KI in Court
Council of Governors and 47 others, Advisory Opinion, Reference No. 3 of 2019
In July 2019, the Council of Governors and the 47 counties filed a reference for an advisory opinion at the Supreme Court on aspects of the fiscal arrangements within the devolved system; but more particularly on division of revenue between the two levels of government. KI and TISA were joined in the reference as as interested parties. The National Assembly then made an application to the Supreme Court challenging the Court’s jurisdiction to issue the advisory opinion. On October 8
th, the Court delivered its ruling on the application, finding that this is a case of public importance deserving of the Court’s discretion. It was, however, held that the Court would not hear all of the issues brought forward in the petition and that directions would be given on October 16
th in that regard. Ultimately, the Court held that there were four issues raised in the advisory opinion reference for its determination.
Attorney General v. Law Society of Kenya & Others, Civil Appeal No. 426 of 2018
In July 2018, the High Court determined two consolidated petitions relating to the appointment of commissioners to the Judicial Service Commission (JSC). These petitions stemmed from the actions of the President in forwarding Justice Warsame’s name to the National Assembly (NA) for vetting prior to appointment. The decision of the High Court barred Parliament from vetting Justice Warsame. Additionally, it held that section 15(2) of the Judicial Service Act which gives the President the power to appoint elected members of the JSC is not unconstitutional. The Attorney General appealed this decision, and the Court of Appeal dismissed this appeal in a judgment on 11
th October, 2019.
Okiya Omtatah & Others v. Attorney General & others, Petition No. 163 of 2019
This case is a High Court Petition which challenges the lack of public participation before enactment of the Statute Laws Amendments Act, 2018, and the use of a miscellaneous bill to pass substantive amendments to laws. Notably, among the many pieces of legislations introduced by the said Act is the National Integrated Identity Management System (NIIMS), which the Petition argues is a violation of the right to privacy. KI is an Interested party in the case. The matter was heard in October and is set for judgment on 18
th December, 2019.
Magdalene Njeri & 9 others v. Moses Nyakiongora & 5 others, ELC Petition No. 47 of 2018
This case is a petition to the Environment and Land Court that touches on the illegal issuance of eviction notices by the Respondents and the subsequent eviction of the Petitioners and others from several informal settlements within Nairobi. KI is one of the many petitioners. Highlighting of submissions was on 17
th October, 2019, and will continue on 28
th January, 2020.
Council of Governors Advisory Opinion No. 2 of 2017
The Supreme Court delivered a ruling on 18
th October 2019 where it held that the Council of Governors (CoG) is not a state organ under Article 260 of the Constitution. This is because it is not a Commission, agency, or body established under the Constitution. As such, the Court further held that the CoG has no standing to seek the advisory opinion from the Court on matters concerning county government. The Court also held that the County Government Act shows that the CoG has ambiguous legal status. Although the Court stated that it would not enter into a discussion on the merits of the advisory opinion because of this lack of jurisdiction, it stated that the matter would have been remitted back to Alternative Dispute Resolution (ADR) and Article 159(2) should be applied to all persons and all government agencies. It also held that there is a need for cohesion between national and county governments and ADR plays a key role. The background to the ruling was the COG had sought an opinion from the Supreme Court on its funding. KI was an interested party in the matter.
Hussein Khalid & 16 others v AG & 2 others, Petition No. 21 of 2017
This case focused on the events surrounding the “Occupy Parliament” protest in March of 2013. The Appellants submitted that their constitutional rights during the demonstration and upon arrest, detainment, and arraignment were violated. Additionally, they challenged the constitutionality of the provisions under which they were charged and sought clarity on the role of the Magistrate’s Court to determine Constitutional questions. The Petitions at the High Court and Court of Appeal were dismissed. The Supreme Court also dismissed the appeal.
The Court found that the arrest, detention, and charging of the Appellants did not violate their constitutional rights under Articles 32, 33, 36, 49, and 50 of the Constitution. Additionally, the submission that the sections of the Penal Code under which the Appellants were charged was unconstitutional was found to have no merit. The Court declined to rule on the constitutionality of the Cruelty to Animals Act, as such a question had not been put before the High Court or the Court of Appeal.
With regard to the role of the Magistrate’s Court in addressing constitutional questions, the Court found that, as no legislation existed to give constitutional jurisdiction to said court at the time of the arrests, the High Court was the court of first instance for such matters and the Magistrate’s Court acted appropriately. However, there now exists legislation which gives constitutional jurisdiction to the Court in certain circumstances.
The Court held that this judgment does not prevent the Appellants from seeking damages or other reliefs for specific violations that may have occurred in the manner of arrest, detention, and arraignment. However, it was found that these allegations should not warrant vitiating the trial process. As such, the Appellants are to return to the Magistrate’s Court for trial on the criminal charges. Lawyers at KI represented the Appellants. See a full summary of the judgment
here:
Wanuri Kahiu and another v Attorney General and Others, Petition No. 313 of 2019
This case deals with the right to freedom of expression of Wanuri Kahui, the film maker who created
Rafiki. This film was banned by the Kenya Films and Publication Board due to Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI)-themed content. The court viewed the film on 18
th October, 2019, and submissions will be highlighted on 3
rd December, 2019. KI is representing the 2
nd Petitioner.
Olive Mugenda, Civil Application No. 322 of 2019
The application under Rule 5(2)(b) brought by the Respondents to stay proceedings at the ELRC was allowed as the main appeal challenges amendment and jurisdiction, which are allowed at that Court.
