Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR “We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication; a person claiming constitutional infringement must give sufficient notice of the violations to allow her adversary to adequately prepare her case and to save the court from embarrassment on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are too insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional Petitions. Neither does it require talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the Respondents in a constitutional petition are fashioned in a way that gives proper notice to the Respondents about the nature of the claims being made so that they can adequately prepare their case.” 554. It is the principles that emerge from the cases cited in the preceding sections and the analysis required of the court from the provisions of Article 24 set out above that shall guide our determination of the constitutional issues that arise in these Consolidated Petitions. Use of Expert Evidence 555. A second set of principles that should guide the court relates to the use of expert testimony by the parties given that all the parties relied on expert witnesses in support of their respective cases. Submissions were made, particularly by the 5th Respondent, on the nature of the expert evidence and the circumstances under which the Court should place reliance on such evidence. The 5th Respondent requested the Court to find persuasion in the evidence of its expert witness, Mr. Brian Omwenga, who undertook research and authored a report titled ‘Strengths, Weaknesses, Opportunities and Threats: Analysis of the Existing Identification and Registration Systems in Kenya, 2017”. 556. In this report, according to the 5th Respondent, its expert recommended remedial measures to address the gap in the data sharing protocols between government agencies and the execution of the report on Government Wide Enterprise Architecture to allow for data access, security and governance in dealing with vital national data. Further, that the NIIMS system was part of the recommendations by the expert. The 5th Respondent contends that, on the other hand, the Petitioners’ expert witnesses had not interacted with the NIIMS system, and their knowledge of the alleged flaws in it was hypothetical and speculative. 557. The 5th Respondent cites the decision in Stephen Kinini Wang'ondu vs The Ark Limited [2016] eKLRand Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko [2007] 1 EA 139 on the consideration of, and weight to be given to, expert testimony by a court. In particular, it submits that expert evidence should not trump all other evidence; that it shouldnot be considered in a vacuum and that it should be evaluated in the context of other evidence. Therefore, that even though experts are called upon to assist the court to evaluate complex matter, the said evidence is not compelling on its own. 558. This Court received viva voce evidence from expert witnesses, who provided the Court with important information. Under section 48 of the Evidence Act, opinions of science or art are admissible if made by persons specially skilled in such science or art. The said section provides as follows: “(1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions. http://www.kenyalaw.org - Page 85/174