When “May” Becomes a Duty and “Shall” Becomes Discretionary

Introduction

The words “shall” and “may” are two small words that carry enormous weight in legal drafting and interpretation. These two words appear countless times in statutes, contracts, regulations, and court rules. Yet despite their frequent use, they continue to generate confusion, dispute, and litigation. The reason is that the meaning of these words is not fixed in stone. It shifts depending on context, purpose, and the intention of the person who wrote them.

Kenyan courts, following a rich tradition of Commonwealth jurisprudence, have developed a sophisticated body of principles governing when “shall” imposes a mandatory obligation and when, paradoxically, it may be read as merely directory. Conversely, the apparently permissive “may” can, in certain circumstances, take on the force of a command.

This article examines the interpretative principles that guide courts in determining whether language is mandatory or directory. It explores the key authorities from Kenya, including the landmark pronouncement of the Supreme Court of Kenya in the Advisory Opinion on the Principle of Gender Representation, demonstrating that the question is ultimately one of legislative intent, context, and consequence rather than mere semantics.

General Rule and Presumption

The starting point in any interpretative exercise is the recognition that language carries presumptive meanings. The word “shall” is generally understood to impose a duty or obligation, while “may” is understood to grant a discretion or power. This is the foundational presumption from which all analysis proceeds.

However, as the Court of Appeal observed in Peter Muturi Njuguna v Kenya Wildlife Service (Civil Appeal 260 of 2013) [2017] KECA 42 (KLR), the question whether the words “shall” or “may” convey a mandatory obligation or are simply permissive “will depend on the context and the intention of the drafters.” The court emphasized that while the court must rely on the language used in a statute to give it proper construction, the primary purpose is to discern the intention of the Legislature. This is the golden thread that runs through all interpretative exercises.

The presumption is not a rigid rule. As Ringera J (as he then was) observed in Standard Chartered Bank Limited v Lucton (K) Limited (Nairobi, Milimani HCCC No. 462 of 1997, unreported), the use of the word “shall” in a statute only signifies that the matter is prima facie mandatory. His Lordship stated:

“There appears to be a common belief by many in those courts that the use of the word ‘shall’ in a statute makes the provision under construction a mandatory one in all circumstances. That belief in my discernment of the law is a fallacious one. As I understand the canons of statutory interpretation, the use of the word ‘shall’ in a statute only signifies that the matter is prima facie mandatory. The use of the word is not conclusive or decisive, and it may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.”

This principle finds powerful support in the Australian case of Johnson’s Tyne Foundry Pty Ltd v Maffra Shire Council (1948) 77 CLR 544, where Williams J stated that “‘May’, unlike ‘shall’, is not a mandatory but a permissive word, although it may acquire a mandatory meaning from the context in which it is used, just as ‘shall’ which is a mandatory word, may be deprived of the obligatory force and become permissive in the context in which it appears.”

The Supreme Court of Kenya’s Authoritative Pronouncement

The Supreme Court of Kenya, in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinions Application 2 of 2012) [2012] KESC 5 (KLR), delivered a judgment that stands as the highest authority on the construction of “shall” and “may” in the Kenyan legal system. This case arose from a reference by the Attorney General seeking an advisory opinion on the interpretation of Article 81(b) of the Constitution, which provides that “not more than two-thirds of the members of elective public bodies shall be of the same gender.”

The Supreme Court was tasked with determining whether the word “shall” in this constitutional provision imposed an immediate, mandatory obligation. The Court, in a profound and nuanced ruling, held that the use of “shall” in this context was not absolute. The majority opinion, delivered by Tunoi, Ojwang, Wanjala, and Ndungu (SCJ), with Mutunga CJ dissenting, established several critical principles.

First, the Court held that whether a right is to be realized “progressively” or “immediately” depends on factors such as the language used in the normative safeguard, the mechanisms provided for attainment of the objective, the nature of the right in question, and the mode of constitution of the public body. The Court observed that “the expression ‘progressive realization’, as apprehended in the context of the human rights jurisprudence, would signify that there is no mandatory obligation resting upon the State to take particular measures, at a particular time, for the realization of the gender-equity principle, save where a time-frame is prescribed.”

