[2017] KEHC 2485 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW NO. 292 OF 2017

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND DECLARATION

AND

IN THE MATTER OF SECTION 2(1) AND PART 1 OF THE SCHEDULE OF THE PUBLIC HOLIDAYS ACT (CAP 110)

AND

IN THE MATTER OF SECTION 10(3) AND 37(2) OF THE EMPLOYMENT ACT

BETWEEN

REPUBLIC……………………………………….……….………...APPLICANT

VERSUS

THE CABINET SECRETARY

FOR INTERNAL SECURITY………………....…………..1ST RESPONDENT

THE CABINET SECRETARY FOR EAST AFRICA COMMUNITY,

LABOUR AND SOCIAL PROTECTION….................….2ND RESPONDENT

THE HON. ATTORNEY GENERAL………...........……….3RD RESPONDENT

AND

THE FEDERATION

OF KENYA EMPLOYERS……....……………….1ST INTERESTED PARTY

CENTRAL ORGANISATION

OF TRADE UNIONS………..…………………..2ND INTERESTED PARTY

EX PARTE: GRAGORY ORIARO NYAUCHI

JUDGEMENT

Introduction

1. By a Notice of Motion dated 28th June, 2017, the ex parte applicant herein, Gragory Oriaro Nyauchi, seeks the following orders:

1. This Honourable Court issue judicial review orders in the form of a declaration that the 1st Respondent’s omission to have the 10th day of October observed as a public holiday is an illegality and in contravention of section 2(1) as read with part 1 of the Schedule of the Public Holidays Act.

2. This Honourable Court issue judicial review orders in the form of mandamus directing the 1st Respondent to henceforth treat the 10th Day of October as a public holiday by taking all precautions and performing all acts necessary for the celebration of a Public Holiday as provided for in Article 9 of the Constitution of Kenya as read with the Public Holidays Act.

3. Costs of this application be provided for.

The Applicant’s Case

2. According to the ex parte applicant, after the year 2010 and the promulgation of the Constitution of Kenya, the 10th day of October, or Moi Day has not been observed as a public holiday by the Government of Kenya and employers of the citizens of Kenya.

3. Averred that under the Public Holidays Act which has neither been repealed nor amended the 10th of October or Moi Day is a public holiday hence the administrative decision to stop keeping it as a public holiday is a blatant illegality and in contravention of the Public Holidays Act.

4. The applicant averred that under the Employment Act provisions for days off or payment in lieu of days off must be provided for in any employment contract whether written, oral or casual between any employer and employee. It was therefore contended that the administrative decision by the 1st Respondent to cease acts of observance of the 10th of October as a public holiday has had the ripple effect of denying employees their entitlements as compulsorily provided in the Employment Act. The said decision, it was further contended, takes away the statutory rights provided to all employees under the Employment Act and the action by members of the 2nd interested party to deny their employees public holiday entitlements provided for them by the said Act is hence an illegality.

5. In the submissions filed on behalf of the applicant it was contended that Article 9(3) of the Constitution states that national days are Madaraka Day, to be observed on 1st June; Mashujaa Day, to be observed on 20th October; and Jamhuri Day, to be observed on 12th December. Article 9(5) on the other hand states that Parliament may enact legislation prescribing other public holidays, and providing for observance of public holidays. In this respect the applicant relied on section 7(1) of the Sixth Schedule to the Constitution.

6. It was the applicant’s understanding of this provision that before the enactment of new legislation the ones in place before the promulgation of the Constitution remain in place as long as the provisions contained therein are consistent with the Constitution and gave examples of the legislation dealing with land. He therefore was of the view that similarly, the Public Holidays Act should be treated as an Act in force till it is specifically repealed by another Act of Parliament.

7. It was submitted that section 2(1) of the Act provides that the days specified in Part I of the Act shall in every year be kept as public holiday and one of the days specified in that part is 10th October. He also relied on section 3 of the Act.

8. It was submitted that the 1st Respondent being the Minister concerned has authority, power and capacity to have Moi Day celebrated as a public holiday, his discretion only being that he can substitute the date with another. Since the Act makes the observation of Moi Day mandatory, it was submitted that under the Fair Administrative Action Act, judicial review can be granted when mandatory and material procedure or condition prescribed by an empowering provision is not complied with. It was submitted that the inaction on the part of the Minister amounts to abuse of discretion and also a frustration of the purpose of the Act. In support of this submission the applicant relied on Republic vs. Registrar of Companies ex parte Independent Electoral Board of Kenya National Chamber of Commerce & Industry (KNCCI) [2016] eKLR and averred based on Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996, Republic vs. Principal Registrar of Government Lands & Attorney General ex parte John Ngugi Gathumbi [2016] KLR, Shah vs. Attorney General (No. 3) [1970] EA 543.

