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Environmental Protection and Climate Change Action

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The Africa Climate Summit 2023 will take place in Nairobi Kenya from the 4th to 6th September 2023.The theme of the summit is Driving Green Growth & Climate Finance Solutions for Africa and the World.

The summit is part of concerted efforts to take action and deal with the adverse effects of climate change. Climate change threatens the basic human rights of individuals and communities around the world by violating an array of human rights such as the right to life, health, food, water, and shelter.

As a country we will be keenly following to see whether we are on course to meet our carbon budgets and progress made in reducing greenhouse gas emissions against our annual carbon targets.

Throughout the summit you will hear certain terminologies being used. But before we delve into the terminologies it is best to understand some of the principles that that underpin the protection of the environment and climate action.

What is the relationship between environmental principles and climate change. Several aspects of the environment such as waste management, air pollution, water, deforestation and biodiversity are related to climate change.

Actions taken towards protecting the environment have a huge bearing on efforts to tackle climate change. Environmental laws and policies play a critical role in assisting countries to achieve net zero greenhouse gas emissions.

Now that we have laid a basis for the relationship between environmental law principles and climate change action, let’s look at the environmental principles. Our legal framework both national and international provide for five overarching environmental principles relevant to climate change as follows:

The precautionary principle: In case of uncertainty about the risk of environmental harm, this principle allows protective measures to be taken without having to wait until the harm materializes. This principle is valuable in managing risk where there is uncertainty about the environmental impact of an issue thus serves as a risk management tool.

The prevention principle: This principle requires preventive measures be taken to anticipate and avoid environmental damage before it happens and forms the bedrock of policy and legislation on environment and climate change action.

The rectification at source principle: This principle prioritizes redress for environmental damage and ensures that damage or pollution is dealt with where it occurs. A clear path of action must be followed by governments and elected officials to intervene and establish the relationship between the full cause and effect of an activity on the ecosystem.

The polluter pays principle: The person who causes pollution should bear the costs of the damage caused and any remedy required. A key principle in environmental management, serving both as a deterrent and accountability measure for harm.

The integration principle: This principle bestows responsibility and requires that environmental protection is integrated into all other policy areas, in line with promoting sustainable development. That is to say all government departments have responsibilities to protect our environment.

Decision-makers are called upon to factor these principles into their work when taking decisions on environment and climate change relates actions.

Are there only five environmental principles? What about the no-harm principle touted as a cornerstone of international environmental law? Join us in our next article as we discuss the politics behind the no- harm principles as it relates to climate change governance.

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Access to Justice – Haki za Washukiwa

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Should lawyers represent persons accused of crimes such as murder, economics crimes even in the face of clear evidence of wrongdoing?

This was the poll question conducted on our social media platform whose results so far are as follows:

poll results

The results resonate with the public notion that lawyers should not take on cases of persons whose evidence of wrong doing is glaring. Unfortunately, these perceptions of differ from what the law provides when it comes to arrested and accused persons. They have a myriad of rights.

Take for instance, Article 50 of the Constitution of Kenya obligates the State to ensure access to justice for all persons. Should there be a requirement for payment of fees, the same must be reasonable and not impede access to justice.

  1. The right to prompt information in a language that they understand of the following:

    1. The reason for the arrest
    2. The right to remain silent
    3. The consequences of not remaining silent
  2. The right to remain silent
  3. The right to communicate with an advocate, and any other person who is able to assist them.
  4. The right not to be forced to make any confession or admission that could be used in evidence against the person.
  5. To be held separately from persons who are serving a sentence.

  6. To be brought before a court as soon as reasonably possible, but not later than-

    1. Twenty-four hours after being arrested
    2. If the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day

  7. During their first court appearance, to be charged or informed of the reason for continued detention or to be released.

  8. To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

  9. A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.

Further, Article 48 of the Constitution which provides that an arrested person has:

Back to our poll results, would you change your response after reading the rights provided by law to the accused persons?

