[2022] KEHC 1969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E 376 OF 2020

IN THE MATTER OF ARTICLES 1, 2, 3, 10, 22, 23, 25, 27, 28, 47, 48, 50, 165, 258 & 259 OF THE CONSTITUTION

AND

IN THE MATTER OF THE OATHS AND STATUTORY DECLARATIONS ACT (CAP 15)

AND

IN THE MATTER OF THE STATUTORY INSTUREMTNS ACT, 2013

AND

INT EH MATTER OF THE APPOINTMENT OF COMMISSIONERS FOR OATHS

BETWEEN

ADRIAN KAMOTHO NJENGA......................................................PETITIONER

VERSUS

TH HONOURBALE CHIEF JUSTICE AND PRESIDENT OF THE SUPREME

COURT.........................................................................................1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL...................2ND RESPONDENT

AND

LAW SOCITY OF KENYA.................................................INTERESTED PARTY

JUDGMENT

THE PETITION

1. The Petitioners through a Petition dated 16th November 2020 supported by an affidavit of even date seek the following reliefs:-

a. That a declaration be and is hereby issued that rule 2 of the Oaths and Statutory Declarations Rules is ultra vires Section2(1) of the Oaths and Statutory Declaration Act, and violates Articles 10, 25, 27, 28, 47, 48, 50 and 94(5) of the Constitution of Kenya and is therefore unconstitutional.

b. That a declaration be and is hereby issued that the rule 3 of the Oaths and Statutory Declaration Rules is ultra vires Section 2(1) of the Oaths and Statutory Declaration Act, and violates Articles 10, 25, 27, 28, 47, 50 and 94(5) of the Constitution of Kenya and is therefore unconstitutional.

c. That a declaration be and is hereby issued that all persons who are practicing advocates are eligible for appointment as commissioners for oaths.

d. That costs and incidentals be provided for.

e. That the Honourable Court be at liberty to grant any other orders/reliefs that may be just and expedient.

PETITIONER’S CASE

2. The Petitioner herein primarily seeks to declare that Rule 2 and 3 of the Oaths and Statutory Declaration Rules (the Rules) contravene the provisions of Section 2(1) of the Oaths and Statutory declaration Act (Cap 165) (the parent Act) together with various Constitutional edicts.

THE 1ST RESPONDENT’S RESPONSE

3. The 1st Respondent is opposed to the Petition and relies on, the Replying Affidavit sworn by Ann A. Amadi on 20th May 2021 and list and Bundle of Authorities filed alongside the 1st Respondent’s submissions dated 9th July 2020.

THE 2ND RESPONDENT’S RESPONSE

4. The 2nd Respondent did not file response nor submissions but relies on pleadings and submission by 1st Respondent.

THE INTERSTED PARTY’S RESPONSE

5. The Interested Party is also opposed to the Petition and relies on the Replying Affidavit sworn by Mercy Wambua on 8th November 2021 and a list and Bundle of Authorities filed alongside the submissions dated 3rd November 2021.

ANALYSIS AND DETERMINATION

6. Upon perusal of the Petition, responses and submissions, I find that the following issues arise for consideration:-

a. Whether Rules 2 and 3 of the Oaths and Statutory Declaration Rules are inconsistent with the prescriptions of Section 2(1) of the Oaths and Statutory Declaration Act (Cap 15) (the Parent Act).

b. Whether Rules 2 and 3 of the Oaths and Statutory Declarations Rules violate Articles 10, 25, 27, 48, 50 and 94(5) of the Constitution.

A. WHETHER RULES 2 AND 3 OF THE OATHS AND STATUTORY DECLARATION RULES ARE INCONSISTENT WITH THE PRESCRIPTIONS OF SECTION 2(1) OF THE OATHS AND STATUTORY DECLARATION ACT (CAP 15) (THE PARENT ACT).

7. Section 2(1) of the Oaths and Statutory Declaration Act provides:-

“2(1) The Chief Justice may, by commission signed by him, appoint persons being practicing advocates to be commissioner for oaths, and may revoke nay such appointments. (Emphasis added)

8. The Petitioners urges that the plain reading of the foregoing provision ascertains that any practicing advocate is eligible for appointment to be a commissioner for oaths. The three (3) year waiting period imposed by Rule 2 of the Oaths and Statutory Declaration Rules (subsidiary legislation) is downright ultra vires and untenable.

9. The 1st Respondent and Interested Party submit that the Rules were formulated under the powers contained in the Parent Act. That the Rules were accordingly formulated and issued pursuant to the rules - making powers expressly provided under Section 6 of the Act which empowers the Chief Justice to make rules for the better carrying into effect the provisions of the Act with respect to Commissioner of Oaths.

