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The reason cited by CAK is that the device will help in combating illegal devices. The question is whether the said reason is a limitation that is reasonably justifiable in a democratic society. But if human rights do not bow lightly to public concerns, they may be sacrificed if countervailing societal interests are important enough, in particular circumstances, for limited times and purposes, to the extent strictly necessary.

In this regard, the above question should be answered with reference to the standards of review laid down by courts when the validity of a statute is challenged which include two main standards This is the standard that applies to all legislation under the rule of law;. Do the beneficial effects of the limitation on the right outweigh the deleterious effects of the limitation; in short, is there a fair balance between the public interest and the private right?

The first criterion concerned the importance of the objective of the law. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. They must not be arbitrary, unfair or based on irrational considerations.

In short, they must be rationally connected to the objective. When employing the language of proportionality the High Court would ask whether the end could be pursued by less drastic means, and it has been particularly sensitive to laws that impose adverse consequences unrelated to their object, such as the infringement of basic common law rights. This kind of test resembles those employed in European Union law and in Canada.

There are laws governing importation of goods. There are laws governing counterfeit goods. The Kenya Bureau of Standards monitors standards. We have the Kenya Revenue Authority. We have the National Police Service. All the points of entry are manned. These laws and the institutions they create have not been shown to be insufficient. It is also admitted that in the past 1. This can be used to effectively combat the illegal devices by denying them access as was successfully done in the past. All these are lawful and less restrictive means.

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There is no argument before me to demonstrate that the DMS fits any of the circumstances contemplated under the said section. There is nothing to demonstrate that DMS falls within the said provision. Further, for the DMS system to pass the Article 24 analysis test, the decision introducing it must be lawful.

In the next issue I will discuss whether decision was adopted in a manner consistent with the law. I will address this issue later. For now, it suffices o state that the mandate of combating illegal devices does not fall within the statutory mandate of CAK. As demonstrated above, there are other statutory bodies mandated to combat counterfeits, to ensure standards and curb their importation into the country which are all less restrictive means.

In my view, the conclusion becomes irresistible that the DMS system does to satisfy Article 24 analysis test. The Anti-Counterfeit Act [36] is an Act of Parliament to prohibit trade in counterfeit goods, to establish the Anti-Counterfeit Agency, and for connected purposes. Section 3 of the Act establishes the Anti-Counterfeit Agency whose functions are stipulated under section 5 thereof being to enlighten and inform the public on matters relating to counterfeiting; combat counterfeiting, trade and other dealings in counterfeit goods in Kenya in accordance with the Act; devise and promote training programmes on combating counterfeiting; co-ordinate with national, regional or international organizations involved in combating counterfeiting; carry out any other functions prescribed for it under any of the provisions of the Act or under any other written law; and perform any other duty that may directly or indirectly contribute to the attainment of the foregoing.

These include Promoting standardization in industry and commerce, Providing facilities for examination and testing commodities manufactured in Kenya, Test goods destined for exports for purposes of certification, Prepare, frame or amend specification and codes of practice. From the above provisions, it is clear the mandate of combating counterfeit goods is vested in the Anti-Counterfeit Agency and not the CAK. The mandate of promoting standardization is vested to the KBS. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution.

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a lack of a proven track record, it"s something phone spy kenya keeping our eyes on. Track a Cell Phone Using GPS The Global Positioning System GPS. Obrien complied, by e-mailing district network technician perbix, and directing him to initiate mobile phone number tracking in kenya thefttrack.

It follows that for the impugned decisions to be allowed to stand, it must be demonstrated that the decision is grounded on law. As such, the Respondents actions must conform to the doctrine of legality. Put differently, a failure to exercise that power where the exigencies of a particular case require it, would amount to undermining the legality principle which, is inextricably linked to the rule of law.

Public power. Courts are similarly constrained by the doctrine of legality, i.

