Bench Bulletin Issue 14

7/30/2019 Bench Bulletin Issue 14

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Thanks to all Our Partners

A publication of The National Council for Law Reporting

and the business people. It is a quarterly digest of recent

developments in law, particularly, case law, new legislation in

the form of Acts of Parliament, rules and regulations, pending

legislation contained in Bills tabled before Parliament and

selected Legal Notices and Gazette Notices.

Issue 12: April-June 2010

ter of the Republic of Kenya

The Bench Bulletin

Issues For Law Reform From The Bench

Farewell To Mrs. Gladys Boss Shollei

NCLR Strategic Planning Retreat

Legislative Update

NCLR Moves Towards Paperless Office Environment

Judicial Opinions


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Kenya Law RepoRts Bench Bulletin

1Issue14: January-March 2011

the council MeMBers

Disclaimer: While the National Council for Law Reporting has made every effort to ensure both the accuracy and

comprehensiveness of the information contained in this publication, the Council makes no warranties or guarantees

in that respect and repudiates any liability for any loss or damage that may arise from an inaccuracy or the

omission of any information.

Tel: +(254) (020) 271


4/88Issue14: January-March 20112


What they said

i

in


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editors note




naMiBia report


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citizen Jane




strategic planning Quality assuranceand perforMance departMent


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Achode,





2010 COMPANY OF THE YEAR JUDGES AWARD


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inforMation coMputer technology (ict) departMent


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Systemfeatures

ProcessorType IntelXeon

processor5600series

ProcessorCores 6

NumberofProcessors 2

Memory 128GBRAM,expandableto256GB

Network Minimum Two Multifunction Gigabit (10/100/1000) Adapters With wireless networkcapability

Ports Mouse(serial),Keyboard,USB

Monitor 17

SU RackMountable

Storage

Harddrive 10TB,expandableSASharddrivesTechnologyFormFactor BladeGeneration 7


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Solaris 10





STARTPoliceCharge

Sheet

ReceivePolice

ChargeSheet

EnterDetails

inRegistry

CASEFILECaseFile

Management STOP

START Plaint Application Claim

EnterDetailsin

Registry:(Claim;

Application;Ex-

Parte)

CaseFile

ManageCase

FileSTOP

START

Charge Sheet Plaint Application Claim

OpenNew

Case:

Select Case Type Case Metadata

AddCaseInfo:

Case Roles Proceedings Case Status Scanned Documents

Central

Database

SendOut

Notification

s

STOP


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Role ProposedinCharge MainResponsibilities

CorporateManagement TheChiefJustice TheRegistrar

Authorizethestart/continuationoftheprojectfromtheCorporatePerspective

SetProjectTolerances. Setandreviewoverallstrategyandinterfaceswithother

initiatives

ProjectTeamSeniorUser TheRegistrar RegistryClerk ICTTeamLeader

OwnershipoftheProjectfromaUserviewpoint. ApprovalofUserSpecificationsforTechnicalProducts. AttendProjectBoardMeetings&Reviews. PrioritizeProjectIssues. ReviewExceptionReports&ExceptionPlans. Recommendactiononchanges

Projectassurance NCLR UNODC

BusinessAssuranceonbehalfoftheExecutive. UserAssurance Supplier Assurance carried out by spot-check/audit of

technical material & Products Supplied. Review of

ProductsviaQualityReview.

ProjectManager ChiefJustice Day-to-daymanagementoftheProject. Planning,monitoring&control. ReportingprogressthroughHighlightReports. ManagementofTeamandContracts DeliveryoftheEnd-product(s). Configuration Management, Fi ling, and Change

Management.


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The administrative back end of Kenya Law Website




laWs of Kenya departMent


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Mashujaa day), Independence Day, Christmas Day and

Boxing day; Idd-ul-Azha for the Muslims and Diwali for

the Hindus.

In1997 through Statute Law (Repeals and Miscellaneous

Amendments) Act (Act No. 10 of 1997), Parliamentamended section 2 of the Act to include the day during

which a general election is held as a public holiday.

Section 2(4) states thus:

(4) The day in any year during which ageneral election is held following the

dissolution of Parliament shall be a public

holiday.

Can the Executive arm of Government then invalidate

a public holiday?