Second, the Court made a critical distinction regarding the meaning of “shall.” Their Lordships held:

“Regarding the terms of article 81(b) of the Constitution that ‘not more than two-thirds of the members of elective public bodies shall be of the same gender’, the word ‘shall’ will translate to immediate command only where the task in question is a cut and dried one, executed as it is without further molding or preparation, and where the subject is inherently disposable by action emanating from a single agency. But this word ‘shall’ may be used in a different context, to imply the broad obligation which is more institutionally spread-out, and which calls for a chain of actions involving a plurality of agencies; when ‘shall’ is used in this sense, it calls not for immediate action, but for the faithful and responsible discharge of a public obligation; in this sense, the word ‘shall’ incorporates the element of management discretion on the part of the responsible agency or agencies.”

This is a watershed pronouncement. The Supreme Court held that the word “shall,” while ordinarily signifying a mandatory obligation, “incorporates the element of management discretion on the part of the responsible agency or agencies” where the implementation of the obligation requires a chain of actions involving multiple agencies. The Court further stated that “the word ‘shall’ is an emphasis on the obligation to take appropriate action, in the course of the progressive realization of a right conferred by the Constitution.”

The Court concluded that Article 81(b), as it related to the National Assembly and Senate, was “amenable only to progressive realization” and was not capable of immediate enforcement without certain measures being taken by the State. This decision demonstrates that even the most apparently mandatory language—”shall” in a constitutional provision—must be interpreted contextually and purposively.

The Court of Appeal’s Application of Supreme Court Principles The Supreme Court’s reasoning in the Gender Representation case has been subsequently applied by lower courts. The Court of Appeal in Sony Holdings Ltd v Registrar of Trade Marks & another [2015] KECA 904 (KLR) reinforced these principles. This case concerned the Registrar of Trade Marks’ exercise of discretion to extend time for filing a notice of opposition to registration of trade marks. The appellant argued that the Registrar had no power to extend time after the lapse of the statutory period.

The Court of Appeal, in affirming the High Court’s decision, demonstrated how the principles established by the Supreme Court operate in practice. The Court was satisfied that “the Registrar judicially and fairly exercised his discretion to extend time.” This case illustrates that where a statute grants a power using permissive language, courts will respect the exercise of that discretion where it has been properly exercised. The case also demonstrates the principle that the question of whether words impose a mandatory obligation or are permissive depends on the context and the intention of the drafters.

When “Shall” is Construed as Directory

The proposition that “shall” may be read as directory rather than mandatory is well-established in Kenyan jurisprudence. The key question is whether the provision in question is procedural or substantive in nature, and whether non-compliance would result in prejudice to any party.

The Procedural Distinction

In P N Mashru Limited v Total Kenya Limited [2013] KEHC 5067 (KLR), the High Court adopted the reasoning of the East African Court of Appeal in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266. The court held that rules of procedure are designed to give effect to the rights of parties. Once parties are brought before the courts in such a way that no possible injustice is caused to either, then a mere irregularity in relation to the rules of procedure would not result in vitiation of the proceedings.

The court, however, added an important rider that, this does not mean that the rules of procedure should not be complied with—indeed they should be—but non-compliance with rules of procedure which are directory and not mandatory will not normally result in proceedings being vitiated if, in fact, no prejudice has been done to the parties.

The Constitutional Dimension

The decision in P N Mashru Limited v Total Kenya Limited was heavily influenced by Article 159(2)(d) of the Constitution of Kenya, 2010, which provides that in exercising judicial authority, courts shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities. This constitutional imperative has tilted the scales in favour of treating procedural provisions as directory, particularly where no prejudice has been demonstrated.

The Interpretative Principles Applied

The Court of Appeal’s decision in Peter Muturi Njuguna v Kenya Wildlife Service (Civil Appeal 260 of 2013) [2017] KECA 42 (KLR) provides a masterclass in the application of these principles. The case concerned section 62(1) of the Wildlife (Conservation and Management) Act, which provided that a person who suffered bodily injury from or was killed by any wild animal “may” make an application to a District Committee for compensation.

