When Can a County Government Charge for Services?

Introduction

In Base Titanium Ltd vs the County Government of Mombasa and the Attorney General, the Supreme Court found that a cess of Kes.3,000 imposed upon each of the trucks belonging to Base Titanium (the appellant) by the County Government of Mombasa ((the 1st respondent) from 17th June 2014, whenever transporting the appellant’s  minerals from Kwale County to Mombasa Port which is within the 1st respondent’s jurisdiction was unconstitutional, null and void.

Background

It is amazing that this is a matter that had to be decided by the Supreme Court. The High Court and the Court of Appeal do not appear to have rendered themselves properly in this matter. This appeal, i.e., Base Titanium Ltd vs the County Government of Mombasa and the Attorney General, was an appeal concerning a cess of Kes.3,000 imposed upon each of the appellant’s trucks from 17th June 2014, whenever transporting its minerals from Kwale County to Mombasa Port which is within the 1st respondent’s jurisdiction. The 1st respondent continued to impose the cess despite a protest from the appellant that the same contravened the Constitution, and a further confirmation from the Attorney General that the cess imposed was unconstitutional.

Aggrieved by the 1st respondent’s action, the appellant filed a petition in the High Court where it sought (a) a declaration that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s County is unconstitutional, null and void; b) a declaration that the 1st respondent has no mandate under the Constitution to pass any legislation that restricts the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries; and (c) a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1st respondent under duress as at 31st December 2014, and/or any other additional sums that the appellant has so paid to the 1st respondent from 1st January 2015, as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction.

While properly identifying the one issue for determination as being, whether levy by the 1st respondent of a cess charge for transportation of the appellant’s goods through Mombasa County is constitutional within the power of the 1st respondent under Article 209 of the Constitution, the High Court, quite surprisingly dismissed the appellant’s petition on the ground that County Governments have, under Article 209 (3) and (4) of the Constitution, the power to levy taxes and charges for services that they provide including road transport and that the charge levied by the 1st respondent was not a tax or charge on the mineral product of Titanium mined and transported by the appellant, and that the charge was, accordingly, not barred by reference to Article 62 of the Constitution. The appellant was naturally aggrieved by this decision and appealed to the Court of Appeal, which surprisingly upheld the High Court decision. This forced the appellant to seek justice in the Supreme Court (the Court).

Determination

The Court identified two issues for determination. i.e., whether the cess charge imposed by the 1st respondent upon each of the appellant’s trucks was a charge on services as contemplated under Article 209 (4) and (5) of the Constitution of Kenya, and if so, what remedies would the Court offer.

Citing with approval the definition of the word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 as “a system that provides something that the public needs, organized by the government or a private company,” the Court clarified that a service may include, for County transport, which entails County roads; street lighting; traffic and parking; public roads transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprising some of the functions and powers of County Governments under schedule four Part 2, section 5 of the Constitution. To this limited extent, the Court agreed with the High Court and the Court of Appeal, that County Governments have the mandate to charge levies for services rendered.

However, in so finding, the Court went on further to consider, quite correctly in our humble view, whether the roads accessed by the appellant are those within the purview of the Counties. Looking at the relevant legislation, the Court found that

  1. the Kenya National Highways Authority (KeNHA) is responsible for the development, rehabilitation, management, and maintenance of all National Trunk Roads comprising Classes S, A, and B roads. Class-S Road is defined as a highway that connects two or more cities and carries safely a large volume of traffic at the highest speed of operation; Class-A Road is defined as a highway that forms a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports; and finally a Class-B Road, which is a highway that forms an important national route linking national trading or economic hubs, County Headquarters and other nationally important centres to each other and to the National Capital or to Class A roads;
  • the Kenya Urban Roads Authority (KURA) is responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads are categorized as national roads. After the January, 2016, KURA’s mandate was expanded to all counties in line with article 6 (3) of the Constitution; and
  • the Kenya Rural Roads Authority (KERRA) is in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA is in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.

Using these classifications, the Court found that to access the Port of Mombasa, the appellant must use the Likoni-Ukunda Roadwhich the Kenyan road system identifies as an A14 road, and that the said road falls directly into the category of a national road, directly under the mandate of KeNHA and the National government. The Court further found that the 1st respondent had not clarified how its charge met the categories it set out in Item 90 of the Mombasa County Finance Act, 2014 and that the 1st respondent had not stated if they provide street lighting, parking or maintenance of the road accessed by the appellants. Having established that Likoni-Ukunda Road was not a county road, the Court found that it was improper for the 1st respondent to levy a charge for road service for the same road that vests in the National Government.

