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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 64 of 2012

Republic v Interim Independent Boundaries Review Commission & 9 others; County Government of Mandera & another (Interested Parties); Exparte Minister of State for Planning National Development and Vision 2030 & another [2016] KECA 581 (KLR)

Court of Appeal of Kenya
13 May 2016
8,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled ministers cannot cancel published census results, but population projections can still be lawfully used for planning purposes.

What this practically means

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Executive summary

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This appeal arose from judicial review proceedings brought by registered voters and residents of eight districts (Lagdera, Mandera East, Mandera Central, Mandera West, Wajir East, Turkana North, Turkana South and Turkana Central) challenging the Minister of State for Planning's announcement on 31st August 2010 cancelling the 2009 Population and Housing Census results for those districts. The High Court (Warsame J) granted certiorari quashing the cancellation and orders of prohibition restraining the Minister and the Director of the Kenya National Bureau of Statistics from publishing or circulating projected results, and restraining the Interim Independent Boundaries Review Commission from using any data other than the enumerated 2009 results in boundary delimitation. On appeal, the Minister and the Bureau conceded the lack of power to cancel published census results and did not challenge the certiorari order. The Court of Appeal, in a judgment of the whole five-judge bench, applied the Kenya National Examinations Council case on the efficacy of prohibition, holding that prohibition cannot undo an existing decision. It upheld the prohibition against the boundaries commission, since Article 89 of the Constitution requires enumerated results for delimitation. However, it held the blanket prohibition on publishing projected figures was wrong: population projection is a lawful, internationally accepted exercise crucial for planning and resource allocation, and the Article 89 requirements bind only the boundaries commission. The appeal was allowed to the extent of setting aside the wider prohibition order; each party was ordered to bear its own costs. The judgment binds lower courts on the distinction between enumerated and projected population data and on the limits of prohibition as a remedy.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court judge was right to issue orders of prohibition restraining the 1st and 2nd appellants from publishing, gazetting or circulating projected census results for the eight districts
  2. 2.Whether the order of prohibition restraining dissemination of projected figures to all organs of Government and other bodies was warranted, given the different purposes for which population data is used
  3. 3.Whether population projection by the 2nd appellant was lawful and within its statutory mandate
  4. 4.Whether the order of prohibition against the 1st respondent (IIBRC) using anything other than the enumerated 2009 census results in boundary delimitation was proper

Key legal issues

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01

Power of the Minister to cancel published census results

Holding

The Minister had no statutory power under sections 17 or 23 of the Statistics Act to cancel the results of the eight districts after publication; the cancellation was ultra vires. The appellants did not challenge the certiorari quashing that decision.

Reasoning

The court examined the Statistics Act and found no provision donating power to the Minister to cancel census results once published. The High Court's certiorari order quashing the cancellation stood unchallenged, amounting to a concession that the Minister acted without jurisdiction. The court therefore treated the enumerated 2009 results as the official results.

p. 6
02

Scope and efficacy of an order of prohibition

Holding

Prohibition lies against proceedings in excess of jurisdiction but cannot invalidate a decision already made; here it could properly restrain the use of non-enumerated data by the boundaries commission but was wrongly issued as a blanket ban on dissemination of projected figures generally.

Reasoning

Adopting the Kenya National Examinations Council case, the court explained that prohibition can only prevent the making of a decision, not undo one already made. The order against the 1st respondent was proper because the Constitution obliges use of enumerated results in boundary delimitation. But the wider order, restraining publication of projected results to all organs of Government, was not addressed by the High Court judge and ignored the many legitimate uses of population data.

p. 6
03

Distinction between enumerated, estimated and projected population figures

Holding

Enumerated results derive from actual counting meeting the essential features of a census, while projections are estimates of future population; the Constitution requires enumerated results only for boundary delimitation, not for planning purposes.

