Through this practice area, we have been able to preserve, build, maintain and establish trust with our client base. Our practice is aimed at linking relationships with our clients to provide them with practical and attainable legal advice and action.
Our private client practice area encompasses:
For more information about our Private Client, please contact Chacha Odera (Managing Partner) or John Mbaluto, FCIArb (Deputy Managing Partner). Alternatively click here to download our Private Client profile.
Friday 12th July 2019 saw a big win for the Kenya National Union of Teachers (KNUT), the largest teachers' trade union in Kenya, against the employer, the Teachers Service Commission (TSC) after the Employment and Labour Relations Court ruled in favour of KNUT in a protracted trade dispute concerning teachers’ promotions, appraisal, transfers, training and union membership.
Some of the notable highlights from the Court’s decision include:
TSC has indicated that would appeal the Court’s decision.
Oraro & Company Advocates’ John Mbaluto, a Partner in the dispute resolution practice group, was among the lead lawyers acting for KNUT in this matter. John has experience in advising both international and local clients on constitutional law, banking and commercial disputes, employment and labour law, and is also well regarded for advising employee associations and trade unions.
Referred to as a “Dispute Resolution powerhouse”, we are well regarded for our in-depth understanding of the judicial process and our extensive experience to find innovative solutions to the most challenging problems whenever they occur. Our litigators have a long history of handling cutting-edge litigation matters, including many of the most significant disputes in the country. We are called upon to play a central role in high stakes and high profile matters in Kenya.
A tight-knit group of 16 lawyers (8 Partners, 5 Senior Associates and 4 Associates), arguably the largest dispute resolution team in Kenya, we approach each matter with intensity, thoroughness and creativity and build teams appropriate to the circumstances. We handle all aspects of contentious matters, from the strategic and tactical to the practical and procedural. We represent clients in tribunals in areas such as tax, environment, public procurements, among others.
Kenya has marked slight over a year since the Supreme Court rendered its decision on the nullification of the presidential elections held on 8th August, 2017. The dust having settled, it is an appropriate time to reflect on the historic decision, albeit from a legal perspective.
Kenyans went to the polls on 8th August, 2017 to elect their president. Uhuru Muigai Kenyatta was declared the winner with his closest challenger Raila Amolo Odinga coming in second from a field of eight (8) candidates. Mr. Odinga and his running mate, Stephen Kalonzo Musyoka were dissatisfied with the way the elections were conducted and the outcome of the said presidential elections. Mr. Odinga and Mr. Musyoka challenged the declaration of results by the Independent Electoral and Boundaries Commission (IEBC) at the Supreme Court of Kenya in Raila Amolo Odinga & Another –vs- IEBC & Others (2017) eKLR (the 2017 Presidential Election Petition). This was the second time the result of a presidential election was being challenged in the Supreme Court the first one having been challenged in the year 2013.
After receiving arguments from counsel representing the parties, the Supreme Court delivered its judgment on 1st September, 2017. By a majority decision of four (4) to two (2), the Court held that the presidential elections was not conducted in accordance with Constitution of Kenya, 2010 (the Constitution) and the applicable law thereby rendering the declared result invalid, null and void. The Court proceeded to order the IEBC to organise a fresh presidential election in conformity to the Constitution and the applicable election laws, within sixty (60) days of the judgment.
In this article, we discuss the position of the law as relates to the application of section 83 of the Elections Act, 2011 (the Elections Act) to the determination of election petitions. This section sets the standard of proof for election petitions in Kenya. The position on the interpretation of the provisions of section 83 of the Elections Act and its application to the determination of election disputes was settled in the 2017 Presidential Election Petition. Elections in Kenya are governed by the Constitution and other principal legislations in addition to the Elections Act include the Independent Electoral and Boundaries Commission Act, 2011 (the IEBC Act) and the Election Offences Act, 2016 (the Elections Offences Act). The Constitutional threshold is set out in Articles 10, 38, 81, 86, 88 and 138 and the principles cutting across all these Articles include integrity, transparency, accuracy, accountability, impartiality, simplicity, verifiability, security and efficiency as a free and fair election by way of secret ballot, free from violence and an election conducted by an independent body in transparent, impartial, neutral, efficient, accurate and accountable manner.
Section 83 of the Elections Act provides that:
“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”
The term “or” used makes the two limbs of the provisions of section 83 of the Act disjunctive under our law unlike under English law which is conjunctive where the term “and” is used in a similar provision in the English Act. The conjunctive term has also been used in the Election laws of various Commonwealth countries such as Nigeria, Ghana,Zambia, Tanzania and Uganda.