The Court also took issue with the 1st respondent for issuing receipts marked ‘miscellaneous income’ or ‘Likoni Revenue Barrier’, because they did not disclose the nature or details of the payment.

The Court therefore, correctly, in our humble view, faulted the High Court and Court of Appeal for their interpretation and application of article 209 (4) of the Constitution in their finding that the cess levied by the 1st respondent was in line Constitution since, quite clearly, there was no service provided by the 1st respondent on the Likoni-Ukunda Road.

Regarding the reliefs, and having found as it had, the Court set aside the judgements of the High Court and the Court of Appeal, declared that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s county is unconstitutional, null and void, declared that the 1st respondent had no mandate under the Constitution to pass any legislation that restricted the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries and issued a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kes.1,542,000 paid by the appellant to the 1st respondent under duress as at 31st December 2014, and/or any other additional sums that the appellant had so paid to the 1st respondent from 1st January, 2015 as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction.

Our comments

We think the Court was spot on this matter. There has been a troubling spectre of County Governments raising illegitimate charges and, like in this case, referring to these illegitimate charges as services. The Court was quite clear that before a County Government can claim to have provided a service, it must not only show that the service falls within its purview, but must also demonstrate what service they have provided. We would add that the fact that article 209 (4) of the Constitution provides that “the national and county governments may impose charges for the services they provide,” appears to point out that these Governments have a discretion to impose charges but that discretion can only be exercised for services that have actually been provided. It goes without saying that a County Government or the National Government cannot purport to have provided a service in an area where the said Government has no jurisdiction.

The decision of the Court is welcome in that it removes the doubt that existed in the minds of trans-county traders to the effect that they would be charged for alleged services every time they find themselves in a different county. This makes county governance workable and less expensive for the citizenry. The decision also pointed to the fact that County Governments and indeed the National Government should be careful of the decisions they make as the Courts are not shy of ordering these Governments to pay compensation to persons that may be aggrieved by unlawful decisions made by the Governments.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2021/09/Base-Titanium-Limited-v-County-Government-of-Mombasa-and-another.pdf

Whether a delay in obtaining letters of administration to file suit constitutes a good ground for leave to file a suit out of time

SUMMARY
The High Court of Kenya allowed the appeal of the County Government of Kilifi (the appellant) on a question whether a delay in obtaining a limited grant of letters of administration constituted a good ground for allowing a suit to be filed outside the limitation period set in section 4 (2) of the Limitations of Actions Act, Cap 22 (the Limitation Act) finding that a delay in obtaining letters of administration did not constitute such a ground.  The successful appellants were represented by Okello Kinyanjui and Company LLP.

BACKGROUND
On the 31st of August, 2018, Edward Fondo Kalama and Mary Baya Karisa (the respondents) instituted a suit, as representatives of the estate of one George Katana Fondo (the deceased), where they sued the appellant for general and special damages for an alleged breach of duty of care in negligence. The suit concerned an accident which occurred on or about 20th of September, 2014 in which the respondents alleged that the deceased was properly and carefully riding his motor cycle registration number KMDB 940G at Matsangoni along Kilifi – Malindi Road and while trying to make a right turn at Roka – junction after indicating his intention to do so the appellant’s servant, driver or employee negligently managed or drove the appellant’s motor-vehicle registered number KBY 967C at very high speed thereby knocking down the deceased. As a result, the deceased succumbed to his injuries.

Before commencement and filing of the suit, the respondents filed an application seeking leave to extend time under the provisions of section 4 (1) of the Limitations Act as read with sections 27, 28, 29 and 30 of the Limitations Act. The reason for seeking to file suit out of time was based on the alleged delay by the High Court in issuing letters of administration to the respondents to enable the respondents file a suit. According to the respondents, this alleged delay was a material fact and a fact of a decisive character within the meaning of the Limitations Act. Leave to file suit out of time was, as required by law, granted ex-parte by the learned magistrate. The grant of leave to file suit out of time was challenged by the appellant as an issue within the trial of the main suit. The learned trial magistrate in her final determination ruled against the appellant and found that the extension of time to have been properly granted. The appellant was aggrieved by the decision as well as the whole judgment and appealed to the High Court.

HELD
The issues before the High Court were, broadly-speaking, the following, firstly whether the suit in the subordinate court was time barred and whether leave to file the suit out of time had been properly granted, secondly, whether the High Court should interfere with the subordinate court’s finding on liability and lastly, whether the High Court should interfere with the subordinate court’s finding on quantum.

On the three broad issues, the High Court fund as follows:

Whether the suit in the subordinate court was time barred and whether leave to file the suit out of time had been properly granted.

The High Court found that the operative provisions regarding time bar in negligence suits and whether leave was properly granted are to be found in sections 4 (2), 27, 28 and 30 of the Limitations Act.

According to the High Court, ignorance of the law was not an excuse and as such ignorance of the existence of the statutory period of limitation does not qualify as a material fact within the scope of section 27 of the Limitation Act. The High Court cited with approval the binding decision of the Court of Appeal in Bernard Mutunga Mbita v. Municipal Council of Mombasa & another CA No. 3 of 1992, where the Court of Appeal said:

“The court will grant an application for leave to bring an action after the expiry of the normal three years limitation period if the plaintiff proves that material facts relating to his cause of action, were or include facts of a decisive character hence were at all times outside the knowledge of the plaintiff until a date which was earlier after the end of the three year period or earlier than twelve months before its end and was, in earlier case, not more than twelve months before the date on which the action was brought. Material facts are restricted to three categories of fact, namely; –

The High Court also found that it was not sufficient that the facts unknown to the respondent should only be material, within the definition given in the Bernard Mutunga case, but that they must also be of a decisive character. The High Court found that the learned trial magistrate pronounced herself on the claim under the tort of negligence without giving proper interpretation to the provisions of section 27 on material facts or facts of a decisive character and section 30 of the Act and that the respondents failed to show that their failure to file the cause of action within time was due to material facts or facts of a decisive character. The High Court found that the language used in sections 27 and 30(3) of the Limitation Act does not import an open guarantee of discretion to be exercised at whim or caprice by the trial court.

Whether the High Court should interfere with the subordinate court’s finding on liability.

The High Court found that the respondent had the burden to prove the element of tort of negligence on a balance of probabilities. Having found that, he continued to say that the trial court did consider fully the case prosecuted by the respondent and that the trial court did justice in a balancing act of competing interest of the parties as to who between them was to blame for the accident. The High Court, therefore found no new evidence to warrant interference with the decision on liability

Whether the High Court should interfere with the subordinate court’s finding on quantum.

The High Court found that there was no evidence to interfere with the assessment by the trial court.

The High Court thus, granted the appellants appeal with no order as to costs.

OUR COMMENT

This judgment dealt with the issue of what is a good reason to grant leave to file a suit out of time. Specifically, it looked at whether a party claiming to have experienced delay in receiving letters of administration can be heard to say that such delay was a material fact or a fact of a decisive character within the meaning of the Limitations Act. The High Court unequivocally found that the delay in obtaining letters of administration was not a material fact or a fact of a decisive character. We would proceed to add that, sections 27, 28, 29 and 30 of the Limitation Act must be strictly construed. This is not only in keeping with the rule of law as provided in article 10 if the Constitution of the Republic of Kenya but also, as the High Court pointed out, there are important policy reasons for keeping a strict construction of the said sections, such as, firstly, “a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up valuable and important time of the Courts and thereby reduce the availability of that much used and need resource to plaintiffs and defendants who have acted promptly in their litigation, as well as increase the cost to the Courts Service and through that body to taxpayers, of providing a service of access to the Courts which serves best the public interest,” per Peart J. in Byrne V Minister for Defence [2005]1 IR 577, 585, secondly, the effects of delay on the fairness of civil trials and lastly, limitation periods represent legislature’s judgement that a democratic society governed by the rule of law is best served by causes of actions litigated within the prescribed time.

The decision is available http://www.okadvocates.com/blog/wp-content/uploads/2021/07/County-Government-of-Kilifi-vs-Edward-Fondo-Kalama-and-another.pdf

The United Kingdom Supreme Court Clarifies on the Collision Regulations

INTRODUCTION
In the first collision appeal to come before the Supreme Court of the United Kingdom (UK), and nearly 50 years after a collision appeal was last heard by the House of Lords, the Supreme Court has provided clarification on how to construe the International Regulations for Preventing Collisions at Sea 1972, as amended (“the Collision Regulations”) for the purposes of applying the Crossing Rules (Rules 15-17).

BACKGROUND
This appeal concerned a collision at sea between the appellant’s vessel (“Ever Smart”) and the respondent’s vessel (“Alexandra 1”). The collision took place on 11 February 2015 just outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the United Arab Emirates. Alexandra 1 was inbound, while Ever Smart was outward bound. The damage suffered by Alexandra 1 amounted to over US$9.3 million and the damage suffered by Ever Smart amounted to over US$2.5 million.

The Admiralty Court determined that the appellant’s vessel, Ever Smart, should bear 80% of the liability for the collision and the respondent’s vessel, Alexandra 1, should bear 20%. The judge held that the crossing rules (Rules 15-17 of the Collision Regulations) did not apply and therefore that Alexandra 1 did not navigate in breach of Rule 16, the crossing rule which was said by the appellant to have applied to the Alexandra 1.

The Court of Appeal dismissed the appellant’s appeal.

The appellant then appealed to the Supreme Court.

HELD
The Supreme Court unanimously allowed the appeal. Lord Briggs and Lord Hamblen gave the judgment, with which the other members of the Court agreed.

The Court stated that the focus of the appeal is the crossing rules, but it is important to read them in context. A risk of collision between two powered vessels can arise in three different ways and the Collision Regulations establish rules for each: overtaking vessels; vessels approaching each other head-on; and vessels crossing so as to involve risk of collision. “Crossing” means that the vessels’ courses are not parallel but intersecting. “So as to involve risk of collision” may be determined in a variety of ways, but if the vessels are approaching each other on a steady bearing, there will be a deemed risk of collision (rule 7(d)(i)). The crossing rules lie at the heart of the scheme for avoiding collisions where two vessels are approaching each other on a steady bearing (other than overtaking or head-on) and are thereby at risk of collision.

Issue 2: will the crossing rules only engage if the putative give-way vessel is on a steady course?
This question was considered first because it determined whether the crossing rules were even engaged. The Supreme Court found that there was no ‘steady course’ requirement. Furthermore, Alexandra 1 was approaching Ever Smart on a steady bearing for over 20 minutes before the collision, on a crossing course. This was sufficient to engage the crossing rules even though she was not on a steady course. Although it did not arise on the facts, for the same reasons the stand-on vessel needed not be on a steady course to engage the crossing rules either.

Issue 1: the interplay between the narrow channel rules and the crossing rules
The narrow channel rules require vessels proceeding along the course of a narrow channel to keep as near to its starboard side as is safe and practicable (rule 9(a)). The critical question in relation to Issue 1 was which rules applied when one vessel was proceeding along a narrow channel towards its exit and the other vessel was approaching its entrance with a view to proceeding along it. The courts below considered that the narrow channel rules displaced the crossing rules. However, the Supreme Court found that the crossing rules should not be overridden in the absence of express stipulation, unless there is a compelling necessity to do so.

In this case, Alexandra 1 was the approaching vessel, intending and preparing to enter the channel but, crucially, waiting for her pilot rather than shaping her course for the starboard side of the channel, on her final approach. In this scenario, there was no necessity for the crossing rules to be overridden as the narrow channel does not yet dictate the navigation of the approaching vessel. She could comply with her obligations under the crossing rules, whether she was the give-way vessel or the stand-on vessel. Similarly, there was no need to disapply the crossing rules from the perspective of the vessel leaving the channel. The Supreme Court held that the crossing rules are only displaced when the approaching vessel is shaping to enter the channel, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.

Therefore, the crossing rules applied and Alexandra 1, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Ever Smart. As a result, the High Court would need to redetermine the apportionment of liability between the two parties.

COMMENTS
The judgment offers clarification on the collision rules. This is of importance given the various incidences around the world. The decision is important for Kenya because Kenya, by virtue of section 4 (2) of the Judicature Act, Cap 8 applies English law in admiralty matters. Further Kenya acceded to the Collision Regulations on the 15th December, 1992 meaning the same came into force internationally for Kenya on the 15th of December, 1992. Furthermore, Kenya has legislated the Collision Regulations into its law by virtue of sections 203 to 219 of the Merchant Shipping Act, 2009. The decision of the UK Supreme Court will offer tremendous guidance on the topic.

The decision is here http://www.okadvocates.com/blog/wp-content/uploads/2021/02/uksc-2018-0216-judgment.pdf

SUPREME COURT CLARIFIES ON INNOVATIVE RELIEFS AND POSITION OF INTERNATIONAL LAW

Mitu-Bell Welfare Society, a society registered under the provisions of the Societies Act Cap 108 (the appellants) comprising of residents of Mitumba Village, with 3065 households or approximately 15,325 men, women and children filed a petition in the High Court of Kenya on behalf of its members and other residents of Mitumba village. On the basis of the pleadings, at the time of filing the petition before the High Court, the appellants were all residents of Mitumba Village situated on Plot Number 209/12908, near Wilson Airport, Nairobi; while their children attended school at Mitumba Primary School, situated on plot number 209/12921, also located near the Wilson Airport. The appellants’ petition was prompted by a notice published in the newspapers on 15th September 2011, by the 2nd respondent giving them seven (7) days within which to vacate the suit land. Together with the petition, the appellant filed a chamber’s summons application seeking among others, conservatory orders against Kenya Airports Authority (the 1st respondent).

On the 22nd of September, 2011, the High Court granted an order restraining the respondents, i.e., the 1st respondent as well as the Hon. Attorney-General (the 2nd respondent) and the Commissioner of Lands (the 3rd respondent) from demolishing the village pending the hearing inter-partes and determination of the application for conservatory orders. However, notwithstanding the conservatory order, the respondents proceeded to demolish the appellants’ houses in the village on 19th November, 2011. The demolition necessitated the amendment of the petition and the issues framed in the High Court of Kenya arising from the amended petition and responses from the respondents were as follows:

  • What rights, if any, do the [appellants] have over the subject property?
  • If the answer to (i) above is in the negative, was their eviction and the demolition of their houses a violation of their rights under the Constitution?
  • If the answer to (ii) above is in the positive, what relief should the Court grant to the petitioners?
  • Rights over the Subject Property.

The High Court, inter-alia, allowed the petition, declaring that following the demolition of Mitumba village, more so as the demolition was carried out while an Order of the Court restraining the demolition was in force, the 1st and 2nd Respondents had violated the appellants’ constitutional rights.

Before making any further Orders with regard to the appropriate relief for the appellants in the matter, the Court directed as follows;

  • That the respondents do provide, by way of affidavit, within 60 days of judgment, the current state policies and programmes on provision of shelter and access to housing for the marginalised groups such as residents of informal and slum settlements.
  • That the respondents do furnish copies of such policies and programmes to the appellants, other relevant state agencies, Pamoja Trust (and such other civil society organisation as the appellants and the respondents may agree upon as having the requisite knowledge and expertise in the area of housing and shelter provision as would assist in arriving at an appropriate resolution to the appellants’ grievances), to analyse and comment on the policies and programmes provided by the respondents.
  • That the respondents do engage with the appellants, Pamoja Trust, other relevant state agencies and civil society organizations with a view to identifying an appropriate resolution to the appellants’ grievances following their eviction from Mitumba Village.
  • That the parties report back on the progress made towards a resolution of the appellants’ grievances within 90 days from the date of Judgment.

In effect, the High Court was issuing, as appropriate relief, post judgment supervision of the matters which it had given directions on. Thereafter, the State filed an affidavit appending the Government’s Guidelines on Settlement and Evictions. Consequently, the learned Judge gave parties 45 days to engage in discussions with a view to finding an amicable solution.

Aggrieved and dissatisfied with the entire Judgment and directions of the High Court, the 1st respondent filed an appeal in the Court of Appeal. The Court of Appeal on its part, identified eleven issues arising from the appeal filed before it. In doing so the Court of Appeal, inter-alia, upheld the High Court’s finding of the 2nd respondent’s liability on grounds that under the provisions of article 156 (4) (a) and (b) of the Constitution, the 2nd respondent is the legal advisor to the Government, and is empowered (other than in criminal proceedings) to represent the Government in Court or in any other legal proceedings to which the National Government is a party. The appellate court however set aside any liability against the 3rd respondent, and concluded that the High Court, erred in law in making a composite order and issuing directives against the latter.

The Court of Appeal in addressing the issue of reservation of powers to make further orders, faulted the High Court, for delivering a judgment and then reserving outstanding matters to be dealt with by the same Court. It further found that, save for the limited exceptions provided for in law, delivery of judgment marks the end of litigation and the end of jurisdictional competence of the High Court, hence upon delivery of judgment, a court becomes functus officio.

On the issue of reliance on the Universal Declaration of Human Rights, the Court of Appeal without faulting the High Court for citing the UN Guidelines, noted that it was imperative to bear in mind the hierarchy of laws in Kenya view. It opined that before a court can invoke article 2 (5) of the Constitution, it must be satisfied that the rule of international law being invoked is a general rule of international law and not simply a rule of international law; that it must be borne in mind that the United Nations and any other international or multilateral organization is neither a supplementary nor complementary legislature for Kenya; that neither the UN nor any international organization legislates for Kenya; and that it is impermissible to use article 2 (5) of the Constitution as a basis to justify any or all rules and principles of international law as part of the laws of Kenya.

The appellant, being aggrieved, filed an appeal to the Supreme Court after applying to the Court of Appeal that there were matters of public importance which the Court of Appeal certified. The Supreme Court identified the following five issues:

  • What is the place of Structural Interdicts(if any) as forms of relief in human rights litigation under the Constitution?
  • What is the effect of Article 2 (5) and 2 (6) of the Constitution regarding the applicability of international law in general and international human rights in particular?
  • To what extent are Guidelines by UN bodies relevant in the interpretation and application of Socio-Economic Rights by Kenyan Courts under the Constitution?
  • Under what circumstances may a Right to Housing accrue (if at all) in accordance with the provisions of Article 43 (1) (b) of the Constitution?

Held

Structural Interdicts

The Supreme Court reiterated, once again, that the High Court had powers to craft appropriate remedies, even structural interdicts, but cautioned that interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a Constitutional or statutory mandate to enforce the order. Most importantly, the Court in issuing such orders, must be realistic, and avoid the temptation of judicial overreach, especially in matters policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions.

Applicability of international law under article 2(5) and 2(6) of the Constitution

The Supreme Court found that article 2(5) and (6) of the Constitution has nothing or little of significance to do with the monist-dualist categorization. Most importantly, according to the Supreme Court, the expression “shall form part of the law of Kenya”as used in the Article does not transform Kenya from a dualist to a monist state as understood in international discourse. The Supreme Court then went ahead to State that the phrase, “shall form part of the law of Kenya”, was in fact first embraced by what it described as “the pioneer dualist states”, i.e., the United Kingdom and the United States.

The role of the UN Guidelines in the interpretation and clarification of the Bill of Rights

The Supreme Court held that the Guidelines cannot be regarded as being part of the treaty under which they were issued. They are tools or aids directed to states parties to help the latter in implementing the treaty or better fulfilment of their obligations there-under. Each state party is free to make use of the Guidelines, to the extent that is practicable under its legal system. The guidelines are not “binding” upon the States parties, nor are they part of the law of Kenya in the language and meaning of article 2 (6) of the Constitution, unless they have ripened into a norm of customary international law, as evidenced by widespread usage. Again, we must emphasize that there is nothing wrong in a court of law-making reference to the Guidelines as an interpretative tool aimed at breathing life into article 43 of the Constitution.

The right to housing under article 43 of the Constitution

The Supreme Court was categorical that the right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, the Supreme Court held, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Supreme Court was categorical that the courts are there to ensure that such protection is realized.

Comments

The decision by the Supreme Court, in the main, was progressive. It recognized in our view three major issues, i.e., firstly that the High Court, when considering the terms, appropriate relief, in articles 22, 23 and 258 of the Constitution can craft innovative remedies, including supervisory structural interdicts. These crafted remedies have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State agency. Secondly, as far as the Supreme Court was concerned, international law, though applicable in Kenya was lower in hierarchy to the Constitution, statute and written decisions. We think the court may have slightly misdirected itself on this point. The Supreme Court mentioned having been guided by the decisions of the US Supreme Court in the Paquete Habanaand the English courts in the Triquet & Others v. Bath., to determine the meaning of the term “shall form a part of the law of Kenya used in articles 2 (5) and 2 (6) of the Constitution However a look at those decisions and the law they were interpreting shows that the Supreme Court misdirected itself. In the the Paquete Habana, the US Supreme Court said:

“International law is part of our law, and must be ascertained and administered by the Courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and as evidence of these, to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat…” Given that article IV cl. 2 of the US Constitution provides in relevant part, that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, it would be surprising if the Paquete Habana was decided any differently than it had. International law is part of US law by dint of their Constitution. The US cannot therefore be referred to, as the Supreme Court thought, as a “dualist” State. On the other hand, when the English court was making its decision in Triquet & Others v. Bath, the UK did not have, and does not, at present, have a written Constitution. In the UK, Parliament is Supreme and customary international law is accepted by the courts as part of the law, subject of course to the law made by Parliament. So whilst in the UK, it is the courts that accept customary international law as part of the law of the UK, in Kenya, the Constitution itself directs that customary international law and treaty international laws shall from part of the law of Kenya. The effect of the Supreme Court’s decision regarding the station of international law is to reduce article 2 (5) and 2 (6) to empty platitudes. Granted, it is difficult to discern why the Constitution’s drafters wanted international law to be an automatic part of Kenyan law, but that, indeed, was their intention.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2021/02/Mitu-Bell-Welfare-Society-v-Kenya-Airports-Authority-and-2-others.pdf

State Has no Immunity with Respect to Salvage Claims

Summary
South Africa’s claims of state immunity in respect of a cargo of silver bars (current value: £32 million) was resisted in Argentum Exploration Limited v The Silver [2020] EWHC 2323 (Admlty) where the United Kingdom’s High Court decided in the context of section 10 (4) (a) of the United Kingdom’s State Immunity Act, 1978 (hereinafter referred to as the “SIA”).

Background
The silver was carried on the SS Tilawa, a privately-owed merchant ship, during World War II, when the said vessel was sunk in international waters by Japanese torpedoes as she made the crossing from Mumbai to Durban, carrying (among other cargo) the silver for use by the South African Mint. The silver sank to depths which until recently had precluded salvage.
Argentum salved the silver in 2017 and brought it to Southampton, where it was declared to the Receiver of Wreck. Argentum also commenced proceedings in rem claiming salvage from the owner of the silver. South Africa claimed ownership of the silver, but argued that it was immune from the proceedings in rem due to sovereign immunity. Resolution of the matter hinged on whether, for the purposes of s 10(4)(a) of the United Kingdom’s State Immunity Act 1978 (“SIA”), the silver and the Tilawa could be said to be “in use, or intended for use for commercial purposes” in 2017, being the time at which Argentum’s cause of action against South Africa arose.

Held
Judgment was delivered on 16 December 2020. Sir Nigel Teare (sitting as a judge of the United Kingdom High Court) held that (for the purposes of s 10(4) (a) SIA) the Tilawa and the silver were in commercial use when the wreck was salved, noting that, on sinking, the ship was a merchant vessel and its cargo was being shipped under a commercial contract of carriage and that nothing had happened between 1942 and 2017 to alter the status of either. Therefore s 10(4)(a) of the SIA applied and South Africa was not immune from proceedings in rem claiming salvage in respect of the silver.

Comments
Argentum v the Silver appears to be the first case to consider section 10(4) (a) of the SIA. Kenya does not appear to have an Act similar to the SIA and so, by dint of section 4 of the Judicature Act, Cap 8 which provides that “the admiralty jurisdiction of the High Court of Kenya shall be exercisable (a) over and in respect of the same persons, things and matters; (b) and in the same manner and to the same extent; and (c) in accordance with the same procedure as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations” and so the SIA, which provides at section 10 (1) (a) that section 10 of the SIA is applicable “to (a) Admiralty proceedings and (b) proceedings on any claim which could be made the subject of Admiralty proceedings,” is relevant to the development of Kenyan law.

That said, certain aspects of the judgment are interesting. The primary question raised by South Africa was with regard to whether South Africa was immune having regard to section 10 (4) (a) of the SIA. Section 10 (4) (a) of the SIA provides that “a State is not immune as respects an action in rem against a cargo belonging to that State if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes.” Thus, in South Africa’s view, the cause of action arose when the salvage operations for the silver were completed on or about the 2nd of August, 2017. In South Africa’s view at the time the cause of action arose, the silver was not obviously in use and there was no evidence that it was intended for use for commercial purposes. However, the UK High Court, in agreement with the claimant’s arguments was of the view that because the South African interpretation would produce a result not in consonance with the international obligations of the UK both under customary international law (see the restrictive theory of state immunity as opposed to the absolute theory of state immunity) and the Brussels Convention of 1926, for which the SIA was enacted to enable the UK ratify the same. The Brussels Convention provides in principle that state owned ships and cargoes etc. are subject to the same rules of liability and the same obligations as those applicable in the case of privately-owned ships, cargoes and equipment. The court thus, departed from the natural meaning of section 10 (4) (a) of the SIA because it felt that the interpretation adopted by South Africa would give States immunity even in commercial transactions freely entered into by themselves. This decision affirms the inclination of the English courts to limit a foreign state’s reliance on immunity in circumstances where it has acted as a commercial entity and engaged in commercial activities.

This decision will be of particular interest to offshore and sub-sea contractors engaged in the recovery of high value cargo such as the many cargoes of precious metals known to have been lost particularly in times of war. The Court’s approach may well encourage such salvage operations in the future where there is a possibility that the owner of the cargo might turn out to be a state or state-controlled entity.

The decision can be found here http://www.okadvocates.com/blog/wp-content/uploads/2021/01/Argentum-Exploration-v-The-Silver-1.pdf

AMENDMENTS TO ACTS OF PARLIAMENT

President Uhuru Kenyatta has signed into law the Sectional Properties and Statute Law (Miscellaneous Amendments) bills.

The new Sectional Properties Act, 2019 provides for the division of buildings into units to be owned by individual proprietors among other elaborate provisions. It repeals the Sectional Properties Act of 1987.

The Statute Law (Miscellaneous Amendments) Act, 2020 amends twenty one (21) statutes among them the Interpretation and General Provisions Act, Records Disposal Act, Penal Code, Public Holidays Act and Firearms Act.

Other laws amended by the new law are the Official Secrets Act, Kenya Roads Board Act, Statistics Act, Employment Act, Accountants Act, Judicial Service Act, Kenya National Commission on Human Rights Act, Employment and Labour Relations Court Act, Ethics and Anti-Corruption Commission Act, and National Police Service Commission Act.

Also amended are the Public Appointments (Parliamentary Approval) Act, Universities Act, Kenya Law Reform Commission Act, Investment and Financial Analysts Act, Witness Protection Act and Kenya Coast Guard Act.

IMO’s Maritime Safety Committee Addresses Crew Change Crisis

The COVID-19 pandemic has brought about an unprecedented scenario in the way humanity handles matters. The maritime industry has not been spared of this crisis and Port States have, as a means of trying to cope with the pandemic enacted a number of inconsistent measures, whose net result has been the literal marooning of seafarers on their vessels well beyond the seafarers’ sign-off dates. Regulations in the aviation sector were also, most often, inconsistent with those in the maritime sector, so that air travel, and the impediments for mariners in transit, also emerged as a major constraint.

In late September, this year, the crisis gained the recognition of the United Nations General Assembly. Flag States (i.e. nations that have registered ships) have also tried to enact measures with regard to the ships registered in their registries, but as would be expected, in the absence of uniform international standards, these measures have also been inconsistent.

It is in this regard that the International Maritime Organization (IMO), through its Maritime Safety Committee (MSC) has recognized an important reference set of protocols to ensure safe ship crew changes and travel during the Coronavirus (COVID-19) pandemic. The IMO’s detailed update on the same can be found on https://www.imo.org/en/MediaCentre/PressBriefings/pages/41-crew-change-protocols.aspx

The MSC meeting (the 102nd Session of the same) was held virtually, the first time the MSC is holding a meeting virtually, between the 4th to the 11th of September, 2020 and recognized the industry-developed protocols, which set out general measures and procedures designed to ensure that ship crew changes and travel can take place safely during the pandemic. The Protocols are contained in a previously issued circular letter which can be found on https://wwwcdn.imo.org/localresources/en/MediaCentre/HotTopics/Documents/COVID%20CL%204204%20adds/Circular%20Letter%20No.4204-Add.14%20-%20Coronavirus%20%28Covid-19%29%20-%20Recommended%20Framework%20Of%20Protocols.pdf.

According to the IMO, “currently, hundreds of thousands of seafarers are stranded on board ships, having seen their contracts extended beyond the maximum duration of service periods accepted under international treaties, i.e. less than 12 months, and a similar number of seafarers are waiting to join ships.”

Key to the new Protocols is that they “…emphasize the need for Governments to designate seafarers as key workers, providing an essential service…” and also “…include practical steps for joining and leaving ships, including the need for compliance and strict adherence with COVID-19 testing and quarantine requirements, and measures to prevent infection on board ships.” The IMO describes the Protocols as “a living document which will be updated in line with developments concerning the pandemic.” With the designation of seafarers as key workers, it is hoped that closed doors will be opened and movements, including repatriations (or bringing out fresh crew) can be hastened.

Even in normal times, travellers, and those serving them, have been aided by symbols on documents, on luggage, and at certain gateways and within passenger terminals, that smooth their passages through and it is in this regard that another aspect of the MSC meeting is the proposed development of an insignia applicable to mariners in transit. The IMO proposes that these symbols be prepared in conjunction with the working with the International Labour Organization (ILO) and the International Civil Aviation Organization (ICAO), which deals with airports and air travel. The IMO says that, “such a logo will have a longer-term benefit by guiding seafarers to services which should ultimately support better safety outcomes.”

Of course, the challenge for the IMO, is that its successes are only as good as the timeliness and effectiveness of its member States in implementation of “guidance” (or outright measures) into practice. As such, it is important for member States to review their policies and keep them in tandem with the protocols approved by the IMO.

IBC and MARPOL Annex II changes require preparations ahead of 1 January 2021

Amendments to the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code) and International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978 (MARPOL) Annex II – Carriage of noxious liquid substances in bulk, will impact all stakeholders in the chemical and Vegetable oils trade. As the amendments enter into force on 1 January 2021, BIMCO recommends that ships replace existing certificates as soon as possible, to make sure the vessels are operational come 1 January, 2021.

https://www.bimco.org//sitecore/content/bimco/home/news/cargo/20201014-ibc-and-marpol-annex-ii.aspx