The appellant argued that the word “may” in the section was permissive, giving him the option to either go to court or to the District Committee. In his view, if the legislature intended otherwise, it would have used the word “shall.” For that reason, the appellant argued that he had the option of going to court or the District Committee to pursue his claim. He contended that the existence of the claim before the court and the Committee at the same time was not an abuse of court process since the court was at liberty to stay the proceedings before it rather than dismissing the whole suit.

The Court of Appeal, however, rejected this argument. The court noted that Black’s Law Dictionary, 9th Edition, gives several definitions of the word “may” including “to be permitted to,” “to be a possibility,” or loosely put, “is required to.” The court then applied the principle that the determination of whether “may” conveys a mandatory obligation or is simply permissive depends on the context and the intention of the drafters.

The Court of Appeal held:

“On the interpretation of statutes where the words ‘may’ and ‘shall’ have been used, this Court has held before that: ‘It cannot, therefore, be overemphasized that while the court must rely on the language used in a statute or in the rules to give it proper construction, the primary purpose is to discern the intention of the Legislature (or Minister) in enacting or making of the provision...... Whether the words “shall” or “may” convey a mandatory obligation or are simply permissive, will depend on the context and the intention of the drafters.’”

The court found that the process laid down in the Act was “quick and less bureaucratic” and had an inbuilt appellate system for assurance of fairness. It held that filing a claim before the District Committee and simultaneously filing a suit for negligence based on the same facts was an abuse of court process. The court also found that the appellant ought to have approached the District Committee first and followed the appellate system designed under the Act.

This case demonstrates that even where “may” is used, the existence of a specific statutory procedure can make compliance mandatory. The court was not simply looking at the word “may” in isolation; it was examining the entire statutory scheme, the purpose of the provision, and the consequences of alternative interpretations.

When “May” is Construed as Mandatory

The converse situation—where “may” is read as mandatory—arises less frequently but is equally important. The key principle is that “may” acquires mandatory force where the context and purpose of the statute demonstrate an intention to impose a duty.

The Discretion Coupled with a Duty

The classic formulation, reflected in the Supreme Court’s Gender Representation decision, is that where a power is granted to a public official or body for the benefit of the public or a third party, the exercise of that power may become a duty. The court will examine whether the power is coupled with a duty to exercise it, and whether refusing to act would defeat the statutory purpose.

The Supreme Court’s holding in the Gender Representation case that “the word ‘shall’ incorporates the element of management discretion on the part of the responsible agency” is particularly instructive. It demonstrates that the opposite may also be true: where “may” grants a discretion, that discretion may be coupled with a duty to exercise it in a particular way.

The Contractual Context

An instructive example is found in Macharia Mwangi & Njeru Advocates v Ecobank Limited [2023] KECA 1501 (KLR), where the Court of Appeal considered the word “may” in paragraph 7 of the Remuneration Order. The court held that the word “may” left it to the discretion of the advocate and the client to decide whether to enter into a general agreement to charge on an inclusive scale.

The court emphasised that there was an express statutory condition precedent for the application of the scale, the existence of a general agreement between the advocate and the client. In the absence of that general agreement, the inclusive scale could not apply and the bill of costs must be charged per item of work. This case illustrates that “may” will be construed as permissive where the provision clearly contemplates a choice and where reading it as mandatory would do “great violence to the clear words and intent of the paragraph.”

The “Meaning vs Effect” Test

At the heart of the interpretative exercise is what might be called the “meaning vs effect” test. The court must not only determine what the words mean in the abstract, but what effect a particular interpretation would have on the statutory scheme, the rights of the parties, and the achievement of legislative objectives.

The factors that courts typically consider include:

First, the statute’s objectives—what is the legislation meant to achieve? If a mandatory reading would defeat the statute’s purpose while a directory reading would advance it, this is a powerful indication that the provision is directory.