10. As regards the appointment of Commissioner for Oaths, the Rules provide the Chief Justice may, by Commission signed by him/her, appoint persons being Practicing Advocates to be Commissioners for Oaths and may revoke any such appointment. Further the Chief Justice may make Rules of Court for the better carrying into effect of this part and for fixing amount of the fees payable to Commissioners for oaths.

11. It is clear that Section 6 of the Oaths and Statutory Declaration Act has the effect of delegating legislative authority to the Chief Justice to create rules governing the appointment of Commissioners of Oaths under the confines of the provisions of the Parent Act.

12. The acts of then the Chief Justice under Section 6 of the Act is consistent with Section 33 of the Interpretation and General Provisions Act, Cap 2which provides:-

“Acts done under subsidiary legislation deemed done under Act which authorizes it.

An Act shall be deemed to be done under an Act or by virtue of the powers conferred by an Act or in pursuance or execution of the powers of or under the authority of an Act, if it is done under or by virtue of or in pursuance of subsidiary legislation made under a power contained in that Act.”

13. In view whereof it follows that Rule 2 and 3 of the Act having been made under the authority of the Parent Act, they are deemed to be done under the Parent Act – which Act has not been determined as being invalid or unconstitutional by a Court of competent jurisdiction.

14. To buttress the aforesaid proposition the 1st Respondent places reliance in the case of Hamdarddawa Khana vs. Union of India Air (1960) 554 (cited with authority in council of County Governors vs. Attorney General & another [2017] eKLRwhere the Supreme Court of India discussed the presumption of Constitutionality of a statute and stated thus:-

“In examining the Constitutionality of a statute it must be assumed that the legislature understand and appreciates the need of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assemble din a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment.”

15. Further, the acts carried out by the 1st Respondent under the second delegated legislation authority should be viewed under the scope of lawful administrative action whose determination is guided by Republic vs. National Hospital Insurance Fund Board of Management & another Ex parte law Society of Kenya [2019] eKLR, where the Honourable Court held:-

“To buttress my view I recall the celebrated case of Council of Service Union vs. Minister for the Civil Service where Lord Diplock enumerated a threefold classification of grounds of Judicial Review, any one of which would render an administrative decision and/or action ultra vires. These grounds are; illegality, irrationality and procedural impropriety…”

16. Upon consideration of the authorities relied upon by the 1st Respondent and Interested Party, I find that Rules 2 and 3 of the Act have a legitimate purpose which is to give practical effect to administer any oath or take any affidavit for the purpose of any court or matter in Kenya. In other words, the object of Rules 2 and 3 of the Act is to sieve and lock out persons who do not have the requisite years of practice form administering oaths and the taking of statutory declarations. The overall effect of this provision is to preserve quality of service in the legal profession which if compromised will do more harm than good to the profession and society as a whole.

17. Further to the aforesaid, it is clear that the Parent Act empowers and/or allows the 1st Respondent to make the Rules, which rules prescribe the three year requirement not stipulated in the Act – that action by the 1st Respondent fits the intention of Section 6 of the Act. In view of the aforesaid, I find that there is no inconsistency which has been demonstrated by the Petitioner between Section 2(1) of the Act and Rule 2 herein.

18. I have considered the Rules and the Parent Act and I am satisfied that the Petitioner has not demonstrated that the aforesaid Rules are illegal, unreasonable, and that they were created unprocedurally. I find to the contrary it has been shown that the aforesaid Rules are legal as the 1st Respondent action was empowered by the Parent Act to create the Rules and the 1st Respondent acted within his/her statutory delegated authority in creation of the Rules. Also, the aforesaid Rules are reasonable as the duration of practice by an Advocate of the High Court of Kenya is a relevant consideration, the 1st Respondent made in the creation of the Rules and that they are not so absurd as a reasonable person would arrive at the same decision in creating them. In addition it is evidently clear that the Rules are not inconsistent with Section 2 and 6 of the Parent Act and therefore Section 24 of the Statutory Instrument Act, 2013 which invalidates unlawful statutory instruments does not apply to the Rules as the 1st Respondent acted within his/her statutory provided powers and discretion.

19. It is trite that the Court’s have long held that in determination of the legality of a statute, it is imperative to determine the object and purpose of the impugned statute, for it is important to discern the intention expressed in the Act itself. In considering the objects of the Rules it is clear that the Rules serve a legitimate purpose and have enabled a professional standard of practice within the legal profession in Kenya as the duration of practice by an Advocate of the High Court of Kenya is a relevant consideration, the 1st Respondent made in the creation of the Rules, because the duration of an Advocate’s practice is a fair measure of an Advocate’s competency and guarantees the general public a higher standard of legal service as per the provisions of the Constitution.