9. With respect to the principles guiding the grant of declaratory orders the ex parte applicant relied on Bitange Ndemo vs. Director of Public Prosecutions & 4 Othjers [2016] eKLR.

10. It was the applicant’s case that the consequences of granting this writ of mandamus will be that the law of the land will be applied.

Respondents’ Case

11. In response to this application the Respondents filed submissions.

12. In the said submissions, they raised two substantial issues. The first issue was that there is no legal obligation placed on the 1st Respondent to provide for the observance of public holidays. It was submitted that this obligation is placed on Parliament by virtue of Article 9(5) of the Constitution.

13. According to the Respondents, the only duty imposed by Parliament on the 1st Respondent is a statutory one and is to be found in section 3 of the Public Holidays Act which only gives him the discretion to declare other days to be public holidays in addition to or in substitution of the days specified in the Act which is not what the applicant is seeking.

14. In support of this position the Respondents relied on Tetezi House Limited vs. Collector of Stamp Duty & Another [2012] KLR as well as Kenya National Examinations Council vs. Republic ex parte Gathenji & Others Civil Appeal No. 266 of 1996.

15. The second issue was based on section 5 of the Public Holidays Actwhich provides as follows:

(1) Notwithstanding the provisions of this Act, the head of a department of the Government may open the offices and premises thereof, and call upon persons employed therein to perform such of their duties as he may require of them, on a public holiday.

(2) The provisions of this Act shall be subject to any written law or individual agreement under which an employee may be required to work on public holidays under specified or agreed conditions as to rates of pay, days offin lieu, or otherwise.

16. Based on the said provisions it was submitted that as it relates to officers in the Public Service and persons employed on the basis of contractual terms the observance of Public Holidays is subject to individual/particular contractual terms, therefore not subject to blanket judicial pronouncement as sought by the applicant.

17. The Respondents therefore prayed that the application be dismissed with costs.

Determinations

18. I have considered the issues raised in this application.

19. In my view the determination of this matter revolves majorly around the interpretation of Article 9 of the Constitution as read with section 7(1) of the Sixth Schedule to the Constitution vis-à-vis the provisions of the Public Holidays Act(hereinafter referred to as “the Act”).

20. Article 9 (3)(4) and (5) of the Constitution provides as follows:

(3) The national days are––

(a) Madaraka Day, to be observed on 1st June;

(b) Mashujaa Day, to be observed on 20th October; and

(c) Jamhuri Day, to be observed on 12th December.

(4) A national day shall be a public holiday.

(5) Parliament may enact legislation prescribingother public holidays, and providing for observance of public holidays.

21. It is therefore clear that the Constitution of Kenya only recognises three national days which are by that virtue also public holidays. However Parliament is empowered to enact legislation prescribing other public holidays which public holidays are to be observed as such.

22. What then happens where Parliament has since the promulgation of the Constitution not enacted such legislation? Section 7(1) of the Sixth Schedule to the Constitution provides that:

All laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

23. Therefore all legislation in existence prior to the date of promulgation of the Constitution are to remain in force save that they are to be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them in conformity with the Constitution. In other words in interpreting the existing legislation, the Court must consider whether such interpretation is in conformity with the Constitution. If it is then the legislation survives as it is. If it is not then it must be considered as if it was in fact amended pursuant to the constitutional provisions.

24. Section 2(1) of the Public Holidays Act provides that:

The days specified in Part I of the Schedule shall in every year be kept as public holidays.

25. Part I of the Schedule specifies such holidays as:

New Years Day ............. 1 January.

Good Friday .................. March or April.

Easter Monday .............. March or April.

Labour Day .................... 1st May.

Madaraka Day ............... 1st June.

Idd-ul-Fitr ....................... Date depending upon the appearance of the moon.

Moi Day ......................... 10th October.

Kenyatta Day ................. 20th October.

Independence Day ........ 12th December.

Christmas Day ............... 25th December.

Boxing Day .................... 26th December.

26. Since the Constitution itself has renamed Kenyatta Day and Independence Day as Mashujaa Day and Jamhuri Day respectively, those days are treated as renamed by the Constitution pursuant to section 7(1) of the Sixth Schedule to the Constitution.

