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Court of AppealAllowedCivil Appeal (from High Court Petition challenging Statute Law (Miscellaneous Amendments) Act 2012)· [2019] KECA 344 (KLR)

Law Society of Kenya v Attorney General & 2 others (Civil Appeal 96 of 2014) [2019] KECA 344 (KLR)

Court of Appeal of Kenya
27 September 2019
5,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck down major legal changes hidden in an omnibus amendment law because Parliament skipped public participation.

What this practically means

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Executive summary

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The Law Society of Kenya petitioned the High Court challenging the Statute Law (Miscellaneous Amendments) Act 2012, arguing that the Attorney General had smuggled substantive amendments through an omnibus Bill meant only for minor, non-controversial changes. The impugned amendments converted the Advocates Disciplinary Committee into a Disciplinary Tribunal, transferred vetting of magistrates to the Judicial Service Commission, opened the Kenyan legal market to advocates from Rwanda, Burundi and the Commonwealth, and empowered the Chief Justice to prescribe criteria for in-house counsel remuneration. Majanja J dismissed the petition on 19 March 2013, holding the amendments non-substantive and that the LSK bore the burden of proving absence of public participation. On appeal, Waki, Musinga and Kiage JJA allowed the appeal. Holding that Parliament's legislative authority derives from the people and that courts alone determine whether other arms of government act within constitutional bounds, the Court found the amendments substantive in text, context and effect, and not merely cosmetic. Relying on the Supreme Court's holding that Article 10(2) values are immediately justiciable, and on section 5 of the Statutory Instruments Act, the Court held the judge misdirected himself in placing the burden of proving absence of public participation on the appellant; the burden shifts to the State once lack of participation is alleged. The Court concluded that the Legislature overreached in passing substantive amendments un-procedurally and non-participatorily. It set aside the High Court judgment, allowed the petition as prayed, and made no orders as to costs.

Key legal issues

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01

Whether the amendments were substantive and therefore improperly enacted through a miscellaneous amendments statute

Holding

The amendments were substantive: converting the Disciplinary Committee into a Tribunal, reassigning vetting of magistrates, admitting foreign advocates and empowering the CJ on in-house counsel remuneration created, defined and regulated rights and powers and could not pass as 'minor' amendments.

Reasoning

The Court examined the long title and ordinary meaning of 'minor' amendments, the dictionary meaning of substantive law as that which creates, defines and regulates rights, duties and powers, and the distinction between a 'Committee' (subordinate to a higher authority) and a 'Tribunal' (autonomous adjudicative body). It found the judge erred in calling the change cosmetic, noting the Tribunal's apparent beholdenness to the Attorney General, and held the amendments affected the appellant's business and undermined its independence.

p. 12
02

Whether public participation was required and who bore the burden of proving it

Holding

Public participation under Article 10(2) read with Article 118 was mandatory and justiciable; the judge erred in placing the burden of proving absence of participation on the appellant, as the burden shifts to the respondents to show participation occurred.

Reasoning

Relying on the Supreme Court's holding in the IEBC v NASA case that Article 10(2) values are immediate, enforceable and justiciable, and on section 5 of the Statutory Instruments Act requiring consultation where a measure affects business or restricts competition, the Court held that Parliament and the Attorney General must take the initiative to consult affected persons, and that legislation detrimental to a section of the citizenry without consultation violates constitutional bounds.

p. 13
03

Court's power to review legislative action against constitutional bounds

Holding

Whenever a question arises whether an arm of government has acted within constitutional bounds, it is the exclusive preserve of the courts to determine; Parliament's legislative authority is derived from the people and must reflect their will.

Reasoning

The Court cited the Supreme Court's decision in The Council of Governors & 6 Others v The Senate for the proposition that courts are vested with power to interpret the Constitution and intervene where violation is alleged or demonstrated, and invoked Chief Justice Langa's dictum in Glenister on the separation of powers. It concluded Parliament overreached and its passing of the amendments was not in keeping with constitutional bounds.

p. 10
04

Whether the conversion of the Disciplinary Committee into a Tribunal was merely cosmetic

Holding

The change was not cosmetic; a Committee is subordinate to a higher authority while a Tribunal carries an autonomous adjudicative connotation, and the appellant's apprehensions about the Tribunal being beholden to the Attorney General were not idle.

Reasoning

Drawing on Stroud's Judicial Dictionary and Black's Law Dictionary, the Court distinguished the two terms and held that the amendment altered the essential character and exercise of power of the disciplinary body, especially given the Attorney General's role in determining remuneration for Tribunal members, thereby undermining the appellant's independence.

p. 11

Legal principles established

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  • A Statute Law (Miscellaneous Amendments) Act is meant only for minor, non-controversial amendments; substantive amendments smuggled through such an omnibus Bill are unconstitutional and will be struck down.
  • In a challenge to legislation on the ground of absence of public participation, once the petitioner alleges there was no public participation, the burden shifts to the State (Parliament/Attorney General) to demonstrate that it took place.
  • Article 10(2) values, including public participation, are justiciable and immediately enforceable and their violation can found a cause of action.
  • Where a statutory instrument or legislative measure is likely to have a direct or substantial indirect effect on business or restrict competition, the making authority is obliged to consult persons likely to be affected, per section 5 of the Statutory Instruments Act.
  • Courts have a constitutional obligation to ensure that the exercise of power by other branches of government occurs within constitutional bounds (separation of powers).
  • Amendments that create, define, regulate or confer powers on parties are not 'minor' and cannot be passed via a Statute Law (Miscellaneous Amendments) Act.

Court orders

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  1. 1.The judgment of the High Court is set aside
  2. 2.An order allowing the appellant's Petition as prayed is substituted therefor
  3. 3.No orders as to costs
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal from the High Court in a constitutional petition (appellate jurisdiction under the Court of Appeal's statutory framework); petition originally brought under Article 22(2)(b) and (c) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Law Society of Kenya v Attorney General & 2 others (Civil Appeal 96 of 2014) [2019] KECA 344 (KLR)", Case Analysis (2019). Civil Appeal (from High Court Petition challenging Statute Law (Miscellaneous Amendments) Act 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/344/eng@2019-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.