[2019] KEHC 11475 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 447 OF 2016

(CONSOLIDATED WITH PETITION NO. 482 OF 2016)

BETWEEN

SAMUEL KAHIU & 373 OTHERS.............................................................PETITIONERS

AND

THE BETTING CONTROL & LICENSING BOARD......................1ST RESPONDENT

MINISTER FOR INTERIOR AND CO-ORDINATION

OF NATIONAL GOVERNMENT........................................................2ND RESPONDENT

THE INSPECTOR GENERAL OF POLICE.....................................3RD RESPONDENT

HON. ATTORNEY GENERAL...........................................................4TH RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS....................................5TH RESPONDENT

COUNCIL OF GOVERNORS............................................................6TH RESPONDENT

INTER-GOVERNMENTAL

RELATIONS TECHNICAL COMMITTEE....................................7TH RESPONDENT

AND

ASSOCIATION OF GAMING OPERATORS-KENYA....1ST INTERESTED PARTY

HULPENG TRADING COMPANY....................................2ND INTERESTED PARTY

JUDGMENT

The Parties

1. The Petitioners in the original petition describe themselves as Kenyan Citizens conducting business in various Counties in the Republic of Kenya and as duly authorized and licensed operators of gaming/betting machines in specially designated premises and in bars. They state that their clientele are adults belonging in the social strata or classes that would generally be described as the low-end gambling market.

2. Through a re-amended petition dated 5th March 2018, the Petitioner describes itself as the Counties Amusement and Gaming Society of Kenya, a duly registered society under the Societies’ Act. The officials of the said Society are stated to include some of the 13 Petitioners in the original petition. The objectives of the said society are stated to include:-

a) To promote constitutionalism in the Gaming and Betting Business in Kenya.

b) To educate members on the rules and regulations set out in the Law in regard to operating gaming and betting machines in Kenya.

c) To ensure law and order in the Gaming and Betting Business in Kenya.

d) To protect the public interest as regards the Gaming and Betting industry in Kenya.

e) To foster individual accountability in members to the societies in which we operate in.

f) To promote adherence to the provisions of the Gaming and Betting laws on advertising of betting.

g) To ensure the law against betting with young persons is strictly adhered to.

h) To ensure that betting activities are not conducted in public places contrary to the law.

i) To lobby and advocate for the business and activities of related to and connect with betting, casinos and gambling within counties as provided for in Section 4(a), Part 2 of the Fourth Schedule of the Constitution.

j) To ensure that gaming and betting activities are only conducted in licensed gaming premises authorized by County Government.

k) To ensure that the premises on which the gaming machines are used are not wholly or mainly used by persons under the age of eighteen years.

l) To encourage the members against personally soliciting the patronage of members of the public except within betting premises authorized by the County Government.

m) To ensure that members do not sell, supply or consume or permit the sale, supply or consumption of alcoholic substances within betting premises authorized by County Governments.

3. The 1st Respondent, Betting Control and Licensing Board, (hereinafter “the Board”), is a statutory body established under Section 3 of the Betting, Lottery and Gaming Act (Cap 131) whose mandate includes controlling and licensing of betting and gaming premises as well as the activities carried therein, eradication of illegal gambling and promotion of responsible gaming.

4. The 2nd Respondent (Minister for Interior and Co-ordination of National Government) is the Minister, for the time being, responsible for public administration, internal security, printing of Government documents, Immigration and Registration of Persons, Betting Control, Probation Services and coordination of state functions among others.

5. The 3rd Respondent (The Inspector General of Police) is a State Officer who is a holder of the office of the Inspector General of the National Police Service established under Article 245 of the Constitution.

6. The 4th Respondent (the Honourable Attorney General) is the legal representative of the Government of Kenya under Article 156 of the Constitution.

7. The 5th Respondent (the Director of Public Prosecutions) is a state officer holding an independent office established under Article 157 of the Constitution vested with power to direct the Inspector General of Police to investigate any information or allegation of criminal conduct against any person in Kenya.

8. The 6th Respondent (Council of Governors) is the Council established under Section 19 of the Intergovernmental Relations Act, 2012.

9. The 7th Respondent, the Intergovernmental Relations Technical Committee, is established/appointed pursuant to Section 11 of Intergovernmental Relations Act (No. 2 of 2012).

The Petitioners’ case

10. Through the re-amended petition dated 5th March 2018, the petitioners sued the respondents herein seeking the following orders:

a) THAT a declaration be issued to declare that after the first general election under the new Constitution held on 4th March, 2013, the Betting, Lotteries and Gaming Act, Cap 131 does not apply to betting, casinos and other forms of gambling duly licensed by a County Government to operate within its jurisdiction pursuant to Part 2, Paragraph 4(a) of the Fourth Schedule of the Constitution.

b) THAT a declaration be issued to declare that upon being licensed by respective County Governments pursuant to Part 2, Paragraph 4(a) of the Fourth Schedule, the Petitioners are lawfully carrying out their businesses of betting and gaming.

c) THAT a declaration be issued to declare that the Betting Control and Licensing Board has no jurisdiction over betting, casinos and other forms of gambling carried out pursuant to Part 2, Paragraph 4 of the Fourth Schedule of the Constitution.

d) THAT a declaration be issued to declare that the directive/order of the Chairman of the Betting Control and Licensing Board contained in the letter dated 19th September, 2016 is illegal, null and void ab initio.

e) THAT an order of certiorari be issued to bring into this Honourable Court and quash the letter of the First Respondent dated 19th September, 2016.

f) THAT an order of permanent injunction be issued to restrain the Respondents jointly and/or severally from enforcing or implementing the order/directive contained in the First Respondent’s letter dated 19th September, 2016 and specifically for confiscating the gaming machines of Petitioners and interference with their operations.

g) THAT an order of Prohibition be issued to prohibit all County Commissioners, Director of Public Prosecutions the Inspector General of Police and Police Officers serving under him from implementing or enforcing the order/directive of the First Respondent to crackdown on the businesses of the Petitioners, raid their premises, arrest them and their agents/staff and charge them in Court pursuant to the directive/order of the First Respondent contained in the letter dated 19th September, 2016.

h) THAT a declaration be issued to declare that the raids on the Petitioners’ premises, disruption and closure of their businesses, confiscation of their machines and destruction of their properties occasioned by implementation or enforcement of the directive/order contained in the First Respondent dated 19th September, 2016 constitutes violation of the Petitioners rights under Article 40 of the Constitution.

i) THAT a declaration be issued to declare that the crackdown by the police and administrators against the Petitioners’ properties, premises and customers undertaken pursuant to the directive/order contained in the First Respondent’s letter dated 19th September, 2016 constitutes gross violation of the Petitioner’s rights under Article 27, 28, 29, 40, 47 and 50 of the Constitution.

j) THAT on order of mandatory injunction be issued against the 1st – 5th Respondents compelling them to release the gaming machines belonging to the Petitioners that have been confiscated or seized by Police, chiefs and administrative officers pursuant to the First Respondent’s directive/order contained in its letter dated 19th September, 2016.