27. It is noteworthy that apart from Moi Day which is the subject of these proceedings, all the other days in Schedule I of the Act have been faithfully observed as public holidays. This must be so as long as the said Schedule remains un-amended and I have not been told that there was an amendment deleting Moi Day as a public holiday in Schedule I aforesaid. Whereas the day is not a national day it is clear that as far as the provisions of the Public Holidays Act is concerned the day is still a holiday unless it is shown that its celebration runs counter to the provisions of section 7(1) of the Sixth Schedule to the Constitution. In other words I am not satisfied that the celebration of Moi Day as a public holiday as opposed to a National Day is not in tandem with the provisions of the Constitution of Kenya, 2010.

28. However section 3 of the Act states that:

The Minister may at any time if he thinks fit, by notice in theGazette, declare any day to be a public holiday either in addition to the days mentioned in the Schedule or in substitution for any of those days and either throughout Kenya or in any district, area or part thereof, and thereupon any day so appointed shall be a public holiday in all respects as if it were a day mentioned in the Schedule, in Kenya or the locality specified in the notice; and where, in any year, any day is so declared to be a public holiday in substitution for any of the days mentioned in the Schedule such latter day shall in such year cease to be a public holiday in Kenya or the locality specified in the notice.

29. In my view, what this provision empowers the Minister to do is to declare a particular day to be a public holiday in addition to the other days mentioned in the said Schedule or to substitute any of those days with other days. I do not read this power to include the scrapping of any of the days in Schedule I. Therefore the only power which can be exercised by the Minister in respect of Moi Day is to substitute the same but not to delete it altogether either expressly or by implication. In any case Article 153(1) of the Constitution requires that a decision by the Cabinet shall be in writing. In my view this includes decisions of individual Cabinet Secretaries. In my view there was a good reason for this requirement. In Murungaru vs. Kenya Anti-Corruption Commission & Another Nairobi HCMCA No. 54 of 2006 [2006] 2 KLR 733, it was held that our Constitution must be interpreted within the context and social, and economic development keeping in mind the basic philosophy behind the particular provisions of the Constitution. Article 153(1) of the Constitution, in my view is steeped in historical context. To me, the said Article was found necessary to be inserted expressly in the Constitution due to the past experience where serious decisions with serious ramifications would be made in rather carefree manner for example in political rallies and on “meet the people” political tours in what became commonly known as “roadside declarations”. When questions arose as to the import and impact of the declarations some of which were clearly vague and were left to the interpretation of the people who believed they were directed at, it was always impossible to know with certainty whether the utterances were in the exercise of freedom of speech or were to be interpreted as made in the exercise of Constitutional and statutory authority. The result was simply chaos.

30. It must be appreciated that directives which affect the exercise of constitutional powers are serious matters that ought to be given only after serious circumspection and after full appreciation of the likely consequences of their application. The requirement for writing affords the authority concerned time to reflect on and if possible seek legal opinion on the likely effects of the decision thus avoiding situations where the actions are subjected to litigation or to ugly scenes in the implementation of the directive. That cooling or grace period also affords the authority time to ensure that the directive is carried out in an orderly manner so as to achieve its purpose in accordance with the national values and principles of governance. In other words in the exercise of the powers conferred under Article 153(1) of the Constitution, the decision or action must not be based on emotions but must be well thought of and must be precise and exercised in accordance with and towards the promotion of the rule of the law and must be targeted at the purpose for which they are meant to achieve.

31. It has been held that where the language of an Act is clear and explicit the Court must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature. As has been held time without a number, where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority. In Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others.

32. Therefore where the law exhaustively provides for the jurisdiction of an executive body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. Whereas, if Parliament gives great powers to them, the courts must allow them to it, the Courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals or boards must act in good faith; extraneous considerations ought not to influence their actions; and they must not misdirect themselves in fact or law. Most importantly they must operate within the law and exercise only those powers which are donated to them by the law or the legal instrument creating them. See Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090.

33. I agree with the ex parte applicant that whether or not a day is known as a public holiday dictates the computation of the legal time and affects the contents of an employment contract.