20. It is of great significance in determination of this matter to consider the clear provisions of Section 12 of the Parent Act which has listed a group of Persons including but not limited to Magistrates and Registrars of the High Court, who can administer oaths or affirmations or take any affidavits or statutory declarations similar to Commissioner of Oaths, whose collective qualification to be appointed as one is a minimum duration of practice of three years, after the person’s admission to the Roll of Advocates. It is evidently clear that the delineation of such persons capable of administering oaths or take any affidavits under Section 12 of the Parent Act,similar to Commissioner of Oaths shows the legitimate purpose of the Rules in ensuring that oaths administered and affidavits taken by Commissioner of Oaths are carried out by qualified Advocates.

21. I find this issue cannot be deemed as conclusively determined without considering the position taken by comparative jurisdictions such as Uganda and India, which have similar Laws to the Rules that regulate the appointment of persons to being Commissioners of Oaths with regards to an Advocate’s duration of practice after admission to the Roll of Advocates in order to ensure only qualified Advocates administer oaths and take affidavits. The positon taken by such countries are same as the ones taken in our country.

22. In view of the aforesaid I find that there is no inconsistency between Section 2(1) of the Act and Rule 2 of the Act as alleged by the Petitioner.

B. WHETHER RULES 2 AND 3 OF THE OATHS AND STATUTORY DECLARATIONS RULES VIOLATE ARTICLES 10, 25, 27, 48, 50 AND 94(5) OF THE CONSTITUTION.

23. The Courts have time and again made it clear that a statutory violation does not necessarily result in a constitutional violation and for a matter to raise constitutional issues it has to meet the following threshold as held in RC v. KKR (2021) eKLR:-

“40. Taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement. In the words of Langa, J in Minister of Safety & security vs. Luitters, (2007) 28 ILJ 133 (CC):-

…when determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the arguments will be successful. The question is whether the arguments forces the Court to consider constitutional rights and values…”

24. In the instant Petition, the Petitioner urges that Rule 2 is ultra vires Section 2(1) of the Oaths and Statutory Declaration Act and violates Article 10, 25, 27, 28, 47, 48, 50, and 94(5) of the Constitution, I note save for these allegations made in the Petition and the Supporting Affidavit, no tangible evidence has been presented to support these allegations. The 1st Respondent urges the Petition as drawn and filed violates clearly stated principles in the case of Anarita Karimi Njeru vs. Republic (No,1) [1979] KLR where the Court stated that:-

“If a person is seeking redress from the high court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains the provisions said to have infringed, and the manner in which they are alleged to be infringed.”

25. Similarly, this principles was emphasized by the Court of Appeal in Mumo Maemo vs. Trusted Society of Human Rights Alliance (2014) eKLR where it was stated that:-

“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the Court…Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the Court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional Petitions is an extension of this principle.”

26. It is trite that in a Constitutional Petition that anyone who wishes the Court to grant a relief for violation of a right or fundamental freedom, he/she must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it. It is not enough to allege infringement of the constitution, without particularizing the details and manner of infringement.

27. In order to determine whether the Petition herein raises Constitutional issues and further whether it is in line with the principles set out in the Anarita Karimi Njeru case (Supra), this Court is called upon to relook the Petition as drawn and filed. In the instant Petition, the Petitioner only lists “a summary of Constitutional provisions violated (threatened with violations)” at paragraph 18 of the Petition. Looking at the Petition, it is clear that it falls short of particularizing such violations to the standard required in a Constitutional Petition. The Petitioner, further has failed to demonstrate the link between the Petitioner the provisions of the Constitution alleged to have been contravened or threatened by the Rules and the manifestation of contravention or infringement and only raises a blanket of alleged violations without providing particulars on each alleged violation.

28. The Petitioner prays that the Court declares Rules 2 and 3 unconstitutional for offending Article 27(1) of the Constitution. However, the Petitioner fails to present any evidence to show that such advocates have been denied opportunists for which they qualify for.

29. The 1st Respondent to demonstrate that Rules 2 and 3 of the Act are not discriminatory as alleged by the Petitioner relies in the case of Willis vs The United Kingdom No. 36042/97, ECHR 2002-IV cited with authority in EG & 7 others Vs. Attorney General; DKM & 9 others; Katiba Institute & another [2019] eKLR where the Court observed that discrimination means treating differently, without any objective and reasonable justification, persons in similar situations. The Court stated that discrimination is:-

“…a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available members of society.”

