THE ALL KENYAN MOOT COURT COMPETITION

(AKMCC 12TH EDITION (2024)

THEME :SUSTAINABLE GOVERNANCE

Unveiling the intersection

between tax burden ,good governance and protection of human rights.

Team Code:

REPUBLIC OF KIMETULIK

IN THE HIGH COURT OF KIMETULIK

PETITION NO. E003 OF 2024

IN THE MATTER CONCERNING THE ALLEGED CONTRAVENTION

OF THE

PRINCIPLES OF PUBLIC FINANCE AND THE VIOLATION OF HUMAN

RIGHTS

BETWEEN

KIMETULIK HUMAN RIGHTS COMMISSION………………………….APPLICANT

VERSUS

ATTORNEY GENERAL……………………………………………..1ST RESPONDENT

CABINET SECRETARY,MINISTRY OF TREASURY AND

PLANNING…………………… .…………………………...…………2ND RESPONDENT

INSPECTOR GENERAL OF THE POLICE…………………….…3RD RESPONDENT

MEMORIAL FOR THE PETITIONER

Table of Contents

LIST OF ABBREVIATIONS ......................................................................................................... 1

A. INDEX OF AUTHORITIES ...................................................................................................... 1

I. INTERNATIONAL CASES ....................................................................................................... 1

KIMETULIKS‟ DOMESTIC CASES ..................................................................................... 2

STATEMENT OF JURISDICTION ............................................................................................... 3

B. ADMISSIBILITY OF THE CASE ............................................................................................ 4

C. SUMMARY OF RELEVANT FACTS ...................................................................................... 4

D.ISSUES FOR DETERMINATION............................................................................................. 7

E. SUMMARY OF ARGUMENTS................................................................................................ 8

F.SUBSTANTIVE ARGUMENTS ................................................................................................ 9

1) THE GOVERNMENT IMPOSED EXCESSIVE TAX OBLIGATION ON ITS CITIZENS

AND FAILED TO FOLLOW DUE PROCESS IN THE ENACTMENT OF THE FINANCE
ACT…………………………………………………………………………..………………9

Public Participation ........................................................................................................ 11

2. THE GOVERNMENT DID NOT MEET ITS OBLIGATIONS TO RESPECT FULFILL AND
PROTECT THE CITIZENS ENJOYMENT OF THE SOCIAL ECONOMIC RIGHTS UNDER
ARTICLE 43 OF THE CONSTITUTION AND OTHER RELEVANT INTERNATIONAL
LAWS .................................................................................................................................... 14

Realization and enjoyment of socioeconomic rights ............................................................. 14

a.Right to education ...................................................................................................................... 15

b. Right to be free from hunger and to have adequate food of acceptable quality ...................... 16

c.Right to health care .................................................................................................................. 16

d.Right to housing…………………………………………………………………………………17
 3. THE GOVERNMENT DID NOT ADHERE TO THE CONSTITUTION AND DATA
PROTECTION REGULATIONS IN IMPLEMENTATIONS OF THE DIGITAL ID IN
KIMETULIK ......................................................................................................................... 19

4.THE POLICE USED EXCESSIVE FORCE AGAINST PROTESTORS IN WAHALA IN

VIOLATION OF THEIR OBLIGATIONS UNDER THE CONSTITUTION AND INTERNATIONAL
LAW.............................................................................................................................................. 22

PRAYERS………………………………………………………………………………………..25
LIST OF ABBREVIATIONS

A. INDEX OF AUTHORITIES
1. ICCPR………………………………International Covenant on Civil and Political Rights
2. UN …………………………………United Nations
3. ICESCR……………………………...International Covenant on Economic, Social, And Cultural
Rights
4. MCHPR……………………………. Mao Charter on Human and Peoples Rights
5. EMC………………………………...East Mao Community
6. EMCMUP…………………………...Establishment of the Mao Court on Human and Peoples
Rights
7. OECD ………………………………. Organization for Economic Cooperation and Development

8. MTAF…………………………………Mao Tax Administration Forum

9. EMRATC……………………………. East Mao Revenue Authority Technical committee
10. EACC………………………………...Ethics and Anti-Corruption Commission
11. CRA…………………………………...Commission of Revenue Allocation
12. PDMO………………………………...Public Debt Management Office
13. KRA…………………………………. Kimetulik Revenue Allocation
14. PFMA………………………………...Public Finance Management Act

I. INTERNATIONAL CASES
1. Constitutional Court case of Doctors for Life International v Speaker of the National Assembly and
Others (South Africa).
2. South African Transport and Allied Workers Union and another vs Garvas and others [2012] ZACC
13
3. Chaoulii vs quebec
4. The Government of the Republic of South Africa vs. Irene Grootboom (2000).
5. South African Transport and Allied Workers Union and another vs Garvas and others
6. Finucane vs. The United Kingdom

1
KIMETULIKS’DOMESTIC CASES

1. Nyarangi, JA, in Owners of Motor Vessel „Lillian S‟ v Caltex Oil (Kenya) Limited [1989]eKLR.

2. Anarita Karimi Njeru vs. Attorney General (1979) eKLR

3. Hussein Khalid & 16 others v attorney general & 2 others (2017)eklr

4. Okiya Omtatah Okoiti vs Cabinet Secretary, National Treasury & 3 Others (2018) eKLR

5. Orange Democratic Movement Party (ODM) v Independent Electoral and Boundaries

Commission [2017] eKLR

6. Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05)
[2006] ZACC 11

7. Kenya Transport Association vs The Municipal Council of Mombasa and Another [2011] eKLR

8. Maina & 4 others v Director of Public Prosecutions & 4 others (Constitutional Petition E106 &
160 of 2021 (Consolidated)) [2022] KEHC 15 (KLR)