34. I therefore agree with the applicant that the failure to observe the 10th day of October in each year as public holiday is a violation of Article 9(5) of the Constitution as read with section 7(1) of the Sixth Schedule to the Constitution as well as section 2(1) of the Public Holidays Act as read with the Schedule thereof. The decision to cease celebrating that day as a public holiday, (and here I must emphasise that there is a distinction between a public holiday and a national day), assuming there was such a decision in the first place, was devoid of any legal backing. In my view it was a populist decision which was made in violation of the law.

35. However since the Public Holidays Act still recognises October, 10th as a public holiday, there is no obligation placed on the 1st Respondent to undertake any action pursuant thereto. The scope of the judicial review remedy of Mandamus was the subject of the Court of Appeal decision in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 [1997] eKLR in which the said Court held inter alia as follows:

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way…These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”[Underlining mine].

36. Similar position was adopted in Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where Goudie, J expressed himself, inter alia, as follows:

“Mandamusis a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamusis neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature…In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…With regard to the question whether mandamuswill lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so...Mandamusdoes not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamusagainst executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…”

37. In Mureithi & 2 Others vs. Attorney General & 4 Others [2006] 1 KLR (E&L) 707 it was held:

“A mandamusissues to enforce a duty the performance of which is imperative and not optional or discretionary…The order of mandamusis of a most extensive remedial nature, and is, in form, of justice, directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing thereon specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific remedy for enforcing that right and it may issue in cases, where although there is an alternative legal remedy yet the mode of redress is less convenient, beneficial and effectual.”

38. It is therefore clear that a person seeking an order of mandamus must satisfy the Court that the action he seeks to compel the respondent to perform is a duty which the respondent is under a duty whether at common law or by statute to perform. Where there is no such a duty or it is not clear to the Court that such a duty exists the Court would be reluctant to grant such an order.

39. It follows that prayer 2 of the instant Motion cannot be granted.

40. With respect to prayer 1 section 11(1)(a) of the Fair Administrative Action Act provides that in proceedings for judicial review under section 8(1), the court may grant any order that is just and equitable, including an order declaring the rights of the parties in respect of any matter to which the administrative action relates.

41. I agree with Aburili, J in Bitange Ndemo vs. Director of Public Prosecutions & 4 Others [2016] eKLR that:

“90. A declaration is a formal statement by the court pronouncing upon the existence or non existence of a legal constitutional state of affairs. It declares what the legal position is and what are the rights of the parties. It does not contain an order which can be enforced against the respondents, as it only declares what is the legal position. It is not a coercive remedy, and can be carefully couched or tailored so as not to interfere with the activities of public authorities more than is necessary to ensure that those public authorities comply with the law.

91. However, a declaration can also be used to pronounce upon the legality of a future situation and in that way the occurrence of illegal action is avoided. In Bass V Permanent Trustee Company Ltd [1999] 161 ALR 399 at paragraph 89, Kirby J held that:

“The Declarations’ development “is one of the most important and beneficial adventures in the administration of justice during this century.”

92. The tests to be satisfied to warrant grant of Declarations in Judicial Review proceedings were set out in the case of Aussie Airlines Pty Ltd V Australian Airlines Ltd [1996] 139 ALR 663 at 670-671 that:

“For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts; some in the alternative and some cumulative. I shall formulate then in summary form as follows:-

a) The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences or the parties.

b) The applicant for declaratory relief will not have sufficient status if relief is “ claimed in relation to circumstances that (have) not occurred and might never happen or if the court’s declaration will produce no foreseeable consequences for the parties.

c) The party seeking declaratory relief must have a real interest to raise it.

d) Generally there must be a proper contradiction.

e) These other rules should in general be satisfied before the court’s discretion is exercised in favour of granting declaratory relief.”

42. With respect to the need to establish locus the Court of Appeal in Johana Nyokwoyo Buti vs. Walter Rasugu Omariba & Others Civil Appeal No. 182 of 2006 expressed itself as hereunder:

“A declaration or declaratory judgement is an order of the court which merely declares what the legal rights of the parties to the proceedings are and which has no coercive force – that is, it does not require anyone to do anything. It is available both in private and public law save in judicial review jurisdiction at the moment. The rule gives general power to the court to give a declaratory judgement at the instance of a party interested in the subject matter regardless of whether or not the interested party had a cause of action in the subject matter.”