The Supreme Court explained the disjunctive application of section 83 of the Elections Act to be that an election can be nullified if it showed either that the elections were not conducted in accordance with the Constitution and the written law relating to elections or that the noncompliance affected the result of the election. In other words, a petitioner who proves that conduct of the election in question substantially violated the principles laid down in the Constitution as well as other written law on elections, will on that ground alone, void an election. A petitioner will also be able to void an election if he is able to prove that although the election was conducted substantially in accordance with the principles laid down in our Constitution as well as other written law on elections, it was so fraught with irregularities or illegalities as to affect the result of the election. The Supreme Court majority however rejected the English position that even trivial breaches of the law should void an election stating that that position was not realistic; in recognition of a global truism that the conduct of an election is rarely perfect. Applying this test to the evidence presented before them on the presidential elections conducted in Kenya in August of 2017 the Supreme Court in its majority decision found that the elections were neither transparent nor verifiable and that on that ground alone and on the basis of the interpretation of section 83, they had no choice but to nullify the election and to direct the IEBC to conduct fresh presidential elections.
The Supreme Court discussed at length the quantitative and the qualitative test as a basis of determining whether an election result ought to be voided. In a paper titled Election Technology Law and theConcept of “Did the irregularity affect the result of the elections?”’ prepared by Hon. Justice Prof. Otieno-Odek prior to the determination of the 2017 Presidential Election Petition, the author discusses the quantitative and qualitative test. Justice Odek states that the quantitative element consists of requirements for an accurate, verifiable and accountable system while the qualitative element requires that elections must be free from violence, intimidation, improper influence and corruption and that there must also be transparency and administration of elections in an impartial, neutral and efficient manner. The quantitative test is therefore most relevant where the numbers and figures are in question whereas the qualitative test is most suitable where the quality of the entire election process is questioned and the Court has to determine whether or not the election was free and fair.
In the Court of Appeal decision of Daniel Ongong’a Abwao vs Mohamed Ali & 2 Others (2018) eKLR which was an appeal filed by a voter within Nyali Constituency against the decision of the High Court upholding the election of Mohamed Ali Mohamed as the Member of the National Assembly for Nyali Constituency, this threshold was applied by the Court and it was found that the appellant was unable to prove that the elections substantially violated the principles laid down in the Constitution as well as other written laws on elections. The appeal was dismissed.
The annulment of the presidential elections by the Supreme Court of Kenya triggered the introduction of the Election Laws Amendment Bill, 2017 (the Bill) in Parliament to amend various provisions of the Elections Act, the IEBC Act, the Election Offences Act. The Bill, despite strong opposition from a section of Kenyans, was passed by Parliament, the Senate and finally transmitted to the President for assent. The President neither assented to the Bill nor returned it to Parliament and after fourteen (14) days of its passing, the Bill became law by virtue of the provisions of Article 116 of the Constitution. The law was published in the Kenya Gazette on 2nd November 2017 thus becoming effective as the Election Laws Amendment Act No. 34 of 2017 (the Election Laws Amendment Act).
The Katiba Institute Petition Following the passing of the Election Laws Amendment Act, Katiba Institute & 3 Others vs Attorney General & 2 Others (2018) eKLR (the Katiba Institute Petition) was a Constitutional Petition filed contending that the amendments were unconstitutional. Under the amendments, section 83 of the Election Act now reads as follows:
“(1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that- (a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and (b) the non-compliance did not substantially affect the result of the election.”
The petitioners’ argument was that by amending the law from a disjunctive test to a conjunctive one by use of the word “and” instead of “or”, it would be difficult to challenge an election even where there was violation of Constitutional principles.
The High Court (Mwita J) delivered its decision in the Katiba Institute Petition on 6th April, 2018 noting that any amendments to the election laws must be forward looking in order to make elections more free, transparent and accountable, than to shield mistakes that vitiate an electoral process. The Court therefore held that “there was no constitutional compulsion or rational in amending section 83 of the Act to remove the disjunctive word ‘or’ and introduce the conjunctive word ‘and’ so that only where there are failures in complying with the constitution and election laws and they substantially affected the results should an election be nullified. Removing the twin test for annulling faulty election results negates the principles of electoral system in the Constitution… allowing such an amendment would be to ignore constitutional principles in our transformative Constitution that there should be free, fair, transparent and accountable elections.” The Court declared that the amendment of section 83 along with other specified sections of the Elections Act was invalid.
The position as relates to the interpretation of section 83 of the Election Act is now settled both by the Supreme Court of Kenya and also by the other Superior Courts. It is now for Parliament to effect the necessary changes by deleting the amended section 83 of the Act and restoring the initial disjunctive provision. Our fidelity to the Constitution that we gave unto ourselves should be maintained and upheld at all times.
It is apt to close with the words of the Supreme Court in the 2017 residential Election Petition:
“Therefore, however burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant…
It is also our view that the greatness of a nation lies not in the might of its armies important as that is, not in the largeness of its economy, important as that is also. The greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule of Law ensures that society is governed on the basis of rules and not the might of force.”
Prior to the promulgation of the Constitution in the year 2010, there was no specific law dealing with consumer protection in Kenya. However, some aspects of consumer protection were covered in various pieces of legislation including the Trade Descriptions Act, Standards Act, Weights and Measures Act, Restrictive Trade Practices, Monopolies and Price Control Act (now known as the Competition Act), the Foods, Drugs and Chemical Substances Act, the Pharmacy and Poisons Act, the Public Health Act, the Fertilizers and Animal Foodstuffs Act, as well as private law measures in the law of contract and the law of tort.
These and other statutes touching on consumers are criminally oriented as they seek to ban one malpractice or the other and to prosecute offenders for breach of their provisions, but do not empower a consumer to sue the offender to get redress, including compensation, where the said breach affects him or her adversely. Herein lay the major set-back in protection of consumers under these statutes.
It is in this regard that the Article 46 of the Constitution of Kenya 2010 and its enabling statute, the Consumer Protection Act, 2010 are lauded as landmark achievements in the area of consumer protection. These new laws spell out consumers’ rights and obligations vis-a-vis product and service liability; they make provisions for the promotion and enforcement of consumer rights as well as empower consumers to seek redress for infringement of their rights as consumers; and also provide for compensation.
Part II of the Act gives consumers a wide range of rights including the right to commence legal action on behalf of a class of persons in relation to any contract for the supply of goods or services to the consumer. This right cannot be ousted by any agreement between the parties. Other consumer rights provided for in the Act include the right to full pre-contractual information for the consumer to make an informed choice, the right to complain with regard to quality, delays in provision of rectification, quantity and price of such goods or services as are offered, the right to a reasonable notification of termination of service – particularly in relation to the provision of basic telecommunications services and/or internet access, among other rights.
The Act prohibits ‘unfair practices’ and proceeds to provide for radical sanctions against a supplier who engages in ‘unfair practices’. Such practices include representing that goods or services have a sponsorship, approval, performance or characteristics that they do not have; or representing that goods or services are of a particular standard, quality, grade, style or model, if they are not, and so on.
Therefore where a consumer enters into an agreement, whether oral or written, after or while a person has engaged in an unfair practice, the Act provides that the consumer has the right to terminate the agreement and seek any remedy available to them in law, including a suit for damages.
Undoubtedly, the Consumer Protection Act is a far-reaching piece of legislation that will affect different sectors of our economy including real estate, e-commerce, manufacturing, agriculture, banking and finance, aviation, among many others. In this connection, the Act establishes the Kenya Consumers Protection Advisory (CPA) Committee that shall aid in the formulation of policy related to consumer protection, accredit consumer organisations, advise consumers on their rights and responsibilities, investigate complaints and establish conflict resolution mechanisms amongst other duties. A breach of any regulation made by the CPA, will make a person liable to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding two years or both such fine and imprisonment.
In conclusion, although consumer protection law within Kenya is very much in its infancy, there have been several significant developments in this area over the last three years, namely the promulgation of the new Constitution in 2010 and the subsequent enactment of the Consumer Protection Act, which came into effect in 2013 as well as enactment of the Competition Act, 2010. The Competition Act protects consumers from unfair and misleading market conduct.
Indeed the increased consumer protection has seen the formation of the Consumer Federation of Kenya (COFEK) which was registered on 26th March, 2010 and whose mandate is:
“to defend, promote, develop and pursue consumer rights as guided by Article 46 of the Constitution of Kenya 2010, the Consumer Protection Act, 2012 and the Competition Act, Cap 504 and make it possible for the consumers to get value for money.”
COFEK has been at the forefront in acting as a watchdog in various consumer protection matters with the most recent being the institution of a suit against a leading retail supermarket for the alleged overcharging of items on its shopping tills brought about by the shelf and till price discrepancies at its outlets.
Changing times beckon in the Kenyan Magistrates Courts, as marked by the enactment of the Magistrates’ Courts Act, 2015 (the Act) which came into commencement on 2nd January, 2016. The Act confers jurisdiction, functions and powers on the magistrates’ courts and provides for the procedure of the magistrates’ courts
According to the law, in exercising its authority, a magistrate’s court shall be guided by the principles specified under the Constitution in Article 10 on the national values and principles of governance, Article 159 on the principles guiding the exercising of judicial authority and Article 232 – with regards to the values and principles of public service.
In light of the backlog that has otherwise become synonymous with the Kenyan Courts the Act’s new objective to enable the Magistrate courts to facilitate just, expeditious, proportionate and accessible judicial service in the exercise of criminal and civil jurisdiction is obviously a welcome relief towards easing the backlog of cases.
A magistrate’s court shall be subordinate to the High Court and shall be presided over by a chief magistrate, a senior principal magistrate, a principal magistrate, a senior resident magistrate or a resident magistrate. The Court shall exercise criminal jurisdiction as conferred on it by the Criminal Procedure Code or any written law. This is in line with the general principle that any crime and its punishment must be prescribed by written law.
One of the most notable changes in terms of the expansion of the jurisdiction of the Magistrates Courts is with regard to the increase of the pecuniary jurisdiction in relation to proceedings of a civil nature. For instance, the pecuniary jurisdiction where the Court is presided over by a chief magistrate has been increased from KES 7 million to KES 20 million shillings. The Chief Justice is however empowered to revise the pecuniary limits of the civil jurisdiction by a Gazette notice, by taking into account inflation and prevailing economic conditions.
The Act retains the jurisdiction of the magistrate’s court in proceedings of a civil nature regarding African customary Law on specified matters such as land held under African customary tenure; marriage, divorce, maintenance or dowry; Seduction or pregnancy of an unmarried woman or girl; enticement of, or adultery with a married person; matters affecting status and, in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and Intestate succession and administration of intestate estates, so far as they are not governed by any written law.
The Court now has jurisdiction over claims relating to violation of human rights only on rights guaranteed under Article 25 (a) of the Constitution dealing with freedom from torture and cruel, inhuman or degrading treatment or punishment; and Article 25 (b) of the Constitution dealing with freedom from slavery or servitude.
Presently, the magistrates’ courts can hear claims in employment and labour relations subject to the pecuniary limits under the Act. They can also hear and determine environment and land cases subject to the pecuniary limits. The type of environment and land cases that can be heard include claims relating to environmental planning and protection, climate issues, land use planning , title, tenure, boundaries, rates, rents, valuation, mining, minerals and other natural resources; compulsory acquisition; land administration and management.
Furthermore, the court can now adjudicate over matters relating to contempt of court other than contempt that occurs in the face of the court. A person who commits contempt can be sentenced to imprisonment for a term not exceeding five days or a fine not exceeding KES 100,000 or both.
The Act introduces a court administrator to be appointed by the Judicial Service Commission and shall be responsible for among others, the day to day administration of the Court. The Chief Justice is expected to make rules for the effective organization and administration of the Magistrates courts to cover among others, the automation of court records, case management, protection and sharing of court information and the use of information communication technology.
Whereas the Chief Justice is expected to take measures as may be necessary for the supervision and inspection of magistrates’ courts, including prescribing a code of conduct for magistrates within six months of the Commencement of the Act, it must always be borne in mind at all times that the courts are subject to the supervisory jurisdiction of the High Court as a check mechanism.
A copy of the new Act, can be found here
She has advised local and international clients from various target sectors such as energy, oil, manufacturing and financial services in arbitration & mediation, constitutional law, land disputes, debt recovery, banking & commercial litigation, and insolvency matters.
Eva recently advised a bank on enforcement of third party securities under the Insolvency Act, 2015 as well as advising an oil company on its prospective claim against the National Land Commission for denial of fair administrative action under the Constitution in its compulsory acquisition of the oil company’s land.
Eva has a Bachelor of Laws (LLB) from Moi University and a post-graduate diploma in Law from the Kenya School of Law.
Critics of Kenya’s judiciary and the justice system have for long complained about the backlog of cases and the slow turning wheels of justice. It is however worth noting that there have been significant steps towards clearing the backlog of cases in the recent years. 2016 was no exception and a few inroads were made including, but not limited to various legislation that will without a doubt enhance the dispensation of justice.
First, is the implementation of the court-mandated mediation pilot program in both the commercial and family divisions of the High Court, which is a move towards fostering alternative dispute resolution without necessarily severing business relations; the establishment of the Anti-Corruption and Economic Crimes Division of the High Court and the inauguration of various courts such as the High Court stations at Narok, Kiambu and Baringo but to name a few. The Court is in addition, fast-tracking old matters with a move to clearing the perennial backlog of cases.
A notable legislative development is the Small Claims Court Act, No. 2 of 2016 (SMCA), which establishes the Small Claims Court a subordinate court with a pecuniary jurisdiction of KES 200,000. However, the Chief Justice may determine the pecuniary jurisdiction in a Gazette Notice. The small claims courts are to be accessible in every county, as well as in other decentralized units of judicial service delivery. The Small Claims Court shall be guided by the same constitutional principles that guide other courts that are established in the Constitution. Under the SMCA, a Small Claims Court has jurisdiction to deal with any civil claims relating to matters such as: contracts for sale and supply of goods or services; contracts for money held and received; liability in tort in respect of loss or damage to any property, for the delivery or recovery of movable property; compensation for personal injuries; and set-off and counterclaim under any contract. The Court may further exercise any other civil jurisdiction as conferred on it by written law.
There are however matters that the Court cannot deal with such as matters relating to defamation, libel, slander, malicious prosecution, disputes regarding titles or possession of land, or employment and labour relations. There are certain conditions which must be met before a party lodges a claim before the Small Claims Court, these include that they must ordinarily reside or carry on business within the local limits of the jurisdiction of the Court; the subject matter of the claim must be situated within the local limits of the jurisdiction of the Court; the contract to which the claim relates must either have been made or be intended to be performed within the local limits of the Court; the cause of action must have arisen within the local limits of the Court; or the Defendant to the claim must reside within the local limits of the court’s jurisdiction.
It is interesting to note that the SMCA provides that a party to the proceedings shall appear in person or where they are unable to appear in person, be represented by a duly authorised representative who shall not be a legal practitioner.
In a move to ease things, the Act excludes the strict application of the rules of evidence. It is further worth noting that under the SMCA, the Small Claims Court shall be presided over by an adjudicator who must be an advocate of the High Court of Kenya, with at least three years experience in the legal field and who may in addition, serve on full or part-time basis. The Act does not preclude a person from lodging a claim that is within the jurisdiction of the Small Claims Court in any other court if they elect to do so.
Additionally, the Access to Information Act No. 31 of 2016 (AIA), now gives effect to Article 35 of the Constitution which provides for the right to access to information. It also confers on the Commission on Administrative Justice, the oversight and enforcement functions and powers relating to the right. Under the AIA, a public body is required to facilitate the access to information held by it. At a minimum, the information is to be provided for inspection without any charge, by supplying a copy on request for reasonable charge to cover the costs for copying and supplying the information.
There are limits to the right of access of information in accordance with the provisions of Article 24 of the Constitution. This includes information whose disclosure is likely to: undermine the national security of Kenya; impede the due process of law; endanger the safety, health or life of any person; involve the unwarranted invasion of the privacy of an individual other than the applicant; substantially prejudice commercial interests of the entity or third party from whom it was obtained; cause substantial harm to the ability of the government to manage the economy of Kenya; significantly undermine a public or private entity’s ability to give adequate and judicious consideration on which a final determination has not yet been made; damage a public entity’s position on any actual contemplated legal proceedings or infringe on professional confidentiality.
A Court may require a public entity or private entity to disclose information where the public interest in disclosure outweighs the harm to protected interests. However, where information is readily accessible by other means, a public body is not obliged to supply information on such a request. The AIA provides timelines within which an application for access to information is to be considered. The AIA has provisions which enable an applicant to write to the Commission on Administrative Justice to review a decision by a public entity or private body in relation to a request for access to information. A party who is dissatisfied with a decision of the Commission may appeal the same to the High Court within set timelines.
A game changer is the Legal Aid Act No. 6 of 2016 (LAA), which gives effect to various provisions of the Constitution which facilitate the access to justice and social justice. It also establishes the National Legal Aid Service (the Service), provides for legal aid and for the funding of the legal aid. The functions of the Service include among others, to establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable. Also, to take necessary steps to promote public interest litigation with regards to consumer protection, environmental protection and any other matter of special concern to marginalized groups. Not all matters and people qualify for legal aid. The Service shall provide legal aid services at the expense of the State to persons who qualify for legal aid services. Under the LAA, legal aid services are provided in civil, criminal, children, constitutional and public interest matters as well as any other types of case or law that the service may approve.
The following persons are eligible for legal aid:
A person who is eligible to receive legal aid is required to apply to the state in the prescribed manner and they shall not receive legal aid services unless the Service determines that their financial resources make them eligible for the services. The applicant may apply in person or through any other person authorised by the applicant in writing or through any person or organisation authorised by the applicant in writing on behalf of the applicant or on behalf of the Applicant where the applicant’s authority cannot be reasonably obtained due to physical or mental incapacity.
Legal aid is not available for civil proceedings relating to:
In paying homage to alternative dispute resolution as espoused under the Constitution, the Service may, where it deems it necessary, recommend an aided person to alternative forms of dispute resolution and may for that purpose, provide them with such services at the expense of the Service.
Fourth on the list of recent notable disputes’ legislation is the Contempt of Court Act No. 46 of 2016 (COCA). This is an interesting Act of Parliament that defines the powers of the Courts in punishing Contempt of Court offenders. It is a well established legal principle that Courts do not act or issue orders in vain. Previously, the law relating to contempt was based on English law on Contempt of Court by virtue of Section 5 of the Judicature Act, (Cap 8 of the Laws of Kenya) and more recently, several provisions in both the High Court (Organization and Administration) Act No 27 of 2015 as well as the Court of Appeal (Organization and Administration) Act No. 28 of 2015 which provisions have since been repealed by the COCA.
COCA now provides for the law relating to contempt in one statute. It defines civil contempt to include wilful disobedience of any judgment, decree, direction, order or other process of a court or wilful breach of an undertaking given to a Court. It also defines criminal contempt to mean the publication of any matters or the doing of any act which scandalizes or tends to scandalize, or lowers the judicial authority or dignity of the Court, or prejudices, or interferes, or tends to interfere with the due course of any judicial proceeding, or interferes, or tends to interfere with, or obstruct, or tends to obstruct the administration of justice. Every superior court, (being the Supreme Court, Court of Appeal, High Court, the Environment and Land Court and the Employment and Labour Relations Court) has power to punish for contempt in the hearing of the court; punish for Contempt of Court in addition to uphold the dignity and authority of subordinate courts. Every subordinate Court shall on the other hand, have power to punish for Contempt of Court in the hearing of the Court.
Under COCA proceedings for criminal contempt can only be instituted by or with the consent of the Director of Public Prosecutions with the leave of the Court, or on the motion of a Court, having jurisdiction to deal with criminal Contempt of Court. The Act provides for elaborate defences to the offence of contempt. It is interesting to note that trial for Contempt of Court shall not constitute double jeopardy. The Act prescribes the punishment for the offence of Contempt of Court whereby upon conviction one is liable to a fine not exceeding KES 200, 000 or to imprisonment for a term not exceeding six (6) months or to both.
Sandra has advised an academic institution in formulating Collective Bargaining Agreements. She also successfully defended a company in an employment claim filed by casuals who wanted to be accorded similar employment terms as permanent staff.
Sandra holds a Bachelor of Laws (LLB) from Moi University and a post-graduate diploma in Law from the Kenya School of Law
By Walter Amoko
Given the different religious and cultural backgrounds of students, religion can be a flashpoint for potentially debilitating conflicts in schools and other learning institutions. This is profound as schools should ideally present an opportunity to live out at an early stage in the development of young and impressionable citizens one of the aspirations contained in the preamble to our Constitution, “proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.”
Ideally, the balancing of dissimilar sets of beliefs and practices in schools can lead to a virtuous circle of plurality and harmony as opposed to a vicious one of intolerance which could set the stage for religious discord that has blighted much of human history and is still prevalent in some parts of the world.
The history of the enlightenment values of religious freedom and tolerance was partly borne out of repudiation of among other things religious persecution of minority religious groups as they all once were, before the Catholic hegemony was broken; the religious wars that plagued 16th and 17th Century Europe; the sad history of persecutions of non-favoured religion in England since King Henry VIII denounced Papal authority culminating in the infamous abuses by the Star Chamber as shifting religious affiliations of English monarchs targeted different groups; and the mass migration to the ‘New’ world to avoid persecution.
The shift to the recognition of freedom of conscience was animated by the spirit of toleration of the plurality of the religious belief as explained by John Locke - “What has produced all the religious quarrels and wars that have occurred in the Christian world is not the (inevitable) diversity of opinions but rather the (avoidable) denial of toleration to those who are of different opinions.” Articles 27 and 32 of the Constitution repudiate the history of religious conflicts and persecutions and instead embrace and entrench the tolerance Locke advocated.
It was inevitable that the balance (or imbalance, if you will) of religion in schools would be the subject of Constitutional litigation especially on behalf of religious minorities. Initial challenges before the High Court failed as the Judges felt religious minorities were essentially asking for a special pass they were not entitled to, exempting them from general laws and regulations. These cases include Ndanu Mutambuki & 119 others v Minister for Education (2007) eKLR, Republic v Kenya High School & another ex parte SMY (2012) eKLR, Mohamed Fugicha v Methodist Church in Kenya & 3 others (unreported) Meru Petition 30 of 2014; Seventh Day Adventist Church (East Africa) Ltd v Minister of Education & others (2014) eKLR.
In the Ndanu Mutambuki case, Justice Nyamu dismissed an interlocutory application seeking conservatory orders in a Constitutional petition based on Section 78 of the old Constitution in which female minors belonging to a church known as Arata Aroho Mutheru Society challenged a prohibition against the wearing of headscarves in school, as wearing such headscarves was a mandatory requirement of their faith. Justice Nyamu was unimpressed and dismissed the application as he found no infringement of the rights guaranteed under Section 78 of the old Constitution. It was held, amongst other things, that headscarves were not a fundamental tenet of the petitioners’ faith but an afterthought arbitrarily introduced by their spiritual leader. The Judge further found that upon admission to the school, the petitioners’ consented to wear the prescribed uniform and that the uniform requirement was justified in order to instill discipline and equality in school and under Section 70 of the previous Constitution.
Expansive Bill of Rights
With the promulgation of the current Constitution, which boasts an expansive Bill of Rights, it was expected that the resolution of such challenges on behalf of religious minorities would be different. Surely Article 8 of the Constitution which stipulates that there is no state religion thus making Kenya a secular state and the explicit provisions in the Bill of Rights that are, “an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies”, dictated a favourable outcome. The expectation was also founded upon Article 32 on freedom of conscience, religion, belief and opinion, Article 56 on protection of minorities and Article 27(4) which prohibits discrimination on account of among, other things, religion, conscience, belief and culture.
Dashing such hopes was the Kenya High School case, in which the applicant sought an order compelling the Principal and Board of Governors of the Kenya High School to allow students professing the Islamic faith to wear the Hijab as directed by the Ministry of Education. Following the decision of the Ndanu Mutambuki case, Justice Githua dismissed the petition holding that the rights under Article 32 were not absolute and could be legitimately restricted to prohibit wearing of hijabs for the sake of a common uniform for all students. The Judge also invalidated the directive from the Ministry.
Further decisions referred to above followed this trend as religious minorities were required to conform with general rules of school respecting days of worship or dress code notwithstanding contrary dictates of their faiths.
In effect, the High Court continued to uphold arguments offered by the affected learning institutions which include dystopian nightmares in which liberally allowing the practice of divergent faiths would visit unmanageable chaos in the learning institutions and offend the practices and beliefs espoused by the sponsoring religious groups or the religious history of the school would be adversely affected by allowing religions alien to it.
Institutions also claim that they face challenges, for example, that some religious groups worship on different days of the week whilst others would demand to dress in a particular manner different from majority of the learners. They add that in a bid to ensure equality and avert any form of discrimination, all learners regardless of their social and religious background, ought to be subject to the same rules and regulations prescribed by the learning institution which they voluntarily agreed to be bound by upon admission. In any event, the Courts had to respect their right to run the institution as they deem fit.
The Court of Appeal has now in two separate decisions by differently constituted panels vindicated the hope of religious minorities who are being forced to conform with majoritarian practices at the expense of their conscience or the tenets of their faith.
In Mohamed Fugicha v Methodist Church in Kenya & 3 others (2016) eKLR, the Court considered an appeal from the decision of the High Court which had dismissed a Constitutional petition where the petitioner had sought the declaration that the decision to bar his daughters, Muslim girls, from wearing hijab and white trousers in a Methodist Church sponsored school, was unconstitutional.
In allowing the appeal, the Court emphatically upheld the freedom of religion, and rejected the notion that equality requires equivalent treatment. Their Lordships held:
“To our mind this is a duty requiring a sponsor to rise above and go beyond the narrow parochialism and insularity of its own religion or denomination and respect the equal right of others to be different in religious or denominational persuasion. It is a call to broadmindedness and respect for others including those whose creeds and the manner of their manifestation may be unappealing or baffling. It is a duty to uphold the autonomy and dignity of those whose choices are discordant with ours and acknowledgment of heterodoxy in the school setting as opposed to a forced and unlawful artificial and superficial homogeneity that attempts to suppress difference and diversity.
“...In obedience to that explicit direction, we are clear in our minds that the view we have taken that the Muslim girls ought to have been allowed to wear the hijab promotes the values and principles of dignity, diversity and non-discrimination. We also advance the law by making a definite finding that what the school did to Fugicha’s daughters’ amounts to indirect discrimination, a concept on which there appears not to have been any judicial engagement from the jurisprudence that has so far flowed from the High Court. We affirm, endorse and uphold the rights of equality and freedom of religion as set out in Articles 27 and 32 of the Constitution.”
This has been followed and emphatically affirmed in Seventh Day Adventist Church (East Africa) Ltd v Minister for Education & others (unreported) Civil Appeal No. 172 of 2014 in which their Lordships succinctly capture the core of the freedom guaranteed under Article 32 of the Constitution.
“The right to freedom of conscience, religion, thought, beliefs and opinion, as explained above in its various facets is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others, privately or in public. The manifestation through observance includes observance of a day of worship, and a believer will not be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”
The Court subjected the various justifications offered by learning institutions to searing scrutiny and ultimately rejected them, reminding learning institutions of their obligations to operate within the law and to respect the rights of students.
The Judges were not insensitive to the problems of balancing the competing interests in issue and therefore provided guidance as to how this was to be achieved under the concept of reasonable accommodation whereby, “In schools with multi-faith students, the students are able to co-exist, each practising their respective religions and balancing that with their right to education under the law, while at the same time, complying with school rules and regulations.” At the heart of such reasonable accommodation is the requirement that to honour and give effect to the Constitutional guarantee of conscience, schools must be prepared to incur the costs and bear inconvenience required for rights to be respected.
They also gave valuable elucidation as to what was required for a restriction on the exercise of a fundamental right or freedom to pass muster under Article 24 of Constitution, holding that all its strictures must be fully complied with, for a restriction to be upheld.
The lessons to be taken from the foregoing is that learning institutions need to bring themselves up to speed with the Constitutional and statutory duties by not only permitting learners to fully subscribe to and practise any faith of their choice but also avoid imposing their preferred religion upon learners. They also need to adopt liberal thinking which promotes religious diversity and strive to eliminate any form of intolerance or discrimination. In the words of Judge Dickson in R v Big M. Drug Mart Ltd (1985) 1 SCR 295:
“A truly free society is one which can accommodate a wide variety of beliefs, diversity and tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms... Freedom must surely be founded on respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to ascertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.”
A banner headline touching on a mega corruption scandal is an all too familiar feature in Kenyan newspapers. Similarly, irregularities in the conduct and award of public tenders are commonplace in the country, so much so that the sarcastic jibe, “lipa kama tender” (which translates to pay like a tender) is often directed at Government. The corruption vice has an obvious adverse impact on the economy and is an impediment to business where there is an unspoken rule that “facilitation” payments and other inducements are necessary in order to obtain certain services or business opportunities. Sadly, the country ranked 145 out of 176 countries on Transparency International’s Corruption Perceptions Index 2016.
There is really no shortage of legislation meant to tackle corruption in Kenya, as Parliament has enacted the Anti-Corruption and Economic Crimes Act, 2011, the Ethics and Anti-Corruption Commission Act, 2011 and more recently, the Bribery Act, 2016 (the Act). The Act came into operation on 13th January 2017 and its purpose is to govern the prevention, investigation and punishment of bribery.
Offences under the Act
The Act prescribes that it is a bribery offence where a person offers, promises or gives financial or other advantage to another person who knows or believes the acceptance of that advantage would constitute the improper performance of a function or activities.
An advantage has been defined to include money, loan, fee, reward, office, employment, contract, release/discharge of any loan or liability, as well as protection from any penalty including disciplinary penal proceedings. It is important to note that it does not matter whether the person to whom the advantage is offered, or promised, or given is the same person who is required to perform the function. This essentially aims to place liability on any person involved in connection with the impugned activity.
One would imagine that receiving a bribe only entails the actual receipt of the advantage. However, the Act provides that a mere request or an agreement to receive the advantage also constitutes an offence. The inverse also applies where the recipient of the bribe requests for or agrees to receive or accepts an advantage and the request, agreement, or acceptance constitutes the improper performance of a relevant function by that person.
It does not matter whether the recipient requests for, agrees to receive, receives or intends to request for the advantage directly, or through a third party, or whether the advantage is intended for the benefit of the recipient or another. Further, knowledge by the person giving the bribe that the performance of the function is improper is irrelevant.
The offence is deemed to be committed where it relates to a function or activity where the person is expected to perform it in good faith, be impartial or is in a position of trust. These functions are characteristic of many transactions in Kenya, for example approvals from Government agencies and procurement processes. A relevant function whether performed within or outside Kenya, includes any function or activity of a public nature, carried out by a State or public officer, or a foreign public official. The scope of the Act is quite wide as a relevant function has been defined to include any activity connected with a business or in the course of employment.
Responsibility of Organisations
Apart from an individual being held liable under the Act, where a person associated with a private entity bribes another with the purpose of obtaining business or an advantage for the private entity, that private entity is deemed to have committed an offence. This provision places investors and organisations on alert to be aware of the activities and conduct of their employees and to avoid liability being imputed on the organisation on account of an employee or agent.
In light of the above, the Act recognises the need for organisations to train their employees and agents and therefore places a mandatory obligation on public and private entities to put in place procedures for the prevention of bribery and corruption (prevention procedures). The Cabinet Secretary in consultation with the Ethics and Anti-Corruption Commission is to publish guidelines to assist in the preparation of prevention procedures.
A director or senior officer of a private entity is deemed to commit an offence under the Act if it is proved that failure of the private entity to put in place prevention procedures was done with their consent or connivance. It would however appear that no penalties apply to public entities such as the Government and statutory public bodies for failure to comply with the requirement to put in place prevention procedures. It is peculiar why public entities cannot be held liable in this respect, yet a majority of hurdles faced by investors is with respect to their dealings with public entities.
In addition to placing prevention procedures, there is an obligation on a person holding a position of authority in a public or private entity to report within twenty four (24) hours of any knowledge or suspicion of instances of bribery. Failure to do so constitutes an offence under the Act.
The Act also recognises that for the effective prevention and investigation of bribery, some protection must be given to those persons with information relating to such activities. To this end, a whistle blower is protected from intimidation to provide information or give testimony in Court. Further, any adverse actions with respect to a whistle blower’s employment, for example, demotion, termination or unfavourable transfer is deemed to be an offence punishable by a fine of KES 1 million (USD 10,000) or imprisonment for a term not exceeding one (1) year.
Accessories to Bribery
Liability under the Act is not limited to the person offering the bribe, the recipient or person performing the function. It also attaches to a person or private entity that obtains property intended for use in a bribe, uses, transfers or has in possession property obtained in connection with a bribe or records such property in the financial records of the entity. Investors and organisations must therefore be cautious when investing or acquiring assets where property may have been obtained in connection with a bribe, and this underscores the importance of thorough due diligence.
The investigation and prosecution of offences under the Act are to be governed by the already existing Anti-Corruption and Economic Crimes Act, 2011. A person found guilty of offering, receiving or assisting in the giving or receiving of a bribe shall be liable on conviction, to imprisonment for a term not exceeding ten (10) years or to a fine not exceeding KES 5 million (USD 50,000) or both. Further, if the person received a quantifiable benefit or another person suffered a quantifiable loss, a mandatory fine equal to five (5) times the amount of benefit or loss may be imposed.
Additional remedies imposed by the Court include an order compelling the person or entity to pay back the amount or value of the advantage received or an order for confiscation of property received.
Other penalties relate to the ability of the persons found guilty to continue in their roles. Persons such as directors and partners may be disqualified from serving in those positions for a period not more than ten (10) years. There are also restrictions on running for public office or transacting with the Government if found culpable of an offence under the Act.
Investors and organisations can now be protected under the provisions of the Act to eradicate hurdles previously faced in doing business. However, on the same token, individuals and private entities are placed on alert as they may be held liable if found to have engaged in activities in connection with bribery.
On the effectiveness of accountability and liability, only time can tell as a leaf may be borrowed or lessons learned from the effectiveness of prosecutions conducted under the Anti-Corruption and Economic Crimes Act, 2011.
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