of November 5, 2016 and secondly, being
petitions brought by individuals before assented to by the President of the said
the Court. The applicants were residents respondent State on November 16, 2016.
of the respondent State who sought to The passage of the Bill by Parliament
exercise their rights under article 30 of was only one step towards the making of
the treaty to approach the Court directly the law. Prior to the Act being assented
for determination of the legality of an Act to by the President, there was no law in
of the respondent on the grounds that respect of which there could have been
such Act was unlawful or an infringement a complaint. Indeed, as regards article
of the provisions of the treaty. The court 30(2) of the EAC Treaty, the focus was
was bound to take up jurisdiction under on ‘the action complained of.’ The action
articles 23 and 27 of the EAC treaty. complained of against the respondent

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was the enactment of the Media Services d. ‘Unwarranted invasion’ also failed the
Act, which became law on November 16, test of clarity and precision.
2016 upon assent by the President. The e. The phrase “infringe lawful
applicants were well within time, in terms commercial interests”, in subsection
of article 30(2), in filing the reference on (g), “hinder or cause substantial
January 11, 2017. harm” in subsection (h), “significantly
undermines” in (i) and “damage
7. The EACJ had jurisdiction under the information holder’s position”,
articles 23 and 27 of the EAC Treaty; the all, similarly fell short of clearly
applicants were well within their right defining the scope and extent of the
under article 30; the issue of res judicata respective content restrictions, to
did not arise; and in terms of article 30(2) enable journalists and other persons
the reference was filed within time. to properly appreciate the limitation
8. In answering the question on what was to the right to freedom of expression
the test to be applied by the EACJ in or to be clear on what was prohibited.
determining whether a national law met 10. On the second limb of the three tier
the expectations of the treaty, and finding test, the objective of the law had to have
no answer in the treaty itself, the courts been pressing and substantial that it
had previously adopted a three part test had to have been important to society.
set out as; The aim of the content restrictions in
a. the limitation that was prescribed by section 7 of the Media Services Act was
law had to have been part of a statute, not self-evident. Article 19(3) of the of
and had to be clear, and accessible to International Covenant on Civil and
citizens so that they were clear on Political Rights (ICCPR) provided that
what was prohibited; free expression could be limited for
b. the objective of the law had to respect of rights or reputation of others;
be pressing and substantial and or for the protection of national security
important to the society; and or of public order, or of public health or
c. the state, in seeking to achieve its morals. The respondent did not submit or
objectives ought to have chosen a otherwise sought to demonstrate to the
proportionate way to do so. That was court that the impugned sections of the
the test of proportionality relative to Media Services Act contained restrictions
the objectives or purpose it sought to which were necessary or appropriate to
achieve. the legitimate aim sought to be achieved.
9. When subjected to the three tier test 11. For the above reasons, the impugned
above, several impugned provisions of provisions of section 7 of the Media
section 7(3) of the Act failed the first test Services Act, 2016 of Tanzania failed
as being vague, unclear and imprecise; the first test of the three tier test. That
a. Under section 7(3) (a), the word failure was by reason of the broad and
‘undermine’ which formed part of imprecise wording used in the sections,
the offence, was too vague to be of with the result that the provisions did
assistance to a journalist or other not make it clear to citizens what was
person, who sought to regulate their exactly prohibited such that they could
conduct within the law. regulate their actions. That failure alone
b. The word ‘impede’ was vague and constituted a violation of the right to
would not meet the United Nations press freedom and freedom of expression
Human Rights Committee’s guidance which in turn translated into a breach
that laws had to contain rules which of the fundamental and operational
were sufficiently precise, to allow a principles set out in articles 6 and 7 of
person in charge of their application the EAC Treaty. Under article 6(d) and
to know what forms of expression 7(2) of the EAC Treaty, the principles
were unduly restricted. of democracy had to, of necessity, have
c. The Act did not define ‘hate speech’ included adherence to press freedom,
and therefore, in the context, the term and free press went hand in hand
was vague and potentially too broad. with principles of accountability and

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transparency which were also entrenched offence created by section 35 fell short on
in articles 6(d) and 7(2) of the Treaty. clarity. With regard to the second tier of
the test on legitimate aim, the respondent
12. The respondent failed to establish there submitted that the restrictions in sections
was a legitimate aim being pursued by in 35 and 40 of the Media Services Act were
enacting the limitation in the impugned intended to ensure the rights, freedoms,
section of the Media Services Act, 2016, privacy and reputation of other people
or indeed that the said limitations were or interest of public were not prejudiced
proportionate to any such aim. Therefore, by wrongful exercise of the rights and
the cited provisions of section 7 of the freedoms of individuals. That failed to
Media Services Act were in violation of meet the parameters set by the United
articles 6(d) and 7(2) of the treaty. Nations Human Rights Committee,
13. Sections 13, 14, 19, 20 and 21 of the Media in its General Comments 34, that the
Services Act established and dealt with a respondent ought to demonstrate a direct
system of accreditation of journalists and and immediate connection between the
media houses. Accreditation per se was specific threat, and the specific action
not objectionable. In the instant reference taken. The restriction by creation of
also, there was nothing objectionable the offence of criminal defamation also
to either section 13 which dealt with therefore failed on the second tier of the
functions of the Board or section 14 of test.
the Act which dealt powers of the said 16. On the third tier, General Comment 34
Board when read with section 21(4), (5) of the United Nations Human Rights
and (6) of the Act. Committee stated that the mode of
14. In the context of section 19 of the restriction to be adopted to meet the
Media Services Act, it was not clear criterion of proportionality should “be the
what legitimate aim the accreditation least intrusive protective function.” The
requirement therein (as a limitation to the practice of imposing criminal sanctions
right to freedom of expression) pursued. on sedition, defamation, libel and false
A system of compulsory accreditation of news publication had a chilling effect
journalists did not pursue the legitimate that could unduly restrict the exercise of
aim of public order, safety and protection freedom of expression of journalists. The
of the rights and reputation of others. application of such law would amount to
Sections 20 and 21 of the Media Services a continued violation of internationally
Act flew from section 19 and they stood guaranteed rights of the applicants.
or fell together. Sections 19 did not pass Sections 35, 36, 37, 38, 39 and 40 of the
the three tier test. Sections 19, 20 and Act violated the provisions of articles 6(d)
21 of the Media Services Act, when read and 7(2) of the EAC Treaty.
together, violated articles 6(d) and 7(2) of 17. Section 50 of the Media Services Act
the Treaty. created what were therein described
15. Sections 35, 36, 37, 38, 39 and 40 comprised as offences relating to media services
part V of the Media Services Act and dealt while section 54 created the offence of
with the offence of criminal defamation. publication of a false statement likely to
When applied to the three tier test, section cause fear and alarm. Applying the test
35, which defined defamation, was not above, and in particular the first limb
sufficiently precise to enable a journalist thereof, section 50 seemed to be largely
or other person to plan their actions unobjectionable. However, subsection
within the law. The definition made the 1(c) failed the test in that “threatening
offence continuously elusive by reason of the interests of defence, public safety,
subjectivity. An intending publisher, for public order, the economic interests of
the purposes of that section, would not the United Republic, public morality
have predicted that what they intended or public health”, was too broad and
to publish concerning X was likely to imprecise to enable a journalist or
expose X to hatred, contempt or ridicule other person to regulate their actions.
and therefore injure X’s reputation. The Similarly, in section 54, the phrase “likely
to cause fear and alarm to the public or to
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 BB Issue 45, April - June 2019

disturb the public”, was too vague and did article 19 of the ICCPR as well as article
not enable individuals to regulate their 9 of the African Charter on Human and
conduct. Therefore, sections 50(1)(c)(i) People’s Rights (ACHPR). Section 58 gave
and 54 of the Media Services Act were the minister absolute discretion while
in violation of article 6(d) and 7(2) of the section 59 contemplated that it was the
Treaty. Minister who would determine that the
content of a publication jeopardized
18. Section 52 of the Media Services Act national security or public safety, and
defined “seditious intention” and section prohibit or otherwise sanction such
53 created what it described as seditious publication. A provision that gave
offences. Section 52(1) of the Act a government power to prohibit a
failed the test of clarity and clarity was publication, invited censorship and
required in the first limb of the test. The seriously endangered the rights of the
definitions of sedition in the said section public to receive information, protected
were hinged on the possible and potential by article 9(1) of the ACHPR. Sections 58
subjective reactions of audiences to and 59 of the Act contained provisions
whom the publication was made. That that constituted disproportionate
made it all but impossible, for a journalist limitations on the right to freedom of
or other individual, to predict and thus, expression. The absolute nature of the
plan their actions. Section 52(3) of the discretion granted to the Minister, as well
Act compounded that problem in that, as the lack of clarity on the circumstances
“the consequences which would naturally in which such Minister would impose
follow” would be entirely dependent on a prohibition, made the provisions
the subjective reaction of the person or objectionable relative to the rights being
audience to whom the publication was restricted. Sections 58 and 59 of the
made. The restrictions and vagueness Media Services Act were in violation of
with which those laws were framed and articles 6 (d) and 7 (2) of the EAC Treaty.
the ambiguity of the mens rea (seditious
intention) made it difficult to discuss 21. Sections 7(3)(a), (b), (c), (f), (g), (h), (i), and
with any certainty what constituted the (j); sections 19, 20 and 21; sections 35,
seditious offence. 36, 37, 38, 39 and 40; sections 50 and 54;
sections 52 and 53; and sections 58 and
19. Read together, sections 52 and 53 of 59 contravened articles 6 and 7 of the
the Media Services Act fell foul of the EAC Treaty.
proportionality part of the three tier
test. Section 53(d) imposed custodial 22. Sections 13 and 14 were not in violation
sentences for the offences created therein. of the EAC Treaty.
Apart from serious and very exceptional Application partly allowed.
circumstances, for example, incitement Orders
to international crimes, public incitement i. A declaration that the provisions of sections
to hatred, discrimination or violence or 7 (3) (a), (b), (c), (f), (g), (h), (i), and (j);
threats against a person or a group of sections 19, 20 and 21; Sections; 35, 36, 37,
people, because of specific criteria such 38, 39 and 40; sections 50 and 54; sections
as race, colour, religion or nationality, the 52 and 53; and sections 58 and 59 of the
violations of laws on freedom of speech Media Services Act, 2016 of United Republic
and the press could not be sanctioned of Tanzania violated articles 6 (d) and 7 (2)
by custodial sentences, without going of the Treaty for the Establishment of the
contrary to Treaty provisions. For those East African Community,
reasons, and in the circumstance, sections ii. The United Republic of Tanzania was
52 and 53 of the Tanzanian Media Services directed to take such measures as were
Act violated the provisions of articles 6(d) necessary, to bring the Media Services Act,
and 7(2) of the EAC Treaty. 2016, into compliance with the Treaty
20. The powers granted to the Minister in for the Establishment of the East African
sections 58 and 59 of the Media Services Community; and,
Act were far reaching, and clearly placed iii. Each party was to bear their own costs.
limitations on the rights stated both in

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Botswana High Court declares sections 164(a), (c) and 165 of the Botswana
Penal Code criminalizing homosexual acts between two adults in private as
unconstitutional as they violated the right to liberty, privacy, dignity and non-
discrimination
Letsweletse Motshidiemang v Attorney General; LEGABIBO (Amicus Curiae)
MAHGB-000591-16
High Court of Botswana at Gaborone
M Leburu, A B Tafa, J Dube, JJ
June 11, 2019
Reported by Linda Awuor & Faith Wanjiku

Constitutional Law- fundamental rights was something that he had learnt to live
and freedoms-right to liberty, privacy, dignity with whilst growing up since the age of ten.
and non-discrimination– sexual orientation- Whilst growing up, he knew that he was
consensual sex between adult same-sex couples different and such difference had long been
in private-whether sections 164(a); 164(c) and recognized by his parents.
165 of the Penal Code on unnatural offences
were ultra vires the Constitution, in that they The applicant was taunted and called
violated the right to liberty, privacy, dignity and degrading names because of his disposition.
non-discrimination -Constitution of Botswana, It was at junior school, after he had managed
sections 3, 9 and 15; Penal Code, sections 164 (a); to summon his guts and courage that he
(c) and 165 expressed his feelings to another boy and
informed him that he loved him. As an adult
Constitutional Law- fundamental rights and now, it was the applicant’s averment that
freedoms- right to privacy-sexual orientation- nothing had changed, he still loved men and
consensual sex between adult same-sex couples he was sexually attracted to men. Currently,
in private -unconstitutionality of private he was in a sexually intimate relationship
indecency- where a court could severe a provision with a man.
so as to remedy its unconstitutionality-nature
and scope of the doctrine of severability-whether The impugned sections 164(a),(c) and 165 of
section 167 of the Penal Code, which sought to the Penal Code of Botswana (Penal Code),
regulate conduct deemed grossly indecent, done according to the applicant, proscribed and
in private was a violation of one’s privacy or prohibited him from exercising, enjoying
liberty and ought to be severed to remedy its and engaging in sexual intercourse with a
unconstitutionality man per anum; which as a homosexual was
his only mode of sexual intercourse. He also
Statutes- interpretation of statutes- interpretation alleged that they violated his right to privacy,
of sections 164 (a); (c) and 165 of the Penal liberty, dignity and non-discrimination.
Code-unnatural offences- where the provisions
of sections 164 (a);(c) and 165 were contested
for being vague - presumption of validity or Issues
constitutionality of a provision of an Act- nature
i Whether sections 164(a); 164(c) and
and scope of the doctrine of vagueness-whether
165 of the Penal Code on unnatural
section 164(a), section 164(c) and section 165 of
offences were ultra vires the
the Penal Code should be struck down for being
Constitution, in that they violated the
unconstitutional due to the vagueness of the said
right to liberty, privacy, dignity and
sections; particularly with respect to the meaning
non-discrimination.
of “carnal knowledge” “against the order of
ii Whether section 167 of the Penal
nature”
Code, which sought to regulate
Brief Facts conduct deemed grossly indecent,
done in private was a violation
The applicant was a 24 year old student of the of one’s privacy or liberty and
University of Botswana and a homosexual. ought to be severed to remedy its
According to him, being homosexual was unconstitutionality.
not something new in his life but that it iii Whether section 164(a), section 164(c)