30. Similarly, reliance on whether a claim based on unfair discrimination should succeed, the 1st Respondent relies on the case Harksen v. Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC), 1997 (II) BCLR 1489 (CC) cited with authority in EG & 7 others (supra) which sets out the test for determining whether a claim based on unfair discrimination should succeed. In that case, the Court stated:-

“At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attach is made on a provision in reliance on Article 9(3), (equivalent to our Article 27). They are:

a. Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate purpose? If it does not, then there is a violation of the constitution. Even if it does near a rational connection. It might nevertheless amount to discrimination.

b. Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:-

i. Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

ii. If the differentiation amounts to ‘discrimination’ does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complaint. The test of unfairness focusses primarily on the impact of the discrimination on the complainant and other sin his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation…

c. If the differentiation is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause.”

31. The Court has to establish whether Report differentiates between different persons, whether the differentiation amounts to discrimination, and whether the discrimination is unfair. In the instant Petition it is clear that not only were the Rules formulated for the better carrying into effect of the Act, that is, to ensure that qualified persons administer an oath and perform the functions delineated under Section 4(1) of the Act. This differentiation – which sieves advocates who do not meet the stipulated requirements of certain years of Practice-does not amount to discrimination for the reasons that it serves a legitimate purpose. The legitimate purpose herein is to ensure that only the requisite persons are bale to administer any oath or take any affidavit for the purposes of any court or matter in Kenya, including matters relating to the registration of any instrument.

32. In the instant Petition the Petitioner not only fails to specify on what ground he has been unfairly discriminated upon but also fails to delineate how the Rules 2 and 3 meets the muster of unfair discrimination. The Court in Mohammed Mire vs. Ibu Albine General and Ministry of Interior and Coordination of National Government Petition No. 232 of 2015 stated that there is need for the person who complains of unfair discrimination to show methodically the manner and foundation of such discrimination and the unfair impact of such discrimination. . I find that the Petitioner herein has failed to discharge this obligation. I further find the standard prescribed by Section 6 of the Act in regard to qualification for the appointment of commissioners for oaths cannot be discriminatory as it cuts across all the advocates and those who do not qualify have an opportunity to first of all seek to attain the qualifications before seeking appointment for the position.

33. I now turn to consider whether Rules 2 and 3 of the Actimpugns the right to access to justice under Article 48 of the Constitution. It is Petitioner’s contention under paragraph 16 of the supporting affidavit that the restriction imposed on certain cadre of advocates in relation to commissioning of oaths is a clog on the public’s access to justice and contrary to the dictates of access to justice.

34. In considering this issue I seek guidance on scope of access of justice as enshrined in Article 48 of the Constitution and a decision in the case of Dry Associates vs. Capital Markets Authority & Another Petition No. 328 of 2011where the Court listed the principles of access to justice as follows:-

“Access to justice is a broad concept that defines easy definition. It includes the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to one’s rights; equal right to the protection of those rights by the law enforcement agencies; easy access to the justice system particularly the formal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay.

35. The burden of proof lies with he who asserts. I have carefully considered the Petitioner’s evidence and I find that the Petitioner has not established how the Rules restricts the public’s right to pursue their claim. Does barring certain group of advocates from commissioning, oaths impede the public from accessing justice? Based on the parameters set in the Dry Associates Case, I find that this argument is preposterous – the Rules do not deprive the public equal access to justice but on the contrary affords the public goods and services of reasonable quality in tandem to Article 46(1) of the Constitution.

36. It is common knowledge, that members of public when enlisting the services of advocates engage with the profession as consumers of legal services and are thus entitled to services of reasonable quality. I place reference on this to the Court’s pronouncement in Mark Ndumia Ndung’u vs. Nairobi Bottlers ltd & another [2018] eKLRand as reiterated in Alan E. Donovan vs. Kenya power & Lighting Company [2021] eKLR wherein it was stated thus:-

“56. A close reading of Article 46(1) discloses at least three different obligations imposed on public and private manufacturers, promoters or marketers of any consumer product or service. First, there is an obligation to provide goods and services of reasonable quality. At the same time there is an obligation to avail to the consumer, any information necessary for the consumer to gain full benefit from any goods or services. Additionally, a manufacturer, promoter or marketer has an obligation to ensure the protection of consumers’ health, safety, and economic interests. (Emphasis added)

37. Upon consideration of the evidences herein, the relevant provisions of the law and constitutional provisions and authorities relied upon, I am satisfied that the Chief Justice as rightfully empowered by Section 6 of the Act, made the Rules for better conveyancing into effect of the Act to ensure that services of reasonable quality are provided to public. The impugned Rules are lawful and consistent with the Parent Act. They are legal, reasonable, and were made procedurally, therefore are constitutional.

38. The Petitioner has on his part failed to demonstrate the inconsistency between Section 2(1) of the Act and Rules 2 and 3 and how those provisions are unconstitutional.

39. The upshot is that the Petition is without merit. The Petition is dismissed. Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 3RD DAY OF MARCH, 2022

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA