Tuesday, 7 June 2022

LIFTING THE VEIL OF INCORPORATION


There are two areas that allow a company’s veil of incorporation to be lifted thus exposing the members to liability.

These can be found in Common Law and in Statute

At Common Law

Illegality

At common law, if a company engaged in an illegal business e.g. terrorism, the Courts have held that the veil could be lifted, This is now codified in a number of statutes such as the Anti Money Laundering and Proceeds of Crime Act, Environmental Management Act, Tax procedure Act.


Where Company is acting as an agent of members

This instance can be described by the case of Daimler Co -vs- Continental Tyres – German Co. In this case, a company was incorporated in England to sell tires made in Germany by a German company. The shareholders were all German except one who was born in Germany and had become a naturalized British citizen. 

After the outbreak of the first world war between England and Germany, continental tire being the German company did not pay any amount claiming that it would amount to trading with an enemy nation thus violating trading with enemy act 1914. The secretary initiated an action against the same. The same was adjudged in favor of the German company meaning that the company had an enemy character. The secretary approached the house of lords against the decision of the court of appeal.

The house of lords allowed the appeal and held that though the company is a separate artificial person from its shareholders when the shareholders or the agents who are having the control of the company are from the enemy country, then the company will assume an enemy character and not otherwise. 

The court thought that the character of individual shareholders cannot affect the character of the company when everything is at peace or when it is not wartime, but when it is wartime, the agents or anyone who is taking instructions from such shareholders who is from an enemy country is important to consider to determine the character of the company as a whole. The court very strongly held that in this case, it is presumed that the company had enemy character, being the secretary holding just 1 share out of 25000 shares who is from England and the rest being from Germany, the court held that the onus is one the company to prove that the secretary was not taking orders from other shareholders from an enemy country. 

The Ratio decidendi, in this case, is that the Court established that the action and character of the shareholders can influence the actions of that particular company and the company can acquire enemy character because if the shareholders who are from the enemy country take decisions for the company[1].

Further reference can be found in the case of Firestone Tires Co -vs- Llewellyn.

Improper conduct/Fraud

A company’s veil may be lifted due to improper or fraudulent conduct. In the case of Jones -vs- Lippman Jones agreed to sell land to Lippman. He changed his mind. He thereafter formed a company and transferred the land to the company in a bid to avoid the sale. 

The Company refused to transfer the land to Lippman. The matter went before the Court for specific performance, the Court, in ordering specific performance ruled that: “the defendant company is the creature of the first defendant, a device and a sham, a mask which he holds before his face in an attempt to avoid recognition by the eye of equity.”

Another instance where a Company was used as a sham is to be found in the case of Gilford Motors Company -vs- Horne.

For the protection of revenue

For tax purposes and for purposes of discharging various tax burdens a Company’s veil may be lifted to prevent tax evasion.


By way of Statute

 

A company’s veil will be lifted if it is trading in a name other than its registered name

 

A company’s veil can be lifted if the Company failed to publish names as prescribed /required by Act.

 

For purpose of group accounts, group of company, the Act requires each of the members be dissolved and accounts done separately before the group.

 

Investigating membership- a company’s veil may be lifted by the state when undertaking investigations and inspections under the Companies Act. This can also appear in the investigations of affairs of the company by the registrar of Companies or the Court. If the registrar has reason to believe the company is being used for improper use. The veil may lifted for investigation

 

Failure to file relevant tax returns;

 

A company’s veil may be lifted during takeovers and mergers where approvals are required- who are the significant shareholders as the Competition Authority considers this.

 

The veil of a company may be lifted during Dissolution/consolidation, especially where part of issued share capital has not been paid up.


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ATTRIBUTES OF A CORPORATE ENTITY


1)     DISTINCT PERSONALITY

When a company is registered, it comes into being as a separate/distinct legal entity.

 

Read the case of Salomon -vs- Salomon on what a separate legal entity entails. In summary, the crux of the case was that, as a creditor to the company, Salomon could recover during liquidation, contrary to the argument by the unsecured creditors.

 

In the case of Lee -vs- Lee Air Farming Ltd, Lee was the principal shareholder of the company but the wife could recover on behalf of the estate. Why?

 

When individuals become members of a company, they agree to let a separate legal entity carry on business. It is also difficult to contribute capital if the company and the individual are the same.

 

Part IV, S34, and 35 of the Companies Act dictate that Contracts can only be executed by directors or authorized persons. This is a fundamental Principle fundamental but it is frequently challenged in the event of one-member companies. In that scenario, there exist doubts as to whether in fact there is a distinction between the one party and the company, that notwithstanding, they are different

 

Every shareholder despite the number of shares held is in law separate and distinct from the company. It is thus not automatic that a shareholder can bind the company in a contract or other obligations, obligations arise if the contract is executed by a director or any other authorized person.

 

Even though directors have powers, they can only act within their powers (where powers of directors are not provided, then the decision of the majority of directors carries the day). A Director who enters into a contract/obligation in excess of his/her powers will be personally liable.

 

2. Perpetual Succession

A Company once registered is deemed to have perpetual succession. Perpetual succession does not mean a company lives forever. It means the life of a company is not dependent on the timeline of its members. Hence, the company will have perpetual succession even when it is time-bound

The interest of members limited to

a)         Share Capital

b)         Amount guaranteed for company ltd by guarantee

c)         Any other agreement as per memorandum

 

A company has perpetual succession even where it has an expressly provided term e.g. 25 yrs.

A company therefore can only be dissolved/liquidated in the manner provided for in the statute.

Of importance is to ensure that the life of the company continues despite whatever happens to its members.

 

3.         Limited Liability.

A company’s liability may be limited:

By shares- the amount of subscribed and issued shares.

By Guarantee- the amount stated in the memorandum having been guaranteed by the members.

 

4.         Capacity to enter into a contract

 

A Company has the capacity to enter into contracts and be bound by obligations thereto. An outsider is not necessarily required to inquire into the internal affairs of the company.

 

A Person dealing company in good faith has no duty to enquire into the powers of a director. However, this only applies if a person can prove it is done in good faith. In compliance with any applicable laws such as procurement and tax laws. Good faith also means that one must act within reason.

In some instances (S.35) A director can be personally liable for obligations accrued while acting ultra vires.

 

Pre-Incorporation Contracts S44

At contract law, pre-incorporation contracts (entered into on behalf of or for benefit of the company by promoters before a company is registered) did not bind companies.

 

Under Cap 486, the repealed Companies Act, the law treated pre-incorporation on contract as non-existent. Directors couldn’t ratify such contracts. The only option available was to enter into new contracts with similar terms.

 

However, under the 2015 Act (S.44) members can ratify and continue with the pre-incorporation contract obligations. These contracts are now recognized and can be ratified and continued with. However, there is no obligation to do this. The ratification is not automatic but must be done formally.

Subsequent to the ratification, if there was a breach before the company came into being, the promoters will be liable.


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CORPORATE GOVERNANCE : COMPANIES

   

This is governed by the Companies Act 2015 and its subsequent amendments.

 

Why do people form Companies?

 

(a)    Enable owners to limit their liability-Liability is limited to the Share capital contributed or the amount guaranteed in case of insolvency

 

(b)   Perpetual Succession- it is not affected by the existence of its members and can therefore exist forever. For example, the IBEA Company still exists 200 years after it was formed

 

(c)    Company structure –The members need not be engaged in day/day activities. Managers must act in the best interests of members as members will check them. Members cannot make decisions for individual gains but rather benefit the entire company. It allows members to employ expert managers

 

(d)   A Company potentially has a wider source of capital. A large number of shareholders subscribe to the capital unlike the situation in sole proprietorship and partnership

 

(e)    Transferability of shares especially in public companies

Disadvantages

(a)    Registration and compliance involve a substantial amount of time and effort. Especially in filing tax returns.

 

(b)   Management and control complex than any other form of business association.

 

(c)    Inefficient- Adequate Notice has to be given. Anything done by the directors should be subject to consultation between them and the shareholders.

 

(d)   Agency Problem arises- At times, tension may arise between members and directors. The members may feel and think directors are not performing well in the management of the Company.

 

(e)    Frequent tax filing obligations.

 

Who is a member of a company?

 

These are the persons that have subscribed to the share capital of the company, they have subscribed to the Articles of the company and/or given a guarantee. A member can also be any other person who the Articles provides is a member

 

A stakeholder of a company is any person whose well-being will be affected by the well-being of co-members, directors, employees, suppliers, contractors, government

 

The Companies Act defines a beneficial owner as “the natural person who ultimately owns or controls a legal person or arrangements or a natural person on whose behalf transactions are conducted, and include persons who exercise ultimate effective control over a legal person or arrangement.”

 

Under the Companies Regulations, a beneficial owner is a natural person who directly or indirectly:

 

a.      holds at least ten percent (10%) of the issued shares of the company;

b.     exercises at least ten percent (10%) of the voting rights in the company;

c.      holds the right to appoint or remove a director of a company; or exercises significant influence or control over a company.

·        A Shareholder is a person who has subscribed to the share capital of the company

Types of Companies:

·        Private Companies (Private Limited)

This is a company whose articles provide that the members of the public cannot subscribe to the share capital.  

 

·        Public Companies

This is a company whose membership is open to members of the public. Members of the public can subscribe to the share capital. Its Certificate of incorporation provides it is a public limited company. There is also no limit as to the capacity of members.

 

·        Unlimited Company

 

In this type of company, there is no limit on what members will contribute during insolvency. There is no limit on the liability of members and the Certificate of incorporation states the liability of members is unlimited.

 

·        Limited Liability Company

This is a company whose liability is limited to shares subscribed.

 

·        Company Limited by guarantee

This is a company whose liability is guaranteed by the members of the company vide legal instruments

 

·        Foreign Companies

According to Section 974 of the Companies Act, it is mandatory for all foreign companies carrying on business in Kenya to be registered. Carrying on business does not include buying shares. Anything that involves the provision of goods and services for monetary consideration.

 

Consequences of Registration

Companies Act reaffirms the principle under Salomon -vs- Salomon. That a company is a separate legal entity, with perpetual succession and be sued, own property, enter contracts in its name and all other juridical persons are allowed to do.


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Tuesday, 26 January 2021

NOTICE OF NEW WEBSITE AND LAUNCH OF PODCAST - QUINCY ON THE LAW

Dear esteemed readers and followers.

It is with great delight that I address you for the first time in 2022.

After much deliberation and thought, we at Niccolaw have decided to maintain this blog site due to its utility. 

We, therefore, revoke the earlier notice of revocation.

Further, we have launched our second website which is referenced as Niccolaw. The website shall operate hand in hand with this one.

We have equally launched a podcast that offers law bytes, legal tips, commentary and marginal legal advise on Kenyan, Regional and International law. 



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Much gratitude,

QUINCY JESSE KIPTOO AG.

Monday, 25 May 2020

URGENT NEED FOR CONSTITUTIONAL SCREENING OF ALL LAWS OF KENYA



By Levi Munyeri[1]

Introduction
The promulgation of our Constitution on 27th August 2010 sent shockwaves through the laws of Kenya. The framers of the supreme law were weary of legislations that were repugnant to an ideal constitutional order and the basic tenets of justice. Among the core reasons for the constitutional change was the dire need to purify our laws from colonial relics and retrogressive provisions that previous regimes had enacted to achieve unjust ends.

Arguably, the greatest betrayal of the Constitution lies in the fact that Parliament has failed to perform its function of repealing legal provisions that are irreconcilable with the letter and spirit of the Constitution. This inaction has stood out as a grave threat to the constitutional order and administration of justice. The Courts continue to grapple with multiple petitions challenging the constitutionality of laws that are patently unconstitutional. More alarming is that these repugnant laws remain in circulation and enforcement inform the daily decisions of our Courts.

This article thus discusses the constitutionality of our laws and explores paths to identification, repeal and replacement of laws that do not meet the Constitutional threshold.

Colonial and oppressive origins of Kenyan laws
The Kenyan legal system borrowed heavily from English Common Law that we inherited from our former colonial masters. Over the years, English laws have substantially evolved to serve the changing societal needs of the English people. Ironically, in Kenya we have unreasonably retained some colonial English laws despite the changes in our society’s jurisprudential needs.[2] Historically, most of these colonial laws were discriminatorily enacted to oppress Africans and make colonial advances. It is baffling how colonial ordinances have survived in our law books more than five decades after we achieved independence.

The Supremacy of the Constitution
Any law, including customary law, that is inconsistent with the Constitution is void to the extent of its inconsistency, and any act or omission in contravention with the Constitution is invalid.[3] The provision bestows upon the Constitution its resentful instincts towards any legislation that dilutes its spirit.