Second, the consequences of alternative interpretations—what would happen under a mandatory reading versus a directory reading? If a mandatory reading would produce absurd or unjust results, this militates against reading the provision as mandatory.

Third, whether the statute imposes a penalty for non-compliance. The absence of a penalty for non-compliance is often, though not conclusively, indicative of directory intent. This was a key consideration in Standard Chartered Bank Limited v Lucton (K) Limited, where Ringera J noted that the absence of a penalty for non-compliance suggested the provision was directory.

Fourth, the nature of the provision—whether it is procedural or substantive. Procedural provisions are more readily construed as directory, as demonstrated in P N Mashru Limited v Total Kenya Limited. Fifth, whether any party has suffered prejudice. As the court noted in Brooke Bond Liebig (T) Ltd v Mallya, non-compliance with directory rules will not vitiate proceedings if no prejudice has been caused.

The Construction of Both Words in the Same Provision

Where both “may” and “shall” appear in the same provision, courts are more likely to conclude that the drafters intended “shall” to be mandatory and “may” to be permissive. This is a strong indication of legislative intent, but it is not decisive. The court must still examine the overall legislative scheme, the practical consequences of each interpretation, and the purpose of the provision.

The Supreme Court’s Gender Representation decision reinforces this approach. While the Court examined the specific word “shall” in Article 81(b), it did not do so in isolation. It examined the provision in the context of Articles 97 and 98 of the Constitution, which deal with membership of the National Assembly and Senate respectively, and concluded that Article 81(b) had not been transformed into a full right capable of direct enforcement without certain measures being taken by the State.

Practical Implications for Practitioners

For legal practitioners, the construction of “shall” and “may” has profound practical implications. When drafting documents, it is essential to be precise in the use of these words. “Shall” should be reserved for true obligations, while “may” should be used for genuine choices or powers.

The tendency in modern legislative drafting is to move away from “shall” altogether and use “must” for obligations and “may” for permissions. This reduces ambiguity and makes the law more accessible.

When arguing before a court, practitioners should be prepared to address the full range of interpretative considerations: the context, the purpose of the provision, the consequences of alternative interpretations, and any applicable constitutional principles such as Article 159(2)(d) of the Constitution. The Supreme Court’s Gender Representation decision has made it clear that “shall” may incorporate an element of discretion, and counsel should be prepared to argue whether a particular obligation is of a “cut and dried” nature or one that requires a chain of actions involving multiple agencies.

Conclusion

The construction of “shall” and “may” is ultimately a question of substance, not mere semantics. While presumptions exist, they are not rigid rules. The court’s ultimate duty is to give effect to the intention of the legislature or the contracting parties, having regard to the language of the provision, the context and statutory scheme, the purpose and object of the enactment, the consequences of alternative interpretations, and the constitutional framework.

The Supreme Court of Kenya’s decision in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinions Application 2 of 2012) [2012] KESC 5 (KLR) stands as the highest authority on this subject. The Court’s holding that “the word ‘shall’ incorporates the element of management discretion on the part of the responsible agency or agencies” represents a sophisticated and nuanced approach to statutory interpretation that moves beyond rigid textualism.

As the Court of Appeal held in Peter Muturi Njuguna v Kenya Wildlife Service (Civil Appeal 260 of 2013) [2017] KECA 42 (KLR), where there is a specific procedure as to the redress of grievances, the same ought to be strictly followed. This principle applies whether the provision uses “may” or “shall.” The court must look beyond the word itself to the entire statutory scheme, the purpose of the provision, and the consequences of alternative interpretations.

In the final analysis, the distinction between mandatory and directory provisions is not about the grammar of “shall” and “may” but about the courts’ understanding of what the legislature or contracting parties intended to achieve. It is a distinction that requires careful analysis of context, purpose, and consequence—a task that lies at the very heart of the judicial function.

Authored by Benson Odiwuor Otieno, Advocate of the High Court of Kenya

This article is a publication of the Litigation Practice Notes series, featured in The BOLD Newsletter. For questions, clarifications, or suggestions on this or related subjects, contact the author directly: insights@bensonodiwuor.com / info@benodiwuor.com.