k) THAT the Petitioners’ be paid damages for compensation for violation of their rights under Articles 27, 28, 29, 40, 47 and 50 of the Constitution.

l) THAT a declaration be issued to declare that the National Government is enjoined under Articles 187 of the Constitution and the Fourth Schedule thereof to facilitate the enactment of legislation to delineate the functions of the National and County Governments relating to betting, casinos and other forms of gambling.

m) THAT a declaration be issued to declare any amendment to the Betting, Lotteries and Gaming Act, Cap 131 to provide for a subservient role of County Governments relating to betting, casinos and other forms of gambling is null and void ab initio.

n) THAT an order of certiorari be issued to quash Gazette Notice No. 8753 published in The Kenya Gazette dated 8th September, 2017.

o) THAT an order of mandamus be issued to compel the Cabinet Secretary, Ministry of Devolution to make the Regulations envisaged by Section 38 of the Intergovernmental Relations Act, 2012.

p) THAT pending the enactment by Parliament of legislation relating to delineation, administration and operations of the functions of the National and County governments relating to betting, casinos and other forms of gambling, a permanent injunction be issued to restrain the 1st – 4th Respondent from allowing public advertisement of betting, casinos and other forms of gambling and to bar such activities through cellular phones.

q) THAT an order be issued for immediate release to the affected Petitioners of the gambling machines seized or confiscated by police and administrative offices of the First Respondent dated 19th September, 2016 and the 2nd Respondent’s letter dated 15th January, 2018.

r) THAT an order of certiorari be issued to quash the 2nd Respondents letter dated 11th January, 2018 directing the 3rd Respondent to crackdown on illegal betting across the country by removal and confiscation of all gaming machines installed in shopping centres.

s) THAT the costs of this Petition be borne jointly and severally by the 1st – 4th Respondents.

11. A summary of the Petitioners’ case is that following the first General Election held under the new Constitution on 4th March, 2013, the Betting, Lotteries and Gaming Act, Cap 131 (hereinafter referred “the Betting Act”), enacted in 1966 to provide,inter-alia, for the control and licensing of betting and gaming premises, ceased to apply in respect to betting, casinos and other forms of gambling undertaken pursuant to paragraph 4 of Part 2 of the Fourth Schedule of the Constitution thereof and that accordingly, the activities of betting, casinos and other forms of gambling fell within the jurisdiction of specific counties and are governed by the relevant counties’ legislation.

12. The Petitioners maintain that pursuant to paragraph 4 of Part 2 of the Fourth Schedule of the Constitution, the Betting Act has no application to betting, casinos and other forms of gambling that fall within the jurisdiction of Counties. They aver that under Section 6 of the Sixth Schedule of the Constitution, the Betting Act applies only to activities and matters relating to National betting, casinos and other forms of gambling in accordance with paragraph 31 of Part 1 of the Fourth Schedule of the Constitution.

13. They further contend that on account of the division of functions under the Fourth Schedule of the Constitution, the Board has no powers or authority over the betting activities falling within the jurisdiction of County Governments set out in the said Schedule.

14. It is the petitioners’ case that the foregoing position notwithstanding, the Board Chairman, through a letter dated 19th September, 2016 addressed to all County Commissioners directed them, in conjunction with the Police, ‘to sensitize members of the public about these illegal Gaming Machines and assist in mounting a major crackdown, confiscate them and arraign the operators and owners in a court of law.’.

15. The petitioners claim that as a result of the said order/directive, their businesses have been subjected to a massive crackdown during which they have been intimidated and harassed by police and administration officers on the allegation that their operations are illegal or provide sanctuary for criminals to plan their activities. They further claim that their gaming machines have, as a consequence thereof, been confiscated and in several instances, destroyed.

16. The Petitioners aver that the directive/order aforementioned and the resultant crackdown are malicious, unreasonable, and abuse of power, illegal and have no lawful cause or justification on the following grounds:-

i) The allegation that the businesses of the Petitioners pose a danger against national security is malicious and false and in any case the 1st Respondent has no mandate or competence to deal with matter of national security.

ii) The 1st Respondent has no mandate to licence or regulate the businesses of the Petitioners as they are duly licensed and regulated by County Governments in the respective areas.

iii) The order/directive for a crackdown offends the Constitution and the norms of good governance in a democracy because punishment can only be subjected to a specific, individual or company who/which has contravened specific law and not target a group.

iv) The crackdown and confiscation of the Petitioners’ properties are illegal as requisite notices on alleged breach of law, show cause letters and right to hearing have not been granted

v) The crackdown is a secretive operation as neither the 1st Respondent nor any other governmental body has notified them why and since when their duly licensed businesses have become illegal.

17. The Petitioners aver that the decisions, actions and omissions of the 1st – 5th Respondents have violated their fundamental rights and freedoms protected under Articles 27, 28, 29, 40, 47 and 50 of the Constitution on the grounds that:-

a) The order/directive contravenes the Petitioners’ right to protection of law as it authorizes unlawful crackdown against them and it is also discriminatory as it targets only the type of gambling activities that they conduct.

b) The Petitioners’ right to human dignity has been grossly violated as their businesses are being targeted on the excuses that they pose a danger to national security or that they promote crimes and allow children to involve themselves in gambling activities.

c) Unless the police have reasonable grounds to believe that the Petitioners have committed a specific crime, Article 29 of the Constitution prohibit the Respondents them from raiding their premises, arresting them or their workers and confiscating their machines.

d) The confiscation of the Petitioners’ gaming machines violates Article 40 of the Constitution.

e) By dint of Article 47 of the Constitution, the First Respondent was enjoined to notify and give reasons to the Petitioners on the action that it intended to take as per the letter dated 29th September, 2016.

f) The Petitioners’ right to fair hearing has been violated as they have been given no fair hearing before prejudicial action is taken against them and any real or presumed dispute with the Respondents should be resolved under the law as opposed to crackdown premised on false and malicious allegations.

18. The Petitioners further aver that the above stated decisions, actions and omissions of the 1st – 5th Respondents have violated their fundamental rights and freedoms protected under Articles 27, 28, 29, 40, 47 and 50 of the Constitution.

19. The petitioners further state that on 29th September, 2017 the Government, through the leader of majority in the National Assembly, published The Statute Law (Miscellaneous Amendments) (No.2) Bill, 2017 which seeks, inter-alia, to amend the Betting Lotteries and Gaming Act (Cap 131) to among other things:-

i. Replace local authority with county government for purposes of the Board Sending a copy of the licence to give it opportunity to object to, or make recommendations with respect to, the application.

ii. Raise the fine for any person who makes a false statement or declaration in an application for or a renewal or variation of a licence from five thousand shillings to five hundred thousand shillings.

iii. Raise the security deposit from forty thousand shillings to twenty million shillings.

iv. Raise the penalty for illegal use of gaming machines from a term not exceeding five thousand shillings or to six months’ imprisonment, or to both to two million shillings and two years respectively.

v. Raise the stake hazarded in the use of gaming machine from one shilling to fifty thousand shillings.

vi. Increase the punishment for offence of gaming in a public place from a fine of three thousand shillings and/or three months’ imprisonment to one hundred thousand shillings and/or two years imprisonment.