9. M W K v another v Attorney General & 3 others [2017] Eklr

10. Ferdinand Ndungu Waititu & 4 others vs the Attorney General & 12 others (2016)eklr

2
STATEMENT OF JURISDICTION
1. The Petitioner humbly submits that this court has the requisite Jurisdiction to adjudicate
over this matter. First, the Petition before this Honorable court is without doubt one that
poses a question of whether a fundamental right enshrined under the Constitution of
Mangoto was infringed or violated and the determination on whether anythinggg said to
be done is consistent with the authority of the constitution. Article 165 (3)(b) of the
Constitution of Kimetulik clearly clothes the High Court with the jurisdiction to
determine a question whether a right or fundamental freedom in the Bill of rights has
been denied, violated, infringed or threatened.
2. Relying on the case of Samuel Kamau Macharia & another v Kenya Commercial
Bank Limited & 2 others1, the court stated as follows; “a court‟s jurisdiction flows from
either the Constitution or Legislation or both. Thus a court can only exercise jurisdiction
as conferred by the Constitution or other written law. It cannot arrogate to itself
jurisdiction exceeding that which is conferred upon it by law.
3. The petitioner contends that the matter before this court is a pure constitutional issue
which falls under Article 165(3) of the Constitution, around whether a statutory
(government) had exceeded its mandate and in the process infringed on the rights of the
petitioner. Further ,he seeks to realize the constitutional interpretation of the issues that
revolves around taxation of the Kimetulikans and subsequent management of the taxes
and debt.
4. The petitioner avers that this petition is brought in light of the public interest and in
pursuit of the protection of the rule of law with respect to the exercise of duties and
functions of the government and the police. That Kimetuliks human rights commission is
empowered to promote the protection and observance of human rights2
5. The petitioner further aver that the government failed to follow its constitutional
mandates and obligations and hence this court has the requisite jurisdiction to hear and
determine the matter.
6. Placing reliance on the decision of the High Court by Justice Nyarangi, in Owners of
Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited 3the learned judge expressed
himself on the pertinent issue of jurisdiction by averring that jurisdiction is everything
and without jurisdiction it a court has no power to make one more step. Where a court
has no jurisdiction, there would be no basis for a continuation of proceedings.

1
Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
2
article 59(2)(c)

3
Owners of Motor Vessel „Lillian S‟ v Caltex Oil (Kenya) Limited(1989)eklr

3
 ADMISSIBILITY OF THE CASE
7. The petitioners submit that the petition before this honorable court meets all the
admissibility requirements which are: ripeness, justiciability and mootness. The matter is
ripe because of the occurrence of the disputed event. Such events that may be deemed as
disputable have in fact occurred which this honourable court is capable of rectifying. The
matter is justiciable. The Black‟s Law Dictionary defines justiciability as a matter proper
to be examined before the courts of justice. This matter is therefore justiciable as this
honourable court has the capacity to determine the issue as it brings out an actual
controversy.
8. The petitioners submit that they have the requisite locus standi to bring the case before
the court. In Timothy Otuya Afubwa & another v county Government of Trans
Nzoia & 3 Others 4 the Court held that the drafters of the Constitution intended that
under Article 22 of the Constitution, nobody would be locked out of the seat of justice
when his interest or those of the public are threatened. 5 The petitioner being a human
rights commission is empowered to institute proceedings on alleged violation of human
rights by virtue of article 258 read alongside articles 22 and 260 of the constitution of
Kimetulik.
9. The petitioner's submit that facts relied upon are prima facie, true and correct in the
sense that the respondents violated clear provisions of the Constitution and national
legislation and that the petition is admissible before this honorable court

C.SUMMARY OF RELEVANT FACTS

1. The Republic of Kimetulik is a sovereign Republic with a Constitution hailed worldwide
due to its transformative nature. The republic of Wueh being a developing country has a Gross
Domestic Product of approximately 95.5 billion USD to which agricultural sector contributes
30%.

2. The development of social media presence in the Country has been brought about by high
internet usage. A majority of the citizens of Kimtulik use the social media in participating in
crucial governance discussions via online campaigns on various social media platforms with

4
Timothy Otuya Afubwa & another v county Government of Trans Nzoia & 3 Others
[2016] eKLR

4
particular emphasis on X providing a platform for individual to voice their concern. Social
services in the republic of Wueh were offered by private facilities a situation caused by
corruption. This system changed to public facilities with the coming of the new government.

3. With the promulgation of the 2010 constitution, it brought into focus key issues relating to
the guarantee of social –economic rights including the right to housing, food ,education ,and
health under Article 43. Chapter 12 of the constitution was devoted to public finance wherein it
specifies principles of public finance.To achieve full implementation of chapter 12 ,parliament
passed into law the public Finance Management Act of 2012, the Public Finance Management
Regulations, Tax appeals tribunal act 2013,Revised Kimetulik revenue authority Act.The public
debt management office was also established within the national treasury in light of the need to
balance the revenue collected with expenditure incurred.

4. The Government of president kisham was the first under the 2010 Constitution and since his
appointment to office, his administration led to economic landscape transforming significantly
by 2011.He established a long term development plan ,Maono 2030 which outlined crucial
focus areas and mega projects with some of its principles being macroeconomic
stability,infrastructure development,energy sustainability among oothers. In order to bridge the
resulting budget gap due to these initiatives foreign borrowing doubled and domestic borrowing
more than tripled.

5. Concerns were raised by the IMF warning that Kimetulik was spending beyond its means
thereby jeopardizing the economic stability. During the 2022 elections,president Zaki primary
focus was to enhance the economy.He pledged to allocate 50 billion in credit to disadvantaged
individuals at the bottom of the economic pyramid.Zakis administration was anticipated to
reduce borrowing ramping up of tax collections.However ,loans amounting to 452 billion were
secured in the first six montths of the year which is more than 434.6billion its predeccors
borrowed.This was attributed to heightened spending under the bottom-up economic plan .

6. President zakis key agenda was to establish countrys foundation on financial princples
rooted in raised tax revenues rather than debt reliance.Aligning with these objcetives the
Kimetulik treasury presented the finance bill 2023 to parliament proposing amendments to
various tax laws.The bill sought to modify several tax laws including income tax Aact ,VAT

5
Act,Excise duty Act,Tax Procedures Act and miscellaneous Fees and levies Act.There was a
proposal for a mandatory 3% deduction from employees monthly salaries for the national
housing development fund.Additionally the bill suggested;imposition of minimum tax at the rate
of 1% of a business gross turnover , doubling the fuel value added tax to 16% raising highest
personal income tax from 30% to 35%,higher excise duty rates such as 20% deposit requirement
for disputed taxes.It conversely sought to reduce rental income from 10% to 7.5%, and
eliminating taxes in helicopters and aircrafts, a move that was highly critized as to favour the
wealthy.

7. To ensure public participation ,the government released an email for suggestions and
opinions with citizens in the social media registering dissent to the bill as well as stakeholders to
entirety .From a survey that was conducted 90% of Kimetulikans opposed the bill.
Moreover ,concerns that the bill had not been subjected to preliminary examination by the
speaker of the senate arose.

8. The budget proposals had reached 6 trillion in 2023 with 1.5 being earmarked for recurrent
expenditure ,718 billion for development while 986 went into servicing public debt. This
measure potentially widened the gap in support of the struggling agriculture and led to the
removal of subsidies on fertilizers. Reports by the key stakeholders indicated a lack of tangible
benefits for citizens despite high tax contributions with concerns being raised about inequitable
distribution of resources .A leaked report by the office of auditor general expressed concern on
the lack of accountability and transparency in the budget proposals.

9. In a bid to ensure effective implementation in the collection of the proposed taxes ,the CS
ICT, introduced digital ID dubbed Tenje Namba that would serve as a digital identity for its
citizens and also ensure effective tax collection by KRA. The CS ICT in a speech did express a
concern that failure to register would lead to denial to government services. As such many
citizens registered out of fear rather than understanding, with the government implementing
registration of the digital IDs across various regions of the country. The registration captured
details such as profession, biometric data ,global positioning system and residence. With such
concerns were raised on how the government intended to safeguard such sensitive information.

6
10. Despite the dissent offered ,the parliament passed the finance bill and the president assented
to the bill. Following the enactment of the act ,there was a notable increase in the cost of living
which made it difficult for many Kimetulikans to afford basic necessities such as
food ,shelter ,healthcare. There was also increase in prices of the commodities .Insufficiencies in
food was attributed to constant drought ,inflation of food and decrease in available income to
purchase food which was directly linked to policy adjustments targeting to offset Kimetuliks
debt.

11. Hundreds of Kimetulikans assembled in Wahala protesting against soaring cost of living.
Prior to the demonstrations the opposition had issued a notice to the police of intent to protest.
The protests began peacefully but later turned violent. In response ,the police armed with
truncheons, water cannons, antigear forcefully dispersed the people with the security officers
firing bullets ,using teargas and making arrest. Notably ,2 people were killed and 30 injured by
the police in the demonstrations.

D.ISSUES FOR DETERMINATION

The issues for determination before this court are:

1) Whether the government imposed excessive tax obligations on its citizens and failed to
follow due process in the enactment of the finance act of 2023 in violation of the principles
of public finance in the constitution ,international laws and all other applicable laws.

2) Whether the government met its obligations to respect ,fulfill and protect the citizens
enjoyment of their social -economic rights under article 43 of the constitution and other
relevant international laws .

3) Whether the government adhered to the constitution and data protection regulations in
implementation of the digital id in Kimetulik.

4) Whether the police used excessive force against protestors in Wahala in violation of their
obligations under the constitution and international laws.

7
E. SUMMARY OF ARGUMENTS

It is the humble submission of the petitioner that:

a. The Government imposed excessive tax obligations on its citizens and failed to follow the
due process in the enactment of finance act of 2023 in violation of the principles of public
finance in the constitution and international laws.

b. The Government failed to meet its obligations ,respect ,fulfill and protect the citizens
enjoyment of the socioeconomic rights under Article 43 of the Constitution and other
relevant International Laws.

c. The government did not adhere to the constitution and data protection regulations in
implementation of the digital ID in Kimetulik.

d. The police used excessive force against protestors in Wahala in violation of their
obligation under the constitution and international law.

8
SUBSTANTIVE ARGUMENTS
ISSUE A

THE GOVERNMENT IMPOSED EXCESSIVE TAX OBLIGATIONS ON ITS

CITIZENS AND FAILED TO FOLLOW THE DUE PROCESS IN THE
ENACTMENT OF FINANCE ACT OF 2023 IN VIOLATION OF THE PRINCIPLES
OF PUBLIC FINANCE IN THE CONSTITUTION AND INTERNATIONAL LAWS.

1. The petitioners take cognizance of the fact that it is their duty under the law to pay taxes
however it is their averment that the government Imposed excessive tax obligations.

2. Article 201 (b)(i) provides that the burden of taxation shall be shared fairly. The petitioner
therefore contends that by the government imposing a blanket housing levy of 3%percent on
all employees monthly salaries, 6 based on mandatory deductible percentage without
consideration of their existing contractual obligations is unreasonable.Contrary to article 27
the imposition of a mandatory uniform deduction on employees indirectly discriminates
against those already owning homes, paying mortgages, the uninterested and low-income
earners. The petitioner therefore avers that their lacks a rationale for the government to
force its citizens to contribute to a mandatory housing scheme, when they are already
grappling with harsh economic times. This in turn violates Article 201 of the Constitution as
Section 31 of the Employment Act already places an obligation on an employer to provide
adequate housing to its employees hence the impugned law will amount to double taxation.