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Know Your Budget Making Process

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  1. The anchor laws on the budget and budgeting making process are Constitution of Kenya, 2010 and The Public Finance Management Act, 2010;
  2. Budget calendar stipulates timelines for a number of key activities to be undertaken in order to finalize the Budget and submit it for approval by 30th April of each financial Year.
  3. The budget calendar is contained in the Treasury circular issued in accordance to Section 36 of the Public Finance Management Act, 2012.
  4. The Treasury Circular provides guidelines on the processes and procedures for preparing the subsequent financial year and the Medium-Term Budget.
  5. The budget-making process in Kenya begins from August of the current financial year and ends in December of the coming financial year. For example, the next budgeting process will commence in August 2023 and end in December 2024.
  6. A financial year or fiscal year or budget years is the period that governments use for accounting and budgeting and financial reporting.
  7. The Budget process is cyclic involving four main stages as follows: Formulation, Approval, Implementation and Audit and Evaluation
  8. The Budget process is cyclic involving four main stages as follows: Formulation, Approval, Implementation and Audit and Evaluation
  9. Budgeting process occurs at both the national and devolved levels of government.
  10. The Budget process involves preparation and submission of documents known as budget documents which must be approved by cabinet and parliament.
  11. Every of the four stages of the budget process has unique documents. 
Formulation stages

Done by the executive arms of both national and county governments.

The formulation stage entails medium-term and long-term planning, determining the financial and economic priorities, preparation of the overall as well as budget estimates.

At this stage we cannot underscore enough the needs for meaningful public participation by the public.

The key budget documents at the formulation stage include:

At the national level:

  • Budget Circular
  • Budget Review and Outlook Paper
  • Budget Policy Statement – contains estimates national government revenue and expenditure.
  • The Budget Estimates

At the County level:

  • Budget Circular
  • The Annual development Plan
  • County Budget Review and Outlook Paper
  • The County Fiscal Strategy Paper – contains estimates national government revenue and expenditure.
  • Budget Policy Statement
  • The Budget Estimates
Approval stage

Done by Parliament the national level and County Assembly at the county levels

with each level having the Budget Policy Statements and County Fiscal Strategy paper adopted respectively.

Amendments and approval of the estimates by Parliament and County Assemblies takes places at this stage followed by the enactment of the Appropriation bills that allows expenditures.

Key documents under this include the Finance Bill and Appropriation Bills.

Implementation stage

This stage entails execution the approved budget proposals by the executive of the national and county governments. Parliament and County Assemblies will exercise oversight over the implementation.

Key budget documents here entail quarterly budget implementation review reports by Controller of Budget as well as quarterly budgets implementation reports by the national and county governments.

The Audit and Evaluation stage

The Offices of the Auditor General and the Controller of the Budget are in charge of the audit and evaluation stages respectively. Audit reports look to confirming whether public funds were expended prudently by both the national and county governments. The Audit reports are tabled before Parliament’s and County assemblies for debate and consideration after which they should take appropriate action. Debate and consideration s of the reports should be done within three months of tabling of the report by the Office of the Auditor General.

The Controller of Budgets on the other hand reviews the budget estimates of the previous financial years and tables a quarterly budget report to the Parliament and County Assemblies

Key budget documents include: the Auditor General’s reports for both levels of government and a review of the Budget Review and Outlook Paper (BROP and CBROP) which forms the basis for evaluation by the COB.

 

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Justice

Analysis of Supreme Court 30 of 2019

Legal News & Updates, Uncategorized , , , , , 1

Background

A complaint was lodged with the Ethics and Anti-Corruption Commission (EACC) alleging a fictitious payment of Kshs. 280 Million into the Prof. Tom Ojienda, Sc T/A Prof. Tom Ojienda & Associates Advocates’ (Prof. Ojienda) advocate-client bank account by Mumias Sugar Company Limited.