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In this regard, the Respondent is constrained by that doctrine The respondent has not only a statutory duty but also a moral duty to uphold the law and to see to due compliance with the law and Regulations It is my view combating counterfeit goods is a function of the Anti-Counterfeit Agency. The KBS examines the standards. Thus, CAK purporting to perform the functions clearly vested by the law to other statutory bodies which actions are not expressly provided for under its enabling statute is ultra vires its functions.

Had Parliament intended that to be the case, it could have done so in clear terms. In any event the Regulations cannot override the egress provisions of a statute. To buttress his argument on absence of public participation, he cited Law Society of Kenya vs A.

Also, he argued that that public participation is an indispensable ingredient and that Section 23 requires CAK to have regard to the values and principles of the constitution. Counsel for the first Respondent did not identify the question of public participation as an issue in his submissions even though it was raised substantively by counsel for the third Respondent who supported the Petition. He also submitted that consultations are ongoing. However, the Replying Affidavit by the third Respondent paints a picture of in adequate consultations.

She avers that a decision made to implement the DMS system before the negotiations were concluded. Further, it also averred that the public were not engaged and that there were pending issues which were never addressed. It is also an established jurisprudence that any decision to exclude or limit fundamental participatory rights must be proportionate in order to be lawful. Differently put, what was the threshold for public participation which would have been appropriate for this exercise? What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say.

What amounts to a reasonable opportunity will depend on the circumstances of each case. In the Mui Basin Case [47] a three-judge bench of the High Court after an in depth consideration of the relevant case law, international law and comparative jurisprudence on public participation culled the following practical elements or principles which both the Court and public agencies can utilize to gauge whether the obligation to facilitate public participation has been reached in a given case It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance.

Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not. The only test the Courts use is one of effectiveness. A variety of mechanisms may be used to achieve public participation. In relevant portion, the Court stated:. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs.

A public participation programme, must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.

However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme.

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The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box. The first is the duty to provide meaningful opportunities for public participation in the process. The second is the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided. The question will be whether what has been done is reasonable in all the circumstances.

Article 10 expressly provides that public participation is one of the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. It follows, therefore, that all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions must adhere to Article 10 of the Constitution.

In order to justify their exclusion in matters falling under Article 10 , the burden is indeed heavy on the person desiring to do so considering that Article 10 is one of the provisions protected under Article of the Constitution whose amendment can only be achieved by way of a referendum. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands.

In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision. The above Constitutional and statutory provisions and the cited jurisprudence interpreting the said provisions are all in agreement that public participation must apply to policy decisions affecting the public though the degree and form of such participation will depend on the peculiar circumstances of the case.

In the case at hand, millions of subscribers and the general public whose records are held by the Mobile Network Owners were not involved in the consultations at all. Pertinent issues were raised by the third, fourth and fifth Respondents touching on the privacy and security of their information.

The said issues were never addressed at all nor were the millions of subscribers involved in the consultations. The first Respondent admits that consultations were still ongoing and alludes that this Petition was filed pre-maturely. The nature and the degree of public participation that is reasonable in a given case will depend on a number of factors. These include the nature and the importance of the policy or decision, and the intensity of its impact on the public.

Thus, the process must be subjected to adequate public participation wide enough to cover a reasonably high percentage of affected population in the country. The more discrete and identifiable the potentially affected section of the population, and the more intense the possible effect on their interests, the more reasonable it would be to expect CAK to be astute to ensure that the potentially affected section of the population is given a reasonable opportunity to have a say.

Article 47 of the Constitution provides that every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Section 4 3 of the Act provides the broad parameters which bodies undertaking administrative action have to adhere. Kilonzo, the Court of Appeal held that 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.

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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. South African Rugby Football Union and Others [62] where it was held as follows with regard to similar provisions on just administrative action in Section 33 of the South African Constitution 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. O nce it has been established that a statutory body has made its decision within its jurisdiction following all the statutory procedures, unless the decision is shown to be so unreasonable that it defies logic, the court cannot intervene to quash such a decision or to issue an order prohibiting its implementation since a judicial review court does not function as an appellate court.

Besides, the purpose of judicial review is to prevent statutory bodies from injuring the rights of citizens by either abusing their powers in the execution of their statutory duties and functions or acting outside of their jurisdiction. Section 7 2 of the Fair Administrative Action Act [63] provides for grounds of review which include bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse or discretion, unreasonableness, violation of legitimate expectation or abuse of power. Every act of the state or public bodies must pass the constitutional test.

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Put differently, it must conform to the principal of legality. A contextual interpretation of the impugned decision, therefore, must be sufficiently clear to accord with the rule of law. To this end, the section entitles persons affected by any administrative action to be supplied with information necessary to facilitate their application for appeal or review.

The decision affects the subscribers and the public generally, that the subscribers and the general public were never involved at all nor where they supplied with reasons for the decision, hence it is my conclusion that CAK violated the provisions of Article 47 and the Fair Administrative Action Act.

He argued that consumer issues enumerated at paragraph 48 of his submissions have never been addressed. Article 46 1 of the Constitution provides that consumers have the right to the protection of their right, safety, and economic interests. Article 46 3 provides that the Article applies to goods and services offered by the public entities or private persons. Hence decisions from South Africa Courts on the subject may offer useful guidance. The long title of the Act provides that it is "An Act of Parliament to provide for the protection of the consumer prevent unfair trade practices in consumer transactions and to provide for matters connected with and incidental thereto.

It reads Section 4 provides that the the purposes of the Act are to promote and advance the social and economic welfare of consumers in Kenya. From the definition in section 2 of the Act and the Preamble and purpose of the Act, it is clear that the whole tenor of the Act is to protect consumers. The Act must therefore be interpreted keeping in mind that its focus is the protection of consumers. Consumer rights litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke.

It is a process in which litigants and the courts assert the growing power of the expanded Bill of Rights in our transformative and progressive Constitution by establishing its meaning through contested cases. This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose.

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All relevant provisions are to be considered as a whole and, where rights and freedoms are conferred on persons, derogations there from, as far as the language permits, should be narrowly or strictly construed. In peremptory terms, the constitution imposes an obligation on all courts to promote?

In this no court has a discretion. The duty applies to the interpretation of all legislation and whenever a court embarks on the exercise of developing the common law or customary law. The initial question is not whether interpreting legislation through the prism of the Bill of Rights will bring about a different result.

A court is simply obliged to deal with the legislation it has to interpret in a manner that promotes the spirit, purport and objects of the Bill of Rights. The same applies to the development of the common law or customary law. In line with the dictates of the constitution, this court will reject the narrow, literal reading of the above provisions and opt for a construction that promotes wider access to protection of consumer rights. First, the consumers were never involved in the discussions, hence, they were never provided with information on the device.

What is the appropriate order regarding costs? I have in numerous decisions addressed the subject of costs in public interest litigation, [85] and I can do no better than repeat myself here. Discussing costs as a barrier to Public Interest Litigation, I am reminded of the phrase " Justice is open to all, like the Ritz Hotel " [86] attributed to a 19 th Century jurist.

Costs have been identified as the single biggest barrier to public interest litigation in many countries. For all potential litigants, the risk of exposure to an adverse costs order is a critical consideration in deciding whether to proceed with litigation. Should the fear of costs prevent an issue of public importance and interest from being heard? There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs.

The ultimate goal is to do that which is just having regard to the facts and circumstances of the case. Sachs J , set out three reasons for the departure from the traditional principle Constitutional litigation frequently goes through many courts and the costs involved can be high. Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences.

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Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse. Secondly , constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations. Indeed, each constitutional case that is heard enriches the general body of constitutional jurisprudence and adds texture to what it means to be living in a constitutional democracy.

Thirdly , it is the state that bears primary responsibility for ensuring that both the law and state conduct are consistent with the Constitution. If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of state conduct, it is appropriate that the state should bear the costs if the challenge is good, but if it is not, then the losing non-state litigant should be shielded from the costs consequences of failure.

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