3. Further , the petitioners submit that the policy on raising the highest personal income tax rate
to 35% from 30% for individuals earning over 500,000ksh per month,7is discriminatory,
cruel and also punitive as it violates Articles 27 and 201 of the Constitution. This means that
those below this salary bracket have their income left untouched. This is an indication that
the tax burden is not shared fairly therefore impeding and violating article 10 on promotion
of equality ,inclusiveness and non discrimination.Further,increasing the individual income
tax beyond 30%, contravenes Article 40 of the Constitution as it limits and prevents the
employees from enjoying the right to their income to the greatest possible extent. Therefore
these taxes are discriminatory as they targets specific tax payers only, contrary to Articles
27 and 30 of the Constitution.

4. The principle of equity in taxation as spelt out by Adam Smith stipulate that people should
pay tax in context with their ability and not the same amount of tax.That is to mean that those
who earn higher income should pay higher taxes than those of lower income . This is equally

6
Fact pattern 14
7
Fact pattern 15

9
 elucidated in article 201.The imposition of minimum tax at the rate of 1% of business gross
turnover on both large and small businesses would certainly force small and medium
enterprises to pay from capital investment as opposed to the large companies that would be
least bothered by the fees8, Taxation cannot be regarded as fair when the system introduces
with it the potential effect of diminishing the capital for those making losses while for those
making profits, their capital base is unaffected.it is the contention of the petitioners that
taxation ought not to be applied so that those who had more ,added to it while those who had
little, have even that little taken away from them. Such a system can not be said to be fair
and has failed the test of fairness as prescribed under article 201(b)(i) of the Constitution.

5. The imposition of that tax has the potential of not only subjecting the people to double
taxation but also unfairly targeting people whose businesses, in loss-making positions, to pay
taxes from their capital rather than from their profits, an advantage enjoyable by others
merely because their businesses were thriving. Furthermore, this goes against the very core
principle of taxation as enshrined under article 201 (b) (1) that taxation should be progressive
and not regressive. Certainly, minimum tax is regressive taxation, taxing those who earn less
more than those who earn more. Undoubtedly, this impugned tax does not promote an
equitable society, and is definitely not fair in sharing the tax burden.

6. Further ,whereas there was elimination of taxes on the helicopters and aircraft 9there was
doubling of the fuel value added tax to 16%,10 which is regressive and burdens low income
earners .The petitioner therefore avers that this move is unfair and discriminatory and
violates Articles 10, 21(3) ,27 and 201 of the Constitution

7. The petitioner further attribute the increased rise of commodities and cost of living to the
enactment of the finance act. This contributed to threatening of life and livelihood which is
in violation of article 43.It is reported that Kimetulikans are not able to afford basic
necessities such as food, shelter and health care.11 The prices of commodities were equally
noted to have increased 12 .The Kimetulikans experienced insufficient food consumption
which was attributed to constant drought ,Inflation of food prices and decrease in available

8
Supra
9
supra
10
Fact pattern 14
11
Fact pattern 27
12
supra

10
 income purchase food all directly linked to the new tax policies.13 As such this point out to
low consumer purchasing power in Kimetulik

8. Further the petititoners submit that due to high tax policy ,this led to tax evasion in Kimetulik.
Based on the report by Uzima international it estimated that kimetulik had lost ksh 30 billion
per year worth of tax to tech multinational companies with Gigi a multinational company
engaging in profit shifting in various countries. Through investigations it was discovered that
Gigi had been routing Kimetulikan profits through intricate networks of subsidiaries in low
tax jurisdictions ,bypassing its tax obligations in kimetulik .14

9. Further the petitioner submits that there lacked openness and accountability which is a
violation of article 201 .A leaked report from the office of the attorney general expressed
concern on lack of accountability and transparency in the budget proposals.Reports from key
stakeholders indicated lack of tangible benefits to citizens despite the high tax contributions.
15
Concerns were also raised about inequitable distribution of resources with funds being
directed towards debt servicing and non beneficial areas. Therefore to take money from
taxpayers without clear guarantees and a legal framework as to how they will benefit is
unconstitutional, cruel, unreasonable, inhuman and degrading.

10. The petitioner submits that the requirement of the law is that revenue should be equal to the
expenditure within a financial year in accordance with Article 220(1)(a) and 221 of the
Constitution. However foreign borrowing doubled and domestic borrowing more than tripled
with concerns being raised by IMF that kimetulik was spending beyond its
means16 .Subsequently the government highly taxed the citizens to be able to finance the
public debt used .

11. In the case of Wangari Mary Josephine Mathai v Andrew Stephen Mwangi Mathai
[1980] eKLR it was held that the priorities of whatever regime must be within the
law .Hence the petitioner ,submits that the constant and rapid taxation by the respondent does
not align with the provisions of the law.

Failure to follow the due process in the enactment of the finance act

(i)Public participation

13
Fact pattern 28
14
Fact pattern 21
15
Fact pattern 22
16
Fact pattern 9

11
12. Public participation and effective consultation are not a mere cosmetic venture. The product
of the legislative process ought to be the true reflection of the public participation so that the
end product bears the seal of approval by the public.This was established In the case of
Samuel Thinguri Waruathe & 2 others v Kiambu County Government & 2 others.17

13. Public participation and consultation is a living constitutional principle that goes to the
constitutional tenet of the sovereignty of the people. It is through public participation that the
people continue to find their sovereign place in the governance they have delegated to both
the National and County Governments.

14. Article 221(5) and 201 (a) provides that the Finance Bill should be subjected to public
participation before it is enacted into law. Article 25(a) of the (ICCPR) which recognizes
the right of every citizen‟s right to participate in public affairs, directly or indirectly.

15. In the case of Doctors for Life International vs. Speaker of the National Assembly and
Others18,the learned judge illuminated the law of public participation by emphasizing the
seriousness with which public participation should be undertaken;that public participation
ought to be real and not illusory and ought not to be treated as a mere formality for the
purposes of fulfilment of the Constitutional dictates.

16. The Petitioner contends that their views on the enactment of the finance act were ignored
which is in violation of Articles 1, 10 and 118 of the Constitution. They have faulted the
Respondents for the failure to protect the Constitution by passing the Finance Act which 90%
of the Kimetulikans outrightly rejected 19 .It is the averment of the petitioners that the
Respondents had pre-determined to introduce the Regulations and had a closed mind when
engaging in the process of public participation and therefore failed to give any conscientious
consideration to the views expressed by the public.

17. In the case of Coalition for Reforms and Democracy (CORD) & another v Republic of
Kenya & another 20it was stated thus: that the enactment of the law is a process and if any
of the stages therein is flawed, that vitiates the entire process and the law that is enacted as a
result of it… failure to obey the law (Rules) renders the whole process a nullity.”

18. The petitioner avers that the Finance Act was enacted in contravention of the mandatory
provision of Article 94 .The petitioner contends that the Senate was bypassed when the

17
Samuel Thinguri Waruathe & 2 others v Kiambu County Government & 2 others.(2015)eklr
18
Doctors for Life International vs. Speaker of the National Assembly and Others
19
Fact pattern 19
20
Coalition for Reforms and Democracy (CORD) & another v Republic of Kenya & another
(2015)eklr

12
 National Assembly considered the Finance Bill which contained provisions affecting the
powers and functions of county government among them being the housing levy with which
the function of housing is assigned to the county government pursuant to Part 2 of Fourth
Schedule of the Constitution ,as such this was contrary to Article 109 and 110(3).

19. Further that since the Finance Act sought to amend several legislations, affecting county
governments namely, the Income Tax Act, Value Added Tax Act, Excise Duty Act,
miscellaneous fees and levies act.21and, which statutes impact counties, then it was necessary
that the same be considered by the Senate.

20. Notably,in a letter to the speaker of the national assembly, the speaker of the senate noted
that ,finance bill is not only a bill that concerns county government but also fundamentally
affects the operations of the senate and hence requiring the input of the senate. 22 The
Petitioner therefore submits that Article 96(1) and (2) of the Constitution requires the
participation of the senate in the enactment of the Finance act and Appropriation Bills in
order to protect devolution. That the Senate cannot be a bystander in the budget making
process and that the Finance act should have been subjected to debate in the Senate and
failure to do so renders the Acts void.

21. Further ,the petitioner avers that before deliberating on the Finance Bill by the members of
parliament, it was necessary for the Speaker of the National Assembly and the Senate to
concur on the nature of the bill. This was a mandatory step that was skipped and a violation
of the Constitution as it was In the Matter of the Speaker of the Senate & Another 23 .

22. The petitioner therefore submits that the government did not follow the due process in the
enactment of the finance act and further advances their argument by stating that any
legislation passed by Parliament without legislative competence or violating fundamental
rights is inherently void as per the provisions of article 1.

21
Fact pattern 14
22
Fact pattern 20
23
In the Matter of the Speaker of the Senate & Another (2013)eklr

13
ISSUE B

Whether the government met its obligations to respect ,fulfill and protect the
citizens enjoyment of their social -economic rights under article 43 of the the
constitution and other relevant international laws .

23. Socio-economic rights are inalienable human rights and that the realization of socio-
economic rights is not entirely subject to the arbitrary whims of the state. This was greatly
emphasized in the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2
others. Further the court stated that failure by the state to ensure that citizens have access to
the rights guaranteed by Article 43 directly impacts on the ability of citizens to enjoy all the
other rights set out in the Constitution.

24. Articles 21 and 43 of the Kenyan Constitution explicitly obligate the government to take
legislative, policy, and budgetary measures to progressively realize the social economic
rights to all its citizens.

25. The petitioner bases its case on Articles 43 and 46 of the Constitution and the Universal
Declaration of Human Rights. It alleges that the socio-economic rights guaranteed under
Article 43 require government to take affirmative action to ensure their realization.

26. The petitioner argues that Article 3 (1) of the Constitution imposes an obligation the
respondents, to respect, uphold and defend the Constitution. On its part, the petitioner has a
right to seek the Court‟s intervention in the event the Constitutional rights are contravened or
infringed. The petitioner contends that under Article 43, it guaranteed socio-economic rights
such as the right to be free from hunger, to have adequate food of acceptable quality, right to
accessible and adequate housing ,right to education ,right to healthcare were not met by the
state.

27. The petitioners submit that their claim is well founded in view of the circumstances so that
the respondents can be compelled to comply with article 43 ,that the respondent take the
necessary fiscal measures on taxation .

28. The petitioners submit that the failure of the respondents to effectively discharge their legal
obligation of taking the appropriate fiscal, administrative, regulatory, good governance and
other necessary steps‟ in stabilizing and controlling the level of taxation has contributed to
the increased cost of living which in turn has exacerbated the violation of the social
economic rights by the government.

29. Article 21 (1) of the Constitution imposes both positive and negative obligations upon the
State with regard to protection of rights and freedoms in the Bill of Rights. The negative
obligation is to respect, which requires the state to refrain from interfering directly or
indirectly with the social economic rights while the positive obligation includes; to protect,

14
 which requires the State adopt legislative measures to deter potential violations of these
rights and to provide for appropriate remedies in the event that such violations occur.
However ,the respondent has failed to fulfill ,respect and promote these rights .

30. In Mathew Okwanda v Minister of Health and Medical Services & 3 others [2013]
eKLR the Court convincingly argued that: “even where rights are to be progressively
achieved, the State has an obligation to show that at least it has taken some concrete
measures or is taking conscious steps to actualize and protect the rights in question.

31. The realization of socio-economic rights means the realization of the conditions of the poor
and less advantaged and the beginning of a generation that is free from socio-economic need.
Emphasis was placed on this in the case of John Kabui Mwai and 3 Others v Kenya
National Examinations Council & Others.

32. The petitioner recognizes the standard of progressive realization of socioeconomic rights as
held In the Matter of the Principle of Gender Representation in the National Assembly
and the Senate par 53 ,and posits that steps towards the same should be taken within a
reasonably short time for the enjoyment of these rights, such rights as enshrined in article 43
of the constitution.

33. The petitioner contends its the obligation of the State to take immediate steps to the
maximum of its available resources to realize these rights provided for under article 43 (right
to education ,health care ,housing and right to be free from from hunger and quality food)
which the state failed to ensure their attainment.

Right to education

34. The critical role that education plays in the life of an individual and communities cannot be
overemphasized and hence it is a fundamental human right essential for the exercise of all
other human rights.

35. The Economic and Social Council of the United Nations noted in its General Comment No.
13 on the right to education guaranteed under Article 13 of the International Covenant on
Economic, Social and Cultural Rights that : “Education is both a human right in itself and an
indispensable means of realizing other human rights. As an empowerment right, education is
the primary vehicle by which economically and socially marginalized adults and children can
lift themselves out of poverty and obtain the means to participate fully in their communities.

36. The petitioner submits that the violation of the constitutional guarantee of education is
demonstrated by various high fees surge on the fees structures from an average of 30,000
shilling per year to 100,000 shillings per year with which as a result at least 75% of the
student population had not enrolled in the higher institutions .As a result many were being
forced to stay at home and discontinue their education. The petitioner therefore contends

15
 that the said fees structures are abusive in this manner they have been charged as they are
neither affordable nor accessible to the citizens.

37. In the case of Mohochi And Another v. Attorney General 24 the High Court of Kenya
found that the government has a duty to take legislative, policy, and other measures to ensure
the full realization of the right to free and compulsory basic education for all children.

38. Therefore by imposing the unaffordable fees to the student with which the parents could not
afford shows the government failure to observe its obligations on the right to education.

Right to be free from hunger and have adequate food of acceptable quality

39. The International Covenant on Economic, Social and Cultural Rights (ICESCR):Article 11:
Recognizes the right to an adequate standard of living, including adequate food, clothing, and
housing. Article 12: Recognizes the right to the highest attainable standard of physical and
mental health, including access to adequate food.

40. The report on Global Food Crisis highlighted that at least 14.1 million Kimetulikans
experienced insufficient food ,attributed to the constant drought ,inflation of food prices and
a decrease in the available income to purchase food . 25Further it was noted that the new
policy adjustments that targeted to offset the kimetuliks debt crisis to include the finance act
of 2023 and the misallocation and misappropriation of budgetary funds were the contributors
to low food shortage in Kimetulik. As a result of the increased cost of living this resulted to
many kimetulikians lacking food.

41. In the case of Kenya National Commission on Human Rights v Attorney General 26 the
court held that the state has a duty to respect, protect, promote, and fulfill the right to food. It
recognized that the right to food is not just the right to be free from hunger but also includes
the right to have regular, permanent, and unrestricted access, either directly or by means of
financial purchases, to quantitatively and qualitatively adequate and sufficient food.

Right to health care

42. This is a fundamental right recognized in the under article 43 (1) and 46(1)(c) of the
constitution.It includes the right to health care services ,including reproductive health care
and right not to be denied emergency medical treatment.

24
Mohochi And Another v. Attorney General 24[2016] eKLR
25
Fact pattern 28
26
Kenya National Commission on Human Rights v Attorney General (2014) eKLR

16
43. In general comment no 14 the ICESR developed core obligations among them being that
every human being is entitled to the enjoyment of the highest attainable standard of health
conducive to living a life of dignity. Health includes physical and mental health .Naturally
this cover the timely appropriate provision of medical care but it also takes into account
underlying determinants of health such as access to safe water ,adequate sanitation and
adequate supply of safe food ,nutrition and housing ,healthy ,occupational and environment
conditions.

44. The petitioner avers that the right to health is interlinked with the other rights that the states
inhibited to include the right to housing ,right to life as well as the right to be free from
hunger and have adequate food of acceptable quality. It is reported that due to increased cost
of living Kimetulikans were unable to access basic commodities among them being health.27

45. In the Canadian case of Chaoulii vs Quebec) the court made its judgments by relating the
right to health with the right to life and averred that the government must not take actions
that negatively impacts the peoples health and subsequently causing them to loose lives.

Right to accessible and adequate housing

46. The UN Committee on Economic, Social and Cultural Rights (CESCR) adopted the General
Comment 4 that established that the right to adequate housing should not be interpreted
narrowly and also clarified that the right to adequate housing is internally linked to other
human rights . Further,Article 25 (UDHR) provides that everyone has the right to a standard
of living adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services.

47. Fact pattern 27 clearly provides that as a result of the increased cost of living the
Kimetulikans were unable to access shelter .This is a result of the policy adjustments made
by the government on the various taxes hence reducing the consumer purchasing power .As
such this violates the Kimetulikans right to housing implying that the state is not committed
to respect,fulfill and protect this social economic right.

48. In the case of Susan Waithera Kariuki and others v The Town Clerk, Nairobi City
Council and others ,paragraph 71 28 the learned judge lenaola j stated that the right to
housing should be ensured to all persons irrespective of their income or access to economic
resources.

49. The Petitioners also relies on the South African Constitutional case of The Government of
the Republic of South Africa vs. Irene Grootboom (2000) where it was held that the State

27
Fact pattern 27
28
Susan Waithera Kariuki and others vs The Town Clerk, Nairobi City Council and others ,para 71

17
 has an obligation to protect and fulfill rights and that the South African Constitution requires
a reasonable policy to ensure housing for all.

50. The petitioners therefore aver that that failure by the State to ensure that citizens have access
to the rights guaranteed by article 43 directly impacts on the ability of citizens to enjoy all the
other rights set out in the Constitution .

18
 Issue (c).

Whether the government adhered to the constitution and data protection

regulations in implementation of the digital id in kimetulik.