20. The Petitioners aver that the immediate effect of the above amendments are three-fold because firstly; it would not be financially viable for the Petitioners and other small scale operators of gaming machines to be licenced given the unaffordable security deposit. Secondly; the County Governments will have no substantial or consequential role in the betting, casino and other gambling activities as they would not be the licensing authority within their jurisdiction contrary to the Fourth Schedule of the Constitution and thirdly; that the proposed fines are clearly malicious and disproportionate given the fact that betting and gaming activities are permitted by the Constitution.

21. The petitioners further claim that by Gazette Notice No. 8753 published in The Kenya Gazette dated 8th September, 2017 the Intergovernmental Relations Technical Committee (IGRTC) approved the delineation of the functions relating to betting, casinos and other forms of gambling between the National and County Governments as set out in the schedule therein and that amongst the functions reserved for National government are policy formulation, legislation, standards and norms, regulation of the gaming industry, licensing of public gaming (casino) and vetting, security checks and due diligence while on the other hand, the functions reserved for County Governments include implementation of policy, standards and norms, development and implementation of county legislation on betting and other forms of gambling, licensing of public gambling (casino) premises; and enforcement and compliance.

22. The Petitioners contend that Gazette Notice No. 8753 is ultra vires, illegal null and void on grounds that:-

i. It provides for delineation of the functions relating to betting, casinos and other forms of gambling between the National and County Government that violates relevant provisions of the Fourth Schedule of the Constitution.

ii. The impugned delineation violates the provisions and principles set out in Articles 187 and 200 of the Constitution.

iii. The impugned delineation has been implemented or approved without any public participation as required by Articles 10 and 196 of the Constitution and Section 29 of the Intergovernmental Relations Act (No. 2 of 2012).

iv. The impugned delineation constitutes a violation of Articles 6, 174, 175, 187 and 200 of the Constitution and Sections 4, 12, 28, 29 and 38 of the Intergovernmental Relations Act (No. 2 of 2012) (hereinafter referred to as “the IRA, 2012”).

v. The Intergovernmental Relations Technical Committee (hereinafter referred to as “the IGRTC” or “the Committee”) has acted ultra vires its powers under Section 12 of the IRA, 2012.

vi. The impugned delineation negates and/or compromises public interest and the national values and principles of governance embodied in Article 10 read with Sections 3, 4 and 29 of the IRA, 2012 in the Sector of betting, casinos and other forms of gambling.

23. The Petitioners aver that the periodical or piece meal amendments of the Betting, Lotteries and Gaming Act coupled with the publication of Gazette Notice 8753 constitute a scheme to defeat the delineation of functions between the National and County Governments set out in the Fourth Schedule of the Constitution, inter-alia, on the following grounds:

i. There is no reasonable justification why the Government is circumventing its obligation to ensure enactment of the requisite national legislation to reflect the provisions of the Fourth Schedule in relation to the Sector of betting, casinos and other forms of gambling.

ii. The basic philosophy and objectives of the Betting, Lotteries and Gaming Act, Cap 131 stand at odds and in conflict with the Fourth Schedule of the Constitution and Article 6 thereof.

iii. In the face of technological advancement in the fields of electronic communication and broadcasting coupled with changing societal values, the Betting Lotteries and Gaming Act, Cap 131 no longer protects public interest and legitimate concerns over the potential perils of uncontrolled gambling and so the said statute is obsolete and unfit for the intended purpose of such a law in 21st Century Kenya.

iv. The amendment by installment of the Betting, Lotteries and Gaming Act is actuated by the ulterior motives of the National Government to usurp the constitutional functions and obligations of country governments in the sector of betting, casinos and other forms of gambling.

v. There is profound public interest in the enactment of a holistic law to facilitate investment and participation of investors at the National and grassroots levels and control of electronic gambling.

24. The Petitioners aver that pursuant to the Fourth Schedule of the Constitution, Parliament is enjoined to enact legislation that will, inter-alia, provide the legal framework for County Governments to take over the functions of betting, casinos and other forms of gambling at County level but that this notwithstanding, the National Government has embarked upon piece-meal amendments of the Betting, Lotteries and Gaming Act alongside publication of Gazette Notice No. 8753 in a clear scheme to retain, at the national level, the control, administration and supervision of betting, casinos and other forms of gambling that are suitable for devolution and required by the Fourth Schedule to be devolved to the County Governments.

25. The Petitioners further state that the crackdown on their gambling enterprises is actuated by bad faith and amounts to a scheme to divert attention from the pernicious effects of widespread gambling occasioned by widespread and uncontrolled advertisement of gambling and betting by rich persons and national or multinational companies and politically connected individuals.

26. It is the petitioners’ case that to the extent that betting, casinos and other forms of gambling are legitimate economic activities, the Government both at the National and County level must create and secure a level playing field starting with an acknowledgement and implementation of the delineation of functions under the Fourth Schedule of the Constitution.

27. The Petitioners contend that the confiscation, seizure and destruction of their gaming machine triggered by the impugned crackdown is illegal and amounts to gross abuse of power, contempt of the Rule of Law, brazen violation of the due process and negates devolution in the area of betting, gambling, casinos and other forms of gambling.

28. The petitioners further state that by a letter dated 11th January, 2018 addressed to the 3rd Respondent, the 2nd Respondent herein directed the Police to crackdown on illegal betting across the country by removal and confiscation of all gaming machines installed in shopping centres. The said letter claims that the court orders barring police from arresting persons operating gaming machines have been overtaken by events despite the fact that the 3rd respondent’s office and the Attorney General’s office are aware of the pendency of this case and the orders in place. A copy of the said letter was attached to the affidavit in support of the re-amended petition and marked as annexure “SK6”.

29. The Petitioners aver that the foregoing is a testament of the determination of the National Government to deal with the subject matter of this case contrary to the Constitution and through illegal and arbitrary communal punishment whether or not the concerned gaming operators have contravened specific legal provisions.

30. The Petitioners contend that the impugned decisions, actions and omissions of the Respondents have been actuated by an apparent scheme by the National Government to ensure that the sector of betting, casino and gaming is exclusive for rich national and multi-national persons as attested by complete absence of regulation of the sector by the large scale operators who are free to advertise their activities and even allow children to participate through cell phones.

31. It is the petitioners’ claim that in order to secure a level playing field, this Court, pursuant to its mandate to protect public interest, should prohibit advertisement of betting and gambling activities forthwith until the law envisaged under the Fourth Schedule of the Constitution is enacted.