 

CMC Misc. Criminal Application No. 168 of 2015

Based on this allegation, EACC filed ex-parte CMC Misc. Criminal Application No. 168 of 2015 seeking warrants to investigate and inspect the said bank account. On 18th March, 2015 the Chief Magistrate’s Court allowed the ex-parte application.

High Court Constitutional Petition No. 122 of 2015.

Aggrieved by the order of the Magistrate court, Prof. Ojienda filed this Petition.

 

Prof.Ojienda’s case

He argued that the warrants issued ex-parte and obtained and enforced secretly without notice, infringed on his right to privacy, property, fair administrative action, and fair hearing as enshrined in Articles 31, 40, 47 and 50 of the Constitution.

Secondly that EACC’s actions contradicted Sections 28(1), 28(2), 28(3) and 28(7) of the Anti-Corruption and Economic Crimes Act (ACECA), which require EACC to issue a Notice to a person informing him of its intended application and affording him an opportunity to be heard before a court can legitimately issue any warrants.

Thirdly, payment of legal fees was privileged communication under Sections 13(1), 134 and 137 of the Evidence Act, which a public body cannot ignore unless a client has voluntarily waived that privileged.

 

EACC’s Case

They argued that they did not act outside of their lawful mandate as the warrants were obtained pursuant to the provisions of the Anti-Corruption and Economic Crimes Act. No. 3 Of 2003 (ACECA), sections 118 of the Criminal Procedure Code (CPC) and 180 of the Evidence Act. Their action did not violate any of Proff. Ojienda’s constitutional rights.

 

Issues for determination by The High Court

  • Whether warrants to investigate Prof. Ojienda’s Bank Account were issued in violation of his fundamental rights and freedoms protected under Art. 27, 40, 47 and 50 of the Constitution;
  • Whether the advocate/client privilege was applicable and consequently whether the prayers sought could be granted; and
  • Whether there was another forum for determining the issue in dispute.

 

High Court’s judgement

The High delivered a judgement granting the following orders among others:

  • It declared the warrants to investigate an account granted on the 18.03.2015 in Kibera Chief Magistrate Miscellaneous Criminal Case No.168 of 2015, breached the Prof.Ojienda’s rights and fundamental freedoms under the provisions of Articles 47(1), 47(2) and 50(1) of the Constitution of Kenya and were as a result void.
  • an order of Certiorari to remove into the Court and quash warrants to investigate an account granted on the 18.03.2015 by the Chief Magistrate court.

 

Appeal to the Court of Appeal

Aggrieved by this Judgment, EACC filed Civil Appeals Nos. 103 and 109 of 2016, which were consolidated.

The consolidated appeal was premised on the grounds summarized as follows, that the learned Judges erred in:

  • Failing to uphold that warrants to investigate the 1st respondent’s bank account was lawfully obtained under the provision of Section 180 of the Evidence Act;
  • Failing to uphold that the Chief Magistrate’s Court had jurisdiction to issue warrants under Section 118 of the Criminal Procedure Code;
  • Failing to appreciate that the provisions of Section 23 of ACECA, Section 180(1) of the Evidence Act and Section 118 of the Criminal Procedure Code were available to EACC in the discharge of its mandate;
  • Holding that the 1st respondent’s right to due notice prior to an application for warrants violated Section 28 of ACECA and Article 47 of the Constitution;
  • Failing to uphold that the 1st respondent’s rights were limited by Article 24 of the Constitution in favour of the protection of public interest;
  • Failing to appreciate that the investigative process by EACC was not administrative but a constitutional process; and
  • Failing to appreciate that issuance of prior notice grants a suspect an opportunity to conceal evidence otherwise necessary in the prosecution of crimes. SC Petition No. 30 of 2019 (As Consolidated with) Petition No. 31 of 2019 Page 6 of 35.