51. The Petitioner avers that Article 31of the Constitution of Mangoto provides for the right to
privacy, which includes the right not to have, information relating to family or private affairs
unnecessarily required or revealed.As such the petitioner contend that the respondent
unnecessarily acquired their vital information without meeting the necessary constitutional
limitations to this right as envisaged in article 24 of the constitution.

52. Referring to the African Union Commission’s Personal Data Protection Guidelines for
Africa, 29 it averred that the principles for data protection include consent and legitimacy,
fair and lawful processing, purpose and relevance of data, management of the data lifecycle,
transparency of processing and confidentiality and security of personal data. It is therefore
the petitioners deposition that the governments actions as data controllers and data
processors did not comply with the said core data protection principles.

53. In the case of Jared Odhiambo Ouya v Republic30 the learned magistrate did rule out that
Consent given in fear is not consent . The petitioners therefore submit that they did not
consent to their data being collected as they registered for the digital ID out of fear rather
than understanding.31 .Relying in the case of Samson Mumo Mutinda v Inspector General
National Police Service & 4 others32, the court held that, consent is a key component in
privacy to the extent that once granted amounts to a waiver to a claim founded on breach of
right to privacy. As such the government‟s command and placing the registration of Digital
id mandatory, violated the spirit of Article 31 of the Constitution.

54. The petitioners further contend that for government to command its citizens to provide their
data without their own volition amount to usurpation of free will to consent and as such the
respondents actions do signify a violation of section 28(1)(c) of the data protection act which
is vital for data collection and data processing. Further it is the petitioners submission that the
government violated Article 47 of the constitution that warrant Administrative actions by the
state and public officers to be lawful, reasonable, procedurally fair, and expeditious.

55. The petitioner further contend that the respondents failed to adhere to the principle of data
minimization as required in section 26 of the data protection act through Potential Over-
29
African Union Commission‟s Personal Data Protection Guidelines for Africa
30
Jared Odhiambo Ouya v Republic [2014] eKLR
31
Fact pattern 24
32
Samson Mumo Mutinda v Inspector General National Police Service & 4 others(2014)eklr

19
 collection of data .TenjeNamba initiative intended to collect a wide array of personal data,
including biometrics and global positioning coordinates 33 , which the petitioners find
unnecessary for the identification of individuals and therefore this would lead to over
collection of data. In the case of Nubian Rights Forum & 2 others v Attorney General &
6 others; Child Welfare Society & 9 others 34it was held that biometric data and GPS
coordinates required by the impugned amendments are personal, sensitive and intrusive data
that requires protection.

56. Further the petitioners aver that the government did not meet the principle on purpose
limitation. The petitioner submits that there was broad use of data with the Tenje namba
initiative seemingly allowing potential use of the data collected for a broad range of
government services and functions beyond merely providing identity information, which
might not align with the concept of purpose limitation .Also, although the purpose of digital
ID was to streamline and unify citizens personal data under single identification number,
which could benefit governance and service delivery, there was initial uncertainty about all
the specific purposes for which the data would be used. The citizens were left grappling with
uncertainty demanding answers to their questions and seeking reassurance about security,
transparency and viability of the digital ID system.35

57. The petitioner further state that there was no Public Participation and Transparency when
rolling out the digital ID in how the data would be used, stored, and protected. As such this
was a violation of article 1 ,10 and 118 of the constitution .The people were therefore
compelled due to the stringent measures enacted by the government to register with fear of
not accessing government services..36 In the case of Samuel Thinguri Waruathe & 2 others
v Kiambu County Government & 2 others37 the court established that public participation
and effective consultation are not a mere cosmetic venture. The product of the legislative
process ought to be the true reflection of the public participation so that the end product bears
the seal of approval by the public. The implementation of the digital ID did therefore not
meet this threshold.

33
Fact pattern 24
34
Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others
(Interested Parties) [2020] eKLR
35
Fact pattern 26
36
Fact pattern 25
37
Samuel Thinguri Waruathe & 2 others v Kiambu County Government & 2 others.(2015) eklr

20
58. The petitioners further contend that ,data protection is necessary to safeguard the
fundamental right to privacy by regulating the processing of personal data, providing
individuals with rights over their data, and setting up systems of accountability and clear
obligations for those who control or undertake the processing of the data.The petitioner
therefore posits that there are insufficient safeguards by the government to protect the
personal data collected. Further, that there were no effective measures to ensure that the
data will not be accessed by persons who are not authorized by law to receive, process and
use it, or that it is not used for purposes incompatible with the reason for its collection.

59. It is the petitioners disposition that ,the government did not adhere to the data protection
principle. This requires enacting sufficient and effective safeguards to protect sensitive
personal data from misuse, loss, or unauthorized access, given the massive scale of the data
collection involved. Sources in the office of data commissioner revealed that there was no
data compliance audit that was conducted in violation of section 58 of the data protection
act .As such this puts the data amassed for tenje namba program at the risk of data breaches
as data audit evaluates the security measures in place to protect personal data. If an audit is
not carried out, vulnerabilities in the system may remain undetected and unaddressed,
increasing the risk of data breaches. It was later revealed that there was security breach in the
e-citizen platform which was down played by the government.38In the case of Nubian Rights
Forum & 2 others v Attorney General & 6 others 39 the petitioners argued that the
implementation of NIIMS without proper data protection safeguards violated the right to
privacy.

60. It is therefore the petitioners stand that the government should have followed the necessary
legal framework on data protection before implementing the digital ID and therefore they
failed to adhere to the constitution and data protection regulations in its implementation.

38
Fact pattern 25
39
Nubian Rights Forum & 2 others v Attorney General & 6 others [2019] eKLR

21
 Issue (D)

Whether the police used excessive force against protestors in wahala in violation of their
obligations under the constitution and international laws.