1ST, 2ND, 3RD, 4TH AND 7TH RESPONDENT’S SUBMISSIONS

32. The 1st, 2nd, 3rd, 4th and 7th Respondents opposed the Petition and the orders sought therein through the Replying Affidavit sworn by the chairman of the 1st Respondent on 11th November 2016 and a further Replying Affidavit by the 7th Respondent dated 7th March 2017 in which they identified the issues for determination to be:

i)Whether Gazette Notice No .8753 delineating the functions relating to casinos, betting and other forms of gambling between the National and County governments is in violation of the provisions of the Fourth Schedule to the Constitution

ii) Whether there was public participation by the fourth respondent during the delineation of the functions per Gazette Notice No. 8753.

iii) Whether theStatute Law (Miscellaneous Amendments) (No.2) Bill, 2017 is unconstitutional?

iv) Whether the 1st -3rd Respondents actions are in violation of the Petitioners’ fundamental rights and freedoms

33. On whether the Gazette Notice No. 8753 delineating the functions relating to casinos, betting and other forms of gambling between the National and County governments is in violation of the provisions of the Fourth Schedule to the Constitution it was submitted that the said Gazette Notice was issued pursuant to the provisions of the Fourth Schedule of the Constitution by the IGRTC which was established under the Intergovernmental Relations Act (No. 2 of 2012). It was argued that the IGRTC is the body mandated by law to take up the functions of the Transitional Authority (TA) after its dissolution pursuant to Section 12 of the Intergovernmental Relations Act which at Section 12 (a) and (b) of the Intergovernmental Relations Act provides that:

12. Functions of the Technical Committee

The Technical Committee shall—

(a) be responsible for the day to day administration of the Summit and of the Council and in particular—

(i) facilitate the activities of the Summit and of the Council; and

(ii) implement the decisions of the Summit and of the Council;

(b) take over the residual functions of the transition entity established under the law relating to transition to devolved government after dissolution of such entity;

34. Mr. Kuria, learned counsel for the respondents submitted that the Transition Authority was specifically mandated to develop the criteria as may be necessary to determine the transfer of functions from the National to County Governments pursuant to Section 15(2)(b) of the Sixth Schedule to the Constitution as read together with Section 7(2)(h) of the Transition to Devolved Government Act.

35. Counsel further submitted that one of the functions transferred to the 1st Respondent was the enforcement and compliance i.e. spot checks and daily supervision of casinos, authorization of lotteries within the County and spot checks on betting and other forms of gambling licensed by the County Government while the National Government was supposed to be responsible for the licensing of gaming activities, casino (public gaming licenses) and online gaming but that the Transition Authority later noted that there were transition challenges encountered in implementation of the function of betting, casinos and other forms of gambling during the initial period of devolution due to the concurrent nature of the Constitutional assignment of functions to the National and County Government and that it was against this backdrop that the Transitional Authority established the Inter-Agency Technical Committee to analyze the emerging challenges and provide a comprehensive report and way forward for implementing the betting, casinos and other forms of gambling function.

36. Counsel explained that the process was conducted by the Inter - Agency Technical Team tasked to inter aliaunbundle the functions assigned to the National Government and those assigned to the County Governments and that after several consultative meetings, the technical committee finalized a report dubbed “Report of the Inter-agency Technical Committee on the Devolution of Betting, Casinos and Other Forms of Gambling Function Retreat”in a which the functions were unbundled and assigned to either the county or national level of government. Counsel added that a consensus was reached on all functions save for the National Government which was assigned function of “Licensing of the gaming activities, casino, public gaming licenses”. For this argument, counsel referred to the report that was annexed to the 1st respondent’s Replying Affidavit which report outlined the responsibilities of the National Government as follows:

a. Development of standards and norms

b. Regulation of the gaming industry

c. Licensing of the gaming activities, casino, public gaming licenses (Assignment under National Government disputed)

d. Vetting, security checks and due diligence

e. Enforcement and compliance i.e spot checks and daily supervision of casinos

f. Periodic monitoring and evaluation

g. Statutory reporting

h. Authorization of prize competitions a cross cutting several Counties (on promotion of product and services)

i. Authorization of national lotteries

j. Authorization of on the course totali-sators

k. Authorization of the off course totali-sator

l. Authorization of book makers and

m. On line gaming

The County Governments on the other hand would be responsible for;

a. Licensing of business premises

b. Enforcement and compliance. That is spot checks, daily supervision of casinos

c. Monitoring and evaluation of gaming activities

d. Licensing of premises for totali-sators

e. Authorization and issuance of pool table permits within the counties

f. Authorization of prize competition for promotions within the counties

g. Authorization of permit for amusement machines

h. Authorization of lotteries within the counties; and

i. Enforcement of compliance within the county e.g spot of checks on betting and other forms of gambling licensed by the County Government.

The concurrent functions were also delineated as follows;

a. Implementation and customization of national policies

b. Periodic monitoring and evaluation

c. Legislation; and

d. Handling of complaints and arbitration.

37. It was disclosed that during the period of unbundling of the said functions sometimes in 2014, the Nairobi County Government enacted its Nairobi County Betting Lotteries and Gaming Act, 2014 which Act was challenged in the case of Africa Rafiki Ltd & 2 others v Nairobi City County Government & 3 others[2015] eKLR (hereinafter “Africa Rafiki case”) in which the Petitioners sought orders, inter alia, for a declaration that the provisions of the Betting Lotteries and Gaming Act CAP 131 prevail over those of the said Act. In the said Africa Rafiki case, the Petitioners’ contended that the County Legislation is unconstitutional for the reasons that the Transitional Authority had not established a criteria that must be met in devolving the function of betting, control and licensing in accordance with Section 15(2) (b) of the Sixth Schedule to the Constitution and also that the National Betting Control and Licensing Board had not finalized a national policy and legal framework to ensure effective management and control of gambling activities in the Counties and provide a model law to County Governments as mandated by the Transition Authority.

38. It was submitted that before determining the case, Lenaola J. (as he then was), issued an interim judgement in which he, among other orders referred the matter to the Transition Authority (TA) to clarify and delineate the licensing for betting, lotteries and gaming activities as between the National and County Governments and that in his final judgment, the said court adopted the Report of the Transitional Authority as the official delineation of functions of the National and County Government with regards to betting, casinos and other forms of gambling. In the said judgment it was further held thatthat the functions relating to betting, lotteries and gaming are concurrent to both County and National Governments and where there is a conflict, the same is to be resolved in terms of Article 191of theConstitution.

39. It was therefore the respondent’s submission that the Intergovernmental Relations Technical Committee was well within its mandate as provided under Section 12 (b) of the Intergovernmental Relations Act, No. 2 of 2012 to publish the Gazette Notice No. 8753 dated 8th September 2017 as they are the body that took over the functions of the defunct Transition Authority and only published what the said Authority had already delineated. Counsel maintained that the Petitioners’ claim that the Intergovernmental Relations Technical Committee acted ultra vires and in violation of Articles 187 and 200 of the Constitution was therefore baseless and unsubstantiated.

40. On whether there was public participation during the delineation of the functions contained in Gazette Notice No. 8753, counsel submitted that the respondents had demonstrated that the delineation of functions of the National and County Government was reached by consensus after numerous consultation processes which involved stake holders at every stage. It was argued that key stakeholders were involved in the entire process including the Association of Gaming Operators, the Council of Governors, various County representatives and the Betting Control and Licensing Board. Counsel added that it was the Petitioners’ own submission that the Association of Gaming Operators was among the stakeholders present and was the body representing the interests of gaming operators at the said stakeholder meetings.

41. Counsel submitted that the Petitioners had not demonstrated that there was no adequate public participation during the enactment of the impugned Gazette Notice and neither did they rebut the evidence tendered by the Respondents herein on the issue. On the principle of public participation under the new constitutional dispensation counsel cited the decision in the case of Kenya Small Scale Farmers Forum and 6 others vs Republic of Kenya and 2 others [2013] eKLRwhere the court observed that:

“One of the golden threads running through the current constitutional regime is public participation in governance and the conduct of public affairs. The preamble to the Constitution recognizes, “the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.” It also acknowledges the people’s ‘sovereign and inalienable right to determine the form of governance of our country…”Article 1 bestows all the sovereign power on the people to be exercised only in accordance with the Constitution. One of the national values and principles of governance is that of ‘inclusiveness’ and ‘participation of the people.”

42. On whether the Statute Law (Miscellaneous Amendments) (No.2) Bill, 2017 is unconstitutional, counsel submitted that under Article 94 of the Constitution, the power to make laws is bestowed on Parliament and that the proposal to increase security deposit and fines, as proposed by amendment in the Statute Law (Miscellaneous Amendments) (No.2) Bill, 2017, is fully within the powers bestowed by the Constitution on the parliament to legislate on any issue which amendments are intended to keep up with the current economic times and to ensure there is control in the gambling industry in the country.

43. It was further submitted that the petitioner’s objection to the proposed amendments is defeated under the Doctrine of Ripeness as it challenges legislation that is yet to pass through the process of Parliament. It was submitted that the legislature is the arm of Government which is tasked with the mandate to make laws, and it is therefore assumed that it understands and appreciates the need of the people such that the law it enacts is directed to problems existing in the society. For this argument, counsel relied on the decision by the Supreme Court of India in the celebrated case Hamdarddawa Khan v Union of India Air (1960) 554.

44. It was the respondent’s case that the jurisdiction of this court to challenge legislation on the basis of unconstitutionality has not been properly invoked as this issue is still before the constitutionally mandated authority and is therefore unripe for litigation. Reference was made to the decision of the Supreme Court in Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others [2014] eKLRwhere the apex court held that:

“The petitioner has come to this Court too early in the day and the Court cannot admit him. The matter is not ripe for the consumption of the Supreme Court. Commenting on the ripeness doctrine,Jeffrey Tobinin his book“The Oath: The Obama White House and The Supreme Court”, page 71-72writes thus:

“There are a (sic) number of procedural doctrines that can be used for this purpose. Other examples includeripeness (is it too early for a court to decide the case?), mootness (is it too late for a court to decide a case?),venue (is this court the right one?), and the “political question” doctrine (is the subject matter appropriate for a court to decide at all?).Everyone agrees that these doctrines are necessary, at some level; the courts cannot be allowed to weigh in on controversies simply because judges feel like deciding the merits.”

45. On the constitutionality of the Betting Lottery and Gaming Act, Cap 131 Laws of Kenya it was submitted that as was held in the Africa Rafiki case (supra), casinos and other forms of gambling is a concurrent function under the Fourth Schedule of the Constitution and that Chapter 131 does not in any way prevent counties from enacting legislation in matters of betting and casinos.

46. It was further submitted that the said Act is not in conflict with the provisions of the Intergovernmental Relations Act and that any conflict of law that may arise between the National and County Governments could easily be resolved by application of Article 191 of the Constitution.

47. On constitutionality of the said Act, counsel cited the case of Institute of Social Accountability & Another vs National Assembly & 4 Others High Court Petition No. 71 of 2014 [2015] eKLR, where the Court stated as follows at paragraphs 57 – 60:

[57] “[T]his Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2) (e) of the Constitution to protect and promote the purpose and principles of the Constitution.

[I]n determining whether a Statute is constitutional, the Court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and Another v Minister of State for Provincial Administration and Internal Security and Others Nairobi Petition No. 3 of 2011 [2011] eKLR, Samuel G. Momanyi v Attorney General and Another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect. The Canadian Supreme Court in the R v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 enunciated this principle as follows;

Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.

48. On the alleged violation of the petitioners rights by the 1st, 2nd and 3rd respondents, counsel submitted that failure to adhere to the set conditions under Section 54(2) of the Betting, Lottery and Gaming Act is an offence as set out in sub section 3 punishable by a fine and/or imprisonment and that in the absence of a permit from the Board authorizing the operation of gaming machines, the Petitioners were operating the gaming machines illegally and are guilty of an offence under Section 45 of the Act.

49. The respondents argued that the enjoyment of an individual’s rights and freedoms is only possible if the same does not prejudice the rights and fundamental freedoms of other people as such rights are not absolute and are limited under Article 24 of the Constitution.

50. Counsel submitted that crackdown of illegal gambling machines by the Government of Kenya is intended to put an end to illegal gambling activities in the country in a bid to protect its citizens in fulfillment of its Constitutional mandate. Counsel submitted that the crackdown in illegal gambling is a phenomenon that has gained traction in many African countries including Uganda, Zambia, Ghana and Tanzania where the different governments have noted that among the social ills associated with gambling are an increased number of school dropouts which has led to efforts to ban gambling.

51. It was also submitted that the petitioner is guilty of abuse of the process of court by filing numerous applications of similar nature in this court and other courts in blatant disregard to the sub judice rule. Counsel listed at least 16 cases that have allegedly been filed by the petitioner herein before this court and several other courts spread all over the country.

The 7th Respondent’s Case

52. The 7th respondent opposed the petition through the replying affidavit of its Acting Chief Executive Officer Patrick Karanja who states that the constitutional assignment of the betting, casinos and other forms of gambling functions to the National Government and County Governments is concurrent in nature.

53. He avers that the Transition Authority steered the process of unbundling the function of betting, casinos and other forms of gambling through an Inter - Agency Technical Committee established on 13th June 2014 that was tasked to inter aliaunbundle the functions assigned to the National Government and those assigned to the County Governments and that the said Inter- Agency Committee comprised of representatives from the National Government and the County Governments, as well as the defunct Commission for the Implementation of the Constitution.

54. He further avers that the Inter- Agency Technical Committee held a stakeholders consultative meeting in July 2014, where participants discussed inter alia the various components for effective discharge of the function of betting, casinos and other forms of gambling and that once the agency completed the assigned tasks, the Transition Authority conducted a validation meeting on 19th September 2014 where consensus was reached on assignment of all functions save for the function of Licensing of gaming activities.

55. He further states that on 18th of January 2016, the Transition Authority convened a stakeholders’ forum where consensus was reached on the function of Licensing of gaming activities; effectively signifying that all functions pertaining to betting, casinos and other forms of gambling had been unbundled and assigned to the relevant levels of government.

56. He also states that Section 12 (b) of the Intergovernmental Relations Act, No 2 of 2012 gives the IGRTC the mandate to take over the residual functions of the transitional entity established under the law relating to transition to devolved government after the dissolution of such entity and that vide Gazette Notice No. 116 dated 9th August 2013, the Transition Authority approved the transfer of the function of betting, casinos and other forms of gambling.

57. He states that in accordance with Section 12 (b) of the Intergovernmental Relations Act, No. 2 of 2012, the Intergovernmental Relations Technical Committee took over the function of developing a framework for the comprehensive and effective transfer of functions as provided under the Constitution, and that through Gazette Notice No. 8753 dated 8th September 2017, the Intergovernmental Relations Technical Committee delineated the function of betting, casinos and other forms of gambling.

58. He further avers that the said delineation was a direct result of the disposition and final orders of the High Court in Petition No. 295 of 2014 as consolidated with Petition No. 315 of 2015 where the Court approved the delineation in terms of the Transition Authority Report and that the said delineation was agreed upon through a process of public participation and that IGRTC issued an advisory to the Ministry of Interior and Coordination of National Government and all counties on the publication of the Gazette Notice 8753 dated 8th September 2017.

Analysis and Determination

59. I have carefully considered the pleadings filed herein and the submissions of the parties’ advocates together with the authorities and the law that they cited. I note that several issues were raised in this Petition but I find that the main issues that fall for determination are as follows:

a) Whether in view of Section 7 of the Sixth Schedule of the Constitution the Betting, Lotteries and Gaming Act, Cap 131 conforms to the allocation of Functions set out in the Fourth Schedule of the Constitution and other provisions of the Constitution.

b) Whether the Betting, Lotteries and Gaming Act, Cap 131 applies to betting, casinos and other forms of gaming duly licensed by a County Government to operate within its jurisdiction.

c) Whether Parliament is enjoined by the Constitution of Kenya, 2010 to enact a new legislation to govern the betting and gambling sectors in accordance with the delineation of functions under the Fourth Schedule of the Constitution.

d) Whether Gazette Notice 8753 published on 8th September, 2017 contravenes Part 2 Paragraph 4 of the 4th Schedule of the Constitution of Kenya that devolves powers and functions relating public betting and gambling in Counties to County Governments.

e) Whether the 1st Respondent’s letter dated 19th September, 2016 and the 2nd Respondent’s letter dated 11 January, 2018 and the actions of the Respondents violate the Petitioners’ rights and freedoms were under Articles 27, 28, 29, 40, 47 and 50 of the Constitution and principles of natural justice.

f) Whether the reliefs sought should be granted.

60. On the first issue, the petitioners argued that the provisions of Section 7 of the Sixth Schedule of the Constitution the Act does not conform with the allocation of Functions set out in the Fourth Schedule of the Constitution and other provisions of the Constitution. They maintained that the Act ceased to apply after the first General Election held under the new Constitution that gave way to the creation of county governments. The respondents on the other hand maintained that delineation of functions of the National and County Government, contained in Gazette Notice No. 8753, was arrived upon by consensus after numerous consultation processes which involved all the stake holders at every stage.

61. My finding is that the issue of whether or not the Act ceased to apply following the first General Election after the promulgation of the new Constitution calls on this court to consider the relevant provisions of the Constitution.

Section 7 of the Sixth Schedule of the Constitution stipulates as follows:-

7 (1) All law 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.

(2) If with respect to any particular matter-

(a) a law that was in effect immediately before the effective date assigns responsibility for that matter to a particular State organ or public officer; and

(b) a provision of this Constitution that is in effect assigns responsibility for that matter to a different State organ or public officer, the provisions of this Constitution prevail to the extent of the conflict.

62. My finding is that the above provision of the Constitution does not stipulate that laws that were in existence prior to the effective date of the new Constitution cease to exist as was suggested by the petitioners, but rather, that the laws should be construed with alterations, adaptations, qualifications and exceptions that would make them conform with the Constitution. In the present case, I find that the impugned Act is still good law as long as it has not been declared unconstitutional and it only needs to be interpreted in a manner that brings it in tandem with the provisions of the Constitution.

63. In this case the petitioner is aggrieved by the Board’s directive communicated to County Commissioners through a letter dated 19th September, 2016 and the 2nd Respondent’s letter dated 11 January, 2018 instructing the Commissioners to sensitize members of the public about illegal Gaming Machines and assist in mounting a major crackdown to confiscate them and to arraign operators and owners in court. The petitioners’ case is that in view of the division of functions of the national and county governments under the Fourth Schedule of the Constitution, the Board has no powers or authority over the betting activities falling within the jurisdiction of the County Government set out under the said Schedule. The petitioners also argue that the actions of the Respondents violate the Petitioners’ rights and freedoms were under Articles 27, 28, 29, 40, 47 and 50 of the Constitution and principles of natural justice.

64. The Fourth Schedule of the Constitution provides for the distribution of functions between the National Government and the County Governments. Under Part 1 paragraph 34 of the said Schedule the function of national betting, casinos and other forms of gambling is assigned to the National Government while Part 2 paragraph 4(a) assigns cultural activities, public entertainment and public amenities, including betting, casinos and other forms of gambling to the County Governments. Article 189(2) of the Constitution on the other hand provides that the national and the county governments should cooperate in the performance of functions and exercise of powers and for that purpose set up committees and joint authorities.

65. A simple reading of the above cited provisions of Part 1 and 2 of the Fourth Schedule of the Constitution clearly shows that betting, casinos and gambling activities fall within the concurrent jurisdiction of both levels of government and is therefore a shared function. For this reason, one cannot argue that the Act ceased to exist as soon as the county governments were created as the law is still relevant in respect to betting, casinos and other forms of gambling that are assigned to the national government. I hasten to add that there is no place/jurisdiction in this country known as the ‘national government’ since the activities of the national government are carried out within the 47 counties concurrently with the activities of the county government.

66. Article 189(1) of the Constitution, which provides for cooperation between the national government and county governments, requires government at either level to perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government at the other level, and respects institutional status and institutions of government at the other level including within the county level; assist, support and consult where appropriate, implement the legislation of the other level of government and liaise with government at the other level for purposes of exchanging information, coordinating policies, administration and enhancing capacity.

67. My finding is that having regard to the relationship and cooperation between the two levels of government, as provided for under Article 189 of the Constitution and their concurrent function in dealing with gambling and betting one cannot therefore say that the Board lacks jurisdiction within the counties. In the same vein, it would be foolhardy to argue that the Act ceased to operate upon the creation of the county governments as the Act is part national legislation that under the provisions of Article 191 of the Constitution, applies uniformly throughout Kenya and in respect of matters falling within the concurrent jurisdiction of both levels of government. For the above reasons, I find that the petitioner’s argument that the Board lacks jurisdiction within the counties or that the Act ceased to exist immediately after the first General Election under the new Constitution is not correct as both levels of Government undoubtedly have concurrent functions in the matter at hand.

68. The importance of national legislation, in this case, the Act, was emphasized in the case of Africa Rafiki Ltd. & 2 Others (supra) as follows:

“Firstly, while it is obvious that Cap 131 Laws of Kenya applies uniformly throughout Kenya, I also have no doubt that the said National Legislation is also necessary for the maintenance of national security because betting, lotteries and gaming business by their very nature can be a threat to national security. I say so because as correctly submitted by the Respondents it is now a matter of common knowledge and I dare add, that I take judicial notice of that fact that terrorists and other agents of mayhem routine use all manner of businesses to sanitise money to be used in their heinous activities.”

69. I further find that the issue of delineation of functions between the National and County Governments with regard to betting casinos and other forms of gambling was exhaustively dealt with by the Transition Authority and later on, the Court, in the Africa Rafiki case (supra) and subsequently Gazetted by the Intergovernmental Relations Technical Committee vide Gazette Notice. No.8753. The petitioners challenged the said Gazette Notice while arguing that it violated their rights. It is trite law that the onus is on the Petitioners to prove that their rights have been violated.

70. In the instant case, the Petitioners have not adduced any concrete evidence before the court to illustrate the manner in which the delineation of functions between the National and County Governments with regard to betting casinos and other forms of gambling as contained in Gazette Notice. No.8753 or how the proposed amendments contained in the Statute Law (Miscellaneous Amendment) (No. 2) Bill, 2017 is violating their rights. I am in agreement with the respondents’ position that the petitioners’ challenge on the constitutionality of the Statute Law (Miscellaneous Amendment) (No. 2) Bill, 2017 on the basis of unconstitutionality is premature in the circumstances of this case as the Bill, was as at the time the case was being argued, still before Parliament, which is the Constitutionally mandated authority, for consideration and is therefore unripe for litigation.

As was rightfully held by Justice Nyamu in Constitution ApplicationNo. 128 of 2006, Lt.Col. Peter Ngari Ngumi & others Vs AttorneyGeneral :

“.. when the court is faced with a scenario where one side alleges and[1]the rival side disputes, the one alleging assumes the burden to prove the allegation. Turning to the alleged violation…it is incumbent upon the Petitioners to avail tangible evidence of violation of their rights and freedoms...the court is deaf to speculations and imaginations and must be guided by evidence of probative value..”

Violation of fundamental rights.

71. Turning to the issue of the alleged violation of the petitioners’ fundamental rights, the petitioners’ claim was that their rights under Articles 27, 28, 29, 40, 47 and 50 the Constitution were violated by respondents. It is now trite law that anyone who alleges a violation of fundamental and constitutional rights must set out, with precision the nature of the rights violated and the manner of such violation. (see AnaritaKarimi Njeru v Republic (No. 1) [1979] 1 KLR 154.

72. Article 27 and 28 of the Constitution provides for equality and freedom from discrimination and right to dignity respectively while Article 40 provides for protection of the right to property in the following terms:

Article 40 of the Constitution

(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property--

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person--

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation--

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that--

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.

(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.

(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.

Black’s Law Dictionary,9th Edition defines “discrimination” as (1)”the effect of a law or established practice that confers privileges on a certain class because of race, age sex, nationality, religion or hardship” (2) “Differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured”.

73. The court had the following to say on the subject of discrimination in the case of Peter K Waweru v Republic[2006] eKLR:-

“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to … restrictions to which persons of another description are not made subject or have accorded privileges or advantages which are not accorded to persons of another such description… Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age sex … a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”(emphasis)

74. From the above definition of discrimination one can say that it means any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs, political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups. Article 27 of the Constitution prohibits any form of discrimination stating that. (1)Every person is equal before the law and has the right to equal protection and equal benefit of the law, and that (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

75. The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that amounts to discrimination. Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim. In this regard, in the case of Nyarangi & 3 Others V Attorney General [2008] KLR 688 the court clarified that; “discrimination that is forbidden by the constitution involves an element of un favourable bias. Thus, firstly un favourable bias must be shown by the complainant; and secondly, the bias must be based on the grounds set in the constitutional definition of the word “discriminatory” in section 82 of the Constitution.”

76. In the case of John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR,the Court stated referring to Article 27 of the Constitution;

“[i]t must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.”

77. In the present case the petitioners’ contended that the impugned decisions, actions and omissions of the Respondents were actuated by an apparent scheme by the National Government to ensure that the sector of betting, casino and gaming is exclusively for rich national and multi-national companies as attested by complete absence of regulation of the sector by the large scale operators who are free to advertise their activities and even allow children to participate through cell phones. In other words, the petitioners’ case was that there was discrimination in the manner in which the respondents treated the rich actors in the betting business as opposed to the treatment accorded to the petitioners.

78. My finding is that apart from the petitioners’ allegation that the respondents had a sinister scheme to favour a particular category of betting operators, no tangible evidence was presented before this court to show that there was preferential treatment accorded to other actors in the gambling business as suggested by the petitioners and I am therefore unable to find that the any of the petitioners’ rights under Articles 27 and 28 of the Constitution were violated.

79. In the instant case, it was not disputed that a major crackdown on alleged illegal gambling machines was mounted by the respondents and/or their agents pursuant to the impugned directive contained in the 1st Respondent’s impugned letter dated 19th September, 2016. The petitioners’ case was that Gaming Machines were confiscated and destroyed following the said raids thereby leading to the disruption and closure of their businesses in violation of their rights under Article 40 of the Constitution whose provisions I have already highlighted elsewhere in this judgment. I note that the respondents did not deny that a crackdown was mounted on alleged illegal gambling machines in different parts of the country following the 1st respondent’s impugned directive. On the alleged violation of the petitioners’ rights the 1st, 2nd and 3rd respondents argued that failure to adhere to the set conditions under Section 54(2) of the Betting, Lottery and Gaming Act is an offence as set out in sub section 3 punishable by a fine and/or imprisonment and that in the absence of a permit from the Board authorizing the operation of gaming machines, the Petitioners were operating the gaming machines illegally and are guilty of an offence under Section 45 of the Act.

80. The question that this court has to grapple with is whether the said crackdown by the respondents resulted in the violation of the petitioners’ rights.

81. Articles 47, 48 and 50 of the Constitution guarantee the right to fair administrative action, access to justice and right to fair hearing respectively in the following terms:

47 (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3) …

48. The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

49…

50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

Section 12 of Fair Administrative Actions Act provides that:

Every person has the right toadministrative actionwhich is expeditious, efficient, lawful, reasonable and procedurallyfair. (2) Every person has the right to be given written reasons for anyadministrative actionthat is taken against him.

82. Article 47 grants every person the right to fair administrative action that is efficient, expeditious, lawful and procedurally fair. The said Article 47 stipulates that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. Article 48 and 50 on the other hand provide for the right to access justice and the right to fair hearing respectively.