 

The cross appeal

Prof. Ojienda also filed a cross appeal against part of the Judgment on the following basis:

  • Failing to hold that the 1st respondent’s fundamental right to privacy, to property and against discrimination were violated;
  • Holding that EACC had a factual basis which necessitated the issuance of impugned search warrants;
  • Failing to hold that the bank account was confidential communication covered by client-advocate privilege;
  • Failing to award him damages based on the violation of his right to fair administrative action; and
  • For failing to find that EACC lacks constitutional mandate to investigate any alleged criminal conduct, which is the exclusive role of the National Police Service.

 

Issues for determination

The Court of appeal narrowed down the issues for determination to the following:

  • Whether the Prof. Ojienda’s fundamental rights under Article 27, 31, 40 and 50 of the Constitution had been violated;
  • Whether his bank accounts amounted to confidential information protected by advocate-client privilege;
  • Whether actions by EACC were administrative hence under the ambit of Article 47 of the Constitution; and
  • Whether EACC was required to issue prior notice to the Prof.Ojienda.

Judgment

The court upheld the decision of the high court entirely and dismissed both the appeal and cross appeal as lacking in merit.

 At the Supreme Court

Aggrieved by the entire Judgment, the appellants filed an appeal citing several grounds on the basis of the Judges of Appeal erred in law by:

(a) Adopting a narrow interpretation of Article 47 of the Constitution consequently rendering EACC ineffective in the performance of its constitutional functions;

(b) Failing to hold that the warrants to investigate the Prof. Ojienda’s bank account were lawfully issued pursuant to Sections 23 of the ACECA as read with Section 118 and 121 of the Criminal Procedure Code;

(c) Making an omnibus finding that EACC is inflexibly bound by the provisions of Sections 26, 27 and 28 of the ACECA;

(d) Failing to appreciate that the investigation process, including obtaining of the warrants was undertaken by  EACC  in line with the provisions of Article 10 of the Constitution;

(e) Failing to find that EACC investigative function is not an administrative action hence the provisions of Article 47(1) and (2) of the constitution and the Fair Administrative Act are not applicable;

(f) Failing to find that Section 23 of the ACECA, Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act are in tandem with the provisions of Article 24 of the Constitution;

(g) Failing to appreciate the element of surprise in criminal investigations envisaged under Section 118A of the CPC; and

(h) Failing to hold that Section 30 of the ACECA is in tandem with Article 50 (1) of the Constitution.\Reliefs Sought

(a) The appeal be allowed with costs;

(b) The Decision of the Court of Appeal delivered in Civil Appeal No. 103 of 2019 (Consolidated with No. 109 of 2016) beset aside and in lieu the appeal be allowed;

(c) The High Court Judgment delivered in Petition No. 122 of 2015 be set aside and in lieu thereof the petition be dismissed with costs;

(d) A declaration that an application for warrants to investigate accounts before the Subordinates Courts is in tandem with Article 24(3) of the Constitution; and

(e) Declaration that investigations by the EACC as a law enforcement agency are not an administrative action envisaged under Article 47 of the constitution;

A second appeal sought the following reliefs:

  • The appeal be allowed with costs;
  • The Decision of the Court of Appeal be set aside and in lieu of the appeal be allowed with costs; and
  • The decision of the High Court in Petition No. 122 of 2015 be set aside and in lieu, the Petition be dismissed with costs.

Issues for Determination

  • Whether the Court has jurisdiction under Article 163 (4)(a) of the Constitution to entertain the appeal;
  • Whether investigations by EACC constitute an administrative action, within the meaning of Article 47 of the Constitution, and Section 2 of the Fair Administrative Action Act; SC Petition No. 30 of 2019 (As Consolidated with) Petition No. 31 of 2019 Page 19 of 35
  • Whether the Prof.Ojienda’s fundamental rights and freedoms were violated by EACC investigative actions against him; and
  • Whether EACC is inflexibly bound to issue prior notice before commencing its investigations including applying for warrants.