Reasoning

Relying on the UN Principles and Recommendations and the US Census Bureau definitions, the court distinguished enumeration from projection. Projected figures cannot be used by the boundaries commission, but population projection is a worldwide accepted exercise crucial for policy-making, planning and resource allocation by government and research bodies.

p. 9
04

Legality of population projection by the Bureau of Statistics

Holding

The projection exercise was lawful, within the 2nd appellant's powers and not an abuse of discretion; the blanket prohibition made it impossible for the Bureau to provide crucial data to government and researchers.

Reasoning

The court held that population projections serve policymaking, planning and resource allocation and are accepted worldwide. The High Court's blanket order denying such data to organs of Government and research institutions was wrong; the constitutional requirements of Article 89 bind only the boundaries commission in delimitation.

p. 10

Legal principles established

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  • An order of prohibition cannot undo a decision already made; it can only prevent the making of a decision, and lies for excess or absence of jurisdiction and departure from the rules of natural justice.
  • The constitutional requirement to use enumerated census results and the population quota applies specifically to the boundaries commission in delimiting electoral boundaries and cannot be extended to prevent other organs of Government from using projected figures for planning.
  • Administrative action must first rest on authority or jurisdiction; where the actor lacks statutory power the action is ultra vires irrespective of its reasonableness.
  • Population projection is a lawful, internationally accepted exercise crucial to government policy-making, planning and resource allocation, and does not amount to an abuse of discretion by the Bureau of Statistics.

Court orders

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  1. 1.Appeal allowed to the extent of setting aside the order prohibiting the 1st and 2nd respondents from publishing, issuing, or gazetting projected results of the eight districts, or from circulating to any other organ of the Government, Constitutional Commission, offices or non-governmental organizations, any other figures other than the published 2009 Population and Housing Census Results
  2. 2.The order of prohibition restraining the 1st respondent from using any data other than the published 2009 census results in boundary review/delimitation remains undisturbed (not challenged on appeal)
  3. 3.Each party shall bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

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On appeal from
High Court of Kenya at Nairobi
HC (JR) Misc Civil App No. 309 of 2010
Jurisdiction invoked
First appeal/judicial review appeal under the Court of Appeal's appellate jurisdiction; leave granted under Order 53 of the Civil Procedure Rules in the proceedings below

Relief refused

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Setting aside the order of prohibition against the 1st respondent from using census data other than the published 2009 results in boundary determination

That order was proper as the Constitution requires enumerated results for boundary delimitation, and the appellants did not challenge it

p. 9

Dismissal of the respondents' judicial review application in its entirety

The certiorari quashing the Minister's cancellation of census results was unchallenged and conceded on appeal

p. 6

Costs

Each party shall bear its own costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The point we are making is that an order of prohibition is powerless against a decision, which has already been made before such an order is issued. Such an order can only prevent the making of a decision.
p. 6Scope of an order of prohibition
Anybody or person taking administrative action must in the first place have the authority or jurisdiction to take such action.
p. 5Requirement of jurisdiction for administrative action
Thus enumerated results are not the same as projected results, the latter are a projection of the expected future population.
p. 9Distinction between enumerated and projected census figures
The requirements could not be extended to other organs of Government or Constitutional Commissions or other organizations, nor justify preventing the Government and other bodies from using projected figures in appropriate circumstances.
p. 10Limit of Article 89 population quota requirements
Accordingly we allow the appeal to the extent of setting aside the order prohibiting the 1st and 2nd respondents from publishing, issuing, or gazetting projected results of Lagdera, Mandera East, Mandera Central, Mandera West, Wajir East, Turkana North, Turkana South and Turkana Central districts, or from circulating to any other organ of the Government, Constitutional Commission, offices or non-governmental organizations, any other figures other than the published 2009 population and Housing Census Results.
p. 10Final orders - disposition
We order that each party shall bear its own costs of the appeal.
p. 10Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Interim Independent Boundaries Review Commission & 9 others; County Government of Mandera & another (Interested Parties); Exparte Minister of State for Planning National Development and Vision 2030 & another [2016] KECA 581 (KLR)", Case Analysis (2016). Civil Appeal No. 64 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/581/eng@2016-05-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.