43. That a declaratory order of judgement can be granted was appreciated by the Court of Appeal of Uganda in Andrew Lutakome Kayira and Paul Kawanga Semogerere vs. Edward Rugumayo, Omwony Ojok, Dr. F. E Sempebwa & 8 Others Constitutional Case No. 1 of 1979 where it expressed itself as hereunder:

“Order 2 rule 7 of the Civil Procedure Rules provides that no suit shall be open to objection on grounds merely that a declaratory judgement or order is sought or not. Under Order 2 rule 7 of the Civil Procedure Rules, the Court may make a binding declaration of right whether or not any consequential relief is or could be claimed. This is a very wide power but it is discretionary power and one which should be exercised if at all, only with the greatest caution where the declaration sought would have the result of creating a relationship between persons, which relationship has an essential element of mutual confidence. Further the discretion to give a declaratory judgement is one, which should never be exercised where result of the declaration would be seriously to embarrass and prejudice the security of the state.”

44. This was the same position adopted by Simpson, J (as he then was) in Matalinga and Others vs. Attorney General [1972] EA 518here he held that the Court may make binding declarations of right whether any consequential relief is or could be claimed or not. The Court of Appeal affirmed this position in M’ikiara M’rinkanya & Another vs. Gilbert Kabeere M’mbijiwe [2007] 2 KLR 93; [2008] 1 EA 200. The same Court in John Kin’gori & Others vs. Steve Flavian Mwangi Civil Appeal No. 99 of 1994 held the view that in certain circumstances a declaratory suit may well be far more efficacious remedy than one by way of judicial review.

45. It is therefore clear that a declaratory judgement or order may be effectual and binding as any other order.

46. In this case it is not contended and I am not convinced that to grant the declaratory orders sought herein would seriously embarrass and prejudice the security of the State. To the contrary it would have the effect of upholding the rights of the applicant and his fellow workers.

47. Having considered the issues raised herein it is my view and I hold that the applicant’s case is merited. If Parliament was of the view that Moi Day ought not to continue being considered as a public holiday nothing would have been easier than for it than to amend Schedule I to the Public Holidays Act accordingly. By not so doing and subjecting Kenyans to toil on a day the law expressly provides ought to be a public holiday, it amounts to a violation of their rights unless the exception is section 5 of the Public Holidays Actapply.

48. This Court however appreciates that the said day has not been treated as a public holiday since the promulgation of the Constitution of Kenya, 2010. Whereas that does not sanitise a patently illegal action or inaction, the Court appreciates that there may be certain actions which might have been undertaken on the said date which, being a public holiday ought not to have been undertaken. Section 11 of the Fair Administrative Action Act, 2015 provides that in proceedings for judicial review under section 8(1), the court may grant any order that is just and equitable, including the orders specified thereunder. Therefore the Court’s power to give relief is not restricted to the remedies identified thereunder but is empowered to fashion appropriate remedies. As was held by the Constitutional Court of South Africa in Fose vs. Minister of Safety & Security [1997] ZACC 6:

“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.”

49. One of the remedies available to the Court is to regulate the effective date of order of invalidity so that the order operates prospectively rather that retrospectively. In Masiya vs. Director of Public Prosecutions Pretoria (The State) and Another(CCT54/06) [2007] ZACC 9 the Court stated that:

“The question is whether when developing the common law it is possible to do so prospectively only. In my view, it is. In this case, if the definition of rape were to be developed retrospectively it would offend the constitutional principle of legality as I have demonstrated above. On the other hand, if we were to accept that the principle of legality is a bar to the development of the common law, the courts could never develop the common law of crimes at all.”

50. It is therefore my view that whatever orders the Court issue herein, they must only operate prospectively with the result that whatever actions taken on 10th October in the previous years which ought not to have been undertaken are not to be considered unlawful by the mere fact of this decision.

Order

51. Accordingly and subject to what I have stated hereinabove, the order which commends itself to me and which I hereby grant is a declaration that the omission to have the 10th day of October observed as a public holiday is an illegality and in contravention of section 2(1) as read with part 1 of the Schedule to the Public Holidays Act. I further declare that unless and until Parliament amends Schedule I of the said Act or the Minister substitutes the same for another date, the 10th of October in each year shall continue being a public holiday. It is however not for this Court to prescribe the manner in which the same is to be celebrated.

52. Article 3(1) of the Constitution enjoins every person to respect,, uphold and defend the Constitution. A person who decides to expend his or her time in defence of the Constitution ought to be commended recompensed for doing so. In the result the costs of these proceedings are awarded to the applicant to be borne by the 1st Respondent.

53. It is so ordered.

Dated at Nairobi this 6th day November, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Osoro for the applicant

CA Ooko