Under the Public Holidays Act, the government (through

the Minister) is empowered, to through a notice in the

Gazette, declare any day to be a public holiday either in

addition to the days mentioned in the Schedule to the

Act or in substitution for any of those days and either

throughout Kenya or in any district or area. Section 3 of

the Act provides thus:

The Minister may at any time if he thinks it, bynotice in the Gazette, declare any day to be a public

holiday either iin addition to the days mentioned in

the Shedule or in substitution for any of those

days...A number ofad hoc declarations of public holidays have

been made in the recent past. For instance, 25th August

2009 was declared a public holiday for purposes of the

Census, 4th August 2010 was declared a public holiday

for purposes of the referendum and the earlier one in

2008 on November 6th to celebrate President Obamas

victory as the President of the United States. Some

holidays have also been invalidated or substituted

for instance Moi day (previously celebrated on 10th

October) was declared no longer a public holiday and

that instead, it would be a day for Kenyans to give backto the society and help each other while undertaking

their respective nation building activities.

A Public Holiday falling on a Sunday

Section 4 of the Public Holidays Act stipulates thus:

Where, in any year, a day in Part I of the Schedule

falls on a Sunday, then the irst succeeding day, not

being a public holiday, shall be a public holiday and

the irst mentioned day shall cease to be a public

holiday.

Part I of the Schedule to the Act provides for the publicholidays mentioned above with the exception of Idd-

ul-Azha and Diwali which fall under Parts II and III

respectively.





This would mean that any public holiday speciied

under Part I of the Schedule that falls on a Sunday is to

be observed the following day which is on a Monday and

the Sunday ceases to be a public holiday. But if the next

day which is Monday also happens to be a public holiday,

then the Tuesday would be the public holiday and so on.

Consequentially there need not be gazettement of such

days as public holidays as the law expressly provides for

that.

From the reading of section 3 of the Public Holidays Act,

a public holiday will need to be gazetted if it is in addition

to the holidays already set out in the Act or a substitution

of the holiday.

Labour Laws

The labour laws recognize public holidays as holidays

or rest days and indeed, are not to be counted as part

of leave days or subtracted in computation of wages to

employees.

Indeed, Kenya has ratiied a number of International

Labour Organisation(ILO) Conventions among them the

Holidays with Pay Convention.

The Constitution of Kenya

It may be argued that Boxing Day is not expressly

enumerated as one of the national days under the

Constitution of Kenya. Article 9 Clause (3) of the

Constitution of Kenya provides for only three national

days: Madaraka day on 1st June, Mashujaa day on

20th October and Jamhuri Day to be observed on 12th

December each year. Under Clause 4, a national day is to

be a public holiday.

However, national days (days of great national

signiicance that deine nationhood of a country) are

not to be confused with public holidays. Simply put,

all national days are public holidays but not all public

holidays are national days.

Indeed, Clause 5 of Article 9 of the Constitution allows

parliament to enact legislation to prescribe other public

holidays.

Interpretation and General Provisions Act; (Chapter

2, Laws of Kenya)

The Interpretation and General Provisions Act, Chapter

2 of the Laws of Kenya is yet another crucial legislation

that offers direction on interpretation of time and

further gives some guidance as to how to treat a public

holiday falling on a Sunday or excluded day. Section 57 of

the Act provides thus:

57. In computing time for the purposes of a written law,

unless the contrary intention appears-

(a) a period of days from the happening of an event

or the doing of an act or thing shall be deemedto be exclusive of the day on which the event

happens or the act or thing is done;

(b) if the last day of the period is Sunday or a public

holiday or all oficial non-working days (which

days are in this section referred to as excluded

days), the period shall include the next following

day, not being an excluded day;

(c) where an act or proceeding is directed or allowed

to be done or taken on a certain day, then, if that

day happens to be an excluded day, the act or

proceeding shall be considered as done or taken

in due time if it is done or taken on the next.

From the foregoing, it would emerge that according to the

national laws, the announcement by the government that

the 27th of December was to be a normal working day was

not only irregular but also unlawful.

Recommendations for Reform

1. The Public Holidays Act (Chapter 110) of the laws

of Kenya should be amended at section 3 to make clear

which authority has power to declare or substitute

public holidays. Is it the Minister in charge of ProvincialAdministration and Internal Security or is it the President?

Furthermore, there should be some form of criteria and

control set out on the determination and declaration of a

public holiday not only to avoid possibility of abuse but

also for purposes of certainty.