Original powers to safeguard the supremacy of the Constitution are vested on the High Court. It has original jurisdiction to hear any questions on the interpretation of the Constitution including whether any law is inconsistent with or in contravention of the Constitution.[4]

Since 2010 the Courts have declared sections of more than sixty pieces of legislation as conflicting with the Constitution and hence unconstitutional.[5] These numbers are a clear indication that a significant parts of our legislation are wallowing in unconstitutionality.[6]
Constitutional interpretation is not an exclusive reserve of the Judiciary. All the three arms of the government are obliged to perform their duties within the confines of the Constitution.

Presumption of constitutionality of statutes
The Courts presume that all statutes enacted by parliament are constitutional unless they clearly offend the Constitution. This presumption can be rebutted by petitioning the High Court for a declaration that an entire statute or part of it is unconstitutional.

The Constitution also enshrines a quasi-political path to getting rid of unconstitutional laws. It gives people the right to petition Parliament to enact, amend or repeal any legislation.[7] Unfortunately there is no constitutional reprieve if Parliament chooses to frustrate such a petition.

Impact on the Doctrine of Separation of Powers
Separation of powers is anchored in our Constitution as an inseparable kin to democracy intended to diffuse power from a central organ to the different arms of government.[8] Article 1(3) delegates sovereign powers of the people to the Executive, Legislature and the Judiciary. The might of the Legislature reside in its law making function while the Judiciary is the custodian and interpreter of laws.

Conflict in the interpretation of this doctrine arises when Courts void the law making function of Parliament by annulling legislations. Whilst the powers of Courts to annul legislations are expressly captured in the Constitution, it is doubtful whether Courts can rightfully intrude into an ongoing law making process and halt it for disregarding the law.

Litigants who pursue orders seeking the interference with a legislative process are, more often than not, met by a cautious Court that is reluctant to intrude into the sphere of parliament.[9] Courts can only entertain challenges to the constitutionality of laws after their enactment. A downside of adherence to this aspect of separation of powers is that it persons watching helplessly as an arrogant parliament wastes time and resources to enact laws that are obviously unconstitutional.[10] Disgruntled persons only rush to Court in protest after the law has taken effect.

Jurisdictional setbacks in nullifying laws
The presence of potentially unconstitutional provisions in our legislations leaves magistrates in a dilemma when they encounter these provisions. The Magistrate’s Courts are embarrassed by these legislations especially when they constitute the very basis of a cause of action or defence. Should a magistrate disregard the Constitution and rely on a patently unconstitutional provision to enter a verdict? They may be compelled to do so for want of jurisdiction to interrogate the constitutionality of laws.
  
Even at the High Court, it is still unclear whether there must be a petition directly challenging the Constitutionality of a law for the Court to make a declaration of   unconstitutionality. Some Courts have invalidated laws in instances where there is no specific prayer in the petition seeking a declaration of unconstitutionality.

Semantics of declaring a law unconstitutional
The words that a Court should use to declare a law unconstitutional is also unsettled. The Court of Appeal in Moses Kasaine Lenolkulal -vs- Republic [2019] eKLR asserted that the mere remarks of the High Court that a provision of a legislation stood against the intent and purport behind the leadership and integrity provisions of the Constitution did not suffice as a declaration of unconstitutionality of that provision. This decision emphasized that the judicial exercise of declaring laws unconstitutional is one of far reaching consequences that must be clear and unequivocal.
The apprehensive approach that Courts have taken in deciding unconstitutionality of legislations has resulted in inconsistency and agitation. Constitutional screening of all our laws will relieve Courts of this burden that has resulted in divergent verdicts.

Need to repeal entire legislations
For some legislation, their very intent renders them unconstitutional. Some of them were enacted during colonialism and have long outlived their colonial purposes. Among them is the Witchcraft Act of 1925 that is still law yet the sole reason of its enactment was to outlaw African practices that colonialists considered uncivilized.[11]

Courts have declared entire legislations as unconstitutional when it is apparent that their very purpose threatens the Constitution. This was the fate of the Contempt of Court Act which was declared unconstitutional in its entirety for encroaching on the independence of the judiciary and lack of public participation.[12] The long title of the Act states the purpose of the legislation: to define and limit the powers of Courts to punish for contempt of Court. It openly exposed the unconstitutional goals of the legislation.

Attempts to sanitize these outdated legislations through amendments have been ineffective. They are incurably unconstitutional and no amendment can sanctify them before the eyes of the Constitution.

The colonial Penal Code
The Penal Code is a crucial legislation that squarely falls under the category of archaic legislations.[13] It deserves specific attention because of its bearing to liberties of suspects and accused persons. Any error in the Penal code result can trigger a travesty of justice and wrongfully convict an innocent person to jail.

It is a colonial legislation with a commencement date of 1st August 1930. Despite the many amendments that it has faced, the legislation continues to reek of colonialism.[14]
Do we lack jurists and legal scholars with the competency of drafting a revamped Penal Code that respects and honors the Constitution? This legislation has bizarre offences that can never pass the Constitutional test. For instance, under section 40, imagining a president dead constitutes the offence of treason that is punishable by death. More bewildering is that defamation of foreign princes is a misdemeanor offence.[15] Criminal defamation is still stuck in the Penal Code even after the High Court in Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR declared it unconstitutional.[16]

It is immaterial that some of these archaic laws are hardly invoked. Their very existence in 
our laws books embarrasses the Constitution.

In a number of instances, the language of the Penal Code falls short of the precision and clarity that is mandatory for criminal offences. This shortcoming is a hindrance to the successful prosecution of criminal cases as any ambiguity in a penal law is interpreted in favour of the Accused person.[17]

For us to claim maturity of our criminal justice system, we need to repeal the Penal Code and replace it with one that reflects the jurisprudential gains in criminal law, both nationally and internationally.

Ongoing enactment of unconstitutional laws
It is expected that legislations enacted in post-2010 should comfortably meet the Constitutional threshold. This is not the case as Parliament continues to enact legislations that are marred with unconstitutional clauses. This raises the suspicion of Parliament intentionally enacting of unconstitutional laws. The legislative arm has sufficient counsel on the constitutionality of bills tabled before it. In fact, a significant number of parliamentarians are reputable lawyers with impressive constitutional backgrounds.

Constitutions without Constitutionalism! Those words were eloquently observed by the celebrated Kenyan Jurist - Professor Okoth-Ogendo, he posited that a nation can have the most progressive Constitution but lack goodwill to implement it towards the achievement of a good constitutional order.[18] Whereas we enacted an ideal Constitution in 2010, Parliament and the Executive are still stuck in the old constitutional dispensation when laws were enacted with ulterior motives that are anti-human rights and good governance.

In the Kenyan history of multiparty democracy, no Parliament has relinquished its independence and surrendered it to a manipulative Executive like the current 12th Parliament.[19] It has become an appendage of the executive that commands it to legislate as it pleases. Bills are no longer subjected to thorough debates to sieve undesirable provisions as it were the norm in previous Parliaments. Parliament is now a mere rubberstamp of the tyrannical will of the Executive that cares less about constitutionality of legislation.

The role of the Kenya Law Reform Commission
The Kenya Law Reform Commission is established under the Kenya Law Reform Commission Act.[20] The core mandate of the Commission is to keep under review all laws of Kenya to ensure their systematic development and reform, including the integration, unification and codification of the law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments and generally its simplification and modernization.[21]

The commission has made some progress in the fulfillment of this mandate. However, the pace of law reforms is too sluggish to revolutionize our justice system and satisfy the high constitutional expectations.

To further hinder constitutional implementation, Parliament has defied the Fifth Schedule of the Constitution.[22] Glaring cavities remain in implementation of the Constitution because some key legislation that were to be enacted to give it full effect remain non-existent long after the Constitutional timelines lapsed. The constitutionally prescribed consequence for this omission is dissolution of Parliament [23]. All efforts to compel Parliament to enact these legislations or suffer dissolution have been unsuccessful [24].

The way forward
The Judiciary has emerged as a reliable guardian of the sanctity of the Constitution. Judges have been thorough in scrutinizing laws and nullifying those that aim at defeating the Constitution.

As the number of unconstitutional legislations increase, the Kenya Law Reform Commission should rise to the occasion and publish a list of all potentially unconstitutional laws, whether entire legislations or specific provisions. It should then engage the relevant stakeholders in the administration of justice and draft bills to be on standby as proposed replacements of the unconstitutional laws.  Thereafter, the list of all the potentially unconstitutional laws should be submitted to Parliament for repeal.
The smooth repeal and replace process will avoid the creation of voids due to delays in replacement of repealed laws. Public participation and wide consultation will be paramount to the success of this ambitious proposal.

Conclusion
To optimally reap the just fruits of the Constitution, our laws must be sanitized of all unconstitutionality. With a body of laws that passionately share the language and spirit of the Constitution, the rule of law will cement and streamline the administration of justice. The constant friction between the Judiciary and the Legislature will ease as the latter performs its legislative function within the confines of the supreme law.
To fully achieve this milestone of constitutional screening of all our laws, the Legislature and Executive must join the Judiciary in embracing constitutionalism.

[1] Levi Munyeri is a Constitutional Lawyer and an Advocate of the High Court of Kenya 
[2] Section 3 of the Judicature Act (Chapter 8 Laws of Kenya) stipulates that the jurisdiction of Courts shall be exercised in conformity with inter alia all written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to the Act, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August 1897, and the procedure and practice observed in courts of justice in England at that date.(cited in part) 
[3] Article 2(5) Constitution, 2010 
[4] Article 165(3)(d) Constitution, 2010 
[5] Kenya Law, Legislation/Provisions of the Law Declared Unconstitutional. Available at http://kenyalaw.org/kl/index.php?id=8662
[6] With County Assemblies in place, enactment of unconstitutional laws is rampant. Almost all counties have legislations that have been declared unconstitutional. 
[7] Article 119(1) Constitution, 2010 
[8] Kibet E. & Wangeci K. A Perspective on the Doctrine of the Separation of Powers based on the Response to Court Orders in Kenya Strathmore Law Journal, January 2016. Pg 222. 
[9] The Supreme Court in Advisory Opinion Reference 2 of 2013 - In the Matter of the Speaker of the Senate & another [2013] eKLR cautiously advised on the extent at which the Courts can interfere with the law making process in parliament. It opined that whereas legislative process must comply with the Constitution, the Court will not question each and every procedural infraction that may occur in Parliament and cannot supervise the workings of Parliament.(cited in part) 
[10] See Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR 
[11] Act No. 23 of 1925 
[12] Kenya Human Rights Commission v Attorney General & another [2018] eKLR 
[13] Chapter 63, Revised Edition 2012 [2010] 
[14] Muendo M, The Conversation (15th March 2017) Kenyans are still oppressed by archaic colonial laws. Available at https://theconversation.com/kenyans-are-still-oppressed-by-archaic-colonial-laws-73880
[15] Section 67, Penal Code 
[16] In the case, Mativo J lamented: Upon promulgation of the Constitution of Kenya 2010, it was expected that certain provisions in our laws were to be amended to align them to the letter and spirit of the constitution, but almost seven years later we still have such provisions in our statutes! 
[17] For instance Section 297(2) prescribes death penalty for attempted robbery with violence. On the other hand, Section 389 provides a seven-year sentence for “an attempt to commit a felony”. Robbery with violence is a felony and so its punishment can as well be considered to be Section 389. 
[18] Okoth-Ogendo, H.W.O., & American Council of Learned Societies. (1988). Constitutions without constitutionalism: Reflections on an African political paradox. New York: American Council of Learned Societies. 
[19] The Standard (12th January 2016) Kenya Parliament has abandoned oversight role. Available at https://www.standardmedia.co.ke/article/2000187809/kenya-parliament-has-abandoned-oversight-role
[20] Section 4, No.19 of 2013 Laws of Kenya 
[21] Section 3, Law Reform Commission Act & Section 6 No.19 of 2013 Laws of Kenya 
[22] The Schedule lists the legislations to be enacted by Parliament and the timelines within which it should be done. The maximum being 5 years, the Constitution ought to have been fully implemented by the end of 2015. 
[23] Article 261(5) Constitution,2010 
[24]In Centre for Rights Education and Awareness & 2 others v Speaker the National Assembly & 6 others [2017] eKLR the Court held that parliament had failed to implement the two-thirds gender rule in elective and appointive bodies. Curiously, the Court declined to grant the prayer of dissolution of Parliament but instead issued an order of mandamus to compelling Parliament to legislate the required laws.