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and section 165 of the Penal Code of that precinct would be a breach of
should be struck down for being everyone’s privacy.
unconstitutional due to the vagueness
of the said sections; particularly with 4. Sexuality was a wonderful gift from God.
respect to the meaning of “carnal It was more than genital behavior. It’s the
knowledge” “against the order of way everyone embodied and expressed
nature”. themselves in the world. But all could not
love another person intimately without
Held embodying that love; without using
their bodies to love. And that did involve
1. The Penal Code did not define what
genital behavior. Sexual love was for the
carnal knowledge and the order of nature
purpose of giving and receiving pleasure
were. As a matter of general proposition,
with one’s most intimate partner. It was
it was prudent and logical that words
a means of deepening and strengthening
used in an enactment, should be defined
the intimate union that existed. That
in the same piece of legislation. Where
could only be healthy and good if
there were no definitions, the court as
everyone’s behavior was consistent with
final arbiter, could provide a definition.
who they were and with whom they
The importance of a court-given
loved, and when they were true to their
definition could not be ignored because
own sexuality and orientation.
courts were sources of law.
5. Anal sexual penetration and any attempt
2. In the case of Gaolete v State [1991] carnal
thereof were prohibited and criminalised
knowledge was defined by the court
by sections 164(a), (c) and 165 of the
as sexual intercourse, and the order
Penal Code. Effectively, the applicant’s
of nature was defined as anal sexual
right to choose a sexual intimate partner
penetration. The same definitions were
was abridged. His only mode of sexual
embraced by the highest court of the
expression was anal penetration; but
land in Kanane v the State [2003] (Kanane
the impugned provisions forced him
case) and the instant court was thus
to engage in private sexual expression
bound by such definition. On that basis,
not according to his orientation; but
the provisions of section 164 (a) and (c)
according to statutory dictates. Without
were not vague, having regard to the
any equivocation, his liberty had been
definition accorded thereto.
emasculated and abridged.
3. The choice of a partner, the desire for
6. Sexual intercourse was not just for
personal intimacy, and the yearning
purposes of procreation. It constituted
to find love and fulfilment in human
an expression of love and intimacy. The
relationships had universal appeal,
impugned sections denied the applicant
straddling age and time. In protecting
the right to sexual expression in the only
consensual intimacies, the Constitution
way available to him. Such a denial and
adopted a simple principle: the State
criminalization went to the core of his
had no business to intrude into those
worth as a human being. Put differently,
personal matters. Nor could societal
it violated his inherent dignity and self-
notions of heteronormativity regulate
worth. All human beings were born free
constitutional liberties based on sexual
and equal in dignity. Dignity acted as a
orientation. Privacy recognised that
core of a diverse but interrelated body
everyone had a right to a sphere of private
of inalienable rights. Human dignity
intimacy and autonomy which allowed
referred to the minimum dignity and
everyone to establish and nurture human
belonged to every human being qua
relationships without interference from
human. It did not admit of any degrees.
outside the community. The way in
It was equal for all humans.
which everyone gave expression to their
sexuality was at the core of the area of 7. Criminalising consensual same sex in
private intimacy. If, in expressing their private, between adults was not in the
sexuality, they acted consensually and public interest. Such criminalisation, it
without harming one another, invasion had been shown by evidence availed by
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 BB Issue 45, April - June 2019

the amicus, disproportionally impacted 10. The constitutional ethos of liberty,

on the lives and dignity of LGBT persons. equality and dignity were paramount. The
It perpetuated stigma and shame against Constitution was a dynamic, enduring
homosexuals and rendered them recluse and a living charter of progressive rights;
and outcasts. There was no victim within which reflected the values of pluralism,
consensual same sex intercourse inter se tolerance and inclusivity. Minorities,
adults. There was no compelling state who were perceived by the majority
interest that was there, necessitating as deviants or outcasts were not to be
such laws. Private places and bedrooms excluded and ostracized. Discrimination
should not be manned by sheriffs to had no place in the world. All human
police what was happening therein. Such beings were born equal. According
penal provisions exceeded the proper to Nelson Mandela, a paragon and
ambit and function of criminal law in epitome of humility, dignity, sagacity
that they penalised consensual same and tolerance, in response to some
sex, between adults, in private, where divergent views that homosexuality was
there was no conceivable victim and un-African he stated that homosexuality
complainant. was just another form of sexuality that
had been suppressed for years. It was
8. The impugned penal provisions something that was being lived with.
oppressed a minority and then targeted
and marked them for an innate attribute 11. There had to remain a realm of private
that they had no control over and which morality and immorality, which
they were singularly unable to change. should not be the province of the law,
Consensual sex conduct, per anus, was particularly where there was no victim
merely a variety of human sexuality. or complainant and when such conduct
Even if the respondent’s public interest was consensual. In the event that there
or morality justification was to be could be indecency with a minor and/
subjected to the criterion of reasonable or an adult, without the consent of the
and justifiable in an open democratic said adult, but done in private, there
society, such justification did not pass were adequate penal provisions to deal
constitutional muster. The test of what with such infraction. No justification
was reasonably justifiable in a democratic had been given by the respondent as
society was an objective one. There was to why a person’s right to privacy and
nothing reasonable and justifiable by autonomy ought to be curtailed, relating
discriminating against fellow members to consensual acts done in private. In any
of a diversified society. The state had event, such curtailment of fundamental
failed to single out the objective that was rights could not be justified within the
intended to be satisfied by the impugned democratic dispensation, nor did such
provisions. abridgment satisfy the proportionality
test. It was accordingly ordered that
9. In the Kanane case, the Court of Appeal, the word “private” be and was thereby
in 2003, said time had not yet arrived to severed and excised from section 167 of
decriminalise homosexuals’ practices. the Penal Code.
With the greatest of respect and
deference, the instant court said, dies Application allowed; costs to the applicant; no
venit, or simply put, time had come that order as to costs in relation to the amicus curiae-
private same sexual intimacy between LEGABIBO.
adults had to be decriminalised, as it was
thereby proclaimed. The retention of the Orders:
sodomy provisions in the Penal Code, (a) Sections 164(a), 164(c) and 165 of
imposed unconstitutional burden on the the Penal Code (Cap 08:01), Laws of
applicant’s fundamental rights of privacy, Botswana be and were thereby declared
dignity, liberty and equal protection ultra vires sections 3, 9 and 15 of the
of the law; taking into account that the Constitution and were accordingly struck
applicant’s only available sexual avenue, down;
was per anum. (b) The word “private” in section 167