61. Pursuant to article 238 (2)(b) of constitution of Kimetulik ,it does place a mandatory
obligation for national security to be pursued in compliance with the law and with the utmost
respect for the rule of law ,democracy ,human rights and fundamental freedoms.In Attorney
General & Another v. Randu Nzai Ruwa & Others, ,40 the court noted that even where
national security is implicated, it has to be pursued while strictly observing and respecting
the rule of law, democracy human rights and fundamental freedoms.

62. By virtue of Article 37, every person has the right to peaceably and unarmed to assemble ,
demonstrate ,picket and present petitions to public authorities.. Article 21 of the International
Covenant on Civil and Political Rights (ICCPR) defines a protest as a fundamental human
right for individuals to join a peaceful assembly to express themselves, celebrate or to air
grievances.Further,article 26 provides for the right to life to every individual.

63. The petitioner also seeks to rely In the case of South African Transport and Allied
Workers Union and another vs Garvas and others ,41 where the Court held that the right
to freedom of assembly is central to our constitutional democracy. It exists primarily to give
a voice to the powerless. It provides an outlet for their frustrations. This right will, in many
cases, be the only mechanism available to them to express their legitimate concern.

64. The petitioners submit that whereas they exercised this right ,the police officers ,armed with
anti-riot gear, truncheons and water canons responded forcefully in dispersing the
demonstrators .That by the police officers using teargas and firing bullet to the demonstrators
amounted to use of excessive force. 42Further ,according to Human rights watch about 30
people were seriously injured and 2 killed by the police in the demonstrations. 43As such this
vindicates the police actions were unproportional and the need for the relevant officers to be
brought to book.

65. Article 244 outlines the role of the National Police Service as to comply with the
constitutional standards of human rights and fundamental freedoms. Further section 24 of the
National police act stipulates that the police officer ought to protect life.However ,the police

40
Attorney General & Another v. Randu Nzai Ruwa & Others, CA. No. 275 of 2012
41
South African Transport and Allied Workers Union and another vs Garvas and others [2012]
42
Fact pattern 30
43
Fact pattern 31

22
 officers actions of killing and injuring the demonstrators point out to violation of their
obligations and mandates .

66. In the case of Ferdinand Ndungu Waititu v the Attorney General,44 Paragraph 37, Judge
Onguto held states that it is not uncommon for protestors to turn violent and this does not
deprive them of the same right.

67. The petitioner relies on Part A of the Sixth Schedule of the National Police Act that provides
that a police officer must resort to non-violent means as the first option and to use force only
when non-violent means are ineffective. In addition even where the use of force is justified,
the officer does not have a carte blanche in the use of force. The Act demands that the force
used must be proportional to the objective to be achieved, the seriousness of the offence and
the level of resistance, and still, only to the extent necessary. When it comes to use of
firearms, the Act makes that a last resort option.

68. The petitioners submit that the police officer did not attempt to use non violent means first to
disperse the demonstrators and that further ,the force used by armed police officers was not
proportional to the unarmed demonstrators which lead to their death .

69. Pursuant to the provisions of Part III of the public order act it requires the need to notify the
police service of the intent to convene a public procession in order to offer security .The
petitioners aver that despite fulfilling this mandate by submitting a notice of the protests a
week earlier. 45 ,the police officers did not heed to their obligation ,on the contrary they
inflicted injuries on the demonstrators.
70. Section 14 of the Public Order Act clearly states that the degree of force used by weapons
likely to cause death or any serious bodily injuries shall be used without recklessness or
negligence.It is the contention of the petitioners that the police officers recklessly mishandled
their weapons and as such led to the death of the protestors.
71. Further ,the petitioners contend that actions of the police officers did not meet the
proportionality test and that the protestors actions did not necessitate infringement of other
rights to include right to life. In the case of Hussein Khalid & 16 others v attorney general
& 2 others 46the court held that demonstrations in some way results to violence and hence
the police officers should express restraint and tolerance to which the police never
demonstrated.

44
Ferdinand Ndungu Waititu & 4 others vs the Attorney General & 12 others (2016)eklr
45
Fact pattern 29
46
Hussein Khalid & 16 others v attorney general & 2 others (2017)

23
72. Section 89 of the national police service act provides that a police officer who commits a
criminal offence as against the law shall be liable to criminal proceedings‟ in a court of law.
In line with article 23 of the constitution it denotes that the high court may grant reliefs for
violation of the human right. The petitioners therefore aver that the court ought to ensure the
rule of law stands and justice served to the affected and injured parties due to police brutality.

73. The petitioner relies in the case of Finucane vs. The United Kingdom47, where it was
observed that the obligation of the state to protect the right to life requires by implication that
there should be some form of effective official investigation when individuals have been
killed as a result of the use of force. The essential purpose of such investigation is to secure
the effective implementation of the domestic laws which protect the right to life and, in those
cases involving the state agents and bodies, to ensure the accountability for deaths occurring
under their responsibility as was held in the case of Apollo Mboya v Attorney General and
3 others48.As such the petitioner submits that the police officers ought to be held accountable
for their violation of human rights and obligations by using excessive force.

47
Finucane vs. The United Kingdom
48
Apollo Mboya v Attorney General and 3 others

24
PRAYERS

Wherefore in the light of issues raised, arguments advanced and authorities cited, the
Petitioners respectfully request this court to adjudge and;

I. Finds that the government imposed excessive tax obligations on its citizens and failed to
follow due process in the enactment of the finance Act of 2023
II. Finds that the government failed to meet its obligations to respect, fulfill and protect the
citizen‟s enjoyment of the socio-economic rights as enshrined IN THE Constitution
III. Finds that the government failed to adhere to The Constitution and data regulations in
implementation of the Digital ID
IV. Finds that the police used excessive force against protestors in Wahala in violation of
their obligations under The Constitution.
V. Declares the Finance Act unconstitutional in its entirety
VI. Orders an injunction on the ongoing registration if the Digital Id
VII. Grants all the relief the court deems fit.

25