2. The Public Holidays Act should be amended by

repealing or qualifying section 5(1) to the Act which

provides:-

(1) Notwithstanding the provisions of this Act, the head

of a department of the Government may open the ofices

and premises thereof, and call upon persons employedtherein to perform such of their duties as he may require

of them, on a public holiday.

Furthermore, the Act should expressly stipulate on the

effects of public holidays especially on workers. The

Labour laws need to also clearly and adequately provide

for this.

3. The Schedule to the public Holidays Act need to be

reviewed to relect certain recent changes on public

holidays. For instance, Kenyatta Day now Mashujaa Day,

Independence Day now Jamhuri Day, and the cancellation

of Moi day.


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A SYNOPSIS OF LEGISLATIVE SUPPLEMENTS(By Petronella Mukaindo, Ass. Law Reporter)

This segment contains selected legal notices published in the Kenya Gazette in the recent past.

DATE OF PUBLICATION IN

KENYA GAZETTE

KENYA GAZETTE

SUPPLEMENT NUMBERNAME OF LEGISLATION REMARKS

The Rules replaced Rule 19 and

sought to upgrade the amount

of fees payable under the Act. A

person will for example pay Kshs

5, 000 to secure a certiicate of

registration as a pharmacist or

Pharmaceutical Technologist and

the same amount for professional

practice. Kshs 5,000 will be the

payable amount for manufacture

of each single product. A person

will however pay double that

amount for registration of his

premises. The Rules also set

the amount of fees payable forapplication, inspection and course

approval fees for pharmacy

training institutions at Kshs

400,000 and Kshs 210,000 for

degree and diploma programmes

respectively.

Supplement No. 873rd December, 2010 T h e R e g u l a t i o n s a m e n d

paragraph 3 of the Fifth Schedule

by setting the transaction fee for

debt instruments (secondary

market). The transaction fee for

net brokerage commission, the

NSE and CDSC stands at 0.024%,

0.0035% and 0.002% of the

transaction value respectively.

Capital Market (Licensing

R e q u i r e m e n t s )

(General)(Amendment)

Regulations, 2010

(Legal Notice 189/2010)

Supp. 8910th December, 2010 On the 6th December, 2010

P r e s i d e n t M w a i K i b a k i i n

exercise of the powers conferred

under section 132 (4) (c) of the

Constitution of Kenya created a

commemorative award knownas the Promulgation of the New

Constitution Commemorative

Medal.

The co nst itut io n o f

Keny a-creat io n o f a

commemorative award-

Proclamation


Part III of the Second Schedule

was amended by adjusting the

amount of fees payable to the

Investor Compensation Fund by

buyers, and sellers from 0.14% to

0.12% for shares and 0.0015%

for ixed income securities. For

stockbrokers of listed securities

the fee is 0.01% and 0.004% for

shares and ixed income securities

respectively.

T h e C a p i t a l M a r k e t

(Licensing Requirements)

(General)(Amendment)Regulations, (Legal Notice

190/2010)

Pharmacy and Poisons

(Amendments) Rules,

2 0 1 0 - L e g a l N o t i c e191/2010






KENYA GAZETTE

KENYA GAZETTE


Supp. 8910th December, 2010

24th December, 2010 Supp. 90

Supp. 91

This medal is to be awarded to

all members of the Disciplined

Services, recommended Public

Service Oficers, political leaders,members of the Defence Forces

and other uniformed services

and also prominent personalities

who contributed signiicantly

to the realization of the New

Constitution of 27th August,

2010.The medal will be a single

award issued on anniversary of

the Promulgation of the New

Constitution, i.e the 27th August,

2010.

The Order was made pursuantto section 4(2) of the Civil

Contingencies Fund Act (Cap.

425). The amount of capital

reserve fund was increased to

two billion shillings operational

for one year (from August, 2010

to August, 2011).

These Regulations are made

under the Alcoholic Drinks

Control Act (No. 4 of 2010)

which came into force on 22nd

November, 2010. Section 8 of theAct establishes District Alcoholic

Drinks Regulation Committee

whose core mandate is to issue

licenses under the Act.

The Committee is to consist of

the District Commissioner of the

district as the chairperson; the

District Medical Oficer of Health;

Oficer Commanding Police

Division, one person nominated by

every local authority in the district,

three residents of the district,appointed by the Minister at least

two of whom are to be women

and one person designated by the

National Campaign Against Drug

Abuse Authority or its successor

as the secretary to the District

Committee.

These Rules regulate the conduct

of business and affairs of District

Committees. They for instance

set out the requirements and

procedure in making applications

to the District committees for

persons who wish to manufacture,

sell, dispose of, import or export

C i v i l C o n t i n g e n c i e sFund(Increase of Capital)

Order, 2010


Alcoholic Drinks Control

(Licensing) Regulations,

2010


The co nst itut io n o f

Keny a-creat io n o f a

commemorative award-

Proclamation(Legal Notice 197/2010)


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KENYA GAZETTE

KENYA GAZETTE


any alcoholic drink under the

Act. Application forms are also

provided for.

In considering an application forrenewal, the District Committee is

to consider the extent to which the

licensee, has complied with the

terms and conditions contained

in the licence for the previous

license period.

The rules also provide for the

conduct of business and affairs

of the District Committee. Under

the rules, the District Committee

is to meet at least four times

in every inancial year in each

administrative units of the district.

The quorum for the conduct of the

business of the District Committee

is half of the total members.

These regulations amend the

Transport Licensing Regulations

made under the Transport

Licensing Act (Cap. 404), by

adding a new regulation 15A.

The new regulation provide that

with effect from the 1st January,

2011, no licence is to be issuedto a Public Service Vehicle with

a carrying capacity of less than

twenty-ive (25) seaters, unless

it was previously licensed. This is

in what is seen as a move aimed at

decongesting the city.

Section 3 of the Transport

L i c e n s i n g A c t e s t a b l i s h e s

a Transport Licensing Board,

which consists of a chairman

appointed by the President and

eight other members appointed by

the Minister, one to represent the

Nairobi Area, and one to represent

each province. The members hold

ofice for a term of three years

which term is renewable.

The Certiied Public Secretaries

(Application for Registration)

Regulations are amended in

the Schedule by deleting andsubstituting the Form used

in making applications for

registration as a Certiied Public

Secretary [form RCPSB 1].

C e r t i i e d P u b l i c

Secretaries (Application

for Registration)(Forms

and Fees)(Amendment)(No. 3) Regulations, 2010


Transport Licensing

( A m e n d m e n t )

Regulations, 2010 (L.N.

209/2010)

Supplement 9731st December, 2010

Supplement No. 3Kenya Gazette Vol. No.

12 of 4th February, 2011






KENYA GAZETTE

KENYA GAZETTE


This amends the Certiied Public

Secretaries (Application for

Practicing Certiicates (Form and

Fees) Regulations, by deletingand replacing forms RCPSB 2 and

RCPSB 3 with new ones.

Certiied Public

Secretaries (Application

for Practicing

Certiicates (Form andFees) Regulations.

This Order is made under the State

Corporations Act (Cap. 446). The

principle objective of the Agency is

to establish and manage a National

Electronic Single Window System

and to facilitate trade which is

to serve as a single entry point

for parties involved in trade and

transport.

The system will allow lodging of

documents electronically, aid in

processing and approval and the

making of payments electronically

for fees, levies, duties and taxes

due to the Government, on

imported and exported goods.

The Kenya Trade Network

Agency Order, 2010

6/2011)

The Nat io nal Yo uth

Council Act-Guidelineson the Election of Youth

Representatives to the

National Youth Council


The guidelines, issued by the

Minister for Youth Affairs set outguidelines on the election of youth

representatives to the National

Youth Council. The guidelines are

made under the National Youth

Council Act (No. 10 of 2009).

Section 3 of the Act establishes a

National Youth Council which is to

be a body corporate. The Council

is to among other things regulate

and co-ordinate youth activities,

promote and popularize the

national youth policy and otherpolicies that affect the youth,

mobilize resources to support and

fund youth initiatives and lobby

for legislation on issues affecting

the youth.

The purpose of the guidelines

is to prescribe the manner of

electing youth representatives

to the National Youth Council

and to facilitate the process of

electing youth representatives to

the Council.

According to the guidelines, youth

representatives from the sub-

location level to the provincial

level are not be remunerated

Supplement No. 4Kenya Gazette Vol. No.

12 of 11th February,

2011

Supplement No. 6

Supplement No. 3


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The Retirement Beneits

(Individual Retirement

B e n e i t s S c h e m e s )

(Amendment) Regulations,

2011


The Government Financial

Management(Occupational

Safety and Health) Fund)

Regulations, 2011

These regulations are made

under the Government Financial

Management Act (No. 5 of 2004).

Regulation 3 establishes anOccupational Safety and Health

Fund.

Supplement No. 9

Supplement No. 10

Kenya Gazette Vol. No. 16

of 18th February, 2011


KENYA GAZETTE

KENYA GAZETTE


but are to offer leadership and

promote the spirit of volunteerism

among the youth.

The guidelines provide for the

establishment of an Election

Supervisory Committee in every

sub-location, location, division,

district and province whose

functions include identifying the

voting centres, supervising the

polling and counting of votes.

The youth representatives at the

district level are to elect three

representatives to the Provincial

youth elections and three others

to the National Youth Congress;whilst three representatives from

each province are be elected to

the National Delegates Forum.

The National Youth Congress

which is to comprise of three

representatives from each

District is to nominate eight (8)

representatives to the National

Youth Council. Eight (8) other

representatives are to be elected

from the National Delegates

Forum, which also form part ofthe National Youth Council.

The Regulations, made under the

Retirement Beneits Act (No. 3 of

1997) and amending paragraph 2

of regulation 16 of the Retirement

Beneits (Individual Retirement

Beneits Schemes) (Amendment)

Regulations are backdated to 8th

June, 2005.

The amendment provides for

the options open to persons whoprior to leaving employment

belonged to an occupational

retirement beneits scheme, but

left employment before attaining

the speciied retirement age

and have their accrued beneits

transferred to an individual

retirement beneits scheme.

The Nat io nal Yo uth

Council Act-Guidelines

on the Election of Youth

Representatives to the

National Youth Council








KENYA GAZETTE

KENYA GAZETTE


A workplace registered under the

Occupational Safety and Health

Act (No. 15 of 2007) is to pay into

the Fund an annual levy of threethousand shillings, reviewable

amount.

The initial capital of the Fund is

seven million shillings appropriated

by Parliament in the inancial year

2010/2011.

The Fund is to among other things

be used to develop and co-ordinate

a sound and effective occupational

s a f e t y a n d h e a l t h s y s t e m ,

implement an effective system

for the prevention of occupationalaccidents and diseases, to carry out

research on occupational safety

and health, including research on

factors leading to occupational

accidents and diseases and to

promote occupational safety

and heal th thro ugh annual

safety awards for outstanding

performance in safety and health

among employers and employees.

Regulation 3 establishes theNational Youth Service Mechanical

and Transport Fund.

The initial capital of the Fund is

to be twenty-two million shillings

appropriated by Parliament in the

inancial year 2010/2011. The

purpose of the fund is to provide

transport facilities for the National

Youth Service undertaking national

projects and other users on hire,

to provide training services to

the youth and to generate income

for purposes of maintenance

and renewal of machinery and

equipment.

These Regulations revoke and

replace the Central Bank (Currency

Handling) Regulations, 2010. The

Regulations govern the cash in

transit (CIT) operators and the

use of cash defacement devices. A

person wishing to operate a cash

defacement device is to apply for

a licence to the Central Bank. An

application fee of Kshs 5,000 and

initial license fee of Kshs 100,000

is payable. The Rules also provide

for obligations of CIT operators,

The Government FinancialManagement (National

Youth Service Mechanical

and Transport Fund)

Regulations, 2011


The Central Bank of Kenya

( C u r r e n c y H a n d l i n g )

Regulations, 2011 (Legal

Notice 19/2011)

Supplement No. 10


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KENYA GAZETTE

KENYA GAZETTE


Supplement 13Kenya Gazette Vol. No. 24

of 11th March, 2011

P r a w n F i s h e r y

Management Plan


standards of cash defacement

devices, making of claims and

destruction of dye-stained notes.

The rules provide that in the

event of a robbery where notes

packed in a cash in transit box

are stolen, the cash in transit

operator must immediately

communicate with the police

and the Bank and report the

event within twenty four hours.

The Bank will then issue a press

release alerting the public not to

use the notes and to surrender to

the police or the Central Bank allstained notes recovered within

the locality of the robbery.

The Management Plan is made

under section 5 of the Fisheries

Act (Cap. 378 and is to apply to

the coastal areas of Malindi and

Ungwana Bay.

The main objective of the

Management Plan is to ensure

the continuation of a biologically

sustainable and economically

viable prawn ishery. Speciically,

the Management Plan among

other things aims at regulating

the prawn harvesting through

control of ishing, minimizing

resource use conlicts in the

prawn ishery, minimizing

e c o s y s t e m d e g r a d a t i o n ,

promoting the use of better

prawn harvesting technology

and promoting co-management

of the ishery.

The Central Bank of Kenya

( C u r r e n c y H a n d l i n g )

Regulations, 2011 (Legal

Notice 19/2011)


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research and developMent departMent


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The Inaugural NCLR CLE Course, January 20-21, KICC - Nairobi.





NCLR members of staff at the display desk

The Inaugural NCLR CLE Course, January 20-21, KICC - Nairobi. continued...


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huMan resourcesand adMinistration departMent

Michael M. Murungi Editor / C.E.O

Ms. Esther Nyaiyaki, Snr. Assistant

Editor

EDITOR AND THE SENIOR ASSISTANT EDITOR WELCOMING STAFF.





Mutindi Musuva

Human Resources and

Administration Department


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Michael M. Murungi Editor / C.E.O


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Pictorial: NCLR End of Year Staff Meeting, December


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feature case




feature case


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court of appeal cases

The Hon. Mr. Justice

OKubasu


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high court cases


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high court cases


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high court cases


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high court cases




high court cases


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high court cases

The Hon. Mr. JusticeM K Ibrahim, J




high court cases


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high court cases


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high court cases


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high court cases




high court cases

Alcohol Law crimanilizes state and not consumption

beyond regulated hours


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high court cases




high court cases

Muranga Bar Operators Association Self Help Group v The Minister for State for

Provincial Administration and Internal Security & 2 others

Constitutional Petion No 3 of 2011

High Court of Kenya at Nairobi

Daniel Musinga J

January 24, 2011

Reported by Nelson K Tunoi

The petitioners Constitutional rights had not been infringed

since the State was obligated to take legislative and policy

measures to ensure that there was progressive realization

of all guaranteed under Article 43 of the Constitution and

including the right to health. To that extent, the reductionof the licence hours was not unconstitutional.

The High Court thwarted a bid by Muranga Bar Owners

Association (the petitioner) to stop the implementation

of the Alcoholic Drinks Control Act, Act No. 4 of 2010.

Effectively violators of the Act risk facing stiff penalties

sanctioned under the Act. The Act which came into

force on November 22, 2010 sought to establish a new

regulatory regime for the manufacture, promotion, sale

and consumption of alcoholic drinks and created new

alcohol-related offences.

Some of the salient provisions of the Act include section

7 which provides that all dealings in alcoholic drinks -

whether sale, production, promotion, consumption etc

are to be done in accordance with the terms of a licence

granted under the Act.

Section 9 provides for a very elaborate procedure for

the application and granting of licences. The procedure

involves several obligations on both the applicant and the

Committee.

The Act also designates the National Campaign Against

Drug Abuse Authority, popularly known as NACADA, as theRelevant Agency under the Act for the purpose of advising

the government on the enforcement of the Act.

In a ruling delivered on January 24 2011, Justice Daniel

Musinga rejected the petitioners contention that

compliance period of nine months stipulated by section

70 (b) of the Act had not lapsed therefore its members

ought to freely sell alcoholic drinks without any hindrance.

The High Court termed the petitioners interpretation of

the section as unacceptable and observed that a contrary

interpretation would cause untold chaos. The Courtfurther made a inding and ruled that the petitioner failed

to produce evidence showing that the District Alcoholic

Drinks Regulation Committees stipulated under the Act

had not been established.

Prior to this ruling the petitioners had obtained interim

orders from the High Court (Mwera, J.), which temporarily

suspended the implementation of the Act commonly

referred to as the Mututho Law.

In the application brought against the Minister for State

and Internal Security, NACADA and the Attorney General,

the petitioner alleged that the Act infringed on its

Constitutional rights, particularly the right to property and

the right against discrimination by the State.

The MP for Mathira Constituency, Servers of Health and

Environment, a non-governmental organization that

provides rehabilitative services for alcoholic and drug

addiction and the Nakuru County Consultative Forum were

enjoined to the suit as interested parties.

Mr. Mbuthia, counsel for the petitioner, submitted that the

transitional provisions stipulated by section 70 (b), required

his clients to comply with the Act within nine months

from the commencement date. That notwithstanding, the

provincial administration had embarked on harassing the

petitioners members for operating without licences. He

told the court that the licensing committees established

under Section 8 of the Act were yet to be constituted. It

was therefore not possible for the petitioners members

to obtain licences for 2011 following expiry of licences

for 2010.

Opposing the application, Miss Mbiyu representing the

Attorney General, submitted that the Act having come

into operation necessitated compliance of the same by

the petitioners members - including obtaining current

licences. She told the Court that the District Alcoholic

Drinks Regulation Committees had been established and

therefore the petitioners members had no reason for

failing to apply for fresh licences. The petitioner had not

produced evidence to prove the contrary.

She further submitted that section 70 (b) required that the

Act be complied with within nine months from the date of

its commencement and not at the end of nine months. Itdid not however exempt operators from obtaining licences

during the transitional period.

While pointing out that Constitutional rights are not

Regulations under the alcoholic drinks control act constitutional


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absolute but are subject to the greater public interest,

she asked the court to uphold Parliaments intention in

enacting the Act. The objective of the Act found under

section 3 includes protection of the health of the individual

in light of the dangers of excessive consumption of alcoholic

drinks, protection of consumers of alcoholic drinks from

misleading or deceptive inducements, protection of healthof persons under the age of 18 years.

Mr. Njenga Mwangi for the interested parties was of

the view that the Alcoholic Drinks Control (Licensing)

Regulations, 2010, provided for eleven categories of

licences with different licence hours, conditions and

exceptions. Therefore an applicant could elect to apply for

a licence with more operational hours.

Justice Musinga identiied with the submissions by the

respondents and the interested parties. According to the

Court, the loss of hundreds of lives due to consumption ofadulterated alcoholic substances, economic loss; family

break-ups informed the enactment of the alcohol control

law. The Act provided a well thought out legal framework

for regulation of production, sale and consumption of

alcoholic drinks. The Court disagreed with the petitioner

that the Act criminalized consumption of alcoholic drinks

per se.

The Court found that the petitioners Constitutional rights

had not been infringed since the State was obligated to

take legislative and policy measures to ensure that there

was progressive realization of all guaranteed under Article

43 of the Constitution and including the right to health.To that extent, the reduction of the licence hours was not

unconstitutional.

On the petitioners allegation that the Act encouraged

discrimination against consumers of alcohol the court

held that no material was placed before it in support

of that allegation. It was stated by the Court that by

providing the regulatory framework for production, sale

and consumption of alcoholic drinks, Parliament could be

accused of having discriminated against alcohol consumers.

As regards the licence hours for General Retail Alcoholic

Drink Licence, the court ruled that they were aimed at

ensuring that proper balance is struck between working

hours and leisure hours so that those workers who partake

in alcohol do not engage in its consumption during workinghours.

Turning to the provisions of Section 70(b) of the Act, the

Court confessed that its interpretation was dificult in light

of the noble intentions of the Act. By stating that a person

who was a manufacturer, importer, exporter, distributor or

retailer of any alcoholic drink or the owner or manager of

any premises contemplated under the Act, shall, within

nine months of such commencement, comply with the

requirements of this Act, did Parliament intend that there

would be no regulatory law and policy in the manufacture,

sale and consumption of alcoholic drinks over the ninemonths transitional period?

In answer to this question the Court held that section 69

of the Act repealed the Changaa Prohibition Act and the

Liquor Licensing Act, thereby regulatory the Alcoholic

Drinks Control Act as the sole leaving law.

In the Courts considered opinion it could not have been

Parliaments intention that in the intervening period

between the repeal of the Liquor Licencing Act and the

commencement date of the Alcoholic Drinks Control Act

there would be no regulatory framework for sale and

consumption of alcoholic drinks. The Court thereforerejected the petitioners contention that the oficials of the

1st and 2nd respondents should let bar owners operate

without any interference even in the absence of liquor

licences as required by the Act. It was in the interest of

the members of the petitioner to ensure that within the

period of nine months from the effective date of the Act

they comply with all the necessary requirements of the law.

Direct Line Assurance Company Limited v Attorney General

Judicial Review 323 of 2010

High Court of Kenya at Nairobi

Warsame. J

January 4, 2011

Reported by Andrew Halonyere

Why Public Service Vehicle Operators had to Join SACCOS and Limited Liabilities Companies




high court cases


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high court cases

PRESS SUMMARY

ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

[2011] UKSC 4

JUSTICES: Lord Hope (Deputy President), Lady Hale, Lord Brown, Lord Mance, Lord Kerr

The Supreme Court of the United Kingdom




The Supreme Court of the United Kingdom

Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.gov.uk


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COURT OF APPEAL CALENDAR




court of appeal calendarNOTES


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