83. The fact that the right to Fair Administrative Action is a constitutional right was emphasized by the Constitutional Court of South Africa in the case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others(CCT16/98) 2000 (1) SA 1,that;

“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…”

84. The importance of this right to fair administrative action as a constitutional right in our Article 47 cannot be over emphasized. The Court of Appeal had the following to say in the case of Judicial Service Commission v Mbalu Mutava & another[2014] eKLR;

“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”

85. In the case of Dry Associates Ltd v Capital Markets Authority and Another,[2012] eKLR the Court observed;

“Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law or judicial review under the Law Reform Act (Cap 26 of the Laws of Kenya) but is to be measured against the standards established by the Constitution.”

86. Taking the above jurisprudence into account, it is clear that in the instant case, that acting as they did, the 1st, 2nd and 3rd respondents violated petitioners’ right to a fair Administrative Action contrary to Article 47 of the Constitution. The respondents did not show that they called upon the petitioners to present their business permits before their machines were confiscated or that they were taken to court and judged guilty before the said gaming machines were destroyed. Administrative Actions that flow from statutes, must now meet the constitutional test of legality, reasonableness and procedural fairness. According a party a hearing before taking action against him is no longer discretionary as it is firmly entrenched in our Constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. Needless to say, the arbitrary action taken by the respondents, in confiscating and destroying the petitioners’ machines without any notice(s) and without subjecting them to any due process is not acceptable and has place in our constitutional dispensation. This Court hastens to emphasize that it is no longer even a mere legal requirement but a constitutional one that a person is entitled to be heard and that the action to be taken should meet the constitutional validity test. Those taking administrative actions are bound by this constitutional decree failure of which renders their actions unconstitutional, null and void.

87. My finding is that while it was well within the mandate of the 1st respondent to issue the impugned circular to curb illegal betting activities in the country, the execution of the impugned directive had to be conducted in the manner that strictly conforms to the dictates of the Constitution and specifically, Articles 47, 48 and 50 thereof. My take is that any time the 1st respondent purports to exercise its powers under the Act, it must act in a manner that is in conformity with and not in contravention of the Constitution. In this regard, the respondents’ argument that they were justified in their impugned actions because petitioners did not adhere to the set conditions under Section 54(2) of the Act, were operating the gaming machines illegally and were therefore guilty of an offence under Section 45 of the Act is an argument that cannot stand the constitutional test of validity as the petitioners’ alleged guilt was not proved before a court of law or any tribunal set up for that purpose.

88. I therefore find and hold that the respondent’s action violated the petitioners’ right to fair administrative action and fair hearing as provided for under Articles 47 and 50 of the Constitution respectively.

Reliefs sought

89. Having found that the petitioner’s rights under Article 47, 48 and 50 of the Constitution were violated, the next issue for determination is whether the reliefs sought in the petition should be granted. It is trite law that there is no wrong without a remedy. Article 23 of the Constitution stipulates as follows on the remedies/reliefs that the court may grant for violation of right:

(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including--

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review.

90. Section 11 of the Fair Administrative Actions Act on the other hand stipulates as follows:

In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order-

(a) declaring the rights of the parties in respect of any matter to which the administrative action relates;

(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;

(c) directing the administrator to give reasons for the administrative action or decision taken by the administrator; (d) prohibiting the administrator from acting in particular manner;

(e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;

(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;

(g) prohibiting the administrator from acting in a particular manner;

(h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;

(i) granting a temporary interdict or other temporary relief;

(j) for the award of costs or other pecuniary compensation in appropriate cases.

91. In view of the clear provisions of the Constitution and having found that the petitioners’ constitutional rights were violated, I further find that this court is empowered by Article 23 (3) of the Constitution to grant appropriate reliefs in any proceedings seeking to enforce fundamental rights and freedoms such as this one. What amounts to "appropriate relief" was discussed by the South African Constitutional Court in Minister of Health & Others vs. Treatment Action Campaign & Others(2002) 5 LRC 216 at page 249 as follows:-

"...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 court may even have to fashion new remedies to secure the protection and enforcement of these all important rights...the courts have a particular responsibility in this regard and are obliged to "forge new tools" and shape innovative remedies, if need be to achieve this goal."

92. The principles applicable to award of damages for constitutional violations under the Constitution were exhaustively discussed by the Privy Council in the famous case of Siewchand Ramanoop vs. The AG of T&T, PC Appeal No 13 of 2004 wherein it was held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense.

Per Lord Nicholls at Paragraphs 18 & 19:

When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.

An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and deter further breaches.

All these elements have a place in this additional award. “Redress” in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions “punitive damages” or “exemplary damages” are better avoided as descriptions of this type of additional award.

93. In Peters v. Marksman & Another [2001] 1 LRC the Eastern Caribbean Supreme Court quoted with approval the words of Patterson JA in Fuller v A-G of Jamaica (Civil Appeal 91/1995, unreported), where the Court held that:

“It is incumbent on the courts to develop appropriate principles and guidelines as to the quantum of awards of compensation where applicable…Where an award of monetary compensation is appropriate the crucial question must be what is a reasonable amount in the circumstances of the particular case. The infringement should be viewed in its true perspective as an infringement of the sacrosanct fundamental rights and freedoms of the individual and a breach of the supreme law of the land by the state itself. But that does not mean that the infringement should be blown out of all proportion to reality nor does it mean that it should be trivialized. In like manner the award should not be so large as to be a windfall nor should it be so small as to be nugatory.”

94. The Supreme Court of Canada established a consideration on when a remedy in a Constitutional violation case is “just and appropriate” in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 to include, a remedy that will :

(1) meaningfully vindicate the rights and freedoms of the claimants;

(2) employ means that are legitimate within the framework of our constitutional democracy;

(3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and

4) be fair to the party against whom the order is made.

95. Having regard to the above judicial experience and philosophy, it is clear that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court but that such discretion is limited by what is “appropriate and just”according to the facts and circumstances of a particular case in view of the fact that the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements.

96. In the instant case, I note that there were over 373 petitioners cited in the original petition before the re-amendment. Going by the sheer number of the petitioners in this case and considering the fact that each one of them did not indicate the exact nature of the loss they suffered in the impugned crackdowns on their businesses, I find that only declaratory orders would suffice in this suit and that the petitioners will then be at liberty to pursue separate civil claims for damages, if they so wish, which suits shall be subject to specific proof of such loss as is required by the law.

97. Having regard to my findings in this judgment, I find that the instant petition succeeds, albeit partly, and I make the following orders:

a) A declaration that the actions of the 1st, 2nd, and 3rd Respondents violated the Petitioners’ rights and freedoms were under Articles 40, 47 and 50 of the Constitution.

b) There shall be no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 25th day of June 2019.

W. A. OKWANY

JUDGE

In the presence of:

Miss Mwangi for Kibe for the petitioners

No appearance for respondents

Court Assistant - Ali