Analysis of issues by court

  • Jurisdiction

The Court was found to have jurisdiction. For a litigant to invoke the Supreme Court’s appellate jurisdiction under Article 163(4) (a) of the Constitution, it must be demonstrated that the matter in issue revolves around constitutional contestation that has come through the judicial hierarchy, running up to the Court of Appeal and requiring this Court’s final input. At the very least, an appellant must demonstrate that the Court’s reasoning and conclusions which led to the determination of the issue have taken a trajectory of constitutional interpretation or application.

 

 

  • Is EACC ‘s investigative function an administrative function

Part IV of the ACECA specifically provides for EACC’s investigative powers which include powers, privileges and immunities of a Police Officer under Section 23(3), to search premises under Section 29, to apply for surrender of travel documents under Section 31, to arrest persons under Section 32 amongst others. These powers when exercised cannot be described as “administrative action” within the meaning of Article 47 but special powers conferred by a specific legal regime, to be exercised for a special purpose.

  • On violations of fundamental rights and freedoms

In the absence of proof of violation of his other fundamental rights and freedoms guaranteed by the Constitution, the impugned warrants ought not to have been quashed on the basis of this claim.

 

  • Was EACC required to give written notice prior to commencing investigations.

Under Sections 26, 27 and 28 of ACECA, EACC has to issue written notice. Under Section 28, the Commission may with Notice in writing to the affected parties seek a court order requiring the production of specified records in the possession of any person whether or not suspected of corruption. The Notice may be issued to any person, and not just one suspected of corruption. It may be reasonably assumed that in such a situation, the Notice is to be issued before the commencement of an investigation. The Section clearly states that such specified records may be required for an investigation, hence the court’s determination that what is envisaged, is a process of investigation that is yet to commence. This explains the fact that the Notice is not confined to persons suspected of corruption but extends to any others that the Commission believes are in possession of such records. That leaves us with Section 28 which is confined to notices requiring the production of records or property as the case may be. EACC was not required to move court under section 28 because investigations had already  been commenced.

 

Orders of court

The Petitions of Appeal dated 30th July 2019, and 31st July 2019, as consolidated, are hereby allowed.

(ii) The Judgment of the Court of Appeal dated 28th June, 2019 is hereby overturned and each party directed to bear their own costs.

 

 

 

 

 

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Domestic Violence

Protection Against Domestic Violence

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Rex is married to Mrs. Rex and they have two children aged 4 years and 6 years. Two years ago Rex sustained an injury to his spine in a motor accident that left him paralyzed and unable to work. Ever since Mrs. Rex, has been subjecting Rex and the two minors to constant threats to inflict harm on them, denial of food, and for the last three days has been locking them up as she lives for work. The neighbors who have had to pass food to the children through window openings are concerned about the health of the three and are at a loss on what steps to take to intervene without being seen as intermeddling in a domestic matter.

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Wealth Declaration

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New holders of public officers need to declare their wealth within 30 days from the date of joining service!

 

Kenya is going through a transition with new office bearers taking up public offices as a result of the just concluded August 2022 general elections. Most of them especially those coming from the private sector may not be familiar with government practice.

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County Election Petitions

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Forum of filing

The validity of an election petition of a county governor is determined by a High Court established within the county or one nearest to the county. For instance, if Busia County has no court of high court status, parties can file their election petitions in Kakamega or Kisumu. The validity of the election of a member of a county assembly shall be heard by the resident Magistrates Court designated by the Chief Justice.

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Election Petitions

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Ace litigator has precedents for ELECTION PETITIONS for positions of Governor, Member of National Assembly and Member of County Assembly. These are hypothetical and can always be amended to fit the Client’s claim. They are accompanied by supporting Affidavits pursuant to Rule 8 of the REVISED ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

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Intestate Succession Part 1

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Succession.

When a person dies, his affairs have to be administered. This means debts not paid have to be paid off while money owed to him is to be collected. A person has to apply for authority to deal with and handle the affairs of the deceased person.

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