71
 BB Issue 45, April - June 2019

of the Penal Code was severed and to issues to do with same sex adult couples.
excised therefrom and the section to be In Eric Gitari v Non- Governmental
accordingly amended. Organisations Co-ordination Board & 4
others [2015] eKLR, the petitioner sought to
Relevance to the Kenyan Situation
register an NGO on protection of the human
The Constitution of Kenya, 2010 provides rights of those who belong to the LGBTIQ
for the national values and principles of community. His application was made to the
governance in article 10 (2) (b) to include NGO Co-ordination Board which declined it
human dignity, non-discrimination and contending that the Penal Code criminalized
equality. gay and lesbian liaisons as they went against
the order of nature.
Article 27 provides for equality and freedom
from discrimination and that every person The Court however held that the Constitution
is equal before the law and has the right to of Kenya, 2010 in article 36 granted every
equal protection and equal benefit of the law. person the right to form an association of
Sub-article 4 provides further that the state any kind and that an application to form
shall not discriminate directly or indirectly an association could only be refused on
against any person on any ground, including reasonable grounds. It went on further to
sex. Article 28 provides for human dignity state that the fact that the State did not set
and that every person has inherent dignity out to prosecute people who confessed to
and the right to have that dignity respected be lesbians and homosexuals in the country
and protected. Article 31 provides that was a clear manifestation that such sexual
everyone has the right to privacy which orientation was not necessarily criminalized.
includes the right not to have their person, More importantly, the Penal Code did not
home or property searched. criminalize the right of association of people
based on their sexual orientation, and did
The Penal Code Cap 63 Laws of Kenya not contain any provision that limited the
provides in section 162 that any person freedom of association of persons based on
who has carnal knowledge of any person their sexual orientation.
or permits a male person to have carnal
knowledge of him or her against the order The same case was followed by an appeal
of nature, is guilty of a felony and is liable to at the Court of Appeal by the respondents
imprisonment for fourteen years. in Non-Governmental Organizations
Co-Ordination Board v EG & 5 others
Section 165 provides that any male person [2019] eKLR. The Court of Appeal upheld
who, whether in public or private, commits the High Court’s decision in a majority
any act of gross indecency with another male decision and held that the Constitution
person, or procures another male person to extended the definition of ‘person’ from
commit any act of gross indecency with him, only the natural, biological human being
or attempts to procure the commission of to include legal persons. Neither article 36
any such act by any male person with himself of the Constitution nor the definition of
or with another male person, whether in “person” in article 260 of the Constitution
public or private, is guilty of a felony and is created different classes of persons based
liable to imprisonment for five years. on sexual orientation. It further held that
Article 1 of the Universal Declaration of it was arbitrary to speculate and categorize
Human Rights, 1948 provides that all human LGBTIQ as persons who had the propensity
beings are born free and equal in dignity to destroy a society by contravening the
and rights. Article 2 provides that everyone provisions of the Constitution or the Penal
is entitled to all the rights and freedoms Code, or as a group bent on ruining the
set forth in this Declaration, without institution of marriage or culture.
distinction of any kind which includes sex. In Eric Gitari v Attorney General & another
Article 7 provides that all persons are equal [2016] eKLR, the petitioner brought a petition
before the law and are entitled without any before the High Court seeking inter-alia a
discrimination to equal protection of the law. declaration of sections 162 and 165 of the
There has been case law in Kenya pertaining Penal Code, Cap 63 to be unconstitutional,

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 BB Issue 45, April - June 2019

and accordingly void and invalid to the held that unless article 45(2) was amended to
extent that they purport to criminalise recognize same sex unions, it was difficult
private consensual sexual conduct between to agree with the petitioners’ argument,
adult persons of the same sex, as mandated by that, there could be safe nullification of the
articles 2 (4), and 23 (3) (d) of the Constitution impugned provisions, whose effect would
of Kenya, 2010. The Court held that the be to open the door for same sex unions
matters raised in the Petition were weighty and without further violating article 159 (2)
and had important consequences and raised (e) which enjoined the court to protect and
substantial questions of law under article promote the purpose and principles of the
165 (3) (d) of the Constitution that deserved Constitution.
the constitution of a bench of Judges by the
Chief Justice for hearing and determination. Matters of the LGBTIQ are sensitive
emerging issues currently globally and
The bench was constituted in EG & 7 others various international jurisdictions are
v Attorney General; DKM & 9 others decriminalizing homosexuality with
(Interested Parties); Katiba Institute & Botswana, an African country, being the
another (Amicus Curiae) and the three latest. The case will therefore serve as an
judge bench ruled that section 162 (a) (c) of important precedent should Kenya decide to
the Penal Code on unnatural offences and also decriminalize homosexuality or when
section 165 of the Penal Code on indecent there are pending matters to be determined
practices between males was constitutionally in courts on the rights of the LGBTIQ
compliant and in conformity with the community.
principles of legality. The High Court further
Some rights reserved by Dennis Jarvis

It takes an influential leader to excellently raise up leaders of influence ―

Anyaele Sam Chiyson
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 BB Issue 45, April - June 2019

Law Reform
Compilation April - May, 2019
Compiled by Linda Awuor & Faith Wanjiku

LAW REFORM ISSUE BRIEF FACTS & METADATA OF HOLDINGS PERTINENT TO LAW REFORM
JUDGMENT
A. Non-Governmental Organizations 1. The Constitution had ring-fenced its purpose and the
The failure to register the Co-Ordination Board v EG & 5 manner it ought to be construed. After declaring its supremacy in
article 2, the Constitution proceeded in article 10 to bind everyone
Lesbian, Gay, Bisexual, others [2019] eKLR
who applied and interpreted it or any other law or made public
Transgender, Intersex Court of Appeal at Nairobi policy, to the national values spelt out therein including: human
and Queer (LGBTIQ) Civil Appeal No. 145 of 2015 dignity, equity, social justice, inclusiveness, equality, human rights,
Community Rights P N Waki, M K Koome, R N non-discrimination and protection of the marginalized.
Group as an NGO by Nambuye, D K Musinga & M S 2. The principles of the rule of law, participation of the
people, equity, inclusiveness, equality, human rights, transparency
the Non-Governmental Asike Makhandia, JJA
and accountability were binding. The Constitution opened
Organizations March 22, 2019 up further space for application of other principles and values
Board held to be The 1st respondent floated three obtaining in the general rules of international law and the
unconstitutional names under which he sought international instruments Kenya had ratified, such as, the Universal
to register a non-governmental Declaration on Human Rights, the International Covenant on Civil
and Political Rights (ICCPR), and the International Covenant on
organization (proposed NGO) with
Economic, Social and Political Rights (ICESCR).
the appellant, seeking to address 3. The Constitution laid out an expansive Bill of Rights
human rights abuses and violations for the purpose of recognizing and protecting human rights
suffered by the Lesbian, Gay, and fundamental freedoms in order to preserve the dignity of
Bisexual, Transgender, Intersex individuals and communities, promote social justice and the
realization of the potential of all human beings’. In articles 20 (3)
and Queer persons (LGBTIQ)
and (4), it gave an edict to the courts as they applied the Bill of
in Kenya and which request was Rights to develop the law where it did not give effect to a right;
rejected by the appellant’s Executive adopt the interpretation that most favoured the enforcement
Director(Director) precipitating the of a right or fundamental freedom and promote the values that
1st respondent to file a petition at underlay an open and democratic society based on human dignity,
equality, equity, freedom and the spirit, purport and objects of the
the High Court on the ground that
Bill of Rights.
his right to freedom of association, 4. In article 259, the Constitution commanded the manner
dignity, equality and right not to in which it should be interpreted. It also demanded that every
be discriminated against had been provision of the Constitution be construed according to the
violated among other grounds. The doctrine of interpretation that the law was always speaking. The
Constitution had to be interpreted in a manner that eschewed
High Court allowed the petition and
formalism, in favour of the purposive approach and in a holistic
held that the right to equality before manner within its context and in its spirit.
the law would not be advanced if 5. The people in Kenya who answered to any of the
people were denied the right not descriptions in the acronym LGBTIQ, were persons. Article 36 of
to be discriminated against based the Constitution covered the persons in that group. Like everyone
else, they had a right to freedom of association which included
on their sexual orientation. The
the right to form an association of any kind. That was the literal
appellant was aggrieved by the High wording of article 36 (1) which had no hidden meaning. Article
Court’s decision and thus filed the 260 of the Constitution provided further clarity to the definition
instant appeal. of person. Construing ‘person’ to refer only to the sane and law
abiding people would be unduly stretching the ordinary meaning
of the words used in the Constitution.
6. The Penal Code did not criminalize the persons answering
to the description LGBTIQ qua such persons. What it provided
for were specific offences, more specifically, unnatural offences,
attempts to commit unnatural offences, and indecent practices
between males. Those were sections 162, 163 and 165 of the Penal
Code, respectively. Like everyone else, LGBTIQ persons were
subject to the law and would be subjected to its sanctions if they
contravened it. Convicting such persons before they contravened
the law would be retrogressive.

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7. According to the proposed NGO’s objectives, the

1st respondent intended to register the NGO to among other
things conduct accurate fact finding, urgent action, research and
documentation, impartial reporting, effective use of the media,
strategic litigation and targeted advocacy in partnership with local
human rights groups on human rights issues relevant to the gay
and lesbian communities living in Kenya. On the face of it, there
was nothing unlawful or criminal about such objectives. However,
they never reached the stage of proper consideration by the Board
because the main gate to the boardroom was locked.
8. Article 36 of the Constitution granted every person
the right to form an association of any kind. It also provided that
an application to form an association could only be refused on
reasonable grounds and no person could be compelled to join
an association. That was the breadth of the right of freedom of
association as provided for in the Constitution. It covered every
person and any kind of association. It could only be limited in terms
of law and only to the extent that the limitation was reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom. An individual human being,
regardless of his or her gender or sexual orientation, was a person
for the purposes of the Constitution.
9. The Constitution extended the definition of ‘person’
from only the natural, biological human being to include legal
persons. Neither article 36 of the Constitution nor the definition of
“person” in article 260 of the Constitution created different classes
of persons. There was nothing that indicated that the Constitution,
when referring to ‘person’, intended to create different classes
of persons in terms of article 36 based on sexual orientation.
Moreover, articles 20(3) and (4) of the Constitution provided that a
court adopt the interpretation that most favoured the enforcement
of a right or fundamental freedom and promoted the values that
underlay an open and democratic society based on human dignity,
equality, equity and freedom and the spirit, purport and objects of
the Bill of Rights.
10. Article 20 (1) of the Constitution provided that the Bill
of Rights applied to all persons. Article 259 of the Constitution
provided that the Constitution had to be interpreted in a manner
that advanced human rights and fundamental freedoms. The term
“every person” in article 36 of the Constitution properly construed
did not exclude homosexual person and the 1st respondent
therefore fell within the ambit of article 36 which guaranteed to all
persons the right to freedom of association. The right to freedom
of association was also expressly recognised in international
covenants to which Kenya was a party.
11. [OBITER DICTA] The issue of persons in the society
who answer to the description lesbian, bisexual, gay, transsexual,
intersex and queer (LGBTIQ) is rarely discussed in public. The
reasons for such coyness vary. But it cannot be doubted that it is an
emotive issue. The extensive and passionate submissions made in
this matter before the High Court, and before us, is testimony to the
deep rooted emotions that the issue can easily arouse. It is possible
for the country to close its eyes and hearts and pretend that it has
no significant share of the people described as LGBTIQ. But that
would be living in denial. We are no longer a closed society, but fast
moving towards the ‘open and democratic society based on human
dignity, equality, equity, and freedom’ which the Constitution
envisages. We must therefore, as a nation, look at ourselves in the
mirror. It will then become apparent that the time has come for
the peoples’ representatives in Parliament, the Executive, County
Assemblies, Religious Organizations, the media, and the general
populace, to engage in honest and open discussions over these
human beings. In the meantime, I will not “.. be the first to throw a
stone at her [LGBTIQ]”.

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B. Eliud Waweru Wambui v Republic 1. As the appeal was a second appeal, the Court’s jurisdiction
Court of Appeal Court of Appeal at Nairobi was confined to a consideration of questions of law only by dint of
section 361(a) of the Criminal Procedure Code. The memorandum
recommends review of Criminal Appeal No 102 of 2016
of appeal framed raised questions of law. The Court’s interaction
age of sexual consent R N Nambuye, D K Musinga & P O with those grounds could of course involve, as in the complaint
under the Sexual Kiage, JJA that the Trial Court did not re-evaluate the evidence, a reference
Offences Act March 22, 2019 to the facts as they emerged from the evidence that was tendered
The appellant was arrested nearly before the Trial Court. Such reference was not the same as hearing
an appeal on a matter of fact which the Court was statutorily
a decade ago, arraigned before the
debarred to do.
Chief Magistrate’s Court at Thika 2. The appellant’s complaint that the first Appellate Court
on a charge of defilement contrary did not subject the evidence to fresh scrutiny, analysis and re-
to section 8(1)(4) ,an alternative evaluation was not an idle one. A first appeal always proceeded by
charge of indecent act contrary to way of re-hearing based on the evidence on record and an appellant
was therefore entitled to expect that the first Appellate Court would
section 11(1) of the Sexual Offences
go beyond a mere rehearsing of what was on record or a repetition
Act, No. 3 of 2006 (Act). He was of the findings of the Trial Court.
found guilty and sentenced to 15 3. The High Court was required to, and had to be seen to
years’ imprisonment. The appellant have consciously and deliberately subjected the entire evidence to
relied on the following grounds; thorough scrutiny so as to arrive at its own independent conclusions
on the factual issues in contention, and to determine on its own, the
that the 1st appellate court erred
guilt or otherwise of the appellant. The only limitation to its task
in law and fact by failing to notice being a remembrance that it was without the advantage, enjoyed
that essential ingredients/elements by the Trial Court, of seeing and observing the witnesses as they
of the offence as charged were not testified, for which it had to make due allowance.
proved; that the 1st appellate Court 4. The importance of proving the age of a victim of
defilement under the Sexual Offences Act by cogent evidence could
erred in law by failing to notice that
not be gainsaid. It was not in doubt that the age of the victim was
the appellant reasonably believed an essential ingredient of the offence of defilement and formed an
that the complainant had granted important part of the charge because the prescribed sentence was
her consent and that she had dependent on the age of the victim.
capacity to grant the said consent 5. A Photostat copy of the alleged birth certificate produced,
which copy was not certified as required by section 66 of the
and he believed she was full of age
Evidence Act when permitting the production of secondary
and capacity to contract a marriage. evidence if primary evidence, which was the document itself, was
not produced for the inspection of the Court and the contents of
the document were sought to be proved by secondary evidence, was
not a document that could be relied on in proof of the complainant’s
age. Further, the document itself purported to have been issued
before the birth of the complainant, evidence of which it purported
to be, was a logical impossibility. Therefore, the document as was,
was of no probative value.
6. There was no age assessment as such that was done on the
complainant whereas the P3 Form that was produced indicated 17
years as the approximate age of the person examined, namely the
complainant. The other evidence of age was that of the complainant
herself which, other than being hearsay in character, was no more
illuminating. The complainant stated that on November 14, 2009,
she got married to the appellant and she was about 17 years having
been born on October 3, 1991. Simple arithmetic showed that
as at that date she would have been 18 years and one month old.
She further stated that she conceived in May 2009 which would
place her age at 17 years and 6 months at the time but, one could
not speak competently on her date of birth as she could not have
witnessed it and the only document that was produced of the same
was of no probative value.

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7. The totality of the evidence on age was that it did not

possess the consistency and certainty that would have proved the
exact date of the complainant’s birth beyond reasonable doubt.
Therefore, had the Trial Court gone into an analysis of the evidence
with the thoroughness that was required of it, it would probably
have arrived at a different conclusion. In failing to engage in that
exhaustive re-evaluation, it fell into error and the lingering doubts
had to be resolved in favour of the complainant.
8. The conduct of the police raised doubts as to the bona
fides of the prosecution which was made worse by the admitted
demand by the complainant’s father, in a meeting at the Chief’s
office, attended by two elders no less, for the sum of Kshs 80,000
from the appellant who, incidentally, had been his tenant. During
cross examination PW2 stated that the Kshs 80,000 “was to take
care of the education expenses” he had used on the complainant and
not dowry, but the critical point was the admission that had it been
paid the matter would have rested.
9. The picture that emerged was of a father righteously
indignant that his daughter had been seduced and put in the family
way, and who would have the culprit prosecuted unless he would
pay some kind of compensation. That too, raised questions as to
whether the prosecution was for the proper purpose of enforcing
the law or settling a score. At any rate, the effect was to whittle the
reprobate value of the father’s evidence and to lend credence to the
appellant’s contention that both the father and chief did know that
the girl was of age.
10. A witness in a criminal case upon whose evidence it
was proposed to rely should not create an impression in the mind
of the Court that he was not a straightforward person, or raise a
suspicion about his trustworthiness, or do (or say) something which
indicated that he was a person of doubtful integrity, and therefore
an unreliable witness which made it unsafe to accept his evidence.
The evidence of PW2, properly evaluated, would have been in the
category of an unreliable witness.
11. Section 8 (5) of the Sexual Offences Act stated that it was
a defence to a charge of defilement if the child deceived the accused
person into believing that she was over the age of 18 years and the
accused reasonably believed that she was over 18 years. Subsection
(5) was a curious provision in so far as it was set in conjunctive as
opposed to disjunctive terms which would seem to be more logical.
Once a person had actually been deceived into believing a certain
state of things, it added little to require that his belief be reasonably
held.
12. A reading of section 8 (6) of the Sexual Offences Act
seemed to add a qualification to subsection (5) (b) that separated
it from the belief proceeding from deception in subsection (5) (a).
Therefore, the elements constituting the defence should be read
disjunctively if the two sub-sections were to make sense. Further,
it stood to reason that a person was more likely to be deceived into
believing that a child was over the age of 18 years if the said child
was in the age bracket of 16 to 18 years old, and that the closer to
18 years the child was, the more likely the deception, and the more
likely the belief that he or she was over the age of 18 years.
13. The burden of proving that deception or belief fell upon
the appellant, but the burden was on a balance of probabilities to be
assessed on the basis of the appellant’s subjective view of the facts.
Thus, whereas indeed the complainant was still in school in Form
4, that alone would not rule out a reasonable belief that she would
be over 18 years old. It was also germane to point out that a child
need not deceive by way of actively telling a lie that she was over
the age of 18 years. Had the two Lower Courts properly directed
their minds to the appellant’s defence and the totality of the
circumstances of the case, they would in all likelihood have arrived
at a different conclusion on it. It was a non-direction that they did
not do so, rendering the conviction unsafe.
14. [Obiter] “We need to add as we dispose of this appeal
that the Act does cry out for a serious re-examination in a sober,
pragmatic manner. Many other jurisdictions criminalize only sexual
conduct with children of a younger age than 16 years. We think it
is rather unrealistic to assume that teenagers and maturing adults
in the sense employed by the English House of Lords in Gillick v
West Norfolk And Wisbech Area Health Authority [1985] 3 ALL ER
402, do not engage in, and often seek sexual activity with their eyes

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fully open. They may not have attained the age of maturity but
they may well have reached the age of discretion and are able to
make intelligent and informed decisions about their lives and their
bodies. That is the mystery of growing up, which is a process, and
not a series of disjointed leaps.”
15. [Obiter] “Where to draw the line for what is elsewhere
referred to as statutory rape is a matter that calls for serious and
open discussion. In England, for instance, only sex with persons
less than the age of 16, which is the age of consent, is criminalized
and even then the sentences are much less stiff at a maximum of 2
years for children between 14 to 16 years of age. The same goes for
a great many other jurisdictions. A candid national conversation
on this sensitive yet important issue implicating the challenges
of maturing, morality, autonomy, protection of children and the
need for proportionality is long overdue. Our prisons are teeming
with young men serving lengthy sentences for having had sexual
intercourse with adolescent girls whose consent has been held to
be immaterial because they were under 18 years. The wisdom and
justice of this unfolding tragedy calls for serious interrogation.”

C. SNN v Republic 1. It was not contested that the victim was 6 years of age
The High Court High Court at Nyeri and according to section 14 (1) of the Penal Code she could not be
recommends a review Criminal Revision 104 of 2018 criminally liable. Therefore, she could not be charged alongside the
of the Sexual Offences TM Matheka, J applicant and leaving her out could not be said to be discriminative.
Act to create a section January 25, 2019 There was no express or implied requirement that when two
to deal with consensual/ The accused person was facing the children were involved in sexual activity with each other, both of
mutual sexual activities charge of attempted defilement with them should be charged with the offence of defilement. However,
among children and a the alternative charge of committing there was no legal bar to the prosecution preferring criminal
special system to handle an indecent act with a child. charges against both children. In effect, if the prosecution had
such cases. According to the attached certificate reasonable cause to charge both minors, they could do so.
of birth the subject was 16 years old 2. The intentions of the Sexual Offences Act were to protect
at the time of the alleged offence everyone from sexual violence and in particular the vulnerable
while the victim was 6 years of age. members of the society who included children. However, the
The applicant’s counsel argued that Act appeared to have overlooked the fact that children could
since both the accused person and involve themselves in various forms of sexual activity at different
the victim were minors, bringing developmental stages, and that there was a need to provide for that.
the charges against the accused 3. Every sexual infraction that was committed by children
amounted to discrimination on the and whose facts brought it within the Sexual Offences Act was dealt
basis of sex contrary to article 27 (4) within the ambits of criminal law. Courts had struggled with efforts
of the Constitution and article 2(5) to have children who were of same age group and who indulged in
of the United Nations Convention consensual sexual activity treated as children in need of care and
on the Rights of the Child which protection. The question as to whether sexual crimes committed
prohibited discrimination on the by children should be dealt with in the same way as sexual crimes
basis of sex. That any continued committed by adults needed to be dealt with through substantive
prosecution of the accused person review of the Sexual Offences Act to create a section that spoke
was discriminatory and denied him to sexual activities among children who had to be protected from
the equal protection of the law. others and from themselves as well.
4. The charge sheet indicated the apparent age of the accused
as juvenile and the lower Court throughout the proceedings had
been treating the accused as a minor and even ordered for his
custody at a juvenile home. On January 12, 2018, the lower Court
noted that the accused was a student and gave him a personal bond
of Kshs. 50,000/-. On February 26, 2018 when the matter came up
for hearing, the prosecution indicated that the accused was a minor
and sought for directions on him being represented by counsel.
The Court consequently allowed a counsel to come on record for
the accused. The entire conduct of the trial Court in relation to the
applicant indicated that the lower Court was actually persuaded
that the applicant was a minor. The record however did not indicate
that the accused’s age was determined. The non-compliance with
section 143 (1) of the Children Act did not occasion injustice to
the minor.

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5. The revisionary powers of a High Court were very wide.

Such powers were intended to be used by the High Court to decide
all questions as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed by a subordinate
criminal court and even as to the regularity of any proceeding
of any subordinate court. The object of conferring such powers
on the High Court was to clothe the court with a jurisdiction of
general supervision and superintendence in order to correct grave
failure or miscarriage of justice arising from erroneous or defective
orders. Section 364 (1) (a) of the Criminal Procedure Code
conferred on the High Court with all the powers of an appellate
court. The revisionary powers were entirely discretionary and
there was no a vested right of revision in the same sense as there
was a vested right of appeal. The sections did not create any right
in the litigant, but only conserved the powers of the High Court to
see that justice was done in accordance with the recognized rules
of criminal jurisprudence and that subordinate criminal courts did
not exceed their jurisdiction, or abuse the powers vested in them by
the Criminal Procedure Code.
6. In the instant revision, the proceedings were at a
preliminary stage as only one hearing had taken place. The Court
would allow the proceedings at the lower Court to continue subject
to the lower Court conducting an inquiry on the age of the accused
before the hearing starts. The objections to the charges facing the
applicant were unsustainable and there was nothing to revise at
that stage. The matter was to be returned to the lower Court for
hearing and determination.

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D. Midland Energy Limited v George 1. The devise of administration as an alternative to

The makers of the Muiruri t/a Leakeys Auctioneers & insolvency was a new feature in insolvency laws, provided for
Insolvency Regulations another under part VIII of the Insolvency Act, 2015 (the Act). The instant
should make it a High Court at Nairobi proceedings demonstrated tensions that could arise between
requirement that a Insolvency Notice No. E.014 of creditors of a company under administration.
notice of appointment 2018 2. The design of the insolvency laws was to give a second
of an administrator be F Tuiyott, J chance to financially distressed companies. A break from the past
lodged with the Registrar February 19, 2019 where the fate of an ailing company would invariably be a winding
of Companies too so Midland Energy Limited (Midland) up or liquidation order. Administration was one of the alternatives
that a with search on the was granted credit facilities by to liquidation. The objectives of administration were set out in
company it can be found African Banking Corporation section 522 of the Act. To achieve those objectives, the company
out whether or not it is Limited (ABC Bank). As security had to be insulated from aggressive creditors who could cause a run
in administration. for those facilities, a fixed, floating of the company assets. The statute contemplated that upon such
and a supplementary debenture protection, the company would not be distracted from precipitate
was registered in favour of ABC action and so the administrator would be able to perform his
Bank. Synergy Industrial Credit function in the interest of all of the company’s creditors.
Limited (Synergy) also advanced 3. The insulation of the company was provided by way of
hire purchase facilities to Midland a moratorium from other legal processes as provided for under
to assist it purchase 3 new motor sections 560 and 561(4) of the Act.
vehicles. A term and condition of 4. As to when the appointment of an administrator was
the Hire Purchase Agreement was deemed to take effect would depend on the nature of appointment
that 5 motor vehicles which were of the administrator. In the instant matter, ABC Bank appointed the
already under various Hire Purchase joint administrators in its capacity as a holder of a floating charge.
Agreements between the two would The power to make that appointment was drawn from section 534
be held as additional security for the of the Act. The Court did not venture into the procedure in which
credit facilities advanced. the joint administrators were appointed because that had not been
Midland defaulted in its obligations challenged.
to both ABC Bank and Synergy. 5. Under the provisions of section 538 of the Act, the
The creditors took different paths appointment of an administrator by a holder of a floating charge
in seeking relief for the default. took effect when the requirements of section 537 of the Act were
Synergy repossessed the vehicles satisfied. Reading sections 534 and 537 of the Act, it meant that the
under Hire Purchase on December appointment of an administrator took effect upon the appointer
20, 2018. ABC Bank on the other lodging with the Court a notice of appointment which was in
hand appointed 2 persons as compliant with the provisions of section 537 of the Act. The notice
joint administrators to Midland. of appointment was lodged with the Court on November 19, 2018
Through a notice dated November and that was the day when the administrator’s appointment was
16, 2018 and filed on November 19, deemed to take effect.
2018, ABC Bank gave notice of the 6. There was an obligation placed on the holder of the floating
said appointment. On November charge to give notice of the appointment to the administrators and
21, 2018, the joint administrators other persons set out in the Insolvency Regulations as provided for
advertised the administration in a in section 539 of the Act. The need to give that notice promptly was
notice published in the classified informed by the fact that certain legal implications flowed from the
page of the Star newspaper and appointment of the administrator and so the persons prescribed
published on November 23, 2018, in the Regulations and who had an interest in the company
a notice of their joint appointment would need to know of the appointment as soon as it happened.
in the Kenya Gazette. Via a letter The persons to whom the notice would be given as prescribed by
dated November 22, 2018, they regulation 109 were the Court, official receiver, the directors of the
notified all creditors of Midland of company, contributory of the company and the company creditors.
the administration.

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Aggrieved by the state of affairs, 7. By dint of regulation 108, the announcement of the
Midland filed the instant application administrators’ appointment should be published in the Kenya
seeking restraining orders against Gazette and one or more newspapers that were widely circulated
both creditors and the release of the within Kenya. ABC bank published the announcement in the
attached vehicles. ABC Bank argued Star publication of November 21, 2018 and Kenya Gazette of
that by dint of section 560(1)(b) of November 23, 2018. Since the Court was not told that the Star
the Insolvency Act, there could be newspaper did not widely circulate within Kenya, the Court took
no repossession and/or transaction it that it satisfied the criteria set out in regulation 108. Thus,
in the property of a company under the appointment of the administrator took effect on November
administration other than with the 19, 2018 and Synergy was deemed to have had notice of the
consent of the administrator or the appointment on November 21, 2018 and at the very least on
approval of the Court. Synergy on November 23, 2018.
the other hand argued that Midland 8. Once the appointment of the joint administrators took
breached the terms of the Hire effect, then Synergy was barred by the provisions of section 560 of
Purchase Agreements and it was the Act from repossessing the vehicles without the consent of the
entitled to act as it did and that of administrators or approval of the Court and the repossession that
the 4 vehicles attached, 3 were sold happened on December 20, 2018 was therefore contra statute.
on December 29, 2018 and were If, however, Synergy was to be excused for lack of knowledge
in the possession of the third party because the notice of appointment came on November 21, 2018
purchasers. and November 23, 2018, the sale of the vehicles could not be
excused because that happened on December 29, 2018. Synergy
could not plead lack of knowledge because the notice was
published as required by the law and Synergy was deemed to have
been duly notified.
9. Sections 560 and 561 of the Act were explicit that the
moratorium barred the repossession of goods in a company’s
possession over a credit purchase transaction and/or hire
purchase agreement. Under section 2 of the Act, a Credit Purchase
Transaction meant a hire-purchase agreement, a conditional sale
agreement, a chattel leasing agreement or a retention of title
agreement. Synergy being the owner under the Hire Purchase
Agreement did not have any special privilege over the other
creditors of Midland.
10. If administration as an alternative remedy to insolvency
was to be efficacious, then property of a company under
administration ought to be protected as robustly provided in
statute. So as to strike a blow for the new devise in insolvency laws,
the Court would be making an order that either the possession of
the 3 vehicles that had been sold and were in possession of the
purchasers be restored to Midland or all monies received upon
their sale be paid to Midland. However, before making those final
orders, the Court thought it fit to hear the purchasers of the 3
vehicles.
11. [Obiter] “Before I turn to make the orders herein,
I need to make an observation. Many people do not read the
Kenya Gazette or classified pages of the newspapers and can
run the risk of dealing with the property of a company under
administration in a manner that is contrary to the law because
of lack of knowledge that the company has been placed under
administration. The makers of the Insolvency Regulations may
wish to make it a requirement that a notice of appointment of an
administrator be lodged with the Registrar of Companies. In this
way, anyone who wishes to deal with a company’s property can
simply do a search on the company so as to find out whether or
not it is in administration.”

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Kenya Law declared, the Best Public Sector Legal

Department 2019’ at the Nairobi Legal Awards
By Emily Nakhungu

K
enya Law won the ‘Public Sector Legal Department of the Year 2019’ at the Nairobi Legal
Awards held on 30th May 2019 in Nairobi. The Awards are an initiative of the Law Society
of Kenya, Nairobi Branch which seeks to recognize excellence in legal practice and are
meant to promote bench-marking of best practice standards in the Kenyan legal profession.
Kenya Law was honoured for its outstanding contribution to the development of law and legal
practice through the execution of its unique mandate of Monitoring and Reporting on the
development of Kenya’s jurisprudence through publication of the Kenya Law Reports; Revising,
Consolidating and Publishing the Laws of Kenya.
Excellent Financial management and Kenya Law’s compliance with relevant statutory
and regulatory
requirements,
leadership structures
including human
resource policies,
training and
mentorship of
interns, pupils and
young lawyers were
also underscored at
the awards.
It was also noted
that Kenya Law had

demonstrated high standards

of legal services, and surpassed
the jury’s expectation as far as
corporate social responsibility
as well as policy reform and law
development were concerned.
Kenya Law CEO/Editor Mr.
Long’et Terer, in his address to
the staff, noted that the award
would not have been possible
without the hard work and
contribution they make on a
daily basis.
“We thank you for this and
encourage you to continue to
support the organisation in
every way.” He said.
Kenya Law, is the first ever
recipient of the Public Sector
Legal Department Award.
Hongera Kenya Law!
Kenya Law CEO Mr. Long’et Terer (Second left)and Deputy CEO Ms. Janet Munywoki are joined by
Kenya Law Management team for a picture after winning the Best Public Sector Legal Department 2019’
Award at the Nairobi Legal Awards on 30th June 2019.

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 BB Issue 45, April - June 2019

Kenya Law Awards the Winners of The African Regional Round of the 17th
John H Jackson Moot Court Competition
The John H Jackson Moot Court
Competition on WTO Law
is a student-run moot court
competition organised annually
by the European Law Students’
Association (ELSA) in co-
operation with the World Trade
Organization (WTO).
The African Regional Round of
the 17th John H Jackson Moot
Court Competition on WTO
Law was hosted by Kenya School
of Law from 23th – 27th April
2019. The National Council of
Law Reporting partnered with the
Kenya School of Law and other Kenya Law’s Legal Researcher John Ribia (Second right) presents an award
bodies to sponsor the competition. to winners of the African Regional Round of the 17th John H Jackson Moot
Court Competition on WTO Law at Kenya School of Law on 27th April 2019.

National Council for Law Reporting (Kenya

Law) awarded the top 4 teams of the African Regional Round of the John H Jackson Moot
Court Competition gift hampers comprising of Law Reports, Kenya Law Review Journals, a
variety of Legal Digests and Bench Bulletins.

Kenya Law exhibit’s at the 4th Annual Legislative Summit, Kisumu City
from 13th to 17th April 2019
The purpose of the summit was to strengthen inter
and intra-governmental relations for effective
implementation of devolution as well as identify the
gaps and challenges in the legislation that impedes
devolution and develop measures to address them.

The summit was themed “Accelerating devolution;

assessing the achievements and addressing the gaps in
policy and legislation” and sought to build on the gains
of the first three legislative summits.

Kenya Law donated the Bench Bulletins and other legal

publications to over 4,000 delegates in attendance.
Team leader, Sales Marketing and Customer care Ms. Emily Nakhungu speaks to delegates at the
Kenya Law stand during the 4th Annual Legislative Summit in Kisumu City. The conference ran from
13th to 17th April 2019.

Kenya Law showcases the new Laws of Kenya

compendiums at the Kenya Magistrates and Judges
Association (KMJA) held a Special General Meeting
on 18th May 2019 at the Sarova Stanley Hotel,
Nairobi.
Ms. Ivy Njoki interacts with a guest at the Kenya Judges and Magistrates Association during the association’s
special general meeting 18th May 2019 at a the Sarova Stanley Hotel, Nairobi.

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 BB Issue 45, April - June 2019

Kenya Law visits Thogoto home for the aged in Kikuyu as part of the
Corporate Social Responsibility programme organized by Kenya Law
welfare group.
Senior citizens of Thogoto home for the aged in Kikuyu had a reason to smile when Kenya
Law staff paid them a visit, cooked, cleaned and donated mobility aids on 5th April 2019
A simple smile is indeed the start of opening hearts and being compassionate to others.....

Kenya Law senior Law Reporter Mr. Nelson Tunoi makes Chapati Kenya Law staff prepare a meal for the Senior citizens of Thogoto home for
for the Senior citizens of Thogoto home for the aged in Kikuyu the aged in Kikuyu during a CSR activity organized by the Kenya Law Welfare
during a CSR activity organized by the Kenya Law Welfare group group on 5th April 2019.
on 5th April 2019.

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Address of Principal office and Contacts:
ACK Garden Annex, 5th Flr., 1st Ngong Avenue, Off Ngong Road
P.O. Box 10443 GPO 00100, Nairobi - Kenya
Tel: +254 20 271 2767, 20 271 9231, 2011614
Mobile: +254 718 799 464, 736 863 309